Wednesday, April 9, 2014

Bomhoff on Balancing Constitutional Rights in Postwar US and Germany

Published recently in Cambridge Studies in Constitutional Law is Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse, by Jacco Bomhoff, Associate Professor of Law at the London School of Economics and Political Science.  Saith CUP:
The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today.
Professor Bomhoff writes to us:
Of most interest for legal historians (I hope) are the book's two central chapters which discuss the simultaneous advent of a discourse of 'balancing' rights, values and interest in US Supreme Court and German Constitutional Court jurisprudence in the late 1950s and early 1960s. While this early case law provoked well-known - infamous - debates on both sides of the Atlantic, these clashes had not yet been the subject of any extended comparison. From this comparative perspective, and in part because of their almost cliche status, they provide a perhaps surprisingly useful lens for looking at the character of US and Western European legalism and constitutionalism more generally.
The book also looks at the broader legal-intellectual context of the time, notably comparing efforts to develop 'new' standards for adequate judicial reasoning (the neutral principles and process jurisprudence currents in the US, and the 'topical jurisprudence' and dialectical reasoning movements in Germany). In this way, the book aims to uncover thicker, contextualized, understandings of key jurisprudential concepts such as objectivity, neutrality, and most importantly: legal formality and its opposites.