24 September 2008

'Judicial Balancing' and Difference

A small plug, if I may: over the summer, I've published an article on the position of 'judicial balancing' in relation to comparative law methodology in the Hastings International and Comparative Law Review. The paper, entitled 'Balancing, the Global and the Local: Judicial Balancing as a Problematic Topic in Comparative (Constitutional) Law', is available on SSRN. The paper argues for more attention to the possibility of salient differences among the many manifestations of 'balancing discourse' in decisions of courts from around the world. This was the abstract:

Courts in Europe, North-America and elsewhere frequently use the language of 'balancing' when dealing with fundamental rights cases. In addition, judges and scholars increasingly often rely on the image of balancing, or 'weighing', to draw (self-)portraits of legal cultures and to frame contrasts and similarities between legal orders. This article argues that this form of discourse occupies a particularly problematic position as a topic of comparative constitutional law, and this for two primary reasons.

First, while balancing references, as legal arguments, function primarily to justify the exercise of judicial power in particular - local - settings, their legitimizing force depends to a large extent on explicit and implicit appeals to values that are understood to transcend the local, such as rationality, fairness and reasonableness. The ways in which balancing references voice these appeals, moreover, can be shown to differ between legal systems. These complex ambivalences place balancing squarely in between the two main competing models for comparative legal studies. Second, balancing references, in many of the ways they figure in legal discourse, habitually transcend familiar categories of legal thought, such as doctrine or principle, or traditional conceptual divisions, such as form/substance and legal/political. This means that a number of commonly relied-upon abstractions are not easily available for comparative investigations of this particular topic.

The article argues that these two sets of difficulties in situating balancing in terms of traditional comparative law approaches have contributed to an overemphasis on similarities and a comparative neglect of differences in local manifestations of balancing discourse. Underscoring the suggestion that the very idea of balancing can mean different things in different places, the article claims, will be essential in developing of a richer understanding of the legitimizing force of a type of discourse that has become crucial in fundamental rights adjudication.

(The article is part of an ongoing project, so comments are particularly welcome)

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