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Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse * By Jacco Bomhoff , Cambridge, Cambridge University Press, 2013. 290 pp. ISBN: 978110704418 £24.00

  • Iddo Porat (a1)
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There was an error in the title that has now been corrected. An erratum notice has been published providing details.

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1 Geny and Heck were concerned with conceptualism, namely the idea of the law being a gapless system in which all answers can be logically deduced from a small set of concepts. They attacked therefore the idea of logical subsumption and gaplessness. While these same concerns were in the US, too, there the emphasis was on the false categorisations and rigid rules, signalling, according to Bomhoff, the later preoccupation in the US with the choice of rules vs. standards.

2 This, according to Bomhoff, can be attributed to the fact that, unlike in Europe, central issues of rights and of federalism were adjudicated in the US from a very early period so that US law was always more ‘political’ than its European counterpart.

3 Grey, Thomas C. (2003) ‘Judicial Review and Legal Pragmatism’, Wake Forest Law Review 38: 473, 477.

4 Geny, who had a great influence on Pound, actually had only a modest project of complementing and correcting the French formalist system so that it could be adapted to the changing societal and economic circumstances. Heck was more ambitious, but remained strongly neutral in terms of normative content, and his critique was strictly methodological. It was only Pound that made the association between method and substance.

5 Ernst Forsthoff, a contemporary, laments the ‘de-politicization of the era’, ibid.

6 Objections such as the criticism of Ernst Fortshoff that viewed the Luth Court as espousing a rule-less order (pp. 87–89) echoing earlier critiques by Carl Schmidt against balancing (pp. 100–102) were left generally at the margins.

7 See Lessig, Lawrence (1999) Code and Other Laws of Cyberspace. New York: Basic Books . Lessig defines a transformative constitution as a constitution that ‘sets out certain aspirations that are emphatically understood as a challenge to longstanding practices and are defined in opposition to those practices’, ibid., at p. 214; see also Sunstein, Cass (2001) Designing Democracy: What Constitutions Do. New York: Oxford University Press, p. 67.

8 Bomhoff is also careful to note that some of the reasons for the perfectionism of the Constitution lie in the periods that predated World War II, such as Smend's work in the Weimar republic who ‘laid a bridge over the abyss of Nazi Germany’.

9 Opposite Holmes's ‘clear and present danger’, there was the Learned Hand's formal and objective approach to speech; facing the early balancing cases of the 1940s and 1950s, there were categories of speech such as ‘fighting words’ that excluded some utterances as completely outside the scope of free speech. And, for the balancing of the 1950s and 1960s, there were the categorical and absolutist strands of Emerson and Meikeljohn and of Black and Douglas.

10 Bomhoff further clarifies: ‘The autonomy of law is not in the sense of a bounded limited domain of law, but in the form of a totalizing pretension – a mode of thinking in which all other societal domains or modes of knowledge are first framed by law, before they can assert any remaining independent identity’ (p. 200).

11 Horwitz, Morton J. (1992) The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy. New York: Oxford University Press, p. 18.

12 See e.g. Klarman, Michael (2004) From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. New York/Oxford: Oxford University Press, p. 115 (discussing the effect World War II had on the civil rights movement as ‘cataclysmic’).

13 The great debate between Black and Frankfurter, for example, should be seen in the perspective of two New Dealers who argue on the true legacy of the New Deal and of Holmes and Pound.

14 See Porat, Iddo (2013) ‘Mapping the American Debate over Balancing’ in Huscroft, Grant, Miller, Bradley and Webber, Gregoire (eds.) Proportionality and the Rule of Law: Rights, Justification, Reasoning. New York: Cambridge University Press .

15 Stone-Sweet, Alec (2000) Governing with Judges. Oxford: Oxford University Press .

16 Compare Kumm, Mattias (2010) ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights Based Proportionality Review’, Law & Ethics of Human Rights 4: 142, 144.

* There was an error in the title that has now been corrected. An erratum notice has been published providing details.

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