A critique of balancing and the principle of proportionality in constitutional law – a case for 'impersonal rights'?. (2nd April 2016)

• Record Type: Journal Article
• Authors: Ladeur, Karl-Heinz
• Is Part Of: Transnational legal theory. Volume 7:Number 2(2016)
• Page Start: 228
• Page End: 256
• Publication Date: 2016-04-02
• Subjects: Constitutional theory -- balancing -- principle of proportionality -- comparative law -- American theory of liberties -- German constitutional law -- constitutional transformation -- impersonal rights; International law -- Periodicals; Comparative law -- Periodicals; Conflict of laws -- Periodicals; Jurisprudence -- Periodicals; 341
• DOI: 10.1080/20414005.2016.1176791
• Languages: English
• ISSNs: 2041-4013

Abstract

ABSTRACT: Balancing and the proportionality principle are important patterns of argumentation in German constitutional practice. They have now been spreading in both the European Union and its Member States. Balancing is also an important cornerstone of supreme or constitutional courts of Latin American states. Even the US doctrine and jurisprudence does not appear to be immune from balancing and the reference to the proportionality principle in the European sense. The article describes the evolution of these principles and warns against their hidden agenda: they tend to undermine the distinction between state and society (and individuals as bearers of rights). The article tries to demonstrate that the challenge of organisations as bearers of rights is the background of the rise of the new approach. However, the development of a conception of 'impersonal rights' can also meet this challenge without creating a risk for the specific rationale of individual rights.