Proportionality and Constitutional Culture

✍ Scribed by Moshe Cohen-Eliya, Iddo Porat

• Publisher: Cambridge University Press
• Year: 2013
• Tongue: English
• Leaves: 184
• Series: Cambridge Studies in Constitutional Law
• Category: Library

✦ Synopsis

Although the most important constitutional doctrine worldwide, a thorough cultural and historical examination of proportionality has not taken place until now. This comparison of proportionality with its counterpart in American constitutional law – balancing – shows how culture and history can create deep differences in seemingly similar doctrines. Owing to its historical origin in Germany, proportionality carries to this day a pro-rights association, while the opposite is the case for balancing. In addition, European legal and political culture has shaped proportionality as intrinsic to the state's role in realizing shared values, while in the United States a suspicion-based legal and political culture has shaped balancing in more pragmatic and instrumental terms. Although many argue that the USA should converge on proportionality, the book shows that a complex web of cultural associations make it an unlikely prospect.

✦ Table of Contents

Contents
Acknowledgments
Introduction
1 The global spread of proportionality and some analytical similarities with balancing
The spread of proportionality
Resistance to proportionality
Analytical similarities between balancing and proportionality
2 History
The origins of proportionality in German administrative law
Proportionality and Rechtsstaat
Judicial review and the development of the principle of proportionality
Proportionality, natural law, and formalism
Conclusion
The origins of balancing in American constitutional jurisprudence
Balancing as a critique of formalism and Langdellianism
Langdellianism
Balancing as anti-Langdellianism
Progressive balancing in constitutional law: balancing and anti-formalism in constitutional law
Lochnerism
Balancing as anti-Lochnerism
Progressive balancing during the McCarthy era
Conclusion
3 Culture
The German communitarian and organic conception of the state
Proportionality as an intrinsic element of the communitarian and organic conception of the state
The American individualistic and suspicion-based conception of the state
The suspicion-based conception of the state and balancing
Pragmatic versus conceptual balancing
Political culture and the expansiveness of rights
4 Impact, intent and indifference
Impact-based and intent-based constitutional models: the ideal types
The European impact-based model
The American intent-based model
Impact-based and intent-based: exceptions
Intent-based: indifferent infringement of the Constitution
Two illustrations: Minnesota v. Barber and the indifferent bomber
Indifference in experimental philosophy: the Knobe Effect
Possible objections
5 Epistemology
Rules and standards in the USA
American epistemological skepticism
Epistemological skepticism and rules and standards
Epistemological skepticism and rules
Epistemological skepticism and standards: balancing and minimalism
European epistemological optimism
Epistemological optimism and standards
Proportionality and epistemological optimism
Balancing, proportionality, and control
Vertical and horizontal control
The size of the system and docket: America versus Israel
Supreme Court coherency
6 Justification and authority
A functional accounting for the spread of proportionality
Early legal development
Pluralism and conflict management
A global community of judges and lingua franca
Judicial power
Culture of justification and culture of authority
Division of labor and "black holes"
The meaning of rights
The role of text and interpretation
Finality and the limits of reason
Pluralist versus substantive/deliberative democracy
The historical roots of the culture of justification
The impact of legal culture on balancing and proportionality
The administratization of constitutional law
7 The effects of proportionality
"Race to the top"
The German baggage of proportionality
Canada
Israel
Canada and Israel: foreign law citation
Common law baggage? Some objections
Proportionality's doctrinal imperialism
Conclusion
Index