Questioning a global age of balancing
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All these references to the language of balancing, its invocations in case law and doctrine, but also as part of the imagery that legal actors use to make sense of their own constitutional law beliefs and practices, make up the discourse of balancing in contemporary constitutional jurisprudence.
2.
Convergence and contrast
The reach of the language of balancing extends beyond domestic and regional legal systems and into the discipline of comparative constitutional law, where it has emerged as an important conceptual organizational tool. In this context, the language generally figures in one of two principal ways: to voice ideas of universality or convergence, and as a marker of salient contrasts. Studies of the first kind, in their most ambitious guises, invoke notions of descriptive or normative universality for balancing. Balancing, on these views, is either or both a universally valid description of what ‘actually happens’ in constitutional adjudication, and/or a universally desirable ideal for what should happen. One early study along these lines, for example, claimed that ‘[j]ustices everywhere, who have the responsibility of deciding constitutional controversies, know that their task involves the identification and balancing of competing societal interests’, before going on to list examples of the recognition of the ‘inevitability’ of balancing in case law and literature from an extensive collection of systems.10 More recently, the Canadian scholar David Beatty has posited that the principle of proportionality – which for him encompasses a notion of balancing – is ‘an integral, indispensable part of every constitution’.11 Using reasoning and doctrines that are, strikingly, ‘virtually identical’, balancing courts in different systems in Beatty’s view are doing no more than explicitly recognizing this universal principle.12 Other studies, still within this broad similarity-focused framework, describe the spread of references to balancing not in terms of universal normative appeal, but from a more dynamic, political science oriented perspective, as part of a contemporary ‘globalization of legal thought’,13 or a trend of ‘judicial globalization’.14 In this vein, Alec Stone Sweet and 10 11 12 13 14
Antieau (1985), p. 125. See also Antieau (1977). Beatty (2004), pp. 162ff. Beatty (1995), pp. 15ff. Kennedy (2006). Grey (2003), p. 484. See also Law (2005).