The language of balancing and proportionality figures increasingly, often in judicial and academic constitutional legal reasoning in Western democracies. The spread of this particular form of discourse raises important methodological and substantive issues for scholars of comparative law. While the dominant narrative in the relevant lines of scholarship has long been one of similarity and convergence, this article argues that not enough attention has been paid to the possibility of difference—the idea that references to balancing might mean very different things (...) in different settings. In Parts I and II, the article suggests that a methodological shift—from a focus on balancing as doctrine to a focus on balancing as legal argument—will be necessary to bring out these different meanings. Based on a case study of early and mid-twentieth century practices in Germany and the United States, it is argued that one crucial difference in the local meanings of balancing in these settings relates to the extent to which choices of legal form are locally expected to have inherent substantive implications. (shrink)

This collection explores some of the many ways in which constitutional orders engage with, and are shaped by, their exteriors. Constitutional and legal theory often marginalize 'foreign' elements, such as norms originating in other legal systems, the movement of individuals across borders, or the application of domestic law to foreign affairs. In The Double-Facing Constitution, these instances of boundary crossing lie at the heart of an alternative understanding of constitutions as permeable membranes, through which norms can and sometimes must travel. (...) Constitutional orders are facing both inwards and outwards - and the outside world influences their interiors just as much as their internal orders help shape their surroundings. Different essays discuss the theoretical and historical foundations of this view, and its contemporary relevance for areas as diverse as migration law, the conflict of laws, and foreign relations law. (shrink)