To take another example, consider Bomhoff`s description of the reasons for America`s decision to reject the “horizontal effect” doctrine, according to which constitutional rights also apply to private actors: “Instead of pursuing full coverage of constitutional rights in the private sphere, American jurisprudence is so preoccupied and contradictory about the `frightening` idea of `horizontal effect.` that their corresponding doctrines are widely regarded as a “conceptual disaster zone” (p. 196) – that is, the reason for this rejection is an irrational phobia of a global concept. It would be hard to find in the book a harsh critique of the jurisprudence of the German FCC. Bomhoff describes the American balance in the 1950s and 1960s and concludes that “the balance in the United States was so much tighter than in Germany” (p. 188) ; that “in the context of the United States, it was much less clear what the wording of the compensation should mean” (p. 188); and that “participants in debates often spoke to each other – and to easily demystified straw men – and not to each other” (p. 188, emphasis added). Bomhoff goes on to write of these participants that “their contributions remain colorful and sometimes wonderfully insightful, but frustrating and opaque” (pp. 188-189). The nuance is clearly critical.

Compare this with the conclusion of the follow-up to the German compromise described above, which describes it as a triumph of the will and a success. At the heart of the book is the claim that balancing did not have the same meaning in America and Germany. This general observation results in many difficult and complex under-observations about the differences between the balance between the United States and Germany, the particular historical and intellectual context in which they have been placed, and how various legal actors have shaped these meanings. Any attempt to distil a central argument from this complex analysis would be a simplification; However, if one tries to do it anyway, the following statement would embody it: Balancing for Germany represents belief in law and legal formality, while in the United States it represents the collapse of belief in law and legal formality. With this reasoning, the book dispels a widespread misconception about balance – namely, that law is always a matter of informality. The author believes that this is an American misunderstanding based on the American experience, arguing that he does not understand the German legal mentality, in which the relationship between the formal and the material is much more complex than in America. According to Bomhoff, the balancing represents both the formal and the substantive aspect of the law in Germany. Bomhoff is aware of the fact that these constitutional ideas seem utopian and use judges with considerable power and discretion. It therefore provides crucial historical context for explaining how these views made sense in the German context after World War II. The first is the surprising degree of coherence and moderation of the German political system in the decades following the war, which allowed the Court to rely on a common system of values and to regard its decisions as apolitical and as the expression of a social quest for compromise and against extremes (p.

117). Footnote 5 The second is the project for which all of German society was recruited at the time, to rebuild Germany on liberal and democratic foundations and to ensure that National Socialism is uprooted and does not return – or, as it says in a beautiful contemporary quote from the book, “the `rabbit`s fear of a descent into barbarism” (p. 117). Citation Roellecke (1976)). As Bomhoff writes: “If constitutional law were to establish a significant obstacle to totalitarianism, the Basic Law had to be just as complete or complete in its efforts” (pp. 117-118). This is also the reason why, with a few exceptions, the dramatic movements of the court were not followed by scientific criticism. Science was also recruited for Germany`s reconstruction project and saw his role as helping the court rather than criticizing it. Footnote 6 A crucial point, Bomhoff said, is that the constitutional project is “desirable,” that is, it represents a quest for an ideal rather than a reflection of existing reality. (Following Lawrence Lessig`s terminology, I would like to add that we can view the German Constitution as a “transformative constitution” rather than a “preventive constitution.”) Footnote 7 It therefore had to be positive and not just negative, and the court had to strive to be comprehensive and perfect (p. 118). Footnote 8 In conclusion, Bomhoff tells us in his book that the American and German balance represents belief in the law as opposed to disillusionment with it – one sees it as a “noble dream,” the other as “a nightmare.” There was once an era of faith in America, but it`s over, and what remains are the remnants of belief in the power of rules to bind legal legislators, and the weighing that completely abandons formality.

For Germany, balance is at the heart of its particular belief in the formality of law. Balance is therefore both faith and disillusionment – depending on where it is geographically placed. Chapter 2 begins the historical overview of balancing by describing the striking similarities in the theoretical origins of equilibrium in Europe and the United States in the early twentieth century. For example, Bomhoff argues that “global constitutionalism, by exhorting legal legislators to strive to be complete and `perfection,` exerts a binding and limiting force very similar to the power attributed to statements of legal formality more familiar in American law, such as per se rules or sharp definitions” (p. 174). Elsewhere in the book, Bomhoff attempts to explain the unique nature of this type of formalism, which is based on open guidelines such as proportionality, noting that it is not a matter of “implementing these orders, but of discovering the exact meaning of these orders.” Bomhoff goes on to explain why the inclusion of values in the law does not violate the autonomy of the law, arguing that these values do not represent sectoral or political values, but “a public ideology that integrates democracy, social welfare and individual rights” (p. 220). Bomhoff also speaks of German balancing in terms that seem to reflect its real success, and not just in the way it is perceived as successful: german balance is “arguably the most important manifestation of a deep tradition of synthesis in German legal thought. Fill potentially conflicting views on the constitutional order as a whole. [and] is capable of fulfilling this function of synthesis because of a form of belief in their unproven but intentional capacity for success” (p.