Balancing and Judicial Self-Empowerment – On the rise of balancing in the jurisprudence of the German Constitutional Court –

Many critics of the proportionality principle argue that balancing is an instrument of judicial self-empowerment. This contribution challenges this critique. It argues that the relationship between balancing and judicial power is reverse. Balancing does not create judicial power; it presupposes the latter. This argument is confirmed through a case study of the German Federal Constitutional Court. The analysis shows that the German Constitutional Court was very reluctant to base decisions, in which it overturned legislation, on balancing in the first two and a half decades of its jurisprudence. However, in the late 1970s, once the Court had strengthened its own institutional position, it increasingly relied on balancing when declaring laws as incompatible with the constitution. Then, balancing developed into the predominant argumentation framework of constitutional review that it is today in the Court’s jurisprudence.