Making Legal Knowledge Work: Practising Proportionality in the German Repetitorium
| Author | Jacco Bomhoff |
| DOI | http://doi.org/10.1177/09646639221092962 |
| Published date | 01 February 2023 |
| Date | 01 February 2023 |
| Subject Matter | Articles |
Making Legal Knowledge
Work: Practising
Proportionality in the
German Repetitorium
Jacco Bomhoff
LSE Law School, UK
Abstract
This article presents a cultural and critical study of ‘proportionality review’as a legal
knowledge format and practice. The setting for this study is German public law, and
in particular a domain of German legal education that is rarely analyzed even in
Germany: the classes and materials offered by Repetitoren. These are commercial
providers that aim to prepare students for the all-important ‘First Juridical
Examination’. In this setting, proportionality is presented as a principle that matters, a
doctrine that works, and a technique that jurists –lawyers, judges, but especially also
law students –can learn to perform. Sustaining the sense that proportionality ‘works’,
however, itself requires work, in particular in the form of largely invisible background
constraints on what can count as suitable problems and appropriate solutions. In
these processes of making proportionality into a ‘doable’technical instrument, the
German legal-constitutional order as a whole is presented as a feasible, achievable
project. The article looks at how proportionality’s success is produced and experienced,
and at what its status as a foundational, near-ideal legal instrument means for the
character of the German constitutional and legal imagination.
Keywords
legal knowledge, legal technique, cultural study of law, Germany, constitutional rights
Corresponding author:
Jacco Bomhoff, LSE Law School, Houghton Street, London, WC2A 2AE, UK.
Email: j.a.bomhoff@lse.ac.uk
Article
Social & Legal Studies
2023, Vol. 32(1) 28–54
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/09646639221092962
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Introduction
‘Proportionality’has captured the modern liberal legal imagination. The term commonly
stands for, eitheror both, a general constitutionalor human rights law principle, and a prac-
tical, multi-step doctrinal framework for the judicial scrutiny of legislative or executive
action allegedly infringing upon fundamental rights guarantees (Jackson, 2015; Jackson
and Tushnet, 2017; Stone Sweet and Mathews, 2019). Proportionality review in public
law asks courts to assess whether rights-limitingmeasures are suitable, necessary, and pro-
portionate in relation to achieving a legitimate aim. As both principle and judicial frame-
work, proportionality is generally understood to have originated in Germany, and to
have ‘migrated’to a broad range of jurisdictions, including Canada, South-Africa and
Israel, as well as to the practice of some influential trans- or supra-national legal orders.
German legal scholars write of proportionality –‘Verhältnismäßigkeit’,orthe‘Übermaß-
verbot’–as ‘probably the FederalConstitutional Court’s greatestjuristic achievement; one
incidentally,it shares with German constitutionalscholarship’(Lepsius,2015: 2, 2020: 95).
‘The justices refined the proportionality test into a work of art’, says the Introduction to a
recently translated appraisal of the Court’s work. In doing so, they created ‘amethodo-
logical masterpiece that became their most successful export’(Collings, 2020: xix).
This article presents a cultural and critical study of proportionality review as an artifact of
legal knowledge: a routinized, distinctively formatted, technical practice to be performed,
embedded in a broader ‘way of doing legal knowledge’(Riles, 2004, 2005: 976, 2006;
Valverde, 2003). While its near global spread means that proportionality review today
alsohasfeaturesofa‘modality of globalized legal knowledge’(Riles, 2011: 186), the
focus here will be on proportionality’s character as a component and emanation specifically
of legal consciousnessin the field of German public law, even if the article also aims to make
a contribution to our understanding of the workings of legal doctrine more generally. The
article engages with the setting in which aspiring German lawyers practise ‘doing propor-
tionality’most intensively: the Repetitorium. These are preparatory courses, offered by com-
mercial providers, that the great majority of law students take alongside their –free –
university studies, to get ready for the all-important, state organized, ‘First Juridical
Exam’. For this setting of exam-oriented instruction, and drawing on published teaching
materials and classroom observations with two large providers in three towns in
Nordrhein-Westfalen, the article examines proportionality as a legal knowledge format in
action, notably in the context of ‘solving’set problem-cases under exam –or exam-
preparatory –conditions. From this angle, as part of the practical activities of
‘Falllösung’, proportionality manifests itself as problem-solving technique. Capturing pro-
portionality in this guise will require taking in, not just its features as a formal template, but
also the material this technique is meant to work on –the factual and legal constellations of
typical problem-cases (klausurtypische Problemkonstellationen)–as well as the technical
instructions for its proper performance and the formal, disciplinary, and aesthetic standards
on which such performance is assessed (a sample question and answer appear at the end of
this article).
The overall heading for this analysis is the idea of proportionality’ssuccess as a legal
knowledge instrument. Doctrinal success, for the purposes of this study, is a formal and
phenomenological notion concerned with the experiences and commitments of local
Bomhoff 29
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