Carlos Bernal Pulido (University Externado of Colombia in Bogotá) has posted The Rationality of Balancing on the Internet. Here is the abstract:
Every modern legal system is made up of two basic kinds of norms: rules and principles. These are applied by means of two different procedures: subsumption and balancing. While rules apply by means of subsumption, balancing is the means of applying principles. Balancing has therefore become an essential methodological criterion for adjudication, especially of constitutional rights.
However, balancing is at the heart of many theoretical and practical discussions. One of the most important questions is whether balancing is a rational procedure for applying norms. The aim of this paper is to consider whether this is the case. To achieve this aim, this paper reflects on why the rationality of balancing is in doubt, and to what extent balancing can be rational, and how this can be possible. The weight formula proposed by Robert Alexy is analysed as a model which, in spite of its limits, solves the philosophical and constitutional problems about the rationality of balancing to the greatest extent possible.
I just finished reading this very interesting paper, which I think will be of substantial interest to constitutional theorists. It has a very nice analysis of Robert Alexy's work on balancing. (By the way, if you are not familiar with Alexy's work, he is certainly one of the great contemporary figures in legal theory.) Here is a bit more from the paper:
It is certain that sometimes rational judgments about degrees of intensity and importance of competing principles are possible. Or, what is the same, there are easy cases concerning the degree of importance of principles. For example, if a satirical magazine calls a handicapped officer a “cripple”, this clearly constitutes a serious offence against his honour (4), while at the same contributes very slightly to the protection of freedom of speech (1). However, there are also hard cases in which the premises, both factual and normative, that should be considered in determining the importance of a principle, are uncertain. This is typically the case when religious freedom is at stake. It can be doubted whether the degree of interference of a given measure with religious freedom can be determined in abstract terms, without taking into account subjective views on religious experience. Thus, the perceived degree of interference with religious freedom of a forced blood transfusion is clearly dependent on how the individual lives his religious faith. It might be fully negligible for most believers, and very serious for a member of Jehovah’s Witnesses. An assessment of the importance of the principle can only be made after taking a concrete stand that cannot be determined by the weight formula itself. Thus, reference to the weight formula implies a grant of discretion to the judge and to his critical moral views, as well as to his political ideology. However, even in such cases the weight formula has a role to play, for it makes clear where there is room for discretion at the heart of the balancing process.
Highly recommended.
k