Abstract
The present paper aims at analysing and fleshing out the concept of balancing and explores to what extent the discourse of reasons can be helpful in weighing contexts. First of all, I will conceptually distinguish between brute balancing and guided balancing, proportionality and weighing. Then I will argue that the solution of constitutional conflicts irresolvable by norms of conflicts require balancing under a set of relevant circumstances; but the most important step in the legal reasoning at stake concerns a second-order weighing process which makes it possible to justify the values to be attributed to intensities of interferences, as well as to degrees of certainty. I will also claim that the object of weighing are reasons and not norms themselves, as well as that reasons and not principles are the weight bearers. For this endeavour, I will develop a model of reasons inspired by the particularist practical reasoning apparatus to be used as the main tool for decision-makers to solve prima facie irresolvable normative conflicts in light of particular cases’ properties, which I believe do constitute a case of local particularism. According to this model, reasons can vary across contexts as a result of conditions (enablers and disablers) that create and eliminate reasons to act, and modifiers (intensifiers and attenuators) that change the weight of the normative reasons to act. Lastly, I will argue that this model, although it can operate independently, can also be envisaged as the ideal complement to Alexy’s “Weight Formula” regarding its external justification.
The present paper is a written version, with some changes, of the presentation made at the “Balancing Human Rights” conference, which took place at the University of Erlangen and was organized by Jan-R. Sieckmann. For the discussion, criticisms and suggestions made at the conference, I would like to thank Robert Alexy, Jan-R. Sieckmann, Martin Borowski, Matthias Klatt, Laura Clérico, Ingrid Leijten, Carsten Bäcker, Daniel Oliver-Lalana, David Duarte, as well as Pedro Moniz Lopes and Susana Cadilha. Nevertheless, the responsibility for any mistakes I may have made is mine alone.
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Notes
- 1.
See Schauer (1991), p. 1 ff.
- 2.
Similarly, see Feteris (2017), p. xv.
- 3.
See Schauer (1995), pp. 633–634.
- 4.
The expression can be found in Scanlon (2014), p. 1 ff.
- 5.
See Alexy (2010b), p. 211 ff. In any case, I only subscribe to his first thesis, according to which legal discussions are concerned with practical questions, but not the thesis that they are discussed under the claim to correctness, because as a positivist I do not think there is a necessary connection between law and morality. Still, for a reinterpretation of the claim to correctness metaphor compatible with the legal positivism I subscribe to, see Brozek (2007), p. 78 ff.
- 6.
- 7.
- 8.
I am using the term “interference” as an equivalent to the often-used term “restriction”.
- 9.
It is important to stress that not all fundamental rights norms are necessarily principles, even if the majority are. For the sake of simplicity, I will refer to fundamental rights principles and legal rules.
- 10.
- 11.
Generally referring to the “culture of justification”, in which courts are responsible for ensuring that all state acts that interfere with fundamental rights are substantially justified, and the “right to justification”, which would constitute a moral right and, ideally, a constitutional right (which raises some doubts), p. see Möller (2019), p. 1078 ff.
- 12.
See Ross (2019), p. 149 ff.
- 13.
- 14.
Using a similar expression, see Jeutner (2017).
- 15.
- 16.
- 17.
Therefore, those authors for whom all fundamental rights norms have the structure of principle fall into a fallacy of undue generalization. In this sense, for example, see Alexy (2010a); Sanchís (2014). The same is true of those who claim that all fundamental rights norms are rules. See Zucca (2008), p. 41; von Bernstorff (2014), p. 66. The problem in this case is even greater, because most fundamental rights norms are principles. Contrary to what Zucca argues, the qualification of a norm as a rule or principle is not determined by any previous philosophical understanding as to the (deontological) nature of rights, but is a result of the respective normative structure.
- 18.
Similarly, see Guastini (2016), pp. 255–256.
- 19.
Indeed, the lex posterior and lex specialis norms of conflicts can also be useful in some constitutional cases. Lex posterior is applicable to conflicts generated by the approval of constitutional revision laws. In turn, constituent authorities often enshrine rules in constitutional texts that are exceptions to the content of constitutional principles.
- 20.
Outside meaning that it is not the legal system itself that “directly” determines the norm to prevail, an answer that depends on a legal judgment to be made by an official.
- 21.
A possible second condition, albeit a contingent one which applies essentially to legal officers such as judges, is related to the fact that legal systems do not allow non liquet situations, in which legal decision-makers cannot rely on the inexistence of an internal normative answer to not decide the cases presented to them. It follows logically that the only solution left for them in cases where the legal system does not provide an internal solution is to resort to balancing.
- 22.
See Robert Alexy (2003), p. 433.
- 23.
Noting that the “balancing discourse” has been used both by jurisprudence and by doctrine, as well as both domestically, regionally and internationally, see Jacco Bomhoff (2013), p. 11 ff.
- 24.
See Chiassoni (2019), p. 167.
- 25.
- 26.
I am referring to rationality in a broad sense, comprising, on the one side, the elements of formal or structural rationality, that is, logic, means/end-reasoning, and empirical truth or reliability, and, on the other side, the elements of “reasonableness”, that is, the right and good. See von Wright (1993), p. 173. Therefore, as synthetized by Alexy, I am talking about “practical rationality”, which comprises both rationality and reasonableness. See Alexy (2010c), p. 7.
- 27.
In other words, one can speak of a “reasonableness pattern” vis-à-vis a substantive rationality requirement of practical reasoning imposing the choice for which there is more reason. Referring in this context to the “principle of balancing”, see Chiassoni (2019), p. 168 ff.
- 28.
Referring to “logic”, see Pino (2014), p. 345 ff.
- 29.
In a similar sense, see Chiassoni (2019), pp. 170–171. What is relevant here is to understand that balancing as a meta-technique can also be used in the context of all these legal operations in alternative choice scenarios, whenever the legal system does not internally determine which alternative should be chosen. This means that balancing always operates in a subsidiary way.
- 30.
See Sampaio (2019), p. 121.
- 31.
- 32.
For some similar examples, see Pino (2014), p. 346 ff.
- 33.
- 34.
- 35.
In a similar way, see Chiassoni (2011), p. 326.
- 36.
See Sieckmann (2012), p. 13 ff and 87 ff.
- 37.
See Guastini (2016), pp. 261–262. The case is however less extreme than Guastini paints it. In fact, even if the legal system in question does not contain the principle of precedent, normative preferences obtained under certain conditions must be prima facie followed by courts in the future by imposition of the legal certainty and equality principles. Naturally, if the conditions under which the balancing occurred change, all courts have the power to distinguish; and some courts also have the power to overrule the previous decision, even if they are obliged to justify it. On precedent and the concepts of distinguishing and overruling, among many others, see Schauer (1991); MacCormick (2005); and Lamond (2016).
- 38.
- 39.
I want to stress that the alleged conceptual connection between balancing and principles constitutes a fallacy of undue generalization. If is true that, due to their peculiar antecedent structure, principles are dispositionally more apt to enter into conflictual relations that require balancing, this does not mean that rules cannot also enter into those types of conflicts. Furthermore, like any norm, principles also have an antecedent, which means that their application also requires subsumption. In short, both subsumption and balancing are legal intellectual operations that may involve rules and principles.
- 40.
- 41.
Which is enough to rule out the very popular idea that the need for balancing would be a distinctive feature of the “neo-constitutionalism” theory (neoconstitucionalismo).
- 42.
Similarly, although referring to balancing as “logic” and as an “argumentative technique”, see Pino (2014), p. 354.
- 43.
In this sense, see Pino (2014), p. 354.
- 44.
In a similar way, see Lopes (2019), p. 395.
- 45.
- 46.
- 47.
- 48.
See Alexy (2010a), p. 419.
- 49.
See Sampaio (2018), p. 82 ff.
- 50.
See Alexy (2003), p. 440 ff.
- 51.
Innovatively defending that the guidance provided by proportionality consists not of the establishment of a preference per se—as I see it, this is the function of balancing—but of the establishment of a limit beyond which there is disproportionality, see Duarte (2021).
- 52.
See Raz (1999), p. 9.
- 53.
See Alchourrón and Bulygin (1996), p. 143 ff.
- 54.
See Schauer (1991), p. 38 ff.
- 55.
- 56.
It worth stressing that reasons for the action are of course important for other purposes such as explaining normativity, but I am only referring to the practical question regarding what one ought to do from the legal perspective.
- 57.
See Alvarez (2013), p. 7.
- 58.
- 59.
- 60.
See Dancy (2000), pp. 2–3; Alvarez (2016). Also arguing that justificatory qua normative reasons are different from motivating and explanatory ones, and adducing that, unlike motivation, justification needs universalisation, that is, “[f]or particular reasons (…) to be justifying reasons they have to be subsumable under a relevant principle of action universally stated”, see MacCormick (2005), pp. 98–99.
- 61.
It is important to note that “[a]lthough a reason that motivates an action can always explain it, a reason that can explain the action is not always the reason that motivates it.” See Maria Alvarez, “Reasons for”, cit.
- 62.
See Hieronymi (2011), p. 413.
- 63.
In this sense, although with more specifications, see Audi (2010), p. 275.
- 64.
As Cristina Redondo puts it, the opposition between particularism and universalism can be seen in the light of “ideal conceptual models”, namely the analytical-conceptual, descriptive-explanatory and evaluative-justifying points of view [see Redondo (2015), p. 60]. Underlining the idea that there are “various moral particularisms”, the same being true of universalism, see McKeever and Ridge (2006), p. 3 ff.
- 65.
See Redondo (2015), p. 60.
- 66.
See Redondo (2015), p. 65.
- 67.
The mere fact that legal systems are largely composed of norms created by normative authorities shows a considerable difference from what happens in the context of normative ethics.
- 68.
Holism contrasts with atomism. According to atomism when a property constitutes a reason in a case, it must constitute a reason in favour of the same action in the remaining cases, that is, the relevance of the properties would be invariable.
- 69.
- 70.
See Bouvier (2012), pp. 180–181; Redondo (2015), p. 65. As Bouvier stresses, holism is not an exclusive thesis of particularism. W. D. Ross, for instance, also argued that the practical relevance of a certain property depends on the other factors that make up the case, even though he did not claim that context could completely silence or even reverse the meaning of a given property.
- 71.
- 72.
- 73.
- 74.
Defending a model of global particularism in all cases of conflicts between constitutional principles and a generic subscription of the particularist conception for legal reasoning in general, see Celano (2009a), p. 216 ff; (2009b), p. 235 ff. Although in most cases of constitutional conflicts the Italian philosopher seems to be right, his thesis must nevertheless be rejected because it expresses a fallacy of undue generalization.
- 75.
For instance, see MacCormick (2005), p. 49 ff. Furthermore, even if particularists such as Dancy were right in arguing that there is no such thing as a “master rule book of morality” [see Dancy (2004a), p. 130 ff], the same cannot be said about law. In fact, legal thinking is considerably different from moral thinking right away because law is composed of several “master norms books”, such as constitutions, civil codes, etc. See MacCormick (2005), p. 99.
- 76.
As has already been stressed, it is also possible to universalize the results as ad hoc balancing rules to future cases. In the same sense, as Clérico emphasises, the decision rules created—a “web of decision rules”—will serve to resolve other cases because of the application of the norms of equality or legal certainty. See Clérico (2009), p. 180 ff.
- 77.
For example, see Guastini (2014), p. 216 ff.
- 78.
Arguing that it would, see Moreso (2009), p. 267 ff. Nevertheless, as Alexy puts it “[t]o be backed by reasons that do not violate the rules of reason is (…) to be (…) objective and not to be merely subjective”. See Alexy (2010c), p. 13. Of course even “objective standards are applicable only through adjudicative subjectivity” (see MacCormick (2005), p. 164), p. but there is obviously a difference between acting according to existing reasons for a certain action in comparison to acting against those same reasons or acting under alleged reasons identified under poor epistemic and practical conditions. In this context, the distinction between objective reasons (count in favour of action or belief in the sense that it makes them advisable from an omniscient third-person perspective that takes all the relevant facts into consideration) and subjective reasons (count in favour of action or belief in the sense that it makes them reasonable or rational from the limited first-person perspective of the agent) that has been worked on more recently in philosophy can be useful. For example, see Sepielli (2018), p. 784 ff.
- 79.
See Bouvier (2014), pp. 88–89. The distinction between Guastinian scepticism and particularism is, to a large extent, linked to a different metaethical conception underlying each of these two visions: while Guastini assumes an expressivist-emotivism metaethical conception, Dancian particularism is based on a moral realism conception. In the same sense, see Hernán G. Bouvier (2012), p. 328 ff). Seeking to reinterpret Guastini’s emotivism at the light of modern expressivism, such as Blackburn’s quasi-realism or Gibbard‘s normative expressivism, see Sardo (2019), p. 325 ff.
- 80.
See Lord and Maguire (2016), p. 3.
- 81.
Legal positions, such as rights and duties, are also examples of strict notions.
- 82.
See Lord and Maguire (2016), pp. 4–5.
- 83.
- 84.
- 85.
See Hage (1997), p. 116.
- 86.
See Dancy (2018), p. 28 ff.
- 87.
See also Broome (2013), p. 52.
- 88.
Curiously, Dancy argues that “weight” is a bad metaphor for describing practical reasoning because it erroneously suggests that a reason of a certain kind makes exactly the same contribution in relation to every act for which it counts as a reason, which would be false under holism of reasons. See Dancy (2004a), pp. 190–191. And this criticism towards the concept of pro tanto reason seems to be based on same grounds. However, I think this line of reasoning is wrong. Obviously, a metaphor does not have to completely mirror the phenomenon to be explained. And obviously one should be fully aware of the limits of the metaphor [see Twining and Miers (2010), p. 358]. When someone says that “the man is a wolf”, she wants to suggest, for example, that like wolves, men can also be fierce and ruthless. There are a number of differences between men and wolves, but this does not make the metaphor unfeasible. Thus, if the metaphor allows us to better understand a certain phenomenon, its use is prima facie justified. In fact, I think it is precisely for this reason that the weight metaphor is massively used in current discourse (as well as in legal discourse) to explain the way people deliberate about what to do—and this is also why it is almost impossible to completely avoid the use of this metaphor. Acknowledging this fact now, see MacCormick (2005), p. 186. In sum, to avoid confusion and misuse, one just needs to make some careful qualifications for using the metaphor in the legal and moral domain. See, however, the criticisms I made about use of the weight metaphor in the context of interferences in fundamental rights, although perhaps in a slightly exaggerated way, in Sampaio (2018), p. 96 ff.
- 89.
See Cullity (2018), p. 424.
- 90.
- 91.
- 92.
In a similar vein, see Broome (2004), pp. 37–38.
- 93.
Critically analysing this conception, see Nair and Horty (2018), p. 70.
- 94.
Also arguing that “[r]easons do not have weights as material objects do”, see MacCormick (2005), p. 186.
- 95.
See Cullity (2018), p. 427.
- 96.
See Dancy (2018), pp. 27–28.
- 97.
See Hage (1997), p. 124.
- 98.
It is important to underline that if direct conflicts between practical and epistemic reasons are not possible, the former depend conceptually on the latter, as is evident from the Kantian principle ought implies can.
- 99.
See Alvarez (2013), pp. 3 and 11.
- 100.
- 101.
See Alvarez (2016).
- 102.
See Dancy (2018), p. 42.
- 103.
See Dancy (2018), pp. 35–36.
- 104.
- 105.
Contrast with Dancy (2004b), p. 91 ff.
- 106.
Similarly, see Alvarez (2016).
- 107.
- 108.
Similarly, see Bongiovanni (2018), p. 11.
- 109.
See Parfit (2011), pp. 32–33.
- 110.
See Setiya (2007), p. 13.
- 111.
See Cullity (2018), p. 433. For example, the fact that public expenditure is unbalanced may be a reason for normative and executive authorities to raise taxes. However, the fact that there is already a high tax burden on the active population may be a reason for not doing so. In that case, those authorities have a pro tanto reason to raise taxes and a pro tanto reason for not doing so. Whether it was right for those authorities to increase taxes, that is, whether such an action was justified by an all things considered reason will depend on the weight of the colliding reasons in the concrete context. Thus, if reasons for increasing taxes prove to be stronger than the reasons for not increasing taxes, it can be stated that these reasons defeat the opposing reasons. In these terms, only if the pro tanto reason or reasons for increasing taxes prevail is it possible to state that, all things considered, the practical action of raising taxes is justified.
- 112.
See Errol Lord and Barry Maguire (2016), p. 8.
- 113.
As Hage puts it, a norm is a conditional such as “if A then B”. If fact A occurs, then A is a reason for B. See Hage (1997), p. 59. Furthermore, it is important to stress that only norms that pertain to the legal order can constitute reasons. Arguing they must be valid qua existent, see Hage (1997), p. 89.
- 114.
- 115.
See Dancy (2018), p. 37 ff.
- 116.
- 117.
Amongst others, see Raz (1999), p. 17; Schauer (1991), p. 112 ff; Gardner and Macklem (2002), p. 442 ss; Alvarez (2016). Others argue that complete reasons have two components: one factual and one evaluative (see Davidson 1963). Another hypothesis is related to the possibility that reasons are a mixture of facts and reasons, which leads to the relationship between reasons and values and, more specifically, to the possibility of an interdefinability between reasons and values: reasons are values and values are reasons (on this, for example, see Gardner and Macklem (2002), pp. 451–452).
- 118.
- 119.
See Alvarez (2016). According to Alvarez, the issue is complicated in that there is disagreement as to the type of facts in question. For example, are they concrete or abstract entities? Is such a fact the same as the corresponding true proposition or does it constitute its condition of truth? Are these facts a different thing from empirical facts, as illustratively, logical, mathematical, moral or aesthetic facts?
- 120.
See Alvarez (2016).
- 121.
And therefore facts would not contrast with values, but would include them [see Raz (1999), pp. 17–18].
- 122.
See Dancy (2018), p. cit., 42 ff.
- 123.
See Dancy (2004a), p. 38 ff; (2018), p. 50 ff; Lord and Maguire (2016), p. 10 ff; Bader (2016), p. 28 ff). There is an open question that will not be addressed here. It is not clear if the distinction between reasons, conditions and modifiers is context-sensitive and of pragmatic nature or if it is a true fine-grained distinction [see Bader (2016), p. 28 ff].
- 124.
See Bader (2016), p. 31 ff.
- 125.
- 126.
Regarding this concept, see Hage (1997), p. 59 ff.
- 127.
See Bader (2016), p. 39 ff.
- 128.
See Dancy (2018), p. 51.
- 129.
- 130.
- 131.
- 132.
- 133.
See Brandom (2000), p. 81.
- 134.
See Brandom (2000), p. 82.
- 135.
In this sense, see Wallace (2003).
- 136.
- 137.
It is important to stress that pro tanto reasons as entities that may defeat other reasons are not to be confused with normative exceptions.
- 138.
See Wallace (2003).
- 139.
- 140.
About the topic of perception, for example, see Bergqvist and Cowan (2018).
- 141.
See Brandom (2000), p. 83.
- 142.
See Väyrynen (2018), pp. 857–858.
- 143.
As mentioned, the prevalence is “mobile” or, in Alexy’s terms, “conditional” (and not an absolute one). For example, see Alexy (2019), p. 94.
- 144.
Making this distinction, see Sartor (2018), p. 315 ff.
- 145.
See Nair and Horty (2018), pp. 69–70.
- 146.
- 147.
And it is also worth noting that the weighing reasoning for choosing the “heaviest” alternatives does not happen in a legal vacuum, but under all legal principles relevant prima facie, as well other legal factors woven in the “fabric of the law”. See MacCormick (2005), p. 188.
- 148.
This aspect is of great relevance because, as MaCormick stresses, “[u]nreasonableness consists of ignoring some relevant factor or factors, or of treating as relevant what ought to be ignored”. See MacCormick (2005), p. 173.
- 149.
In MacCormick’s terms, one can say the weighing judgement encompasses a (i) phase of discovering what happened and why happened, and (ii) a phase of appreciating that which happened in the light of the relevant value-factors. See MacCormick (2005), p. 180. Regarding the evaluative task, although with different terms, see also Raz (1999), p. 27.
- 150.
See Dancy (2018), pp. 58–59.
- 151.
See Broome (2004), p. 36.
- 152.
- 153.
As Chang has noted, the incommensurability objection almost disappears if one distinguishes between incommensurability and incomparability [see Chang (1998), p. 1 ff; (2015), p. 1 ff]. Two elements are incommensurable if they cannot be accurately measured on a value scale, whereas two elements are incomparable if it is not possible to establish any affirmative relationship between them. Therefore, while incommensurability presupposes the impossibility of establishing a cardinal order of the elements in question, although ordinal classification remains possible, incomparability makes both cardinal and ordinal classifications impossible. Finally, all comparisons require the determination of a covering value, that is, the element X is “better”, “worse” or “equal” to the element Y in the light of the coverage value Z [see Chang (1998), p. 1 ff; (2015), p. 3 ff]. On this account, incommensurability does not exclude balancing, even if there are restrictions on the type of scale that can be used in the weighing process. To put it clearly: only ordinal and not cardinal ranking is possible [see Silva (2011), p. 282].
- 154.
Also claiming that it is inappropriate to associate a reason with something as precise as a number that represents its weight, see Broome (2004), p. 37.
- 155.
Differently from Broome regarding the pro tanto reason concept, see, for example, Dancy (2004b), p. 91 ss).
- 156.
An absolute reason is one for which there cannot be another that prevails over it. See Raz (1999), p. 27.
- 157.
This may somehow explain the intuitive idea that reasons constituted by the constitutional right to life or the right to human dignity have a concrete and relational higher weight than other reasons.
- 158.
- 159.
- 160.
See Zorrilla (2007), p. 348 ff.
- 161.
It seems to be in this sense that Raz affirms the possibility of facing optional reasons, although it does not seem to make sense to state that the reasons are optional (see Raz 1999, p. 94 ff), p. but only that it is not wrong to act for or against a certain reason, or, a contrario, it is right to act either for a certain reason or against the same reason, which, as I understand it, means only the existence of discretion for the agent, inasmuch as the different courses of action are all rationally justified. See Scanlon (2014), p. 107.
- 162.
See BVerfGE 95, 173 (Warnhinweise für Tabakerzeugnisse) (1997).
- 163.
Using this case as an example for the application of the WF, see, among other articles, Alexy (2010c), pp. 10–11.
- 164.
On the one hand, it is possible to see some similarities between the reasons model created and MacCormick’s “reasonableness model”, which is justified by “the existence of a plurality of factors requiring [evaluation] in respect of their relevance to a common focus of concern”. And the “plurality of factors” consists of a class of at least two competing reasons, that represent incompatible answers to a practical question. Reasonableness requires consideration of all relevant reasons so that “a balance” be struck according to their “relative weight or importance” in “a context-dependent way”. In this way, balancing is identified as the essence of reasonableness (see MacCormick 2005, p. 167 ff). In addition, there are also some similarities with Kumm’s model of “Socratic contestation” and Möller’s model of “balancing as reasoning”, which operates at a most general level, where balancing is “simply…a matter of assessing the relative strength of reasons”. See Kumm (2010), Möller (2012), p. 139. However, my model escapes Urbina’s lack of “legal direction” objection to the previous models. See Urbina (2017), p. 150 ff. Even if balancing is an operation carried out within the framework of practical rationality, only the properties referred by the antecedent of the conflicting principles are relevant. Moreover, balancing is carried out within the framework of the “structural guidance” offered by proportionality. Furthermore, it is sensitive to the legal-conceptual schemes shared by the participants in the legal game resulting from the respective legal systems and concrete judicial practices. It also serves as a catalyst for discursive rationality, indispensable for the acceptability of legal decisions by the relevant legal community. Lastly and more important, it assigns a decisive role to the “ad hoc weighting rules”, which constitute stable legal criteria linked to judicial precedents and also to analogical and a fortiori arguments.
- 165.
The great advantage of the combinatory thesis is that it makes it possible to maintain the WF’s formal structure that provides a procedure for balancing qua practical reasoning, which, by guaranteeing instrumental rationality, contributes to ensuring a minimum objectivity in the balancing domain. In a similar sense, see Alexy (2010c), p. 11 ff.
- 166.
Due to the problems of the abstract weight variable — it presupposes the existence of an (axiological) form of hierarchy between fundamental rights that does not seem to exist (for example, see Moreso (2009), p. 312; Duarte (2021)]. I believe that the formula should express only these two variables. In any case, the possible reasons linked to abstract weight—such as the strength of interests that back each of the conflicting norms, other norms that support each of the conflicting norms, and the existence of previous decisions establishing relations of preference between the conflicting norms [see Sieckmann (2012), p. 100 ff; Clérico (2009), pp. 221–222)]—can be considered in the context of external justification in determining the weight of the interference.
- 167.
See Zorrilla (2007), p. 349 ff.
- 168.
Which means the reasons model also shares some similarities with Klatt’s “definitory balancing”, which operates at the external justification level. See Klatt and Schmidt (2012), p. 69 ff.
- 169.
The substantive weighing process will be procedurally constrained by the WF. Acknowledging that the WF is a formal structure, see, for example, Alexy (2010d), p. 32. Arguing the answer to the question of “what are the grounds of the ascription of weights” is, perhaps, “best given by referring back to the ‘procedural’ aspect of reasoning”, see MacCormick (2005), p. 186. All the same, the combinatory thesis also makes it possible to explain in a clearer and more coherent way, in which the concepts of balancing, proportionality and weighting in the legal domain are related.
- 170.
Again, this is in line with Sieckmann’s idea of autonomous balancing.
- 171.
It is worth recalling that reasons in this context do not guarantee conclusions, but only favour or contribute to them. Similarly, see Hage (1997), p. 77.
- 172.
In other words, a good part of practical reasoning is evaluative and the justification of evaluations does not work in a deductive way. In any case, once the normative conflict is solved by giving precedence to one of the conflicting principles, legal reasoning operates deductively. See MacCormick (2005), pp. 74–75.
- 173.
Arguing that the triadic scale fits many cases quite well, especially because practical argumentation can work only with relatively crude scales. See Alexy (2003), p. 445.
- 174.
It is worth stressing once again that being evaluative does not mean that it is an arbitrary process, provided it is supported by reasons. See MacCormick (2005), p. 74.
- 175.
More specifically, but with similarities, stating that reasoning about rights means reasoning about how a certain “value” interacts with the particularities of individual cases, which requires general practical reasoning, see Kumm (2010), p. 140 ff.
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Silva Sampaio, J. (2021). Brute Balancing, Proportionality and Meta-Weighing of Reasons. In: Sieckmann, JR. (eds) Proportionality, Balancing, and Rights . Law and Philosophy Library, vol 136. Springer, Cham. https://doi.org/10.1007/978-3-030-77321-2_3
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