Chapter

The Doctrine of Balancing—its Strengths and Weaknesses

Matthias Jestaedt

in Institutionalized Reason

Published in print February 2012 | ISBN: 9780199582068
Published online May 2012 | e-ISBN: 9780191739354 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199582068.003.0007
The Doctrine of Balancing—its Strengths and Weaknesses

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If one measures the success of a jurisprudential idea by the number of times it is cited, or, more precisely, by the frequency with which approving reference is made to it within the academic community, the doctrine of balancing — above all in the version propounded by Robert Alexy and his Kiel school — may confidently be designated a hit. If one extends one's sights beyond the borders of the domestic market for legal theory to consider its reception in the discourse of non-German legal studies, the doctrine in question can hardly be denied the accolade of an export triumph of German jurisprudence. The main themes of the doctrine of balancing benefit from a ‘high intuitive plausibility’ are easily grasped. Yet the frequency with which they are accepted stands — at least in Germany — in remarkable, even irritating, contrast to the low intensity with which practical doctrinal legal theory (concerned as it is with the application of law) engages with the premises, the construction and development, and the explicit and implicit consequences of the doctrine. This chapter presents reflections directed to just these issues and, on the basis of an analysis of the doctrine of balancing, seeks to distil its strengths and weaknesses.

Keywords: Robert Alexy; legal philosophy; balancing doctrine; legal theory

Chapter.  11675 words. 

Subjects: Jurisprudence and Philosophy of Law

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