Chapter

The Method of Balancing

Matthias Klatt and Moritz Meister

in The Constitutional Structure of Proportionality

Published in print July 2012 | ISBN: 9780199662463
Published online September 2012 | e-ISBN: 9780191743405 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199662463.003.0004
The Method of Balancing

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The third chapter analyses in detail and last step of proportionality analysis, namely balancing. The authors defend a wide-scope theory, allowing for definitional generosity in rights reasoning. The flexibility of the balancing procedure is demonstrated not to violate the rule of law. The proper place of moral argument in proportionality is explicated with the help of elements of Alexy’s Theory of Legal Argumentation (OUP, 2009), namely the special-case thesis and the distinction between internal and external justification of legal propositions. The counter-argument that balancing would amount to mere calculation is rejected. The challenge of incommensurability is elaborated in detail. It is demonstrated how an inviolable core content of rights has to be constructed. The claim to correctness is not lost in balancing, and balancing is not over-emphasized within proportionality analysis.

Keywords: balancing; wide-scope theory; rule of law; morality; moral argument; special-case thesis; incommensurability; claim to correctness

Chapter.  12146 words. 

Subjects: Constitutional and Administrative Law

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