Chapter

Balancing

Kai Möller

in The Global Model of Constitutional Rights

Published in print October 2012 | ISBN: 9780199664603
Published online January 2013 | e-ISBN: 9780191745751 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199664603.003.0006

Series: Oxford Constitutional Theory

Balancing

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When there is a conflict of personal autonomy interests, constitutional law recommends that the competing autonomy interests are to be ‘balanced’. The chapter first presents four concepts of balancing: balancing as autonomy maximisation, interest balancing, formal balancing, and balancing as reasoning. It argues, negatively, that equating balancing with consequentialist reasoning or mechanical ways of quantification would be misguided. Positively, the chapter proposes a set of moral principles to adequately deal with conflicts of autonomy interests. To this end it relies on approaches from moral and political philosophy, including debates between consequentialism and deontology, trolley cases, discussions of the value of accommodation, and theories of distribution. The chapter thus explores the considerable complexity that hides under the convenient doctrinal label of ‘balancing’ and develops a workable theory of how this balancing ought to be conducted in the resolution of actual cases.

Keywords: balancing; interest balancing; autonomy maximisation; reasoning; formal balancing; consequentialism; deontology; trolley cases; accommodation; distribution

Chapter.  19899 words. 

Subjects: Constitutional and Administrative Law

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