Journal Article

Balancing, constitutional review, and representation

Robert Alexy

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 3, issue 4, pages 572-581
Published in print October 2005 | ISSN: 1474-2640
Published online October 2005 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/moi040
Balancing, constitutional review, and representation

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Balancing is one of the main issues in current debates on the interpretation of constitutional rights. Numerous authors have raised the objection that balancing is both irrational and subjective. Here it is argued that this objection is unjustified. To show this, balancing is grounded in a theory of discursive constitutionalism that connects the concept of balancing with the concepts of constitutional rights, of discourse, of constitutional review, and of representation. The main theses are these: first, balancing is based on a rational form of argument that can be made explicit by means of a “Weight Formula” and second, constitutional review complies with the requirements of democratic legitimation to the extent that it succeeds in becoming an argumentative representation of the people in supplying this formula with arguments.

Journal Article.  3885 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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