After the Second World War, judicial balancing has quickly become a pervasive form of argumentation in Western democracies: in the last decade, it has been applied almost by default in several Constitutional Courts, at least in cases involving fundamental rights. For these reasons, it seems no exaggeration at all to say that judicial balancing is one of the main features of the so-called new constitutionalism. Moreover, the very concept of balancing is connected with some of the most relevant issues in meta-ethics, such as the implications of value pluralism, the opposition cognitivism/non-cognitivism, and the quandaries about the very existence of practical reason. The legal philosopher should not underestimate these problems. Here, the author analyses three of the most prominent theories of judicial balancing, considering both their presuppositions on the nature of value-judgements and their answers to the problem of rationality. He starts with the sceptical account of balancing developed by Riccardo Guastini, then he considers the logicist and specificacionist model proposed by José Juan Moreso and, finally, he tackles Robert Alexy's well known reformulation of the proportionality principle, a tool that should grant moral objectivity applying formal structures of practical rationality and existential arguments.
TEORIAS DE LA PONDERACIÓN - ANÁLISIS CRÍTICO
SARDO A
2013-01-01
Abstract
After the Second World War, judicial balancing has quickly become a pervasive form of argumentation in Western democracies: in the last decade, it has been applied almost by default in several Constitutional Courts, at least in cases involving fundamental rights. For these reasons, it seems no exaggeration at all to say that judicial balancing is one of the main features of the so-called new constitutionalism. Moreover, the very concept of balancing is connected with some of the most relevant issues in meta-ethics, such as the implications of value pluralism, the opposition cognitivism/non-cognitivism, and the quandaries about the very existence of practical reason. The legal philosopher should not underestimate these problems. Here, the author analyses three of the most prominent theories of judicial balancing, considering both their presuppositions on the nature of value-judgements and their answers to the problem of rationality. He starts with the sceptical account of balancing developed by Riccardo Guastini, then he considers the logicist and specificacionist model proposed by José Juan Moreso and, finally, he tackles Robert Alexy's well known reformulation of the proportionality principle, a tool that should grant moral objectivity applying formal structures of practical rationality and existential arguments.
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