The Aim to Rationalize Balancing Within the Context of Constitutional Courts’ Activism (original) (raw)

2010

Abstract

As long as balancing appears as a fundamental instrument of this new constitutionalism where the constitutional court plays the role of “Guardian of the Constitution” through the interpretation of subjective rights as though they were objective principles of the total legal order, the aim to rationalize it appears as an immediate consequence. Rationality, accordingly, relates to the purpose of providing decisions that could best fulfill the exigency of legitimacy. In this regard, Robert Alexy’s Special Case Thesis and Theory of Constitutional Rights are clear examples of this connection, first, between morality and law, and, second, between balancing and rationality. Since, for Alexy, legal discourse is a special case of general practical discourse, and balancing, through the Weight Formula and the definition of preference relations, can provide rationality in decision-making, the main question is how to apply, in constitutional adjudication, this vast field of argumentation according to the premise of “unity of practical reason” without sacrificing the consistency of the system of rights. The relationship between constitutional court’s activism, particularly the Bundesverfassungsgericht, and balancing seems to adequately links this dilemma to Alexy’s premises. Yet, it also reveals that this debate on rationality, as Alexy’s defends it, should be challenged by new questions.

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