THREE THEORIES OF JUDICIAL BALANCING: A COMPARISON (original) (raw)

After the Second World War, judicial balancing quickly became a pervasive form of argumentation in Western democracies; more recently, it has been applied almost by default in several Constitutional Courts. Judicial balancing can be considered in all respects as one of the main features of so-called new constitutionalism. It is a concept that is also directly connected with several meta-ethical issues, which in essence concerns the legal implications of value pluralism and the opposition between particularism and universalism. These features raise important methodological and substantial issues that cannot be underestimated.