THREE THEORIES OF JUDICIAL BALANCING: A COMPARISON (original) (raw)
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The Balancing of Values and the Compromising of the Guarantee of Fundamental Rights
This paper criticizes the balancing method with regard to German and Brazilian constitutional law. Following an introductory analysis of the changed role of judicial review brought about by the establishment and collapse of the welfare state, the principle of proportionality in doctrines and precedents concerning fundamental rights is outlined. The paper presents the use of this principle, its link with the balancing method and its contents - viz suitability, necessity and proportionality in narrow sense (parts II and III). Subsequently, certain questionable aspects of Robert Alexy’s theory of fundamental rights are analyzed (part IV). Furthermore, the paper examines some of the problematic consequences which might result from balancing, such as: the limitation of fundamental rights through the so-called immanent restrictions, an increment of judicial discretion, the possibility that constitutional review becomes a ‘guardian of social values’, the equalization of legal norms and values, the belief in the method, the absence of a criterion for establishing proportional relations, and the imbalance between legislation and constitutional review (part V). Finally, possible alternatives to the balancing method are discussed based on the contributions of authors such as Ronald Dworkin and Klaus Günther (part VI).
PANORAMA OF BRAZILIAN LAW
This is a research paper on the prevalence of interests and values of the highest social groups against the interests and values of subordinate social groups, such as migrants, even in judicial decisions of apparently individual conflicts involving only plaintiff and defendant. Individual rights, on which the modern Government was structured, tend to prevail over social rights. This prevalence is crucial even in the context of the theory of constitutional rights of Robert Alexy, who states equal importance to individual or social rights and that, because of the proportionality, there would be a chance that social rights would prevail. It is even possible to say that each collision of rights will be determined proportionally and differently, but the proportionality does not confer rationality to the discretion needed to justify the decision. The proportional decision has more to do with the chosen criterion than the conflicting rights.
Book Review: Against proportionality and balancing (Jurisprudence, 2020)
Book Review, 2020
In the last decades, proportionality has become influential as a method of determining the scope of fundamental rights. It is unclear, however, whether the method is acceptable and, if so, to what extent. In A Critique of Proportionality and Balancing, Urbina presents an elaborated argument to show that the method is indeed unsatisfactory as a guide to human rights adjudication. He puts forward two main objections to the most popular account of proportionality available in the literature. First, he claims that the method does not work because balancing invites us to compare alternatives that are often incommensurable. Second, given that the idea of balancing presupposes that there can be a trade-off among competing rights, the method is incompatible with the structure of rights because rights are resistant to trade-offs. Both objections are strong because they are grounded in a general understanding of human rights adjudication and hence apply to almost any contemporary legal system. The objections, however, are not conclusive. Thus, the objection from incommensurability is successful only if grounded in a theory of value that rejects monism (namely, the idea that normativity can be explained in terms of the existence of a super-value), or according to which pluralism of values entails incommensurability. On the other hand, the objection based on the structure of rights is decisive only if a theory of value such as utilitarianism is wrong. These considerations suggest that the true limits of proportionality lie elsewhere. The method is justified only if it is supplemented with a correct theory of constitutional values. That is the real reason why it can provide little guidance.
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The judicial decision is much more than compliance with legal norms, the judicial production of the law itself is present. There are methods to optimize judgment by granting it reliability, but the study-debate on optimization mechanisms have been continually disregarded. The process of judicial decision-making is one of the most complex, since this decision escapes in its essence the Theory and Philosophy of Law and fits more deeply into the intimacy of the "agent" of the decision whose universe is to be understood. The authority it judges fulfils a duty of State and at the same time exercises a flexible part of its own obligations and limits in the isolation of its individuality and under the flow of procedures that hang between the content of the decision and its formal externalization, the judgment.The theme of the judicial decision on which this reflection intends to delimit the epistemic fields that law faces: the problem of unlimited space that contemplates the debate on the rational production of decisions and aims to contribute to the advancement of the bases of theoretical and practical rigor necessary for the constitution of a Theory of Judicial Decision. This research seeks to visualize the growing, complex and sophisticated context in which Western democracies have witnessed the increase of rational demands for the improvement of human rights guarantee institutions.
Constitutional Values and Judge-Made Law
The Author contends that value-oriented constitutionalism marks a shifting of law making function from political bodies to the Courts. In fact judges act as legislators for the concrete case: they have to dispense justice according to law, but law is made up of constitutional values which can be implemented in multiple and, at times, opposite ways. Therefore, if we deeply involve judges in the making-law process, the risk of depriving the judiciary of its constitutional foundation is realised. The Author underlines the need to rethink the organization and the theoretical model of judicial power, according to its new function.
The constitutional case-law of the last few years confirms the unbreakable bond between interpretation and balance, and the impossibility, for the purposes of application, of interpreting without balancing and balancing without interpreting. The paper criticizes both those who advocate for an abstract distinction between the 'legislative' balance and the 'judicial' balance, and those who confine reasonableness to equality or equal treatment, or social consensus, or praxis, or living law. The impossibility of separating a 'law with rules' and a 'law with principles', in their historical and relative significance, makes it possible to address -with better predictability and controllability -delicate issues which recent decisions of the Constitutional Court have dealt with, such as those concerning diachronic law, unfair deposit, correct remedy, cryopreservation of supernumerary embryos, automatic expulsion of a foreigner in consequence of a crime, acknowledgement of a foreigner's rights, public order.