Weighing and Balancing in the Light of Deliberation and Expression

Abstract

I begin by arguing that the key elements in any analysis of weighing and balancing are questions, insights, and judgments of value. This position is used to critique the role Marko Novak assigns to rationality in balancing and Robert Alexy’s idealized weight formula. Finally, by examining the relation between deliberation and expression I argue that a written legal decision represents the possibility of someone understanding and evaluating that decision. Expressions, in whatever form, do not justify legal decisions.