Balancing (Spanish Constitucional Court)

Abstract

Balancing is a complex methodological structure used by the Constitutional Courts to resolve conflicts between principles and justify the existing conditional prevalence relationship between two constitutionally protected goods. Its use implies the acceptance that there is a difference between principles and rules within the normative system, that the principles are capable of gradual compliance and that the fundamental rights and constitutionally protected collective goods are comparable to the principles for the purpose of applying the structure of balancing. The Spanish Constitutional Court uses balancing in the resolution of conflicts between constitutionally protected assets within the structural principle of proportionality, without the balancing technique having reached an independent development. This paper exposes the application that the Constitutional Court makes of the balancing and the role that it plays in constitutional jurisprudence. Likewise, the main problems of applicability are pointed out.