Is Balancing a Method of Rational Justification sui generis?: On the Structure of Justification by Balancing

Abstract

I will argue that the balancing of normative arguments constitutes a specific form of reasoning, which may be called “autonomous reasoning” and cannot be reduced to a type of argument where the result is inferred from premises or criteria established without a balancing. The distinction of balancing from subsumption and deduction as a distinct mode of legal reasoning is cast in doubt in particular by Robert Alexy’s thesis that balancing follows an inferential scheme, called “weight formula”, which allows one to derive the result of the balancing from certain factors. Thus, however, balancing can be understood as a specific case of subsumption and deduction. By contrast, I will defend the view that balancing constitutes a form of reasoning that cannot adequately be reconstructed by means of an inferential scheme. Rather, the balancing of normative arguments includes an element of autonomous choice subject to constraints of rationality, which allows one to justify normative judgments and statements in a rational manner.