Balancing: theories and main criticisms

Abstract

In recent decades, balancing has become one of the most controversial topics in legal theory (and especially in the theory of fundamental rights). This is due to the ambiguity of the term “balancing”, which is often used in different ways. In addition to this linguistic barrier, there are a variety of theories on balancing: it is either regarded as an arbitrary activity or as an activity capable of leading to rational results; on the other hand, it is claimed that the result of balancing is limited to a specific case or that it can be applied to other situations. This paper focuses on these theories. After a brief characterisation of each view, it is argued that balancing is a method capable of achieving rational and universal results. Such a claim requires an analysis (and dismantling) of some of the criticisms to which balancing has been subjected, including the known as the incommensurability objection.