The Aim to Rationalize Balancing Within the Context of Constitutional Courts’ Activism

Benvindo, Juliano Zaiden

doi:10.1007/978-3-642-11434-2_4

The Aim to Rationalize Balancing Within the Context of Constitutional Courts’ Activism

Juliano Zaiden Benvindo²

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First Online: 01 January 2010

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Abstract

As long as balancing appears as a fundamental instrument of this new constitutionalism where the constitutional court plays the role of “Guardian of the Constitution” through the interpretation of subjective rights as though they were objective principles of the total legal order, the aim to rationalize it appears as an immediate consequence. Rationality, accordingly, relates to the purpose of providing decisions that could best fulfill the exigency of legitimacy. In this regard, Robert Alexy’s Special Case Thesis and Theory of Constitutional Rights are clear examples of this connection, first, between morality and law, and, second, between balancing and rationality. Since, for Alexy, legal discourse is a special case of general practical discourse, and balancing, through the Weight Formula and the definition of preference relations, can provide rationality in decision-making, the main question is how to apply, in constitutional adjudication, this vast field of argumentation according to the premise of “unity of practical reason” without sacrificing the consistency of the system of rights. The relationship between constitutional court’s activism, particularly the Bundesverfassungsgericht, and balancing seems to adequately links this dilemma to Alexy’s premises. Yet, it also reveals that this debate on rationality, as Alexy’s defends it, should be challenged by new questions.

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Notes

1.
See the second chapter.
2.
See the third chapter.
3.
See the second chapter.
4.
See Robert Alexy, Theorie der Grundrechte (Frankfurt a.M: Suhrkamp, 1994), 32 ff.
5.
See Lothar Hirschberg, Der Grundsatz der Verhältnismäßigkeit (Göttingen: Otto Schwartz & CO, 1981), 77.
6.
See Peter Lerche, Übermaß und Verfassungsrecht: zur Bindung des Gesetzgebers an die Grundsätze der Verhältnismäßigkeit und der Erforderlichkeit (Goldbach: Keip, 1999), 224.
7.
See Nils Jansen, Die Struktur der Gerechtigkeit (Baden-Baden: Nomos, 1998), 162.
8.
See Theodor Lenkner, Der rechtfertigende Notstand: Zur Problematik der Notstandregelung im Entwurf eins Strafgestzbuches (Tübingen: Mohr-Siebeck, 1965), 156.
9.
Robert Alexy attempts to link rationality and correctness to the formal structure of balancing. See Robert Alexy, "On Balancing and Subsumption – A Structural Comparison," Ratio Juris 16, no. 4 (December 2003); Alexy, Theorie der Grundrechte. The question of democratic legitimacy of balancing is also examined through the premise of the “weight formula” in Robert Alexy, “Balancing, Constitutional Review, and Representation,” International Journal of Constitutional Law (Oxford University Press and New York School of Law) 3, no. 4 (2005); Robert Alexy, “Law and Correctness,” in Law and Opinion at the End of the Millenium: Current Legal Problems (Oxford: Oxford University Press, 1988).
10.
Schlink indicates the problems of balancing. He introduces some relevant questions that demonstrate this complex situation: “How should the evaluation of goals and means be found? Is the parameter found in the principle [balancing] it demands? Are the evaluations, accordingly, correct, when and because the BVG finds it? Do correct evaluations simply understand themselves from themselves? Can they obtain methodical reliability and normative enforceability in another way? Or must they be particularly exempt from evaluation, because they are unreliable and non-binding? See Bernhard Schlink, "Der Grundsatz der Verhältnismäßigkeit," in Festschrift – 50 Jahre Bundesverfassungsgericht (Tübingen: Mohr Siebeck, 2001): 454, translation mine.
11.
Lothar Hirschberg indicates many examples of different BVG’s viewpoints in the deployment of balancing. See Hirschbert, Der Grundsatz der Verhältnismäßigkeit, 78–83.
12.
See Alexy, Theorie der Grundrechte.
13.
See the second chapter (Sect. 2.5).
14.
Agustín José Menéndez and Erik Oddvar Eriksen, "Introduction," in Arguing Fundamental Rights, ed. Agustín José Menéndez and Erik Oddvar Eriksen (Dordrecht: Springer, 2006), 4.
15.
See the second chapter.
16.
See the third chapter.
17.
Particularly, the question of how Alexy defends the correctness, legitimacy, and coherence of legal reasoning through balancing will be more directly examined in the next chapters.
18.
See Robert Alexy, Theorie der juristischen Argumentation: Die Theorie des rationalen Disurskes als Theorie der juristischen Begründung (Frankfurt a.M.: Suhrkamp, 1989).
19.
Ibid., 263.
20.
See the sixth chapter.
21.
Alexy develops a very detailed explanation of his Theorie der juristischen Argumentation in order to expose a general theory of general rational practical discourse, where he examines: possible discourse theories, justification of practical rules of discourse, forms and rules of general practical discourse (basic rules, rationality rules, forms of arguments, rules of justification, etc), and limits of general practical discourse. In this explanation, he defines the basic lines for the comprehension of his theory as a discourse theory and opens up the debate to examine how and why legal discourses are a special case of general practical discourse (Sonderfallthese). See Alexy, Theorie der juristischen Argumentation, 221–257.
22.
Ibid., 264.
23.
Robert Alexy, “The Special Case Thesis,” Ratio Juris 12, no. 4 (December 1999): 375.
24.
Ibid., 375.
25.
Ibid., 375.
26.
Ibid., 383.
27.
Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (Oxford: Clarendon Press, 2002), 77.
28.
Alexy, “The Special Case Thesis,” 375.
29.
Ibid., 375.
30.
Ibid., 375.
31.
Ibid., 379.
32.
Alexy calls his theory founded upon the special case thesis “integrative theory,” according to which rational legal arguments are combined with general practical arguments at all levels (See Ibid., 380).
33.
Alexy remarks that “general practical discourse is not a simple mix or combination but a systematically necessary connection expressing the substantial unity of practical reason. This is the basis of the special case thesis” (Ibid., 379).
34.
Alexy constructs a system of priority relations between the elements of general practical discourse founded on the following rule: the good (ethical-political arguments grounded in self-understandings and traditions of a collectivity) prevails over the suitable (pragmatic arguments founded on means/goals relations of interests and compromises), and the just (moral considerations of what is equally good for all) prevails over the good. He knows, nonetheless, that this rule is complex, especially in the realm of just and good, for the “just is permeated by the good” (Ibid., 379).
35.
Ibid., 380.
36.
Alexy acknowledges that “the conceptualization of the principles as optimization commands does indeed lead to the incorporation of criteria of economic rationality into the law” ( Robert Alexy, “Jürgen Habermas's Theory of Legal Discourse,” in Habermas on Law and Democracy: Critical Exchanges, ed. Michel Rosenfeld and Andrew Arato (Berkeley, CA: University of California Press, 1998), 229).
37.
This is why Alexy can only view the idea of basic rights as substantiated by a certain morality and not by the logic of norms: “The basic rights ‘strict priority,’ as far as it exists, is substantiated morally, rather than by the logic of norms” (Ibid., 228).
38.
Alexy, “The Special Case Thesis,” 383.
39.
Ibid., 383.
40.
Ibid., 383–384.
41.
See Alexy, “Jürgen Habermas’s Theory of Legal Discourse,” 232.
42.
Alexy, “The Special Case Thesis,” 384.
43.
In Alexy’s opinion, what matters is that these non-institutional arguments remain arguments: “(…) as long as they remain arguments they retain what is essential for this kind of argument: their free and non-institutional character” (Ibid.).
44.
Ibid.
45.
Alexy, “Jürgen Habermas’s Theory of Legal Discourse,” 230.
46.
Ibid.
47.
Ibid.
48.
Robert Alexy, Theorie der Grundrechte (Frankfurt a.M.: Suhrkamp, 1994), 32.
49.
Ibid., 33–34.
50.
According to Robert Alexy, one-point theories are the those that attempt to “derive all constitutional rights from a basic thesis” (Ibid., 30, translation mine) carrying thereby the problem of being very abstract or insufficient to the complexities of the contemporary constitutionalism. Combined theories, on the other hand, “forms the basis of the BVG’s jurisdiction” (Ibid., 30, translation mine), which means, in other words, theories that have many different perspectives as premises. The objection, which Alexy presents, is that they “cannot provide any guidance to legal decision-making and justification, but simply represent a collection of highly abstract topoi, which one can adopt at will” (Ibid., 31, translation mine).
51.
Ibid., 32, translation mine.
52.
Ibid., 38.
53.
Ibid., 38, translation mine.
54.
Ibid., 37.
55.
Ibid.
56.
Ibid., 38, translation mine.
57.
Ibid., 37–38, translation mine.
58.
Ibid., 32–38. At any rate, Alexy develops an investigation of the arguments that can be applied according to this formal structure in his book Theorie der justischen Argumentation: Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung (283–348) based on three groups: rules of positive law, empirical statements, premises that are neither empirical statements nor rules of positive law (Ibid., 283).
59.
We will investigate more directly the claim to correctness and coherence in the next chapters.
60.
Robert Alexy, although differentiating both dimensions, examines the possibility of norms resulting in principles and rules, which he calls “double aspect constitutional norms” (Alexy, Theorie der Grundrechte, 124, translation mine). Considering this analysis, Alexy sustains that “it is inadequate to conceive of constitutional legal norms either merely as rules or merely as principles. An adequate model, on the other hand, associates both rules and principles with the provisions of the constitution.” (Ibid., 125, translation mine) We can better verify this aspect, for instance, when we insert into a principle a limitation clause that transforms it into a rule. Alexy indicates the example of the principle of freedom of artistic activity, which can become a rule when, for instance, the provision that guarantees the freedom of artistic activity obtains the following prescription: “state interference in activities belonging to the artistic domain is prohibited, unless it is necessary to satisfy competing principles of constitutional degree (whether protecting the constitutional rights of others or collective goods), which in the circumstances of the case take precedence over the principle of artistic freedom” (Ibid., 123, translation mine) In this case, nonetheless, insofar as the limitation clause expressly makes reference to competing principles, it is not a pure rule, but rather what he calls “double aspect constitutional rights norms.”
61.
Ibid., 71.
62.
Ibid.
63.
Ibid., 72, translation mine.
64.
Ibid., 75.
65.
Ibid., 76.
66.
Ibid., translation mine.
67.
Ibid., translation mine.
68.
Ibid., 77.
69.
Ibid., 78.
70.
Ibid., 79.
71.
Ibid., 100.
72.
Ibid., translation mine.
73.
This conclusion, nonetheless, as Alexy points out, does not exclude other usual justifications for balancing, such as the rule of law or concepts of justice, but it serves as a justification that derives directly from the structural framework of his theory.
74.
Alexy, Theorie der Grundrechte, 81, translation mine.
75.
Alexy examines some possible exceptions in which rules could be regarded as also encompassing a prima facie character, and principles, in turn, a definite character. According to him, however, both norms could be identified: “The fact that rules, by enfeebling their definitive character, do not obtain the same prima facie character as principles is only one side of the coin. The other side is that principles, by strengthening their prima facie character, do not obtain the same prima facie character as rules either.” (Ibid., 89, translation mine).
76.
Ibid., 104.
77.
Indeed, in the Postscript of the English version of his Theorie der Grundrechte, he remarks that “the central thesis of this book is that regardless of their more or less precise formulation, constitutional rights are principles and that principles are optimization requirements” (Robert Alexy, “Postscript”, in A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002), 388).
78.
Alexy, Theorie der Grundrechte, 94, translation mine.
79.
See the second chapter.
80.
The only complex analysis of this statement would be found in the case of the principle of human dignity, which, according to Alexy, cannot, in a more conclusive way, be deemed absolute. See, for this purpose, Alexy, Theorie der Grundrechte, 97.
81.
See Ernst-Wolfgang Böckenförde’s, Bernhard Schlink’s and Friedrich Müller’s critique of the assumption of a value-based approach to constitutional adjudication in the second chapter.
82.
Alexy, Theorie der Grundrechte, 99.
83.
Ibid., 99, translation mine.
84.
Ibid.
85.
Ibid., 106.
86.
Indeed, as previously examined, the idea of principles embracing the totality of the legal order relates to the expansion of a political rationality in the realm of constitutional adjudication. This aspect causes serious outcomes in constitutional democracy, among them, the weakening of the deontology of basic rights and the confusion between law and politics. These conclusions, which will be more deeply examined in the following chapters, reveal that the flexible structure of principles as optimization requirements does not agree with the idea of a strong constitution, whose contents are not confounded with collective interests, and, therefore, cannot be, since they are established through institutional procedures of democratic participation, included in the concept of legal principle to be balanced in particular circumstances. Deontology is not compatible with the teleological character of desirable goods represented by the preferences of a communitarian or social will, as though they were similar in balancing to legal norms originated by longstanding and democratic institutional procedures of will formation.
87.
Alexy, Theorie der Grundrechte, 118, translation mine.
88.
Ibid., 120, translation mine.
89.
Ibid., 125, translation mine.
90.
Ibid., 125, translation mine.
91.
Ibid., 127.
92.
Ibid., 130.
93.
Ibid., 131, translation mine.
94.
Ibid., 133, translation mine.
95.
Ibid.
96.
Ibid., 134.
97.
Ibid., 138.
98.
See the second chapter.
99.
Alexy, Theorie der Grundrechte, 143, translation mine.
100.
Ibid., 143.
101.
Ibid., 144.
102.
Ibid., 146, translation mine.
103.
Robert Alexy, “On Balancing and Subsumption – A Structural Comparison”, Ratio Juris 16, no. 4 (December 2003): 433–449.
104.
Alexy, Theorie der Grundrechte, 149.
105.
Ibid., 151.
106.
Ibid., 152, translation mine.
107.
Ibid., 80, translation mine.
108.
The collision between principles is resolved by establishing a statement of conditional preference when the judge examines the particularities of the case, indicating thereby the conditions under which it is possible to define the precedence of a principle over the other (See Ibid., 83).
109.
According to Alexy, the result of balancing is a statement of conditional preference, but this result is followed by a justification (which differentiates it from the model of an intuitive definition of preferences leading to subjectivism and uncontrollable results). He sustains that balancing is rational when the statement of conditional preference can be rationally justified (See, for this purpose, Ibid., 144). This culminates in his discussion of legal argumentation as a particular case of general practical argumentation.
110.
Ibid., 153, translation mine.
111.
Robert Alexy, “On the Structure of Legal Principles,” Ratio Juris 12, no. 4 (September 2000): 297. See also Alexy, Theorie der Grundrechte, 83.
112.
Robert Alexy, “Sistema Jurídico, Princípios Jurídicos y Razón Práctica,” Doxa 5 (1998): 148.
113.
Alexy, Theorie der Grundrechte, 153.
114.
Ibid., 152, translation mine.
115.
Ibid., translation mine.
116.
Ibid.
117.
Alexy, “On Balancing and Subsumption: A Structural Comparison,” 436.
118.
Ibid.
119.
Ibid., 437.
120.
Alexy, in order to demonstrate the rational character of this structure, examines some BVG’s important decisions. He usually discusses two cases for this purpose: the Tobacco case (BVerfGE, 95, 179) and the Titanic case (BVerfGE, vol. 86, 1). According to him, “the Tobacco and Titanic Judgments show that rational judgments about degrees of intensity and importance are possible at least in some cases” (Ibid., 439).
121.
Ibid., 440.
122.
Ibid.
123.
Ibid.
124.
Carlos Bernal Pulido, “The Rationality of Balancing,” Archiv für Rechts- und Sozialphilosophie 92, no. 2 (2006): 202.
125.
This might be metaphysical standpoint in Robert Alexy’s theory. Indeed, there is no satisfactory explanation why one principle has a higher abstract weight than another. His conclusions are quite intriguing, especially when, for instance, he, before any case, concludes that one principle is abstractly weightier than another, as when he remarks that “the right to life, for instance, has a higher abstract weight than the general freedom of action” (Alexy, “On Balancing and Subsumption: A Structural Comparison,” 440). It is possible to observe in this Alexy’s conclusion that some categories are previously assumed even before the concrete aspects of a particular case are examined. However, how can the weight of a principle be abstractly measured, detached from the concrete aspects of the case? What does exactly an abstract weigh mean? Laura Clérico introduces a possible definition of the abstract weight through three different criteria: (1) the force of the interests in play; (2) the weight of the principle in comparison with other principles; (3) the earlier decisions (Laura Clérico, Die Struktur der Verhältnismäßigkeit (Baden-Baden: Nomos, 2001), 178/179). However, although these criteria are regarded as some parameters to define the abstract weight of a principle, at the end, it seems that a set of principles is construed as if some principles could be regarded as superprinciples and the others as principles of minor relevance. Again, there might be sort of metaphysical standpoint guiding the process of balancing whenever there is a difference in this abstract weight of principles. Still, Alexy sustains here the rationality through the specification of more criteria. These are, after all, categories, in agreement with his point of view, that the judge must accept as a way to provide objectivity and logical constitution to balancing.
126.
Alexy mentions that “the Law of Balancing names as the first object of balancing only the intensity of interference. This shows that it is shaped for the situation in which the abstract weights are equal, that is, they play no role at all” (Alexy, “On Balancing and Subsumption: A Structural Comparison,” 440).
127.
Ibid., 441.
128.
Ibid.
129.
Alexy remarks that “graduation in terms of light, moderate or serious is often difficult enough as it is. In some cases one can just barely distinguish light and serious, and in some cases even that seems impossible. Legal scales can thus only work with relatively crude divisions, and not even that in all cases” (Ibid., 443). According to him, the nature of constitution brings about this complexity: “In the end, it is the nature of constitutional law which sets limits to fitness of graduation and altogether excludes the applicability of any infinitesimal scale” (Ibid., 443–444).
130.
Ibid., 444.
131.
Alexy, although having observed the difficulties in this numerical understanding of the weight formula, show at least his interest in doing so. His words:
“Now one can only talk about quotients in the presence of numbers, which is not the case in any direct sense with balancing. So concrete weight can only really be defined as a quotient in a numerical model which illustrates the structure of balancing. In legal argumentation it is only analogous to a quotient. But the analogy is an interesting one” (Ibid., 444).
132.
In his attempt to illustrate how the weight formula functions, Alexy applies different criteria “for allocating numbers to the three values of the triadic model” (Ibid.). First, he introduces the geometric sequence, then the nine classes of double-triadic model, which can be geometrically and arithmetically represented (See, for this purpose, Ibid., 444–446).
133.
Ibid., 446.
134.
Ibid.
135.
Ibid.
136.
The Weight Formula becomes much more complex when it involves more than two principles in collision. Alexy, with the same aim to deploy a rational justification for constitutional adjudication, examines this more complex configuration of the Weight Formula in Robert Alexy, “Die Gewichtsformel”, in Gedächtnisschrift für Jürgen Sonnenschein, ed. Joachim Jickely, Peter Kreutz and Dieter Reuter (Berlin: de Gruyter, 2003), 771–792.
137.
Alexy, “On Balancing and Subsumption: A Structural Comparison,” 447.
138.
See, for example, Alexy’s application of the Weight Formula to the Cannabis case, examined in the first chapter. It is clear that, according to this approach, the decision can be justified in rational patterns, for it could be grounded in accordance with the Weight Formula:
“The Cannabis Judgment of the Federal Constitutional Court offers an example. Whether the legislature is allowed to prohibit cannabis products depends mainly on whether the interference with constitutionally protected liberty caused by the prohibition is suitable and necessary to combat the dangers associated with the drug. If criminal prohibition were not suitable or not necessary, it would be definitively prohibited on account of constitutional rights. The court explicitly states that the legislature’s empirical premises were uncertain. It considered adequate that the empirical assumptions of the legislature were “maintainable” (BVerfGE vol. 90, 145, 182). This can be grasped by the Weight Formula in the following way: Ii stands for the interference with the constitutionally protected liberty caused by the prohibition of cannabis products. Ij represents the losses caused on the side of collective goods, especially public health, if cannabis products were not prohibited. The abstract weights of the colliding principles Pi and Pj shall be considered as equal, which allows one to neglect them. If cannabis products are prohibited, the interference with Pi must be considered as certain. The value of Ri is therefore 2(o) = 1. Rj stands in our case for the reliability of the empirical assumption of the legislator that the prohibition of cannabis products was necessary in order to avoid dangers for collective goods, especially public health. The Courts classes Rj as “maintainable,” that is, as p. If one presupposes the simple triadic model, Rj receives by this explicitly the value 2(−1) = ½. From this and the fact that the Court considered prohibition of cannabis products as constitutional, it follows that the interference with Pi is not of the highest degree. Its highest possible value is 2, that is m. This becomes clear by putting the following values into the Weight Formula: 1= 2 × ¼ × ½. Rj must be because the Court explicitly assumes this degree of reliability. Ri must be 1, because interference in case of prohibition is certain. Wi,j must not be more than 1, for if it exceeds 1 the prohibition would be unconstitutional. The Court, however, declares the prohibition constitutional. In this constellation the highest possible value which Ii can achieve is 2, that is, moderate, because Ij cannot achieve in the simple triadic model a higher value than 4, that is, s. This demonstrates that the Weight Formula allows one to grasp the interplay between the six elements which are relevant in order to determine the concrete weight of a principle in case of a collision of two principles.” (Alexy, “On Balancing and Subsumption: A Structural Comparison,” 447–448, emphasis mine)
139.
Ibid., 448, emphasis mine.
140.
Ibid.
141.
See Alexy, Theorie der Grundrechte, 152.
142.
Alexy, “The Special Case Thesis,” 383, translation mine.
143.
Alexy, The Argument from Injustice: A Reply to Legal Positivism, 77.
144.
See Alexy, “The Special Case Thesis,” 380.
145.
See the second chapter.
146.
See the second and third chapters.
147.
See the last chapter.

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Professor Juliano Zaiden Benvindo (Faculty of Law)

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Benvindo, J.Z. (2010). The Aim to Rationalize Balancing Within the Context of Constitutional Courts’ Activism. In: On the Limits of Constitutional Adjudication. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-11434-2_4

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