Three theories of judicial balancing: A comparison

Alessio Sardo

Abstract

This paper attempts to analyse three of the most prominent theories of judicial balancing, considering both their presuppositions on the nature of value judgements and their relations with the problem of rationality: a) the first is the theory developed by Riccardo Guastini: it is realist and emotivist; b) the second is the logicist and objectivist theory proposed by José Juan Moreso; and c) the third is Robert Alexy's well-known theory of balancing, which is procedural in a strict sense and can be considered a half-way point between particularism and universalism. Of these three theories, only the first one provides a real descriptive model.

Key words

judicial balancing, constitutionalism, value judgements, value pluralism, particularism, concretisation, Alexy