© Nova univerza, 2018
DIGNIT AS
Revija za človekove pravice
Slovenian journal of human rights
ISSN 1408-9653
Three theories of judicial balancing: A comparison
Alessio Sardo
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To cite this document:
Sardo, A. (2018). Three theories of judicial balancing: A comparison, Dignitas, št. 
53/54, str. 60-95.
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60
DIGNITAS n Teorija in filozofija prava
12
1. Introduction
The aim of this paper is quite modest. I endeavour to: 1) pro-
vide a reconstruction of three of the most prominent theories of 
judicial balancing; and 2) briefly analyse some of their basic pre-
suppositions, focusing on the problem of value judgements, the 
opposition between particularism and universalism, and the con-
cept of concretisation.
I will not draw any definitive conclusions; rather, I will strongly 
suggest that: a) concretisation, and not balancing, is the central 
feature of constitutional adjudication; and b) the grounds of con-
cretisation are subjective value judgements.
2. Professor Guastini : A sceptical and emotivist 
theory of judicial balancing
Professor Guastini has written about judicial balancing on sev-
eral occasions. Insofar as his theses on the subject are fully inte-
grated into his theory of legal interpretation, it will be necessary 
to briefly sketch out the main features of the latter. Riccardo Guas-
tini proposes a particular kind of rule scepticism that has mainly 
been inspired by the works of Hans Kelsen, Alf Ross and Giovanni 
Tarello. His theory is characterised by two main theses. The first 
one is the distinction between normative sentences (disposizioni) 
and norms (norme). All legal texts are normative sentences: they 
1 
I would like to thank Mauro Barberis and Nicola Muffato: they slogged through previous drafts of 
this article and gave me valuable advice and suggestions. I would also like to thank Laurence Clayton-
Trotman for the revision of the English version of this article and for advice on matters of English 
style. 
2 
Alessio Sardo is a PhD candidate at Genoa University; e-mail alessiosardo@ymail.com 
Three theories of judicial balancing : 
a comparison
Alessio Sardo
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61
DIGNITAS n Three theories of judicial balancing: a comparison
are statements or sets of statements expressing a finite number 
of potential norms; they are the objects of interpretation, and 
they can be considered norms only in a broad sense. Converse-
ly, norms are the meaning-content (or the sense-content) of le-
gal texts, which can only be obtained through the interpretation 
process
3
. In recent years, this distinction between normative sen-
tences and norms has become almost a platitude in legal theory. 
In Guastini’s account, one normative sentence can ‘entail’ more 
than one norm (namely, a set of norms), but it should not be con-
sidered as a ‘blank screen’: the list of potential meanings that are 
ascribable to a certain statutory sentence is finite; these meanings 
are contained within the limits of a frame (Rahmen)
4
. In partial 
contrast with Hans Kelsen’s own view, Riccardo Guastini con-
ceives the frame as a boundary constituted by pragmatic as well 
as semantic elements: the plurality of interpretive methods, ‘legal 
dogmatics’ and the sense of justice of the interpreters. The second 
main thesis can be summed up as follows: legal interpretation, in 
a strict sense, consists of the operation of attributing meaning 
to a legal text; it cannot be properly described just as the activ-
ity of identifying the content of the normative sentences (cogni-
tive interpretation)
5
 since it is also and primarily: I) the activity of 
choosing and proposing one of the several meanings identifiable 
by means of cognitive interpretation, while discarding the others 
(adjudicative interpretation)
6
; or II) the activity of ascribing new 
meanings to legal texts (creative interpretation)
7
. While cognitive 
interpretation is a purely scientific operation and can only be con-
sidered the starting point of the judge’s reasoning, adjudicative 
3 
See e.g. Ricardo Guastini, Rules, Validity and Statutory Construction in Anna Pintore & Mario Jori 
(eds), Law and Language – The Italian Analytical School, Deborah Charles Publications, Liverpool, 
1997; L’interpretazione dei documenti normativi, Giuffrè, Milano, 2004 at 11; Interpretare e Argomen-
tare, Giuffrè, Milano, 2011, at 8 and 63.
4 
Riccardo Guastini, Rules Scepticism Restated, in Leslie Green & Brian Leiter (eds), Oxford Studies in 
Philosophy of Law, Vol. I, Oxford University Press, Oxford New York, 2011. 
5 
Hans Kelsen, Reine Rechtslehere, Second Edition 1960, English Translation, The Pure Theory of Law, 
University of California Press, Berkeley, CA 1967, reprinted by The Lawbook Exchange Ltd, Clark, NJ at 
355: «Jurisprudential [i.e., cognitive] interpretation can do no more than exhibit all possible meanings 
of a legal norm. Jurisprudence as cognition of law cannot decide between the possibilities exhibited 
by it, but must leave the decision to the legal organ who [...] is authorized to apply the law». 
6 
Id. at 354: «In the application of law by a legal organ, the cognitive interpretation of the law to be 
applied is combined with an act of will by which the law-applying organ chooses between the pos-
sibilities shown by cognitive interpretation». 
7 
Id. at 354: «By way of authentic interpretation (that is, interpretation of a norm by the law-applying 
organ), not only one of the possibilities may be realized that have been shown by the cognitive inter-
pretation [...]; but also a norm may be created which lies entirely outside the frame of the norm to be 
applied». Cf. also Hans Kelsen, The Law of the United Nations, Stevens & Sons, London, 1950, at xv. 
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DIGNITAS n Teorija in filozofija prava
and creative interpretations are political (and, ultimately, ideolog-
ical) operations; together with fact-oriented interpretation they 
represent the very core of the judicial process. Legal interpreta-
tion is a strategic linguistic game where the Gricean cooperative 
principle does not work
8
. Most of the times judges create law, con-
sciously or not
9
.
According to these premises, judicial balancing cannot be re-
garded as a form of interpretation in the strict sense; actually, it 
is defined as a form of “juristic construction”
10
: more precisely, it 
is an evaluative operation mainly used to solve conflicts between 
constitutional principles; these conflicts can be portrayed as anti-
nomies in concreto and (in most instances) of the partial-partial 
type
11
; they are normative incompatibilities created by the inter-
preter on the basis of a set of factual assumptions. It should be 
stressed that Guastini maintains there is only a ‘weak’ distinction 
between principles and rules: a ‘weak’ distinction is neither onto-
logical nor structural; on the contrary, it is a distinction of degree, 
namely a relational and non-dichotomous distinction
12
.
When judges have to deal with conflicting principles, they 
cannot use the classical criteria for the resolution of antinomies, 
mainly because they are considered inefficacious. What is their 
strategy then? According to this first account of balancing, they 
build up an axiological hierarchy between the principles in con-
flict, which is the product of the intuitive operation of assigning 
different values to the principles at stake
13
; when this operation is 
over, they proceed toward the ‘application’ of the ‘heavier’ one
14
. 
The priority order between the principles is established in a way 
that is totally discretionary and which is always relative to the con-
stitutional case (the latter can be an individual case, or a class of 
cases: this variable depends on how the constitutional review is 
8 
Or, better, it works only in a partial way. See Riccardo Guastini, Interpretive Statements, in C.E. 
Alchourrón, E. Buligyn (eds) Normative Systems in Legal and Moral Theory, Duncker & Humbolt, 
Berlin, 1997, 280-292, and Rules Scepticism Restated, cit.; on this point also see Pierluigi Chiassoni, 
Interpretive Games: Statutory Construction Through Gricean Eyes, in Paolo Comanducci e Riccardo 
Guastini, Analisi e diritto 1999, Torino, Giappichelli, 2000, 79 and, obviously, Paul Grice, ‘Logic and 
Conversation’ (1967), in The Logic of Grammar, D. Davidson and G. Harman (eds), Encino, 1975, 
reprinted in Studies in the Way of Words, Cambridge, Harvard University Press 1989.
9 
By the way, these two theses have become characteristic features of the interpretation theory of the 
so-called “School of Genoa”. 
10 
Riccardo Guastini, Interpretare e argomentare, cit. at 209.
11 
See Alf Ross, On Law and Justice, London, Stevens & Sons Limited, 1958, at 128-130.
12 
Riccardo Guastini, Interpretare e argomentare, cit., Chapter V. 
13 
Riccardo Guastini, Interpretare e argomentare, cit., at 206.
14 
In this context “heavier” is clearly used as a metaphor.
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63
DIGNITAS n Three theories of judicial balancing: a comparison
structured within a certain legal system
15
). The relationship of 
precedence can be easily overturned when a future analogous 
question should be decided
16
. Obviously, judicial balancing pre-
supposes some form of interpretation in the strict sense, at least 
conceived as the operation of ascribing a prima facie meaning to 
a legal text, but these two activities are logically separated (even if 
they are in a strict relationship) and it therefore seems convenient 
to distinguish between them. However, interpretation (in the strict 
sense) does not represent the central step in a balancing process: 
it remains in the background.
I have just five remarks:
1. Somebody maintained that this theory of balancing could 
be labelled “particularist”. This claim might be somewhat mislead-
ing. The word “particularism” is used in at least three different 
senses, both in legal theory and in practical philosophy. In the 
first sense (A), “particularism” refers to a (false) descriptive gen-
eral account of practical reasoning, which maintains: i) that our 
value judgements are always relative to the concrete case; ii) that 
we infer the correct answer from the factual elements of the case, 
through peculiar intellectual functions or properties (call it a form 
of intuition); iii) that the truth or falseness of the propositions ex-
pressing value judgements is determined by reference to the fac-
tual elements of the particular case. I will use “particularism as a 
descriptive meta-ethic” to refer to this first sense. In the second 
sense (B), the word “particularism” refers to a normative doctrine 
that seeks to solve ethical conflicts through some form of equity, 
or case-by-case justice, and not through the application and uni-
versalisation of general norms; in other words, it does not seek 
to use ethical principles to solve concrete ethical problems. I will 
use “particularism as a normative doctrine” to refer to this second 
sense of the word “particularism”. In the third sense (C), the term 
“particularism” refers to an eminently general and (mainly) de-
scriptive statement: decisions often change from case to case, and 
what is considered as a good reason for action, or a conclusive 
norm, in a first case may not be considered a good reason for ac-
tion, or a conclusive norm, in a second one. I will use “particular-
ism as an eminently general statement” to refer to this third sense 
15 
See Michel Rosenfeld, Constitutional Adjudication in Europe and the United States: Paradoxes and 
Contrast, in “International Journal of Constitutional Law”, No.4 (2004) 633. 
16 
Id.
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DIGNITAS n Teorija in filozofija prava
of “particularism”.
I will show that Riccardo Guastini’s theory cannot be called 
“particularistic” if we use this term in the first (A) or second senses 
(B). Accordingly, it could somewhat be considered “particularis-
tic” in the third sense if this option were not affected by two huge 
problems: i) the third sense of “particularism” is unsuitable for 
characterising a precise position in the current debate, simply be-
cause it does not provide a clear criterion for distinguishing; ii) it 
seems incorrect to define an emotivist account (like Guastini’s) as 
a variety of particularism.
Therefore, with regard to the third sense (C):
a) According to the definition – if we consider particularistic 
every theory that contains (or that is compatible with) the gen-
eral statement we have just expressed, then it will be possible to 
call particularistic” almost any current ethical theory that assumes 
any form of context-sensitivity of practical deliberation. Thus, it 
will also be possible to call “particularistic” those theories that 
are commonly and worldwide opposed to ethical particularism, 
though admitting the variance of reasons. In other words, if used 
in the third sense, the label under discussion is unsuitable to be 
not only a salient characteristic of a peculiar theory, but even a 
definitional trait of a whole set of theories, referring to the current 
debate on the possibility of universalisation.
b) Particularism denies the existence of non-trivial moral prin-
ciples, but not the existence of non-trivial moral truth. Conversely, 
moral emotivism – like Guastini’s (infra) – denies the existence of 
non-trivial moral truth. It is obvious that the denial of non-trivial 
moral truth implies the denial of non-trivial moral principles, but 
this is by no means a good reason for considering emotivism as 
a form of particularism. Moreover, this solution can generate, as a 
side effect, the confusion of two different debates: I) the debate 
over the existence of moral truths; and II) the debate over the pos-
sibility of universalisation
17
.
Now, with regard to the first two senses of “particularism” (A 
and B):
a) Generally speaking, Guastini’s theory of balancing is a de-
scriptive theory of how legal reasoning works within a certain le-
gal system, and not a general meta-ethic or a normative doctrine 
17 
Also see Sean McKeever and Michael Ridge, Principled Ethics. Generalism as a Regulative Ideal, 
Oxford University Press, Oxford-New York, 2006 at 14.
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65
DIGNITAS n Three theories of judicial balancing: a comparison
about adjudication. A fortiori, it should not be considered as a 
form of particularism as a general descriptive meta-ethic, nor as a 
form of particularism as a normative-doctrine.
b) Referring to the context of discovery, it is absolutely certain 
that Professor Guastini embraces an emotivist conception of val-
ue judgements that is very close to the one proposed: in ethics, 
by authors such as Alfred J. Ayer
18
, Charles Stevenson
19
, and the 
late Georg H. Von Wright
20
; in legal theory, by Axel Hägerström
21
 
and Alf Ross
22
 among others. It is also certain that emotivism and 
particularism as a meta-ethic are not compatible views of practical 
reasoning (supra).
In fact, in Guastini’s account: i) the hierarchy is constructed by 
the interpreter on the basis of a purely subjective value judgement, 
and this judgement is heavily determined by ideological and emo-
tional factors
23
: there are no objective standards of correctness, 
nor even just for the particular case; neither are human beings 
guided by some sort of practical wisdom, or Aristotelian phrone-
sis, like some authors considered to be paradigmatic defenders of 
particularism claim or (have at least) claimed
24
; ii) value proposi-
tions have a non-logical nature: they are not true or false because 
they can be considered just as the expression of the speaker’s own 
emotions, which are psychological phenomena
25
; this thesis has 
always been rejected by the moral particularists.
18 
Alfred J. Ayer, Language, Truth and Logic (1936), Penguin Books, London 1946, in particular Chapter 
VI.
19 
Charles Stevenson, Facts and Values, Yale University Press, New Heaven, 1963.
20 
Georg H. Von Wright, Valuations – or How to Say the Unsayable, in “Ratio Juris”, Vol.13 No.4 (2000) 
3 47. 
21 
Axel Hägerström, Fragan Der Objective Rattens Begrepp, partially translated in Inquires into the 
Nature of Law and Morals, Karl Olivecrona (ed.), Almqvist and Wiksells boktr, Uppsala, 1953. Also 
see Patricia Mindus, A Real Mind. The Life and Work of Axel Hägerström, Springer, Dordrecht, 2009, 
Chapter III. 
22 
See Alf Ross, Kritik der Sogenannten Praktischen Erkenntnis, Levin & Munksgaard, Kopenhagen, 
1933; On The Logical Nature of Propositions of Value, in “Theoria”, Vol.11 No.3 (1945) 172. 
23 
This is an ontological thesis; it is the main feature of ‘moral scepticism’ and also the first main thesis 
of emotivism/expressivism.
24 
See at least Jonathan Dancy, Moral Reasons, Blackwell, Oxford, 1993. This claim seems to have been 
partially abandoned in Ethics without Principles, Clarendon Press, Oxford, 2004, where the core 
of moral particularism seems to be reduced to the negative epistemological thesis that denies the 
possibility of universalisation. This thesis should not be confused with the argument of ‘the context 
sensibility of reasons’, which is not a prerogative of moral particularism, since it is also embraced by 
several universalist accounts, see e.g. William David Ross theories of prima facie duties and of logic 
of defeasible norms. See at least William D. Ross, The Right and the Good, Oxford University Press, 
Oxford, 1930.
25 
This is the core thesis of expressivism/emotivism: it is a thesis that semantically complements non-
cognitivism in meta-ethics since it is strictly connected with the ontological denial of the existence 
of moral facts. 
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DIGNITAS n Teorija in filozofija prava
c) Referring to the context of justification, Guastini does not 
compromise himself with any model of practical reasoning (nor-
mative or descriptive). Therefore, we have no elements to define 
his theory as “particularist” in this respect.
d) Referring to the structure of a constitutional review, when 
Guastini says that judicial balancing consists of establishing an ad 
hoc axiological hierarchy between the principles in conflict he ab-
solutely does not mean in any way that this hierarchy always has 
legal validity only for a particular or an individual case
26
: indeed, 
it can be valid for a class of cases: the point is strictly contingent 
and empirical
27
.
In short, “particularistic” seems to me to be truly an inadequate 
label for this first theory of balancing.
2. The emotivist account of value judgements embraced by the 
well-known Italian legal theorist has been seriously criticised by 
other legal theorists, but the aim of the objections is never to deny 
the validity of his descriptive theory. Actually, they can be consid-
ered both: a) an invitation to abandon the methodology of a wert-
frei descriptive legal theory; and b) the expression of deep dis-
comfort in respect to his emotivist account of value judgements, 
which has never been seriously attacked by any of those critics. 
For these reasons, they are not relevant for the purposes of our 
discussion. I do not want to claim that emotivism provides the 
best account of our practical reasoning, nor that it offers the best 
semantic thesis on the nature of propositions of value
28
: there are 
26 
Riccardo Guastini, Interpretare e argomentare, cit. at 207
27 
Moreover, Guastini’s theory of balancing is a descriptive account whose empirical basis is con-
stituted by the decisions of constitutional courts belonging to civil law systems (mainly the Italian 
Constitutional Court): it is well known that the majority of these courts are generally empowered 
to rule on the constitutional legality of statutes and to declare their inefficacy erga omnes: for this 
reason, their way of balancing should be considered categorical by definition: it is always relative to 
a class of cases, and never to a single case. This point is so obvious that it was never made explicit by 
Professor Guastini before 2011.
28 
In the last decade, semantic relativism has provided the best account of the nature of propositions 
of value, maintaining that they have truth-values whose verification parameters depend entirely on 
subjective or inter-subjective standards of evaluation. Using this semantic: i) it is possible to explain 
how value propositions fit truth-functional contexts (i.e. modus ponens, negation and disjunction); 
ii) it is also possible to explain the phenomenon of disagreement without the need to postulate any 
cognitive error, and without the need to embrace some form of objectivism. When the standard of 
evaluation changes the truth-value also changes. In short, using semantic relativism, we both keep the 
intuition of expressivism and correct its main problems. However, we have to be careful: relativism 
should not be confused with contextualism. The relativist approach ‘relativises’ the extension, but not 
the intention. In other words, the evaluation circumstances are entirely determined by the agent’s in-
terests. Conversely, contextualism relativises the intension of the proposition, which becomes context 
sensitive: the logical form of the proposition is ‘saturated’ by the contextual variables. It is exactly on 
this point that contextualism has to face its worst enemy: the proliferation of variables (how many va-
riables can be put inside the context?). On this specific problem that affects propositions expressing 
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DIGNITAS n Three theories of judicial balancing: a comparison
other forms of moral subjectivism which are definitely more so-
phisticated. All I want to claim is that, among legal theorists gener-
ally, and among the critics of Riccardo Guastini in particular, no-
body has presented a sound argument against emotivism.
3. It is clear enough that in this first theory there is no room 
for a conception of judicial balancing as a form of conciliation 
between two conflicting principles. It has been said that the idea 
of some sort of conciliation can only be given by a diachronic se-
ries of different balancing operations, having the same principles 
as their objects. The idea of conciliation between two principles 
within a single balancing operation is nonsensical
29
. I think that 
this is not entirely correct: in fact, the idea of some conciliation 
can also be given: (i) by the introduction of an explicit exception 
in the norm-product of balancing; and (ii) by a series of balanc-
ing operations within the same constitutional judgement, where 
the priority is sometimes given to one principle, sometimes to an-
other (infra).
4. At this point, some doubts should arise in our minds: in Pro-
fessor Guastini’s account, are principles really ‘applied’ or are they 
simply used as general value judgements – made by the legislator 
or by the constituent assembly – which can be presented in order 
to justify the formulation of implicit norms, and these and only 
these implicit norms are truly ‘applied’? In other words, does a 
principle really work as a norm, or does it represent just a reason
30
 
(or, if you prefer, a “pre-construed argumentative structure”
31
) that 
can be invoked to justify the production of new norms? In many of 
his works, Riccardo Guastini has specified that principles cannot 
be directly applied through syllogistic reasoning: in order to be ap-
plied, they need a previous “concretisation”. “Concretisation” can 
value judgements, see at least: Max Kölbel, Expressivism and the Syntactic Uniformity of Declarative 
Sentences, in “Critica: Revista Hispanoamericana de Filosofía”, Vol.17, No.87 (1997) 2; Massimiliano 
Vignolo, Use against Skepticism, Cambridge Scholars Publishing, Newcastle, 2009; Mark Shroeder, Be-
ing For: Evaluating the Semantic Program of Expressivism, Oxford University Press, New York, 2010; 
and Walter Sinnott-Armstrong, Moral Scepticisms, Oxford University Press, New York, 2010. On the 
difference between contextualism and relativism, see at least: Claudia Bianchi, La dipendenza conte-
stuale. Per una teoria pragmatic del significato, Edizioni Scientifiche Italiane, Napoli, 2001; Herman 
Cappelen & John Howthorne, Relativism and Monadic Truth, Oxford University Press, Oxford, 2009; 
Max Kölbel - M.C. Carpintero (eds), Relative Truth, Oxford University Press, Oxford 2008; Francois 
Récanati, Direct Reference: From Language to Thought, Blackwell, Oxford, 1993. 
29 
Riccardo Guastini, Interpretare e argomentare, cit. at 209.
30 
More precisely, principles considered as reasons for norms, not as reasons for actions. Principles 
are construed as reasons for action in Joseph Raz, Practical Reasons and Norms, London, 1975, 15, 
58.
31 
See Roberto Bin, Diritti e Argomenti. Il bilanciamento degli interessi nella gurisprudenza costituzi-
onale, Giuffrè, Milano, 1992.
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DIGNITAS n Teorija in filozofija prava
thus be defined as an operation which is generally non-logical, 
where a first explicit norm constitutes the premise or, more often, 
one of the premises and a second implicit norm constitutes the 
consequence. I think it is correct to say that the second norm is a 
concretisation of the first norm if and only if: (A) the second im-
plicit norm has a lower degree of indeterminacy compared to the 
first norm; (B) the second implicit norm qualifies the first one in a 
substantive way; and (C) there is some (even broad) relationship 
of relevance between the two norms: this relationship does not 
have to be a relation of logical implication and typically is not logi-
cal at all, but merely argumentative – that is a boundary which is 
carried out using rhetorical devices. As it can be easily understood, 
this concept of concretisation is really similar to the one proposed 
by Hans Kelsen
32
. Its structure is also very close to a form of practi-
cal reasoning labelled “specification” by ethical theorists, and that 
has been recently used by Professor Mauro Barberis
33
 to describe 
the role of principles in current legal systems (infra)
34
.
In Riccardo Guastini’s work there is (more or less) an explic-
it connection between judicial balancing and what we have just 
called “the concretisation of principles”. The operation of balanc-
ing – as defined by the Italian professor – is insufficient to make 
a principle applicable: on the contrary, balancing seems to be an 
eventual phase that preludes an operation of concretisation. In 
my opinion, Riccardo Guastini is completely right on this point 
although he sometimes seems to slightly underrate the effects of 
the link between judicial balancing and concretisation. It is very 
important to point out, as Professor Guastini correctly does, that a 
principle can be used even without balancing: in fact, this is what 
happens whenever a judge, using a strict “monistic” strategy, does 
not identify (meaning: create) and solve any conflict between two 
principles, but simply specifies the normative content of a sin-
32 
See, e.g., Hans Kelsen, General Theory of Law and State, Cambridge, Cambridge University Press, 
1949 at 135.
33 
See Mauro Barberis, Europa del diritto, Il Mulino, Bologna, 2009, last chapter; Esiste il neocosti-
tuzionalismo, in Analisi e Diritto 2011, Paolo Comanducci e Riccardo Guastini (eds), Marcial Pons, 
Madrid, 2011, 11-30.
34 
See at least: Henry S. Richardson, Practical Reasoning about Final Ends, Cambridge Uni-
versity Press, Cambridge-New York, 1997, in particular Chapter IV; David Wiggins, Sameness and 
Substance Renewed, Cambridge University Press, Cambridge-New York, 2001, Second Edition; Elijah 
Millgram, Ethics Done Right, Practical Reasoning for a Foundation of Legal Theory, Cambridge Uni-
versity Press, Cambridge-New York, 2005. The word “specificationism”, instead, is generally used to 
denote: i) the practical strategy of solving every ethical conflict through the specification of norms; 
and ii) a meta-theory which aims to develop the metaphor of specification into a meta-model that 
promotes a better understanding of ethical models.
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DIGNITAS n Three theories of judicial balancing: a comparison
gle principle which is considered the only one enforceable
35
; it is 
both possible and correct to maintain that balancing is conceptu-
ally separated from concretisation. However, it should be stressed 
that:
a) Those judicial operations which are commonly described 
in terms of ‘balancing’ by jurists never consist of the mere estab-
lishment of an axiological order: this first intuitive operation al-
ways precedes a subsequent activity, namely the specification of 
the normative content ascribable to the constitutional prevailing 
principle. Most of the time there is a deep interaction between 
these two operations, and sometimes they even become inextri-
cably inter-connected. Balancing never walks alone: it always goes 
hand in hand with this form of specification.
b) When concretisation is combined with balancing, it can also 
work in a different way than when it is used alone, at least in the 
argumentation process (which belongs to the sphere of phenom-
enology): the principle left aside can be used as a reason to justify 
the formulation of explicit exceptions to the norm which is the 
product of balancing, or as a reason to consider non-constitution-
al only a part of the set norms that can possibly be the object of 
the constitutional review
36
.
If we take into account the strict interactions between balanc-
ing and the operation we have defined as concretisation, we can 
also ‘save’ two basic ideas that lie behind the metaphor of ‘balanc-
ing’, which are probably to be rejected otherwise: the idea of equi-
ty and the idea of compromise. In Guastini’s descriptive account, 
judicial balancing is never a compromise between two principles: 
it is always an act of giving full priority to one of the principles at 
stake. The idea of some sort of conciliation can only be given by a 
series of balancing operations
37
, and not within a single decision. 
But the general understanding of law professors and practitioners 
is that judicial balancing can be either: i) an act of ‘outweighing’ or 
35 
In this case, the cause of the defeasibility of the principle-norm is not rooted in a second principle 
but in the thelos of the same principle. It is a kind of ‘internal – defeasibility’. On this point, see Gi-
orgio Pino, Diritti e interpretazione, Il Mulino, Bologna, 2010, Chapter VI.
36 
See e.g. the following decision of the Italian Constitutional Court: Sent. 27/1975, and the following 
decisions of the Supreme Court of the United States of America: Tennessee v. Garner 471 U.S. 1 (1985) 
(Warren E. Burger, J.). Generally speaking, abortion cases provide good examples for this thesis. 
37 
A good example can be found in the decisional strategy of Justice Powell: in Gannett Co. v. De 
Pasquale, 433 U.S. 268, (1979) 440-46 he gave precedence to the right to privacy – formulating a 
rule that denies media access to pre-trial proceedings – just because in the previous Nebraska Press 
Association v. Stuart, 427 U.S. 539 (1976) precedence had been given to free speech, protecting the 
press against ‘gag orders’. 
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DIGNITAS n Teorija in filozofija prava
ii) an act of ‘striking a balance’
38
.
In my opinion, a sort of ‘compromise’ between the principles 
can be reached even within a single decision: not in the operation 
of deciding which norm should prevail – as Guastini correctly 
maintains – but in the concretising operation that then follows. 
Here, the principle that has been put aside can be used as a rea-
son (namely, a rhetorical argument) to justify a full series of ex-
ceptions to the rule which concretises the prevailing principle, or 
to consider only some parts of the normative statement(s) under 
review as non-constitutional, while still holding the others consti-
tutional. I use the expression “idea of compromise/conciliation” 
instead of “compromise/conciliation” for two reasons: i) it is a 
vague concept whose core is constituted by the idea of some sort 
of equilibrium between two opposite poles; and ii) it can be a 
predicate of principles only in a metonymic sense since it is only 
a proper predicate for the opposite interests that are ‘covered’ by 
the principles at stake.
Between the enforcement and the non-enforcement of a prin-
ciple, there is an intermediate hypothesis: the principle can be 
partially enforced. This is evident if we adopt both a ‘dynamic’
39
 
and a ‘static’
40
 theory of rights
41
. Ultimately, a judge can decide to 
put aside an indefinite series of specifications of the constitution-
al right, but this does not entail the whole right being sacrificed. 
Judicial balancing was created as a tool for flexibility: it was cre-
ated as a means to avoid the legislative rigidity that leads a judge 
to protect only one interest at a time, and to realise a compromise 
38 
On this distinction, see Alexander Aleinikoff, Constitutional Law in the Age of Balancing, in “Yale 
Law Journal” Vol.96, 1987, 94-1005.
39 
See e.g. Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and 
Other Essays, Yale University Press, 1919 and Carl Wellman, Real Rights, Oxford University Press, 
Oxford, 1995. 
40 
See e.g. Jeremy Waldron, Rights in Conflict, in “Ethics” No. 99 (1989) at 503; Neil MacCormick, Ri-
ghts, Claims and Remedies, in “Law and Philosophy” No.1 (1982) 337 and Joseph Raz, The Morality 
of Freedom, Oxford University Press 1986. 
41 
In ‘static’ theories, rights are conceived either: i) as an elementary normative position; or ii) as an 
aggregate of elementary normative positions built around a core, which is constituted by one of 
these elementary positions, and which we assume to be an essential property of the right. On the 
contrary, in ‘dynamic’ theories of rights, the right is considered as reason to justify the attribution of 
an ever-changing series of elementary normative positions. On this distinction, see: Carl Wellman, An 
Approach to Legal Rights: Studies in the Philosophy of Law and Morals, Springer, 1997, and Mauro 
Barberis, Etica per giuristi, Laterza, Roma-Bari, 2006. Mauro Barberis suggests that these two theories 
are not incompatible because they deal with different objects. To be sure, ‘static theories’ deal with 
rights qua elementary normative positions or sets of elementary normative positions, while ‘dynamic 
theories’ deal with rights qua reasons to assign an elementary position to a subject; in the dynamic 
theories norms are conceived as arguments or meta-meta-norms. 
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DIGNITAS n Three theories of judicial balancing: a comparison
among the interests at stake, case by case
42
. Obviously, no compro-
mise can be reached in the act of choosing which principle should 
prevail, and then be applied: this is nonsensical. It is also clear that 
“balancing” is not simply a synonym of “conciliation”, and that 
we face balancing operations which consist of giving full priority 
only to one of the conflicting principles. Nevertheless, a ‘residue’ 
of the discarded principle can be detected in the exception(s) to 
the rule that gives application to the higher principle, or in some 
norm that represents the concretisation of the principle left aside. 
The protection of a legal right can be limited so long as the core of 
the right is not undermined (otherwise, if the core is undermined 
the possibility of the right being protected is simply excluded). 
There are several grades and ways to compress a right: they lead 
to non-enforcement only when the exercise of the right is severely 
frustrated or has become impossible. Obviously, it is really hard 
to identify the core of the right and to “sharply separate the con-
tents from the means”
43
. Most of the time, means and contents are 
confused, but there is still the conceptual possibility to trace this 
distinction. American jurisprudence has tried to develop several 
tools to accomplish this task: e.g., in First Amendment Theory it 
is common to distinguish between ‘direct’ and ‘indirect’ interven-
tions in limiting a right: the former are generally subjected to strict 
scrutiny. These distinctions have mostly introduced merely empty 
formulations; in any case this statement does not falsify the claim 
that constitutional rights do have different grades of implementa-
tion.
5. In conclusion, I think that, if we want to give a full account 
of the strict relationship between balancing and concretisation, it 
could also be possible to conceive judicial balancing as a particu-
lar kind of concretisation process, a hybrid form of legal reason-
ing formed by (at least) three different operations: i) the intuitive 
value judgment of precedence; ii) the concretisation process; and 
iii) the final subsumption. These three operations are normally 
preceded by the choice of two conflicting covering principles, via 
prima facie interpretation, and by a previous ‘double subsump-
tion’. The operations in (i) and (ii) are connected in the way I have 
just shown. In all honesty, I do not know if this hybrid model can 
42 
See Roscoe Pound, Justice According to Law, in “The Mid-West Quarterly” Vol.1 No.3 (1914) 223 and 
A Survey of Social Interests, In “Harvard Law Review” Vol.17 No.1 (1943) 1.
43 
See Roberto Bin, Diritti e argomenti, cit. at 102. 
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72
DIGNITAS n Teorija in filozofija prava
be considered ‘better’ than the one adopted by Guastini – where-
by concretisation and balancing are logically separated – since it 
is a quandary concerning the aesthetic qualities of the models.
3. Professor Moreso: Judicial balancing between 
logicism and objectivism
Professor José Juan Moreso has recently proposed a theory 
of balancing based on the distinction between defeasible and 
indefeasible norms, and on a certain conception of the revision 
of defeasible norms. According to this second theory of balanc-
ing, the apparent conflict between rights can be settled through a 
refinement of constitutional worlds. The tools used by Professor 
Moreso in his theoretical account are mainly taken from Carlos 
Alchourrón’s famous works on the logic of defeasible condition-
als
44
. The five arguments that characterise this second theory of 
judicial balancing are as follows: i) the compatibility between judi-
cial balancing and subsumption; ii) the rejection of the particular-
ist conception of practical reasoning; iii) the definition of balanc-
ing as a form of specification; iv) the definition of specification as 
a logical operation of refinement of the antecedent of the norm; 
and v) the conception of concretisation as an intellectual opera-
tion framed by objective moral truths and paradigmatic cases. On 
one hand, judicial balancing is described as a logical operation 
that judges realise before subsuming a fact under a general norm 
– an operation that makes subsumption possible even when we 
are dealing with norms affected by a high level of vagueness. On 
the other, particularism is heavily criticised; an alternative view is 
proposed, a view that pushes its way through the ideal revision of 
principles – namely, the specification of all the properties of the 
case which are potentially relevant.
This second theory can thus be regarded as an attempt to offer 
a form of balancing which can be controlled rationally – through 
a conception of legal principles as defeasible norms. We can eas-
ily imagine the ideological reason that lies behind this effort: the 
aim is to arrange the constitutional values in a coherent and har-
monic order.
44 
Carlos E. Alchourrón, Law and Logic, in “Ratio Juris” No.9 (1996) 331; Para una lógica de las razones 
prima facie, in “Análisis Filósofico” No.16 (1996) 113.
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DIGNITAS n Three theories of judicial balancing: a comparison
Professor Moreso thinks that whenever two constitutional prin-
ciples collide, the judge should reconstruct them, instituting a con-
ditioned hierarchy, which can be the object of a universalisation 
process. Let us take an example to clarify the meaning of this state-
ment
45
. Suppose we have two principles: the first (P1) protects the 
freedom of expression while the second (P2) protects the right to 
privacy. It is quite clear that conflicts between these could arise, in 
some concrete cases. When this happens, we should reconstruct 
the two principles in a way that both: i) solves the concrete conflict; 
and ii) establishes a rule that is valid for future cases. It is possible 
to consider the following two properties as relevant: the public im-
portance of the news (C1) and the truthfulness of the news (C2). 
In this way, we obtain four elementary cases since the universe of 
cases (UC) – which is constituted by the whole set of elementary 
cases – can be constructed starting out from the universe of prop-
erties (UP) – which is the set of the relevant properties – using the 
formula 2
n
, where “n” stands for the number of properties of the 
UP
46
. At this point, it is possible to recast the two constitutional 
principles (P1 & P2) as follows: “free speech is protected when the 
news is of public interest and it is also true” (N1) and “it is forbid-
den to infringe the right to privacy using the medias, except when 
the news is of public relevance and it is true”. In this way, we can 
obtain a normative system which – according to Professor Mo-
reso – regulates in a coherent and complete form all the possible 
cases of the UC we refer to. The Spanish legal theorist is aware that 
the procedure of universalisation involves at least one huge in-
convenience: the specification of all relevant properties. In order 
to identify the relevant properties an adequate thesis of relevance 
is necessary
47
. But it seems always possible to refute any formula-
tion of any thesis of relevance, claiming that the considered ones 
are not the only relevant properties of the case: there are other rel-
evant properties (infra). This problem, which has been pointed 
out by Bruno Celano
48
, is not considered insurmountable by Pro-
fessor Moreso; in his opinion, there is a way out. First of all, consti-
45 
This is a simplified version of the example given directly by Professor Moreso in his works.
46 
See Carlos E. Alchourrón and Eugenio Bulygin, Normative Systems, Springer-Verlag, Wien-New 
York, 1971, Chapter I.
47 
On the thesis of relevance, see Carlos E. Alchourrón and Eugenio Bulygin, Normative Systems, at 
103
48 
Bruno Celano,‘Defeasibility’ e bilanciamento. Sulla possibilitè di revisioni stabili, in “Ragion Pratica”, 
No.18 (2002) 223.
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DIGNITAS n Teorija in filozofija prava
tutional courts generally operate with a limited set of properties, 
not an infinite set of properties; secondly, if we realise that there 
is a new relevant property that we had not previously taken into 
account, we will just have to use a second UP which has a more 
complex structure or, in other words, one which takes the new 
relevant property (or properties) into account. Going back to our 
example, it can be claimed that it is not right to allow the diffusion 
of a piece of news that contains insulting speech, even if there is a 
public interest and, at the same time, the news is considered to be 
true. The obstacle can be by-passed in the following way: a third 
relevant property – “the information contains offending words” 
– (C3) can be introduced in the former UP. With this operation, 
we can obtain a new universe of cases (UC
2
) encompassing eight 
elementary cases, and a normative system which regulates them 
in a consistent and complete manner
49
. Moreover, Professor Mo-
reso tells us that this operation is not only conceptually possible, 
but it is a good representation of what normally happens in real 
life when judges use the technique of distinguishing, taking into 
account new properties that were not considered in the previous 
case(s). To conclude, the new universe of cases (UC
2
) will be more 
refined.
Written constitutions are sometimes described as folders of a 
set of conflicting principles; in the face of such a quandary, Profes-
sor Moreso’s response is that this vision simply corresponds to an 
intuitive and prima facie understanding of the constitution – to a 
Master book, using the Alchourrón lexicon. All constitutional prin-
ciples can be reformulated and restructured in a general scheme 
that provides univocal solutions to individual cases. On a ‘deeper 
level of understanding’, the constitution can be conceived as a 
Master system (still using the Alchourrón lexicon), namely a nor-
mative system providing complete and coherent solutions for all 
cases. Thus, it is possible to accomplish operations to subsume 
individual cases in a general case. Probably, we will have to face 
some indeterminacy caused by a kind of incommensurability that 
affects some of the values which underpin the constitutional prin-
ciples, but this kind of indeterminacy can be treated as a form 
vagueness, namely a type of semantic indeterminacy; it is not nec-
essarily a symptom of a deeper form of fragmentation of values, 
49 
José Juan Moreso, A proposito di revisioni stabili, casi paradigmatici e ideali regolativi: replica a 
Celano, in “Ragion Pratica”, No.18 (2002) 241.
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DIGNITAS n Three theories of judicial balancing: a comparison
nor it is proof of their entirely subjective and emotional nature. 
On this point, Moreso’s position does not seem very clear to me. 
Moreover, the validity of the propositions: (A) ‘the indeterminacy 
is due to value incommensurability’; and (B) ‘the incommensu-
rability can be treated as a form of vagueness’ is not proven, but 
assumed in a dogmatic way. However, judicial balancing – as so 
defined – can be made compatible with logical subsumption. In 
Moreso’s theory, the subsumption of a particular case under a gen-
eral norm is considered a necessary presupposition of all rational 
practical deliberations. In partial contrast to Robert Alexy (infra), 
Moreso conceives balancing not as the activity of weighing the 
principles in a quantitative way, but as the activity of tailoring the 
principles to a class of cases or, in other words, to make the prin-
ciples more specific
50
.
In this second account, the procedure of judicial balancing is 
described as non-arbitrary since it is constrained by two limits: 
a) our basic (moral) intuitions (intuiciones básicas); and b) para-
digmatic cases – that is to say those concrete cases of conflict not 
affected by indeterminacy and which constitute the core of the 
constitutional right
51
. In Moreso’s conception of balancing, these 
two elements must be seriously taken into account to build up 
stable hierarchies that can thus be considered valid. In all honesty, 
I think that ‘paradigmatic’ should be considered a predicate that 
is attributed to the element ‘case’ through an evaluative process 
based on some normative standard. It should be reminded that in 
the community of jurists there is no perfect agreement on which 
cases should be considered ‘paradigmatic’, and the possibility of 
obtaining an objective-paradigmatic case depends on the possi-
bility of having objective standards of evaluations. For this reason, 
in my analysis I will not consider the two constraints as independ-
ent.
Let me sum up. The constitutional judge ideally operates using 
a limited set of relevant properties. Judicial balancing consists of 
making explicit the implicit content of a right: it is the process of 
specifying principles through the formulation of a set of rules, link-
ing the properties of the UD with the corresponding normative 
50 
See José Juan Moreso, Ways of Solving Constitutional Rights: Proportionalism and Specificationism, 
forthcoming in “Ratio Juris” 2012.
51 
See e.g. José Juan Moreso, Conflitti tra principi costituzionali, in “Ragion Pratica”, No.18 (2002) 201, 
at 202-206; A proposito di revisioni stabili, casi paradigmatici e ideali regolativi: replica a Celano, cit., 
at 245. 
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DIGNITAS n Teorija in filozofija prava
solution. Using this logical process of reinforcement of the con-
tent it is possible to obtain a set of derivative rules; these norms, 
considering further relevant properties, determine a refinement 
of constitutional worlds. Judicial balancing does not necessar-
ily have to be irrational: it can be conceived as a logical process. 
Moreover, the ‘correct answer(s)’ can be identified in most cases, 
using paradigmatic cases and shared moral intuitions. Obviously, 
this is what happens in ideal conditions
52
.
I will try to analyse this theory, focusing on its problems and 
leaving aside its priceless merits. However, before going through 
this process it is essential to formulate a couple of preliminary 
considerations and caveats:
1. This account expressly represents judicial balancing as a par-
ticular kind of concretisation. Moreover, it clearly gives priority 
to the specification process over balancing as a characterisation 
of principled reasoning. Obviously, I have no quarrel with these 
ideas. I shall only add a couple of warnings: a) I am aware that this 
is (mainly) a normative theory, but if we define concretisation as 
a logical operation, the theory will lose a great part of its explica-
tive force – a property required even in a normative theory: as it is 
carried out by constitutional judges, the process of specifying the 
normative content of constitutions cannot be properly described 
as a reinforcement of the antecedent, at least in most cases; and b) 
in Moreso’s account, the operation of choosing which principle 
should prevail (“weighing”, or “balancing” in the strict sense) is 
partially missed out, or at least severely obscured by the stress put 
on the concretisation process, the ideal of coherency and by the 
classification of conflict between constitutional rights as prima 
facie (that is, apparent) conflicts
53
.
2. The concepts of “basic intuitions” and “paradigmatic cases” 
represent the greatest exegetic problems we encounter in the anal-
ysis of Moreso’s theory: a) when he discusses judicial balancing, 
he never offers any definition of “basic intuition”, even if he gives 
a few examples where basic moral intuitions are represented as 
substantive principles which are both auto-evident and true
54
; b) 
conversely, when he defends moral objectivism, he moves along 
52 
Id.
53 
Id.
54 
See note 46.
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DIGNITAS n Three theories of judicial balancing: a comparison
the lines of a dispositional doctrine
55
 grounded on moral plati-
tudes, namely a short number of trivial moral truths which are im-
plicit in our moral practice. Moreover, his position on value judge-
ments seems to swing: i) between a form of strong empirical intui-
tionism and a peculiar form of comprehensive and ‘weak’ moral 
constructivism – which Moreso calls “ecumenical” ; ii) between a 
descriptive and normative meta-ethic; iii) between an empirical 
and a purely rational justification of moral intuitions; and iv) be-
tween non-realistic objectivism and moderate subjectivism.
I think that the best thing to do, in accordance with the prin-
ciple of interpretative charity, is to make two possible interpreta-
tions of Professor Moreso’s position. My proposal is to consider 
him as either: i) an empirical intuitionist: “basic intuitions”
56
 shall 
be considered then as a concept used to describe a set of prop-
ositions which are auto-evident (and true) and substantially de-
termine our practical reasoning – “paradigmatic cases” are objec-
tively determined by these propositions; or ii) a “minimal” moral 
constructivist: “basic intuitions” is used to refer to only four or five 
properties which are trivial and conceptual truths: some of them 
are not even moral principles stricto sensu; all of them, taken to-
gether, are by no means capable of significantly determining the 
frame of the possible outcomes since they are just trivial consid-
eration about morals (infra)
57
. In both cases, the objectivity of val-
55 
«[MC] x es moralmente correcto si y solo si los seres humanos ante el acto x, en condiciones ideales, 
tendrían una pro-actitud hacia la realización de x.» in José J. Moreso, “El reino del los derechos y la 
objetividad de la moral”, in La Constitución: modelo para armar, Marcial Pons, Madrid, 2009 at 78.
56 
This first interpretation can be suggested, e.g., by this long passage: «Sin embargo, tampoco es 
necesario asumir que carecemos absolutamente de criterios para establecer la jerarquía, dadas de-
terminadas circunstancias. Publicar una noticia falsa, sin ninguna comprobación de su veracidad, 
relativa a la vida privada de una persona y lesiva para su honor (e.g., que un obispo o un ministro 
del gobierno o un profesor de Universidad, es miembro de una red que se dedica a la prostitución 
infantil) es un supuesto en que la libertad de información cede ante el derecho al honor. Publicar 
la noticia verdadera de que, e.g., un ministro del gobierno ha cobrado diez millones de dólares de 
cierta empresa para construir una autopista, es un supuesto en que la libertad de información de-
splaza al derecho al honor. Aquellas reconstrucciones de estos derechos que non den cuenta de estas 
solidas intuiciones, pueden considerarse reconstrucciones inadmisibles. La admisibilidad de una 
reconstrucción depende, entonces, de su capacidad de dar cuenta de los casos paradigmáticos. Las 
dudas sobre como ordenar los principios en casos de conflicto ocurren en un trasfondo, a menudo 
inarticulado, en el cual intuitivamente acordamos en solución de tales conflictos para determinados 
casos que, de alguna manera, son obvios para nosotros.» José J. Moreso, “Conflictos entre principios 
constitucionales”, in La Constitución: modelo para armar, cit.
57 
This second interpretation can be suggested, e.g. by José J. Moreso, “El constructivismo etico y el 
dilemma de Eutifron” and “El reino de los derechos y la objectividad de la moral”, both in La Con-
stitución: modelo para armar, cit., where Professor Moreso explicitly embraces the theory proposed 
by Michael Smith in The Moral Problem, Basil Blackwell, Oxford, 1994 and makes several references 
to David Lewis, “Dispositional Theories of Values”, in David Lewis, Papers in Ethics and Social Philo-
sophy, Cambridge University Press, Cambridge, 1983, 68-93. 
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DIGNITAS n Teorija in filozofija prava
ues seems to have an empirical, a posteriori, basis, which stands 
partly apart from rationalism. I will not pick up one of these in-
terpretations – that, in Moreso argumentation, seem to overlap, 
given their common ground; on the contrary, I will take both op-
tions into account. Obviously, there could be (at least) one further 
possible interpretation: we might consider the constraints on ju-
dicial balancing as the product of a contingent and always vari-
able inter-subjective agreement: however, I will not consider this 
interpretation as an option since it clearly collides with Moreso’s 
explicit adherence to moral objectivism and moral cognitivism.
At this point, we can ask ourselves if Professor Moreso’s theory 
was able to realise its own ambitious purposes (to overcome the 
particularistic conception of balancing, to obtain a rule of conflict 
which is indefeasible, to permit rational control of the balancing 
process, to limit judges’ discretion). I think that the answer to this 
question is negative, for the following reasons:
1. It is impossible to reach an ultimate thesis of relevance (UTR) 
because a UTR requires objectivity and – in ethics – objectivity 
does not exist. As Professor Celano has pointed out, the revised 
principle could, in turn, be revised again and again: it will always 
be more or less defeasible. This is a central issue: if Professor Mo-
reso cannot demonstrate that revised principles are indefeasible 
conditionals, he cannot consequently prove it is possible to obtain 
stable hierarchies, nor at the ideal level: the objection still stands . 
In order to obtain a stable hierarchy we need an ultimate thesis of 
relevance (UTR), namely a thesis of relevance which enables us to 
define in advance all relevant generic cases and their relative val-
ues: by definition, this thesis cannot be revised further. Professor 
Moreso maintains that: 1) even if we have to reject the hypothesis 
that a UTR within a macro-system is possible, we do not have to 
also abandon the idea that a UTR within a micro-system is possi-
ble; 2) in the real world constitutional judges generally work with 
a limited UP. He infers (from 1 and 2) that with (3) it is possible 
to have stable revisions in actual constitutional adjudication. I will 
try to reject his argument.
Even within a micro-system, the selection of relevant properties 
depends on epistemic and ethical parameters that are a product 
of value judgements; then, both the possibility of a UTR and the 
possibility of stable constraints in the process of balancing rely 
on the possibility of having ultimate values that are somehow ob-
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DIGNITAS n Three theories of judicial balancing: a comparison
jective. Moreso maintains that a judge cannot proceed arbitrarily 
in the refinement process because there are at least two series of 
objective limitations: in ideal conditions, the specification process 
will have to face the constraints given by our basic moral intui-
tions, which are to be considered as the very grounds for stable 
selection parameters.
In this work, I do not want to claim that the formulation of a 
UTR is conceptually impossible (even if this thesis seems to me 
quite plausible, it is highly controversial in the philosophical de-
bate): all I wish to say is that it is unrealistic to think that human be-
ings can generate a UTR, even in ideal conditions, just because the 
possibility of a UTR depends on the possibility of having ultimate 
values which are objective, whereas value judgements are essen-
tially subjective. In this paper I will not provide a full and strong 
defence of moral scepticism and moral subjectivism. Instead, I 
will provide a weak defence, showing how the idea of moral basic 
intuitions is highly implausible and how dispositional theories are 
highly problematic. The source of all the fallacies that affect these 
two (sometimes overlapping) positions relies on a mistaken con-
ception of the structure of the human mind.
2. If we want to consider Moreso’s claim as a form of empirical 
intuitionism (namely, a descriptive meta-ethic), then it is possible 
to criticise his position showing that the existence of a “moral in-
tuition” is highly implausible. The current trend in philosophy of 
law is to ‘buy’ in a more or less acritical way some sort of moral 
objectivism; therefore, the topic of value judgements is not often 
discussed anymore among legal theorists and is largely consid-
ered an old-fashioned discussion.
The implausibility of moral intuitionism was already evident 
after the powerful arguments developed by authors such as Alf 
Ross
58
, Peter F. Strawson
59
 and John L. Mackie
60
; it has now become 
even more evident thanks to a series of empirical studies in the 
field of moral psychology and rational decision theory. The core 
of empirical intuitionism is constituted by an epistemological the-
sis: the belief that some of our moral beliefs are justified without 
needing to be inferred from any other beliefs. These ultimate be-
58 
Alf Ross, On the Logical Nature of Propositions of Value, cit.
59 
Peter F. Strawson, Ethical Intuitionism, In “Philosophy”, Vol.24, No.88 (1949), 23.
60 
John Mackie, Ethics, Inventing Right and Wrong, first published in Pelican Books, London, 1977, 
reprinted in Penguin Books, London, 1990, Chapter I.
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DIGNITAS n Teorija in filozofija prava
liefs are considered self-evident and, many times, true: they are 
considered “so luminous that one cannot grasp them without be-
lieving them”
61
, although most of the time these absolute qualities 
can only be reached on limited and (sometimes) even complex 
bases. However, the ultimate justification rests on a mysterious fac-
ulty of human beings
62
: a cognitive and non-inferential response 
to the relevant object; this ‘faculty’ is not necessarily unreflective 
and does not have to be something distinct from our general ra-
tional capacity; nor does it have to be indefeasible
63
.
The fact that this epistemological claim is highly implausible 
can be easily demonstrated by the conjunction of three theses
64
.
a) The first thesis is very famous and generally known as the ar-
gument from relativity. It is the anthropological consideration that 
both the moral codes and the differences in moral beliefs have al-
ways varied between different groups or classes within a complex 
community. These phenomena are more readily explained by the 
hypothesis that they reflect relative and subjective values, rather 
than by the hypothesis that they express perceptions of objective 
values and that, most of the time, these perceptions are even dis-
torted. The existence of a property called moral intuition, which 
enables us to capture the form of these objective values, does not 
then seem very plausible.
b) The second thesis is also well known; it is sometimes called 
the argument from queerness; it is mainly an epistemological argu-
ment. If there were objective values, they would be really strange 
entities. The truth of these entities, their cogency, and their func-
tion as premises in our practical reasoning cannot be grasped by 
any of our ordinary accounts of our perception, or by any logical 
analysis: it rests only upon a strange property called ‘moral intui-
tion’. But this is a queer explanation of moral knowledge. It would 
be much simpler to replace moral qualities and moral intuitions 
61 
See Robert Audi, Moderate Intuitionism and the Epistemology of Moral Judgement, in “Ethical 
Theory and Moral Practice”, Vol.1, No.1 (1998) 15, at 17.
62 
I am aware that this is just one possible definition of moral intuitionism, and that this definition 
cannot capture all the different kinds of moral intuitionism. However, I have adopted this definition 
here for three reasons: 1) it captures the weakest form of intuitionism that is strong enough to deny 
the infinite regress problem of moral skepticism; 2) it represents moral intuitionism as a thesis on 
beliefs and not on knowledge; and finally, and most importantly, 3) it seems to me the best defini-
tion of the kind of intuitionism that is expressed in one of the possible interpretations of Moreso’s 
posture on values. 
63 
See Robert Audi, Moderate Intuitionism and the Epistemology of Moral Judgement, cit. and The 
Good in the Right, Princeton University Press, Princeton, 2004.
64 
The best account of the first two arguments is provided by John Mackie in his masterpiece Ethics, 
Inventing Right and Wrong, cit, Chapter I, paragraphs 8-9. Here, I will basically follow him. 
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DIGNITAS n Three theories of judicial balancing: a comparison
with some kind of subjective response, which has a causal relation 
to the perception of some natural feature.
c) The third one can be called the framing-effects and biases 
argument, which is an empirical and psychological argument. It 
has been developed in the last 35 years and has been used directly 
against moral intuitionism in some recent works of moral philoso-
phers, such as those by Walter Sinnott Armstrong
65
. Sometimes it 
is used in broader attempts to debunk ethics and to develop the 
discipline of moral psychology. The claim is that our moral beliefs 
cannot be non-inferentially justified because our moral intuitions 
are subject to so-called ‘framing psychological effects’ and to sub-
ject biases. Our moral beliefs are formed in circumstances where 
either we are partial, there is a disagreement and we do not have 
any meta-criterion of preference, the judgement is clouded by our 
emotions, the circumstances ‘are conducive to illusion’, the source 
of our belief is disreputable or unreliable. This claim is supported 
by behavioural studies and a series of recent experiments in neu-
roscience using recent developments in functional magnetic reso-
nance imagery (fMRI), which is a method of mapping the synaptic 
pathways that induce emotional states
66
.
3. If we want to consider Moreso’s position as a form of minimal 
constructivism (namely, a normative and conceptual meta-ethic), 
then we can maintain that: a) it does not offer any sound argu-
ment for the rejection of moral relativism and scepticism; b) in 
order to avoid the objection of circularity, his theory brings back 
the problems of moral intuitionism; and c) in any case, it does not 
provide substantive constraints on judicial balancing.
a) As Professor Celano has pointed out
67
: i) José Juan Moreso 
65 
See Walter Sinnott-Armstrong, Framing Moral Intuitions, in Walter Sinnott-Armstrong (ed.) Moral 
Psychology, Vol. II, The Cognitive Science of Morality: Intuition and Diversity, MIT Press, Cambridge, 
2008, 47; How to Apply Generalities: Reply to Tolhurs and Shafer-Landau, in Moral Psychology, cit., 87; 
Moral Intuitionism Meets Empirical Psychology, in Terry Hogan and Max Timmons (eds), Metaethics 
After Moore, Oxford University Press, New York, 339.
66 
See Alice M. Isen & Paula F. Levin, Effect of Feeling Good on Helping: Cookies and Kindness in “Jo-
urnal of Personality and Social Psychology”, No.21 (1972) 384; Joshua D. Green et al., An fMRI Inve-
stigation of Emotional Engagement in Moral Judgement, in “Science”, No.293 (2001) 2105. Kihn Luan 
Phan et al., Functional Neuroanatomy of Emotions: A Meta-Analysis of Emotion Activation Studies in 
PET and fMRI, in “Neuro Image”, No.16 (2002) 331; Tomas Nadelhoffer and Adam Felz, The Actor-
Observer and Moral Intuitions: Adding Fuel to Sinnott-Armstrong’s Fire in “Neuroethics” Vol.1 No.2 
(2009) 13; Daniel Kahneman, Paul Slovic, Amos Tversky (eds), Judgement under Uncertainty: Heuri-
stics and Biases, Cambridge University Press, Cambridge, 1982; Daniel Kahneman and Amos Tversky, 
Prospect Theory: An Analysis of Decision under Risk, in “Econometrica”, Vol.47 No.2 (1973), 263.
67 
See Bruno Celano, Commenti a José Juan Moreso El reino de los derechos y la objectividad de la 
moral, in Enrico Diciotti (ed.) Diritti umani e oggettivitè della morale, DiGiPs Universitè di Siena, Siena, 
2003, 41-85 at 40-44.
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DIGNITAS n Teorija in filozofija prava
criticises moral scepticism claiming that this theory does not ex-
plain the existence of some moral platitudes in the grounds of our 
folk morality. However, since moral scepticism shall be defined 
as the theory that rejects the very existence of moral platitudes, 
claiming that our moral practice is incoherent, contradictory, de-
ceptive and fragmented, Moreso’s central argument against moral 
scepticism is circular. ii) Moral relativism is criticised insofar as it 
implies foundationalism, but this implication is absolutely false. iii) 
Moreover, Moreso also admits that his “ecumenical theory” does 
not offer any sound objection to moral scepticism and relativism 
since it should be considered instead as an elusive defence to the 
sceptical arguments against moral objectivism
68
, neither does he 
exclude the possibility that our morality is inexorably incoherent 
and illusive
69
.
b) Generally speaking, dispositional theories are affected by cir-
cularity: their moral conclusions are just the consequences of the 
moral principles which are selected as the grounds for construc-
tion, and which are also justified by the theory itself; thus, they are 
generally unable to explain why human beings should act accord-
ing to the precepts of the theory. Conversely, Moreso’s disposi-
tional theory attempts to solve the problem of circularity, but the 
proposed solution seems highly defective as it introduces a form 
of intuitionism in its basis. Therefore, the basic assumptions of 
“ecumenical objectivism” are grounded on a certain conception 
of the human mind: as Professor Celano has noted, in Moreso’s 
account the epistemic accessibility of goodness is determined by 
perception and not by cognition: the access to an objective moral 
property occurs through a physical and biological process which 
is identical to the one required to access a secondary quality of 
material objects (e.g. colours). But, if that is so why then should 
human beings have a certain objective attitude toward a given ob-
ject? This question leads to an infinite regress that can only be 
stopped by demonstrating that it is possible to have justified mor-
al beliefs that are not inferred from any other moral belief; but 
68 
«No pretendo ofrecer un argumento contra el escéptico. Pretendo, tan solo, esbozar los presupu-
estos de nuestra practica moral y afirmar que, si somos capaces de ofrecer un espacio conceptual 
capaz de abrazar dichos presupuestos, entonces tal vez podamos ignorar las dudas del escéptico.» in 
Constitución: modelo para armar, cit. at 75.
69 
«Es posible que nuestro análisis conduzca a la desesperanzada conclusión que nuestros usos con-
ceptuales son irremediablemente contradictorios, o fallidos o confusos.» José J. Moreso, “El reino de 
los derechos y la objetividad de la moral”, in Constitución: modelo para armar, cit., at 74.
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DIGNITAS n Three theories of judicial balancing: a comparison
this can only be demonstrated by showing that an objectivising 
perceptual property exists. As we have seen before (supra) this 
hypothesis is highly implausible.
c) Even if Professor Moreso’s theory were valid, it could not 
offer any serious constraint on judicial balancing: the Court could 
still declare non-constitutional every law that clashes with the feel-
ings of justice that belong to the majority of the judges. The five 
elements José Juan Moreso (following Michael Smith) considers 
as moral platitudes are incapable of substantially determining the 
outcome of a balancing procedure. i) It is quite evident that the 
principle of practicality (if I think that A is correct or right, then 
I have a pro-attitude for doing A) does not offer any serious con-
straint for the judges: it is not even a principle in a strict sense, 
because it is not action-guiding; ii) neither the correctness claim 
(if x thinks that it is correct to do A, and y thinks that it is correct to 
not do A, then x and y have a genuine disagreement) can be con-
sidered as a normative principle. Referring to (iii) the principle of 
supervenience (if two human actions have all their relevant natu-
ral properties in common, then they should also have in common 
all their relevant moral properties); and (iv) the principle of sub-
stance (the actions that do not significantly affect the wellness of 
the other human being lack moral relevance), we can easily main-
tain that they do not work very well, provided that the argument 
of the inexistence of a UTR has not been rejected (supra) and, 
consequently, that we still do not have any objective parameter to 
establish when the wellness of a human being has been affected 
‘significantly’. Finally, even the principle that prescribes the pro-
cedure of reflexive equilibrium to solve ethical conflicts (v) does 
not offer any constraint on judicial balancing: considering that 
Moreso accepts the form of relativism given by value pluralism, 
he is forced to admit that: 1) there are different conceptions of 
what reflective equilibrium is; 2) these conceptions could lead to 
different and, most of the time, opposite solutions; 3) all of these 
solutions should be considered as correct; and 4) we do not have 
a meta-criterion to allow us to decide which one is better
70
.
4. It is unrealistic to think that constitutional judges operate 
with a limited UP. If my interpretation of Moreso is correct, he 
thinks that: (A) it is possible to obtain stable solutions when we 
70 
See Bruno Celano, Commenti a José Juan Moreso El reino de los derechos y la objectividad de la 
moral, cit.
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DIGNITAS n Teorija in filozofija prava
operate with a limited series of relevant properties; (B) constitu-
tional judges generally deal with limited series of relevant prop-
erties; he infers, from (A) and (B) the assertion (C) it is possible 
to obtain stable norm-products in constitutional balancing. The 
premise under (B) (constitutional judges operate with a limited 
UP) shall be considered as an empirical thesis, but it has not been 
proved and, in all frankness, I think that is completely false:
a) The first-level, or prima facie, normative system that con-
stitutes the ‘bridge’ that connects the legal texts to the specified 
norms is a product of interpretation, which is a discretionary ac-
tivity; b) the Master System is created through legal construction 
starting from a set of legal texts that, in most cases, have almost 
no frame; c) moreover, constitutional judges typically deal with 
hard cases which involve deep interpretive, theoretical and ethi-
cal disagreements; d) sometimes constitutional courts deal with 
individual cases (like in the Spanish amparo, or in other forms of 
direct recourses) but most of the time they deal with general laws 
and, sometimes, with legal texts that are strongly openly textured 
and thus have a wide set of potentially relevant properties, given 
the actual epistemic standards; and e) finally, if we are facing a 
condition of disagreement and our starting point is a macro-sys-
tem or a Master Book constituted by a great number of conflicting 
and highly undetermined explicit norms (as Moreso admits), in 
the specification process of such a system anything goes. It will al-
ways be possible to refine the antecedent in at least two opposite 
ways.
If this is the state of the art, we may conclude that Moreso’s 
balancing, even if it can be justified with a logical pattern, lacks 
rational grounding and ultimately rests on politics, arbitrariness 
and emotions.
3. Professor Alexy : Optimisation requirements  
and weighing formulas
Professor Alexy developed the first version of his famous the-
ory of balancing in 1985
71
. Since then, his theory has been refor-
mulated and specified in the course of time without changing its 
71 
See Robert Alexy, Theorie der Grundrechte (1985), English translation: A Theory of Constitutional 
Rights, Oxford University Press, Oxford, 2002, at 76.
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DIGNITAS n Three theories of judicial balancing: a comparison
fundamental features. Currently, Robert Alexy is considered the 
greatest theorist of judicial balancing in the whole world: his cel-
ebrated “weight formula” has been increasingly used as an argu-
mentative scheme worldwide. Generally speaking, we can qualify 
Alexy’s theory of judicial balancing as eclectic in the following 
sense: using instruments taken from both linguistic analysis and 
the general theory of values he has developed a conception of 
judicial balancing which is essentially normative, but also partly 
descriptive of the methodology in use at the Bundesverfassungs-
gericht; moreover, this third theory of balancing is part of a wider 
doctrine of constitutional rights which embraces a form of moral 
objectivism and builds its ultimate foundations on the pure meta-
physic of an existential-explicative justification. The primary scope 
of Alexy’s theory is to prove the existence of a rational structure of 
balancing.
Professor Alexy inherited at least two distinctions from Ronald 
Dworkin: the distinction between rules and principles, and the 
distinction between hard and easy cases. The German professor 
claims that easy cases can be solved by rules, by means of sub-
sumption, while hard cases must be solved using principles. Rules 
have the property of all-or-nothing applicability: they are defini-
tive commands that can be applicable simply through subsump-
tion; sometimes conflicts between two rules have to be faced, but 
they can be easily solved undermining the validity of one of the 
conflictive rules, or establishing a relationship of exception be-
tween them. By no means can we talk about degrees of legal valid-
ity. On the contrary, principles are necessarily conflictive and they 
are norms requiring that something be realised to the greatest ex-
tent possible considering the factual and legal possibilities; thus 
they are optimisation requirements: i) they can be satisfied to a 
variety of degrees; and ii) they are simply prima facie (or defeasi-
ble) requirements. Judicial balancing consists of determining the 
appropriate degree of satisfaction of a principle in respect to the 
requirements of the other(s)
72
. As we can understand, judicial bal-
ancing is required by the very nature of the principles: these are 
connected with proportionality by a relation of mutual implica-
tion that follows from the definition of principle; balancing is the 
third stage of the proportionality judgement. Then, proportional-
72 
See Robert Alexy, A Theory of Constitutional Rights, cit.
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DIGNITAS n Teorija in filozofija prava
ity (and thus balancing) is conceived as the only possible form of 
application of legal principles
73
.
Robert Alexy considers: (A) the distinction between rules and 
principles; and (B) the necessary connection between propor-
tionality and judicial balancing as the core of what he calls “princi-
ple theory”
74
. In this descriptive-normative theory, balancing is de-
picted as a rational procedure: accordingly, the rationality of this 
process is essentially determined by three different elements: i) 
the objects of balancing: they should be principles (not values or 
interests); ii) the formal structure of the process of weighing prin-
ciples as a mathematic formula; iii) the configuration of balancing 
as the third phase of a more complex form of argumentation, the 
proportionality judgement, whose first two elements (suitability 
and necessity) are also represented as optimisation requirements 
(Pareto efficiency requirements) and as real limitations on judg-
es’ discretion. The primary purpose of Alexy’s theory is to offer a 
conception of judicial balancing as an intellectual activity, which 
can be submitted to rational control. There are good reasons to 
suspect that this aim is determined by a precise ideology: the justi-
fication of a deliberative conception of democracy and a defence 
of the institution of constitutional review.
The German legal philosopher conceives judicial balancing as 
a formal rule which allows a rational mediation between the con-
stitutional system and the objective morality. Hence, he proposes 
a procedural theory of practical reasoning in order to obtain a 
minimum of discursive rationality in the constitutional review. 
Balancing is thus defined as the operation of establishing a rela-
tionship of priority between two conflicting constitutional princi-
ples; this operation generates a conditional norm (a rule) whose 
antecedent is constituted by the conditions of precedence estab-
lished between the two principles; this rule can be obtained using 
the famous ‘weight formula’. Moreover, the product of balancing 
is relative to the concrete case, but can eventually be universal-
ised. Hence, in Alexy’s opinion, the value judgement of balancing 
73 
Id. at 66-69.
74 
See e.g. Robert Alexy, The Construction of Constitutional Rights, in “Law and Ethics of Human Ri-
ghts”, Vol.4 (2010) at 22: «[t]he distinction between rules and principles is at the heart of a theory that 
might be called ‘principles theory.’ The principles theory is the system drawn from the implications 
of the distinction between rules and principles. [...]The debate over the principles theory is, first of 
all, a debate over weighing or balancing—and, therefore, since balancing is the core of the proporti-
onality test, a debate over proportionality analysis.» At 24: «The core of the principles construction 
consists in this necessary connection between constitutional rights and proportionality.»
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DIGNITAS n Three theories of judicial balancing: a comparison
is rational when it consists of the application of a rational rule by 
means of a mathematical formula. The rational rule is called the 
“Law of Balancing” and goes like this: «[t]he greater the degree 
of non-satisfaction of, or detriment to, one principle, the greater 
must be the importance of satisfying the other»
75
. This law is struc-
tured as a three-pronged process: i) the first step is establishing 
the degree of non-satisfaction, or detriment, of the first element; 
ii) the second step is establishing the degree of importance of the 
second element; and iii) the third step is establishing if the im-
portance of the second element justifies the non-satisfaction or 
detriment of the first principle. This process, as we have said (su-
pra), is/should be applied in the third phase of proportionality by 
means of the ‘weighing formula’, which represents the counter-
part to the classical deductive scheme
76
. The core of the weighing 
formula can be represented as follows:
Wi,j C = 
liC
               
ljC 
77
Where: C stands for the properties of the concrete case; I
i 
stands 
for the intensity of the interference with the principle P
i
;
 
I
j
 stands 
for the importance of satisfying the competing principle P
j
; W
i,j 
stands for the concrete weight of the principle whose violation is 
being examined. The concrete weight is the quotient of the for-
mula. The evaluation of the intensity of the interference and of 
the importance of the satisfaction can be realised using a quanti-
tative scale formed by three levels: “light”, “moderate”, “serious”; 
it is possible, (and it is also strongly suggested) to assign numeric 
values to these levels (e.g., 1,2,3). This simple triadic scale can even 
be refined (e.g. we can adopt a double-triadic scale, composed by 
nine different values). The aim of the weighing formula is both to 
obtain some sort of maximisation between two conflictive princi-
ples and to give the best account of legal reasoning (we don’t have 
to forget that Alexy does not believe in the Hume’s Law). Obvious-
ly, Professor Alexy does not think that judges are so freak to weigh 
75 
See Robert Alexy, A Theory of Constitutional Rights, cit. at 102.
76 
See Robert Alexy, On Balancing and Subsumption. A structural Comparison, in “Ratio Juris”, No.16 
(2003) 433, at 448. 
77 
In this formula two orders of variables are still lacking: the abstract weights of the competing prin-
ciples and the variables for the reliability of the empirical assumption concerning what the measure 
in question means in the concrete case for realisation/non-realisation of the principles at stake. As 
Giorgio Pino has pointed out, the role played by the abstract weight of the principles is really obscu-
re. See Giorgio Pino, Diritti e Interpretazione, cit. at 194-199.
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DIGNITAS n Teorija in filozofija prava
the constitutional principles using a calculator; nonetheless he is 
still convinced that this is the best possible explication of judicial 
balancing. This third theory is a paradigmatic case of procedural 
theory of balancing: judicial balancing is an operation that can be 
rationally justified and should be rationally justified from a formal 
point of view.
The products of balancing, in Robert Alexy’s account, are de-
feasible norms: they establish an axiological order which is valid 
for the specific case, since it is denied that is possible to obtain 
a hierarchy that answers to all possible cases a priori. However, 
according to Robert Alexy’s, this does not mean that we cannot 
get, after a long series of ad hoc balancing operations, a system of 
rules which are the specification of the meaning-contents of the 
constitutional norms. For this reason, his theory can be consid-
ered as an attempt to mediate between universalism and particu-
larism. A few words ought to be made regarding this. Professor 
Alexy maintains that the universalisation principle is compatible 
with a form of weak particularism: he gives a full account of the 
principle of universalisation in his theory of legal argumentation: 
he takes from Hare the idea that evaluative propositions share this 
principle with descriptive propositions, thanks to the descriptive 
component present in their meaning; then he promotes univer-
salisation as a rule of practical discourse in general and, consider-
ing legal discourse as a sphere of practical discourse, he extends 
this thesis to the latter. This considered, we will commit ourselves 
to affirming that Alexy is virtually universalist.
We can clearly see that in Alexy’s account the law of balancing 
seems to entail the operation we have called “concretisation” (su-
pra), in spite of Alexy’s reluctance to use this word; this reticence 
is due to important reasons: in Alexy’s account, we can never con-
ceive “derivative constitutional rights norms”
78
 as a concretisation 
of one (prevailing) constitutional principle; they are always the 
concretisation of two principles since they are rules whose an-
tecedents are constituted by the relation of precedence between 
the principles. Professor Alexy clearly considers the statement 
that principles are “reasons for rules and only reasons for rules” as 
78 
See e.g. Robert Alexy, A Theory of Constitutional Rights, cit. at 56: «[…] the result of every correct ba-
lancing of constitutional rights can be formulated in terms of a derivative constitutional rights norm 
in the form of a rule under which the case can be subsumed» on the same page, a couple of lines 
before: «A derivative constitutional rights norm is a norm for whose derivation correct constitutional 
justification is possible.»
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DIGNITAS n Three theories of judicial balancing: a comparison
a possible criterion to distinguish principles from rules
79
, but he 
explicitly rejects its plausibility on a purely normative basis, con-
sidering that it merely provides a parameter for a distinction of 
degree: using this criterion, we are forced to admit, on one hand, 
that sometimes also norms which are (or can be) considered as 
rules are reasons for norms and, on the other, that sometimes 
norms which are considered as principles are (or can be) directly 
used as conclusive reasons for concrete ought-judgements. This 
could be a starting point for justifying the claim that there is a 
discretionary power to consider constitutional norms as either 
principles or rules, and that this power belongs to the interpreter. 
Nevertheless, he admits that this distinction makes a good point, 
capturing the fact that principles never express a definitive right, 
just a prima facie right. However, as we have seen, he considers 
that the only way to obtain a definitive constitutional right is to 
go through a process of balancing
80
. To sum up, he thinks that 
the criterion based on concretisation only introduces a distinc-
tion of degree; thus, concretisation without balancing is impos-
sible in the principle-model, by definition: we always concretise 
the relation of precedence between the two principles, and never 
just one of the two. Accordingly, we can conclude that in Alexy’s 
axiomatic view, a concretisation without balancing would be con-
sidered an operation that belongs to the “model of rules” for a 
norm specified without balancing does not match the definition 
of principle. We can anticipate that the problem of this account is 
that it does not capture all aspects of judicial construction from 
principles: as we have seen (supra) it is conceptually possible to 
separate concretisation from balancing and most of the time our 
courts concretise principles without balancing. Obviously, if we 
use this criterion the distinction between principles and rules will 
just be a distinction of degree, but we should not forget that also 
non-dichotomous distinctions have an important heuristic func-
tion.
We should not forget that, in Robert Alexy’s account, human 
rights need balancing because they have the structure of princi-
ple-norms. Therefore, judicial balancing plays a key role in the jus-
tification of human rights. In Alexy’s account, the existence of hu-
man rights qua moral rights depends entirely on their justifiability, 
79 
Robert Alexy, A Theory of Constitutional Rights, cit. at 59.
80 
Id. at 50. 
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DIGNITAS n Teorija in filozofija prava
and on nothing else. In such a construction, the justification of hu-
man rights implies a certain degree of flexibility – in order to deal 
with the problem of disagreements – but, accordingly, flexibility 
is considered by no means arbitrariness. However, it seems quite 
evident that the “weighing formula” is just a procedural constraint 
(I would rather say, like Giorgio Pino, an empty formula
81
) which 
does not have any substantive implication: it just gives an argu-
mentative structure that is not enough to identify the correctness 
of the answer and to significantly constrain any value judgement: 
in other words, it offers no guidance in the process of assigning 
values to the elements I
j 
and I
i 
of the formula. On some occasions, 
Robert Alexy even seemed willing to accept the conclusion that 
judicial balancing is just a procedural formula that is in no way 
sufficient to get just one right answer, or a precise answer
82
. What 
he claims is that this is no good reason to say that it is irrational or 
completely arbitrary. It is not a good reason to call it irrational be-
cause, if we accept that the syllogistic reasoning (which is also an 
empty formula) is rational, we should also admit that his “weighing 
formula” has the same degree of rationality: subsumption works 
according to the rules of logic, while balancing follows the rules 
of arithmetic
83
. Further, the presence of quantitative elements in 
the procedure makes it even more rational. The products of judi-
cial balancing are also not to be considered completely arbitrary, 
because they are generally accepted by the community: pure 
objectivity can only be obtained at an ideal level, but in the real 
world we can content ourselves with inter-subjectivity, defined by 
the German author as a ‘weak’ form of objectivity. Frankly, I do 
not see any good reason to define “inter-subjectivity” as a kind of 
objectivity.
I will not underline any of the great merits of this third theory of 
balancing: they are universally recognised and really well-known 
worldwide. I will just express a couple of doubts.
1. In A Theory of Constitutional Rights Robert Alexy explicit-
81 
Giorgio Pino, Diritti e Interpretazione, cit., at 194-199.
82 
See e.g. Robert Alexy, The Construction of Constitutional Rights, cit., footnote 41 at 32: «As an in-
ferential scheme expressed by the weight formula, balancing is a formal structure that contains, as 
such, no substance whatever. The application of a Weight Formula, however, requires that content 
– made explicit by judgements about the intensity of interference, abstract weight and the reliability 
of empirical assumptions – is substituted for the variables of the weight formula. For this reason one 
can say that balancing is procedurally substantive.» 
83 
See Carlos Bernal Pulido, The Rationality of Balancing, in “Archiv für Rechts und Sozialphilosophie” 
Vol. 92 No. 2 (2006) 71.
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DIGNITAS n Three theories of judicial balancing: a comparison
ly proposed a strong distinction between rules and principles
84
. 
However, I am not really sure that Robert Alexy still maintains this 
claim, at least in the clearly descriptive part of his theory. His po-
sition seems to have somehow altered in the last few years. For 
example, consider the following passage.
There are two main constructions of constitutional rights: one 
is narrow and strict, a second, is broad and comprehensive. The 
first of these can be called the rule construction, the second, the 
principles construction. These two constructions are nowhere re-
alized in pure form, but they represent different tendencies and 
the question of which one of them is better is a central question 
of the interpretation of every constitution that provides for con-
stitutional review
85
.
2. This rationalist theory of balancing lacks a fundamental dis-
tinction: the establishment of a conditioned priority order be-
tween the principles is something that should be conceptually 
separated from the justification of this process. These are very dif-
ferent things, which are sometimes confused in Professor Alexy’s 
account. The fact that a decision is a posteriori rationally justified 
does not necessarily imply that it has been taken using a rational 
procedure.
3. Again – if we want to universalise the product of a balancing 
operation we will have to face all the problems that as we have 
seen (supra) – frustrate the thesis of relevance and that cause the 
impossibility to obtain indefeasible rules and judgements all-
things-considered stricto sensu. However, Robert Alexy is fully 
aware of this problem
86
.
4. It is not really clear if the “weighing formula” is just an ex-
plicative metaphor or if it is also a real normative proposal. If it 
is simply a metaphor, I would say that it is a strange metaphor 
indeed: perhaps, using complicated formulas and economic prin-
ciples to describe legal reasoning is not the best way to provide an 
‘explicative’ account, unless the auditorium is filled with econo-
mists and mathematics. If it is not just a metaphor, then I wonder 
why the German professor thinks that the weighing formula is the 
best way to obtain maximisation between two constitutional prin-
84 
See Robert Alexy, A Theory of Constitutional Rights, cit. at 47.
85 
See Robert Alexy, On Balancing and Subsumption, cit. at 131-132.
86 
See Robert Alexy, A Theory of Constitutional Rights, cit. at 8: «But on contrary to what Dworkin says, 
the exceptions incorporated into rules on the basis of principles are unquantifiable in theory as well. 
One can never be sure that in some new case a new exception should not be created.»
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92
DIGNITAS n Teorija in filozofija prava
ciples. Would it not be better to use a Kaldor-Hicks scale, or to use 
principles as a vector of actions and not arithmetic values in the 
formula
87
?
By the way, I think that my exegetic doubts on this point are 
determined by the exclusion of the Great Division from Robert 
Alexy’s epistemology
88
.
5. As we have seen, the “weighing formula” offers just an ar-
gumentative or (at most) a procedural scheme, while the rest of 
Alexy’s theory does not offer any substantive parameter in order 
to constrain the attribution of values to the principles at stake or 
to establish the correctness of the outcome. In other words, if a 
judge uses such a formula he can easily justify whatever norm he 
wishes to produce; the only limit on the judge’s discretion seems 
to stem from the political and social constraints given by a (pos-
sible!) inter-subjective agreement. Where has Alexy’s objectivism 
gone? The thesis of the emotional nature of value judgements is 
never rejected, at least in his defences of the proportionality prin-
ciple. Elsewhere the sceptical account of value judgements has 
been contested by Alexy, but on the purely metaphysical basis of 
an explicative-existential argument
89
.
6. It has been widely demonstrated that two elements do not 
have to be commensurable in order to be compared since it is 
possible to express a quantitative and not a qualitative prefer-
ence
90
 and thus realise an ordinal rather than a cardinal ranking. 
87 
See Jean Baptiste-Pointel, Balancing in a Vector Space, Special Workshop “Legal Reasoning: the 
Methods of Balancing”, XXIV IVR World Congress, Beijing, 15-20 September 2009. 
88 
See at least Mauro Barberis, Manuale di filosofia del diritto, Giappichelli, Torino, 2011, 53-62.
89 
Moral scepticism has been attacked by Robert Alexy in a recent attempt to justify the existence of 
human rights (a plenary lecture at the XXV IVR World Congress, 14-20 August 2011, Frankfurt). Robert 
Alexy claimed that the need to solve conflicts requires a strong interest in correctness, which is con-
nected with a fundamental decision: whether we want to see ourselves as discursive or reasonable 
creatures. This is a fundamental decision and ultimately an existential decision since it is a decision 
about who we are. This decision it is not drawn from nowhere. It has the character of the endorse-
ment of something that has been proven, by means of explication, to be a capability necessarily con-
nected with human beings or, in other words, the existential argument is intrinsically connected to 
the explicative argument. “The explicative-existential justification connects objective with subjective 
elements. Objectivity connected with subjectivity is, to be sure, less than pure objectivity, but it is also 
more than pure subjectivity. If one adds to this the assumption that a purely objective justification of 
Human Rights is not possible, one has good reasons to qualify the explicative-existential argument 
qua objective-subjective argument as a justification of HR. This justification suffices to establish 
the validity of HR as moral rights, which is to say that HR exist.” The existential argument concerns 
endorsement to define our highest vocations (Kant), while the connection objective/subjective is 
essentially dialectic. 
90 
See Ruth Chang, Introduction, in R. Chang (ed.), Incommensurability, Incomparability, and Practical 
Reason, Cambridge (Mass.), Harvard University Press, Harvard 1997, 1-34; Kenneth J. Arrow, Some 
Ordinalist-Utilitarian Notes on Rawls’ Theory of Justice, in “Journal of Philosophy”, Vol. 70 No. 9, 
245-263; all the ordinalist literature in general – a nice excursus on the ordinalist revolution can be 
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DIGNITAS n Three theories of judicial balancing: a comparison
Moreover: i) it is not true that “more precise” is always equivalent 
to “best”; ii) the idea that is possible to quantify values is highly 
controversial; iii) the idea of assigning a numeric value to a (more 
or less) abstract principle or to a right sounds really odd. Once we 
have reached these conclusions, why do we have to stick to the 
idea of commensurability?
7. It seems to me that if judicial balancing becomes part of the 
definition of the concept of constitutional principles, the theory 
risks losing an important part of its explicative potential. As we 
have seen, norms that are generally qualified as constitutional 
principles (including by Professor Alexy) are generally applied 
even without a weighing process, by means of mere concretisa-
tion. What is needed is a model of principles that is built around 
concretisation, not around weighing. Such a model has been pre-
figured in the theory of Riccardo Guastini, as we have seen and, 
even more explicitly, in some recent works by Professor Barberis 
(supra). Once we have realised that judicial balancing is not in-
compatible with subsumption, we can see that the fundamental 
question about principles is how they get to individualisation. 
Considered this, judicial balancing should then be considered not 
as a definitional property of constitutional principles but as an 
independent meta-norm. Probably the main characteristic (and 
maybe the definitional feature) of principles is that they need con-
cretisation in order to be applied, and maybe this can also offer a 
good criterion to draw a distinction between principles and rules, 
provided that we want to keep it.
 
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