Susanna Pozzolo

Some Observations on the Standard Balancing Theory

  • Abstract

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Keywords: Balancing, Rights, Guarantees, Dignity, Equality.

This article proposes a critical reading of the balancing theory in its (simplified) standard version, which is the most widespread among jurists. It underlines the centrality of the architectural shape for the constitutional guarantees and warns about the problematic aspects of the method when it assumes the equal weight of each principle at its abstract level. The work wants to highlight the problematic effects for the hierarchical principle itself, milestone of modern legal architecture, and it warns about the resulting weakening for the constitutional perspective, especially for the equality principle, other pillar of the system, because the rights no longer act in an anti-utilitarian function. To address this constitutional risk, the work suggests a corrective approach to principles, arguing in support of the introduction of necessary (basic) hierarchies.

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