Once it was understood that conflicts of norms unsolvable by norms of conflicts are unavoidably subject to balancing, this specific intellectual operation carried out in the application of law unsurprisingly gained a prominent place in legal science. Yet, the term “balancing” tends to be used with some ambiguity and, for such reason, there is still considerable clarification to be made, not only on which is the content of balancing and on what is its object, but also about its normative conditions and regarding how it is usually regulated (if and when it is). Accordingly, the present chapter aims both to describe the more undisputed aspects of balancing and to advance some explanations for the more controversial questions raised by this ultimate way of solving normative conflicts.

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Balancing and Proportionality: What, When, and How

  • David Duarte

摘要

Once it was understood that conflicts of norms unsolvable by norms of conflicts are unavoidably subject to balancing, this specific intellectual operation carried out in the application of law unsurprisingly gained a prominent place in legal science. Yet, the term “balancing” tends to be used with some ambiguity and, for such reason, there is still considerable clarification to be made, not only on which is the content of balancing and on what is its object, but also about its normative conditions and regarding how it is usually regulated (if and when it is). Accordingly, the present chapter aims both to describe the more undisputed aspects of balancing and to advance some explanations for the more controversial questions raised by this ultimate way of solving normative conflicts.