In the model of autonomous reasoning, balancing is the characteristic form of normative argumentation. However, in legal argumentation, it seems complimentary, whilst the usual method is that of interpretation within a syllogistic structure of subsumption and deduction. The issue of legal argumentation is to identify a legally valid norm and then interpret and apply it to a particular case. One starts with a statement of the legal norm to be applied. The interpretation aims not at establishing the definitive validity of a norm, but at the explication of the meaning of a norm. In contrast, balancing presupposes a conflict of normative demands, and the issue is to determine which norm is definitively valid regarding this conflict in the circumstances of the particular case. Balancing is required only when the definitive validity of a norm is contested. This might be the case, for example, for reasons of constitutional law in the balancing of fundamental rights, but also in the frame of interpretation, where different interpretive arguments compete.

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Balancing and Interpretation

  • Jan-R. Sieckmann

摘要

In the model of autonomous reasoning, balancing is the characteristic form of normative argumentation. However, in legal argumentation, it seems complimentary, whilst the usual method is that of interpretation within a syllogistic structure of subsumption and deduction. The issue of legal argumentation is to identify a legally valid norm and then interpret and apply it to a particular case. One starts with a statement of the legal norm to be applied. The interpretation aims not at establishing the definitive validity of a norm, but at the explication of the meaning of a norm. In contrast, balancing presupposes a conflict of normative demands, and the issue is to determine which norm is definitively valid regarding this conflict in the circumstances of the particular case. Balancing is required only when the definitive validity of a norm is contested. This might be the case, for example, for reasons of constitutional law in the balancing of fundamental rights, but also in the frame of interpretation, where different interpretive arguments compete.