Balancing Within or Without the Hierarchy: Intra- and Inter-Legal Reasoning from a Participant’s Perspective
摘要
The possibility of balancing in the intra-system and in the inter-systems of law, or ‘inter-legality’, are two co-related questions. The rational structure of balancing in general is explicated by the modern principles theory by Dworkin and Alexy, which was and is still being confronted with the influential argument from hierarchy (Stufenbau) already initiated by Merkl and Kelsen. The above questions would then be reformulated to discuss the possibility of balancing (with)in the hierarchy and that of balancing without the hierarchy. The notions of hierarchy are, however, to be divided into the hierarchy of conditions and the hierarchy of derogation (and even the hierarchy of applicability regarding the temporal dimension of law). Based on the formal notion of a hierarchy of conditions, one should further change into a participant’s perspective so as to ‘harmonize’ the argument from principles and the argument from hierarchy. The intra-legal balancing (with)in the hierarchy could be construed through the epistemic justification model of formal principles, other than competence-based models. The inter-legal balancing is not to be operated without a hierarchy of conditions, and it is the epistemic (un)certainty that matters behind the concordance of competences.