Balancing as a Legal Method: What It Is and How (Not) to Do It

Abstract

The balancing metaphor is ubiquitous in law, from the scales of Justice to the test of the balance of probabilities. In this paper, I distinguish two competing ways in which the balancing metaphor in law can be unpacked: the physics model and the equilibrium model. I argue, against the physics model, that it is either pernicious, or inaccurate. The equilibrium model, by contrast, is superior, placing emphasis on the values of equality and fairness as determinants of judicial outcomes. The role of courts is not to quantify comparatively some property of the litigants' circumstances (e.g. the significance of their interests) as argued by Alexy and others, but to judge normatively what the values of equality and fairness require in the case at hand. Properly understood, balancing is a reference to the duty of courts to treat litigants as equals, achieving a moral equilibrium.

Keywords: balancing, Robert Alexy, fundamental rights, conflict of rights, incommensurability, interests, proportionality, legal methodology, Ronald Dworkin, Jurgen Habermas