Robert Alexy’s balancing: Why not?

Abstract

Robert Alexy presents his peculiar theory of principles, especially the instrument of balancing, as a mechanism to combat judicial arbitrariness. This article investigates the powers granted to the judge by Alexy’s balancing operation: power to assign weight to the “importance” of legal goods and rights in balancing; power to discover ‘principles’ to be balanced; power to assign meaning to the normative text in order to form the input of balancing; power to identify the presence in the concrete case of a constitutional right, in order to use balancing even in cases in which the legislator has established a ‘rule’. The conclusion is that Alexy’s balancing is not a legitimate possibility in a Rule of Law, because it makes no claim to control the practically absolute powers granted to judges.