A Non-Positivistic Concept of Constitutional Rights

Robert Alexy

I. “Undermoralization” and “Overmoralization”

One of the numerous objections raised against principles theory is that the

relation between constitutional rights and morality, and between legal and moral

argumentation, as established by the theory is mistaken. This objection appears

in two altogether different versions. The first version claims that principles

theory contains too little morality, the second that it includes too much. The first

version can be called the “objection of undermoralization”, the second, the

“objection of overmoralization”.

Kai Möller represents the objection of undermoralization.1 Möller argues

“that rather than balancing the two competing principles, we must make a moral

argument as to which one takes priority”.2 This necessity of moral argument is

said to be “a blow to Alexy`s approach, which focuses on balancing

straightaway”.3 In his book, The Global Model of Constitutional Rights, he

characterizes his theory as a “substantive moral approach”, which, as such, “can

be contrasted with a formal theory such as Robert Alexy’s … theory of rights as

principles or optimization requirements”.4 In short, principles theory is said to be

merely formal because it lacks any substantive moral content. The objection of

overmoralization maintains just the opposite. Birgit Reese represents this

objection. In her book Die Verfassung des Grundgesetzes, published in 2013, in

1 See also Stavros Tsakyrakis, “Proportionality: An assault on human rights?”, in: International Journal of Constitutional Law 7 (2009), 474: “totally extraneous to any moral reasoning”.2 Kai Möller, “Balancing and the structure of constitutional rights”, in: International Journal of Constitutional Law 5 (2007), 460. 3 Ibid.4 Kai Möller, The Global Model of Constitutional Rights (Oxford: Oxford University Press, 2012), 1-2 (emphasis in original).

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English: The Constitution of the Basic Law, she aptly remarks “that principles

theory is embedded in a procedural moral philosophy and a non-positivistic

concept of law, and, for this reason, it amounts to a connection between law and

morality”.5 This, however, leads to unacceptable threats to the “normativity of

the constitution”,6 to the “rationality of decisions”,7 and, finally, to democracy.8

Where one is confronted with two opposed theories, it is often the case that

one is correct and the other is mistaken. Here, however, the matter at hand is

whether both theses, that of undermoralization and that of overmoralization, are

false. This will be the case, if principles theory succeeds in setting constitutional

rights and morality in a correct relation. This thesis, which can be termed the

“thesis of adequate moralization” and which expresses a non-positivistic

conception of constitutional rights, shall be defended here. Along the way to its

substantiation, first, some basic elements of principles theory shall be

introduced. In a second step, the nature of constitutional rights will be taken up.

As a third and last step, an analysis of constitutional rights argumentation shall

follow.

II. Basic Elements of Principles Theory

1. Rules and Principles

The basis of principles theory is the norm-theoretic distinction between rules

and principles.9 Rules are norms that require something determinate. They are

definitive commands. Their form of application is subsumption. By contrast,

principles are optimization requirements. As such, they demand “that something

be realized to the greatest extent possible given the legal and factual

5 Birgit Reese, Die Verfassung des Grundgesetzes (Berlin: Duncker & Humblot, 2013),115 (trans. R. A.).6 Ibid.,15.7 Ibid.,138.8 Ibid., 250.9 Robert Alexy, A Theory of Constitutional Rights (first publ. 1985), trans. Julian Rivers (Oxford: Oxford University Press, 2002), 47-8.

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possibilities”.10 Rules aside, the legal possibilities are determined essentially by

opposing principles. For this reason, principles, each taken alone, always

comprise merely prima facie requirements. The determination of the appropriate

degree of satisfaction of one principle relative to the requirements of other

principles is brought about by means of balancing. Thus, balancing is the

specific form of application of principles.

2. Proportionality

The nature of principles as optimization requirements leads straightaway to a

necessary connection between principles and proportionality. The principle of

proportionality, which in the last couples of decades has received ever more

international recognition in the practice and theory of constitutional review,11

consists of three sub-principles: the principles of suitability, of necessity, and of

proportionality in the narrower sense. All three sub-principles express the idea

of optimization. For this reason, the nature of principles implies the principle of

proportionality and vice-versa.

a) Suitability

The principles of suitability and necessity refer to optimization relative to the

factual possibilities. If a means M, adopted to promote principle P1 is not suited

to this purpose but rather obstructs the realization of P2, the factual possibility

exists of omitting M without any cost either to P1 or to P2. Thus, the

optimization of P1 and P2, taken together, proscribes the use of M.

b) Necessity

Something similar but more complicated applies in the case of the principle of

necessity. If there exists, alongside M1, another means M2, which, broadly

10 Ibid., 47.11 See, for instance, David M. Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004); Alec Stone Sweet and Jud Mathews, “Proportionalitiy Balancing and Global Constitutionalism”, Columbia Journal of Transnational Law 47 (2008),72-164; Aharon Barak, Poportionality. Constitutional Rights and their Limitation (Cambridge: Cambridge University Press, 2012).

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speaking, is equally suited to promoting P1, but interferes less intensively with

P2, then the optimization of P1 and P2, taken together, proscribes the use of the

means M1, which interferes more intensively with P2 without being necessary to

the realization of P1. Suitability and necessity both concern the question of

whether one position can be improved without detriment to the other, that is, of

whether costs can be avoided without giving rise to new costs at another point.

Thus, the first two sub-principles are an expression of the idea of Pareto-

optimality.

c) Proportionality in the narrower sense

Optimization relative to the factual possibilities consists in avoiding avoidable

costs. Costs, however, are unavoidable when principles collide. Balancing then

becomes necessary. Balancing is the subject of the third sub-principle of the

principle of proportionality, the principle of proportionality in the narrower

sense. This principle expresses what optimization relative to the legal

possibilities means. It is identical with a rule that can be called “law of

balancing”.12 It states:

The greater the degree of non-satisfaction of, or detriment to, one principle, the greater

must be the importance of satisfying the other.

The law of balancing excludes, inter alia, an intensive interference with

principle P1 that can only be justified by assigning a low importance to the

satisfaction of the colliding principle P2. To allow the interference under these

conditions would not be an optimization of P1 together with P2.

3. Weight Formula

Nearly everywhere in constitutional adjudication, the law of balancing is found

in various different formulations. It expresses the essence of balancing and is of

great practical importance. If, however, one wishes to achieve a precise and

12 Alexy, A Theory of Constitutional Rights (n. 9 above), 102.

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complete analysis of the structure of balancing, the law of balancing has to be

elaborated further. The result of such a further elaboration is the weight

formula.13 It runs as follows:

Wi,j represents the concrete weight of the principle Pi relative to the colliding

principle Pj. The weight formula defines this concrete weight as the quotient of

three factors standing, so to speak, on each side of balancing. Ii and Ij are of

special importance. Ii stands for the intensity of interference with Pi. Ij represents

the importance of satisfying the colliding principle. Ij, too, can be understood as

intensity of interference, that is, as the intensity of interference with Pj through

non-interference with Pi. Wi and Wj stand for the abstract weights of the

colliding principles Pi and Pj. When the abstract weights are equal, which is

often the case in collisions between constitutional rights, they cancel each other

out. Ri and Rj represent two factors that have received ever greater attention in

recent discussions on constitutional rights. They refer to the reliability of the

empirical and normative assumptions concerning the question of how intensive

the interference with Pi is, and how intensive the interference with Pj would be if

the interference with Pi were omitted. This is a factor that does not refer to the

things, that is, it is not an ontic factor. Rather, it is a factor that refers to

knowledge, that is, it is an epistemic factor. Beyond that, the reliability of the

normative assumptions can also relate to the classification of the abstract

weights, that is, to Wi and Wj.

A formula like the weight formula, which expresses a quotient of two

products, is sensible only if all of the factors can be represented by numbers.

This is the problem of graduation. Elsewhere,14 I have proposed a discrete, that

is, a non-continuous triadic scale, in which geometric sequences are

13Robert Alexy, “The Weight Formula”, in: Jerzy Stelmach, Bartosz Brożek, and Wojciech Załuski (eds.), Frontiers of the Economic Analysis of Law (Krakow: Jagiellonian University Press, 2007), 25. 14 Ibid., 20-6.

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implemented. This scale assigns the values “light”, “moderate”, and “serious” to

the intensity of interference and to the abstract weights. These values are

expressed by the numbers 20, 21, and 22, that is, by 1, 2, and 4. Where the

epistemic side is concerned, that is, Ri and Rj, one can work with the stages

“certain”, “plausible”, and “not evidently false”, to which the numbers 20, 2-1,

and 2-2, that is, 1, ½, and ¼, are to be assigned.15 By means of these triads, most

of the decisions of constitutional courts can be grasped. Where they do not

suffice, that is, where one has to introduce still more attenuated graduations,

they can be extended to double-triadic scales.16

Jesteadt has argued against the weight formula on the ground that it “holds

out the promise of a degree of certainty and precision in application which it is

quite unable to keep”.17 “[I]ts claimed, or at least implied, precision is revealed

to be a mere illusion, a methodological chimera”.18 Tsakyrakis speaks of “the

myth of mathematical precision”, which must be rejected where “judicial

reasoning” is concerned.19 And, just to mention a third voice, Somek objects that

the balancing model of principles theory does not go beyond “an analytically

careful formalization of moral intuitionism”.20 These objections boil down to the

reproach that the weight formula raises claims it cannot fulfill. In order to

examine whether this is true, and to consider what the weight formula means for

the relation between constitutional rights and morality, the initial question that

arises is: What are constitutional rights?

III. The Dual Nature of Constitutional Rights

1. Positivistic and Non-positivistic Conceptions of Constitutional Rights

15 Ibid., 25. 16 Ibid., 22-3.17 Matthias Jestaedt, “The Doctrine of Balancing – its Strengths and Weaknesses”, in: Matthias Klatt (ed.), Institutionalized Reason. The Jurisprudence of Robert Alexy (Oxford: Oxford University Press, 2012), 163.18 Ibid., 165.19 Tsakyrakis, “Proportionality: An assault on human rights?“ (n. 2 above), 472.20 Alexander Somek, Rechtliches Wissen (Frankfurt: Suhrkamp, 2006), 135.

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There are two fundamentally different conceptions of the nature of constitutional

rights: a positivistic conception and a non-positivistic conception. According to

both, constitutional rights are part of the positive law. The difference is that in

the positivistic conception constitutional rights are only or exclusively positive

law, whereas in the non-positivistic conception positivity represents but one side

of constitutional rights, that is to say, their real or factual side. Over and above

this, constitutional rights, according to the non-positivistic conception, also have

an ideal or critical dimension. This is not without reason. For as with all law,21

constitutional rights necessarily raise a claim to correctness. This claim to

correctness leads to a necessary connection between constitutional rights and

human rights, and it is in precisely this connection that the dual nature of

constitutional rights consists.

2. Human Rights as Moral Rights

Human rights are characterized by five properties. They are, first, moral, second,

universal, third, fundamental, and, forth, abstract rights, that, fifth, with respect

to their moral validity, take priority over all other norms. Here only the first of

these five properties is of interest: the moral character of human rights.

The moral character of human rights consists in their having, qua moral

rights, only moral validity. A right is morally valid if it can be justified. Rights

exist if they are valid. Thus, the existence of human rights depends on their

justifiability, and on nothing else.22 What is justifiable is correct. This means that

the claim to correctness raised by catalogues of constitutional rights qua positive

law necessarily refers to human rights qua correct law. With this, the real

dimension of constitutional rights is necessarily connected with an ideal

dimension.

21 Robert Alexy, The Argument from Injustice. A Reply to Legal Positivism (Oxford: Clarendon Press, 2002), 35-9.22 Robert Alexy, “The Existence of Human Rights”, in: Archives for Philosophy of Law and Social Philosophy, supplement 136 (2013), 11.

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To be sure, the moral validity of human rights can be accompanied by

positive validity. Examples are not only the catalogues of rights in constitutions,

but also international and supranational covenants or conventions of human

rights. But such transformations of human rights into positive law never count as

ultimate solutions. They are attempts to give institutional shape, secured by

positive law, to what is valid solely owing to its correctness.

3. Three Objections against the Dual Nature Thesis

a) Claim to correctness

Three objections have been raised against the thesis about the dual nature of

constitutional rights. The first denies that law necessarily raises a claim to

correctness. I have attempted to reply to this objection with the argument that

the explicit negation of this claim leads to a contradiction.23 This, however,

cannot be discussed here.24

b) The existence of human rights

The second objection contests the existence of human rights. It is, so the

objection runs, not possible to justify human rights. To be sure, it is possible to

believe in them, to profess them – and this leads, if many are engaged in this

way, indeed, to a certain social validity, but social validity of this nature is no

justification, even if it be connected with social pressure. The mere fact that

ideologies, illusions, and errors, too, can acquire social validity shows that social

validity cannot be equated with justification or correctness.

23 Alexy, The Argument from Injustice (n. 21 above), 36-9.24 See on this Eugenio Bulygin, „Alexy und das Richtigkeitsargument“, in: Aulis Aarnio, Stanley L. Paulsen, Ota Weinberger, Georg Hendrik von Wright, and Dieter Wyduckel (eds.), Rechtsnorm und Rechtswirklichkeit. Festschrift für Werner Krawietz (Berlin: Duncker & Humblot, 1993), 19-24; Robert Alexy, „Bulygins Kritik des Richtigkeitsarguments“, in: Ernesto Garzón Valdés, Werner Krawietz, Georg Hendrik von Wright, and Ruth Zimmerling (eds.), Normative Systems in Legal and Moral Theory. Festschrift for Carlos E. Alchourrón and Eugenio Bulygin (Berlin: Duncker & Humblot, 1997), 235-50; Eugenio Bulygin, “Alexy’s Thesis of the Necessary Connection between Law and Morality”, in: Ratio Juris 13 (2000), 133-7; Robert Alexy, “On the Thesis of a Necessary Connection between Law and Morality: Bulygin`s Critique”, in: Ratio Juris 13 (2000), 138-47; Eugenio Bulygin, “Alexy Between Positivism and Non-positivism”, in Jordi Ferrer Beltrán, José Juan Moreso, and Diego M. Papayannis (eds.), Neutrality and Theory of Law (Dordrecht: Springer, 2013), 49-59; Robert Alexy, “Between Positivism and Non-Positivism? A Third Reply to Eugenio Bulygin”, in: Jordi Ferrer Beltrán, José Juan Moreso, and Diego M. Papayannis (eds.), Neutrality and Theory of Law (Dordrecht: Springer, 2013), 225-38.

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The objection of non-existence for reason of unjustifiability can only be

countered with a justification of human rights. The multifarious attempts to

justify human rights can be divided into eight groups: religious, biological,

intuitionistic, consensual, instrumental, cultural, explicative, and existential

justifications.25 Here, I will confine myself to an explicative-existential

justification, arguing that this justification is possible. The explicative part of

this justification consists of an analysis of the discursive practice, that is to say,

the practice of asserting, asking, and arguing. This practice necessarily

presupposes rules and principles, which give expression to the ideas of freedom

and equality of the participants to the discourse.26 The explicative argument,

however, leads only to freedom and equality as capabilities or possibilities.

Thus, it stands in need of being complemented by an interest in making use of

this capability. This interest is the interest in correctness. At this point, the

existential argument enters the stage. It concerns a decision, not an arbitrary or

groundless decision but an endorsement of a necessary possibility or capability

that defines the ideal dimension of human beings, and, with this, to put it in

Kantian terms, our “highest vocation”.27 This justification raises, without any

doubt, many questions. This rough sketch, however, must suffice here.28

c) The positivity of constitutional rights

Here, the third objection shall be in the foreground of the discussion. It

maintains that to add an ideal dimension to the real dimension of constitutional

rights would destroy their positivity. The positivity of constitutional rights is,

however, a necessary condition of the institutionalization and, with this, the

realization of human rights. For this reason, the positivity of constitutional rights

is a postulate entailed by human rights. In so far, a connection of constitutional

25 Alexy, “The Existence of Human Rights” (n. 22 above), 13-8.26 Ibid., 15-6.27 Immanuel Kant, Critique of Practical Reason (first publ. 1788), trans. Mary J. Gregor, in: Kant, Practical Philosophy (Cambridge: Cambridge University Press, 1996), 210.28 For a more thorough account, see Alexy, “The Existence of Human Rights“ (n. 22 above), 15-8.

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rights and human rights would contradict essential requirements of human

rights.

This objection is a central point of the overmoralization thesis. It would be

correct if the connection of constitutional rights with human rights were, indeed,

to destroy the positivity of constitutional rights. This, however, is not the case.

The dual nature thesis is not confined to the demand that both the real and the

ideal dimension have to be taken seriously in constitutional rights

argumentation. It requires, over and above this, that the positive or authoritative

dimension of constitutional rights has prima facie priority.29 From the point of

view of the overmoralization thesis, the objection has been raised to this that a

prima facie precedence does not exclude “that the level of principles always

prevails over the rules of statutory law and also over those of constitutional

law”.30

The reply to this is that a prima facie priority is a genuine priority that

excludes that the ideal “always”31 prevails over the real. A prima facie priority

of the real or positive imposes a burden of argumentation for each deviation

from what is settled by positive law. It does not suffice to adduce material or

substantive reasons that weigh more heavily than the reasons that speak on

behalf of the determinations of positive law. In addition, the formal principle of

the authority of the constitution would have to be repelled. There are numerous

cases in which this is not possible. Examples are the abolishment of death

penalty in article 102 German Basic Law and the prohibition of torture in article

104 (1) (2) German Basic Law. On the other hand, there exist cases in which the

correctness of the decision on the constitutional right in question requires the

constitutional court to go beyond the wording of the constitution or even to

decide against it. An example of the first of these instances is the decision of the

29 Alexy, A Theory of Constitutional Rights (n. 9 above), 82-4; see also Robert Alexy, A Theory of Legal Argumentation (first publ. 1978) trans. Ruth Adler and Neil MacCormick (Oxford: Clarendon Press, 1989), 248. 30 Reese, Die Verfassung des Grundgesetzes (n. 5 above), 252; see also 108.31 Ibid.

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German Federal Constitutional Court from 2009 in favour of a right to an

existential minimum,32 an example of the latter is the 1958 decision on the

constitutionality of restricting one’s freedom to choose a profession despite of

the fact that this freedom, according to the wording of article 12 (1) (1) German

Basic Law, is not subject to limitations.33

It must, be conceded, however, that a rational application of prima facie

precedence presupposes rational argumentation. A person who attaches weights

that reach to infinity to any rights, values, or goods, considered by that person as

moral can easily override colliding rights, values, or goods as well as the formal

principle of the authority of the constitution. This leads to the question of

whether rational balancing can be distinguished from irrational balancing. With

this question, the weight formula is, once again, stage centre.

IV. Weight Formula and Argumentation

If constitutional rights are necessarily connected with morality in form of human

rights, this connection must have consequences for balancing. These

consequences stem from two factors. The first is that the weight formula is a

form of constitutional-rights argumentation, and thus, of legal argumentation,

the second is that legal argumentation is a special case34 of general practical

argumentation, and thus, of moral argumentation, too.

1. Calculation and Argumentation

If one considers the weight formula in isolation, the impression can easily arise

that argumentation ought to be replaced by calculation. Once the intensities of

interference are identified as light, medium, or serious, the corresponding

numbers can be substituted in the formula, and when this is done with respect to

32 BVerfGE 125, 175.33 BVerfGE 7, 377; see on this Robert Alexy, “Constitutional Rights and Proportionality”, in: Chinese Yearbook of Constitutional Law (2010), 233.34 Alexy, A Theory of Legal Argumentation (n. 29 above), 212-20.

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the abstract weights and the epistemic reliability, too, everything else is a matter

of a – quite simple – calculation. If this view were right, the objection of

undermoralization would apply.

This view, however, is wrong, and it is wrong because it is fragmentary. The

numbers that are to be substituted in the variables of the weight formula

represent classifications that stand in need of a justification, a justification that

the weight formula cannot itself accomplish. An example is an interference with

the freedom of speech (Pi), which serves the protection of the personality right

(Pj). If interference with the freedom of speech is classified as serious, that is, if

Ii receives the value 4, then the number 4 stands for nothing other than the

proposition: “This interference with the freedom of speech is serious”. The same

applies if the weight of the personality right is classified as light. The number 1,

then, stands for the proposition “This interference with the personality right

through non-protection would be light”. The pivotal point, now, is that such

propositions, as propositions or assertions in general, are in need of

justification. The question is whether they are capable of justification.

2. The Argumentation Thesis

Poscher, like Somek,35 is of the opinion that “the balancing process itself

depends on our intuition as to the relative weight of the conflicting principles”.36

The reply to this is the thesis that classifications can be based on rational

arguments. Thus, the objection to the argument from intuitionism – just as to

Schlink’s argument from decisionism37 and to Habermas’s argument from

arbitrariness38 – is the argumentation thesis.

35 Somek, Rechtliches Wissen (n.21 above), 135.36 Ralf Poscher, “The Principles Theory. How Many Theories and What is their Merit?“, in: Matthias Klatt (ed.), Institutionalized Reason. The Jurisprudence of Robert Alexy (Oxford: Oxford University Press, 2012), 241.37 Bernhard Schlink, Freiheit durch Eingriffsabwehr – Rekonstruktion der klassischen Grundrechtsfunktion“, in: Europäische GRUNDRECHTE-Zeitschrift 11 (1984), 462. 38 Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (first publ. 1992), trans. William Rehg (Cambridge: Polity Press, 1996), 259.

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The argumentation thesis says that propositions about intensity of

interference and degrees of importance lend themselves to rational justification.

An example is presented by a decision of the German Federal Constitutional

Court from 1997 on the duty of manufacturers of tobacco products to place

health warnings respecting the dangers of smoking on these products.39 This is a

minor or light interference with the freedom to pursue one`s profession. By

contrast, a total ban on all tobacco products would count as serious interference.

Between such minor and serious cases, others of moderate intensity of

interference can be found. An example would be a ban on cigarette machines

along with the introduction of provisions restricting the sale of tobacco to

selected shops. If it were true, as Poscher maintains, that balancing depends on

nothing other than “our intuition”, 40 then every interpreter of a constitution

would be free to say, appealing to his intuitions, that the duty to set down health

warnings is a serious inference and the total tobacco ban a light interference

with the tobacco producers’ freedom of profession. But it would not be easy to

take such an approach seriously. In any case, it would be easy to give cogent

reasons as to why these classifications are mistaken. If, in this way, the intensity

of interference is, as in the tobacco case, established as minor and the

importance of protecting the population from health risks as high,41 the result is

easily recognizable. The reason that weighs heavily for interference justifies the

minor interference.

It might be objected that the example does not say very much. The case

concerns, on the one side, economic activities. Here it is easy to apply scales, for

they amount to cost-benefit analysis. On the other side, the question at hand

concerns a matter of life and death. Where empirical investigations show that

the risks are fairly high, the classification, which is addressed to a highly

important matter, can be based on quantifiable facts. These considerations are

39 BVerfGE 95, 173.40 Poscher, “The Principles Theory. How Many Theories and What is their Merit?” (n. 36 above), 241.41 BVerfGE 95, 173 (183-7).

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not applicable in areas where quantifiable factors such as costs and probabilities

play no role or, in any case, no significant role.

To deal with this objection, a case shall be considered that concerns the

classic conflict between freedom of speech and the right of personality. A

widely circulating satirical magazine, Titanic, described a paraplegic reserve

officer who has successfully pursued his call-up to a retraining exercise, first as

a “born Murderer” and in a later edition as a “cripple”. A court with civil law

jurisdiction ruled against Titanic in an action brought by the officer and ordered

the magazine to pay damages in the amount of DM 12.000. Titanic brought a

constitutional complaint. The German Federal Constitutional Court undertook

“case-specific balancing”42 between the freedom of speech of Titanic and the

officer’s personality right. The judgment in damages was treated as a “lasting”43,

that is, serious interference with freedom of speech. This classification is not

only stated but also justified. The justification consisted, above all, in pointing

out the danger that awarding damages “could negatively affect the future

willingness to make use of the constitutional right concerned”.44 This is an

argument rather than a mere expression of an intuition or a decision. The

description “born Murderer” was then placed in the context of the satire

published by Titanic. This was said to have been characterized by “puns silly in

nature”.45 For this reason, the detriment to the personality right has at most a

moderate, perhaps even a light or minor intensity. Matters were, however,

different where calling the officer a “cripple” was concerned. Here, the

detriment was classified as “serious”.46 Describing a disabled person as a

“cripple” was said to be a “humiliation” that downgrades the disabled person to

42 BVerfGE 86, 1 (11).43 BVerfGE 86, 1 (10).44 Ibid.45 BVerfGE 86, 1 (1146 BVerfGE 86, 1 (13).

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an “inferior human being”47 and expresses a “lack of respect”.48 These

classifications, too, rest on arguments.

Of special importance is that the arguments, first and foremost those on the

classification of the description as a “cripple”, have a moral character. This

shows that the undermoralization thesis is mistaken. The application of the

weight formula in the Titanic case presupposes moral arguments. At the same

time, it becomes clear that the overmoralization thesis does not apply. The

arguments in the Titanic case can be considered as rational. And the use of

rational moral arguments does not diminish, but rather increase the rationality of

law. The objection that virtually anything is possible with balancing can thus be

met by embedding the weight formula in a theory of rational argumentation.

3. Reasonable Disagreement

A balancing skeptic might concede that it is possible to justify classifications of

the intensity of interference in the two cases considered, but nevertheless insist

that there are cases in which different classifications can be justified equally

well, which is to say that none of them is justifiable. As an example, the skeptic

might refer to the decision of the German Federal Constitutional Court in 2006

on electronic data-screening. A student with Moroccan citizenship brought a

constitutional complaint against an order of a court, upheld in the higher courts,

concerning electronic data-screening. This order required residents’ registration

offices, the central aliens’ registry, and universities to transmit data to the police

concerning male persons between 18 and 40 regarding, inter alia, their faith,

native country, and subject of study. These data were submitted to automatic

data processing with an eye to identifying potential islamistic terrorists. The

majority of the First Panel of the Federal Constitutional Court classified the

measure as an interference of “considerable weight”,49 that is, as a serious

47 Ibid.48 Ibid.49 BVerfGE 115, 320 (348).

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interference with the complainant’s right to data self-determination. Such a

serious interference would be justified in cases of concrete danger, but not in

cases of abstract danger, characterized by a “generally threatening situation” as

it exists “at the latest since September 11, 2001”.50 It was deemed, however, that

no concrete danger was at hand. Therefore, the constitutional complaint was

considered to be justified. Completely different is the classification stemming

from the dissenting opinion of Judge Haas. According to her assessment, the

interference is “of low weight” and has to be accepted as being in the “public

interest”.51 From this point of view, the constitutional complaint would not be

justified.

Here two points are of interest. The first is that both sides presented

numerous arguments for their classifications. The arguments of the majority on

the assessment of the interference as serious ran over eleven pages,52 those of

Justice Haas for her assessment as light ran over four pages.53 This shows that

balancing is not a matter of naked classification. It is, essentially, a matter of

argumentation. Thus, if rational legal argumentation is possible, rational

balancing is possible, too.

The second point is that the data screening-case does not establish an

objection against balancing even if both sides can refer to reasons whose

assessment on the question of which reasons are better is difficult to decide.

There are two explanations for this. The first is that there are many cases in

which only one result of balancing is argumentatively or discursively possible.

Therefore, the abstract discursive necessity54 that refers, inter alia, to human

rights qua abstract rights and to the principle of democracy has to be

complemented by a concrete discursive necessity. An example of a concrete

50 BVerfGE 115, 320 (364).51 BVerfGE 115, 320 (379).52 BVerfGE 115, 320 (347-57).53 BVerfGE 115, 320 (371-4).54 On the concepts of discursive necessity, impossibility, and possibility see Alexy, A Theory of Legal Argumentation (n. above), 207.

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discursive necessity is a case in which an interference can only be classified as

serious, and the reasons justifying it only as light.55 Thus, also in the realm of

balancing there are certainties.

The second reason is that everywhere in law the possibility of “reasonable

disagreement”56 exists. In the field of balancing, reasonable disagreement is

evident when different classifications can be justified with rational arguments,

that is to say, are discursively possible. For all that, it remains of pivotal

importance that the claim to correctness not be given up on the ground that the

reasonableness of disagreement is acknowledged. Correctness qua regulative

idea has the consequence that existing disagreement and, as in the data-

screening-decision, institutionally resolved disagreement by means of majority

rule remain open for future argumentation. This is the ideal dimension of legal

argumentation.

55 See on this Virgilio Afonso da Silva, “Comparing the Incommensurable: Constitutional Principles, Balancing and Rational Decision”, in: Oxford Journal of Legal Studies 31(2011), 291. 56 See John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 55.