I will argue that the balancing of normative arguments constitutes a specific form of reasoning, ... more I will argue that the balancing of normative arguments constitutes a specific form of reasoning, which may be called “autonomous reasoning” and cannot be reduced to a type of argument where the result is inferred from premises or criteria established without a balancing. The distinction of balancing from subsumption and deduction as a distinct mode of legal reasoning is cast in doubt in particular by Robert Alexy’s thesis that balancing follows an inferential scheme, called “weight formula”, which allows one to derive the result of the balancing from certain factors. Thus, however, balancing can be understood as a specific case of subsumption and deduction. By contrast, I will defend the view that balancing constitutes a form of reasoning that cannot adequately be reconstructed by means of an inferential scheme. Rather, the balancing of normative arguments includes an element of autonomous choice subject to constraints of rationality, which allows one to justify normative judgments and statements in a rational manner.
Proportionality is the standard that guides the balancing of human or fundamental rights in law, ... more Proportionality is the standard that guides the balancing of human or fundamental rights in law, requiring that the interference with rights must be justified by reasons that keep a reasonable relation with the intensity of the interference. One may well regard the principle of proportionality as a universal standard of rationality, which any legal system must recognise. Thus, when applied to human rights, proportionality presents a universal human rights principle. However, the thesis of the universal validity of the principle of proportionality faces various objections. I will refute these objections. First, I will distinguish diverse meanings of the universal character of principles and argue that the principle of proportionality is in a certain sense universally valid. In the second part, I will analyse the content of the principle of proportionality as part of a general framework of balancing and suggest a general scheme for examining the justification of the interference with a fundamental right according to the standard of proportionality.
Within the framework of autonomous morality, the validity of a norm depends on the consent of aut... more Within the framework of autonomous morality, the validity of a norm depends on the consent of autonomous agents. However, such a consent will often not be obtained. Approximative criteria can be formulated, stating when a norm, although not consented completely, should be accepted as objectively valid. Such criteria, however, restrict moral autonomy. Hence, demands of autonomy and of rationality collide. This collision must be resolved by restraining autonomous judgement in order to make commonly binding norms possible. * I should like to thank Ms Ruth Grace Charlton and Ms Tracy Messenger for advice on matters of the English language.
Academia: revista sobre enseñanza del derecho de Buenos Aires, 2008
Se trata del primer examen de estado y del segundo examen de estado. Sólo este último habilita pa... more Se trata del primer examen de estado y del segundo examen de estado. Sólo este último habilita para el ejercicio de la profesión de abogado.
Kelsen rejects the scientific character of natural-law doctrine. For Kelsen, value judgments are ... more Kelsen rejects the scientific character of natural-law doctrine. For Kelsen, value judgments are ultimately not rationally justified but a matter of emotions. They can be rationally justified only relative to a certain moral or legal order. Kelsen also rejects the assumption of natural-law doctrines that value is immanent in reality. On the other hand, he suggests that legal science is possible regarding positive law, which is converted into a normative order by presupposing a “basic norm”. I will not challenge Kelsen’s critique of traditional natural-law doctrine, but discuss two issues: Can Kelsen’s own account of the “Pure Theory of Law” claim to be scientific, and does Kelsen’s critique of traditional natural-law theories affect modern versions of normative theories of law?
... 5 See also J Elster (ed), Deliberative Democracy (Cambridge University Press, 1998),8. 6 R Al... more ... 5 See also J Elster (ed), Deliberative Democracy (Cambridge University Press, 1998),8. 6 R Alexy, Theorie der juristischen Argumentation (Frankfort on Main, Suhrkamp ... The better a political systemfares on criteria of correctness and rationality, the greater will be its legitimacy. ...
A crucial demand of a normative theory of legislation is that legislators should act rationally. ... more A crucial demand of a normative theory of legislation is that legislators should act rationally. From the perspective of practical reason, this demand of rationality seems to be undeniable. But does it also have legal or constitutional force? I will argue that the demand of rationality has constitutional force at least as far as the application of fundamental rights-principles is concerned, and this applies also to legislative organs of democratic constitutional states. In particular, fundamental rights restrict legislative freedom. Political decisions require a justification that supports their claim to bindingness. This justification must include reference to constitutional requirements. I will argue that legislation in a democratic constitutional state consists to great extent, and in particular as far as fundamental rights apply, in the implementation of constitutional law, which implies the need of balancing constitutional principles and thus makes applicable diverse requirements of rationality
Law-making, like any normative decision-making, requires justification. A purely formal democrati... more Law-making, like any normative decision-making, requires justification. A purely formal democratic legitimation by means of voting procedures and a form of majority rule is insufficient, for democratic legitimacy depends on representing the interests of the governed, which requires the balancing of these interests and is only imperfectly reflected in voting procedures. Hence, balancing is the core of rational lawmaking and proportionality is the relevant constitutional standard that guides this balancing. Legislative balancing, however, has features that are distinct from judicial balancing. In particular, it is open because the legislator may, in general, pursue its political objectives without further legitimation and is not necessarily bound to consider only legal principles. It is “pure” insofar as the issue of control and its effects on the structure of balancing is not present in legislative balancing. And it is complex for it is not restricted to claims advanced in a judicial procedure. The aim of this contribution is to analyze the general structure of balancing and to investigate the distinctive features of legislative balancing as a method of rational decision-making.
I will argue that the balancing of normative arguments constitutes a specific form of reasoning, ... more I will argue that the balancing of normative arguments constitutes a specific form of reasoning, which may be called “autonomous reasoning” and cannot be reduced to a type of argument where the result is inferred from premises or criteria established without a balancing. The distinction of balancing from subsumption and deduction as a distinct mode of legal reasoning is cast in doubt in particular by Robert Alexy’s thesis that balancing follows an inferential scheme, called “weight formula”, which allows one to derive the result of the balancing from certain factors. Thus, however, balancing can be understood as a specific case of subsumption and deduction. By contrast, I will defend the view that balancing constitutes a form of reasoning that cannot adequately be reconstructed by means of an inferential scheme. Rather, the balancing of normative arguments includes an element of autonomous choice subject to constraints of rationality, which allows one to justify normative judgments and statements in a rational manner.
Proportionality is the standard that guides the balancing of human or fundamental rights in law, ... more Proportionality is the standard that guides the balancing of human or fundamental rights in law, requiring that the interference with rights must be justified by reasons that keep a reasonable relation with the intensity of the interference. One may well regard the principle of proportionality as a universal standard of rationality, which any legal system must recognise. Thus, when applied to human rights, proportionality presents a universal human rights principle. However, the thesis of the universal validity of the principle of proportionality faces various objections. I will refute these objections. First, I will distinguish diverse meanings of the universal character of principles and argue that the principle of proportionality is in a certain sense universally valid. In the second part, I will analyse the content of the principle of proportionality as part of a general framework of balancing and suggest a general scheme for examining the justification of the interference with a fundamental right according to the standard of proportionality.
Within the framework of autonomous morality, the validity of a norm depends on the consent of aut... more Within the framework of autonomous morality, the validity of a norm depends on the consent of autonomous agents. However, such a consent will often not be obtained. Approximative criteria can be formulated, stating when a norm, although not consented completely, should be accepted as objectively valid. Such criteria, however, restrict moral autonomy. Hence, demands of autonomy and of rationality collide. This collision must be resolved by restraining autonomous judgement in order to make commonly binding norms possible. * I should like to thank Ms Ruth Grace Charlton and Ms Tracy Messenger for advice on matters of the English language.
Academia: revista sobre enseñanza del derecho de Buenos Aires, 2008
Se trata del primer examen de estado y del segundo examen de estado. Sólo este último habilita pa... more Se trata del primer examen de estado y del segundo examen de estado. Sólo este último habilita para el ejercicio de la profesión de abogado.
Kelsen rejects the scientific character of natural-law doctrine. For Kelsen, value judgments are ... more Kelsen rejects the scientific character of natural-law doctrine. For Kelsen, value judgments are ultimately not rationally justified but a matter of emotions. They can be rationally justified only relative to a certain moral or legal order. Kelsen also rejects the assumption of natural-law doctrines that value is immanent in reality. On the other hand, he suggests that legal science is possible regarding positive law, which is converted into a normative order by presupposing a “basic norm”. I will not challenge Kelsen’s critique of traditional natural-law doctrine, but discuss two issues: Can Kelsen’s own account of the “Pure Theory of Law” claim to be scientific, and does Kelsen’s critique of traditional natural-law theories affect modern versions of normative theories of law?
... 5 See also J Elster (ed), Deliberative Democracy (Cambridge University Press, 1998),8. 6 R Al... more ... 5 See also J Elster (ed), Deliberative Democracy (Cambridge University Press, 1998),8. 6 R Alexy, Theorie der juristischen Argumentation (Frankfort on Main, Suhrkamp ... The better a political systemfares on criteria of correctness and rationality, the greater will be its legitimacy. ...
A crucial demand of a normative theory of legislation is that legislators should act rationally. ... more A crucial demand of a normative theory of legislation is that legislators should act rationally. From the perspective of practical reason, this demand of rationality seems to be undeniable. But does it also have legal or constitutional force? I will argue that the demand of rationality has constitutional force at least as far as the application of fundamental rights-principles is concerned, and this applies also to legislative organs of democratic constitutional states. In particular, fundamental rights restrict legislative freedom. Political decisions require a justification that supports their claim to bindingness. This justification must include reference to constitutional requirements. I will argue that legislation in a democratic constitutional state consists to great extent, and in particular as far as fundamental rights apply, in the implementation of constitutional law, which implies the need of balancing constitutional principles and thus makes applicable diverse requirements of rationality
Law-making, like any normative decision-making, requires justification. A purely formal democrati... more Law-making, like any normative decision-making, requires justification. A purely formal democratic legitimation by means of voting procedures and a form of majority rule is insufficient, for democratic legitimacy depends on representing the interests of the governed, which requires the balancing of these interests and is only imperfectly reflected in voting procedures. Hence, balancing is the core of rational lawmaking and proportionality is the relevant constitutional standard that guides this balancing. Legislative balancing, however, has features that are distinct from judicial balancing. In particular, it is open because the legislator may, in general, pursue its political objectives without further legitimation and is not necessarily bound to consider only legal principles. It is “pure” insofar as the issue of control and its effects on the structure of balancing is not present in legislative balancing. And it is complex for it is not restricted to claims advanced in a judicial procedure. The aim of this contribution is to analyze the general structure of balancing and to investigate the distinctive features of legislative balancing as a method of rational decision-making.
Uploads
Papers by Jan Sieckmann