THE DOCTRINE OF BALANCING

ITS STRENGTHS AND WEAKNESSES

Abstract

The doctrine of balancing, in the shape that has been given to it by Robert Alexy and his Kiel School, may be considered one of the export hits of the German legal scholarship on a global scale. The widespread dissemination and the frequent use of the doctrine of balancing, however, stands in remarkable contrast to the fact that the premises, construction and inner dynamics of the balancing model as well as its consequences for the legal dogmatics are rarely the subject of critical reflection. The intuitive plausibility of that model seems to make such questions superfluous. If, nevertheless, one analyzes the central building blocks of the doctrine of balancing, then, if one takes into account the context in which it arose, one can, on the one hand, understand its triumphal march and its development into a paradigm of the scholarship of public law in Germany. On the other hand, an in-depth analysis allows a more precise assessment of the strengths and weaknesses of the doctrine of balancing, both on the level of legal theory and on the level of legal dogmatics; on this basis, the advantages and disadvantages of the doctrine of balancing in its competition with alternative approaches in the jurisprudential discourse can be more clearly determined.