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 Mller represents the objection of undermoralization.
1
Mller 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 Alexys 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 Mller, Balancing and the structure of constitutional rights, in: International Journal of Constitutional
Law 5 (2007), 460.
3
Ibid.
4
Kai Mller, The Global Model of Constitutional Rights (Oxford: Oxford University Press, 2012), 1-2 (emphasis
in original).
2

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.
3

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 P
1
is not suited
to this purpose but rather obstructs the realization of P
2,
the factual possibility
exists of omitting M without any cost either to P
1
or to P
2
. Thus, the
optimization of P
1
and P
2
, 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 M
1
, another means M
2
, 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).
4

speaking, is equally suited to promoting P
1
, but interferes less intensively with
P
2
, then the optimization of P
1
and P
2
, taken together, proscribes the use of the
means M
1
, which interferes more intensively with P
2
without being necessary to
the realization of P
1
. 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 P
1
that can only be justified by assigning a low importance to the
satisfaction of the colliding principle P
2
. To allow the interference under these
conditions would not be an optimization of P
1
together with P
2
.
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.
5

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:

W
i,j
represents the concrete weight of the principle P
i
relative to the colliding
principle P
j
. The weight formula defines this concrete weight as the quotient of
three factors standing, so to speak, on each side of balancing. I
i
and I
j
are of
special importance. I
i
stands for the intensity of interference with P
i
. I
j
represents
the importance of satisfying the colliding principle. I
j
, too, can be understood as
intensity of interference, that is, as the intensity of interference with P
j
through
non-interference with P
i
. W
i
and W
j
stand for the abstract weights of the
colliding principles P
i
and P
j
. When the abstract weights are equal, which is
often the case in collisions between constitutional rights, they cancel each other
out. R
i
and R
j
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 P
i
is, and how intensive the interference with P
j
would be if
the interference with P
i
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 W
i
and W
j
.
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

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

is, a non-continuous triadic scale, in which geometric sequences are
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 2
0
, 2
1
, and 2
2
, that is, by 1, 2, and 4. Where the
epistemic side is concerned, that is, R
i
and R
j
, one can work with the stages
certain, plausible, and not evidently false, to which the numbers 2
0
, 2
-1
,
and 2
-2
, that is, 1, , and , 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

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.
7

1. Positivistic and Non-positivistic Conceptions of
Constitutional Rights
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

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.
8

real dimension of constitutional rights is necessarily connected with an ideal
dimension.
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

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 fr Werner Krawietz (Berlin: Duncker & Humblot, 1993), 19-24; Robert Alexy, Bulygins Kritik des
Richtigkeitsarguments, in: Ernesto Garzn Valds, Werner Krawietz, Georg Hendrik von Wright, and Ruth
Zimmerling (eds.), Normative Systems in Legal and Moral Theory. Festschrift for Carlos E. Alchourrn and
Eugenio Bulygin (Berlin: Duncker & Humblot, 1997), 235-50; Eugenio Bulygin, Alexys 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 Beltrn, Jos 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
Beltrn, Jos Juan Moreso, and Diego M. Papayannis (eds.), Neutrality and Theory of Law (Dordrecht: Springer,
2013), 225-38.
9

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.
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,

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.
10

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
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

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.
11

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
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 ones 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 case
34
of general practical
argumentation, and thus, of moral argumentation, too.
1. Calculation and Argumentation

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.
12

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
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 (P
i
), which serves the protection of the personality right
(P
j
). If interference with the freedom of speech is classified as serious, that is, if
I
i
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

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.
13

Schlinks argument from decisionism
37
and to Habermass argument from
arbitrariness
38
is the argumentation thesis.
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

37
Bernhard Schlink, Freiheit durch Eingriffsabwehr Rekonstruktion der klassischen Grundrechtsfunktion, in:
Europische GRUNDRECHTE-Zeitschrift 11 (1984), 462.
38
Jrgen 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.
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).
14

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
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
officers 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

42
BVerfGE 86, 1 (11).
43
BVerfGE 86, 1 (10).
44
Ibid.
45
BVerfGE 86, 1 (11
15

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
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

46
BVerfGE 86, 1 (13).
47
Ibid.
48
Ibid.
16

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
interference with the complainants 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.

49
BVerfGE 115, 320 (348).
50
BVerfGE 115, 320 (364).
51
BVerfGE 115, 320 (379).
52
BVerfGE 115, 320 (347-57).
53
BVerfGE 115, 320 (371-4).
17

Therefore, the abstract discursive necessity
54
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
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.


54
On the concepts of discursive necessity, impossibility, and possibility see Alexy, A Theory of Legal
Argumentation (n. above), 207.
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.