Studies in the Philosophy of Law Frontiers of the Economic Analysis of Law Edited by Jerzy Stelmach Bartosz Brozek Wojciech Zaluski uw JAGIELLONIAN UNIVERSITY PRESS‘This book is sponsored by the Chair for Theory and Philosophy of Law of the Jagiellonian University COVER DESIGN Marcin Bruchnalski TECHNICAL EDITOR Lucyna Sadko PROOFREADER Jerzy Hryeyk ‘TYPESETTING Wojciech Wojewoda © Copyright by Jerzy Stelmach, Bartosz Broiek, Wojciech Zatuski & Wydawnictwo Uniwersytetu Jagielloriskiego Wydanie I, Krakéw 2007 All rights reserved ISBN 978-83-233-2341.9 www. wuy.pl ‘Wydawnictwo Uniwersytetu Jagillosiskiego Redakcja: ul. Michalowskiego 9/2, 31-126 Krak tel, 012-631-18-81, tel fax 012-631-18-88, Dystrybucja: ul. Wroclawska 53, 30-011 Krakéw tel. 012-631-01.97, tel/fax 012-631-01-98 tel. kom. 0506.006-674, e-mail: wydaw@if.uj.edu.pl Konto: Bank BPH SA, nr 62 1060 0076 0000 3200 0047 8769,Table of Contents Preface Robert Alexy, The Weight Formula... Henrik Lando, On a Dilemma Posed lo Utilitarianism by Non-Utilitarian Preferences for Fairness... i: Lue J. Wintgens, The Relation of Law and Economics: Perspectives from Legal Theory. - Jerzy Stelmach, Economic Arguments in Legal Discourse Bartosz Broek, The Economie Analysis of Law and Legal Argumentation Beata Polanowska-Sygulska, Between Utility and Wealth-Maximization. Michal Araszkiewiez, Paradoxes of the Conceto of All-Encompassing Well- Being. Mariusz J. Golecki, Bargaining in the Shadow of European Contract Law: A Law and Economies Critique of “Excessive Benefit and Gros Unfair Advantage” . : Bartosz Wojciechowski, The Hegelian Concer | of Eeceniin and Dis- tributive Justice. Mateusz Klinowski, The PIT and the Heap: Justice, Taxation and the So- rites Paradox Marta Soniewicka, Free Trade versus Fair Trade in the Global Market Economy. Wojciech Zaluski, Reasons for Action, Moral Motives, and Human Char- bET o 29 37 51 67 79 89 101 127 M1 uzRobert Alexy Kiel University THE WEIGHT FORMULA’ In tho application of law thero aro two basic operations: subsumption and balancing. While subsumption has been reasonably well clarified, there are, where balancing is concerned, still a great many open questions. These questions invite attention to three problems: the structure of balancing, its rationality, and its legitimacy. Between and among those problems there are close connections. The legitimacy of balancing in law turns on its rationality. The more rational balancing is, the greater its legitimacy. The rationality of balancing is deter- mined, however, by its structure. If its analysis were to show that balancing can- not be anything but arbitrary decision, the rationality of balancing together with its legitimacy would be called into question in the application of law, particularly in constitutional law. The core of the problem of balancing in law is, therefore, the problem of the structure of balancing. L The Norm-Theoretic Basis: Rules and Principles ‘The distinction between rules and principles forms the norm-theoretic basis of subsumption on the one hand and balancing on the other.’ Rules are norms that require something definitively. They are definitive commands. Most rules require that certain conditions be fulfilled for their application. They are, then, condi- tional norms. Rules, however, can also be categorical in form. An example would be an absolute prohibition of torture. The decisive point is that if a rule is valid and applicable, it is then definitively required that exactly what it demands be done. If exactly what is demanded is done, the rule is complied with; otherwise, the rule is not complied with. Thus, rules are those norms that can only be either complied with or not complied with. By contrast, principles are norms requiring * Translated by Bartosz Broick and Stanley L. Paulson in consultation with Robert Alexy. + See on this R. Alexy, A Theory of Constitutional Rights (Sxst pub. 1985), J. Rivers (trans.), Oxford University Press, Oxford 2002, pp. 44-89; idem, Zur Struktur der Rechtsprinzipien [in] B.Schilcher, P, Koller, B-C, Funk (eds), Regeln, Prinzipien und Elemente im System des Rechis, Verlag Ostorreich, Vienna 2000, pp. 81-52, at 32.10 Robert Alexy that something be realized to the greatest extent possible, given the factual and Jegal possibilities. Thus, principles are optimization requirements. As such they are characterized by the fact that they can be satisfied to varying degrees. What is more, the appropriate degree of satisfaction depends not only on what is factu ally possible but also on what is legally possible, Rules aside, the legal possibili tios are determined essentially by opposing principles, IL The Principle of Proportionality in the Narrower Sense ‘As with distinctions generally, norm-theoretic distinctions, too, may have greater or smaller theoretical and practical significance. ‘The significance of the distinction between rules and principles stems trom the fact that the most impor- tant standard of substantive constitutional law, the principle of proportionality, is implied by the very nature of principles, and vice versa. The principle of pro: portionality with its three sub-principles of suitability, necessity, and proportion- ality in the narrower sense, follows logically from the definition of principle, just as the latter follows from the former. Principles require that something be realized to the highest possible degree, relative to both the factual and legal possibilities. ‘The sub-principles of suitabil- ity and necessity express the requirement of optimization relative to the factual possibilities.® In this respect, they are concerned not with bulunving as such but ‘with avoiding those interferences with constitutional rights that can be avoided without costs for other principles.? They are concerned, in other words, with Pa- reto-optimality. By contrast, the principle of proportionality in the narrower sense concerns the optimization relative to the legal possibilities. This is the field of balancing, and this field alone is of interest here. ‘The core of balancing is constituted by a relation that might be termed the “Law of Balancing’, which can be formulated as follows: ‘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 shows that balancing can be broken down into three stages. The first stage involves establishing the degree of non-satisfaction of, or detriment to, the first principle. This is followed by a second stage, in which the importance of satisfying the competing principle is established. Finally, at the third stage it is established whether or not the importance of satisfying the latter principle justifies the detriment to, or non-satisfaction of, the former principle. je on this L, Clérico, Die Struktur der Verhaltnismapigheit, Nomos, Baden-Baden 2001, pp. 26-111. 3 See on this and on the relationship between the principles of suitability and of necessity on the one hand and the principle of proportionality in the narrower sense on the other; Alexy, A ‘Theory of Constitutional Rights (n. 1 above), pp. 397-414. ‘ Tbidem, p. 105. ® Ibidem, p. 102.‘THE WEIGHT FORMULA u This fundamental structure shows what a radical skeptic towards balancing, for example, Jiirgen Habermas or Bernhard Schlink, must call into question when they claim that balancing, “[bJecause there are no rational standards’, must “take place either arbitrarily or unreflectively, according to customary standards and hierarchies", or when they say that “in the test of proportionality in the narrower sense [..] only the subjectivity of those performing the test can be effec- tive” in the end and that “the operations of valuation and balancing required by the test of proportionality in the narrower sense can [..J, in the end, be per- formed only in a decisionistic way."” They must, in other words, contest the claim that rational judgments about intensity of interference and degrees of impor- tance are possible. It is, however, not at all difficult to find cases in which these types of judgments are indeed possible, Thus, the duty of tobacco producers to place health warnings regarding the dangers of smoking on their products is a relatively minor or light interference with freedom to pursue one's profession. By contrast, a total ban on all tobacco products would count a5 a serious interfer- ence. Between such minor and serious cases, others of moderate intensity of in- terference can be found, An example would be a ban on cigarette machines along with the introduction of restrictions of the sale of tobacco to selected shops. Fol- lowing examples such as these, a scale can be developed with the stages “light”, “moderate”, and “serious”. The examples show that valid assignments at differ- ent points on the scale are possible or, turning things around, take the case of a person who classifies, on the one hand, a total ban on all tobacco products as a light interference with the tobacco producers’ freedom to pursue their profession, while this same person considers, on the other hand, the duty to set down health warnings as a serious interference. It would not be easy to take such judgments seriously. ‘The use of a three-stage seale is also possible for the competing reasons. The reason for the duty to place health warnings on tobacco products is to protect the population from the health risks of smoking. The Federal Constitutional Court seemed not to have exaggerated in its decision on health warnings in considering it, “according to the current state of medical knowledge, as certain” that smoking may cause cancer or vascular diseases.* The weight of the reasons justifying the interference is, therefore, serious. In a word, they weigh heavily. If, in this way, the intensity of interference is established as minor and the degree of importance attributed to the reasons for interference is high, it is then an easy enough mat- ter to reach the conclusion at hand, The serious reason for interference serves to justify the light interference. Thus, the duty to place health warnings on tobacco J, Habermas, Between Facts and Norms, W. Rehg (trans), Polity Press, Cambridge 1996, 259. "B, Schlink, Freiheit durch Eingriffsabwehr - Rekonstruktion einer Rlassischen Grun: rechtsfunktion, “Buropsische Grundrechte-Zeltschei” 11 (1984), pp. 457-468, at 462 (trans), idem, Der Grundsatz der Verhaltnismeifighei fin: P. Badura and H. Droier (eds), Festschrift 50 Jahre Bundesverfassungegericht, vol. 2, Mohr Siobock, Tsbingen 2001, pp. 445-465, at 460-462; B. Picroth and B, Schlink, Gruncirechte, 17th ed., C.F. Miller, Heidelberg 2001, p. 293. BVerfGE 95, 173 (184) (Decisions of the Constitutional Court of the Federal Republic of Germany vol $5, p. 173, at 184),12 Robert Alexy products does not violate the tobacco producers’ right to pursue their profession, as guaranteed in Art. 12 (1) of the German Basic Law. This result, stemming from an examination of proportionality in the narrower sense, is not only plausi- ble, It is, given the light intensity of interference and the serious weight of the reasons therefor, an following here the Federal Constitutional Court, downright “obvious.”* ‘Now one could well claim that the example here does not say very much. The case concerns, on the one hand, economic activities. Here it is easy to apply scales, for they boil down to cost-benefit analyses. On the other hand, the ques tion at hand concerns a matter of life and death; where empirical investigations show that the risks are fairly high, the classification, addressed to a highly im. portant matter, can be based on quantifiable facts, These considerations are not applicable in areas where quantifiable factors such as costs and probabilities play no significant role. ‘To deal with this objection, a case shall be considered that concerns the classic conflict between freedom of expression and personality rights. A widely circulat- ing satirical magazine, Titanic, described a paraplegic reserve officer who had successfully carried out his responsibilities, having been called to active duty, first as a “born Murderer” and in a later edition as a “cripple.” The Dusseldorf Regional Court of Appeals ruled against Titanic in an action brought by the offi- cer and ordered the magazine to pay damages in the amount of DM 12,000. Ti- tanic brought a constitutional complaint, The Federal Constitutional Court un- ertook “ease-specific balancing”'® hetween the freedom of expression of those associated with the magazine (Article 5 (1) (1) of the Basic Law) and the officer's general personality right (Article 2 (1) in connection with Article 1 (1) of the Ba- sic Law). To this end, the intensity of interference with these rights was deter- mined, with the one set in relation to the other. The judgment in damages was treated as representing a “lasting” or serious interference with freedom of ex- pression, irrespective of the fact that it was not decided in a criminal trial but only in a civil proceeding. This conclusion was justified, above all, by the argu: ‘ment that awarding damages could affect the future willingness of those pro- ducing the magazine to carry out their work in the way they had done hereto: fore. The description “born Murderer” was then placed in the context of exam- ples of satire published by the Titanic. Here several persons had been described, in a “recognizably humorous” way, from “puns to silliness”, as having had this or that surname at birth ~ for example, Richard von Weizsicker, then Federal President, was described as a “born Citizen”®, The context precludes a reading of such a description as an “unlawful, serious, illegal breach of personality". The interference with the personality-right was thus treated as having at most a moderate, perhaps only a light or minor intensity. Corresponding to this, the importance of protecting the officer's personality-right through an award of dam. ° BVerfGE 95, 173 (187). ° BVerfGE 86, 1 (10). 8 BVerfGE 86, 1 (10). " BVorfGE 86, 1 (20). 13 BVerfGE 86,1 (12)‘THE WEIGHT FORMULA 13 ages was moderate, perhaps only light or minor, These assessments completed the first part of the judgment. In order to justify an award of damages as a seri- us interference with the constitutional right to freedom of expression, the im- pairment of the right to personality, which was supposed to be compensated for by damages, would have had to have been evaluated as having been at least as serious, According to the assesament of the Federal Constitutional Court, how. ever, it was not. That meant that the interference with the freedom of expression ‘was disproportionate, which meant in turn that calling the officer a “born Mur- derer” was not a ground for awarding damages. ‘The case of the description of the officer as a “cripple”, however, was consid- ered to be a different matter. According to the assessment of the Federal Consti- tutional Court, this description did count as a “serious breach of the paraplegic's personality right", The importance of protecting the officer by means of a judg- ment for damages was, therefore, great. This was justified by the fact that de- cerihing eovarely dieahlod porenn ae a “rrinpla’ ie euirrantly seen as “humiliating” and as expressing a “lack of respect.” Thus, serious interference with freedom of expression was countered by the great importance accorded to the protection of personality. In this situation, the Federal Constitutional Court came to the conclusion that “the balancing here did not give rise to a flaw leading to the detriment of freedom of expression". Thus, Titanic’s constitutional com: plaint was only justified to the extent that it related to damages for the descrip tion “born Murderer.” As far as the description “cripple” was concerned, it was unjustified 1* Of course, one can argue about whether the description “born Murderer” really does represent nothing more than a moderate or minor interference. For present purposes, however, the significant point lies elsewhere. It can hardly be doubted that the awarding of damages and the description of someone as a “eripple” are both very intensive interferences with the relevant principles. In- deed, with respect to the severely disabled, one can move to a characterization of this that goos beyond the Court's. The Federal Constitutional Court rightly held that describing a paraplegic as a “cripple” was humiliating and disrespectful Such public humiliation and lack of respect reaches to and undermines the very dignity of the victim. This is not only serious, itis a very serious, indeed, an ex- traordinarily serious impairment. One has reached an area in which impair- ments can scarcely ever be justified by any strengthening of the reasons for the interference. This corresponds to the law of diminishing marginal utility.” The Titanic case is thus an example of the fact that scales, intelligently set in relation to each other, are possible, even in the case of immaterial goods such as person- ality and free specch. The case also illustrates the power inherent in constitu. tional rights qua principles to set limits by means of balancing, limits that are firm and clear, albeit not ascertainable without balancing. 4 BVeriGE 86,1 (13) (emphasis by the author) 28 Bbidem. 3 BVeriGE 86, 1 (14), 1 See Alexy, A Theory of Constitutional Rights (a. 1 above), p. 108,14 Robert Alexy ‘The Tobacco and Titanic Judgments show that rational judgments about de- grees of intensity and importance are possible, at least in some cases, and that such judgments may be set in relation to each other for the sake of justifying an outcome. Of course, such judgments presuppose standards that are not them- selves to be found in the Law of Balancing. Establishing that a judgment against the Titanic to pay damages is a serious interference with freedom of expression is to make assumptions about what freedom of expression means and how it may be threatened. On the other hand, the judgment that the description “cripple” is a serious interference with porsonality requires assumptions about what it means to be a person and have dignity. This, however, does not mean, in Haber- mas’ words, that “weighing takes place either arbitrarily or unreflectively, ac- cording to customary standards and hierarchies"®. The assumptions underlying judgments about intensity of interference and degree of importance are not arbi- trary. Reasons for them are given, and they may well be sound. It is also ques- tionable whether these assumptions are made by the Federal Constitutional Court “unreflectively, according to customary standards and hierarchies.” It is true that the standards follow a line of precedent. But talk of “customary stan- dards” would be justified only if the existence of precedent, and not the correct- ness of the standards at issue, were the only matter relevant to the decision. Furthermore, one could talk of an “unreflective” application only if this applica- tion did not take place in the course of argumentation. For arguments are the public expression of reflection. But there is no lack of argument here. All this applies to the Tobacco Judgment as well. IIL The Triadic Scale Up to this point, nothing apart from examples has been considered. The ex- amples have shown that there are cases in which the balancing of colliding prin- ciples provides for a result in a rational way. This suffices to refute the thesis that owing to a lack of rational standards, balancing is able to yield all imagin- able results in all cases, This will not suffice, however, if one wants to come to terms with the structure of balancing. In order to he able to arrive at a general conclusion about the possibility of rational balancing, a conclusion that goes well beyond the examples, a closer look at the system standing behind the classifica- tions considered thus far is called for. All the judgments about intensity of interference and degree of importance considered thus far follow a three-grade or triadic model. ‘To be sure, this scheme of three steps or grades is not necessary for balancing. Balancing is possible as soon as one has arrived at two steps, and the number of steps, moving upwards, is open, Thus, what follows here will also apply, with certain modifications, if one reduces the number of steps to two or increases them to more than three. The only proviso, as will be explained below, is that the number not become too great. 8 Habermas, Between Facts and Norms (n. 6 above), p. 259.‘THE WEIGHT FORMULA 5 Compared with the alternatives, the triadic scale has the advantage of fitting especially well the practice of legal argumentation. In addition, the triadic scale can be extended in a highly intuitive way. As the examples show, the three stages can be represented by the terms “light”, “moderate”, and “serious.” Representation is facilitated if these stages are identified by the letters ‘7’, “m’, and “s", respectively. Here “T” stands not just for the common term ‘light’, but also for other expressions such as “minor” or “weak”, and °s” stands for “high” and “strong” as well as for “serious”. According to the Law of Balancing, the objects of evaluation as J, m, or 5 count, on the one hand, as the degree of non-satisfaction of, or detriment to, the one principle and, on the other, as the importance of satisfying the other princi ple. In the first part of the Law of Balancing there is found the double-concept of non-satisfaction and detriment, This expresses the dichotomy of defense and protection. As far as defensive constitutional rights are concerned, the action detriments. Instead of “degree of detriment”, one could use the term “intensity of interference.” This shall be done in what follows. It is a mark of the flexibility of language that one can designate each interference, at the same time, as “non- satisfaction.” The expression “non-satisfaction” appears, however, in a more natural light when protective rights are at stake, for they ~ unlike defensive rights — require not omissions but positive action. Here, too, however, one can speak of “detriments” or even of “interferences”, which, again, is a mark of the flexibility of language. Where a principle requires protection and no protection is granted, one can speak not only of the “non-satisfaction” of this principle but also of an “interference” with it ~in fact, an “interference through non-satisfaction.” Against this background, the following can be established. “P” shall be used as a variable for the principle whose violation — to use, again, the words of the Law of Balancing - through non-satisfaction or detriment is to be examined. “IP.” shall represent the intensity of the interference with P.. Interferences are always concrete interferences, Thus, intensity of interference is a concrete quantity. As such it is different from the abstract weight of Ps, which shalll be represented by “WPY’. The abstract weight of a principle P, is the weight that P; has relative to other principles, independently of the circumstances of any case. Many constitu- tional principles do not differ in their abstract weights. Some, however, do. The right to life, for instance, has a higher abstract weight than general freedom of action. If the abstract weight of colliding principles is equal, it can be disregarded in balancing, As the first object of balancing, the Law of Balancing points only to the intensity of interference. This shows that it is tailored to the situation in which the abstract weights are equal, that is to say, play no role at all. The ques- tion of what is to be done where the abstract weights differ will be addressed later. Here it suffices to note that in order to avoid confusion, it is always well to make clear whether one is talking about abstract or concrete quantities, In case of IP,, no additional information is necessary, for the intensity of interference is, necessarily concrete. It does no harm, however, to make explicit the concreteness of IP; by adding “C", “C’ stands for all the circumstances of the case that are10 Robert Alexy relevant to the decision. “C” plays a pivotal role in the Law of Competing Princi- ples, which, however, cannot be discussed here."® In any case, the first object of evaluation as J, m, ors, that is to say, the intensity of interference, can be repre- sented by “IPC. “IPC expresses three different aspects. “P,’ makes explicit that the principle iis in play, “P’ says that what is at stake is the intensity of interference with P, and, finally, “C” stands for the fact that a concrete case is at hand. It cnhanccs the exposition to represent these three aspects in a single complex expression as “IP,C’. Otherwise, only one quantity, the intensity of interference, will be of con- cer, This clearly suggests that it is appropriate to write “TI” instead of “IP.C" in all those cases in which nothing turns on stressing the three aspects. J: is in no respect different from IP,C: li = IP,C. “h” may be termed the “concise version’ of the detailed version “ZP,C’2 The letter “I’ expresses that the intensity of inter- ference is of concern. The index *? makes clear that an interference with is at stake, and the fact that “” represents a concrete value follows from the very nature of the notion of intensity of interference. Parallel notations can be recommended with respect to abstract weight. The abstract weight of P; has already been noted as “WP?’. If one wishes to make the abstract character explicit, one can add ~ analogous to “C’ ~ the letter “A”. The detailed denotation of the abstract (A) weight (WW) of P. is, then, “WPA”, The con- cise version takes on, correspondingly, the form “I. It has already been men- tioned that the abstract weight ~ expressed by “WPA” or “Wi.” plays a role in balancing only if it has a value different from that of the abstract weight of the colliding principle. If the abstract weights on both sides are equal, they cancel each other out. ‘According to the Law of Balancing, the second object of evaluation as J, m, or 8 is the “importance of satisfying” the other principle. By contrast to the intensity of interference, the degree of importance need not necessarily be exclusively con- ceived of as a concrete quantity. One can form a concept of importance that-com- bines the concrete and the abstract. In this case, the importance of satisfying the colliding principle depends both on how intensive the interference with the col- liding principle would be had it not been given priority and on how high its ab- romarked, ho part of the Law of Balancing concerns only the intensity of interference shows that this law a8 a whole is constructed in such a way as to capture the constellation in which the abstract weights are equal and play, for that reason, no role whatsoever. This suggests interpreting the “importance” as contained in the Law of Balancing initially as referring exclusively to concrete importance. ‘Thus, everything boils down to the question of what the concrete importance of satisfying the colliding principle ~ as addressed by the Law of Balancing ~ comes to, Because the Law of Balancing concerns exclusively the relation be- 19 See Alexy, A Theory of Constitutional Rights (n. 1 above), p. 54, ‘2 The detailed version is used in R, Alexy, Die Abwdgung in der Rechtsanwendung, “Annual Report of the Institute for Law at the Meiji Gakuin University Tokyo” 17 (2001), pp. 69-88, at 1‘THE WEIGHT FORMULA 7 tween the two colliding principles, it can only depend on the effects that the omission or non-performance of the measure that interferes with P; would have {or the fulfillment of the colliding principle, represented here by P). The concrete importance of satisfying P; is determined, then, by the results that would be brought about for P; by forbearing from any interference with P.. This can be illustrated by means of Ue Titanic ease. Only dhe description of the paraplegic officer as a “cripple” shall be considered. In order to determine the intensity of interference with freedom of expression, one simply has to ask how intensively the prohibition of this expression combined with an award of damages interferes with freedom of expression. That is what the Constitution would require of this constitutional right if it were to permit the prohibition contained in the judgment of the Diisseldorf Higher Regional Court of Appeals along with its award of dam- ages. In order to establish the concrete importance of satisfying the principle of protecting personality, one has to ask, in reverse, what omitting or failing to im- scription “cripple” as permitted and therefore not subject to damages, would mean for the protection of personality. This is none other than the cost to the protection of personality if freedom of expression were to be preserved here. The importance of the principle of protecting personality in the Titanic case can thus be derived from the intensity with which non-protection through non- interference in Titanic’s freedom of expression would interfere with the officer's personality right. This can be generalized and stated as follows: The concrete importance of P, is determined by the intensity with which the non-interference with P; interferes with P, The question concerning the notation arises again. One might consider using a now letter to refer to the importance — say, “U”, alluding to urgeney ~ and to refer to the concrete importance of the colliding principle ~ analogous to “IP,C’ ~ as “UP,C’. This would have the advantage of approximating the ordinary usage of language, as per the wording of the Law of Balancing.*" Systematic analysis, however, suggests a different solution. The concept of the concrete importance of Bis, as shown, identical to the concept of the intensity of interference with P by omitting the interference with P.. The point is the intensity of a hypothetical interference through non-interference. This is most clearly expressed when, on the side of the colliding principle, too, “I, that is, the symbol for the intensity of interference, is employed. Thus, the counterpart of “IP(C’ is “IP,C’. Again, this detailed description can be replaced by a concise one, that is, “f’. IPC = Jjis also valid here. In what follows, only the concise expressions will be used. ‘The objects of evaluation as J, m, or s have now been established. In setting out the Law of Balancing, it was stated that it breaks down the balancing process into three steps. The first two can now be carried out, namely, in the triadic model: evaluating J: as J, m, or s and evaluating J; as 7, m, or s. The question then 7 For this reason in earlier works in case of the colliding principle another letter has been chogen than in case of the intensity of interference; see Alexy, Die Abwagung in der Rechtean ‘wendung (a. 20 above), p. 73, In what follows the letter “U" will be used for a quantity that is composed of the concrete importance in the sense ofthe intensity of interference () and the abstract weight (W)18 Robert Alexy arises: How is the third step, in which the evaluations are to be set in relation to each other, to be carried out in the triadic model? Tt might be objected that evaluations of this kind cannot be comprehended in relation to each other at all, for what is colliding is incommensurable.* In the Titanic case, for instance, it might be claimed that the description as "born Mur- deret” and the court order to pay damages in the amount of DM 12,000 are two social facts that have about as much in common as apples and oranges. This, however, does not speak to the decisive point. The question is not the direct com- parability of certain entities, but the comparability vis-i-vis their importance to the constitution, which, of course, leads indirectly to their comparability. The concept of comparability of importance to the constitution contains two elements that are together sufficient to bring about commensurability. The first is a com- mon point of view: the point of view of the constitution, It is, of course, possible to have a dispute about what is valid from this point of view. Indeed, this occurs regularly. It is, however, always a dispute about what is correct on the basis of the constitution. Incommensurability does indeed come into being immediately, once the common point of view is given up. This would be the case, for example, if one interpreter of the constitution were to say to the other that from his point of view, one thing is valid, from the other's point of view, the opposite, so that each is right from his own point of view, with the result that neither can be wrong, or even criticized. For a common point of view, from which something could be proven wrong, neither exists nor could exist. Discourse that amounts to more than empty rhetoric, that is, rational discourse addressed to a correct solution, would then be rendered impossible. The opposite, of course. is valid, too. If ra- tional discourse about what is correct on the basis of the constitution is possible, then a common point of view is possible, too. It becomes real as soon as rational discourse, oriented to the regulative idea of what is correct on the basis of the constitution, commences. He who wishes to undermine the possibility of evalua- tions by appeal to the impossibility of a common point of view must, therefore, be prepared to claim that rational discourse about evaluations within a consti- ‘tutional framework is impossible, This claim has to be refuted, even if its refuta- tion cannot be taken up here. The second element that brings about commen surability is a seule, of what a, 2 of the constitutional gains and losses. The triadic scale J, m, sis an example. Its use, on the basis of the common point of view of the constitution, brings about commensurability. Once commensurability is created by both point of view and scale, the ques- tion of how the third step of balancing can be carried out proves to be easy. There are three constellations in which the interference with P; is more intensive than that with P; (kes Jet 8 See on this T.A, Aleinikoff, Constitutional Laws in the Age of Balancing, “Yale Law Jour- nal" 96 (1987), pp. 943-1006, at 972-876. 4 See on this R. Alexy, A Theory of Legal Argumentation, R. Adler and N. MacCormick (trans), Clarendon Press, Oxford 1989, pp. 32-33, pp. 177-220.‘THE WEIGHT FORMULA 19 Qleskem @lem, hl In these cases Pi precedes P.. According to the Law of Competing Principles, al- ready mentioned, the conditional relation of precedence (PIPP)C is valid.* These three cases of the precedence of P; are matched by three cases of the precedence of Bi Oh Iss 6) km, Irs Oleh sm In these cases, (P)PP)C is valid, In addition to these six cases, which can be de- cided on the base of the triadic scale, there are three stalemate situations: Mel Ist (8) Lem, Im Oles, les In case of a stalemate. balancing determines no result, This is an instance, in other words, of discretion in balancing, that is, an instance of discretion stem- ming from the structure of norms qua principles, in short, an instance of “structural discretion”. Discretion in balancing is of the greatest importance for the delimitation of the competences of that part of the judiciary that exercises a constitutional review power on the one hand, and those of the legislator and of courts of ordinary jurisdiction on the other. But this cannot be discussed here.2° ‘The three steps or classes of the triadic model represent a scale that attempts to systematize classifications found both in everyday practice and legal argumen- tation. Such a three-class system is far removed from a metrification of intensi- ties of interference and degrees of importance on a cardinal scale running over a continuum from 0 to 1, and it has to be far removed, for intensities of interfer- ence and degrees of importance are not capable of metrification on such a scale" It's true that it is often possible to use a refined triadic model — an eligible can- didate, as will be shown, is a double-triadic model - but there are limits. Grada- tion in terms of light, moderate, or serious is often difficult enough as it is. In some cases one can just barely distinguish light and serious, indeed, in some cases even that seem impossible.® Thus, legal scales can only be made for work with relatively crude divisions ~ and not even that in every instance. In the end, ais the nature ot constitutional law that sets limits on just how finely drawn the gradation can be and that altogether excludes the applicability of any infinitesi- mal scale.** Calculable measurements by way of a continuum of points between 0 25 Alexy, A Theory of Constitutional Rights (n. 1 above), p. 54 2 See on this R. Alexy, Verfassungerecht und einfaches Recht ~ Verfassungsgerichtsbarkeit und Fachgerichtsbarkeit, “Veroffentichungen der Vereinigung der Deutschen Staatsrechtsleh- rer" 01 2002), pp. 7-99. * Alexy, A Theory of Constitutional Rights (n. 1 above), p. 98. 2% Given this impossibility, any difference between intensities of interference disappears. Balancing basod on intensities ean no longor be performed. The scale /, sis the minimal scale. ® Alexy, Verfassungerecht und einfaches Recht ~ Verfassungsgerichtsbarkeit und Fach: erichtsbarkeit (a. 26 above), pp. 25-26.20 Robert Alexy and 1 cannot, then, apply.% What is possible, however, is an illustration of the structure underlying the triadic model with the help of numbers. IV. The Formula ‘There are two fundamentally different possibilities for relating Ji and Jj to each other. The first consists in using arithmetic, the second in using geometric sequences. There are many ways in which the triple /, m, scan be represented as an arithmetic sequence. A very simple example is the sequence 1, 2, 3. On this basis, one can present a formula that determines the weight of a principle in the circumstances of the case at hand — in shor, its concrete weight — as follows: Wig =h-I ‘This formula can be termed the “Difference Formula.” ‘The only symbol in the Difference Formula that has not been introduced thus far is “Wi. “Wi,” is not to be confused with “W?’. “W?’, as already noted, stands for the abstract weight of P.. The detailed notation, ‘WPA’, expresses this clearly, “Wi,’, on the other hand, stands for the concrete weight of Pi, that is, for the weight of P; in the circumstances of the case at hand. In the detailed notation this reads as follows: “WPC® The Difference Formula shows that the conerete weight of a principle is a relative weight. It shows this by determining the concrete weight as the differ- ence between the intensity of interference with this principle (P) and the con- crete importance of the colliding principle (P), where the latter represents the intensity of the hypothetical interference with P through the omission of the interference with P,, that is, through non-interference with P.. This relativity is expressed by “W,)’. The concrete weight of P? is the concrete weight of P, relative toB. If one substitutes the numbers 1, 2, and 3 in the Difference Formula, one ac- quires solutions that are, prima facie, convincing. The nine possible constella- tions of the triadic model, as presented above, are now to be reconsidered. In the first three constellations, in which P, precedes P) - representing them here in a simplified way ~ then Wi acquires the following positive values: ()s,1 2 (2)s, m=3-5 (3) m,1=2-1=1 {© Not excluded, however, isthe application of such scales in ideal models, which represent ‘wat would be the case if infinitesimal scaling in law were possible; see on this N. Jansen, Die Abwcigung von Grundrechten, ‘Der Staat” 36 (1997), pp. 27-54, at 29, 5 On the representation of the relation of the weights of values or principles with the help of| subtraction and addition see H. Hubmann, Wertung und Abwvigung im Recht, Heymann, Kéln 197, pp. 26-27, 162. 2 With the detailed notation the Difference Formula has the following form: WP, C= Re.