In this short video lesson, part of the Legal Fundamentals Explained (LFE) series, Jorge Silva Sampaio (University of Lisbon) explains how the concept of legal balancing is employed in legal reasoning. While logic plays a decisive role in identifying normative conflicts, it proves to be of limited practical use when it comes to resolving those conflicts this is where the technique of balancing becomes essential. The operation of balancing becomes relevant for establishing preferences between conflicting norms and thus resolving normative conflicts.
Below, you can find the full transcription corresponding to this video lesson*.
Jorge Silva Sampaio
This lecture, which is delivered within the framework of the ALF Project and the Lisbon Work Package on Logic and Law, addresses the concept of legal balancing. There is no doubt that logic plays an important role in the legal domain, particularly in verifying the formal correctness of reasoning. Additionally, although logic plays a decisive role in identifying normative conflicts, it proves to be practically useless in resolving those conflicts – a task that is instead carried out by conflict norms.
In fact, statements such as “special norms prevail over general ones” or “higher norms prevail over lower ones” are not grounded in logic. In short, no normative conflict is resolved through adherence to the laws of logic. Still, once a normative conflict is identified, logic is also useful for evaluating the legal reasoning applied when using conflict norms. However, in some cases, there is no norm of conflict capable of resolving the normative inconsistency identified. It is precisely in such cases that the operation of balancing becomes relevant for establishing preferences between conflicting norms and thus for resolving normative conflicts. Therefore, it can be said that balancing becomes significant in the blind spot between logic and law.
In this brief lecture, I will explain two main things: first, the concept of balancing – what balancing consists of – and second, under what conditions it is necessary to resort to balancing.
So, what is balancing? Broadly speaking, balancing can be seen as an intellectual operation aimed at making practical choices in situations where multiple alternatives of action exist. This process is typically guided by the requirements of practical rationality, which dictate that one should choose the option for which there is more reason – for example, the one that is better, has more weight, or is more valuable.
In the legal domain, the term “balancing” is also used with different meanings; it’s ambiguous. In this domain, it can essentially be understood in two main ways. First, as a second-order legal operation with extensive applicability, used in various contexts such as interpretation or gap-filling. For instance, when a norm sentence presents multiple possible meanings and no interpretative norm dictates a specific choice, the interpreter must rely on balancing to select among the linguistic alternatives. Second, balancing can also be viewed as an operation for solving a normative conflict. It is this second meaning that matters here.
When confined to this second meaning, balancing is an intellectual operation used for solving normative conflicts, especially for establishing an order between conflicting norms, and more specifically, a preference for a heavier one. Therefore, a normative conflict is solved through balancing either when carried out by a normative authority such as a legislator or a legal official such as a judge, by comparing the weight of norms or the reasons related with these norms in the normative scenario at stake. This shows balancing as an autonomous operation. The outcome is reached by an agent and not provided by a norm of conflict of the legal system.
So, in order to establish which norm is to be preferred, an agent assigns weight to the conflicting alternatives – or better said, to the reasons supporting the application of each. The process involves an evaluative comparison of various factors, such as reasons, interests, consequences, or costs and benefits for and against each alternative.
Finally, regarding balancing effects, the defeated norm does not become invalid but merely unapplied in that particular case. This is what some scholars call an axiological hierarchy. This means that in a new conflict, a change of circumstances or new properties at stake may justify the defeat of the previously preferred norm.
When is balancing needed? Under which conditions or properties is balancing relevant? Balancing can take place only under two necessary and jointly sufficient conditions: first, the existence of a conflict between norms; and second, the inapplicability of any norm of conflict within the system.
This means that balancing is not only a residual operation but also that it is reserved for normative scenarios of strong indeterminacy – those where the legal system offers multiple incompatible solutions without providing the tools, that is, a norm of conflict, to select one of them.
The second condition occurs specifically when, first, no norm of conflict applies – such as lex superior, lex specialis, or lex posterior – because, for example, the norms in conflict have the same hierarchy, or the norms in conflict are not in a relation of generality and specialty. Second, when more than one norm of conflict applies, but they produce incompatible effects, creating a second-order normative conflict between those norms of conflict for which the legal system has no second-order norm.
It can be said then that normative conflicts leading to balancing are a sort of irresolvable normative conflict.
The two conditions under which balancing ought to take place also show two relevant things. The first is that balancing is unavoidable when its conditions are met. The second is that balancing is pertinent when the normative conflict is irresolvable – and not because the conflict involves principles.
So, regarding the first point, there is no sense in criticizing balancing as an irrational or arbitrary operation, since no other alternative method exists to deal with the scenario of an unsolvable or irresolvable normative conflict. Ultimately, given the duty of non liquet, a solution ought to be obtained.
Regarding the second point, balancing is not dependent on the nature of the norms in conflict. This means that there is no conceptual connection between principles and balancing. Rather, balancing depends on the irresolvability or unsolvability of the conflict, considering the norms of the system – the norms of conflict of that system.
It is exactly the legal requirement for a single deontic status that justifies the need for balancing. Therefore, the fact that the norms in conflict are principles or rules is, for these purposes, totally irrelevant. This is so because there are also examples of conflicts between rules that cannot be resolved by the system’s conflict norms. For example, a conflict created by a rule requiring one to stop at a red traffic light and a rule prohibiting stopping in front of a military facility, which is not solved by lex superior, lex specialis, or lex posterior.
Even so, due to their general structure, principles are particularly disposed to conflicts that can only be resolved through balancing. Given that a significant number of fundamental rights are conferred by norms with the structure of principles, conflicts between constitutional principles are a paradigmatic example of irresolvable conflicts requiring balancing.
For instance, the imposition of a lockdown during a pandemic is prima facie mandated by the fundamental duty to protect life, while also prima facie prohibited by the fundamental freedom of movement. Since lex superior, lex specialis, and lex posterior do not apply to constitutional conflicts – at least normally, as these conflicts involve norms of identical hierarchy, raise no issues of specialty, and were enacted at the same time – the only way to resolve such conflicts is through balancing.
However, one should not think that legal balancing in these cases is identical to the weighing of reasons in the domain of practical reason. In fact, balancing judgments used to resolve normative conflicts, such as constitutional ones, are invariably regulated by other legal principles, such as the principle of proportionality or the principle of equality.
For example, a lockdown imposed as a result of balancing cannot lead to a disproportionate or discriminatory restriction of the freedom of movement – such as a total, permanent stay-at-home order in the case of a mild pandemic, or a ban on leaving the house that applies only to women.
Thank you very much.
(*some minor grammatical and changes have been introduced in order to make the reading more fluid, but in no way altering the content or the format of each speaker’s interventions).
The LFE video series is powered by the EU Horizon Twinning project “Advancing Cooperation on The Foundations of Law – ALF” (project no. 101079177). This project is financed by the European Union.
