Brute balancing, proportionality and meta-weighing of reasons

The present paper aims at analysing and fleshing out the concept of balancing and explores to what extent the discourse of reasons can be helpful in weighing contexts. First of all, I will conceptually distinguish between brute balancing and guided balancing, proportionality and weighing. Then I will argue that the solution of constitutional conflicts irresolvable by norms of conflicts require balancing under a set of relevant circumstances; but the most important step in the legal reasoning at stake concerns a second-order weighing process which makes it possible to justify the values to be attributed to intensities of interferences, as well as to degrees of certainty. I will also claim that the object of weighing are reasons and not norms themselves, as well as that reasons and not principles are the weight bearers. For this endeavour, I will develop a model of reasons inspired by the particularist practical reasoning apparatus to be used as the main tool for decision-makers to solve prima facie irresolvable normative conflicts in light of particular cases’ properties, which I believe do constitute a case of local particularism. According to this model, reasons can vary across contexts as a result of conditions (enablers and disablers) that create and eliminate reasons to act, and modifiers (intensifiers and attenuators) that change the weight of the normative reasons to act. Lastly, I will argue that this model, although it can operate independently, can also be envisaged as the ideal complement to Alexy’s “Weight Formula” regarding its external justification.