Abstract
I will argue that the balancing of normative arguments constitutes a specific form of reasoning, which may be called “autonomous reasoning” and cannot be reduced to a type of argument where the result is inferred from premises or criteria established without a balancing. The distinction of balancing from subsumption and deduction as a distinct mode of legal reasoning is cast in doubt in particular by Robert Alexy’s thesis that balancing follows an inferential scheme, called “weight formula”, which allows one to derive the result of the balancing from certain factors. Thus, however, balancing can be understood as a specific case of subsumption and deduction. By contrast, I will defend the view that balancing constitutes a form of reasoning that cannot adequately be reconstructed by means of an inferential scheme. Rather, the balancing of normative arguments includes an element of autonomous choice subject to constraints of rationality, which allows one to justify normative judgments and statements in a rational manner.
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Notes
- 1.
See, for example, Dworkin (1986), Besson (2005).
- 2.
- 3.
- 4.
- 5.
The discussion on balancing was instigated by Ronald Dworkin (1978, 22pp.). However, Dworkin contributed little to the further analysis of balancing and offers a model of interpretation that does not make a clear distinction between subsumption and balancing, see Dworkin (1986).
- 6.
Sieckmann (1990, 18), Stück (1998).
- 7.
Alexy (2009, 16). The “weight formula” has been criticized in various respects. See, for example, Bolaños (2010), Moreso (2007), Riehm (2006), Sieckmann (2010b). The point made here does not depend, however, on these critiques, but concerns the more general issue of whether, and to which extent, a deductive or inferential reconstruction of balancing is possible.
- 8.
This also corresponds to the thesis of Klatt and Schmidt that uncertainty does not exist with regard to balancing, because balancing according to the “weight formula” consists in a mere mathematical calculation. See Klatt and Schmidt (2010, 45f.).
- 9.
- 10.
- 11.
Any argument can be presented in deductive or inferential form. The crucial point is that this presentation remains incomplete in so far as the argument includes non-inferential elements. In particular, it refers to the determination of relative weight, strength or importance that the agent doing the balancing makes.
- 12.
See, in particular, Alexy (2009), who describes his “weight formula” as an inferential scheme.
- 13.
An argument on this point refers to the abstract weights of the conflicting requirements, which are factors relevant to the balancing that can only be determined by means of balancing. They are not properties of arguments, norms, or principles that are independent from any conflict. See also Barry (1990). Rather, they are abstractions from the determination of relative weights of conflicting norms in previous or hypothetical cases. However, the abstract weights established on the basis of previous decisions or hypothetical cases cannot command the weighting in the actual balancing. Treating them as strictly binding would contradict the idea of autonomy. Individual autonomy implies the right to form a normative judgment on one’s own, see Sieckmann (2007). It would be to deny this right if we were to assume that the individual judgment was strictly bound by previous determinations. It is thus the idea of autonomy that excludes to reduce balancing to some form of inferential reasoning, such as subsumption and deduction.
- 14.
- 15.
Thus, the balancing requires not only the conflicting arguments but also supplementary arguments concerning the relative weight and the degree of fulfilment or non-fulfilment of the requirements included in the conflicting arguments.
- 16.
By contrast, in moral discourse the term “principle” is often used to denote norms of strict validity. One can explain the difference by the fact that principles are often regarded as important norms of general character, and that in law, in order to count as legally valid, a normative argument must be sufficiently strong to establish an obligation of law-applying organs to take this argument into account in their legal reasoning. Important arguments usually have a wide range of application, so that they may well be called “principles”. By contrast, in moral reasoning any legitimate interest-based claim of an autonomous agent counts, but not all such claims qualify as principles. See Sieckmann (2010a).
- 17.
On the notion of principles see Sieckmann (2011).
- 18.
See the “law of competing principles” (Kollisionsgesetz) in Alexy (2002).
- 19.
The philosophical discussion of the notion of justification seems to be concerned primarily with the justification of beliefs. See Alston (1989), Audi (1993). By contrast, focussing exclusively on reasons for action, Raz (1999, 15). In any case, the issue of justification only occurs if one asks whether one should or may hold some belief. The choice of beliefs may be seen as a special case of action. With regard to states of affairs, it makes no sense to ask for a justification if they cannot be brought about or changed by some sort of action. Therefore, the justification of actions seems to be elementary.
- 20.
In some cases, the critique of balancing judgments might even imply positive normative statements as to which norm is valid. For example, if public agencies need a justification for interfering with individual rights, balancing them with competing arguments, but the balancing is faulty and therefore does not yield the justification required, then it follows that the interference is prohibited.
- 21.
The expansion of the realm of rational argumentation beyond logic and empirical facts one finds also in the “New Rhetoric” of Perelman, who draws upon the Aristotelian dialectic against the Cartesian limitation of rationality to analytical and empirical arguments. See Perelman y Olbrechts-Tyteca (1971). However, the following analysis is not concerned with the ideas of Perelman or Aristotle, but only with the analysis of arguments that figure as reasons for judgments based on balancing.
- 22.
- 23.
One might simply write ∃x Sx, using S as a predicate about state of affairs as object. This would not conform, however, with the usual distinction between sentences and predicates.
- 24.
- 25.
Accordingly, “requirement for validity” should in general, if not otherwise indicated, be read as “requirement for definitive validity”.
- 26.
Validity is understood here in a normative sense, that is, as the implication that a valid norm ought to be applied and followed.
- 27.
Although one finds attempts to analyse normative conflicts by means of normative statements or propositions, for example, by means of optimising requirements, prima facie- or pro tanto-norms, or defeasible norms, these conceptions weaken the content or the character of validity of the respective norms in a way that makes them incapable of figuring as arguments in the situation of conflict. See Sieckmann (2011).
- 28.
As to this notion see Sieckmann (1990).
- 29.
This holds if normative arguments are constructed as a compound of deontic operator (O), norm content (p), and ascription of validity (VAL). A more complex analytical framework might offer further alternatives, as Alexy (2000) suggests. However, it is not clear what this framework might be and, anyway, it is not plausible to use a more complex framework if a more elementary framework is available.
- 30.
Thus, rational discourse or other forms of participatory procedures are not merely an instrument to get a correct or, at least, a better result, but they are constitutive elements of normative justification.
- 31.
There are various suggestions how to cope with this problem. See, for example, Buchwald (1990, 232ff.). However, the question of whether the trilemma of justification can be resolved within deductive reasoning is beyond the scope of the present analysis. The point here is that autonomous reasoning presents a complete model of normative justification, in which the trilemma of justification does not occur.
- 32.
By contrast, normative statements claim to state what is definitively valid. They claim to state the result of an argumentation and, thus, to finish it, and not to open or continue it. This difference is important because the sceptical strategy of “why”-questions has different effects for normative statements than for normative arguments. If someone makes a normative statement, thus claiming to end an argumentation, he must be able to support this claim in a finite number of steps; otherwise, he looses the argument. If, by contrast, someone opens an argumentation with a normative argument, the sceptical strategy will never bring him into the difficulty of presenting a new argument. A first order requirement for validity of N is different from a second order requirement, and so on. Each of them is supported by the possibility of reiteration. Hence the proponent can always present a new argument. This does not make much sense. But this is not the problem of the proponent. It is the sceptic who blocks further argumentation by provoking a senseless reiteration. This, however, is irrational. Therefore, one cannot rationally ask “why”-questions demanding further arguments if the proponent can show that he is able to present a normative argument supported by reiterated requirements for validity.
- 33.
Normative power in the sense of Hohfeld as the capability to change the normative situation. See Hohfeld (1923).
- 34.
There may be exceptional cases in which interests are not furthered by the existence of norms demanding respect for them.
- 35.
This structure holds for teleological arguments in general. If the validity of a norm serves to guide action, and the fulfilment of the required action serves a particular goal, the validity of the norm is demanded as a means to fulfil this goal. However, interests are special because in an autonomy-based theory they must necessarily be accepted as a basis of valid arguments. Interests are whatever autonomous agents demand to be realised and respected in procedures of normative justification. One must acknowledge these claims at least in principle if there should be any chance of finding a result that must be accepted by the autonomous agents involved.
Autonomous interests are the primary and, presumably, the only source of normative arguments. By contrast, arguments directly referring to religious or traditional authority, which are not supported by autonomous interests, do not have the structure of reiterated requirements for validity. Such arguments refer to an authoritative act that claims to be a final justification and are not meant to contribute to an argumentation. Thus, an interesting result of the conception of normative arguments as reiterated requirements for validity is that precisely those normative claims are disqualified as normative arguments that have been the main target of the reason-based tradition of enlightenment.
- 36.
More elegantly, one might say that the result is required by the stronger of the competing normative arguments. This, however, would suggest that the strength of the argument is an objective criterion, which could be applied by the agent involved. By contrast, it is important to emphasize that the strength of the argument is to be determined by the agent himself in his balancing. For this reason, the argument cannot be presented as an inference. An argument “I regard argument A to be stronger than the competing arguments. Therefore, everyone ought to accept the result supported by A.” would not be justified as a logical inference. Still, it is justified as a claim made by an autonomous agent.
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Acknowledgments
I would like to thank the editors of this volume for their substantive comments that helped to improve on this paper, and Justin Newton for advice on matters of English style.
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Sieckmann, J. (2013). Is Balancing a Method of Rational Justification sui generis?. In: Dahlman, C., Feteris, E. (eds) Legal Argumentation Theory: Cross-Disciplinary Perspectives. Law and Philosophy Library, vol 102. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4670-1_12
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