¿Qué es ponderar? Sobre implicaciones y riesgos de la ponderación / What is weighing up? On implications and the risk of weighing

Abstract

According to a widespread and fashionable paradigm in current legal theory, most legal norms are to be properly described as principles, something which is then said to entail that courts should decide cases by means of weighing and balancing the underlying conflicting principles. As a result, a form of reasoning that pertains to the realm of morals (and which is hardly compatible with the regulatory ideal of the Rechtsstaat) is made part of the province of law. This move is pregnant with momentous consequences; in particular, a ‘principled’ understanding of law leads to a deep transformation of the standards of argumentative rationality governing judicial decision-making.

Keywords: assessment, discretionality, judicial decision-making, subsumption weighing and balancing.