Defeasibility and Balancing

Abstract

“Defeasibility” and “balancing” are expressions introduced in recent times to deal with long-standing legal phenomena, which in the context of the constitutional state acquire a special prominence. What is at issue, in fact, is the necessity to recognise exceptions implicit in the norms, in order to provide the legal system with the flexibility needed to maximise the chances of finding a correct—just—answer without abandoning the legal system; and (which to a large extent is another aspect of the same phenomenon) to resolve difficult cases (those for which there is no predefined rule, but only principles) argumentatively, by resorting to a procedure, balancing, the use of which does not necessarily imply an exercise in arbitrariness, although it does involve certain risks that recommend a prudent and limited use of this resource. The last part of the paper summarises the ideas that legal theorists and practitioners should bear in mind in order to understand and make proper use of these two controversial but indispensable notions.