An Antinomy in Alexy's Theory of Balancing

Abstract

AbstractThis article argues that Robert Alexy's influential theory of balancing is affected by a contradiction that makes it unfeasible as an instrument by which to explain some aspects of law and legal reasoning it aims to clarify. In particular, I will show that one of the premises of Alexy's theory of balancing is incompatible with its conclusion. Alexy's theory is based upon a sharp distinction between rules and principles. However, as my analysis will demonstrate, its conclusion implies that it is impossible to distinguish between rules and principles. This is because the so‐called weight formula and the law of colliding principles (i.e., the two main notions used by Alexy to explain balancing) cancel out any difference between these two types of norms.