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A Rule Based Model Of Balancing

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Chapter Summary

This chapter presents a rule based model of balancing. Its features are: (a) Justifications of interferences with rights are assessed sequentially. (b) Each assessment step is governed by rules. (c) Missing rules may be found by applying non-deductive methods of legal reasoning. This rule based structure is also inherent to the last step of the proportionality principle. In contrast to Principle Theory, the rule based model is based on a satisficing ideal of decision making. This requires that the decision making process is broken down to simpler rules, which can be applied in a binary way. Finding rules based on principles does not work in the scheme of balancing but by having recourse to coherence, consistency and universalizability, i. e. striving for the formulation of universally applicable, operable rules that fit into the legal order and that serve as premises in deductive reasoning.

Keywords: balancing model; decision making process; rule based model



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