Abstract

CARDENAS GRACIA, Jaime. Idea, Validation and Criticism of the Principle of Balancing. Bol. Mex. Der. Comp. [online]. 2014, vol.47, n.139, pp.65-100. ISSN 2448-4873.

The principle of balancing is an argumentative structure that provides juridical solutions when fundamental rights have problems coexisting with one another. It allows to maximizefundamental principles within their own factual and juridical boundaries and consists of three sub-principles: suitability, necessity and weighting. The sub-principle of suitability serves to determine if state intervention in matters of fundamental rights has a constitutional basis. The sub-principle of necessity has the purpose of determining if the state intervention infundamental rights is the least onerous alternative. The weighting sub-principle allows us to choose the constitutional principle that should prevail. The principle of balancing is a tool to bring harmony between fundamental rights in specific situations and it is superior to other methods of constitutional interpretation because it does not state a hierarchy a priori in constitutional principles but promotes the maximization offundamental rights if possible.

Keywords : Balancing; Necessity; Weighting; Suitability.

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