Normative Systems and Conflicts of Constitutional Rights: ¿is it Possible to Apply Fundamental Rights without Balancing?

FEDERICO LEANDRO DE FAZIO

Saint Petersburg

Conferencia; Normative systems: ethics, politics and law; 2014

Universidad Pública de San Petersburgo

This paper seeks to answer the following question: is it possible to solve fundamental rights disputes without balancing? To answer this question we will describe that theory which proposes to reconstruct normative systems for constitutional conflict cases, represented in the work of Prof. J. J. Moreso, which is presented as a formal methodology that does not need the balancing test reconstructed by Prof. R. Alexy. We will conclude that, even though this theory might be a good complement to formalize judicial decisions on constitutional matters, it cannot replace the balancing plane. This can be clearly discerned in cases where fundamental social rights claim validity, since arguments supporting material equality implies, as a concept, necessary to balancing.