Balancing rights and values in the Italian Courts: a statistical and conceptual analysis

摘要

The concept of balancing is of central importance in the assessment of legislative choices and in constitutional review. In conformity with the global tendency, balancing is increasingly used in judicial practice as an argumentation technique for solving legal disputes; more and more, judges of all levels ground their decisions on the balancing of individual rights, interests, principles, needs, and values. Legal science has formulated theoretical and formal models to explain the argumentation structure of balancing and the criteria governing the argumentation process, but, in the absence of a conceptual model that encompasses all elements in play and enables a comparative mechanism to be abstracted, mapping instances of judicial practice to abstract theories is still difficult. In this context, the objective of the project described here is to allow the logic of judicial practice emerge from cases, verifying from the bottom up the assumptions of theoretical models. Starting off from a broad analysis of Italian cases, the paper aims at analysing the object of this operation, i.e. what is `balanced' and what is the nature of this process. The research was conducted by analysing the so-called `massime' (case law abstracts) of the Italian High Courts (Constitutional Court, Supreme Court, Council of State) of the administrative courts (Regional Administrative Tribunals) and of a selection of lower court decisions. The methodology is divided into an initial phase of documentary collection and storage, a second phase of conceptual modelling and a third phase of data analysis.