"Balancing as reasoning" and the problems of legally unaided adjudication: a rejoinder to Francisco Urbina

The conception of balancing which I outlined in my essay “Proportionality: Challenging the Critics” and developed at greater length in chapter 6 of my book The Global Model of Constitutional Rights connects “balancing” to “reasoning.” When we say, for example, that we have to strike an adequate “balance” between privacy and security, then this is best interpreted as meaning that there is a conflict between the two values and that we must develop a moral argument addressing the question of how much of each should be protected. Thus, in contrast to how some critics would have it, properly understood, the notion of balancing does not necessarily refer to consequentialist reasoning or mechanical ways of quantification and comparison, but simply directs the judge to resolve a conflict in line with sound moral principles...