Priority of Liberty, Intertemporal Dynamics, and Heterogeneity of interests in balancing

Abstract

This work offers a critical analysis of Alexy’s balancing formula and its positivist version proposed by Duarte, evaluating their capacities and limitations within the context of practical and legal reasoning. First, it examines the problem of the priority of liberty and the balancing of different individuals’ liberties. Second, the work addresses the problem of the intertemporal dynamics of decisions, highlighting how both Alexy’s formula and Duarte’s version tend to exclude the evaluation of the future consequences of present decisions. Third, the problem of the heterogeneity of interests protected by a single principle is identified. The conclusion argues that, although Alexy’s and Duarte’s formulas do not fully resolve these practical and structural problems, their formalization efforts provide a transparent framework for analysis and critical discussion, preventing practical reasoning from being reduced to obscure intuitions or unexamined rhetorical narratives.