Comments on Duarte’s “Once Again: The Positivist Weight Formula”

Abstract

This paper examines Duarte’s critique of Alexy’s model of balancing fundamental rights. According to Duarte, the model is incompatible both with the content of the proportionality rule in positive law and with ist judicial application. His analysis focuses on three objections: the conflation of normative and epistemic elements, the presupposition of hierarchies among conflicting rights, and the introduction of a “moral parasite” that brings morality into legal reasoning. As an alternative, he proposes a new formula consistent with legal positivism. The critique, however, extends beyond Alexy’s theory to any mathematical model of rights balancing. While proportionality merely sets limits on the discretion of authorities, balancing models tie decisions to preference relations between rights. Underlying this is the debate between positivism and antipositivism, particularly Alexy’s thesis on the necessary connection between law and morality. Duarte’s position aligns more closely with positivism, rejecting ontological assumptions embedded in morality. Nonetheless, Alexy’s model can be reinterpreted as an independent framework of argumentative rationality, useful for constraining judicial reasoning without committing to moral or metaphysical claims.