The Formal Rationality of Legal Balancing Methods—An Analysis based on Preference Aggregation
An important inquiry of legal balancing theory is about the way in which the method-ological effectiveness of a balancing method can be assessed generally without case-by-case verification.A solution from the viewpoint of formal rationality can be found in the'preference aggregation'model used by social choice theory for studying collective decision-making.Case studies show that legal balancing and collective decision-making share the mathematical form of preference aggregation.They both operate as transitions from plural individual preferences to a single overall preference.With this connection,the analyses of paradoxes in social choice theory reveal the necessity of formal rational-ity to legal balancing.Based on the mathematical form of preference aggregation,the definition and examination by social choice theorists on the formal rationality of col-lective decision-making can also be transformed to a general scheme for verifying the formal rationality and methodological effectiveness of legal balancing methods.As a pilot example,the scheme is applied to Alexy's'weight formula'and helps to discover the weight formula's characteristics regarding formal rationality as well as its method-ological deficiency.
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