A CRITICAL ANALYSIS OF GUASTINI’S UNDERSTANDING OF CONSTITUTIONAL RIGHTS CONFLICTS AND THE BALANCING TECHNIQUE

Authors

  • Luka Burazin University of Zagreb, Faculty of Law
  • Marin Keršić University of Split, Faculty of Law

DOI:

https://doi.org/10.30925/zpfsr.45.3.1

Keywords:

balancing, antinomies, constitutional rights, criterion of specialty, judicial reasoning

Abstract

The paper discusses constitutional rights conflicts and examines balancing as the best known and most widespread technique for resolving such confl icts. It provides a critical analysis of how Riccardo Guastini, the main representative of the Genoese school of legal realism, understands constitutional rights confl icts and balancing. The paper aims to answer four main questions. First, what is the nature of constitutional rights conflicts? Second, how does balancing differ from Guastini’s version of the lex specialis criterion as a possible alternative method for resolving constitutional rights conflicts? Third, what is the function of balancing in judicial reasoning? And fourth, according to Guastini, what makes balancing an act of legal construction?

Additional Files

Published

2024-12-15

How to Cite

Burazin, L., & Keršić, M. (2024). A CRITICAL ANALYSIS OF GUASTINI’S UNDERSTANDING OF CONSTITUTIONAL RIGHTS CONFLICTS AND THE BALANCING TECHNIQUE. Collected Papers of the Law Faculty of the University of Rijeka, 45(3), 491–517. https://doi.org/10.30925/zpfsr.45.3.1

Issue

Vol. 45 No. 3 (2024): Collected Papers of the Faculty of Law of the University of Rijeka

Section

ARTICLES

License

Copyright (c) 2024 Luka Burazin, Marin Keršić

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