Diskursinis konstitucionalizmas atliekant konstitucinių principų balansavimo ir proporcingumo analizę

Abstract

The methodology of a proportionality analysis and balancing is grounded upon the idea of discourse constitutionalism which is based upon three theses. First, the rule of balancing constitutional principles: the greater extent of interference in one constitutional principle is, the greater need to protect other constitutional principle will arise. Second, balancing is grounded upon rational arguments which can be expressed explicitly by the formula of weights of constitutional principles. Third, interpretation of the Constitution by means of rational arguing is a condition of democratic legitimacy of judges; such a condition is implemented only when the judge presents his rational argumentation regarding collision of constitutional principles and arguments of how these principles should be adjusted with one another.