法律权衡方法的形式理性——基于偏好聚合的分析(The Formal Rationality of Legal Balancing Methods: An Analysis based on Preference Aggregation)
Published in 逻辑学研究(Studies in Logic), 17(2), 2024
Abstract: An important inquiry of legal balancing theory is about the way in which the methodological 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 rationality to legal balancing. Based on the mathematical form of preference aggregation, the definition and examination by social choice theorists on the formal rationality of collective 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 methodological deficiency.
Recommended citation: Tianwen Xu. (2024). "The Formal Rationality of Legal Balancing Methods: An Analysis based on Preference Aggregation." Studies in Logic. 17(2).
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