A defense of balancing. Reply to some criticisms

Abstract

This article is an introduction to a current discussion yet. With that intention, I will do schematic exposition about the most important theoretical topics and I will omit some aspects or details about some authors and their approaches. The reader must follow up the conceptual cartography and to go deeper into those aspects whose I cannot to work. This article has a propaedeutic intention. So, I reconstruct the theoretical context of birth of the balancing in order to expose how the balancing became in the major mechanism for resolving conflicts between Fundamentals Rights. In first moment, Robert Alexy’s theory of the balancing was the most relevant referent for the theorist and judges. But during the discussion inside theory of law in Ibero-America, some authors have formulated alternative models of balancing for to respond some critics about the irrationality and injustice of the balancing. Here, I will sketch out two of those models.