Since human rights are articulated as standards, they cannot be applied through legal qualification of facts. To justify the application of human rights standards, weighting and balancing of competing interests inherent in human rights is necessary. In the legal doctrine weighing and balancing is considered as a method of legal reasoning that differs from and is additional to the legal qualification of facts (the so-called subsumption). Since research of weighing and balancing of human rights as a method of legal reasoning has not been provided yet in Ukrainian legal theory, the purpose of this article is to fill this gap.

The author concluded that there is no a clear vision of the subject-matter of weighing and balancing in the legal doctrine. Both legal principles and human rights as well as arguments are reasonably considered to the subject-matter of weighting and balancing. Human rights function as legal principles in terms of their application. Comparable features inherent in the legal principle or human right should be weighted, namely: the interests incorporated in each of the competing human rights; values incorporated into each of the competing legal principles; the consequences of giving preference to one or another of the competing legal principles or human rights. Otherwise, such weighing becomes false.

The particular steps and patterns of weighting and balancing of human rights are under consideration. It is stated that Ukrainian courts mainly follow the European Court of Human rights providing balancing test to evaluate whether the inference into a particular human right had basis in law and whether it could be justified by legitimate aim and was necessary in democratic society. However, the weighing and balancing of human rights is not limited to this proportionality test. The author examines doctrinal views of balancing test stages, which can be used to seek a balance of competing interests inherent in human rights.

Bibliography

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Edited and translated books

6. Alexy R, A Theory of Constitutional Rights (trans J Rivers, Oxford University Press 2002) (in English).

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Journal articles

9. Alexy R, ‘On balancing and subsumption. A structural comparison’ [2003] 16 (4) Ratio Juris 448 (in English).

10. Dudash T, ‘Analyzing Legal Argumentation: What Theoretical Model is the Most Comprehensive?’ [2022] 31 (3) Studia Iuridica Lublinensia 85 (in English).

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13. Berzaniuk Y, ‘Pryntsyp proportsiynosti u praktytsi Yevropeiskogo sudu z prav liudyny’ [2021] 6 (18) Ekspert: paradygmy yurydychnykh nauk i derzhavnogo upravlinnia 197 (in Ukrainian).

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Conference papers

16. Pohrebniak S, ‘Pryntsyp proportsiynisni v ukrayinskiy yurydychniy praktytsi ta praktytsi ESPL’ v Kivalov S (red), Pravove zabezpechennia efektyvnogo vykonannia rishen i zastosuvanniapraktyky Yavropeiskogo sudu z prav liudyny: zbirnyk naukovykh statei Mizhnarodnoyi naukovo-praktychnoyi konferentsiyi (2012) (in Ukrainian).

Theses

17. Kistianyk V, ‘Sudova argumentatsiia: osoblyvosti, porivnialnyi analiz ta vitchyzniana i zarubizhna praktyka’ (dys kand yuryd nauk, 2021) (in Ukrainian).