• 1 On the case of Jodie and Mary, see Zucca 2008: 26 ff.

1Legal operators are often called upon to deal with complex legal issues with non-linear solutions. Take the case of Jodie and Mary, two conjoined twins whose separation, although necessary, would only guarantee the survival of one of the sisters. Although surgery would be the only way to ensure Mary's right to life, it would also interfere with Jodie's right to life.1 The problem at hand is one of application: the question is whether performing the surgery is, all things considered, prohibited, imposed, or permitted — or, from another perspective, which right prevails (Mary's right to life or Jodie's right to life).

• 2 Note that the potential satisfaction of the duty towards the second group does not weaken the examp (...)

2This phenomenon may also occur at the law-making level. Consider the case of COVID-19 vaccination campaigns. Initially, there were not enough doses to vaccinate the entire population, so it was up to the States to decide which groups to prioritise. The norm that enshrines the right to health gives rise to different prima facie duties falling on States — the duty to vaccinate A, B, C, D, and so on. Once again, normative authorities must determine which duty prevails at any given time, by issuing norms that define the priority groups for vaccination. However, vaccinating one group first and another last implies a limitation of the latter's fundamental right to health, even if constitutionally justified.2

• 3 This terminology is used by António Veloso in Veloso 2003: 208 and 220-227.
• 4 This study will focus mainly on norms that grant fundamental rights. However, uninormative conflict (...)

5This paper examines these conflicts in more detail and refers to them as uninormative conflicts. Two main claims are made: (i) that uninormative conflicts should be framed within a broader notion of normative conflicts; and (ii) that the theoretical tools developed against the background of plurinormativity can also be applied, mutatis mutandis, to the field of uninormativity.3 To this end, we begin with the widespread notion of normative conflict, which is then put to the test regarding uninormative conflicts. Although this phenomenon has hardly been addressed in the literature devoted to the general theory of normative conflicts, the few extant attempts to frame this type of conflict will be briefly explained, along with a critical reflection on their strengths and shortcomings. Subsequently, an alternative view of the identification of uninormative conflicts will be presented. Finally, the process of solving uninormative conflicts will be discussed, identifying both its peculiarities and its links with plurinormativity.4

• 5 See, inter alia, Bobbio 2009: 177 ff; Duarte 2010: 51 ff and Guastini 2017: 143. This definition ha (...)
• 6 See Ross 2009: 128 ff.
• 7 See Nino 2003: 273.
• 8 For a further development of these arguments, see Martínez Zorrilla 2007: 89-123; Moniz Lopes 2019: (...)

6It is commonly held that for a normative conflict to emerge, two conditions have to be met: there must be an overlap of normative antecedents and an incompatibility of deontic effects.5 According to Ross's well-known classification, there is an overlap whenever the antecedents of two (or more) norms are in a (i) total-total, (ii) total-partial, and (iii) partial‑partial relationship.6 Thus, the first step in identifying a normative conflict is to determine whether two or more norms are applicable to the same case.7 Regarding the second condition, one must ascertain whether there is an incompatibility between deontic operators or between the norms’ deontic consequences. The former is commonly referred to as deontic contradiction, and the latter as logical contradiction. What distinguishes them, however, is simply the element of normative structure that dictates the contradiction. Since the structure of a norm is the result of a choice made by the normative authority, and given the interdefinability of the deontic operators, the source of the contradiction is irrelevant in the field of law.8

• 9 See Guastini: 2011, 291 ff; Duarte 2010: 55; Pino 2013: 182 ff. Arguing that normative systems do n (...)

7For some authors, however, normative inconsistency is not a necessary condition for the emergence of normative conflicts, and a distinction is drawn between conflicts in abstracto and conflicts in concreto (or conflicts of instantiation). Conflicts in abstracto are defined as those in which two norms connect incompatible legal consequences to classes of cases that overlap conceptually, and the antinomy is identified a priori, without any empirical occurrence. Conflicts in concreto, on the other hand, do not involve normative inconsistency — i.e., norms do not conflict in abstracto because they regulate conceptually independent classes of cases. For this reason, they arise on the application level: the incompatibility between the norms is established after the respective antecedents have been fulfilled by the facts, and it is from this factual context that the inconsistency emerges.9

• 10 See Duarte 2010: 55; Guastini 2011: 294; Pino 2013: 182-184.
• 11 This example is adapted from the well-known example presented by Alchourrón in Alchourrón 1981/2018 (...)

8According to this view, since there is a total overlap between the classes of cases, total‑total conflicts are qualified as conflicts in abstracto. When the applicability of a norm dictates the applicability of another norm that is incompatible with the former, the emergence of a normative conflict is not only inevitable but is detectable in abstracto, regardless of the factual context. In the case of the total-partial relationship, the conflict is inevitable, in the sense explained above, whenever the so-called special or exceptional norm is applicable. The same does not hold for the applicability of the general norm, however, since it does not necessarily imply the applicability of the special or exceptional norm. Finally, the partial-partial relationship is often linked to conflicts in concreto. Since these norms do not share all conditions of application, even if they establish incompatible consequences, the applicability of one of the norms does not necessarily lead to the applicability of the other.10 For example, the fact that norm₁ “if the vehicle is in motion and there is a stop sign, it is mandatory to stop” and that norm₂ “if the vehicle is in motion and there is a government institution nearby, stopping is forbidden” belong to the same legal system does not necessarily lead to a normative conflict.11 This will only occur if the three conditions laid down in the norms (vehicle in motion, stop sign, proximity to a government institution) are met.

• 12 Even its proponents disagree about which conflicts fall into in each category. For example, David Z (...)
• 13 See Moniz Lopes 2019: 335-342. Highlighting this and other objections, see Sardo 2018: 8 ff.

9Several authors have recently questioned the accuracy and relevance of this distinction.12 Among other objections, they argue that defending the consistency between two (or more) norms given one set of facts and their inconsistency given another set of facts challenges the separation between is and ought. If the norms are in an apparent relationship of indifference, and the intersection between their antecedents occurs only in certain factual contexts, then the identification of the normative conflict is entirely subordinated to the real world — it is human behaviour, events, or states of affairs that cause the conflict.13

• 14 In addition to this path, Alessio Sardo proposed a semantic approach, focused on the meaning ascrib (...)
• 15 See Ratti 2013: 95 ff.

10This distinction can therefore be rejected by showing, based on logical arguments, that all cases of normative conflict involve an intersection of antecedents that can be identified in abstracto without relying on the empirical world.14 Based on the assumption that two norms can conflict as long as the conjunction of the generic cases they regulate is conceptually possible, the conflict is identified by means of strengthening of the antecedent.15

• 16 See Ratti 2013: 95 ff, although the example was introduced by Guastini (2011: 291 ff) as a case of (...)

11To see this, suppose there is a norm requiring citizens to pay taxes (norm₁) and a norm exempting the unemployed from paying taxes (norm₂). Bearing in mind the strengthening of the antecedent, it is possible to extract norm₁* (if x is a citizen and is unemployed, then x is obliged to pay taxes) from norm₁ (if x is a citizen, then x is obliged to pay taxes). The same applies to norm₂* (if x is unemployed and is a citizen, then x is not obliged to pay taxes), which can be extracted from norm₂ (if x is unemployed, then x is not obliged to pay taxes). As Giovanni Battista Ratti points out, the two norms apply to any situation in which x is a citizen or y is unemployed, even if, at the same time, x is unemployed, and y is a citizen. Hence, not only are the two norms in conflict, but the conflict is identifiable in abstracto.16

• 17 See Ratti 2013: 95 ff.

12For the above-mentioned reasons, the argument that (at least) some conflicts are entirely case-dependent is untenable given the separation between is and ought. The fact that the inconsistency is fully identifiable through the properties of a factual context does not undermine this idea. The abstract inconsistency is detectable through the mere conceptualisation of that case. As Ratti rightly observes, those who favour the distinction between conflicts in abstracto and in concreto mistake the empirical occurrence of an antinomy for its conceptual identification.17

• 18 See Sardo 2018: 10 ff.
• 19 See Moniz Lopes 2019: 333-342; Sardo 2018: 12 and 15-17. However, according to the latter author, t (...)

13In fact, all conflicts depend to some extent on concrete cases. They are only discussed and decided by legal operators when several conflicting norms are instantiated by a factual context.18 This does not mean, however, that it is impossible to detect the inconsistency in abstracto. Although all antinomies can be detected at an abstract and theoretical level, a distinction must be made between cases where there is a mere possibility of an empirical occurrence of a normative conflict and cases where the antinomy necessarily occurs at a practical level.19

• 20 On the approach focused on the agent's perspective, see Martínez Zorrilla 2011b: 732 ff.

15As mentioned, the literature on normative conflicts takes plurinormativity as its paradigm. Nevertheless, at least from a so-called pragmatic perspective, which focuses on the agent, a failure of the legal system to regulate behaviour also occurs in cases of conflicts that stem from a single norm.20 To return to the example of Jodie and Mary, a single fundamental rights norm grants the same legal position to different addressees: Jodie and Mary are both holders of the right to life, the correlative of which is a duty not to impair life. The surgery will cause Mary's death, which interferes with the norm prohibiting the impairment of Mary's life. However, carrying out the procedure is the only way to ensure Jodie's survival. Thus, the means under scrutiny — the interference with the norm that prohibits impairing Mary's life — is aimed at satisfying the fundamental norm that enshrines Jodie's right to life. Similarly, in the example of the national vaccination campaign, if A and B wish to be vaccinated, the norm that determines the duty to provide health care is instantiated twice. Thus, both A and B are required to be vaccinated — correlatively, both A and B are entitled to this healthcare being provided.

• 21 For this reason, the use of the term “conflicts of the norm with itself” has been avoided. Indeed, (...)
• 22 Similarly, stating that “a norm will be called (self-)consistent if, and only if, the norm-content (...)
• 23 See Veloso 2003: 211-213.

16At first glance, however, it seems that the conditions for the emergence of a normative conflict are not met: there is no overlap of normative antecedents, nor is there any normative inconsistency, as the norm is not in itself inconsistent.21 Hence, this phenomenon should not be regarded as a case of the internal contradiction of the norm, since a norm is only self‑contradictory if something fails in its internal dynamics. Since internal consistency is drawn from the relationship between the norm's antecedent and the deontic consequence, the former must at least provide an opportunity for the latter to be triggered.22 In the cases in question, there is no obstacle to the internal dynamics of the norm. However, if this were to be the case, labelling it as self-contradictory could lead to misunderstandings. The existence of a “defect” in the internal dynamics of the norm would immediately prevent it from being categorised as such; it would therefore be a failed linguistic act.23

• 24 As an example, see Rodriguez 2002: 99-101.

19The collision of incompatible instantiations of a single norm have been categorised as conflicts in concreto or conflicts of instantiation.24 Although the proponents of these views do not elaborate on their justification, they seem to follow from the claimed absence of an in abstracto inconsistency. In this sense, the conflict results from a mere factual impossibility of fulfilling all the consequences that can be drawn from a deontic generalisation.

• 25 See Martínez Zorrilla 2011b: 735.
• 26 See Hansson & Makinson 1997: 313 ff; Rodríguez 2002: 99-101; Navarro & Rodríguez 2014: 183-184.

20For Martínez Zorrilla, this type of conflict of instantiation occurs when a single norm generates several obligations that cannot be satisfied simultaneously.25 Take the case of a doctor who is obliged to help two patients who have had a heart attack at the same time and who both need immediate care, even though it is impossible to help them simultaneously.26

• 27 On this subject, see Waldron 1993: 217; Alvarez 2011: 65-66; Mendonca 2017: 186-187; Moreso 2009: 3 (...)

22It is also common to analyse conflicts arising from the multiple instantiations of a single norm from the perspective of the legal positions involved, and to refer to them as intra‑rights conflicts (as opposed to inter-rights conflicts). The latter arise from instances of different rights; the former arise from collisions between instances of the same right (e.g., when several people at a meeting or a lecture want to speak at the same time, or when it is not financially viable to provide a social benefit to all the people entitled to it).27

• 28 See Teixeira de Sousa 2012: 271 ff.

23Scholars who adopt this approach typically conceive of conflicts of legal positions as conflicts in concreto, in the sense that they do not involve a "defect" at the level of legal norms, but merely a factual incompatibility. There is thus a connection between the approach focused on legal positions and the acceptance of conflicts that are strictly dependent on a factual context.28

• 29 On the idea that norms are the basis of legal positions and precede them chronologically, see Arria (...)

24To be sure, this perspective offers a valuable insight into uninormative conflicts. However, in addition to the criticisms of the previous approach, it is flawed insofar as it is limited to the level of legal positions. Legal positions do not exist in a vacuum, they are norm-dependent.29 The previous level of norms is thus overlooked. Moreover, as will be seen below, focusing on norms has significant explanatory advantages: it highlights the similarities between plurinormativity and uninormativity, allowing the theoretical tools developed in the former to be applied to the latter.

• 30 Constitutional dilemmas are a category of legal dilemmas involving constitutional norm(s).

25Uninormative conflicts are also dealt with in the context of legal dilemmas and, particularly, constitutional dilemmas (the origin of which, in both cases, goes back to the concept of moral dilemma).30

• 31 See Lemmon 1962: 139 ff; MacIntyre 1990: 367 ff and 381-382; Donagan 1996: 11 ff and Sinnott Armstr (...)
• 32 See, illustratively, Martínez Zorrilla 2008: 22-23.

26The notion of moral dilemma is highly controversial.31 Not only do scholars disagree on the features that characterise this phenomenon, but they also question the existence of genuine moral dilemmas. Moral dilemmas are commonly perceived as a specific category of moral conflicts. A moral conflict emerges when the agent is required to perform two actions when they cannot be jointly performed.32

• 33 See Tessman 2015: 15-44; Lariguet 2008: 80 ff. Criticising this explanatory approach, see McConnell (...)
• 34 See Martínez Zorrilla 2011a: 349 ff; Alvarez 2011: 59 ff. Criticising this explanatory path, see Ma (...)
• 35 See Sinnott-Armstrong 1996: 52 ff; Brink 1996: 106 ff – although this author uses the concepts of e (...)

27Two views have been developed regarding the features that a moral conflict must possess to qualify as a moral dilemma. Some authors focus on the idea of moral residue or moral failure. In this sense, a moral dilemma would be at stake whenever, regardless of the choice made by the agent, there was a loss or sacrifice, or they inevitably did something wrong (inevitable wrongdoing).33 Alternatively, authors such as David Zorrilla and Silvina Alvarez point out the impossibility of reaching a rational decision as the true feature of moral dilemmas. Hence, according to this view, moral dilemmas occur whenever moral normative systems lack resources (criteria, scales, procedures, etc.) to identify the definitive obligation among the different prima facie obligations in conflict.34 This may happen in cases of equivalence between alternatives, also known as symmetrical conflicts, and in cases of incomparability between alternatives.35

• 36 See Martínez Zorrilla 2008: 36-42.

28The so-called symmetrical conflicts refer to situations where (i) the same moral principle or value is at stake and (ii) the alternatives are equivalent from all morally relevant perspectives. To illustrate, the existence of two incompatible promises and the resulting application of the same moral principle — that promises must be kept — is not sufficient. Equivalence requires the absence of any morally relevant aspect that favours the fulfilment of one of the promises.36

• 37 See Chang 1997: 1 ff; and, most recently, Chang 2015: 205; Silva 2011: 280 ff. The ordinal scale es (...)
• 38 See Chang 1997: 13 ff.

29Incomparability is not to be confused with incommensurability. Incommensurability takes place when it is impossible to evaluate two or more elements on a cardinal scale. Although incommensurability prevents us from making some comparative judgements, it does not make judgements impossible altogether (for example, they can still be carried out using an ordinal scale).37 Whether there are cases of authentic incomparability remains controversial.38

• 39 With other concepts, see Zucca 2008: 20 ff; Lariguet 2008: 80 ff and Atienza 1997: 13 ff.
• 40 This conclusion will not be developed in the present study. However, the idea that comparability is (...)

30Both definitions of moral dilemma have been considered in the legal context.39 However, it remains to be seen whether and to what extent the concepts of moral, legal, and constitutional dilemmas are relevant for addressing uninormative conflicts. To answer this question, let’s consider the second definition of moral dilemma, i.e., the one that emphasises the absence of a rational choice. Starting from the scenario of incomparability between alternatives, this case of moral dilemma is deemed less relevant in the context of uninormative conflicts. Plurinormativity involves at least two norms, which usually presuppose different values — e.g., freedom of expression and honour. For this reason, the comparability of the alternatives at stake (applying norm₁ or norm₂) depends on the identification of a covering value. In contrast, when different instantiations of the same norm are at stake, the identification of the covering value against which the alternatives are compared is more straightforward.40

• 41 Bridging the gap between symmetrical conflicts and intra-rights conflicts, see Alvarez 2011: 66 ff.

31The most relevant situations are therefore those of equivalence between alternatives. In the legal realm, equivalence requires that (i) only one norm is at stake and (ii) there is an absence of any legally relevant differentiating factor.41 For example, the previously mentioned case of the conjoined twins does not qualify as a symmetrical conflict. Only one of the sisters could survive if they were separated, and failure to perform the surgery would mean that both would die in the very short term. Therefore, only if the two sisters' chances of survival were identical would there be a legal dilemma due to the equivalence of alternatives.

• 42 Arguing that some total intra-rights conflicts are constitutional dilemmas, see Zucca 2008: 27 ff.

32Hence, there is no necessary connection between uninormative conflicts and legal (and constitutional) dilemmas: conflicts between different instantiations of the same norm can be solved rationally whenever there is some legally relevant distinguishing factor.42 On the other hand, plurinormative conflicts can also lead to legal dilemmas, namely, in situations of incomparability between alternatives. Since the presence of a single norm is neither a necessary nor a sufficient condition for the occurrence of a legal dilemma, it is at least questionable to approach the phenomenon of uninormativity from this perspective.

• 43 Employing this expression in relation to conflicts involving only one norm, Duarte 2016: 90-92. Usi (...)

34As mentioned, at a first glance, it seems that uninormative conflicts cannot be traced back to the widespread notion of normative conflicts. But this position is only partially correct: one of the conditions for the emergence of a normative conflict is not met, since there is no overlap between two or more normative antecedents. There are, however, several factors that bring uninormativity closer to plurinormativity. First, uninormative conflicts also involve normative inconsistency (not just factual impossibility). Second, although there is no overlap between normative antecedents, a similar phenomenon occurs: the overlap between two or more particular norms.43 It is therefore crucial to grasp what the notion of particular norms consists of.

• 44 On generalisation, see Schauer 1991: 18 ff.
• 45 See Moniz Lopes 2019: 98 and Sardo 2018: 5.

35Just as law-making requires generalisation, law-applying requires instantiation. Particular norms are thus the result of instantiation — i.e., the process by which legal operators concretise the hypothetical categories provided for in the norm through the set of relevant facts of a case (real or hypothetical).44 To instantiate, then, is to create an instance by defining a particular variation of the object within a class, naming that variation, and locating it in space and time.45 If one norm is instantiated twice, there are two particular norms potentially applicable to the case.

• 46 In a slightly different sense, considering that there is an empirical incompatibility between two d (...)

38The notion of a particular norm works as a technical tool: it shows that two instantiations of the same norm amount to two different (and incompatible) ways of guiding human behaviour.46 The emergence of two or more particular norms stemming from the same deontic unit with incompatible legal effects will occur in certain scenarios — hypothetical or real. Although their occurrence on a practical level is contingent, this does not affect their detection in abstracto, without resorting to a real-world context. Finally, as will be explained below, the concept of a particular norm is especially useful when it comes to solving uninormative conflicts, specifically when applying the balancing method.

• 47 Endorsing that conceptual analysis involves both the identification of the on-going terminological (...)

40To conclude, this proposal is merely an adaptation of the widespread notion of normative conflict that does not imply a rupture with previous conceptual practices. By including uninformative conflicts within its scope, the proposed concept of normative conflict becomes more effective from a communicative and explanatory point of view, while also providing a precise conceptual framework.47

• 48 See, among others, Duarte 2010: 56 ff; Silva Sampaio 2018b: 78 ff.

41It has been argued that normative conflicts are solved in one of two ways: by applying a norm of conflicts or through the balancing method.48 As will be shown, the similarities between uninormativity and plurinormativity allow the work carried out in the latter field to be applied, mutatis mutandis, to the former.

• 49 On the contingent nature of norms of conflict, see Kelsen 1973: 272; Guastini 2014: 124 ff and Guar (...)
• 50 See, inter alia, Mazzarese 1987: 12 ff.
• 51 See, among others, Bobbio 1990: 350 ff; Guastini 1999: 442 ff; Mazzarese 1987: 13.
• 52 For the sake of simplicity, the paradigm of binormative conflicts — conflicts between two norms — i (...)

42It is common for legal systems to include the tripartite lex superior, lex posterior, and lex specialis (according to which the superior, posterior, or special norm must prevail, respectively).49 However, not all normative conflicts can be solved by applying norms of conflicts because they may not apply to the case, or they may prescribe incompatible solutions when more than one norm of conflicts is applicable.50 In these cases, there is an antinomy between the so-called first degree norms of conflicts. Although a second degree norm of conflicts could solve the conflict, legal systems may not contain such a norm, or it may not be applicable to the case.51 Nonetheless, faced with a set of alternatives — e.g., applying norm₁ or norm₂ — legal operators must choose the norm which, all things considered, governs the case, as the prohibition of non liquet, which is in force in most legal systems, so requires.52

• 53 Using this term, see Silva Sampaio 2021: 52.
• 54 See Duarte 2021: 15 ff.

43These conflicts are usually described as irresolvable.53 Although the expression is ambiguous since irresolvable conflicts can be solved through balancing, it must be highlighted that the legal system does not comprise a norm capable of solving such antinomies, thus conferring discretion onto the decision-maker.54

• 55 See Díaz Tolosa 2014: 72.

44The aforementioned norms of conflicts do not apply to uninormative conflicts. The lex superior, lex posterior, and lex specialis employ relational classifications of norms — i.e., they rely on the properties that one norm exhibits in relation to another.55 Since they presuppose plurinormativity, the absence of a second norm prevents their normative antecedents from being fulfilled. A norm does not establish a hierarchical, chronological, or speciality relationship with itself.

• 56 See Silva Sampaio 2021: 56 ff; Silva Sampaio 2018b: 79; Chiassoni 2019: 167 ff.

46In the context of normative conflicts, balancing is an intellectual operation through which, given a certain factual context, the considerations for and against the preference of each of the conflicting norms are identified and the priority of one norm over another is determined. The need to resort to balancing when faced with a so-called irresolvable conflict does not imply an immediate commitment as to how this intellectual operation will take place. It will be shaped both by the balancing model adopted and by the applicable legal norms, among which the principle of proportionality stands out.56

• 57 The notion of balancing as an activity subject to rational control and capable of producing univers (...)
• 58 See Alexy 2003; Moreso 2008: 76 ff; Moreso 2009: 267 ff; 285 ff and 302 ff; Moreso 2012; Martinez Z (...)

47Within the conception of balancing as an activity capable of achieving rational and universalizable results, several balancing models have been developed (e.g., those attributed to Alexy, Moreso, and Martínez Zorrilla).57^/58 However, in this context, and for the reasons set out below, only Alexy’s model will be analysed.

• 59 Sharing this view, by stating that Moreso's proposal is a theory of balancing without balancing — a (...)

48First, it is worth recalling the main purpose of this study: to understand uninormative conflicts. To this end, given the lack of scientific research specifically dedicated to uninormative conflicts, an analysis of how plurinormative conflicts are solved seems inevitable. Moreover, the two phenomena have significant similarities. Since the study of plurinormativity is a means to an end, it is not intended to be exhaustive.Furthermore, Alexy’s account is the only one that provides tools for carrying out a balancing exercise. On the contrary, specificationism (Moreso) and coherentism (Martínez Zorrilla) are balancing models with no actual proposal for balancing alternatives. This seems problematic, since the application of these two models depends on a prior balancing exercise, which is no longer necessary once the paradigmatic cases that allow for a different type of legal reasoning have been identified.59However, the sharp criticism that Alexy's model has received has not gone unheeded. Therefore, the points of agreement and disagreement with this proposal should be outlined.

• 60 See, for example, Alexy 2008: 14 ff.
• 61 See Martínez Zorrilla 2007: 205. For a general critique of Alexy's theory of principles, see, inter (...)

49First, the idea of a necessary link between principles, fundamental rights, and the principle of proportionality is untenable.60 Fundamental rights norms can take the form of either a rule or a principle. This distinction is based on the morphology of the norm and not on its application or its conflict resolution process. On the other hand, the principle of proportionality guides the resolution of normative conflicts only when they cannot be solved through the application of a norm of conflicts.61

• 62 According to Alexy, balancing is governed by two laws: the first states that the greater the interf (...)
• 63 See Alexy 2008: 14 ff; with a later version of the weight formula, Alexy 2014: 513 ff.

50Second, the numerical representation of Alexy's laws of balancing should be abandoned.62 In Alexy’s account, this representation would take the form of a weight formula. However, since the laws of balancing can be applied (in their original or improved form) without resorting to formalisation, the weight formula becomes superfluous.63 Moreover, avoiding formalisation has five advantages:

• 65 See Silva Sampaio 2018b: 80 ff. Some authors add to the identified effects the requirement of pursu (...)
• 66 In this sense, see Klatt & Meister 2012: 8 ff and 71; Bernal Pulido 2014: 874.

52We can now address how the principle of proportionality guides the balancing process. According to this principle, when a choice must be made regarding which norm to apply, and a means-end relationship is at stake, choosing a means that is appropriate, necessary, and proportional in the strict sense is required.65 It is argued, although not unanimously, that the three effects established by the principle of proportionality are cumulative and sequential.66

• 67 Arguing that the means is the sacrifice of one norm (the defeated) and the end is the satisfaction (...)

54In the first case, the end is the aim pursued by the normative authority in enacting the infra-constitutional norm (enshrined in a constitutional norm); the means is the enactment of said infra-constitutional norm. This framework cannot, however, be fully applied to the direct collision between fundamental rights norms. In the absence of an infra-constitutional norm, the means is the concrete limitation of a constitutional norm resulting from the action to be taken, the end being the state of affairs that is sought to be achieved with said action (that is, the satisfaction of another constitutional norm).67 Regarding the means, the difference between the two scenarios lies in the nature of the action. While the first scenario necessarily involves a deontic action — the limitation results from the enactment of an infra-constitutional norm — this is not the case in the second scenario. In the direct collision between fundamental rights norms, the limitation may result from either an empirical action or any other deontic action other than the enactment of legal norms.

• 69 In this sense, see Duarte 2021: 37.

57Unlike the norms of conflicts, the principle of proportionality does not provide an answer as to which norm prevails in the case. It only identifies inadmissible results.69

• 70 This example is an adaptation of the well-known case of the Aviation Safety Act (Luftsicherheitsges (...)

63The same goes for the case of a terrorist group that hijacks an aeroplane and intends to crash it into a densely populated area.70 If the authorities were to prevent the attack by shooting down the aeroplane, two prohibitions would be applicable: the prohibition to interfere with the lives of the members of the terrorist group and the prohibition to interfere with the lives of the people travelling to and staying in the location chosen to carry out the attack. The means is the limitation of the norm that prohibits interfering with the lives of the members of the terrorist group on board by shooting down the aeroplane. The end is the satisfaction of the norm that prohibits affecting the lives of the people who are in the place chosen as a target, in order to ensure their survival.

• 71 See Duarte 2021: 29 ff.

66To ascertain whether proportionality in the strict sense is respected, the so-called laws of balancing must be taken into account: the first states that the greater the interference with one of the norms, the greater the satisfaction of the other must be; the second states that the greater the interference with one of the norms, the greater the certainty of the underlying premises must be. This second judgement must consider all the assumptions made by the decision-maker, regardless of the norm they refer to – the defeated or the prevailing.71

• 72 Emphasising that the situation was created by the terrorists themselves and that their intention wa (...)

67In relation to the first law of balancing in the Jodie and Mary case, legal operators carry out two different judgements: (i) the extent to which allowing the surgery interferes with Mary's right; (ii) the extent to which not allowing the surgery interferes with Jodie's right. Again, it is a question of the degree of intensity of each interference. The data to support this measurement must be drawn from the case. Under these circumstances, only one of the sisters — Jodie — has a chance of surviving on her own. A closer analysis shows that not performing the surgery would not only violate Jodie's right, but also Mary's right, since both sisters would die. Similarly, in the case of the aeroplane, the inevitability of the death of the terrorists on board is a decisive factor in the lower intensity of the interference with their right to life.72

• 73 See Moniz Lopes 2019: 395.

69As is widely recognised in the field of plurinormativity, the balancing process may be based on any argument that is admissible in legal reasoning. These include: (i) the assessment of the interests to be pursued by each of the conflicting norms; (ii) the usefulness of that pursuit; (iii) the links between the norms in dispute and other norms in the legal system; and (iv) the previous decisions of law-applying organs.73

• 74 Indeed, an increase in the satisfaction of the interest pursued by a given norm may not entail a pr (...)

70In the context of uninormative conflicts, the first argument is of little importance: the existence of a single norm determines the identity of the interests pursued. In the latter case, the aim is to prevent the onset of a serious disease and its consequences. However, the utility of pursuing them may differ, depending not only on the holder of the legal position, but also on the factual context in which it is exercised.74 So, even if the same interest is at stake, it may be more useful to vaccinate A than to vaccinate B. The same applies to the case of Jodie and Mary: the identity of the interests pursued does not imply that the usefulness of pursuing them is undifferentiated. It is more useful to pursue the interest of preserving human life by performing the surgery, since only Jodie has a real chance of survival in the medium to long term.

• 75 On the subject, see Moniz Lopes 2018: 144 ff.

73Finally, the fourth argument identified — the previous decisions of law-applying organs — requires further clarification. In civil law systems, legal sources are typically limited to normative acts and custom, and do not include judicial or administrative decisions. However, at the risk of violating principles such as equality, legal certainty, and impartiality, law-applying organs are required to consider prior decisions that have the same relevant properties as the pending case. There are many possible outcomes for this analysis. If the case to be decided shares all the relevant characteristics with a previous case, there is no need for a new balancing operation. The same is true if some of the relevant features of previous cases differ from those of the case at hand. In this scenario, the decision‑maker may rely on arguments such as the a fortiori argument, which also renders a new balancing unnecessary.75