The Lisbon Way: An Alternative View on the Alexy‐Ratti Debate

The recent debate between Alexy and Ratti provides an excellent opportunity to discuss proportionality, balancing, and their substantive ramifications. In addition to critically analysing this debate, we take the opportunity to sustain several propositions that challenge the foundational pillars of Alexy's “principles theory” and Ratti's criticisms. Among other points, we argue crucially that (i) proportionality should not be confused with balancing, as the former imposes limits on the discretion of decision‐makers, while the latter is an intellectual operation employed to solve normative conflicts; (ii) the structural difference between principles and rules lies in the indeterminacy of the regulated action‐type, which explains the symptoms that have been correctly identified thus far; and (iii) neither balancing nor proportionality are conceptually linked to principles (just as rules are not to subsumption), though the structure of principles explains why they are more likely to be involved in conflicts that can only be solved through balancing.