Abwägung unter Unsicherheit

Epistemic unreliability plays an important role in balancing both constitutional rights and other interests. This article focuses on an analysis of epistemic unreliability in balancing. It sheds light on different types of epistemic unreliability, relating to normative and empirical uncertainties respectively. Based on insights from the principles theory, this article highlights several aspects of discretion as arising from unreliability and proposes a new way of integrating uncertainties into the process of balancing. It develops a – hitherto unknown – classification balancing which supplements the present weight formula. Classification balancing is necessary in order to decide how serious an infringement with constitutional principles is and how important conflicting principles are. This also leads to a new type of discretion, the discretion of classification. The discretion of classification is identified as the real epistemic discretion. In its final part, the article addresses the relation between epistemic unreliability and judicial review. It is argued that the two levels of balancing and control have to be strictly separated. Thus, contrary to the current principles theory, so-called formal principles are not relevant in order to establish the nature or the scope of epistemic discretion. Formal principles concern questions of competency only, whereas epistemic unreliability arises just at the level of material balancing. Hence, the article suggests an alternative model with allows for taking regard of different relations of control in different legal systems.