The purpose of this paper is to examine and criticize two recent defenses
of particularism in legal contexts, by Luigi Ferrajoli and Bruno Celano.
In both cases, the choice in favour of particularism concerns the balancing between
constitutional principles, but the scope of this choice is very different in
each of these authors: in Ferrajoli’s case, the option in favour of particularism (a
term that is alien to his vocabulary) is rather residual, since most conflicts between
principles can be solved, in his opinion, applying “abstract solutions”,
valid for any possible case. In Celano’s case, however, there is an explicit defense
of a particularist approach to every case of conflict between constitutional
principles and, more generally, to the whole sphere of practical reasoning.
According to Ferrajoli, conflicts between principles for which we do not
have predisposed “abstract solutions” have to be solved through what he
calls “equitable balancings”. These “equitable balancings” would have as
their object not the reasons behind the conflicting principles in relation to
certain combinations of properties, or generic cases, but “the unique particularities
of the facts of the case”. This implies, in my view, abandoning
the pretension of universalization that is a constitutive part of our idea of
justification.
As far as Celano is concerned, he shares the starting points of the view we can
call the standard principlist view of balancing. He thinks, however, that the rule
which expresses the result of the balancing between principles on a generic case
does not remove the possible need for new balancings as each new individual
case arises, because that rule is a defeasible one. Emphasizing in this thesis exclusively
means, in my opinion, not to explain the difference that the presence of
the rule which results from balancing implies for new individual cases; a difference
that it is still significant and important, although we accept the defeasible
character of the rule itself.