Publication details
The Impact of Value Incommensurability on Judicial Decision-Making
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| Year of publication | 2026 |
| Type | Appeared in Conference without Proceedings |
| MU Faculty or unit | |
| Citation | |
| Description | Proportionality has become the dominant doctrine in constitutional adjudication. The focal point of the proportionality is the balancing stage, in which judges weigh competing rights against each other. A government measure is considered constitutional if it benefits a particular right or public interest more than it harms another right. Therefore, balancing requires a quantitative comparison of the harms and benefits that a government measure produces for different rights and public interests. For any comparison of two objects to make sense, we need a common metric by which to compare them, the so-called 'tertium comparationis'. For instance, you can compare a person and a table with regard to their height, but not a table's height and a person's temperature. This fact leads some to reject balancing because constitutionally protected values lack tertium comparationis, meaning they are incommensurable. For example, there is no common metric for privacy and safety. Therefore, it is impossible to say that a given measure benefits safety more than it harms privacy. For balancing to be rational, its proponents must introduce a single value to which all potentially conflicting values can be reduced and quantitatively compared. Some authors have proposed such values, e.g. happiness in utilitarianism or the relative weight in Alexy's formula. However, even if we dismiss the debate about the legitimacy of these ethical theories, ascribing a numerical value to each compared value appears to depend solely on our moral intuitions. If the incommensurability objection is true, this would mean that the proportionality test's balancing stage is nothing more than moral intuitionism in disguise. Opponents of balancing can be divided into three broad groups. All three of these groups propose replacing the quantitative balancing of values. The first group (Möller, Kumm, Walen, Letsas) wants to replace it with complex moral argumentation; the second (Waldron, Rawls) with hierarchically sorting values; and the third (Urbina) with rigorously specifying values in the constitution. The purpose of my presentation is to demonstrate that incommensurability poses a problem not only for balancing but also for any other method of resolving conflicts between values. Although many authors criticise balancing through the lens of incommensurability, they fail to propose an alternative that would not also be affected by it. Until such an alternative is proposed, we cannot abandon quantitative balancing solely on the grounds of incommensurability of values. |
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