Incommensurability and Balancing

Oxford Journal of Legal Studies 35 (3):575-605 (2015)
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Abstract

A common objection to the use of balancing tests in human rights adjudication is that it is not possible to perform a quantitative comparison between gains and losses for rights or the public good by means only of rational criteria. Here I provide a general account of the incommensurability objection, with the aim of making explicit its scope, and of dispelling some common misconceptions surrounding it. Relying on this account, I engage with recent defences of balancing against the incommensurability objection

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10.1093/ojls/gqv015

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