Proportionality and Incommensurability: A Response to Timothy Endicott

Abstract

This essay critically analyzes Timothy Endicott’s argument on the application of proportionality to the issue of the incommensurability between interests (or values) in the adjudication of human rights. The paper turns to two authors who addressed the same issue and are positioned on opposite sides of the proportionality debate: Stavros Tsakyrakis and Virgilio Afonso da Silva. The essay intends to highlight the main criticisms regarding the application of proportionality in the face of the issue of incommensurability between values and expose the main weaknesses of Endicott’s argument. The methodology chosen is the critical literature review. At last, proportionality would act to hide the fact that judges would be making moral judgments disguised in a supposedly neutral language, which seems to present a broader picture of the issue. Recognizing the lack of a common metric for balancing human rights does not negate the fact that it would still be possible to relate them. Therefore, it seems more coherent to consider what is involved (interests, values, or rights) in a broader context, before the judgment.