Many constitutionally (and internationally) protected rights are premised on the assumption that different values can be balanced. A prominent theory along those lines is Robert Alexy’s theory of constitutional rights. However, that is far from obvious if there are multiple basic values that are incommensurable. Maybe the solution is Ruth Chang’s comparativism. There are, though, reasons to be wary of so-called ‘covering values’ in light of which, she claims, that options can be compared. Instead, it is suggested, that the path forward is value hybridism. According to that view, different basic values can be compared overall to an extent simply in virtue of sharing whatever makes them vales. Beyond that there is no common measurement to make overall qualitative value judgments of the specific evaluative characteristics of each basic value. Apart from sharing to an extent whatever makes them values, they are, after all, distinct values. Nevertheless, they can be compared in light of constructed standards, such as social roles we occupy, within the context of pursuing a coherent life plan (for individuals) and a coherent well-ordered society (for political communities). They are ‘locally’ comparable in that sense even though there is no covering value in the normative domain determining their relations at the most fundamental level. Value judgments should be mutually supportive and there is a back-and-forth relationship between them. These claims can vindicate the structure of constitutionally protected rights in part but also bring their limits to light. Norms on balancing different principles and deciding on their limits are constructed standards. The claims can also have consequences for doctrines of margins of appreciation.

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Incommensurability, Comparativism, and Value Hybridism in Constitutional Theory

  • Hafsteinn Dan Kristjánsson

摘要

Many constitutionally (and internationally) protected rights are premised on the assumption that different values can be balanced. A prominent theory along those lines is Robert Alexy’s theory of constitutional rights. However, that is far from obvious if there are multiple basic values that are incommensurable. Maybe the solution is Ruth Chang’s comparativism. There are, though, reasons to be wary of so-called ‘covering values’ in light of which, she claims, that options can be compared. Instead, it is suggested, that the path forward is value hybridism. According to that view, different basic values can be compared overall to an extent simply in virtue of sharing whatever makes them vales. Beyond that there is no common measurement to make overall qualitative value judgments of the specific evaluative characteristics of each basic value. Apart from sharing to an extent whatever makes them values, they are, after all, distinct values. Nevertheless, they can be compared in light of constructed standards, such as social roles we occupy, within the context of pursuing a coherent life plan (for individuals) and a coherent well-ordered society (for political communities). They are ‘locally’ comparable in that sense even though there is no covering value in the normative domain determining their relations at the most fundamental level. Value judgments should be mutually supportive and there is a back-and-forth relationship between them. These claims can vindicate the structure of constitutionally protected rights in part but also bring their limits to light. Norms on balancing different principles and deciding on their limits are constructed standards. The claims can also have consequences for doctrines of margins of appreciation.