ABSTRACT
When a conflict between human rights cannot be defused and no viable compromise between the human rights in conflict can be achieved, a difficult choice between those rights needs to be made. In adjudicating the conflict, judges will have to determine which right should prevail over the other (and, concomitantly, which right should be sacrificed to protect the other). The core argument of Parts II and III of this book is that such difficult choices between human rights in conflict must be made by balancing them against each other. Yet, a number of important theoretical challenges seem to preclude such balancing. In this chapter, I aim to overcome those theoretical challenges, chief among which is the incommensurability challenge to balancing. In the process, I propose to abandon the scales metaphor of balancing, which implies a mechanical ‘balancing of interests’, and begin to develop a structured ‘balancing as reasoning’ test instead.
