ABSTRACT
To make balancing work in judicial practice, I proposed a structured balancing test in the previous chapter. The test is designed to overcome the challenge from incommensurability (Chapter 4), while counteracting practical obstacles to balancing (Chapter 5). It does so by enabling comparative judgments on the strength of reasons in favour of – and against – human rights in conflict. Such comparative judgments are rendered possible through the construction and comparison of nets of arguments, woven with reference to a limited set of balancing criteria. Use of the structured balancing test should allow judges to decide, with some measure of rational confidence, which human right should prevail in a given conflict.
