Thanks to Lorenzo Zucca (of the Transatlantic Assembly) for his thoughtful comments on the post on Evans v. UK (below), which I'm reprinting here:
I am all in favour of the incommensurability discourse. I want to stress an important point, however. To refuse to balance, does not imply that the only alternative option is to defer to more representative institutions. The issue is even deeper than that. If we do acknowledge the existence of 'constitutional dilemmas' involving incommensurability, then what we are saying is that neither moral reasoning, nor legal reasoning can provide a satisfactory answer to that dilemma. In this context, we cannot expect that a political institutions will be able to draw bright lines. What we have to acknowledge is the fact that rights discourse does not offer a solution to every problem. Secondly, we need to engage in a rethinking of bills of rights, one which take into account the possibility of conflicts among rights. In order to understand constitutional dilemmas we will have to ask why we need law (or ethics) to solve them, as opposed to try and accept dilemmas as a constitutive part of our polity and identity.