concerns related to the incommensurability of rights. Issues of conceptual indeterminacy of these rights, in their adjudication will not be addressed here. On this see Gunnar Beck, The Mythology of Human Rights 21 Ratio. Juris . 312 (2008). It is submitted that the implications of this are significant, particularly when coupled with critiques of the supposed objectivity of judicial adjudication. If taken to their last consequences, accepting these premises leads to the conclusion that constitutional rights do not have an objective meaning that can be identified
“it would be more widespread and kinder; it would debase men without tormenting them.” Id . at 804.
Part II of this paper briefly explains why it is important for un-determined and under-determined legal norms to be settled within plural domains, especially domains of private ordering whenever possible (an argument I have made in book length elsewhere A DAM J. M ACLEOD , P ROPERTY AND P RACTICAL R EASON (2015). ). Because basic human goods are incommensurable and affirmative responsibilities are open-ended, most duties of abstention and all affirmative
• De Búrca Grainne, 1993, ‘The Principle of Proportionality’ and its Application in EC Law, in Yearbook of European Law , XIII(1): 105-150.
• Donini Massimo, 2003, ‘Sussidiarietà penale e sussidiarietà comunitaria’, in Rivista italiana di diritto e procedura penale , XLVI(1-2): 141-183.
• Endicott Timothy, 2012, ‘Proportionality and Incommensurability’, in University of Oxford Legal Research Paper Series , no. 40, available at http://ssrn.com/abstract=2086622 .
• Fichera Massimo and Herlin-Karnell Ester, 2013, ‘The Margin of Appreciation Test