Proporcionalidade, comparabilidade e fórmula do peso

Abstract

Among the criticisms raised against the proportionality test is the incommensurability objection, according to which the test often requires balancing incommensurable rights and is for that reason not susceptible to a rational solution. Drawing on the distinction between incommensurability and incomparability, this article addresses the importance and consequences of incomparability between alternatives to the proportionality test and to the use of Alexy’s weight formula. It concludes by stating that acceptance of a pluralist theory of rights does not entail giving up on a rational decision for conflicts of human or fundamental rights.