Incommensurables are the two freedoms identified by Sir Isaiah Berlin

(1968). On the one hand there is the ‘negative freedom’ of the absence

of restraint, reflecting our wish not to be interfered with. Negative

freedom includes, for example, personal liberty, freedom of expres-

sion, freedom of association, freedom of religion, privacy etc. On the

other hand there is positive freedom which, reflecting the social side of

our nature, is the freedom of the community to take collective action

to advance the general welfare. Positive freedom includes the demo-

cratic right to choose and control the government and, through the

government, to make collective decisions about taxation, public ser-

Vices and the regulation of private activities.

The two freedoms cannot be reconciled although they may overlap.

For example liberals would support some exercises of positive freedom

on the ground that, without minimum standards of welfare, public

order and education, it is difficult to exercise the negative freedoms,

(some of which such as freedom of expression and privacy may conflict

with each other) to which we are entitled. The reason to insist on this

distinction is to emphasise that different freedoms may conflict, so that

any constitution has to make what has been called ‘tragic choices’ in

the sense that one cannot further a given interest without injuring

others. For example Sedley (2001) describes a case where the French

Conseil d‘Etat upheld a ban on local funfairs where revellers had been

permitted to shoot a dwarf from a cannon. The decision was made in

the name of public morals and human dignity even though the dwarfs

made their living from the spectacle and were among the chief

21

Constitutional Values

opponents of the ban (Sedley, 2001a, p. 11) In other words the

conflicting ideals of law as a bulwark of liberty and law as ‘social

solidarity’ cannot be harmonised. At best we can seek a provisional

accommodation that is widely accepted and can be used as a reference

point for settling disputes.

Incommensurability must be distinguished from ‘uncombinabilty’

(see Raz, 1986). Interests are combinable when both happen to be

achievable at the same time. This is a matter of fact in the particular

context and there is no logical connection between incommensurability

and uncombinability. For example in R. v. Brown (1993), the House of

Lords held that a group which voluntarily indulged in homosexual

sado-masochism were guilty of an offence. The majority started from

the communitarian stance that the deliberate infliction of pain was an

affront in a civilised society unless it could exceptionally be justified as

being for the public good for example in the cases of surgical

operations and sport. The two dissenting judges took the individua-

listic stance that people should be free to do what they like unless it is

clearly harmful. They held that the accused were not guilty since their

behaviour even if immoral happened to carry no danger to the public.

Had their behaviour happened to be a public danger then, by a happy

chance, the two approaches, though incommensurable, would have

been combinable in a unanimous decision.

There are two opposite attempts to combine incommensurables.

One often favoured by academics attempts to impose some assumed

grand harmonising principle usually based on the writer’s personal

preferences. One such principle is utilitarianism (below) which looks to

the ‘greatest good of the greatest number’. Dworkin (1983) uses

concepts of equality and integrity as harmonising principles. However,

Airedale NHS Trust v. Bland (1993) shows that the search for a

harmonising principle may be illusory. The House of Lords had to

decide whether doctors should withdraw medical support from a man

who had been so severely injured in the Hillsborough stadium disaster

that he would never recover consciousness. Lord Hoffmann identified

the issue as that of Berlin’s tragic choice, in this case between the

sanctity of life and ‘the principle that the individual should be free to

choose what should happen to him and, if he is unable to choose, we

should try our honest best to choose as we think he would have

chosen’. His Lordship thought that there was no single formula which

can help us choose between incommensurables, and rejected the

Attorney General’s argument that they could be harmonised, as

rhetoric, ‘intended to dull the pain of having to choose’. The House of