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Tragic Incommensurability and Legal Judgment

Published online by Cambridge University Press:  20 July 2015

Julen Etxabe
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Extract

This article has several and concurrent purposes. The first is to offer conceptual clarification about the notion of incommensurability and how it can be meaningfully understood in various contexts. Secondly, the purpose is to advance the substantive position that something important is lost when incommensurability is rejected in the law as a matter of principle. Third, the aim is to bring to fuller awareness the practical difficulties that a judge facing a potentially incommensurable conflict would encounter when judging it. Finally there is the claim, against the backdrop of contemporary theories of procedural democracy, that tragic incommensurability cannot be wholly neutralized by the procedures aimed at the generation of consensus, nor dissolved through the harmonic integration of all the values that law is supposed to protect.

Keywords

incommensurabilityconflictjudgmenttragic choicesmoral dilemmasdisagreementconsensus
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 24 , Issue 1 , January 2011 , pp. 55 - 78
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2011

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References

1. My reading and views on the Antigone rely extensively on my book manuscript currently in preparation, Tragedy and the Experience of Judgment [on file with author].

2. See Cover, R., “The Supreme Court, 1982 Term—Foreword: Nomos and Narrative” (1983) 97 Harv. L. Rev. 4 CrossRefGoogle Scholar (describing hard cases as a situation of “too much law”); and my article “The Legal Universe After Robert Cover” (2010) 4:1 Law & Humanities 115.Google ScholarPubMed

3. Raz, J., The Morality of Freedom (New York: Oxford University Press, 1986).Google Scholar

4. This is the meaning given by Finnis, John, “Commensuration and Public Reason” in Chang, Ruth, ed., Incommensurability, Incomparability, and Practical Reason (Cambridge: Harvard University Press, 1997)Google Scholar [Chang, Incommensurability]; see in the same volume, Cass Sunstein, “Incommensurability and Kinds of Valuation: Some Applications in Law.”

5. This is the sense used, for instance, by philosophers in the tradition of Thomas Kühn and Paul Feyerabend. For an excellent presentation of the problem, see Ruth Chang’s introduction in her edited volume, supra note 4.

6. This example is developed in Calabresi, Guido & Bobbitt, Philip, Tragic Choices (New York: W.W. Norton & Company, 1978).Google Scholar

7. Some legal theorists deny that the situation in law is ever such: see Dworkin, Ronald, “Moral Pluralism,” in Justice in Robes (Cambridge, MA: The Belknap Press of Harvard University Press, 2006)Google Scholar. This article was originally published as “Do Liberal Values Conflict?” in Lilla, Mark, Dworkin, R. & Silvers, R., eds., The Legacy of Isaiah Berlin (New York: New York Review Books, 2001).Google Scholar

8. The first position is associated with thinkers such as Jürgen Habermas and John Rawls; the second with Ronald Dworkin. For a more elaborate argument of the former in the context of an alternative, tragic conception of democracy, see my article “What do the Poets Know about Democracy? A Case Study in Law and Literature” in Klink, Bart Van & Taekema, Sanne, eds., Law and Method: On Interdisciplinary Research Into Law (Tübingen: Mohr Siebeck, 2010) 341—54.Google Scholar

9. Berlin, I., Four Essays on Liberty (Oxford: Oxford University Press, 1969).Google Scholar There is a recent volume entitled Liberty (Oxford: Oxford University Press, 2002)Google ScholarPubMed, edited by H. Hardy incorporating the original four and other important essays of Berlin [all page references hereinafter are to this edition]. The critical commentary on Isaiah Berlin and his work is vast, of which Ian Harris gives a detailed account in an essay called “Berlin and his Critics” in the edition cited. Personally, I have found enlightening the work of Gray, John, Isaiah Berlin (Princeton, NJ: Princeton University Press, 1996).Google Scholar For an application of Berlin’s position in the context of legal judgment, see Veitch, Scott, Moral Conflict and Legal Reasoning (Oxford: Hart, 1999), esp. ch. 3.Google Scholar

10. In philosophy, the view that sees all ends as ultimately compatible extends from the metaphysical realism of Plato to the dialectical Idealism of Hegel. In the area of moral philosophy, the denial of incommensurability applies both to Kantian morality and to its opponent, utilitarianism. In law, the view that all values are ultimately commensurate is often associated with the movement of law and economics.

11. Berlin, Liberty, supra note 9 at 166.

12. Ibid. at 42.

13. Ibid. at 214.

14. The commodification of human life is, for some of us, difficult to accept. This of course does not mean that life is never “traded off.” For instance, Guido Calabresi exposes a now classic view that at the heart of the law of accidents and safety regulations there is a tragic clash between the moral commitment to the pricelessness of life—which would require taking every precaution to eliminate risks to it—and the economic or pragmatic rationality that justifies taking only those precautions which are cost-efficient—thus effectively putting a price on human life; see Calabresi, G., The Costs of Accidents: A Legal and Economic Analysis (New Haven, CT: Yale University Press, 1970).Google Scholar For a view arguing that “the proposition that life has a value beyond all price might be understood not to forbid all trading off of lives against other goods, but only to forbid trading lives off in accordance with market principles of rationality,” see Keating, G., “Pricelessness and Life: An Essay for Guido Calabresi” (2005) 64 Md. L. Rev. 159 at 167.Google Scholar

15. The distinction between real and notional confrontations belongs to Williams, Bernard; see his, “The Truth in Relativism,” (1974-75) 75 Proceedings of the Aristotelian Society 215.CrossRefGoogle Scholar

16. This is the usual contention of those who think of incommensurability as incomparability. Ruth Chang, however, suggests that there is a fourth possibility, which is that the two things are “on a par,” thus allowing their comparison with respect to a third, relative value; Chang, Incommensurability, supra note 4. Therefore, Chang suggests that it may be preferable to reserve the term “incommensurable” for items that cannot be properly measured by some common scale of units of value, and the term “incomparable” for items that cannot be compared.

17. Berlin, Liberty, supra note 9 at 43.

18. Sometimes Berlin seems to base his argument on purely experiential grounds (Berlin, supra note 9 at 43); other times he shapes it as conceptual argument (ibid. at 42-43); and still others, he presents it with the metaphysical undertones of a necessary truth (ibid. at 215).

19. Perhaps a way to recognize the relative strength of Berlin’s position is to question what it would take to deny it. In other words, what kind of evidence (sociological, phenomenological, ethical, political) would you have to disregard, and what grasp of reality would you possibly claim after it?

20. Berlin, Liberty, supra note 9 at 43.

21. Ibid. at 47.

22. In one sense, rationality is the ability to guide concrete choices; in a second sense, rationality becomes a general capability to make choices, whatever their content; and perhaps in a third sense, on occasions Berlin seems to describe rationality as the ability to recognize one’s limitations (cognitive and others) concerning choices.

23. Berlin contrasts the certainty of “single-minded monists, ruthless fanatics, men possessed by an all-embracing coherent vision,” to the “doubts and agonies of those who cannot wholly blind themselves to reality” and are “aware of the complex texture of experience” (Berlin, Liberty, supra note 9 at 47).

24. As Berlin puts it, “[I]f rationality entails a normal ability to apprehend the world … capacity for choosing is intrinsic to rationality” (Berlin, Liberty, supra note 9 at 44).

25. J. Raz, The Morality of Freedom, supra note 3 at 346. For an analysis of Raz’s views in connection to Berlin’s see S. Veitch, Moral Conflict and Legal Reasoning, supra note 9 at 79-82 and 89-95.

26. Raz thinks that statements of incommensurability between two options are denials that their values are comparable. Thus, A and B are incommensurate if it is neither true than one is better than the other, nor true that they are of equal value.

27. Raz, The Morality of Freedom, supra note 3 at 346.

28. Another example he uses is parenthood and money, where one must refuse to put a monetary value on parenthood in order to successfully engage in it.

29. Raz, The Morality of Freedom, supra note 3 at 350.

30. Ibid. at 353.

31. Ibid. at 352.

32. Ibid. at 353.

33. See S. Veitch, Moral Conflict and Legal Reasoning, supra note 9 at 92.

34. Raz, The Morality of Freedom, supra note 3 at 334.

35. Ibid. at 353.

36. Ibid.

37. Ibid. at 340.

38. Ibid. at 339, 349.

39. Raz does not argue that all people react this way, but that this is a fairly typical reaction, and one that is appropriate within the conventional meaning of marriage. If people were no longer offended by putting an economic price to it, the institution of marriage as we know it would change dramatically.

40. For an account of similar rankings in our everyday experiences, see Miller’s, William I. chapter “Comparing Values and the Ranking Game” in his Eye for an Eye (New York, NY: Cambridge University Press, 2006).Google Scholar

41. Wiggins, David, “Incommensurability: Four Proposals,” in his book Needs, Values, and Truth, 3rd ed. (Oxford: Clarendon Press, 1998)Google Scholar [Wiggins, “Incommensurability”]. Wiggins distinguishes four different cases of incommensurability in increasing levels of complexity. For convenience’s sake, I will explain without noting these distinctions.

42. Wiggins, “Incommensurability,” supra note 41 at 369. Wiggins remarks that “we deploy these conceptions even as the variety of the contingencies that we actually confront constantly shapes or reshapes the conceptions themselves” (ibid.). A good discussion about how these conceptions are deployed can be found in Charles Taylor, “Leading a Life” in Chang, Incommensurability, supra note 4.

43. Wiggins, “Incommensurability,” supra note 41 at 378.

44. Sartre, J.P., “Existentialism is a Humanism” in Kaufman, W., ed., Existentialism from Dostoyevsky to Sartre (New York: Meridian, 1956).Google Scholar This example is well argued in Veitch, Moral Conflict and Legal Reasoning, supra note 9; and criticized by MacIntyre, A., After Virtue: A Study in Moral Theory (Notre Dame, IN: University of Notre Dame Press, 1984).Google Scholar

45. Wiggins, “Incommensurability,” supra note 41 at 378. Wiggins envisions the task of philosophy as continued participation in the critique of reasons, but being “alert to the need to step off the treadmill,” and being “prepared for the decision to depend on the exercise of judgment” (ibid at 379).

46. For a more developed argument about her last scene, see Etxabe, J., “Antigone’s Nomos” (2009) 13 Animus: Can. J. Phil. & Humanities 60.Google Scholar

47. J.F. Lyotard, , The Differend: phrases in dispute, trans. by Abbeele, Georges Van Den (Minneapolis: University of Minnesota Press, 1988)Google Scholar. Lyotard thinks of the different as a kind of incommensurability (e.g., at 128 with notes 178 and 179; and at 159 n. 231).

48. Lyotard, The Differend, supra note 47 at xi [emphasis added].

49. Ibid. Lyotard makes an important distinction between phrase regimens (cognitive, descriptive, prescriptive, evaluative) and genres of discourse (technical, tragic, comic). Each genre of discourse inspires a mode of “linking” phrases together. By doing so, each genre imprints its own distinctive finality or criteria of success to heterogeneous phrase regimens (to persuade, to convince, to vanquish, to make laugh, to make cry, etc.). Each time that heterogeneous phrase regimens are “linked together,” there are other possible linkages that remain neglected, forgotten, or repressed (Lyotard, The Differend, supra note 47 at 136 with note 184), which creates the space for the different. Lyotard argues that this incommensurability may occur both at the level of phrase regimens (because heterogeneous phrase regimens are not translatable into different ones without neutralizing them (ibid. at 128 with note 178), as well as at the level of genres of discourse (because there is no single, universal genre, to subsume all genres into one that can impose its own finality on the rest (ibid. at 138 n. 189; see also notes 179, 231).

50. Lyotard, The Differend, supra note 47 at 140 n. 195.

51. For further examples, see Litowitz, D., “Lyotard: Just Gaming and a Plurality of Justices” in his Postmodern Philosophy and Law (Lawrence, KS: University Press of Kansas, 1997).Google Scholar

52. For an illuminating account of the agent’s internal state of mind, as well as for the kind of virtues required to face such situations, see Nieuwenburg, P., “The Agony of Choice: Isaiah Berlin and the Phenomenology of Conflict” (2004) 35 Administration & Society 683.CrossRefGoogle Scholar

53. The transition that I am marking here does not follow Max Weber’s well-known distinction between an ethics of conviction and an ethics of responsibility Weber, M., “Politics as a Vocation”, trans. by Livingstone, R., in Owen, D. & Strong, T.B., eds., The Vocation Lectures (Indianapolis, IN: Hackett, 2004) at 83ff Google Scholar. Unlike the ethics of conviction described by Weber, the morality of choice defined here is responsible for the consequences of such choices.

54. This position is related to some trends of postmodernism. But consider Derrida: “Without the opening of an absolutely undetermined possible, without the radical abeyance and suspense marking a ‘perhaps’, there would never be either event or decision. Certainly. But nothing takes place and nothing is ever decided without suspending the ‘perhaps’ while keeping its living possibility in living memory”. Derrida, J., The Politics of Friendship, trans. by Collins, G. (London and New York: Verso, 2005) at 67 Google Scholar [emphasis added].

55. As Scott Veitch bitingly puts it, “the more one hears about ‘deferring the undeferrable,’ of ‘conceiving a justice that cannot but must be conceived,’ or of ‘saying what cannot be said’ and ‘listening to what cannot be heard,’ the more one is tempted to produce a charge not so much of relativism … but of serious fence-sitting” (S. Veitch, Moral Conflict and Legal Reasoning, supra note 9 at 189).

56. Lyotard acknowledges that the parties must have some sort of “encounter” in order to give rise to the different and wonders whether it ought not to be the case that they must also have some “properties” in common for it to be altogether possible. Lyotard concludes that, in effect, the different is born out of these encounters, but this is not generated by a prior universe of common properties, but the phrase or sentence in which one presents or articulates this encounter. As Lyotard puts it, “[the encounter] is a transcendental and not an empirical condition” [Lyotard, The Differend, supra note 47 at 28 n. 39]. However, if the encounter were to take place only in the phrase that explains it, then it would be enough simply not to articulate the phrase for the conflict never to arise. This would make such encounters, contrary to what Lyotard wants to argue, dependent on human will. It is true, as we shall explain in the following section, that the conflict must be “staged” for it to be properly constituted as incommensurable. But this does not make their encounter our exclusive creation, for the parties must meet each other and clash at a certain point for us to be able to describe this encounter at all. This is an empirical and not a transcendental condition.

57. Rancière, J., Dis-agreement: Politics and Philosophy, trans. by Rose, Julie (Minneapolis: University of Minnesota Press, 1999) at x Google Scholar [Rancière, Disagreement].

58. Ibid. at 55.

59. Ibid

60. Ibid. at 27.

61. Livy, , Livy in Fourteen Volumes, trans. by Foster, B.O. (Cambridge, MA: Harvard University Press, 1967), Book II, xxxii.Google Scholar This passage is also the basis for Shakespeare’s Coriolanus.

62. Rancière, Disagreement, supra note 57 at 26.

63. Ibid. at 49.

64. Ibid. at 50.

65. Ibid. at 51.

66. Ibid. at 57.

67. Ibid. at 52. This entails a second movement: “We are right to argue for our rights and so to posit the existence of a common world of argument. And we are right to do so precisely because those who ought to recognize it do not, because they act as though they are ignorant of the existence of this common world” (ibid. at 53).

68. Ibid. at 56.

69. Ibid. at 58.

70. Ibid. at 57.

71. Ibid. at 47, 48.

72. Rancière argues that this appeal to the “they” or to a third person can play a triple role, for example in expressions such as “Workers will not accept … ” uttered by the workers’ representative. First, it designates the other participant as one with whom the situation of the speakers as speaking-being is in question. Second, it addresses a third person at whose door it lays the issue in question. Third, it sets up the first person, the “I” or “We” of the speaker, as representative of a community. According to Rancière, it is this set of interactions that is meant by public opinion: “Not primarily some network of enlightened minds … [but] an opinion that evaluates the manner in which people speak to each other” (ibid. at 48).

73. Ibid. at 48.

74. See supra note 56.

75. Ibid. at 27.

76. Ehrenberg, Victor, Sophocles and Pericles (Oxford: Blackwell, 1954), at 23, 25.Google Scholar By late 5th and 4th centuries, B.C., the “unwritten laws” was a fairly common expression. See Mikalson, Jon D., Honor Thy Gods: Popular Religion in Greek Tragedy (Chapel Hill: University of North Carolina Press, 1991) at 195ffGoogle Scholar.

77. Aristotle, Rhetoric at 1373b3. For a historical perspective, see Tomain, J.P., Creon’s Ghost: Law, Justice and the Humanities (Oxford: Oxford University Press, 2009).CrossRefGoogle Scholar