Adjudication and the problems of incommensurability.

• Author: Scharffs, Brett G.
• Position: Judicial decision making

[A]ll law is universal but about some things it is not possible to make a universal statement which will be correct. In those cases, then, in which it is necessary to speak universally, but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error. And it is none the less correct; for the error is not in the law nor in the legislator but in the nature of the thing, since the matter of practical affairs is of this kind from the start.... [A]bout some things it is impossible to lay down a law, so that a decree is needed. For when the thing is indefinite, the rule also is indefinite....

-- Aristotle(1)

Real dilemmas depend on various values' making autonomous, mutually irreducible demands upon us.

-- David Wiggins(2)

To make such an omelette, there is surely no limit to the number of eggs that should be broken -- that was the faith of Lenin, of Trotsky, of Mao, for all I know of Pol Pot.

-- Isaiah Berlin(3)

INTRODUCTION

Oftentimes we find ourselves exasperated by reason's inability definitively to answer--or more precisely our inability to reason definitively to answers regarding--life's most pressing practical questions.(4) This vexation is felt acutely when we try to convince others of good will and intelligence that a certain course of action is right or best, only to find that they remain unpersuaded by our best reasons and explanations.(5) But this frustration occurs intrapersonally as well as interpersonally. Sometimes we ourselves remain uncertain whether our own best arguments and rationales provide a sufficient basis for choosing one alternative over another.(6) We often feel a nagging suspicion that we are choosing and acting without being certain that our choices are correct or best.(7)

Nowhere should this concern us more than in the law, where the choices and outcomes of at least some actors, notably judges and prosecutors, matter: A judge decides and someone loses life, liberty, or property.(8) Such uncertainty is felt acutely by first-year law students who often feel as if they haven't a clue how a judge is going to decide a given case,(9) but it is also felt by experts, such as experienced observers trying to predict how the Supreme Court will decide a particular case.(10) Such uncertainty is even--perhaps especially--felt by judges.(11)

Recent efforts to understand and evaluate the sources and nature of the limits on our ability to reason decisively and find uniquely correct outcomes or decisions have focused on the related concepts of incommensurability and incomparability.(12) The problems of incommensurability arise when we try to compare plural, irreducible, and conflicting values, or choose between options that exhibit or will result in the realization of plural, irreducible, and conflicting values.(13)

Incommensurability has been the focus of a sophisticated and technical debate in academic philosophy, where several books have been devoted to the subject.(14) Law professors have even gotten involved in the debate; for example, the University of Pennsylvania Law Review recently published a 561-page symposium on the topic "Law and Incommensurability."(15)

In the face of this onslaught of analysis of the problems of incommensurability, one might expect that a consensus would have emerged as to what "incommensurability" means and what its implications are for practical reason.(16) Although there is considerable overlap in usage,(17) and although some common ground does appear to be emerging, reading the literature might give one the feeling that this is a debate about to collapse from its own weight.

If progress is to be made in our conceptualization and analysis of the problems of incommensurability, the law would appear to be a particularly promising place to focus our energies.(18) This is because the law represents a complex social enterprise involving a large number of actors across a long period of time, where reasons of a discordant and heterogeneous nature are marshaled and cited in defense of particular choices or outcomes that further the realization of some among a variety of plural and conflicting values. It is also a social practice valuing outcomes that are correct, or at least predictable, reasonably certain, and knowable.(19)

My goal in this Article is modest. It is to give an introduction to the problems of incommensurability and try to explain why we should care about them.(20) I also propose to examine the law, and in particular adjudication, as a laboratory in which to study and draw conclusions about the problems of incommensurability.(21) I hope to elucidate both what one can learn from the law about the nature of the problems of incommensurability and how we can constructively respond to those problems. I also hope to shed light on what judges and others can learn from a deeper understanding of the problems of incommensurability, and what the implications of those problems might be for the way judges go about deciding cases.

Judges routinely seek to accomplish the impossible--to commensurate incommensurable values. That they attempt to do so with regularity says something important about the problems of incommensurability, namely that such problems do not foreclose reasoned deliberation and choice. But if commensurating incommensurables really is impossible, then this tells us something important about adjudication, namely that it must remain somewhat tentative, open to reevaluation and reassessment, and that judges should approach their work with an open mind, creativity, and humility.

Part I is an introduction to the problems of incommensurability. My purpose is to explain to those who are not familiar with the debates about incommensurability, what incommensurability is, and why we should be concerned about it. I suggest several reasons to support the view that values are plural and sometimes conflict. This leads one to conclude that the problems of incommensurability pose real challenges to our ability to engage in practical reason, especially our ability to make and defend our choices as correct or best.(22) I also describe three types of responses to the problems of incommensurability and suggest that an approach based upon what Aristotle called practical wisdom is the most promising approach.(23)

Having provided an introduction to the problems of incommensurability, Part II seeks to provide straightforward, nontechnical definitions for several related and easily-confused terms, including "incommensurability," "incomparability," "incompossibility," "incompatibility," "uncomputability," and "uncertainty."(24) Definitions of these terms are often extremely technical and sometimes serve to obscure, rather than illuminate, the problems of incommensurability.(25) A large part of the confusion and controversy that exists in the debates over whether values are incommensurable, and what this means for practical reason, can be traced to the multiple, perplexing, and sometimes misguided definitions of incommensurability that have been proposed. For example, "incommensurability" and "incomparability" are often treated as synonyms, which leads to unfortunate conclusions.(26) Our ability to conduct a fruitful analysis of the limits of reason when dealing with plural and conflicting values will be greatly enhanced if we speak carefully about these terms.(27)

In Part III, I argue that it is possible to think rationally about, and make reasoned choices between, options involving plural and conflicting values. Having defined these terms, it is possible to identify with greater clarity what I call the "problems of incommensurability"(28) and several important "keys" to unlocking these problems.

The first key to unlocking the problems of incommensurability, built upon the effort to clearly define and differentiate between related concepts, is the distinction between incommensurability and incomparability.(29) I argue that incommensurable values and choices that vindicate incommensurable values are ubiquitous. In contrast, choices that are genuinely incomparable are extremely rare. When we do not distinguish between incommensurability and incomparability, or if the distinction is drawn poorly, the problems of incommensurability can easily be misconstrued or exaggerated.(30)

The commonplace nature of incommensurable values has important implications for practical rationality, including the confidence with which we can assert conclusions, the breadth of the conclusions we can assert, the specter of regret, and the importance of keeping an open mind characterized by an attitude of humility.(31) Conversely, I argue that incomparable values and choices that vindicate incomparable values are very rare. This also has important implications for practical rationality, including the possibility of shared practical reasonableness that transcends the differences (personal, cultural, etc.) that separate people.(32) I also consider the problems of incommensurability in the context of choices that reflect radically different values, where genuine incomparability might arise.(33)

The second key to unlocking the problems of incommensurability can be found in thinking carefully about what we are doing when we seek to defend our judgments as "best" or "correct."(34) 1 suggest that the problems of incommensurability are exaggerated by focusing unduly on which option, among two or more, is the "best," all things considered (ATC). For convenience, I sometimes refer to this as an ATC judgment. What are we asserting when we claim that a choice is best or correct, ATC? What facts are necessary for us to claim that a judgment is best, ATC? Under what circumstances is it important that we justify our judgments as being ATC?

Much pessimism about reason's ability to give reliable guidance in situations that demand a choice among alternatives rests upon our tendency to focus exclusively on ATC judgments, often without first clarifying what...