Does incommensurability matter? Incommensurability and public policy.

• Author: Warner, Richard
• Position: Symposium: Law and Incommensurability

Reasons are incommensurable when, and only when, they cannot be compared as better, worse, or equally good.(1) Incommensurability so conceived is relevant to choosing public policy because it is a barrier to realizing the following ideal: In forming public policy, we should select the policy supported by the best reasons. As an ideal, this surely seems uncontroversial. Time constraints, lack of information, and the vagaries of group political processes are, of course, barriers to realizing this ideal, as is incommensurability. The latter, however, is a significantly different barrier. When we encounter incommensurable reasons in crucial areas of public policy, we cannot do what we should do: Choose the option supported by the best reasons. This problem is significantly different from the problems posed by lack of time, lack of information, and the caprices of politics. The latter problems prevent us from realizing the ideal in practice; incommensurability prevents us from realizing the ideal in practice or in principle because it is impossible in principle to compare the relevant reasons. Does this mean that it is not generally true that we should select the policy supported by the best reasons? Must we, in cases of incommensurability, decide in some other way? Or, should we find some way to eliminate or avoid the incommensurabilities we encounter? These questions matter.

Matter to whom? We will not reject, modify, or defend any existing law. Our concern in resolving the dilemma is simply to advance a certain description and understanding of our laws and of the processes that create them. Some may complain that if the investigation neither recommends change nor defends the status quo, it is of interest only to theoreticians and not to those whose primary concern is the practical one of deciding what laws should in fact regulate our actions. We might simply, and correctly, reply that theory matters. More pointedly, however, we can reply that ignoring incommensurability so profoundly misconceives the value and dignity of individuals that the resulting conception of persons and their motivations is better labeled a cartoon rather than a conception. To base our laws on such a distorted caricature is to misunderstand ourselves, our laws, and our relation to the state and to one another as citizens. If avoiding such a misunderstanding is not "practical," then such a myopically philistine "practicality" should not be our only concern in making public policy.

This Article is a plea for attention to our collective identity as a society in the making of public policy. For example, suppose that it would greatly promote economic development to allow industrial pollution that would deposit a small amount of lead in drinking water. Assume that one consequence would be that one in every thousand infants in a relatively small residential area would be mentally disabled. How should we decide? One natural reaction is to marshal and compare the reasons to benefit economically against the reasons to protect the health of infants. Attention to incommensurability leads us to ask a different question: Do we wish our collective identity as a society to be defined in part by our willingness to disable infants for economic gain? Some will object immediately that the comparative approach readily accommodates such a concern. Why is a concern about collective identity not simply one more reason, perhaps a very important reason, to be considered along with all the other relevant reasons? An adequate understanding of incommensurability reveals why it is not, and why the point is important.

The key to understanding commensurability consequences lies in understanding certain features of individual rational action. This may seem odd. Our primary concern is public decisionmaking and public rationality, not individual rationality. To dispel the air of oddity, consider law and economics. The descriptive claims and normative recommendations of law and economics depend on a theory of individual rationality, the rational choice theory of individuals as expected-utility maximizers. The same is true for the descriptive and normative perspective incommensurability provides, although the theory of individual action is decidedly different. Indeed, the existence of incommensurability is inconsistent with the claims of rational choice theory, and reflection on incommensurability reveals the serious limitations of rational choice theory as a perspective from which to frame public policy.(2)

1. POLITICAL LEGITIMACY AND THE COMPARISON OF REASONS

   Before we turn to issues about individual action, we should consider briefly why it seems so clear that we should strive to select the policy supported by the best reasons. The short and obvious answer is that proceeding in any other way would be irrational. A longer answer--the answer we need--links rationality with political legitimacy. That answer begins with the observation that, in a democracy, a governmental decisionmaker "accepts the responsibility, among others, to explain, particularly to those adversely affected, why different treatment of others in other circumstances is not capricious or arbitrary or discriminatory."(3) In the making of public policy, there will almost always be "those adversely affected," as public-policy decisions typically impose costs on some and benefits on others. How does a decisionmaker show that the treatment is not "capricious or arbitrary or discriminatory"? Surely by articulating the reasons for the policy, and--especially to address the concerns of the adversely affected--explaining why those reasons are better than the reasons for competing policies that would have allocated costs and benefits differently.

   Articulating the reasons for policy decisions is a requirement of political legitimacy. As Steven Burton emphasizes; "[i]n a society that cares about justice..., decision making based on reason..., not preference or faith, is crucial for legitimacy."(4) The ideal of legitimacy is the ideal of a government that commands compliance with its dictates, not through the threat of force, but because citizens, insofar as they are rational, see themselves as having adequate reasons to comply.(5) Consequently, governmental decisionmakers undermine their legitimacy when they fail to base policy on a comparison of reasons. To undermine, however, is not necessarily to destroy. We may have reasons to obey particular commands that we regard as irrational, for we may in general regard the state as conducting itself in a way that enlists our rational assent to almost all of its commands. On the other hand, too many ill-reasoned decisions and policies will destroy legitimacy by ensuring that we will fail to have, and to see ourselves as having, adequate reason to comply.

   An example illustrates the link between legitimacy and public decisionmaking based on comparing reasons:

   Due to budgetary restrictions, a town must decide whether to cut funding

   for the schools, the fire department, or the police department, although

   needs for all three services are urgent and increasing. While in some

   circumstances the rankings might be fairly easy to make, it is equally easy

   to imagine circumstances in which individuals might find it difficult or

   impossible to make them, for instance when the town's desire to fund each

   service is supported by weighty, but very different reasons.(6)

   Richard Pildes and Elizabeth Anderson offer this example in their critique of social-choice theory when they claim that the "very different" reasons are incommensurable ("the rankings [are] ... impossible to make").(7) Suppose, arguendo, that this is true, and to simplify, drop the fire department, and suppose that the choice is a binary one between cutting funding for the schools or cutting funding for the police. Imagine that the town council decides to fund the police. How will it justify its decision to the proponents of funding the schools? It can, of course, cite the reasons it has for funding the police, but what will it say when the proponents of the schools ask why those reasons are better than the reasons for school funding? If the reasons cannot be compared, the council cannot answer this question. But surely the proponents of funding the schools are entitled to an answer. How else is the town council to meet the demand of democratic legitimacy that it explain why its decision is not "capricious or arbitrary or discriminatory"?

   A qualification: The town council need not provide the explanation. It would be extremely unrealistic to insist that every public decisionmaker respond to demands for explanations from every person adversely affected by a decision. The requirement is that a rational, sufficiently informed, and intelligent citizen should, in principle, possess or be able to construct an adequate explanation. Political leaders, political parties, and general political discourse should, but lamentably do not, play leading roles in ensuring that citizens sufficiently closely approximate such an ideally rational, informed, and intelligent citizen. Having noted that the decisionmaker need not provide an explanation, we will, for expositional convenience, talk as if the decisionmaker does, and should, provide the explanation.

   Assuming public decisionmakers ideally should select policy based on the best reasons, how should such decisionmakers respond to incommensurability? Of course, there is nothing to worry about if incommensurability does not exist. Does it?

2. DOES INCOMMENSURABILITY EXISTS?

   Different theorists mean different things by incommensurability. We will focus on--to use Joseph Raz's term--"constitutive incommensurability."(8) Constitutive incommensurabilities arise when "[b]eing engaged in a pursuit or a relationship includes belief that certain options are not comparable in value."(9) The point is that the "pursuit or relationship"(10) is in part defined by the belief; without the belief...