Incommensurable goods, rightful lies, and the wrongness of fraud.

• Author: Strudler, Alan
• Position: Symposium: Law and Incommensurability

Lies that alter the course of a negotiation often constitute fraud,(1) but not always. Successful lies that a person tells about her reservation price in a negotiation, for example, need not be actionable.(2) The legal acceptability of such lying seems at odds with the deeply entrenched idea that lying is morally wrong.(3) In, this Article, I examine some of the apparent tensions between legal and moral responses to lying and draw some lessons about the normative structure of justifiable judgments about truth-telling.

If one sees differences between the law and ethics of lying, it is natural to regard these differences as reflecting the limits of law. One then may suppose that law embraces lower standards for truth-telling than does morality, because it is too costly to enforce the high standards of morality in the law of fraud. Put somewhat differently, the problem with imposing a rule against lying might be understood comparatively: Imposing the rule would fail to secure as much value as not doing so would. This, however, suggests a particular model of normative reasoning that requires us to think about choices among options by asking which offers the most value or the most good. A salient assumption of this model is that options are commensurable in value.(4) Although one of my main objectives in this Article argue against commensurabilist models of normative deliberation in law and morality, I suspect that arguments against commensurability, when made at a high level of generality, will ring hollow. Discrediting the commensurabilist model requires demonstrating that it creates problems in practice, specifically, that thinking about incommensurables cannot be eliminated in ordinary normative reasoning. Reflection on the example of reasoning about lies that lawyers tell in negotiation, I suggest, shows how incommensurability is an utterly ordinary feature in normative choice.

I have an ulterior motive, distinct from concern about dialectical effectiveness, for joining abstract theory about incommensurability and modest casuistry about truth-telling. I think that some of what legal scholars write about the role of incommensurables; in legal reasoning is misleading because it is overly-dramatic. Cass Sunstein, for example, suggests that when we confront issues in law whose resolution requires appeal to incommensurable values, we should make the choice that expresses the appropriate evaluative attitude.(5) He also says that "[b]y making certain choices and not others, people express various conceptions both of themselves and of others."(6) I think that virtually all real decisions about value, including decisions as simple as how much sugar should be included in a cake recipe, require judgments about incommensurables.(7) I will try to demonstrate that the role of incommensurables in law, although often conceptually recalcitrant, need raise no more profound questions about our conception of ourselves than does the role of incommensurables in cake recipes. Although I agree with Sunstein that there are cases in which dealing with incommensurables requires adopting appropriate evaluative attitudes that touch on our conceptions of ourselves and others, I maintain that these cases form a specialized subset of incommensurable cases and that it is unclear that they predominate in law.

My plan in this Article is as follows. In Part I, I explain the concept of incommensurability and identify some of the limits that generally confront an analysis of normative problems in commensurabilist terms. In Part II, I discuss a commensurabilist account of the norms of lying about reservation prices in negotiation. In Part III, I develop skepticism about the commensurabilist account. In Parts IV through VII, I develop an alternative account of the norms of lying in negotiation, which I argue is incommensurabilist. In Part VIII, I consider and reject arguments that deliberation about the relevant norms must be deliberation about commensurables. Finally, in Part IX and the Conclusion, I diagnose the intellectual tendency to overdramatize incommensurability, and summarize the results of this Article.

1. INCOMMENSURABILITY CHOICE

   The idea of a choice between normative alternatives, or options, that have incommensurable value is explained most easily by contrasting it with choice among commensurables. In the commensurabilist model, other things being equal, if we can compare two options in terms of which is more just, or which produces more utility, then we should pick the option that offers more of the property. Within the realm of commensurable value, betterness is gauged in terms of moreness, and deliberation consists of comparing options to determine which option has more of the relevant desirable property.(8)

   Examples of commensurables outside of morality include physically measurable quantities such as length, average velocity, temperature, and earthquake intensity.(9) Consider temperature. We can easily specify a procedure, involving the use of a thermometer, for measuring and comparing the temperatures of two different cups of tea. We know in advance what we seek, and our only question is how much of it we find. Value or normative commensurability is similar. As Henry Richardson explains, value commensurability obtains only when we can compare goods in terms of the degree to which they share certain desirable characteristics as a basis for making a choice among them:

   Two values (or goods) are deliberatively commensurable with respect to

   a given choice if and only if there is some single norm (or good) such

   that the considerations put forward by those two values (or goods) for

   and against choosing each of the available options may be adequately

   arrayed prior to the choice (for purposes of deliberation) simply in

   terms of the greater or lesser satisfaction of that norm (or

   instantiation of that good).(10)

   Nothing in Richardson's definition requires denying the obvious--that there is always some purely formal sense in which all options, including incommensurably valuable options, can be compared in terms of which has more of a given property. For example, I can say that one option has more of the property of "being likely to be chosen by me" than does the other. Additionally, I can even say that one of the options has more of the property of "being the morally right option" than the other. When deliberating about which is the morally right option to choose, however, it is not useful to ask whether any of the options has these above-mentioned properties. When deliberating among options, we seek properties that identify one option as better than another. "Being more likely to be chosen by me" is not something that marks an option as morally better; "being the morally right option" is the conclusion that the option is morally better, not a basis for reaching that conclusion. Commensurable properties that moral options share, I maintain, are often simply insufficient to serve as bases for making moral choices.(11)

   Deliberatively incommensurable values may be defined as the complement of the set of deliberative values identified in Richardson's definition: When it is impossible to deliberate rationally among options by judging which option has more of some desired property, but it is still possible to deliberate rationally, the objects of deliberation are incommensurably valuable.(12) This characterization of incommensurability, however, is purely negative; it says nothing about the nature of incommensurable values except that they differ from commensurable values. It is hard to make a meaningful general statement about incommensurable values because there are many different sources of incommensurability. One frequently discussed source is the plurality and diversity of legitimate moral concerns.(13) For example, a town may confront a choice as to whether to devote its small tax surplus to refurbishing a historical site or to renovating a homeless shelter. Although each option involves real value, it is doubtful that there exists some value (or values) the options share such that we might choose between the options by determining which one possesses more of that value.

   When the town chooses between refurbishing a historical site and renovating a homeless shelter, it seems to confront a hard or even a tragic choice, because, no matter which construction option the town embraces, a deserving party loses, and a legitimate value may be compromised. Tragedy is sensational, and it is no wonder that legal scholars discussing incommensurability focus on it.(14) If one accepts, however, the definition of incommensurability I endorsed earlier, which provides that one chooses among incommensurables if the concept of "more value" cannot serve as the basis for choosing among options,(15) then one must recognize instances of incommensurability that involve no hard choices and no tragedy. In some important moral choices, I will suggest, the pivotal issue, and hence the basis for choice, is not which option provides more value, but whether either or both options provide morally legitimate value. Such value inheres in traditional deontological notions such as respect for autonomy and respect for individual rights. The hard deliberative work often lies in assessing the moral legitimacy of the options in these terms; once it is resolved, the choice among options may become simple or even trivial. One option may be so devoid of moral legitimacy that it ceases to be a contender; an option that appeared illegitimate or tainted may turn out on analysis to be perfectly acceptable. Traditional deontological notions, such as respect for individual autonomy and respect for individual rights, are pivotal in determining the moral legitimacy of an option and must be accommodated in moral and legal decisionmaking, but their relevance cannot be understood in terms of an aim to produce more of a certain value. Hence, I maintain that the relevance of...