Law, incommensurability, and conceptually sequenced argument.

• Author: Chapman, Bruce
• Position: Symposium: Law and Incommensurability

1. DIFFERENT PROCEDURES FOR PLURALISTIC CHOICE

   Suppose that a law school committee is charged with the task of awarding entrance scholarships to incoming first-year law students. Applicants for the scholarships are to be assessed on the basis of three criteria: financial need, scholarly ability, and community service. Of the students who have applied, suppose, too, that there is no student who is better than all the others on all of these criteria.

   It is easy to imagine that many scholarship programs might announce selection criteria like these. Further, one can imagine that making the required choices in these situations is extremely difficult, both for each committee member as a matter of individual choice, and for the whole committee as a matter of social choice. Part of the problem, of course, typically will be that the relevant information is hard to come by, or that the competition is very keen, calling for the committee to make close judgments between students on each of the criteria considered on its own. But a far greater problem would seem to be that the imposed choice criteria are plural and incommensurable. Financial need, for example, does not appear to have much to do with scholarly ability. Indeed, to focus on the one seems to exclude consideration of the other, at least at the same moment--a bit like trying to see simultaneously both of the animal figures in the psychologist's familiar rabbit-duck diagram.(1) Further, it seems improper to construe these qualitatively different criteria as aspects of some larger overarching value that provides a common measure, or commensurability, for them all. Plural considerations are plural because they are different in their nature, and not because they simply differ in the amounts they offer of some common nature.(2) For this reason, the assumption of commensurability does a kind of conceptual violence to the underlying values, converting genuine qualitative differences into merely quantitative ones.(3)

   Of course, someone might say that meeting financial need and rewarding scholarship or community service are simply qualitatively different ways of maximizing (or at least increasing) overall social utility or welfare. But that too would seem to beg the very question at issue: How, exactly, can they be determinative of that same thing in such very different ways? The different criteria appear to be so genuinely external to one another that they frame the choice problem in a psychologically nonintegrable way, each engaging quite unrelated notions of overall social welfare.

   The simplest committee example attests, therefore, to both the challenge and the pervasiveness of the problem of incommensurability of plural choice criteria. Surely the scholarship committee is not being asked to do anything extraordinary; its predicament of pluralistic choice would appear to be the rule rather than the exception in our lives. As individuals choosing our careers, for example, we constantly have to make choices that implicate, and are implicated by, very diverse values. For a law graduate there is an initial choice between pursuing a career as an academic or as a professional lawyer and subsequent choices between the requirements of the chosen career and those of family life.(4) It seems wrong to say that these choices are difficult merely because of information problems or because all the relevant considerations are somehow in balance under a single measure of overall value, even one as general as how happy we will be in life. Rather, we can be quite convinced that we will be happier with one career choice than another and still feel puzzled about how to proceed. The greater overall happiness of one career choice does not seem adequate to account for what is at stake. (We might feel some duty to join the family firm, for example, even though we might be happier as an academic.) Or we can estimate that we will be equally happy with either career choice and still feel that we are far from indifference (the natural attitude towards balance) about our choice.(5) This continued puzzlement in the one case, or lack of indifference in the other, indicates the presence of values that are incommensurable, either with happiness or with each other, and that have not been accounted for in the balancing we have done.

   In the face of these sorts of difficulties, one can imagine our scholarship committee proceeding in one of several ways. First, it might simply deny the problem of incommensurability and proceed as if tradeoffs between the different criteria really do make some sense. As already suggested, this seems to misrepresent the nature of the criteria at stake.(6) Second, it might accept the problem of incommensurability and decide that the only way to proceed is by selecting one of the plural criteria as decisive for who should get an entrance scholarship. One can imagine that the choice of one decisive criterion to the exclusion of all others might be controversial; some committee members will deem financial need to be paramount, others scholarly ability, and still others community service. Although the integration of these different views seems to raise its own problems of incommensurability, the committee could perhaps choose the decisive criterion by majority rule.

   However, the second solution to the problem of incommensurability surely would continue to nag. For while it accepts that there is a problem of incommensurability between values, it denies the very presence of plural values, opting instead for an entirely monistic, or single-valued, approach to the choice problem. This suggests a third, slightly different way for the scholarship committee to accommodate the plural criteria that seem genuinely relevant to the choice of scholarship winners. The committee could adopt a lexical ordering of the different criteria,(7) using the first lexically ordered criterion, for example, financial need, to rank the candidates from first to last, and using a second criterion, for example, scholarly ability, to break any ties that might arise under the primary criterion. The third criterion could likewise break any further ties that might arise under the use of the second. This lexical procedure also would, invite controversy, of course, since, again, there likely will be disagreement amongst the committee members as to the order in which the different criteria should be considered. But the lexical procedure at least has some residual traces of the pluralism with which we began, and handles that pluralism without assuming criterial commensurability.

   So far we do not seem to have a very rich array of strategies for dealing with the problem of incommensurability; but, surprisingly, within the conventions of the economic theory of rational choice, there appear to be no more strategic options from which to choose.(8) Either one is prepared to countenance tradeoffs between qualitatively different criteria in the way that commensurability demands, or one is single-mindedly absolute with respect to one value, allowing secondary values in, at best, only as tie-breakers should the first value fail to be decisive in the way required. In the economist's typical geometrical representation of the space of alternative choices, there are indifference curves either everywhere or nowhere; there is nothing in between.(9) Confronted with such a stark choice, it is less surprising, perhaps, that the economic theorist has typically rejected the almost fanatical single-mindedness of absolutism, and embraced the universal possibility of tradeoffs.(10)

   In this Article I suggest that there is, in fact, an alternative strategy that is "in between" these two extremes, and that this strategy is manifested, sensibly and regularly, in law and adjudication as a way to accommodate plural values in decisionmaking. I shall eventually refer to this strategy as the method of "conceptually sequenced argument." Although I shall exemplify the particularly legal version of this strategy in the course of this Article, the beginnings of what such a strategy looks like, and how it differs structurally from the other strategies already discussed, can be illustrated by way of the scholarship committee example.

   Suppose the committee decides to proceed in the following way: First, it ranks all the scholarship candidates according to financial need. Then, having selected the top ten candidates on that first list, it ranks all of those candidates according to scholarly ability and selects the top five scholars. Then, it ranks these last five according to community service, choosing as its three scholarship winners the top three candidates on the final list.

   What I have just described would hardly be a radical proposal for a committee procedure; one easily can imagine that many committees might already proceed in this way. But notice how the procedure combines some of the features of both the criterial tradeoff model and the lexical ordering model without reducing completely to one or the other. On the one hand, the lexical ordering notion (no tradeoff) is preserved in the idea that the different criteria have a sequenced priority with respect to one another; if financial need is the first priority in the scheme, no candidate having very high scholarly abilities but no real financial need (in other words, someone so low on the first list as not to make the first cut) will be chosen by the procedure under any circumstances. Very high scholarly ability is never allowed to "compensate" for low financial need since, under this scheme, the committee never makes such a comparison. On the other hand, under the scheme the prior financial need criterion is subject to an override by the secondary criterion of scholarly ability, at least for those candidates selected for the first list on the basis of financial need. Thus, candidates on the first list who have more financial need (that is, more of the primary criterion) may not...