Law, incommensurability, and expression.

• Author: Gardbaum, Stephen
• Position: Response to articles by Gillian K. Hadfield and Alan Strudler in this issue, p. 1235, 1529 - Symposium Comments: Law and Incommensurability

One of the great merits of this Symposium has been to identify and clarify the important distinction between the concepts of incommensurability and incomparability. Broadly speaking, the distinction reflects that between cardinal and ordinal rankings.(1) That is, if two options are incommensurable, they cannot precisely be measured and ranked against each other by a single scale of value. However, incommensurability does not entail that the two options cannot be compared at all, or ranked as better or worse than the other. Incomparability, conversely, means that even this latter ordinal ranking is impossible. As the various contributions amply have illustrated, this distinction, and the general subject of incommensurability that can be said to include both concepts, have important implications for moral reasoning, practical reasoning, and public policy.

The general issue also has important implications for political reasoning, for if the incommensurability of competing ways of life does not prevent their comparability and ordinal ranking, so that one can nonetheless be said to be better than another, this would be a conclusion of some significance in contemporary debates concerning the nature and justification of liberal theory. It would, for example, bolster the claims of political perfectionism, the general structure of which is that if one way of life is better than others, the state has reason to promote it.(2) By contrast, the incomparability of ways of life might supplement the argument for the more impartial stance on the part of the state that has come to be known as "political liberalism."(3)

In addition to the concepts of incommensurability and incomparability, there is a third important concept that is sometimes confused with these two, particularly in the context of political theory where it has been employed influentially. This third concept is the incompatibility of values, and it was famously relied upon by Isaiah Berlin in his critique of monistic political thought.(4) The concept of value incompatibility underlies that of value pluralism in that it is the incompatibility of different values that accounts for their irreducibility and distinctiveness. Incompatibility, however, is not the same as either incommensurability or incomparability, because to claim that values are irreducibly plural is not itself to claim anything about whether or how they can be measured, compared, or ranked. Thus, to assert, for example, that liberty is distinct from, and cannot be reduced to, equality is not to assert that liberty cannot be more important or valuable than equality (as Berlin seems ultimately to have believed),(5) but rather that we cannot have everything. More generally, value incompatibility and pluralism does not imply that there can be no justified choice between options expressing those values; it means that even if there is a justified choice, some moral loss will still inevitably be involved. By contrast, incommensurability and incomparability directly raise the issue of the possibility of justified choice. Value pluralism by itself, then, is not inconsistent with perfectionism; indeed, on some accounts it is a necessary condition of it.(6)

The incomparability of values would appear to provide a number of additional reasons beyond value pluralism for such a characteristic liberal practice as expressive freedom. Thus, if forms or ways of life are incomparable and not merely incompatible, so that their relative worth cannot be evaluated, this would seem to call into question a number of traditional justifications for entrusting the choice among them to a social, political, religious, or intellectual elite rather than to the citizenry as a whole. Robust freedom of expression then might be viewed as necessary for promoting informed and deliberative collective self-government. Moreover, apart from this issue of who does the choosing, the incomparability of values should lead to greater importance being attached to the act of choice itself--and its preconditions--absent the external "coercive" force of compelling reasons. Again, in this context, robust freedom of expression might be understood as critical for promoting autonomy and the capacity to exercise choice.(7) On the other hand, incomparability arguably undermines one traditional argument for freedom of expression--that it is the means to truth--since no amount of discussion will render two incomparable options comparable.

Although the two excellent articles upon which I am commenting do not address the implications of incommensurability for political reasoning, but rather address its implications for contractual and moral reasoning, they both raise the connection between incommensurability and expressive conduct more generally. In An Expressive Theory of Contract, Professor Gillian Hadfield argues that value pluralism and incommensurability compel recognition of the expressive dimension of contractual choice.(8) By contrast, in Incommensurable Goods, Rightful Lies, and the Wrongness of Fraud, Professor Alan Strudler argues that there is no necessary link between incommensurability and expressive concerns, and that in practice such a link is far more the exception than the rule.(9)

I

In her important and provocative article, Professor Hadfield presents a reconceptualization of the source of contractual obligation that, she argues, provides a solution to the feminist dilemma of choice: namely, how to protect women from the oppressive consequences of harmful, constrained choices without thereby divesting them of full and equal contractual agency.(10) Her vehicle in this enterprise is a conception of choice in contract law that takes into account the plurality and incommensurability of value and provides an alternative to the dominant rational choice model.

Drawing on the concept of expressive rationality developed by the philosopher Elizabeth Anderson,(11) Hadfield argues that contrary to the conventional doctrine, which squeezes diverse forms into the straitjacket of a single model, there are at least two types or categories of contracts. These are, first, those that typically are entered into in a risk-allocation frame of mind, based on the party's weighing of the expected costs and benefits of contracting; and, second, those that are entered into for expressive rather than such instrumental reasons.(12) Hadfield illustrates this distinction by reference to three particular examples of expressive contracts which raise the feminist dilemma in stark terms: surrogacy contracts, marital separation agreements, and a wife's guarantee of her husband's business debts.(13) The major implication of this distinction, according to Hadfield, is that what she characterizes as the standard logic and justification of contract enforcement--the mere fact that "she chose"--does not apply in the case of expressive contracts, as the promisor did not in fact choose to assume a risk about the future; this is not what she understood herself to be doing when she entered the contact.(14)

This is an extremely interesting argument, and I have two initial comments on it. First, particularly once one attempts to generalize away from the three particular types of expressive contracts discussed in the article, as Hadfield does in her conclusion, it strikes me that more needs to be said about the division between the two categories of...