Choice and value

Legal Theory

Volumn 7, Issue 1, 2001, Pages 1-34

  MaCklem, Timothy ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

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[No Author keywords available]

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EID: 85022419274     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325201071014     Document Type: Article

References (25)

1. INCOMMENSURABILITY, INCOMPARABILITY AND PRACTICAL REASON (Ruth Chang ed., 1997) [hereinafter INCOMMENSURABILITY]. See also Symposium, Law and Incommensurability, 146 U. PA. L. REV. 1169 (1998).
2. Joseph Raz calls these constitutive incommensurabilities because incommensurability constitutes part of the good in question, here friendship. See Joseph Raz, THE MORALITY OF FREEDOM 345-53 (1986).
3. Brian Bix, Dealing with Incommensurability for Dessert and Desert: Comments on Chapman and Katz, 146 U. PA. L. REV. 1651 (1998).
4. See Ruth Chang, Introduction, in INCOMMENSURABILITY, Dealing with Incommensurability for Dessert and Desert: Comments on Chapman and Katz note 4, at 12, where comparisons based upon absolute descriptions are equated with comparisons based upon relative descriptions, with the result that the claim that justified choice depends upon a comparison of options in terms of their absolute descriptions is equated with the claim that justified choice depends upon a comparison of options in terms of some relative description, in other words, upon commensurability. See also Ruth Chang, Comparison and the Justification of Choice, 146 U. PA. L. REV. 1569, 1588-91 (1998) where the same argument and the same equation is made.
5. Chang, Introduction, in INCOMMENSURABILITY, Introduction note 4, at 2.
6. As I have already indicated, Chang in fact speaks of incomparability rather than incommensurability. She also speaks in terms of a “covering value” rather than in terms of human purpose.
7. Joseph Raz, who generally prefers the term incommensurable but from time to time uses the term incomparable on stylistic grounds (see Joseph Raz, Incommensurability and Agency, in INCOMMENSURABILITY, Chang in fact speaks of incomparability rather than incommensurability. note 4 at 110; Joseph Raz, ENGAGING REASON 46 (1999)), calls this radical incomparibility. See Raz, Chang in fact speaks of incomparability rather than incommensurability. note 5, at 329.
8. Chang, Introduction, in INCOMMENSURABILITY, who generally prefers the term incommensurable but from time to time uses the term incomparable on stylistic grounds note 4, at 33.
9. See Larry Alexander, Banishing the Bogey of Incommensurability, 146 U. PA. L. REV. 1641, 1642 (1998).
10. These comments also apply to Bruce Chapman's suggestion, in Law, Incommensurability and Conceptually Sequenced Argument, 146 U PA. L. REV. 1487 (1998), that where several relevant considerations are incommensurable, they can be applied sequentially so as to yield a reasoned conclusion to the question of, for example, who should receive a scholarship, where financial need, scholastic ability, and community service are relevant considerations and the available candidates manifest those considerations in different degrees. It is certainly possible to proceed in this manner, but if reason requires us to do so, the candidates are not incommensurable; and if the candidates are incommensurable, then reason does not require us to do so.
11. A similar point has been made by Ronald Dworkin in Objectivity and Truth: You'd Better Believe It, 25 PHIL. & PUB. AFF. 87, 129ff. (1996).
12. Chang, Introduction, in INCOMMENSURABILITY, A similar point has been made by Ronald Dworkin in Objectivity and Truth: You'd Better Believe It note 4, at 14-16.
13. Joseph Raz, Mixing Values, 65 PROC. ARIST. SOC. (SUPP) 83, 88 (1991); see also Raz, ENGAGING REASON, Introduction note 10, at 186.
14. This would exclude the possibility that mixed-value goods are ever sustained by social practices. On the relationship of mixed-value goods to social practices, see Raz, Mixing Values, Mixing Values note 18.
15. Chang, Introduction, in INCOMMENSURABILITY, This would exclude the possibility that mixed-value goods are ever sustained by social practices. note 4, at 21.
16. Chang, Introduction, in INCOMMENSURABILITY, Introduction note 4, at 23-27.
17. One might more naturally describe these as relevant and irrelevant differences of value. I have adhered to Chang's terminology out of courtesy and in order to avoid being tendentious.
18. Chang, Introduction, in INCOMMENSURABILITY, One might more naturally describe these as relevant and irrelevant differences of value. note 4, at 26.
19. Chang gives credit to Adam Morton for this image, which she modifies for her purpose. Id. at 27.
20. See Peter Westen, SPEAKING OF EQUALITY: AN ANALYSIS OF THE RHETORICAL FORCE OF ‘EQUALITY’ IN MORAL AND LEGAL DISCOURSE 19ff. (1990) Given that physical differences do not entail evaluative differences, goods that are indistinguishable in all evaluative respects need not be physically identical, but they are evaluatively identical, not evaluatively equal.
21. See Raz, SPEAKING OF EQUALITY: AN ANALYSIS OF THE RHETORICAL FORCE OF ‘EQUALITY’ note 5, at 328-35.
22. Broome, Is Incommensurability Vagueness?, in INCOMMENSURABILITY, if so, whether they are equal, roughly or otherwise, or superior and inferior, pedantically or otherwise. note 4, at 67.
23. Issues of this kind are considered, albeit to different effect and in ways that do not track the discussion here, by Charles Taylor in Leading a Life, Elijah Millgram in Incommensurability and Practical Reasoning, John Finnis in Commensuration and Public Reason, Joseph Raz in Incommensurability and Agency, and David Wiggins in Incommensurability: Four Proposals, all in INCOMMENSURABILITY, Id. note 4.
24. See Chang, Introduction, in INCOMMENSURABILITY, Issues of this kind are considered, note 4, at 11.
25. See Raz, Incommensurability and Agency, in INCOMMENSURABILITY, Introduction note 4, at 110; see also Raz, ENGAGING REASON, Introduction note 10, at 46.