Hastings Law Journal


Philosophers have been debating the question whether all values are commensurable for at least a generation. Certain legal methodologies presuppose something akin to broadbased commensurability and the frameworks of certain legal structures recognize the irreducible incommensurability of values.

Professor Schauer does not attempt here to resolve the philosophical question whether values are or are not, as on ontological matter, commensurable. Instead, first he sketches the various positions of the commensurability debate. Second, he explains the constitutional implications of holding one position or another in the debate. Third, regarding the core of the argument, Professor Schauer offers a theoretical account of the legitimacy of trying to resolve the commensurability debate by reference to the consequences of holding one position or another. He argues that there is nothing morally suspect in selecting middle level philosophical positions strategically on the basis of their expected consequences. A choice to internalize a view of commensurability or incommensurability, based on an instrumental calculation of which position would better serve deeper noninstrumental values, will not resolve the commensurability debate. Still, Professor Schauer makes the case for an instrumental approach to the debate to provide additional resources by which some of the legal debates about commensurability may be evaluated, and perhaps at the same time show the philosophical and legal controversies to be more distinct from each other than has commonly been supposed.

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