Law, Incommensurability, and Conceptually Sequenced Argument
University of Pennsylvania Law Review, Vol. 146, p. 1487, 1998
22 Pages Posted: 21 Aug 2008
Date Written: August, 19 2008
This Article argues that there are methods for dealing with plural values that are structurally very different from those conventionally assumed within rational choice theory under the ideas of commensurability or lexical priority. In particular it is argued that plural values can be integrated rationally into an overall all-things-considered decision as a matter of "conceptually sequenced argument". Such an argument allows for the rational possibility that one of the non-commensurable (plural) values might have a priority at one stage in the choice sequence while also allowing for that priority to be relaxed or defeated at a subsequent stage. Such a procedure, while it might appear to involve self-contradiction if we look only at the choices as revealing values embedded in the alternatives for choice, will look perfectly coherent if we understand the choice procedure as a conceptually-ordered (or partition-dependent) sequence. The Article argues that legal decision-making and the process of adjudication, in their insistence on a role for reason-based choice and the interpersonal significance of argument and reply, regularly manifest such a conceptually sequenced ordering of plural values. The different theories of Richard Epstein, George Fletcher and Ernest Weinrib are compared in this respect.
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