Document Type

Article

Publication Title

Hastings Law Journal

Abstract

Professor Frederick Schauer's article raises the intriguing possibility that a view about the commensurability of values might be selected on some basis other than the truth about values and their commensurability. For example, even if we are fairly sure that the values embodied in the First Amendment are of the same kind as the values embodied in our assessments of social progress and economic efficiency, we might choose nevertheless to adopt the view that the values involved are quite different and that First Amendment values must not be balanced against considerations of progress or efficiency, but must be given absolute priority over those considerations. We should make this choice or selection, Professor Schauer says, in a frankly empirical and instrumental manner, on the basis of the consequences that would follow from one view or the other being generally believed. In other words the gap, which Schauer's proposal exploits, is not the gap between theoretical and practical belief, but the gap between what one takes oneself to be doing and what one ends up doing in fact. I agree with him that this gap can be significant, particularly in institutional contexts, where decision-procedures are so to speak hardwired. The decision-procedure that it is right to hard-wire into a legal or political institution may not be the decision-procedure that a God or an archangel would deploy to deal with the cases with which the institution has to deal.

First Page

813

Volume

45

Publication Date

1994

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