Document Type

Article

Publication Title

University of Pennsylvania Law Review

Abstract

When one turns from conflicts of rights to conflicts of value, the claim that a right answer exists is transformed into a claim that there is a best answer to every collective decision problem. This claim is often attributed to economic analysts of law, in general, and to advocates of cost-benefit analysis, in particular. Opponents of the claim generally rely on the literature in ethics that denies the existence of a best answer to many individual decisions. These opponents, however, too often simply adopt, without modification, the arguments for incommensurability in ethics to problems of law. In this Article, I argue that such straightforward adoption is inappropriate. To begin this analysis, one needs to understand the nature of the debate in ethics. Part I thus offers a characterization of this debate that identifies two distinct strands of the debate. Each strand leads to different consequences for the implications that incommensurability has for law. I identify these strands as "instrumental incommensurability" and "expressive incommensurability." The two Parts following Part I address the implications of each form of incommensurability for law. Part II considers the problem of instrumental incommensurability in the context of law. I suggest first that the case for instrumental incommensurability of values in law has not been adequately made. Subsequently, I accept, for purposes of argument, the claim that legal decisionmakers must choose in the face of instrumentally incommensurable values and ask what consequences these "choice" situations might have for legal decision. Part III investigates the relation between the expressive aim of action and the expressive aspect of law discussed in recent legal literature. The Article ends with a brief conclusion.

First Page

1599

DOI

https://doi.org/10.2307/3312815

Volume

146

Publication Date

1998

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