7 LEG 1 (2001)

handle is hein.journals/legthory7 and id is 1 raw text is: 










Legal Theory, 7 (2001), 1-34. Printed in the United States of America
Copyright  Cambridge University Press 1352-3252/ 01 $9.50



CHOICEAND VALUE


TIMOTHY MACKLEM
King's  College   London



                            INTRODUCTION

It's apples and oranges, we  say Chalk  and cheese.1 Or, somewhat   more
equivocally, six of one and half a dozen of the other.2 What do we mean?
  An  evening lies before us, a career, a life. A quiet dinner in or a night on
the town?  The creativity, self-respect, and low income of an artist, or the
power, status, and wealth of a banker? The  strength and stability of a life
based upon   deep and  lasting commitments,  or the stimulation and chal-
lenge of a life based upon fluidity and change?Naturally, we want a success-
ful evening, a worthwhile career, a good life. What should we do? Does  it
depend  on who  and what  we are, or is that part of the question?
  A court confronts a clash between constitutional values, or between legal
values, or both at once. Neo-Nazis wish to express themselves in ways that
diminish the dignity and status of Jews. The court can protect equality by
limiting freedom of expression, or it can protect freedom of expression by
limiting equality In doing so it can lay down a rule that will provide clear
guidance  for future cases at the expense of justice in the case before it, or
it can do justice in the case before it at the expense of clear guidance. How
should the court decide? What  sort of reasons can it give for its decision?
Must  those reasons defeat all other reasons, so as to show that the court's
decision is rationally required, or is it enough that they themselves  be
undefeated, so as to show that the decision is rationally permitted?
  These  are questions of incommensurability They  are said to arise, and to
matter to us, because the values present in the world, those things that make
our lives worth living, are plural in nature, and further, because the various
options that confront us in life, be theysignificant or insignificant, personal
or professional, are constituted bydifferent values, so that those options can
neither be reduced  to one another nor be assessed in terms of a common

  1. Apples and oranges is the North American term, implying incommensurability. Chalk
and cheese is the British term, implying both incommensurability and incompatibility.
  2. This may imply either the equality of the options before us (if emphasis is placed on the
identityof six and halfa dozen) or the incommensurabilityof options that are insignificant in
our lives (if emphasis is placed on the difference between one option and the other).
  3. I do not mean to suggest, as a general matter, that what is uniquely correct is required
rather than permitted, or that what is commonly correct is permitted rather than required. In
the judicial setting, however, where a decision must be made and where rival positions are
incompatible, I take this to be true.

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