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Incomparable Values in Adjudication

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Emmanuel Voyiakis, LSE

lse.ac.uk/law

Summary

1. Incomparable values and the tragedy of practical reason

2. Two responses to the tragedy

3. A shared ‘ordinal’ assumption

4. What the ordinal assumption misses: ‘granular’ facts

5. A non-ordinal alternative

6. False alarm

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1. A tragic dilemma?

Example: a judge must rule on the permissibility of a law banning protests outside a reproductive healthcare clinic.

• Free expression vs privacy

Q: What does reason require/allow the judge to do?

• The ‘tragic story' about value conflicts
• Values are plural (not reducible to one master value).
• They are often incomparable (no common metric, not equal, preferable to).
• No decision is more rational than another.

Implication: practical reason simply… runs out of guidance for the judge.

A: The judge has to sacrifice one value for the other = make a tragic choice

Sartre’s (1945) example of the son who had to choose between caring for his ailing mother and joining the Resistance.

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2. Two responses to the 'tragedy’

• i. Sales & Wilmot-Smith (2022): tragedy is real but manageable
• The tragedy is real. Reason provides no answer when plural values in play.
• Solution: Legislatures & higher courts can lay down an ordering of values by their decisions (e.g. "free expression trumps privacy") – ‘artificial ordering’
• Lower courts have to comply, so tragedy contained at the top of the pyramid.

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• ii. Waldron (1994): tragedy is mostly fake
• Plural values may still be comparable
• Some 'natural' orderings discoverable by reason (e.g. rights 'trump’ welfare)
• The dilemma is tragic only sometimes.

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3. The ordinal assumption

• Despite their differences, both responses share one idea

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• The ordinal assumption: the only way to resolve a conflict between incomparable values is to order them (e.g., A > B, B > A, A = B).

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• But the ordinal assumption lands both responses into same problem.

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4. The problem with orderings

• To order two values, you must know what each requires in a situation
• Son about to go to his weekly card game when his ailing mother calls
• Family vs leisure
• But reason-giving force of each value varies depending on ‘granular’ facts e.g.:
• The urgency of the mother’s need
• The seriousness of the sacrifice required of the son
• The availability of alternatives
• Son shouldn’t have to skip card game if risk his mother might need him is small
• Any ordering ("Family > Leisure") that misses such facts is hopelessly generic
• The ordinal assumption cannot tell us which granular facts matter or why. It presupposes we have already run out of such facts.

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5. A non-ordinal alternative

• We want reason-giving force of values to be sensitive to granular facts:
• Urgency of need; seriousness of burden; availability of alternatives
• Moral contractualism (Scanlon 1998)
• Pluralist about reasons
• Asks: is a reason sufficiently strong for a person to reject a principle that would permit a given decision (to go to the card game, to protest outside clinic etc.)?
• Sufficiency turns on granular facts about urgency; seriousness; alternatives
• The claim: judgements of sufficient reason are not ordinal
• Straight-up judgments about what is a reason for what - SR(f,p,x,c)
• Maybe practical reason does runs out (maybe sometimes we hit bedrock!), but
• It does not run out simply because incomparables are in play

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Sufficiency in practice:�Abortion Services (Safe Access Zones) (2022)

Free expression v. privacy/access to healthcare

UK Supreme Court allowed measures restricting protests near clinics. Why?

Tragic story: practical reason ran out, SC chose privacy over expression

Sufficiency story: free expression insufficiently strong objection to restrictions

The decision follows closely sufficiency story, i.e. focuses on granular facts:

• Women/clinic staff as "captive audience"
• Women can sometimes be under "acute emotional and psychological strain"
• Protesters can still express views vehemently elsewhere
• The penalty (fine) is small.
• Upshot: SC did not make a ‘tragic choice’ between free expression and privacy. It made a judgment about whether the expression-related reason is sufficiently strong to reject a principle creating a safe access zone.

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6. False alarm

• ‘Tragedy’ of practical reason as an artefact of the ordinal assumption.

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• Contractualism provides a non-ordinal framework:
• focuses on sufficiency, not ordering.
• directs our attention to granular facts about urgency, burdens, and alternatives.

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• The dilemma may sometimes be unfortunate, but it is not tragic.

lse.ac.uk/law