Tragic Incommensurability and Legal Judgment

Abstract

This article has several and concurrent purposes. The first is to offer conceptual clarification about the notion of incommensurability and how it can be meaningfully understood in various contexts. Secondly, the purpose is to advance the substantive position that something important is lost when incommensurability is rejected in the law as a matter of principle. Third, the aim is to bring to fuller awareness the practical difficulties that a judge facing a potentially incommensurable conflict would encounter when judging it. Finally there is the claim, against the backdrop of contemporary theories of procedural democracy, that tragic incommensurability cannot be wholly neutralized by the procedures aimed at the generation of consensus, nor dissolved through the harmonic integration of all the values that law is supposed to protect.