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H. PATRICK GLENN
133
134 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 49
simply "the will" which effects choice,36 a solution which has been
described as "quasi-existential."37 Utilitarianism is criticized for dis-
regarding the separateness of persons.38 Sunstein concludes that "...
in the face of diverse kinds of valuation, it is best to permit people to
value as they like."39 In denying the possibility of comparison and in
insisting on the primacy of personal choice, this philosophical argu-
ment links up with deep-seated folklore in the western world. "You
can't compare apples and oranges." Since you can't compare them, in
the sense of drawing any useful information from them, you must
simply choose between them. The individual, charismatic, process of
decision-making is necessarily prior to and separate from the objects
of decision. The individual stands prior to the world. Of course we
have the folklore because western philosophy preceded it, and now
the philosophy is catching up to the folklore in a nice, looping process.
Why is the relationship between these two fundamental reasons
for accepting incommensurability in the world a complex one? The
first reason insists on singularity, particularity and diversity; the sec-
ond posits an abstract individual, free of apparent particularity,
choosing amongst the particularities of the world. The first would be
rooted in German, historical thought, itself a reaction to the enlight-
enment; the second would be enlightenment thought itself. How can
one be a western incommensurabilist? The answer would be in the
nature of the western, philosophical enquiry relating to incommensu-
rability, which is that of seeking incommensurable values "within a
conceptual scheme, way of life, or culture."40 There would thus be
incommensurabilities within western life, but they would all nest
within the range of permissible choices which western life offers to
us. They are the menu (remember the apples and oranges) and do
not challenge the underlying priority given to the client. We can call
this western pluralism, which enhances western life. Though this life
does insist on a single, overriding value (the priority of the individ-
ual), this means that much else becomes the object of individual
choice, so western life can claim not to be homogeneous, flat and uni-
form. There is a diversity, consisting of all that which autonomous
individuals should have at their disposition.
Does western life need a concept of incommensurability to ensure
that it is a diverse as it can be? Or is the notion of incommensurabil-
ity "hyperbole",moving "from Kant to cant",41in the effort not to lose
an argument, in the effort to prevent ". . . violence [being done] to our
now make their case on the Internet);53 as well as the highly special-
ized form of academic legal writing which consists of writing on the
foreign, or other, legal tradition, for a domestic audience. In the last
decades this form of legal academic activity has increased greatly,
and in the English language it is now possible to benefit from highly
skilled and authoritative expositions of all of the major legal tradi-
tions of the world.54
Why is this relevant to the debate over incommensurability? In-
commensurability requires first of all separation of those things or
concepts which are said to be incommensurable. Given more intense
and pervasive forms of communication today, the boundaries of legal
traditions have become more permeable. No one of them is entirely
alien to the other. Law drawn from another tradition will originally
be identifiable as to its source but the layering of domestic sources
over foreign ones will eventually camouflage many distant origins.
This is a well-known phenomenon between the civil and common
laws. German Pandectist thought was discreetly received into the
U.S. Uniform Commercial Code;55 Pothier was much cited before
19th century English tribunals;56 Both sources are largely forgotten
or ignored today, but contribute to underlying commensurability.
More distant traditions have also contributed greatly to one another,
as with the talmudic and islamic contributions to the common law,57
or with still earlier possible influence of Hindu law on the develop-
ment of Greek and Roman legal tradition.58 Our social practices, in
law, thus have wider parametres than is customarily thought, and
(9th century, B.C) going to India, see Assimakopoulou, "Comparative Law in the His-
tory of Greek Law," 39 Revue hellenique de droit international 323 (1986).
59. Fish, "Change," 86 The South Atlantic Quarterly 423 (1987) at 430.
60. See N. Coulson, A History of Islamic Law (1964) at 86-89, 102.
61. Stone, "In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in
Contemporary American Legal Theory," 106 Harv. L. Rev. 813 at 828 (1993).
62. See Langbein, "Chancellor Kent and the History of Legal Literature," 93 Col.
L. Rev. 547 at 567 (1993) (". . . an inseparable entitly called Anglo-American law").
63. R. David & J.E.C. Brierley, Major Legal Systems of the World Today (3rd ed.
1985) at 33 ff.
64. R. French, The Golden Yoke [:] The Legal Cosmology of Buddhist Tibet (1995),
notably at 64 (principle of nonduality or elimination of binary opposites).
2001] LEGAL TRADITIONS 143
are options within them and between them, yet everyone must opt,
and many reasons are given for each of the options. When people
make their choices, as they inevitably do, either within or between
traditions, are they simply effecting an act of will, or are they evalu-
ating the endless reasons and arguments available in law for choos-
ing one option as opposed to another? Fernand Braudel has written
that "[c]ivilizations . . . may be carried past one another. Do they
understand each other? I am not sure that they do."65 Yet on the
same page he concludes that the Mediterranean of the 16th century
was the centre of the world, "a strong and brilliant universe." He
asks "[h]ow do we know?" and replies: "Because it was educating
others, teaching them its own ways of life."66 Absent information to
evaluate, we thus effect acts of will; given information, we evaluate it
in order to reach a more justifiable decision, which is one of the objec-
tives of the legal enterprise.
Some philosophical discussion of incommensurability has identi-
fied the importance of information in dealing with alleged incommen-
surability. It confirms the teaching of legal traditions. Thus Donald
Regan notes that ". .. the more refined our perception .. . the less
often we are going to find ourselves unable to make comparisons."67
Elijah Millgram surmises that ". . . the considerations to which de-
liberaton appeals are incommensurable at the outset of the delibera-
tion, but that the process of deliberation renders them commen-
surable."68 Ruth Chang states that claims of incomparability are
often based on failure to appreciate (given absence of information) the
relation of comparability to a "covering value." Given such a covering
value, "comparison is no longer elusive: cheese is better than chalk
with respect to goodness as a housewarming gift, and oranges are
better than apples with respect to preventing scurvy."69 Comparison
is possible whenever items can be situated on a continuum of infor-
mation.70 The original Greek example of incommensurability (the
65. F. Braudel, The Mediterranean and the Mediterranean World in the Age of
Philip II, trans. s. Reynolds (1992) at 584.
66. Id.
67. Regan, supra n. 22, at 137.
68. Millgram, "Incommensurability and Practical Reasoning," in Chang, supra n.
1, 151 at 157.
69. Chang, supra n. 18, at 6. It is not only the covering value which must be
known, but also the characteristics of what is to be compared. We can compare french
toast and Chicago with respect to the covering value of taste, but how? Well, taste
some french toast, then taste Chicago. What part of Chicago? If you go into a Chicago
diner and order french toast, that part of Chicago will taste just like french toast.
Other parts of it will taste differently, better or worse. But then, parts of the original
french toast may taste differently when we get to them. So we have to realize we are
comparing, with respect to the covering value of taste, parts of larger unities. It's
easier to think of comparing an apple and New York. New York, as everyone knows,
is a Big Apple.
70. Chang, supra n. 18, at 16.
144 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 49
sides and diameter of the pentagon) thus yielded to the greater re-
finement of real over whole numbers.71
Making comparisons therefore requires a search for the appro-
priate enabling information, to overcome initial incommensurability
or ignorance. How this search is conducted will depend on the cir-
cumstances. One method described in science is to "dig deep enough
into the conceptual soil of each theory so that eventually a layer of
shared terms is unearthed."72 It is likely that these shared terms
will be at a higher level of abstraction than those initially encoun-
tered, such that a more general theory or conceptual framework
emerges, "which explains both or which contains each as a special
case."73 A second method would be more general, and would make a
"more global inspection of the terrain, [aiming] to set up a lexical and
semantic correspondence between the languages of rival theories,
considered in their entirety."74 This latter method would be more ap-
propriate where there is already major concurrence in vocablulary
and concepts.
These efforts to conceptualize how enabling information is
sought are inevitably imprecise and incomplete, as are all efforts to
describe scientific or intellectual endeavour. What is noteworthy
about them, however, is their insistence on working within the data
already provided by the theories, concepts or normative structures
which present initial incommensurability. They renounce any effort
to compare against an external, objective structure of reality or an
external, invariant language. They renounce application of a tertium
comparationis.
As Kuhn noted, absent a scientifically or empirically neutral sys-
tem of language or concepts, alternate tests and theories "must pro-
ceed from within one or another paradigm-based tradition."75
Incommensurability is avoided when the objects of comparison con-
tain "within themselves the resources to resolve conflict between
them into a judgment of relative importance or into choice."76 You
can compare apples and oranges, and you compare them in terms of
the characteristics of apples and oranges.
This latter conclusion is important for the general debate about
commensurability and incommensurability. One of the main argu-
ments for incommensurability has been that it is necessary to strug-
gle against the essentially monistic character of comparison and
71. Supra, n. 1.
72. Pearce, supra n. 3, at 188.
73. Id., at 194.
74. Id., at 189.
75. Kuhn, supra n. 2, at 145; and see Eliot, "Tradition and Individual Talent," in
T.S. Eliot, The Sacred Wood [:] Essays on Poetry and Criticism (6th ed. 1948) 47 at 50
(". .. a comparison, in which two things are measured by each other").
76. Millgram, supra n. 68, at 159.
2001] LEGAL TRADITIONS 145