Incomparable values in adjudication

Voyiakis, Emmanuel ORCID: 0000-0002-6351-4733 (2025) Incomparable values in adjudication. Law Quarterly Review. ISSN 0023-933X (In Press)

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Abstract

It is sometimes argued that, when plural and incomparable values collide, practical reason runs out of guidance for judges called upon to deal with the conflict, leaving them in the tragic position of having to choose one value over the other. I discuss two accounts of this ostensible tragedy. One, by Philip Sales and Frederick Wilmot-Smith, treats it as real and pervasive but manageable through the decisions of legislatures and higher courts. The other, by Jeremy Waldron, treats it as mostly fake. Despite their differences, these accounts assume that the only way to bring plural values or reasons into relation is to order them. I argue that this ‘ordinal’ assumption lands both accounts into the same problem. To identify the stakes of any particular ordering, those accounts must rely on ‘granular’ substantive claims of what each reason in play requires or allows, but neither can identify the relevant granular considerations, or explain their significance. I then suggest that moral contractualism provides us with an alternative, non-ordinal, way to identify the granular facts that matter. On that approach, instead of asking which reason is stronger than others, the judge should ask whether each of the reasons in play is sufficiently strong to allow a person to object to a principle that permitted the judge to reach a certain decision. I argue that this sufficiency standard shows the tragedy of practical reason to be an artefact of the ordinal assumption, and conclude with examples that show how courts can, and sometimes do, use such a standard to respond to conflicts of plural reasons.

Item Type:	Article
Divisions:	Law School
Subjects:	K Law
Date Deposited:	14 Oct 2025 15:21
Last Modified:	14 Oct 2025 17:51
URI:	http://eprints.lse.ac.uk/id/eprint/129800

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