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Are Legal Traditions Incommensurable?

Author(s): H. Patrick Glenn


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Source: The American Journal of Comparative Law, Vol. 49, No. 1 (Winter, 2001), pp. 133-145
Published by: American Society of Comparative Law
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H. PATRICK GLENN

Are Legal Traditions Incommensurable?

From relatively humble origins in Greek mathematics,' the no-


tion of incommensurability was swept into the philosophy of science
in mid-twentieth century and assigned major responsibilities, nota-
bly in accounting for significant shifts in scientific understanding.2
Since then it has been taken up more generally in western philosophy
(though not, apparently, elsewhere) as an essential means of under-
standing the world and its values.3 It has now appeared in western
legal philosophy4 and comparative law.5 There is apparent paradox

H. PATRICKGLENN is Peter M. Laing Professor Law, Faculty of Law and Institute of


Comparative Law, McGill University. This is a revised version of a paper given to the
19th World Congress of Philosophy of Law and Social Philosophy (IVR - 99), New
York, June, 1999.
1. The Pythagoreans determined that the proportional lengths of the diameter
and side of a regular pentagon could not be expressed in terms of integers or whole
numbers, and concluded as to the absence of a single scale of measure, or incommen-
surability. The idea overthrew older views that all could be expressed in integers or
their ratios, but has itself been overtaken by the development of real numbers, ex-
pressed in decimals. See R. Chang (ed.), Incommensurability, Incomparability and
Practical Reason (1997) at 1, 255; and for amplification V. J. Katz, A History of Mathe-
matics [:] An Introduction (2nd ed. 1998) at 50, 51. This first example of incommensu-
rability thus indicates that it will yield to further and more refined information.
2. T.S. Kuhn, The Structure of Scientific Revolutions (2nd ed. 1970).
3. See, for example, Chang, supra n. 1; D. Pearce, Roads to Commensurability
(1987); H. Sankey, Rationality, Relativism and Incommensurability (1997); J. Griffin,
Well Being [:] Its meaning, measurement, and importance (1986)(ch. 5, "Are There
Incommensurable Values?"); R. Rorty, Philosophy and the Mirror of Nature (1979),
notably pp. 264-365.
4. J. Raz, The Morality of Freedom (ch. 13, "Incommensurability") (1986); Sun-
stein, "Incommensurability and Valuation in Law," 92 Mich. L. Rev. 779 (1994);
Smith, "Incommensurability and Alterity in Contemporary Jurisprudence," 45 Buff.
L. Rev. 503 (1997); Pildes, "Conceptions of Value in Legal Thought," 90 Mich. L. Rev.
1520 (1992) (reviewing M. Nussbaum, Love's Knowledge).
5. See Riles, "Wigmore'sTreasure Box: Comparative Law in the Era of Informa-
tion," 40 Harv. Int. L. J. 221 at 244 (1999) ("Categories School" of comparative law
seeing non-Western systems as "too different for meaningful comparison") and 245
(since "Context School" seeing context as all important, "meaningful comparison be-
comes increasingly problematic"); Legrand, "Sur l'analyse diff6rentielle des juriscul-
tures," Rev. int. dr. comp. (1999) 1053, at 1056 (incommensurablity of legal traditions
would not prevent their comparison, though concepts of incommensurability, compari-
son not explained) 1067 (difference and alterite ultimately implying incommensurabil-
ity of laws, particularly civil and common laws) and 1070 (laws which are product of
different legal traditions irremediably different to the point of incommensurability).
For earlier assertions of incomparability of laws, see infra n. 50 and accompanying
text; and for a splendid polemique against nationalist historians and the idea of in-
commensurability, see M. Detienne, Comparer l'incomparable (2000), notably at 10

133
134 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 49

in this. At a time of increasing interdependence in the world, a the-


ory which can be described as one of radical separation is receiving
considerable attention. The paradox may be, however, only apparent,
since insistence on incommensurability may be a form of reaction
against manifold forms of interdependence. It may be, more particu-
larly, a western means of defence in a world in which western
thought is increasingly challenged.
In the philosophy of science the debate over incommensurability
has been characterized by its imprecision and by its empirical ten-
dencies. The two appear to be related. The more one examines em-
pirical evidence of alleged incommensurability in science, the more
imprecision attaches to its definition. Kuhn spoke, initially, largely
in terms of incompatibility and competition between scientific theo-
ries.6 He resorted frequently to the notion of comparison as a means
of illustrating such differences.7 Yet in advancing the notion of in-
commensurability he spoke also of new theories which involved "a dif-
ferent universe,"8 a "shift in vision,"9 a "new gestalt,"10 or "new
fundamentals."" He acknowledged that: "In a sense that I am una-
ble to explicate further, the proponents of competing paradigms prac-
tice their trades in different worlds."12 This was taken, in spite of
Kuhn's reliance on comparative method, to mean both that communi-
cation was impossible between proponents of incommensurable theo-
ries, and that there was no neutral experience or objective standards
to allow adjudication between such theories.13 Kuhn's later work ap-
pears to involve a retreat from these positions, since he generally de-
nied intranslatability and came to define incommensurability only as
a "limited inability to translate from a local subgroup of terms of one
theory into another local subgroup of terms of another theory."'4 If
the translation here is meant to be literal, the conclusion is a banal
and familiar one to any lawyer meeting a problem in a foreign legal
tradition for the first time. Was Kuhn correct to come eventually to

("l'Incommensurable: la Nation, la leur"), 30 ("la Nation est l'Incomparable") and 59


("eleves, nourris et blanchis dans le sein de l'Incommensurable, de la tres sainte In-
comparable, cette Nation dont ils sont, sitot choisis, les gardiens").
6. See Kuhn, supra n. 2, at 4 (". . . continual competition between a number of
distinct views of nature ... what we shall come to call their incommensurable ways of
seeing the world"), 6, 16, 76, 92, 94, 97, 155.
7. Id., at 7 (decision to accept new theory or "paradigm""involves the comparison
of both paradigms with nature and with each other"), 145, 155.
8. Id., at 85.
9. Id., at 119.
10. Id., at 112.
11. Id., at 84.
12. Id., at 150.
13. Sankey, supra n. 3, at 21.
14. Sankey, supra n. 3, at 32, 34; and see generally Sankey, supra n. 3, ch. 2
("Kuhn's changing concept of incommensurability"). For the relations between com-
parison and translation see H.P. Glenn, "Commensurability and Translatability"
(forthcoming, Melanges von Mehren).
2001] LEGAL TRADITIONS 135

this modest conclusion, or are there still large forms of communica-


tion failure out there, notably in morality and in law?
Joseph Raz has set out what has been described as the "logical
possibility"15 of incommensurability. Thus: "A and B are incommen-
surate if it is neither true that one is better than the other nor true
that they are of equal value."16 There is thus incommensurability if
we are unable to evaluate A and B, in terms of their relation to one
another, and this because there is no means or scale of evaluation of
them. Incommensurability is equivalent to incomparability.17
There has naturally been debate as to whether this definition
best describes the notion of incommensurability. Some would prefer
to limit the notion to cases where there is no "single scale of units of
value according to which items can be precisely measured."18 This
leaves, however, the larger problem of incomparability since, if com-
parison is possible, it may proceed by ordinal ranking (by position in
a series) as opposed to cardinal ranking (as representing a quantity).
The larger concept of incommensurability, equating it with incompa-
rability, thus appears to simplify the debate while allowing pertinent
questions to be asked.
The most pertinent of these questions is whether the logical con-
ditions of incommensurability are ever encountered in the world.
Western moral and legal philosophers have sought to establish that
these conditions of incommensurability can be established even
"within a conceptual scheme, way of life, or culture."19 If this can be
done, it is a powerful demonstration, since incommensurability would
exist within a field of many shared concepts, values and means of
expession. Many examples of alleged incommensurability have thus
been given, the elements of which will all be familiar to western read-
ers. What are some examples of such incommensurable pairs? Con-
sider comparing: chalk and cheese, the Samurai Code of honor
(apparently well enough known in the west) and the Protestant Code
of Ethic; Mozart and Michelangelo; friendship and the life of one's
mother; friendship and money; fried eggs and the number 9; French
toast and Chicago; the genius of a scientist and the honor of a gen-
tleman; a Henry Moore sculpture and a Chinua Achebe novel (again
reaching across cultures, though justified by notoriety); "chicken or
beef?";square roots and insults; smells and Canasta; migrating birds
and X-rays; patriotism and spelunking.20

15. Regan, "Authority and Value: Reflections on Raz's Morality of Freedom," 62 S.


Cal. L. Rev. 995 at 1056 (1989).
16. Raz, supra n. 4, at 322.
17. Id.
18. Chang, "Introduction,"in Chang, supra n. 1, at 2; and see Sunstein, supra n.
4, at 796, on "a single metric."
19. Chang, supra n. 18, at 1.
20. The examples are drawn from Chang, supra n. 1, at 6, 15, 18, 19, 20, 30, 98,
99, 167, 240; and from J. Kekes, The Morality of Pluralism (1993) at 21.
136 THE AMERICAN JOURNAL OF COMPARATIVELAW [Vol.49
Can these things or concepts be compared? A pragmatic re-
sponse would say that they might be but that this is of no conse-
quence, since it is "boring or pointless to compare them" and "[v]alue
judgments have no proper application outside of practical reason-
ing."21 The examples are advanced, however, to show that incom-
mensurability does exist in the world. If it does exist it is only then a
question of identifying all of its exemplifications. Some of these may
eventually be of importance in practical reasoning. Most western
philosophers who have challenged the existence of incommensurabil-
ity have therefore done so on principled rather than pragmatic
grounds. These philosophers are apparently a minority of those who
have considered the question.22 They have been successful, however,
in developing a thesis of what might be called general or pervasive
comparability. This is done through distinguishing incommensura-
bility from a number of other (comparative) concepts, which eventu-
ally would leave no remaining place for incommensurability.
A first distinction is thus drawn between incomparability and in-
compatibility. Incompatible values cannot be realized together,23 yet
this would not prevent their comparison.24 Tragic choices provide ev-
idence of this. Incommensurability should also be distinguished from
non-equivalence, or difference. In western thought human life is not
equivalent to plant life, yet the French government resolutely refuses
to cut down avenues of roadside trees in order to save human life.25
Incommensurability is also different from "rough equality" (life as a
clarinetist or life as a farmer; "chicken or beef?")though choosing be-
tween the roughly equal may be difficult to justify.26 Finally, incom-
mensurability must be distinguished from a process of "trumping" or
"emphatic betteress." Friendship thus trumps money, but we know
this only through comparison.27 Proponents of these arguments
draw the necessary general conclusion. James Griffin states that
"[w]e do not find values that are strictly incomparable."28 Ruth
Chang concludes that ". .. there is no ... incomparability" between

21. Anderson, "Practical Reason and Incommensurable Goods," in Chang, supra


n. 1, 90 at 91.
22. See Regan, "Value, Comparability and Choice," in Chang, supra n. 1, at 129,
describing himself, at 129, as the "designated eccentric" in taking a position, that of
"complete comparability of value" which "no one else would touch with a barge pole."
23. Griffin, "Incommensurability: What's the Problem?,"in Chang, supra n. 1, 35
at 36.
24. Id. at 37; Kekes, supra n. 20, at 21 (incommensurable values, such as patriot-
ism and spelunking, need not be incompatible; incompatible values, such as at the
same time going camping or going to a strange city, need not be incommensurable).
25. Griffin, supra n. 3, at 82.
26. D. Regan, n. 15, at 1061 ("Lives can be hard to compare in practice without
being incomparable in principle");Griffin, supra n. 3, at 81. Hence the French expres-
sion "On ne peut pas comparer pied a pied."
27. Chang, supra n. 18, at 19; Griffin, supra n. 3, at 83 (any amount of A more
valuable than any amount of B).
28. Griffin, supra n. 3, at 83.
2001] LEGAL TRADITIONS 137

bearers of values.29 More generally, Charles Taylor concludes that


"Practical reasoning ... is a reasoning in transitions. It aims to es-
tablish, not that some position is correct absolutely, but rather that
some position is superior to some other. It is concerned, covertly or
openly, implicitly or explicitly, with comparative propositions".30
Why do these arguments apparently represent only a minority
position among western philosophers? Why is incommensurability or
incomparability more generally preferred? There appear to be two
principal reasons, though they have attracted far less attention than
the close, analytical study of alleged incommensurabilities. The first
reason is that incommensurability provides a means of defence - a
kind of philosophical Great Wall - against what have been described
as "monistic theories."31 Monistic theories are those which presup-
pose a single, ultimate value in the world against which all must be
measured. Plato is an enemy here, as are many modern forms of con-
sequentialism, including utilitarianism, economic theories of law,
and cost-benefit analysis.32 It is said that "[a] life with genuine com-
mensurability [here understood in the narrow sense of cardinal rank-
ing] would be flat and dehumanized ... It would be inconsistent with
an appropriately diversified approach to a good human life."33 So in-
commensurability allows us to consider some things as intrinsically
good in themselves, protecting them from the imperialism of the sin-
gle, great value. It would allow us to recognize the Other, as Other,
and to find new virtues in the German Historical school of thought.34
The second reason is related to the first, though the relationship
is a complex one. What is one to do faced with incommensurable val-
ues? One cannot, by definition, compare them to choose between
them. Nor is there any rational, external, criteria which would jus-
tify choice between them. So, if choice is to be made, the individual
must simply impose it. Here we see the fundamentally western char-
acter of the debate emerging. Joseph Raz makes the point most
clearly in stating that ". . . if two options are incommensurate then
reason has no judgment to make concerning their relative value" and
that "we are in a sense free to choose which course to follow."35 It is

29. Chang, supra n. 18, at 4.


30. C. Taylor, Sources of the Self [:] The Making of the Modern Identity (1989) at
72.
31. Sunstein, supra n. 4, at 781.
32. On Platonic commensurability, see M. Nussbaum, Love's Knowledge (1990);
Pildes, "Conceptions of Value in Legal Thought," 90 Mich. L. Rev. 1520 (1992) (dis-
cussing Nussbaum; and on incommensurability as a defence against contemporary
consequentialism, J. Raz, supra n. 4, notably chs. 11 and 13, in particular at 358 ("But
widespread incommensurability put paid to the hope of developing a general system
of technology of calculation for practical reasoning").
33. Sunstein, supra n. 4, at 854.
34. M. Forster, Hegel's Idea of a Phenomenology of Spirit (1998), ch. 10, notably at
361 on Herder's views of difference between peoples.
35. Raz, supra n. 4, at 324, 334.
138 THE AMERICAN JOURNAL OF COMPARATIVELAW [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

36. J. Raz, "Incommensurability and Agency," in Chang, supra n. 1, at 111, 112,


126, 127; Raz, "Facing Up: A Reply," 62 S. Cal. L. Rev. 1153 at 1221 (1989).
37. Chang, supra n. 18, at 10.
38. Raz, supra n. 4, at 271.
39. Sunstein, supra n. 4, at 849.
40. Chang, supra n. 18 (emphasis added).
41. Griffin, supra n. 3, at 80.
2001] LEGAL TRADITIONS 139
considered judgments about how ... goods are best characterized"?42
There is an extremely high cost to incommensurability, since if it ex-
ists within cultures it is certain to exist across cultures and there
would then be a kind of massive communication failure in the world,
an inherent clash of civilizations.43 On the other hand, if it can be
established that there is commensurability and comparability across
cultures, notably across legal traditions, then this does serious dam-
age to the claim for incommensurability within a given culture.
The notion that a strong form of incommensurability does exist
across the major traditions of the world appears to be accepted by
many participants in the debate. Isaiah Berlin assigned to Herder
the "notion of the equal validity of incommensurable cultures."44
Sunstein contemplates the notion of "radical incommensurabilty" of
"different cultures," where people ". . . may be unable to talk to one
another."45 James Griffin, generally unsympathetic to the idea of in-
commensurability, nevertheless contemplates ". . . extreme clashes
between world views beyond rational resolution, which may indeed
supply a particularly strong form of interpersonal incomparability
...."46 Charles Taylor admits that, faced with "... demands emanat-
ing from the ethical outlooks of very different cultures and civiliza-
tions ... we tend to struggle without being able to find any common
ground from which to reason in a way that people from both cultures
could be induced to accept."47 Joseph Raz has sought to explain why
this is so. He says that "... our ability to compare options depends on
the nature of our social practices, which may 'run out' leaving us with
no grounds for comparison."48 Our social conventions would thus be
"exhaustible, and are bound to leave plenty of room for incommensu-
rability."49 Our understanding would be bounded by ruts of our own
digging, and no mere intellectual effort could heave us out of them.
Jurists of the former Soviet Union would thus have been correct in
arguing for the essentially incomparable character of socialist and
bourgeois legal orders.50

42. Sunstein, "Incommensurability and Kinds of Valuation: Some Applications in


Law," in Chang, supra n. 1, 234 at 238.
43. For this conception of the world, see S. Huntington, The Clash of Civilizations
and the Remaking of World Order (1996).
44. I. Berlin, The Proper Study of Mankind (1997) at 428.
45. Sunstein, supra n. 3, at 810.
46. Griffin, supra n. 23, at 39.
47. Taylor, "Leading a Life," in Chang, supra, n. 1, 170, at 170.
48. Raz, supra n. 36, at 1220.
49. Raz, supra n. 4, at 344.
50. For the debate see K. Zweigert & H. Kotz, Introduction to Comparative Law
(trans. T. Weir, 2nd ed. 1987) at 37, 38 (with references); G. Ajani, Dirito dell'Europa
orientale (1996) at 34ff. (also on notion of discontinuity between earlier bourgeois law
and new socialist order). More generally, the incommensurability of legal traditions
would entail the immunity of each of them from the influence of the others. The re-
luctance of much contemporary anthropolgy to engage in comparative endeavours
would be by way of reaction to earlier, comparative, "universal history", which placed
140 THE AMERICAN JOURNAL OF COMPARATIVELAW [Vol. 49

Yet the a priori notion of radical incommensurability is chal-


lenged by other philosophers. So Michael Forster writes that "... the
philosopher concerned with the phenomenon of meaning cannot rea-
sonably hope to settle substantive questions about meaning on purely
conceptual grounds in blissful disregard of the philologists' and an-
thropologists' empirical evidence concerning languages and texts
across different historical periods and cultures, because this empiri-
cal evidence is an important part of the empirical evidence in the
light of which the concept of meaning must be fixed."51 What do legal
traditions then tell us, themselves, about their relations with one
another?
Legal traditions exist as large amounts of detailed and communi-
cable information.52 They contain much second-order information as
to the criteria and means for storage and reproduction of their own
information. That their information is communicable is proven by le-
gal practice, which displays considerable uniformity in response to
the stimulus provided by the information of the tradition. There are
national legal traditions, but of greater interest for present purposes
are the great, transnational legal traditions - those of chthonic law,
talmudic law, civil law, islamic law, common law, hindu law, and
asian law - which provide the means and techniques for daily adher-
ence to each of the world views they represent. They are the major,
complex legal traditions of the world, and a number of their charac-
teristics are relevant to the debate over incommensurability.
Since they are constituted by information, and since information
can never be rigidly controlled, the major legal traditions of the world
do not presently exist in isolation from one another. Arguably they
have never existed in isolation from one another in the past, though
in the past the arguments in favour of autonomous forms of social
development could be made with much greater conviction than today.
Today the information of major legal traditions is often transmitted
by popular media; and to this form of inter-traditional legal commu-
nication must be added electronic communication (chthonic peoples

western civilization at the pinnacle of a long process of development taken as progres-


sive. See A. Kuper, The Invention of Primitive Society [:] Transformations of an Illu-
sion (1988); A. Pagden, The Fall of Natural Man. The American Indian and the
Origins of Comparative Ethnology (1986); A. A. An-Na'im, "Problems of Universal
Cultural Legitimacy for Human Rights," in A. A. An-Na'im & F. M. Deng, Human
Rights in Africa [:] Cross-Cultural Perspectives (1990) 331 at 339; Bennett, "Human
Rights and the African Cultural Tradition," in W. Schmale (ed.), Human Rights and
Cultural Diversity (1993) 269 at 275 (cultural relativism as canon of research in social
and political sciences "[a]lmost by way of apology for the racism of the past").
51. Supra n. 34, at 407.
52. This proposition is defended at length in H. Patrick Glenn, Legal Traditions of
the World (2000).
2001] LEGAL TRADITIONS 141

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

53. For web sites see: http://bioc09.uthscsa.edu/natnet/archive/nl/hgdp.html or


http://www.niec.net/ipcb/resources/index.html; and for a further range see http://con-
bio.rice.edu/nae.
54. See, for example, in Talmudic law, M. Elon, Jewish Law: History, Sources,
Principles, (trans. B. Auerbach & M. Sykes, 5754/1994); in civil law, R. Zimmermann,
The Law of Obligations [:] Roman Foundations of the Civilian Tradition (1990); in
Islamic law, J. Schacht, An Introduction to Islamic Law (1964); in Hindu law, P. Di-
wan & P. Diwan, Modern Hindu Law [:] Codified and Uncodified (9th ed., 1993); in
Chinese law, A. Chen, An Introduction to the Legal System of the People's Republic of
China (1992).
55. Riesenfeld, "The Influence of German Legal Theory on American Law: The
Heritage of Savigny and His Disciples," 37 Am. J. Comp. L. 1 . (1987).
56. See the remark of Best J. in 1822 that the authority of Pothier on Obligations
was "the highest that can be had, next to a decision of a court of justice in this coun-
try." Cox v. Troy (1822) 5 B. & All. 474, 106 E.R. 1264.
57. For Talmudic influence see Rabinowitz, "The Influence of Jewish Law on the
Development of the Common Law," in L. Finkelstein, The Jews [:] Their History, Cul-
ture and Religion, (3rd. ed., vol. I 1960) at 823; and for acknowledgment of the tal-
mudic influence, see E.H. Burn, Cheshire's Modern Law of Real Property (12th ed.
1976) at 804, n. 2 (chapter eliminated in subsequent editions). For Islamic influence,
notably in the creation of the Inns of Court, see G. Makdisi, "The Guilds of Law in
Medieval Legal History: An Inquiry into the Origins of the Inns of Court," 34 Clev.
State L. Rev. 3 (1985).
58. For the possibility of elements of hindu law being adopted by the Romans,
"through the Greek and Egyptian channels," see M. Sharan, Court Procedure in An-
cient India (1978) at 2; and for the "legend" of the great spartan law-giver, Lycurgus
142 THE AMERICAN JOURNAL OF COMPARATIVELAW [Vol.49
current preoccupation with State law cannot obliterate previous
transfers of legal information. The legal tradition which is recogniza-
ble as Other is never entirely alien. Information which is recogniza-
ble as "something outside" is already "inside"59and often has been for
centuries.
If the major, legal traditions of the world are inevitably open to
external influence, they are also tolerant of internal diversity. In-
deed, it is only through reconciliation of considerable internal diver-
sity that the great legal traditions which we know could have
succeeded in obtaining the influence they have in many, diverse,
parts of the world. Reconciliation of diversity and contradiction
within the parametres of the fundamental, defining information of
each tradition is thus one of the major tasks which each tradition
must face. Incommensurability within a legal tradition is something
which no legal tradition has ever acknowledged and which no legal
tradition ever could acknowledge, since this would imply a form of
schism incompatible with the ongoing normativity of the tradition,
for all adherents to the tradition. All major legal traditions thus have
developed doctrines of accommodation of conflicting inner doctrines
or schools or declarations of autonomy. In Islamic law it is the doc-
trine of ikhtilaf or diversity of doctrine (the tree of many branches)60;
in Talmudic law it is the doctrine that the conflicting schools of Hillel
and Shammai both represent ("These and These") the word of God.61
In the common law it is the notions of Anglo-Canadian law, or Anglo-
American law, or Anglo-Indian law, which bridge national articula-
tions to remind lawyers of both national traditions that they partici-
pate in a larger enterprise.62 In the civil law world it is the "Romano-
Germanic family", now becoming increasingly visible in the new law
of Europe.63 In Asia it is the philosophical doctrine of the interdepen-
dence of all things, fundamental to Buddhism, implicit in much Con-
fucian thinking.64
Legal traditions are thus externally open and internally accom-
modating. They both represent and preserve diversity, yet are char-
acterized by the flow of information which they represent and the
grounds for ongoing choice and decision which they provide. There

(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

commensurability. If we can compare or commensurate, we are vul-


nerable to imposition of the large, single value used in the process of
such comparison or commensuration. If comparison takes place,
however, using the diverse characteristics of that which we compare,
there is no danger of monism and no corresponding need for incom-
mensurability. We can therefore sustain diverse goods, and commu-
nicate with one another in the process.