법(法)에서의 가치(價値)와 가치판단(價値判斷): 원고적격(原告適格)의 규범학(規範學)(1)

Abstract

This essay concerns the meaning of incommensurability and its significance for

law. First of all, Part II of this essay observes that disagreement among

individuals concerning human values, goods, and norms is the most important

factual aspect of the human conditions by considering John Rawls circumstances

of justice and Jeremy Waldrons circumstances of politics. It also emphasizes

the felt need to act together in the face of such disagreement. This essay claims

that incommensurability is the main cause of such disagreement. Part III of this

essay defines the incommensurability by adopting a now-famous example from

Joseph Raz: If I have the options of spending an afternoon walking in the park,

enjoying a glass of scotch, or enjoying a glass of wine, and if the wine option

is better than the scotch option, and if neither the wine option nor the scotch

option is better or worse than the park option, then I have a choice between

incommensurables on my hands, because each of the drink options is not better

than, worse than, or equally good as the park option. It also observes that

incommensurability of values and diversity of valuations are both sides of the

same coin by comparing H. L. A. Harts internal point of view with Razs

constitutive incommensurability. Part IV examines tragic consequences caused

by conflict of values and valuations. In a slight digression, this essay touches

upon famous novels called Don Quixote, Hamlet, Sophies Choice, the Unbearable

Lightness of Being, to highlight how these novels exemplify the tragedy that

radical incommensurability may put individuals in. It also overviews Michel de

Montaignes idea, skepticism that prevailed the time of the Wars of Religion.

Part V introduces such philosophers as Hugo Grotius, Thomas Hobbes, Immanuel...