Judge, By All Means

Roger Berkowitz has a very smart piece in the latest issue of Democracy on how Americans have given up on judging others and in turn given up on justice itself. He begins with the reluctance of media outlets to call torture what it is, but moves on to talk about how Bush was justified in calling Saddam Hussein an evil man, how the Robert’s Court gives up its responsibility, and even to address Clinton’s impeachment.

At the root of our problem with judgment is the undeniable victory of relativism over truth. Judgment requires, above all, what Kant called disinterestedness and what Arendt called enlarged mentality, seeing the question from another’s point of view. While it is singular, judgment is not mere personal taste or preference. To judge is to speak the truth, a truth that must always appeal to a common sense beyond one’s own prejudices. At a time when tolerance trumps truth, judgment’s claim to the truth leaves it vulnerable to mockery and derision.


Finally, the retreat from judgment is a corollary of the overwhelming belief in equality that marks the modern era. Judgment, as thinkers like Arendt and Friedrich Nietzsche remind us, presupposes pride, or what once was called the dignity of man. Only one who believes oneself right can judge another; thus judgment presupposes a certain authority and superiority. The judge must possess a feeling of distinction, what Nietzsche called a “pathos of difference,” in order to arrogate to himself or herself the right to judge. Proffering reasons for one’s judgment—the mark of rational judgment in modern times—is a sure sign of weakness, an admission that one suffers from a feeling that he or she lacks the right to judge another. Since Justice Louis Brandeis first introduced social science evidence into legal opinions, judges have sought to buttress their judgments with rationalizations and empirical support intended to lend objective and scientific authority to particular judgments. But only one who is unsure of his or her right to judge feels the need to offer statistics, studies, and rationalizations to justify that judgment. It is precisely this arrogance of the judge that is increasingly absent in our age.

Read the whole thing. One could quibble with some of what he ays about the Robert’s Court. But his point that “agreements” have come to replace judgements in so many of the most important cases is extremely well-made.

While Berkowitz singles out liberals, I would point out that many conservatives, even religious conservatives have let their moral judgement atrophy as well. They have given up the concept of commandments, penance, and expiation in exchange for “values”. The replacement of moral duties with personal values creates a kind of buffer zone through which exacting judgements cannot pass from one human to the next. Every judgement related to these values becomes internal and therapeutic. Instead of failing to meet a moral standard outside of ourselves, we cease “to live up to our own values.” This thinking may also have a grotesque psychological effect on those who do wrong. A person may cheat on their wife, but their guilt is evidence of really having family values. In this view,you don’t owe fidelity to your spouse, you owe it to yourself. “Values” make us moral solipsists. Wrongdoing becomes the journey through which we find our inner (and we assume, true) goodness.

In any case, Berkowitz concludes:

Judgment offers the example of justice. In the act of judging, one does justice. Instead of moving on, negotiating a settlement, playing by the rules, or balancing interests, judgments enact justice in a way that is irreducible to rules or norms. The act of judgment, in other words, offers itself as an act of justice.

I would like to see Berkowitz extend his remarks beyond just judgement to punishment, which I believe is one source of the problem. If we lack the confidence to judge others, how much more would we shrink from inflicting punishment?

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