Abstract
This chapter argues that a neo-Aristotelian approach can play a valuable role in accounting for reciprocity in adjudication. It can solve the central flaws that an “adjudication as applied moral theory” approach faces. In addition, the author asserts that a neo-Aristotelian approach to adjudication needs the concept of civic friendship in order to really account for reciprocity in adjudication. Citizens will have a reason to accept the painful burden of a particular judicial decision if the decision is made by a judge who is both judicially wise and a civic friend.
It will be shown that this neo-Aristotelian approach comes with a “troublesome” judicial phenomenology. Both the judge and the losing party will be confronted with the inescapable limits of reciprocity. Not only will the actual grounds of judicial decisions remain to some extent inarticulate, also, these decisions will sometimes come with a genuine moral loss.
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Notes
- 1.
- 2.
See for instance: Dworkin (2005 (1977)), Dworkin (1985), and Dworkin (2011). Robert Alexy also defends ‘adjudication as applied moral theory’ where he argues that because the law has a claim to correctness, this by itself provides an argument for the idea that “morality is necessarily included in the law” and that “[m]oral reasons can and must participate in the justification of legal decisions when authoritative reasons run out.” Cf. Alexy (2004, 165).
- 3.
- 4.
Because the Legal Realists and proponents of the Critical Legal Studies Movement produced a vast literature and because their mutual relations and differences are deeply complex, for this context the sceptic approach will be presented by primarily drawing on secondary literature, in particular on: Altman (1986) and Kramer (2007).
- 5.
Obviously, the background assumption is that “[t]he extent to which there are determinately correct answers to legal questions is inversely proportional to the extent of the leeway left to legal officials in arriving at concrete decisions”. Cf. Kramer (2007, 14).
- 6.
Here we see that legal scholars and political philosophers generally share the assumption that legal indeterminacy matters, for it directly concerns the question of the legitimacy of the judiciary as a crucial political institution of society. In order for the judiciary to be legitimate in a normative sense, the law at least to a certain extent must be able to constrain the judge.
- 7.
By accepting Williams’ point one could even question whether the concept of “application” in Rawls’ Theory of Justice is appropriate.
- 8.
Brett Scharffs offers an instructive description of incompossibility: “The term ‘incompossibility’ usually refers to states of affairs, either choices or acts. For example, your being in both New York and Paris right now is an incompossibility; they are jointly impossible states of affairs. But values might also be incompossible if the realization of one necessarily makes it impossible to realize the other […].” Cf. Scharffs (2000, 1395).
- 9.
- 10.
See for the use of the term “fluid” in this context: Richardson (1997, 139).
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- 12.
To be sure, practical reasoning as displayed in clever constitutional arrangements, adequate social policies and wise judicial reasoning obviously can and will reduce the likelihood and scope of conflicts between citizens’ legitimate claims. On all these levels of generality reflection may point out that many apparent conflicts of justice in fact can be ‘genuinely’ solved, i.e. without moral loss.
- 13.
By ‘neo-Aristotelian’ is meant that this approach is based on some of Aristotle’s fundamental ideas; it is neo-Aristotelian because some of his conclusions about women, slavery and manual labour, as well as some of his metaphysics are rejected. Cf. Simpson (1992).
- 14.
For Solum this virtue indeed refers to “a judge’s possession of the virtue of sophia, or practical wisdom (phronêsis) in her selection of the proper legal ends and means. Practical wisdom is the virtue that enables one to make good choices in particular circumstances” Solum (2003).
- 15.
Solum sees this virtue primarily as “that one’s desires be in order.” Cf. Ibid.
- 16.
According to Solum this is the virtue that “corresponds to the vice of civic cowardice. Courage is a mean with respect to the morally neutral emotion of fear. Judicial courage is a form of ‘civic courage,’ distinguishing this quality of character from courage with respect to physical danger. The courageous judge is willing to risk his career and reputation for the ends of justice.” Ibid.
- 17.
As to judicial temperance Solum states: “Good temper is a mean between a disposition to excessive and deficient dispositions to anger. The virtue of good temper requires that judges feel outrage on the right occasions for the right reasons and that they demonstrate their anger in an appropriate manner.” Ibid.
- 18.
The virtue of judicial intelligence Solum describes as follows: “The corrective for the vices of judicial stupidity and ignorance is a form of sophia or theoretical wisdom. I shall use the phrase “judicial intelligence” to refer to excellence in understanding and theorizing about the law. A good judge must be learned in the law; she must have the ability to engage in sophisticated legal reasoning. Moreover, judges need the ability to grasp the facts of disputes that may involve particular disciplines such as accounting, finance, engineering, or chemistry.” Cf. Ibid.
- 19.
For this notion of ‘silencing’ see: McDowell (1998). This critique is of course a matter for debate. Martha Nussbaum for instance contrary to McDowell suggests that it is precisely part of what it means to be virtuous that one also attends to the “intrinsic ethical character of the claim that on balance is not preferred.” Cf. Nussbaum (1990, 65).
- 20.
See for this point also: Nussbaum (2000).
- 21.
See for a discussion of the tragic character of judicial decisions: van Domselaar (2010).
- 22.
There is little literature on the value of the concept of friendship for law and adjudication. See for an important article on this topic: Leib (2006).
- 23.
Unless otherwise indicated, all the translations are made by Sarah Broadie and Christoffer Rowe. Cf. Aristotle (2002).
- 24.
Note that for Aristotle friendship is by no means limited to the “intimate relationships between persons not bound together by near family ties”. It also applies to relations between parents and children, siblings, espouses, to relations between business partners, common membership in religious and social clubs and political parties. Cf. Cooper (1999, 312).
- 25.
See for the assertion that civic friends cannot be genuine friends because they lack intimacy and are not genuinely living together: Annas (1987).
- 26.
See for a discussion of tragic remorse: de Wijze (2004).
- 27.
I am indebted to an anonymous referee for this point.
- 28.
These cases may fall in the domain of criminal law, but may also come up in other areas of law, like tort cases in civil law or negligence and nuisance cases in environmental law. Here I simply accept the legitimacy of the criminal law. It remains to be seen whether civic friendship can also lead to a fundamental critique on the criminal law system as it is now in Western constitutional democracies.
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Acknowledgement
The author wishes to thank her colleagues Liesbeth Huppes-Cluysenaer, Frans Jacobs, Dorien Pessers and Joep van der Vliet for discussions and their generous help in preparing this chapter. In particular she owes thanks to an anonymous referee for his constructive and insightful comments.
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van Domselaar, I. (2013). A Neo-Aristotelian Notion of Reciprocity: About Civic Friendship and (the Troublesome Character of) Right Judicial Decisions. In: Huppes-Cluysenaer, L., Coelho, N. (eds) Aristotle and The Philosophy of Law: Theory, Practice and Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 23. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6031-8_13
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