Abstract
Aspects of legal cases hinge on understanding the situation of the disputants. While categories such as feeling, empathy, law and politics have limited discriminating capacity here, I propose to draw upon the Aristotelian scheme of intellectual virtues. Specifically, I look at how the judge exercises discernment (gnômê) and the comprehension of what others say (synesis). In the context of practical wisdom, Hursthouse has argued that discernment requires experience of exceptions. I add that the judge exercises her discernment by suspending the application of principles to an individual, while listening. Furthermore, I add that the exceptions include experiences lived through, which Hursthouse’s technical view neglects. When using her comprehension to absorb the details of the situation based upon testimony, the judge will have to be open to different perspectives, able to move between them, and yet courageous enough to stand by what she deems right. I conclude with a hypothetical about the judge’s involvement in the process contributing to a better understanding of the other in a global environment.
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Notes
- 1.
Quoted in Baker and Lewis (2009).
- 2.
- 3.
On the campaign trail Obama had commented on the “5%” of the United States Supreme Court cases, where the law was not clear and “good intellect” not enough: “[T]he issues that come before the court are not sport. They’re life and death. And we need somebody who’s got the empathy to recognize what it’s like to be young, teenaged mom; the empathy to understand what it’s like to be poor or African-American or gay or disabled or old. And that’s the criteria by which I’m going to be selecting my judges.” A convention of Planned Parenthood, July 17, 2007, quoted in Livingston and Murray (2009).
- 4.
The term “empathy” (an early-twentieth-century translation of the German Einfühlung, or “feeling into”) has contested meaning in science, depending on whether authors focus on the direct perceptual aspect or consider empathy a high-level cognitive phenomenon. For the disagreement over the exact nature of empathy, see, for instance, Preston and de Waal (2002, 2–4).
- 5.
For this interpretation, see Broadie (2002, 46–47 and 53); NE, trans. Rowe, Commentary, 357.
- 6.
The reason for this first distinction is that “where objects differ in kind the part of the soul answering to each of the two is different in kind, since it is in virtue of a certain likeness and kinship with their objects that they have the knowledge they have.” (EN VI.1.1139a, trans. Ross)
- 7.
EN III. 3.11.12b12–20 except as indicated in the text. (The quoted expression: EN III. 3.11.12b18, trans. Rowe)
- 8.
According to Robert Alexy’s reconstruction of German constitutional jurisprudence, the principle of proportionality has three parts: first, a means under judicial scrutiny should be suitable to a legitimate end; second, between equally suitable means, the means interfering least intensively with another legitimate end in the system should be chosen; and third, if legitimate ends conflict, the greater the degree of non-satisfaction of one end, the greater should be the importance of satisfying the competing end. See, for instance, Alexy (2003, 131–140). The difference with deliberative excellence is the last part, called “balancing” or “proportionality in the narrow sense.”
- 9.
She declines the either-or question of assigning the capacity to judge exceptions (below in the text) to either discernment or “practical nous,” remarking that, by developing discernment, one develops the practical nous (Hursthouse 2006, 289 and 290).
- 10.
The subtext of respect in the case of empathy is acknowledged, for instance, in Mnookin et al. (1996, 220).
- 11.
As yet unsurpassed is Murdoch’s description of this ethical process, a progenitor of decision: “[I]f we consider what the work of attention is like, how continuously it goes on, and how imperceptibly it builds up structures of value round about us, we shall not be surprised that at crucial moments of choice most of the business of choosing is already over.” Murdoch (1964/1999, 329).
- 12.
“[J]ust as seeing the point is called ‘comprehending’ when one is exercising systematic knowledge, so too one ‘comprehends’ when exercising judgment in order to discriminate about the things wisdom deals with, when someone else is speaking – and exercising it in order to discriminate rightly (for ‘excellently’ is the same as ‘rightly’).” EN VI.10.1143a13–17, trans. Rowe.
- 13.
Positive law portrays examples of judges’ opportunities for dialogue. For instance, according to the German Code of Civil Procedure: “To the extent required, the court is to discuss with the parties the circumstances and facts as well as the relationship of the parties to the dispute, both in terms of the factual aspects of the matter and of its legal ramifications, and it is to ask questions.” § 139 Abs. 1S. 1 ZPO.
- 14.
A vicarious experience or understanding for someone (even if the other were a fellow only in the sense of speaking the same language).
- 15.
As noted, in the case of empathy, in Mnookin et al. (1996, 220).
- 16.
For instance, Preston and de Waal (2002, 4) offer “perspective taking” as a synonym of “cognitive empathy.”
- 17.
For a “generalist” understanding of this rule, see, for instance, Duff (2003, 219).
- 18.
For just one example, see, in the context of the World Trade Organisation, Howse and Nicolaïdis (2008, 163–191).
- 19.
A similar argument is put forward, in the case of private-law claims, in Wai (2005; the quoted expression within the sentence in the text, 480).
- 20.
On the phronimos as a living example of one who is listened to with respect, see, for instance, Broadie (2006, 348).
- 21.
I would like to thank Liesbeth Huppes-Cluysenaer for her thoughtful comments on an earlier draft of this paper.
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Ralli, T. (2013). Intellectual Excellences of the Judge. 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_8
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