2009

On the Very Idea of the Universality of Political Judgement (*)

Leonardo Marchettoni

In this contribution I will focus my critical attention on a single issue among the many raised by Alessandro Ferrara's latest book (1). There are reasons to think, however, that the importance of this theme is absolutely central for the success of his theoretical project. The plan of the essay is as follows: the first section attempts to state more clearly the nature of the problem and its relevance for political theory; in the second section the solution offered by Ferrara is analyzed in some details; in the third section I present some worries that, in my opinion, afflict Ferrara's response to the problem; finally, in the last section, I consider an alternative way of resolving, or rather dissolving, the problem of the universality of political judgement.

I.

Political judgements are judgements about political issues (2). In this sense, judgements about distributive justice, judgements about democratic institutions, judgements about the obligations individuals have towards the state are all examples of political judgements. Why should we care about the universality of political judgements? The answer is very simple. Because in order to make our societies more stable we should make every possible effort to gain the consensus of all citizens; therefore, it is important that our political judgements could be shared by everyone. Where some political judgements are not shared by some people, we can reasonably expect that they may choose, if they have the opportunity to do so, not to conform to what those judgements require. Moreover, if some people do not share some judgements that figure as a premise in some political argument, they will not share the conclusion of the argumentation either.

In addition, the need for this requirement is even stronger in our multicultural societies, where it can be fairly assumed that there are greater differences between individuals. Multicultural societies are societies in which we can find people belonging to different religious traditions, different cultures and that are grown up and are educated in different languages. Without some kind of universality in what pertains to the political realm, these different people may fail to identify with political institutions. In other words, the political apparatus, and the political judgements that lie beneath it, must possess a force that make them authoritative to individuals that have a very thin common identity as members of the political association. From these considerations the need for a kind of universality of political judgements follows.

II.

The problem of the universality of political judgement has been traditionally resolved by appealing to some kind of foundation. According to Ferrara's account (3), this foundational requirement is satisfied through the recourse to what, borrowing the Kantian terminology, he calls 'determinant judgement'. In other words, classic authors in the field of political theory and philosophy have tried to hook political judgements to general laws covering judgements in particular cases. From the normative force of the general law the validity of the solution given to particular issues follows.

Determinant judgement has a "tremendous appeal", as Ferrara says. This appeal is rooted in the objectivity, reliability and transmissibility of the method it proposes. But this strategy has also its obvious drawbacks. Just one consideration: the idea that we can always find universal laws covering each particular case seems at odds with one prominent moral of the linguistic turn, that is the idea that each normative judgement is somewhat situated and cannot be detached from the particular perspective that gave it its motivations and its content. In fact the determinant judgement

presupposes that translation flows effortlessly and without loss of essential meaning back and forth between the locally prevailing frameworks of meaning and the rules or principle, of whatever nature, that need to be applied to them" or are used as a benchmark for assessing their soundness. Only then can the context-transcending capacity of "the universal" be fully displayed (4).

As a consequence, the story of political philosophy in the second half of the twentieth century is the story of an ongoing shift from the paradigm of determinant judgement to a new paradigm, centred on the model of reflective judgement and on the model of exemplar validity (5).

Reflective judgment is a kind of judgment in which "only the particular is given, for which the universal has to be found." In this process of "ascending from the particular in nature to the universal" we are in need of a guiding principle, argues Kant, but this principle cannot be borrowed from experience nor from "anywhere else," including conceptual analysis (6). This circumstance permits to overcome the worries linked to the situated nature of our acts of judgement but opens the way to a new kind of philosophical qualm: where can we find the guiding principles we are in search of, if we cannot avail ourselves of some universal norm given before each single act of judgement?

Kant's response to this difficulty was that we can rely on the activity of a kind of sensus communis that guarantees that our instances of reflective judgement, our aesthetic judgements for example, do not deviate from some general standards common to all the humankind. According to Kant reflective judgments, and aesthetic judgements more particularly, display two apparently opposed sets of features. On the one hand, judgments of beauty are based on feeling, they do not depend on subsuming the object under a concept, and they cannot be proved. On the other hand, however, judgments of beauty are unlike judgments of the agreeable in not involving desire for the object; more importantly and centrally, they make a normative claim to everyone's agreement. These features seem to suggest that they should be assimilated, instead, to objective cognitive judgments. Reflective judgements derive from a subjective principle. This principle, in turn, determines not a concept but a feeling - the feeling of pleasure or aversion linked with the perception of certain objects - yet determines such feeling in a universal way, namely, in a way that allows us to expect the convergence of everybody's consent. This kind of normativity is possible because in the production of each reflective judgements the same basic faculties are at work that are responsible for our cognitive judgements and for which it is possible to assume the universal extension to all humankind.

But, in order to make a subjective principle determine feelings in a universal way, Kant presupposes something like a shared sensibility. This assumption represents, according to Ferrara, the main limitation of the Kantian strategy of naturalizing sensus communis (7). In fact, if we understand sensus communis as a kind of shared sensibility, "the universality of aesthetic judgment becomes conceptually dependent on the universality of the cognitive apparatus that forms the object of the Critique of Pure Reason" (8). The expectation of universality that is linked to our reflective judgements becomes, in other words, dependent on some substantive account of our common human nature. And this solution presents us again with the phantom of foundationalism that the recourse to reflective judgement tried to exorcise.

A the other end of the philosophical spectrum, Ferrara locates an alternative strategy that he characterizes as a "hermeneutic and phenomenological thickening of the concept of sensus communis" (9). In the context of hermeneutic and phenomenological thinking sensus communis becomes something like a Gadamerian horizon, that is a structure that conceptually articulates the access of the single individuals to intersubjective world. This strategy has an obvious advantage over the Kantian solution: it does not depend on any substantive account of human nature. But this advantage comes only at the price of falling prey to a constitutive incapability of transcending its own context of origin: "Bound up as it is with our beliefs, values, concrete experiences, it is intranscendible" (10).

To this couple of responses, unacceptable for two opposite reasons, it is possible to react, Ferrara says, by stressing another strand of thought that is already present in Kant's text. This train of thought can be summarized by saying that for Kant the aesthetic pleasure is always correlated with a sense of enhancement of life. In so far as an object gives us an aesthetic pleasure, at the same time it unfolds something about our humanity that "can neither be reduced to the plasticity of culture nor anchored in a naturalistically understood facticity" (11). This 'something' is linked to our common humanity, to the limitations that our common nature poses to our aspirations and our capacities. But, at the same time, it cannot be reduced to a naturalistic account, because it hinges on a reflective comprehension of the basic items that integrate into our life.

In her life each human being experiences what can be termed as a sense of flourishing or being frustrated. In turn, "the feeling of the 'promotion of life' can be understood in terms of self-realization or progress in self-realization or progress toward an authentic relation with oneself" (12). In this way, Ferrara argues, common ideas about human condition and how to enhance one's life plan can be redirected as to fuel an exemplar conception of validity. These common ideas constitute a kind of "sensus communis revisited", a special wisdom concerning the proper manner of conducting one's life, that can be employed to ground "intuitions located in a space equi-accessible from the plurality of existing cultures" (13).

Rethinking sensus communis along these lines allows us to overcome the two opposite flaws of the Kantian and the hermeneutic strategies. The sensus communis revisited is - contra the Kantian response - radically non-naturalistic; moreover - contra the hermeneutic response - it is really universal: it is made up of a set of ideas that can be deemed to be common to individuals belonging to various cultures and historical ages. For these reasons it can be thought as a reliable basis to our efforts to establish our political judgements in a solid land; therefore, it seems to provide a solution to the problem of the universality of political judgements: if a kind of non-naturalistic sensus communis, a special wisdom that is linked to our shared human condition, can be presumed to shelter in each human being, independently from her culture, then we can say to have found a way to subtract our political judgements from the contingencies and the variability of the political identities.

III.

What are the difficulties raised by Ferrara's response to the problem of the universality of political judgement? In abstract, I think, one can consider two kind of worries: either Ferrara's account may be criticized because it does not assure the required universality, or it can fail because it does not provide enough deep a soil to ground political judgements. I am inclined to think that Ferrara's account satisfies the first requirement. Actually, I think it is fair to assume that a really universal set of ideas, images and examples concerning self-realization exists. Human beings of all cultures and of all ages may be thought to share a certain wisdom that enables them to distinguish between a flourishing life from another which is frustrated. Perhaps, it is still possible to arrange a catalogue of metaphors about promotion or stagnation of life whose meaning can be deciphered by individuals of different cultures. The problem is with the second requirement. Even if one is ready to accept that individuals of different cultures possess some common ideas about promotion of life, it is difficult to secure the further step that Ferrara needs in order to conclude his argument: the fact is that conflicts of identities that political judgments should typically resolve are more fine-grained than universal images and ideas concerning human condition and its flourishing are. Political conflicts in our contemporary societies do not merely involve the identification of general principles such as those encoded in the standard catalogues of human rights (14). They are frequently connected with the proper way of ranking those principles in a suitable manner. It is already not obvious that common ideas about flourishing and self-realization enable us to identify a truly universal collection of general principles; to suppose that we can profit of them to display a comprehensive order of values is, to my mind, wholly implausible (15).

In our multicultural societies we face the task of harmonizing several different practical codes: for example, as to the thorny issue of female genital mutilations, we have to decide whether apply our 'western' rules in relation to which female genital mutilations are only a particular instance of personal injury or take into account traditional prescriptions that exert a normative force over the individuals involved in such kinds of practices. Similar problems arise in relation to some aspects of family law as heritage or divorce. In these cases, it is difficult to imagine that some kind of exemplar response could be found by reflection on general ideas concerning the condition of flourishing of life. An answer to the challenges posed by the presence of several practical codes at the same time and in the same place requires a deep engagement with the different frameworks of meaning through which it is possible to interpret and understand a given behaviour: if a certain act is prescribed by one code and forbidden by another, we cannot hope to compensate the lack of convergence merely by drawing on some common ideas that are shared by the two. A solution to the clash of evaluations may come only after a creative immersion and reinterpretation of the two normative systems, one that could shed new light on the reasons for the difference of prescriptions by employing some original idea that has been constructed out of the two different outlooks.

For these reasons I think that Ferrara's proposal is, in the end, not completely convincing, because it leaves unexplained how we can pass from the appreciation of some very general similarities in the way individuals describe their experiences of self-realization or defeat to the assumption of a universal faculty of forming reflective judgements. This predicament becomes more evident if we take seriously, as Ferrara insists we should do, the analogy between aesthetic and political judgements. I will not contend that there could be no works of art, whose timeless beauty is perceived by human beings of every culture and every historical age. The Nike of Samothrace, La Gioconda and perhaps the final movement of Beethoven's Ninth Symphony could be enlisted in this group. But if we sweep away these sparse items we are left with an overwhelming majority of subjective aesthetic judgements that cannot claim - pace Kant - a genuine objectivity and universality (16). Not only what is art and what is not is subject to endless discussions; but even the aesthetic appreciation of a large collection of recognized works of art - especially for what concerns contemporary art - requires a proper training and the formation of a specific expertise (17). If so, we cannot expect that the analogy with aesthetic judgements could be useful to provide a more secure foundation for political judgements. For, if political judgements suffer of the same context-dependence as aesthetic judgements, they can scarcely be thought to be universal in the way Ferrara seems to envisage.

IV.

It seems to me that Ferrara is completely right in urging that we should move in political theory from the paradigm of determinant judgement to the model of reflective judgement. Where his account is less convincing is in attempting to locate a new form of universal foundation that could be suitable for reflective judgements. But if these two assumptions are correct, what could be a plausible way out of the impasse in which we are cast? For, if we should adopt the paradigm of reflective judgement, and reflective judgement cannot be successfully combined with universality, it seems that we must face a difficulty in doing without universality in our political judgements. And universality seems, at least prima facie, as I explained in the first section of this paper, to be an important feature of our judgements in political matters. In this section I will maintain that we should follow Ferrara in replacing determinant judgement with reflective judgement but, since the latter is irremediably context-dependent, we should stop caring for its universality and accept that our political judgements, even those among them that seem more basic, are subject to the possibility of future review and scrutiny.

My starting point is not so different from Ferrara's. Ferrara asserts that the linguistic turn makes it impossible to take trans-contextual validity of our judgements for granted. I am inclined to strengthen his assumption by maintaining that the intranscendibility of contexts of evaluations forces us to recognize the partial character of all our acts of representing the world, including those specific acts by means of which we formulate normative standards (18). This position can be labelled as an instance of "metaphysical antirealism" (19). Here I cannot argue for the rejection of metaphysical realism (20). I will attempt only to sketch the outline of a theory of political judgement informed by the rejection of realist temptations.

If metaphysical realism is false, then there is a plurality of accounts of the way the world is that can be held as correct according to each plausible standard of correctness. What follows for the problem of the universality of political judgements? Well, it surely follows that our judgements are always "non-grounded", that is there are not political judgements that can be deemed as truly universal, in the sense of possessing a property that other judgements do not possess. Our judgements are always contextual, they reflect the circumstances and the specific conditions in which they are elaborated; therefore, it is fruitless to pursue exemplar validity, if by this name we mean a kind of validity that can go forever uncontested, in force of some special relation between the practical evaluation and the state of affairs that is the object of the evaluation itself. Does this contention entail that exemplar validity is, in principle, unattainable? No. It entails only that exemplar validity is itself relative to contexts of evaluation. More precisely, it entails that the further judgement by means of which we judge about the exemplar character of a given judgement is itself contextual, and so the judgement about the judgement on the exemplar character of a given judgement, and so on.

The prototype of the exemplar evaluator is the judge. The judgement of a judge is exemplar not because it cannot be contested but because it states the matter until it is contested. Every judgement, even exemplar ones, can be defied. But for the time in which the defy is not yet brought, they can adjudicate the matter. And what is required to defy a previous judgement? A minimal requisite is the giving of reasons that motivate the dissent (21). There is, in principle, no end to the number of verifications a given judgement may undergo, because no judgement is grounded in a way other judgements are not, but, in practice, this series of comparisons is always finite and for each issue there is a judgement that serves as a milestone - at least until the question of its validity is raised.

At this time we should perhaps come back to the problems I surveyed at the outset of this paper in relation to the importance for political judgements to be universal in order to assure the consensus of citizens. If our political judgements cannot receive a universal foundation, how can we be confident that their contextual validity does not pose a problem? In other words: how can we immunize our judgements from the virus of relativism that threatens the very possibility of a real consensus about political issues? I think that the problem is more theoretical than practical. As I noted in the previous paragraph, the risk of an endless chain of judgements, each of which is subject to further scrutiny is merely a theoretical possibility. As a matter of fact, actual judgements refer their validity to some previous judgement, often implicit in practice but nevertheless real like those that follow from it. For this reason, the problem of the contextual validity of political judgements should not be overestimated. In most cases it boils down to the problem of reconciling several diverse outlooks. It calls for a meticulous and painstaking work of analysis of the sources of disagreement but it is not intractable, neither requires to identify a set of judgements that are qualitatively more grounded than others. If the parties are able to communicate among them - and this may be a big if - it is always possible, at least in principle, to locate and remove the reasons of their divergence (22).

I think that some of the ideas I am drawing on are not at all foreign to Ferrara's philosophical perspective. I am thinking especially of his insistence on canvassing a model of political justice based on conflict and on the insight that when two factions meet in the course of some quarrel the event itself of their encounter produces the creation of a new minimal identity that can be exploited as a kind of common denominator to adjudicate the dispute. (23) In this vein, towards the end of Justice and Judgement, Ferrara writes:

In modern political philosophy the idea of justice has traditionally been seen as something which imposes itself on us by virtue of an external cogency, a cogency that somehow forces us to recognize it. We are learning to see justice with different eyes, as something that commands respect by virtue not only of the fact that it proceeds from us - after all, many things proceed from us which don't command respect - but because of the special way in which it proceeds from us. As the lover's gaze creates his love where we, who are not within the circle of love, just see a person like any other; as the gaze of the nostalgic exile creates the spell possessed by certain lights, sounds, and odors where we, who come from a different city, see an urban scene like many others, so we participants in a political culture and in a political community create justice where others, differently situated, see mere opinions like any other (24).

I heartily agree with these words. If the contextual conception of justice and judgement that emerges from these lines is depurated from all anti-relativistic qualms to which Ferrara gives voice in other pages of his books, I think that the overall picture could be more in line with the prospects of the reflective judgement model.

Notes

*. Thanks to Chiara Bottici, Sandro Ferrara and Francesco Vertova for helpful suggestions.

1. A. Ferrara, The Force of the Example, New York, Columbia University Press, 2008.

2. On this topic see R. Beiner, Political Judgement, London, Routledge, 2009.

3. A. Ferrara, Justice and Judgement: The Rise and Prospect of the Judgement Model in Contemporary Political Philosophy, London, Sage, 1999, pp. 1-12.

4. A. Ferrara, The Force of the Example, p. 19.

5. Ferrara tracks back the steps of this shift to the works of such authors as Rawls, Habermas, Dworkin, Ackerman and Michelman in the first part of Justice and Judgement.

6. I. Kant, Critique of the Power of Judgment, ed. P. Guyer, trans. P. Guyer and E. Matthews, Cambridge, Cambridge University Press, 2001, "Introduction", § 4, p. 67.

7. A. Ferrara, The Force of the Example, pp. 27ff.

8. Ibid., p. 28.

9. Ibid., p. 24.

10. Ibid., p. 25.

11. Ibid., p. 30 (italics in text).

12. Ibid., p. 31.

13. Ibid.

14. Western and Islamic declarations of human rights are not so different. The devil is, as in many other cases, in the details: in the presence or absence of some general reservations that formally authorizes conducts frequently conflicting with 'western' values. See E. Brems, Human Rights: Universality and Diversity, Martinus Nijhoff, The Hague, 2001, pp. 241-66.

15. It is interesting to notice that this difficulty makes apparent some similarities between Ferrara's proposal and Martha Nussbaum's capabilities approach. See, for example, M. C. Nussbaum, Women and Human Development: The Capabilities Approach, Cambridge, Cambridge University Press, 2000.

16. The validity of Kant's "Deduction of Pure Aesthetic Judgments" in the Critique of the Power of Judgment has been contested by Paul Guyer (Kant and the Claims of Taste, Cambridge, Mass., Harvard University Press, 1997, chs. 8-9) and others. For a response, see H. Allison, Kant's Theory of Taste, Cambridge, Cambridge University Press, 2001, pp. 160 ff.; K. Ameriks, Interpreting Kant's Critiques, Oxford, Oxford University Press, 2003, chs. 12-4.

17. For a first introduction on these themes see A. Goldman, Evaluating Art, in P. Kivy (a cura di), The Blackwell Guide to Aesthetics, Oxford, Blackwell, 2004, pp. 93-108.

18. There is no need to invocate the collapse of the dichotomy between facts and values, since it can be safely presumed that the particular character of our factual representations involves a corresponding relativity of our attempts to state normative principles.

19. According to Hilary Putnam metaphysical realism is the position characterized by the conjunction of three theses: "the world consists of some fixed totality of mind-independent objects. There is exactly one true and complete description of 'the way the world is'. Truth involves some sort of correspondence relation between words or thought-signs and external things and set of things" (H. Putnam, Reason, Truth and History, Cambridge University Press, Cambridge, 1981, p. 49).

20. See my "Verità, pluralismo e realismo. Una modesta difesa del relativismo", in L. Marchettoni (ed.), Verità, relativismo e pluralismo. Discutendo Per la verità. Relativismo e filosofia di Diego Marconi, Jura Gentium, 2008.

21. Here, I am adapting some ideas from R. B. Brandom, Making It Explicit, Cambridge, Mass., Harvard University Press, 1994.

22. That differences in the conceptual systems used by several speakers are not insuperable is one of the morals of the famous paper which is reminded in the title of this piece, namely Donald Davidson's immensely influential "On the Very Idea of a Conceptual Scheme", Proceedings of the American Philosophical Association, 47 (1974), pp. 5-20, reprinted in his Inquiries into Truth and Interpretation, Oxford, Oxford University Press, 1984.

23. See A. Ferrara, Justice and Judgement, ch. 7, pp. 178-201.

24. Ibid., p. 200 (italics in text).