SUBJECTIVE JUSTICE

Can bad people be good judges?[1] This question would have been unintelligible before the rise of the modern state, when moral character and expertise were deemed as inextricably linked.[2]  Personal virtue was back then the mark of a good jurist and the judicial toga signified moral exemplarity. With the advent of the modern state, professional excellence came to be viewed as detached from personal virtue, professional legal authority become isolated moral authority, and the view that moral character is irrelevant for judicial excellence took root in both legal culture and the culture at large.

There were, indeed, important aspirations driving the modern de-moralization of the professions and, particularly, the judicial office. Democratic aspirations repudiated the idea that moral exemplarity should be the province of a few. A firm opposition to the arbitrariness in the administration of justice of the Ancient Regime led to a replacement of the rule of men by the rule of law. Judges were conceived, as Montesquieu famously put it, as ‘the mouth of the law’: their job was to decide cases by applying the law. In this view, which still prevails today, the judge’s character and value commitments are irrelevant to excellence in the judicial practice. Judges need to know the law and master the legal techniques, but one can be a good judge regardless of one’s subjective qualities of character.

But is that so? The view that judicial excellence can be divested from personal virtue assumes an overly simplified view of what judicial reasoning involves. Legal rules admit of different interpretations, they may allow or mandate discretion, they may come into conflict, they may fail to provide an answer in the specific case, and they may also yield absurd or unjust results when applied to the particular case. In all these cases, the exercise of the judicial function requires the exercise of moral judgment. Beyond technical competence, a high moral character is needed to excel at the practice of judicial reasoning. In a laudable effort for securing objective judgment, we seem to have thrown the baby with the baby water. Indeed, arbitrary judgement should be expelled from law, but subjectivity should not (cannot) be extirpated all together: virtuous subjective qualities are indispensable and importantly contribute to the quality of legal judgments. The heights of the judicial function are reached by virtuous judgment rather than by impersonal judgment. Virtue endows judges with the perceptual capacities, situational appreciation, imaginative abilities, affective orientations, and skills of inquiry and deliberation that are needed to properly engage in legal reasoning.

Which character traits then are the mark of judicial excellence? The Birmingham report on virtue in the professions identifies four main pillars of a virtuous professional character: moral, epistemic, civic, and performance virtues.[3] Judges, as other professionals, should also possess and exercise the four kinds of main virtues. Nothing sort of a well-rounded character will enable judges to excel in the judicial function. While the moral virtues, such as honesty and compassion, have been prioritized in the emerging field of virtue jurisprudence, judicial excellence requires the possession of epistemic, civic, and executive traits of character, all of which are morally relevant given the momentous consequences for others that judicial decisions have. Judicial excellence requires the display of epistemic virtues, like open-mindedness to the views of other judges within the court, intellectual sobriety, not to jump prematurely to conclusions, or epistemic wokeness, to be alert to the presence of implicit biases. Civic virtues, such as justice, loyalty to law, and service to the community are paramount in the judicial office. Last, performative virtues, like patience, diligence, and perseverance, enable judges to effectively play their role within the legal institutional system. Judges who possess and exercise these virtues are not only best equipped to achieve excellence in the judicial function but also to serve, like the premodern envisioned, as public exemplars, within their communities.

Is this ideal of judicial excellence feasible at all? Can it be put into the practice? I would suggest that there are three main ways in which we could foster a virtuous judicial practice.[4] First, legal education could be rethought with a view to cultivating virtue among law students and legal professionals. The imitation of exemplars is, since Antiquity, a critical way for virtue development. Legal education should afford opportunities for becoming acquainted with and learning from excellent others and for engaging in critical discussion of narratives of (real and fictional) exemplary jurists from both the present and the past. Besides imitation, an array of pedagogical strategies could be used to promote virtue at both the law school and continuing professional training, such as explicit instruction on the virtues, deliberative practice, instruments proposed in positive psychology, e.g., workbooks, multimodal interventions, games, and simulations, and the use of literature and the performative arts for character development.

Secondly, institutional design affords an additional way for fostering a virtuous judicial practice. Spatial design, including the architectural features and interior design of the courtroom and other legal professional spaces, may promote (or hinder) virtuous behavior. For example, space planning may reinforce hierarchy and be inhospitable to displays of judicial humility. The design of rules and procedures can also advance, or impede, virtuous behavior. For instance, the adversarial procedure is a valuable means of furthering impartiality and openness to alternative perspectives. In addition, organizational design, e.g., procedures for judicial selection, may enhance a virtuous environment in the courtroom as well as in other professional legal contexts.

Last, cultural interventions could be deployed to stir legal culture in the direction of virtue. A number of strategies may be productively employed to highlight virtue in the judiciary and other professional legal bodies, such as the inclusion of the language of virtue in the codes of professional conduct, the recognition of the value of virtue in the strategies of law schools, law firms and public legal institutions, and signaling a commitment to virtue through naming practices, commemorative art, and awards.

Progress in all three streams -educating, nudging, and highlighting virtue- is hard work indeed. However, justice that dispenses with the flexibility, nuance, and affective engagement that only subjective judgment can afford becomes fossilized, rigorous, and distant. In the extremes, as Cicero said, it is the greatest injustice.[5] Given the relevance of subjectivity to the administration of justice, the pursuit of the project of nurturing virtue in law, however difficult, with tenacity and imaginativeness is surely worth the effort.

Picture: Dürer, Ship of Fools, by Sebastian Brant (1457-1521)

[1] Jorge Malem, ‘Can Bad People be Good Judges?’ The Netherlands Journal of Philosophy of Law, forthcoming.

[2] Steven Shapin, The Scientific Life: A Moral History of a Late Modern Vocation, The University of Chicago Press, Chicago and London, 2008.

[3] James Arthur, Kristján Kristjánsson, Aidan Thompson and Ali Fazel, The Jubilee Centre Framework for Virtue-Based Professional Ethics, University of Birmingham.

[4] Amalia Amaya, ‘Reasoning in Character: Virtue, Legal Reasoning and Judicial Ethics,’ Ethical Theory and Moral Practice, 2023. https://doi.org/10.1007/s10677-023-10414-z

[5] Cicero, ‘Law applied to its extremes is the greatest injustice,’ On Obligations, Oxford University Press, 2000.