A Humanist View
Brosnahan, Jim, Judicature
A humanist view The just, by Paul Ricoeur, translated by David Pellauer. The University of Chicago Press, 2000. 192 pages. $24 ($14 paper).
by Jim Brosnahan
Reading Paul Ricoeur's The Just made me wonder whether the gap between philosophers and judges can ever be bridged. But despite the obscure terminology, the philosophical references, and the occasionally dense phraseology, Ricoeur succeeds in focusing our attention on the everlasting problems of judging. His solutions challenge the reader to justify present judicial practices. If one is in a mood to rethink basic judicial assumptions, Ricoeur provides a provocative impetus.
Paul Ricoeur is a French philosopher who has put together a number of his shorter pieces on questions of justice, judging, and moral legal actions. In The Just he uses such classical theorists as Immanuel Kant, Aristotle, and John Rawls as reference points in his own philosophical efforts to reconcile systemic legal principles and equity with justice, which he views as the desired final product of a legal system. It is at times a difficult read, but at all times it expands the reader's comprehension of the difficulties of judging.
Ricoeur analyzes in some detail John Rawls' approach of suggesting that justice is a collection of benefits that are to be disbursed in a fair manner. He describes Rawls' basic approach as tolerance of different views and individuals and writes about the centrality of tolerance in a constitutional system. Ricoeur believes that the Reformation was the historical event that spawned tolerance as an important political concept. Further, he suggests that the Reformation caused the separation of church and state.
Rawls contends that justice is a problem solved by distribution, but is that correct? If justice is a question of distribution of rights, are the rights not inherent in citizens? Can we have a systemic world of legal rules that seek justice without careful application of those legal rules to the individual by a wise trial judge who exercises sound judgment in the application? Is that what all trial judges should do? Ricoeur's answer to the justice problem is to imagine a judge seasoned by reading and exposure to many different ideas that have honed the judge's sense of justice. He suggests that the judge should be exposed to many "voices." This judicial maturation would prepare the judge for action at the key site of justice, the application of law to a person, and allow the judge to apply legal rules in a way that accomplishes justice in the individual case. Ricoeur believes this result would result in equity, a key concept in his thinking.
Ricoeur's humanist view of the wise scholarly judge taking the given law and applying it to individuals in an equitable way has impressive roots. In discussing the differences among law, justice, and equity, Aristotle, in Book V of the Nicomachean Ethics, describes the basic problem for the judge. The law must be general by its very nature, but each case can be different:
The source of the difficulty is that equity, though just, is not legal justice but a rectification of legal justice. The reason for this is that law is always a general statement, yet there are cases which it is not possible to cover in a general statement. In matters therefore where while it is necessary to speak in general terms it is not possible to do so correctly, the law takes into consideration the majority of cases, although it is not unaware of the error this involves.
The contribution Ricoeur makes to Aristotle's principle is to focus attention on the application of law to specific individuals. No one can practice law or be a judge very long without realizing that no generality of law can produce equitable results in every case. The authoritarian ignores this problem but Ricoeur makes it his central point of analysis.
Ricoeur draws heavily on Immanuel Kant's Critique of Pure Reason. …