I came across this old article that seems to suggest that if we're concerned about just outcomes that are not divorced from social reality, empathy is important. Cultivating the quality of empathy in the profession and looking for this characteristic in the appointment of judges could be a step in the right direction. Empathy & the Law, NY Times, 2009

If the selection of judges depended not on so heavily on unwavering loyalty to legal doctrines/dogma, but on the candidate’s moral character (a set of manifest social values), I can’t help but think that the problem of transcendental nonsense could be helped.

And same for presidents. A cultural revolution that compels the masses to vote, not based on partisan politics, but on character — a Trump would not be president if that were the standard.

A question I’m having trouble with is what can be done about competing social values, even if the law were to allow Sunday School morality? It seems to me that there needs to be one standard if the system is to preserve its legitimacy — from what source do we turn in a pluralistic society? Do we have to recognize that there is some common ground/universal principles?

-- AnaPirnia - 03 Feb 2017

Why is "legitimacy," whatever that means (I think it's almost always transcendental nonsense), dependent on getting singular results from a pluralistic society? I don't think criminal sentences in the federal courts are fairer because of the guidelines than they were when federal judges took sentencing as a personal responsibility rather than an arithmetic problem. "Determinate" sentencing---particularly given the prosecutor's lone thumb on the scale for "cooperation"---seems to me to work out hideously unjust. So for reasons like this one, which seem to me plentiful, whatever legitimacy means, if that's what it does I'm not for it.

I think the answer in a pluralistic society is that where we have insufficient common ground (never mind universality, which is both undesirable and unattainable as far as I'm concerned) we have respectful and constructive dialog. I have never seen a marriage in which the partners always agreed, or were unfailingly adequate in their ethical performance of their commitments. I have seen only marriages in which the partners were better and worse---more and less loving, constructive and effective---in negotiating their differences and failures. I see the same basic structures of unconscious mental activity within and among societies that I see in small groups of individuals, making easier or harder the processes of consciously negotiating across not-common requirements, needs, and wishes. Why one would want, let alone believe one could achieve, the replacement of this human messiness by common or universal understandings of anything I don't really see, but perhaps you can help me understand.

-- EbenMoglen - 03 Feb 2017

By "legitimacy", I mean trust in the system -- faith that it is operating on higher principles and values that demand fairness and meaningful justice.

I can see how my statement raises flags of pie-in-the-sky uniformity, which in the social context can lead to dangerous and harmful outcomes, even if it's impossible to ever truly reach. What I mean are universal principles or ideas that are constructive for a pluralist civilization to thrive. So one universal principle might be unity in diversity. Diversity of thought/culture/experience under this principle would not simply be tolerated, it would be protected and celebrated (and lead to respectful and constructive dialogue). The shining spark of truth comes from the clash of differing opinion. But then one would need other principles to work in tangent with this to prevent its perversion or misapplication. Another universal principle might be a recognition of human dignity. How to achieve this universal understanding? In one sense, I don't think we have to do much of anything, frankly. I think it's more of an awakening to it -- the rough and tumble of human existence over centuries. And I think that's where the "arc of the moral universe", to quote MLK Jr., leads. Having said that, I don't think that's a prescription for passivity. It should be an invitation for action, and continuous self-reflection.

-- AnaPirnia - 03 Feb 2017

I struggle with these definitions, though - we want diversity of 'good' people (and we ever expand that definition for pragmatic and cultural reasons) but we certainly don't seem to want a society that's so diverse that opposing, violent viewpoints exist (eg, Nazis, to fulfill Godwin's law). I think most people would agree that we need to eradicate nazis. In fact, some argue a polite society requires such violence... So, we still need to draw a line, and that line is going to shift from mundane annoyance to self-protection, depending on who we ask. Many people (who supported or aren't directly affected by him) say to 'give Trump a chance.' The Yemeni business owners who went on strike yesterday because their families and community are detained at JFK really can't tolerate that 'diversity' or 'chance.' And I'm not sure what human dignity is. Clarence Thomas thinks human dignity disallows same-sex marriage. Without a consistent definition those things fall into transcendental nonsense fairly predictably and quickly. Honestly, I don't think you can achieve a 'moral' universe, but I'm skeptical morality is much more than a strongly ingrained social construct. It's certainly broken quickly enough when life and limb are threatened, or you're far enough removed from other human beings. “The arc of the moral universe is long, but it bends towards justice.” is the quote - it says nothing of morality, and I'd argue, while no inaccurate, it speaks more to a definition of justice made by the history writers than any objective reality about humanity. There are plenty of groups who have not survived to see their justice served, and I can't say for certain a majority have.

-- KaiKar - 03 Feb 2017

I think we have to be careful about what we label as “transcendental nonsense” simply because the idea seems lofty and there’s no consensus behind it. Was Martin Luther King Jr’s assertion that blacks and whites are equal transcendental nonsense? Undoubtedly many people believed it was back then, and many people believe it now. Does lack of understanding of what equality means and disagreement over how it should manifest itself in the real world make it “transcendental nonsense”? I’m afraid if that’s the conclusion, then the inquiry ends there.

It’s tempting to think we can shape social outcomes by winning the position of dominance in a system and then eradicate injustice through social engineering and elaborate policies, or by adding to an intricate web of laws. But I think any system—no matter how complex—will fail to establish just outcomes if we don’t have some kind of principled, moral foundation that animates the entire structure. So maybe, as this article implies, the law needs empathy. Our “justice” system, we must realize, has been complicit in the dehumanization of the “criminal”, and for that our entire nation has suffered. It has meant the singling out and perpetual denial of equality and opportunity for African-Americans and the systematic destruction of their communities. If only we could appreciate the extent of the damage, I think none would hesitate to demand reparations and more for this community. The law needs to be grounded on higher, principled ideas to avoid such calamities.

I’m aware of how easy it is to dismiss what appears on the surface to be a rather lofty idea. “Unity in diversity” rings almost like the paltry pledge of beauty queens for “world peace”, (and maybe “equality” does too for some). But I believe the mechanics of such a principle are much more complex and far reaching than an empty soundbite, and requires more serious consideration and study. I don’t purport to have a definite answer, but only offer some further thoughts. I agree that the danger of limitless diversity on its own would be an invitation to violent and destructive viewpoints – it would undermine any chance of stability and progress. This problem illustrates why a principle of unity in diversity would have to work in tangent with other principles – a deeper recognition, for example, that every human being is created equal. Not equal in the sense that everyone is equally well off or has the same opportunities or capacities, but equal in the sense that MLK and others have meant – that each person is born with inherent human dignity. His views on this are grounded in religious belief that all are God’s children, made in God’s image. This isn’t a view unique to Christianity. All major world Faiths recognize this on some level, and have various ways perhaps of illustrating the point. So no, a just society shouldn't tolerate the kinds of views that seek to cause harm or deny the human dignity of others whether it be the government, the nazis, or confederate-flag-waiving white supremacists.

A related observation is that in the history of ideas and human existence, our understanding of “reality” is constantly evolving. Although I may have just called something a “universal truth”, I don’t mean to say it is static or absolute. We as social, cognitive beings are continuously evolving, so shouldn’t our ideas evolve too? Why shouldn’t our conception of “morality” or what is right evolve as well? I don’t find this to be problematic; I find it to be a natural part of existing, just like a child has to go through stages of growth and maturation, so does society at large. This principle is echoed in the realm of science. Science is purportedly the tool that helps us uncover the hard “facts” about our natural world. But even in science, what was thought to be a “truth” in one era, is rejected as “false” or extremely limiting in another. When this happens, the discipline experiences a paradigm shiftthat opens the door to new “truths” and human advances. But before long, those “truths” again become limiting and may ultimately have to be discarded in order for advancements to continue and new “truths” to be uncovered. Truth isn’t static. Truth isn’t absolute. What we think is true today and now evolves. I think the same can be said for social reality.

So, it doesn’t surprise me that we have a cacophony of ideas that are in conflict, many of which are remnants of old social orders and ways of existing (“Make America great again”). Yes, they are harmful. Yes, they will continue to cause great suffering and loss. But I think these forces are battling a growing global consensus that is challenging how things should be done – is it not possible that we are now experiencing a kind of social paradigm shift? Are we not questioning now the very form of government some thought was proof of “the end of history”? Hadn’t Western Liberal Democracy “won”? But here we are, with a dysfunctional democracy incapable of addressing the real needs of the masses and unraveling at an astronomical pace.

So in this context, I think new ideas or recognition of the existence of more universal principles that bind us may come to the fore, perhaps out of sheer necessity and survival. And I think the “universal” dimension is only possible now because of where we are in the evolution of human civilization – more globalized, more interconnected, the movement of ideas and communications virtually unhindered. If we haven’t found it yet, I don’t think it’s impossible to find it soon, or discover it’s always been around us, but we haven’t constructed the conceptual framework to see it yet.

-- AnaPirnia - 05 Feb 2017

Just saw this and thought I’d jump in.

Ana wrote: “I think new ideas or recognition of the existence of more universal principles that bind us may come to the fore, perhaps out of sheer necessity and survival.” The final clause is crucial. For me, the search for universals as an end point is the foreclosure of politics (which I understand as the art of collective transformation). It’s not that the search for universal values or principles is wrongheaded, per se—for our ways of thinking must always be nimble and adaptable enough to recognize the pragmatic use of something as powerful as a purported “universal truth.” Instead of an end point, though, it would be “universality” as a strategic and provisional tool (perhaps for “sheer necessity and survival,” or to afford a means of resistance to governing structures), the power of which lies in its peculiar force here and now, not as some end on which to stake (or ground) our futures (even if we recognize that the ground could shift). In this way, universality would be a tool of radical contingency, on which ethics and politics depend—values and concepts for us, here and now, even if never again, and even if for no one else and nowhere else. But this is dangerous, because we risk foreclosing the possibility of the political task itself.

It seems appropriate to call the concepts of progress, dignity, equality, etc. “transcendental nonsense” not because they’re useless (or pie-in-the-sky or merely abstract) but because they feign warrant to some grand position of privilege (whether we call them “ideals” or something else). And if they are privileged within our (liberal democratic) social and political discourse (as they surely are), it’s because our discourse is severed from the forces that actually push and pull us through the world, not because it points to some underlying or foundational Truth or Reality. When MLK invoked equality, for example, we should resist thinking that either he was referring to some essential fact about the world (e.g., that all humans are born with equal dignity, or something) or that he was incorrect—rather, I believe we should understand it as a pragmatic utterance to intervene in the 1960s American discourse, aimed at effectuating some social transformation. If we repeat MLK’s words, it should not be because he expressed some truth, or because we admire him and want to continue his work, but rather because his words have a peculiar power here and now.

-- TimCuffman - 09 Feb 2017