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