I have been following Alessandro Ferrara's endeavours over many years to construct his “judgment theory of justice”, so it is with considerable expectation that I come to review his latest monograph The Force of the Example: Explorations in the Paradigm of Judgment. The book promises to articulate his overall approach and to put it to work in various key areas of contemporary political life – including debates over the democratic role of the public sphere, the legacy of the Holocaust, the universality of human rights, the enforcement of human rights by means of military intervention, and the development of the European Union as a “special area of hope”. At a conceptual level Ferrara addresses key questions concerning the relation between universality and difference, the actual and the rational, what is valid in itself and what is situated. Ferrara develops a highly distinctive approach, a “judgment theory of justice”, in discussing these questions and he has produced a thoughtful and challenging book. It crosses considerable philosophical and political ground – from the classics of political philosophy to Arendt, Rawls and Habermas – and it is well worth reading and engaging with.
The judgment theory of justice, as I understand it, is an attempt to reconcile what actually exists and what ought ideally to exist by exploring in depth the “force of the example”, that is, examples in different cultures or societies of virtuous conduct that gives us a sense that the world is a place worth living in, expands the reach of our normative understandings beyond the limitations of what already is, but does not simply impose an “ought” on the world on the basis of trans-contextual principles. The kind of violent imposition Ferrara seeks to avoid is that of imposing a “Western modern scheme – the notion of free and equal citizens – onto non-modern and non-Western political cultures that proceed from different understandings of legitimacy” (p. 12). Exemplarity consists in the ability of the exemplar to set the political imagination in motion – by providing an outstanding instance of “authentic congruency” with our best selves and instilling in us a feeling of “the promotion of life”. The notion of exemplarity, drawn originally from Kant's Critique of the Power of Judgment, is less inclined to appeal to transcendental principles than to set off a “trail of fire issuing from itself” – catching one tree after another until the whole forest is set alight.
Ferrara's judgment theory of justice owes as much to Hannah Arendt as to Kant. Following Arendt, he presents reflective judgment as a guide to political action based on the capacity of human beings to “enter into the potential standpoints of others” and “share the world with others through judging what is held in common” (my emphasis p. 43). Ferrara draws on Arendt's interpretation of Kant's sensus communis as that kind of common sense which holds judgment up to “human reason as a whole” (p. 47). In its classical form the force of the example is to be found in Achilles as the epitome of courage, in Saint Francis as the epitome of goodness, or in Socrates as the epitome of the examined life. What is at issue in these classic cases is what Kant referred to as “subsuming the particular under a concept”, that is, a determinate form of judgment. In more reflective terms the force of the example is to be found in the creativity of action that makes possible the flourishing of the culture of the community by “bringing it to a concept” and creating an example which will exert influence beyond the context in which it is originates.
The discussion of human rights lies at the centre of this book and provides an interesting though troubled example. Ferrara writes that never in our history has the need for a global rule of law based on a universalistic understanding of justice been more acutely felt. Ferrara, however, is stopped in his tracks by the perception he has of “an irreducible plurality of life forms, conceptual schemes, paradigms, traditions, and cultures”. Given this irreducible plurality of ways of being human, he maintains that our universalistic aspirations can no longer be satisfied through recourse to universal principles whose validity is antecedent to these various forms of life. Instead he argues that exemplarity offers a solution for grounding human rights within a larger conception of global justice and for reconciling universalism and pluralism in a more substantial way.
Ferrara seeks to reconcile Rawls’ emphasis on human rights as moral rights that are independently grounded and set limits on the sovereign will, with Habermas’ emphasis on the juridical character of human rights. Ferrara's solution is that human rights should be understood as legal norms with a moral content that is more or less acceptable depending on the situation. Ferrara proceeds to distinguish between human rights in general and those human rights whose violation can be “legitimately stopped [...] through the use of international military force”. To make this distinction he calls for a special convention of representatives of all the states in the world to determine a Charter of Fundamental Human Rights that are actionable and enforceable and whose violation would constitute “sufficient ground for a legitimate military intervention”. Similarly, Ferrara distinguishes between an elementary conception of global justice that focuses on the avoidance of conflict between already established political communities and a fully fledged conception of global justice that focuses on the fulfilment of humanity in its entirety. In the eyes of this reader the question remains quite how this categorical approach to distinguishing between two classes of human rights, “fundamental” and “non-fundamental”, and two conceptions of global justice, “elementary” and “fully fledged”, fits in with the judgment view of justice. Perhaps one of the difficulties Ferrara encounters flows from the opposition he constructs between “exemplary” and “principle-based” universalism. The American civil rights movement Ferrara cites seems both to appeal to constitutional principles and creatively to expand them. And Ferrara himself agrees that the situated search for self-realisation has to be married to the universal ideal of equal respect, since if it did not, it could lead to oppressive conclusions.
Ferrara writes of “the confrontation between different cultures and different understandings of human rights” (p. 137). The onus is, however, on Ferrara to show which particular human rights are a particularistic imposition of one form of life on another. Ferrara holds to the view that “we Westerners”, at least in our post-Holocaust world, have our own idea of what it might mean for humanity to realise itself and that this idea is opposed to those who call for genocide, ethnic cleansing or the systematic elimination of political dissidents (p. 137). The conception of human rights as a “Western” phenomenon is, I believe, more difficult to sustain than Ferrara assumes and, more importantly, it may be in conflict with the judgment theory of human rights itself: a theory which presents human rights as an expression of the most cogent forms of self-assertion and self-realisation in any culture or form of life, eastern or western, European or non-European. If we accept that different cultures have different horizons of meaning and that we have to engage with the different conceptions of rights they give rise to, the question still remains whether it is cultures that give rise to human rights or struggles within and across cultures.
Ferrara engages creatively with the spirit of Hannah Arendt but I wonder how far he concurs with her observation that the cosmopolitan point of view involves the capacity to make judgments not only from the viewpoint of some particular identity but also from that of a world citizen. Whilst for Arendt an enlarged consciousness can never be the privilege of any one class or nation or religion, the notion Ferrara advances is that “the idea of humanity must be neutral with respect to the locally prevailing articulations of the meaning of ‘the human’” (p. 134). The strength of his approach is to draw out the “exemplary” in particular forms of life, not simply to relativise them, but is this troubled engagement with plurality compatible with a Western notion of human rights? Ferrara's “pluralist intuitions” dictate that non-Western peoples should not be required to embrace assumptions that are not “their own”. However, the force of the example – take the recent case of a 10-year old Yemeni girl who ran away from her enforced and abusive “marriage” and appealed to some judges she found to grant her a divorce – is that the idea of human rights is very much “their own”.
The chapter on “Europe as a special area of human hope” questions both the so called “idea of Europe” approach, which grafts European identity onto some philosophical or religious concept, and the Jean Monnet approach of piecemeal institutional reform. Ferrara takes the title of this chapter from the preamble of the Constitutional Treaty of the EU and notes the constitutional innovations it promised: promotion of peace, acceptance of the ideal of the welfare state, the end of capital punishment, the right to bodily integrity, freedom of information, equality between men and women, the rights of the elderly and the dignity of all human beings. He sees in the “political DNA” of Europe, or at least the larger European countries, a sense of the in-eliminability of the enemy, a memory of the Holocaust as the embodiment of radical evil, and a consciousness that “we have to make do with what we have got” and “find a form of co-existence on the territory we have available”. In his conception of a divided West, by contrast, Ferrara argues that the public culture of the US is marked by a perception of military invulnerability, a “frontier” consciousness of unlimited geographic expansion, a sense of the superfluous character of dialogue and a belief in the possibility of achieving final victory. Ferrara knows all too well that this account of Europe might downplay the extremes of violence that marked the European 20th century (not to speak of the importance of American interventions in rescuing Europe from itself) but his belief is that a set of learning experiences has left Europe normatively intact. He reaches out to a European form of life that can be gleaned more from its current constitutional law rather than from its political, religious or cultural heritage. For Ferrara, the exemplarity of the European form of life for the rest of the world lies in the constitutional model it offers, which is said to be one of reconciling unity and diversity in a non-violent fashion. This constitutional conception of European citizenship is appealing but it would be more so if, given Europe's recent history of mass murder, the claim to special exemplarity were dropped.
All in all, such examples illustrate what Ferrara means by the force of the example but they also raise the difficulties of translating his judgment theory into an adequate practice. This book raises such interesting questions that I am reluctant to bring this short engagement to an end and I am confident that it will continue in other quarters.
