The nature of judgement

Developing his earlier accounts of the concept of judgement, the author defines it in chapter 1 as ‘an act of moral discrimination that pronounces upon a preceding act or existing state of affairs to establish a new public context’ (p. 7). In parts 1 and 2 the nature of judgement is elaborated from a multiplicity of complementary angles: as provisional or ‘imperfectible’ in its attainments (ch. 2); as differentiated in its substantive content (ch. 3); as essentially ‘reactive’ in its motivation (ch. 4); as serving the protection of ‘public freedom’ (ch. 5); as susceptible to being tempered by mercy (ch. 6); as productive of a distinctive theory of punishment (ch. 7); as generative of political authority (ch. 8); as representative of a ‘people’ (ch. 9); as grounding governmental legitimacy (ch. 10); as informing and unifying the various branches of government (ch. 11); and as calling for enactment in just relations between independent governments (ch. 12).

Justice-as-judgement is contrasted with two other conceptions central to Christian political thought: justice-as-right (ius), deriving from the Roman legal tradition, and justice-as-virtue, deriving from Greek philosophy. All are politically relevant, but the first, the ‘performative’ conception, is primary because unlike the other two it represents an ‘originally political reality’ (pp. 6–7). This strategic claim is spelled out in ways that both clarify and exceed the author's earlier accounts. Justice-as-judgement is accorded primacy because it proceeds inherently from the structural need for order within a community: ‘The prospective object of the act of judgment is the securing of a public moral context, the good order within which we may act and interact as members of a community’ (p. 8). By contrast, justice-as-virtue is ‘an ordered disposition of the powers of the soul, not of relations among and between people’. Insofar as that sense of justice is addressed, it is so indirectly under the heading of ‘conscience’ in the final chapter. And while justice-as-right certainly presupposes ‘society’ – the original site of relational and institutional orderings given by ‘natural right’– it does not yet presuppose the presence of ‘political organs’ (p. 7).

It is not, however, as if there were no manifestations of ‘community’ within ‘society’. On the contrary, ‘community’ (which will later be distinguished from ‘solidarity’, a term given a specifically political sense) is ‘the sphere of free action’ which is essentially characteristic of the prepolitical realm of the ‘social’ (p. 54). And freedom is ‘the realization of the powers of the individual within social forms’ (p. 68), coming to expression in the many communities located in society, such as household and work communities (addressed in chapter 15). And, of course, there is the unique case of the ecclesial community to which part 3 is largely devoted.

Athough it is not immediately made explicit in chapter 1, O'Donovan uses the term ‘the community’ at this point in the specific sense of ‘the community as a whole’ (p. 11), that is, an entire territorially delimited political society. The acts of judgement in which he is interested, then, are those performed by political authorities. This is not to imply that acts of judgement are not in some secondary sense also done by prepolitical communities like families or universities (or by individuals – on which the final chapter edifyingly meditates). Decisions rendered by a body such as a university examiner (a university court might have been a sharper example) are certainly acts of ‘judgment’, but they do not count as political because they are ‘relevant only to certain limited projects and ambitions’Footnote ³ (p. 11). Judgement, in its original sense, ‘is distinct from all actions that have as their object a private or restricted good’ (p. 10). It is characteristically performed in the public setting of – because it alone can respond to the common needs of – a whole political society. This is the sense in which judgement is an ‘originally political’ act, only ‘analogically’ performed by non-governmental bodies (or individuals). Every community, and every individual within it, stands in need of an agent of public judgement whose jurisdiction is universal, inclusive and (as chapter 8 spells out further) binding. ‘Political judgment prevents the fragmentation of the public space into myriad private spaces . . . The alternative to public judgment is not no judgment but private judgments, multitudinous and conflicting, frustrating each other and denying everyone the space of freedom’ (p. 23). Private responses to public wrongs, then, are mere acts of ‘vengeance’ and can never stand as the authorised judgements of a community.

It is perhaps worth pointing out that it is possible to employ the term ‘community’ in a wider, generic sense, of which ‘political community’ would then be merely one specific application. In that case, ‘judgment’ could be recognised as occurring in an original and not simply an analogical sense in many types of community, albeit with specific institutional inflections in family, university, etc. This is how the terms ‘community’ and ‘judgment’ are employed by Christian associational pluralists such as Herman Dooyeweerd, to whose account of plural human communities the author pays tribute (p. 252). Dooyeweerd speaks of each human community displaying its own internal ‘jural sphere’, i.e. that dimension of its internal relations concerned with acts of ‘judgment’.Footnote ⁴ But the reasons why the author does not take this route are systematic rather than terminological, as becomes evident in his accounts of ‘political judgment’ in chapter 4 and ‘political authority’ in chapter 8, to which I now turn.

‘The most distinctive feature of political judgment is its universal and categorically binding character’ (p. 52). The need for its universality – its public inclusiveness – has already been alluded to, but what we also learn here is that the universal reach of public jurisdiction establishes a ‘public realm’, a ‘sphere of freedom wider than any we might project from our private undertakings . . . [and] which exists antecedently to us’Footnote ⁵ (p. 55). The principal focus of the discussion in chapter 8 is the bindingness of political authority. Individuals in prepolitical society engage in many acts of ‘free self-binding’ in pursuit of their own personal or associational purposes; here, ‘self-limitation is a means to self-realization’ (p. 53). But the limitation imposed upon us by political authority, the author insists, binds us to purposes which could never be our own, even though our own purposes are safeguarded through them. Political judgements, then, have a ‘radically other-binding character; they bind those who have not bound themselves’; they are ‘categorical, not hypothetical’ (pp. 53–4).

This way of characterising the nature of political authority discloses the author's indebtedness to patristic writers who hold that political authority is essentially remedial, instituted by God as a merciful, but inescapably coercive, a response to the anarchic flailings of sin (pp. 59–60). This is a ‘providentialist’ conception, standing in broad contrast to the ‘naturalist’ conception associated with Thomism according to which political authority arises out of the rational inclinations of created social human nature.Footnote ⁶ For the former, political judgement is exclusively occasioned and justified by the need to correct wrongs, so that no exercise of judgement could be conceivable either in an unfallen or in a redeemed world. For the latter, political judgement is occasioned and justified by the need for a coordination of many particular acts toward the common good, a need arising even in the absence of sin, and, by implication, continuing after the removal of sin. Naturalism therefore challenges the author's starting assumption that free individuals could never construe political authority as implied by the imperatives of their own purposes (cf. p. 53). The naturalist view asserts, instead, that such imperatives – notably the need for their particular acts or interests to be coordinated with those of a multitude of others with whom they stand in many kinds of cooperative relations – can indeed be clearly understood as mandating the establishment of a political authority.Footnote ⁷

The author later enters a significant clarification of providentialism, one which seems to narrow the gap between his own and the naturalist view: the former ‘does not imply a special intervention of the divine to appoint a particular ruler, but a general provision of non-reciprocal relations under which we may flourish’, such that our experience of political authority is ‘deeply woven into our experience as human beings’ (p. 129). Yet the naturalist view also affirms such a ‘general provision of non-reciprocal relations’. It differs only in holding that such a provision is supplied by God through the normal outworking of universal created human nature rather than by some supplementary divine action. Whether the gap can be narrowed further is a question I return to in the final section.

As was already evident in Desire, it is O'Donovan's providentialism which explains his prioritising of the act of judgement over the institutions of judgement.Footnote ⁸ ‘Initially, we recognize authority simply as an occurrence: it appears to us in the acts of a given agent, and summons us to defend the common good. Presupposing no institutions, political authority arises as judgment is done. In Scripture we find it said that God “raises up” those through whom he exercises judgment.’ And as if to confound those who would detect a whiff of authoritarianism in this formulation, he adds: ‘The clearest example of this truth is in revolution’ (p. 128).

The limits of judgement

This, then, is the core of the author's account of the nature of judgement. His reflections on the limits of human judgement commences already in chapter 2, which is titled ‘imperfectibility’. I am not sure this is the most felicitous term to capture what the author has in mind here. For he addresses not primarily the limits imposed on human political judgement by the moral waywardness or epistemological obtuseness of those called to judge, but rather the inescapable particularity and contingency of any exercise of judgement imposed by the creaturely conditions of history and context. The latter are examples of human finitude rather than imperfection, giving rise to what might be better termed the ‘provisionality’ of judgement.

In any event, in answering the question, ‘how far is judgment possible?’ the author calls for a clear-sighted recognition of the fact that ‘[o]ur judgment is never more truthful in its correspondence to God's judgment than when it acknowledges its own severely limited capacity for truth’ (p. 22). Among the implications of this recognition drawn out here by the author, perhaps the most profound – and certainly the most sobering – is that human political authority can never deliver judgements which completely satisfy our private desire for redress. The immediate reference is to retributive justice in criminal law but the point applies to all expressions of public judgement: ‘The victim is required to accept a moment of renunciation, even disappointment, in allowing the community to give finite and limited recognition to the wrong by enacting judgment on it’ (p. 26). Punishment should fit the crime, we may say, but it cannot heal the wrong. In conceding the limits of judgement, we also confess our dependence on divine justice. Public judgement can only offer ‘a place of provisional satisfaction, where we open ourselves to the infinitely reconciling judgment of the true God’ (p. 26). For ‘we cannot condemn and redeem at once’ (p. 87).

Yet, on the other hand, the author resists a stark Lutheran dualism between the moral potentials of the agents of public judgement and those available evangelically in the church. His account of ‘mercy’ in chapter 7 treats not only the way in which it stands over against and exceeds public judgement – ‘Human judgment cannot assure mankind regeneration and new life’ (p. 87) – but also its potentially transformative impact on the internal operation of judgement, at least ‘to the extent that [judgments] respond to the witness of the church's evangelical social life’Footnote ⁹ (p. 88). Thus, ‘we cannot treat the sphere of human judgment as though it lay outside the reach of redemption, walled off from the grace of God’ (p. 100). Such a tempering of justice with forgiveness is not merely a theological interpretation supervening upon the actual conduct of judgement, but a historical achievement seen in established practices such as post-bellum amnesty, pardon, legislative self-correction and the exercise of ‘moderation’ (‘equity’) in the administration of judgement itself.Footnote ¹⁰

The transformative impact of grace upon the practice of judgement is a particularly telling instance (a redemptive one) of the fact that, subject though it is to clear limits, judgement performed by God's creatures does not take place in the dark. Indeed, even apart from the tempering impact of mercy, we judge truthfully, the author asserts, ‘when, within the limits of human understanding, we judge of a thing as God has judged of it’ (p. 16). And how might we do that? We are enabled to do so because of the light provided by ‘the generic judgments of God known to us through divine law, natural and revealed, and through salvation history’. And how exactly do they assist us? Well, among other things: ‘God's judgments disclose the categorical structure of all events, and so teach us how to appraise particular events’ (p. 17; my emphasis). We are thereby enabled to engage in ‘descriptive truth’, which is a matter of ‘appropriate predication’. Here the author briefly invokes an important concept first set forth in Resurrection (ch. 2), but which played only a minor role in Desire, namely the concept of ‘kinds’. Appraising particular events in conformity to the way God appraises them involves not mystical (or for that matter speculative) insight into the divine mind, but rather the reliable discernment of the complexity and variety of created kinds, and so of the ‘events’ whose identity is determined in relation to them.

The seemingly obvious but far-reaching jurisprudential implication from this is that ‘laws must be drafted with a certain complexity, so that courts may have sufficiently developed categories in which to form reflective judgments’ (p. 18). The content of law must be responsive to the complexity of public events, the character of which will be framed (in part) by the variegated natures of societal kinds. This complexity is deepened yet further by the additional factor of historical particularity (on which the author offers nuanced reflections, e.g. pp. 69–72, ch. 9). That is, events standing in need of public judgement are complex not only because they disclose the variegated design of created order, but also because that enduring order is disclosed through the succession of ever-changing temporal circumstances which constitute human history and which accord to each particular society its own idiosyncratic character – that singular combination of virtues, needs, demands, vulnerabilities and idolatries which marks it out as this society rather than that. Judgement has to be framed as a suitable response to this historical singularity as well as to the differentiated universal order underlying it. Thus it is not only that law must truthfully express the moral claims of that universal order, but that ‘[t]he truth of a law must also be a truth about the society in which it will function’ (p. 19). So, for example, the Mosaic law of divorce was not a falling away from the truth about marriage; rather it ‘told the truth about the Israelites’ hardness of heart’Footnote ¹¹ (p. 20).

The scope of judgement

If these are the nature and limits of the judging act and of the agent responsible for performing it, what kinds of positive governing activities are thereby implied? Or, as the question is conventionally put, what is the ‘role of government’, the scope of its legitimate authority? The author's reflections on the provisionality and the complexity of judgement mark out important constraints on the legitimate ambitions of political authorities, illumining this question negatively. His positive statement of the concrete contents of those ambitions begins to emerge in chapter 3 where he elaborates on the concept of justice-as-right, in chapter 4 where the general nature of ‘political judgment’ is set forth, and in chapter 6 where he reflects on what it is that political authority ‘bears’.

The author's distinctions between the terms ‘political’, ‘public’ and ‘private’ in chapter 4 are instructive here (pp. 55–6). ‘Political’ activities are those relating directly to government (and not just any institutional context); such activities defend the common good, but reflexively (i.e. in response to other activitiesFootnote ¹²). ‘Public’ activities are those which pursue the common good directly, apart from government. ‘Private’ activities are those which ‘serve a restricted sphere of communication’, only indirectly promoting the common good.

The salient conclusion – a key point, the author notes, at which Christianity diverged from classical political thought – is that ‘public activity is not restricted, and often better not restricted, to political means’ (p. 56). The role of government is irreplaceable, but meets its boundary in the roles presumptively reserved to individuals and non-governmental associations, and occurring in the space of social freedom. ‘The competence of any political authority is limited both by the rightful competence of other political authorities and by the proper immunity of social bonds to unwarranted political interference’ (p. 136); thus ‘not everything that ought to be done by someone ought to be done by governments’.Footnote ¹³

O'Donovan calls this ‘the reactive principle’: political judgement ‘is a response to wrong as injury to the public good’Footnote ¹⁴ (p. 59). While it may be an overstatement to suggest that ‘the reactive principle is one and the same with the anti-totalitarian principle’ (p. 60), it is clear that the former does generate a powerful version of the latter.Footnote ¹⁵ On the other hand, wrong is not only the necessary condition for government action, it is also the sufficient condition: there are no spheres of social life in principle beyond the reach of public judgement since all can be sites of substantial public wrong (p. 62). Thus the author plausibly denies that the reactive principle implies the libertarian maxim of ‘minimal government’, for ‘we are not bound to a narrow or restricted concept of what injurious wrongs may require defense against them’ (p. 61). For example, not only will public judgement address existing public wrongs, it will also anticipate likely future wrongs, and will therefore be both reactive and ‘prospective’ (p. 62, cf. pp. 200–7). At least some of the extensive interventions by modern governments in education or the economy may find their justification in this possibility.Footnote ¹⁶

In engaging in such activities, government fulfils its mandate to defend the ‘common good’. This is not a defence of the aggregated ‘rights’ of individuals or associations (though it will presumably include the legal specification of these) but, in the first instance, a defence of the ‘right of the community’, its ‘sphere of social communications in which each member communicates within the whole’ (p. 139).Footnote ¹⁷ A closely related second dimension of the common good (which cannot be considered here) is the defence of a community's particular historical identity, its ‘tradition’ (cf. pp. 160–1).Footnote ¹⁸ These two dimensions of the common good serve as the essential grounds of political legitimacy, which then can be said to attach to ‘those who, embodying the identity of a community, enact right on its behalf’ (p. 140). Or, more fully: ‘Political authority arises where power, the execution of right, and the perpetuation of tradition are assured together in one coordinated agency’ (p. 142).Footnote ¹⁹ We encounter here, then, an important amplification of the nature of political authority directly relevant to its scope.

More specific treatments of what all this means for the scope of the governmental task appear in the context of a discussion of justice-as-right in chapter 3. The agents of public judgement are not mandated to seek a comprehensive realisation of justice-as-right; that would lead to totalitarianism. Yet, in rendering judgement, they must necessarily be guided and constrained by the imperatives of justice-as-right, which justice-as-judgment ‘presupposes’ (p. 31). Justice-as-right is captured, in biblical language, in the term ‘righteousness’; in the language of Plato and Aristotle, as ‘general justice’. It is ‘the successful determination of our ways in the light of God's law’ (p. 31). Invoking Grotian language, the author defines it as that which is ‘consistent with the nature of a society of rational beings’ (p. 31). It is the substance of God's universal law – the mandates of ‘rational society’– which supplies the positive contents of right action (p. 32).

O'Donovan clarifies such content by means of an illuminating discussion of the concept of equality, where further ambitious implications for government action are drawn. Paying tribute to Aristotle's important recognition that equality cannot be reduced to its ‘arithmetical’ expression but also requires the notion of ‘geometric’ proportion, the author nevertheless finds fault with his account of distributive justice. Taking aim also at great swathes of modern political thought, the author charges that an abstractly egalitarian conception of justice generates either ‘bureaucratic’ or ‘revolutionary’ imperatives, in which ‘equality-arguments become the politician's alchemy, producing the gold of judgment from the straw of non-committal stances’. Such arguments ‘create the illusion of settling questions justly without needing to determine the truth of them’ (p. 33). And such ‘truth’, we have already been told, is arrived at by discerning the claims of the creator's law. O'Donovan finds the Grotian term ‘attributive justice’ best able to capture the sense in which justice-as-right involves a suitable attending to and responding to the truth of the creator's differentiated societal design, a design which points us to the ‘fitness’ of certain actions to certain situations.Footnote ²⁰ ‘Attributive justice, then, comes in innumerable forms corresponding to the innumerable types of action we may prudently undertake.’ ‘Judgment’ has already been defined as a dynamic, creative intervention rather than as a state of affairs; it can now be said that ‘the attributively just judgment gives appropriate expression to the moral situation by undertaking a new act. It answers the circumstances by representing them in innovation’ (p. 40).

Not surprisingly, we are not presented with a full panorama of what types of innovative action might be called forth by just attribution.Footnote ²¹ We are told, pointedly and in my view compellingly, that ‘equal treatment’ will normally not be what just attribution demands (a caution consistent with the author's earlier defence of the extensive scope of non-governmental contributions to the common good). For ‘[a]ttributive justice elaborates differences’. And since ‘differentiation is the law of every social organism’, a universal realisation of equal treatment would ‘annul the created forms in which the elaboration of human society is possible’ (p. 42).Footnote ²²

We are, however, offered a challenging analysis of two specific senses in which just attribution does call unequivocally for equal treatment among individuals. Equality, it turns out, is not a ‘principle of justice’ at all but something much deeper. It is ‘an aspect of the doctrine of creation. It locates every human being equally to every other as one summoned out of nothing by the creator's will, one whose life is a contingent gift, created for fellowship with others and answerable to judgment’ (p. 41).Footnote ²³ Human beings are therefore entitled to positive equal treatment ‘at key points of threat to human existence, where the only relevant fitness to be acknowledged is the minimal fitness for bare human existence itself’ (p. 43).

Equality of treatment is ‘unqualifiedly’ mandated, first, ‘on the threshold of death’, so that, for example, differential social roles must play no part at all in the allocation of acute health care. It is also mandated, second, where humans stand ‘on the threshold of social exclusion’, that is, where they ‘lack essential resources to participate in social communications as such’ (p. 45) – refugees, for example, who require basic resources such as provision for resettlement and educational opportunities to enable a return to independence. The discussion at this point occasions a valuable definition of ‘poverty’ as ‘insufficient command of material resources to take a part in the communications of society, so that one's role is impeded or denied altogether’(p. 45). Here measures towards ‘equal distribution’ are indeed uniquely and urgently mandated, even though they are not to be thought of as a universal response to poverty, or as pursuant to the ‘chimerical’ idea of ‘equality of outcome’ (p. 47).Footnote ²⁴

Questioning ‘judgement’

The multilayered and interlocking analyses presented in this instructive and impressive book raise numerous important questions. I have gestured towards several in passing, but in conclusion let me simply pursue just one.

The author's ‘providentialist’ conception of the origin of political authority presents a striking challenge to most contemporary Christian understandings of the concept. Yet it leaves an unsettling aura of mystery around the circumstances of political ‘foundings’. This, one presumes, is intentional. Indeed, the author proposes that our encounter with political authority ‘resembles our confrontation with the divine. Like God himself, political authority is peremptory’ (p. 134).

Now, on the one hand, it is certainly valid to say that ‘[t]here can be no sensible deliberation as to whether we shall or shall not have such a thing as political authority’ (p. 128). This claim O'Donovan rightly levels against modern social contract theories which imagine the fiction of a prepolitical state of nature out of which authority is then supposedly conjured by a collective agreement of human wills. It was already evident in Desire that the author's main intention in proposing a providentialist conception was to resist the hubristic thought that political authority is nothing more than a human artefact:

O'Donovan asserts that that political authority is something we simply ‘stumble upon’ (p. 128). But what possibilities for critical assessment does this permit? On the one hand, we hear, in the context of a discussion of political identity (‘tradition’), that having such an identity ‘means accepting the contingent determination of one's society by the decrees of God's historical providence, which allows no justification or criticism’.Footnote ²⁶ If this applies not only to our inherited traditions but also to our extant rulers, this might seem to imply the unwelcome conclusion that any successful seizure of a territorial monopoly of coercive force is a prima facie candidate for legitimate political authority, and that, however much it may be abhorred, it should be received by those subject to it as a providential gift.

Yet, on the other hand, the author is, as already noted, quite clear that there are substantive normative criteria for the legitimate holding of political authority: the authority must recognisably represent the community's tradition, and it must effectively perform public judgement on the community's behalf. Thus, opening his chapter on ‘legitimacy’, he writes:

So it is the effective discharge of representative judgement that counts in legitimation, not the propriety (or not) of the constitutional mechanism by which the claimant to authority came to possess it.Footnote ²⁷ The interest of modern political thought, the author holds, became unhelpfully narrowed down upon this procedural question, coming to insist, moreover, on one specific procedural test, namely popular election. His aim, then, is to offer a ‘corrective to an account of constitution which depends wholly on legitimate entitlement’, and to direct us ‘to the functional realities of how judgment is practiced . . . so shifting the burden of proof away from appeals to legitimating events to the success with which justice is in fact done’. Such a view ‘leaves the last word in legitimation to divine providence: if we have functioning government, God has provided for our needs!’ (p. 189). While he presents a profound affirmation of certain representative procedures (which I cannot examine here)Footnote ²⁸, he cautions that:

Some critics will no doubt baulk at this relativising of procedures of constitutional legitimation in comparison to criteria of substantive legitimacy. They will repudiate the view that the mere effective performance of public judgement is a sufficient condition to conclude that there has been a divine authorisation of a performing agent, insisting that the means by which an agent comes to exercise public judgement must also be consistent with divinely established norms; in other words, that constituting procedures are themselves a substantive part of attributive justice. O'Donovan's critical engagement with this ‘constitutionalist’ line of thinking is instructive, though not conclusive. For while the standing challenge to ‘constitutionalism’ is to demonstrate exactly what those divinely established procedural norms are (and that is no easy task), the question left unresolved by O'Donovan's account is whether a view claiming that an act of providence ‘allows no justification or criticism’ can after all mount a compelling normative critique of unjust seizures of power.Footnote ³⁰

Is it possible, perhaps, that the providentialist view could accommodate this point? Suppose we say that one feature of the ‘general provision of non-reciprocal relations’ providentially supplied by God could be a widespread popular recognition that political authority, while necessarily ‘non-reciprocal’, should be acquired legitimately. The author quite rightly asserts that ‘[r]esponsibility for ascertaining that the [particular] demand [of political authority] is duly authorized belongs inalienably to those who must obey it’ (p. 137). Why not go further and say that the responsibility for ascertaining whether the possession of political authority itself is ‘duly authorized’ also belongs to those subject to it?Footnote ³¹

At the start of this review I posed the question whether contemporary liberal citizens, even Christian ones, have any inclination at all to benefit from the ‘ancient role’ of public education which O'Donovan attributes to theology. While it seems highly problematic today to seek any formal public acknowledgement of that role, I hope the foregoing discussion at least suggests that diffusing the political wisdom contained in this book into our society's political thinking, through whatever appropriate channels are available, would at least help us make better sense of our current pathologies.