In this original monograph William Lucy takes a fresh look at some aspects of the relationship between law and morality that have not attracted much attention in recent years. Though most of the current controversies over this complex relationship focus on questions such as whether morality has a necessary place in law and whether law has its own inherent value or is merely a means to fostering other values, Lucy's jurisprudential endeavour begins at a later stage of the inquiry. It explores whether a mode of judging human conduct that he places under the name law's abstract judgement, and considers to be typical of law (or at least of law in liberal polities), contributes to law's pursuit of four values: fairness, dignity, equality and community.
The argument proceeds at two levels, which are discussed in conjunction with one another throughout the book. This is because law's abstract judgement plays a key role at both levels. At the first level, the argument is intended to assert the existence, though admittedly to varying degrees, of a normatively significant intertwinement between law's abstract judgement and the four values, with each value being discussed in its own right. At the second level, the argument addresses and refutes, though not without concessions, charges against law's abstract judgement by a critique that either denies it moral worth or even regards it as morally flawed and potentially detrimental to a service that law could otherwise render to moral and political aspirations.
Law's abstract judgement is a rather opaque concept. Chapter 1 clarifies it from a neutral viewpoint, but also introduces the reader to the perspective of its critics. In brief, law's abstract judgement epitomises the fact that “law judges its addressees by reference to general and objective standards equally applicable to all” (p. 4). The criticism that law's abstract judgement attracts is that a law-governed evaluation of the conduct of law's addressees on the basis of abstract criteria, in size intended to fit all, neglects morally weighty considerations attached to the particularities of individuals as well as to their circumstances and therefore often produces overly rigid, insensibly detached, judgemental and, more broadly, morally-impaired appraisal of action.
This chapter also showcases the author's defence of law's abstract judgement to be followed in the rest of the book, but is quite lenient with the critics. Question-begging assumptions of their complaint against law's abstract judgement could have attracted further criticism. One such assumption is the consideration of abstract judgement as a distinctive feature of law's judgement, when abstract judgement is, in fact, present in several rule-governed yet non-legal spheres, where people's conduct is judged on the basis of their capacity as members of a collective or simply as role-holders, such as in social customs, religious or managerial settings, codes of practice, etiquette and, arguably, any level of action evaluation beyond the strictly interpersonal sphere.
Chapter 2 promisingly intensifies the rebuttal of the critique of law's abstract judgement. Here the focus is on the critique's contention that the moral cost of judging the specifics by reference to abstractions in law finds its primary manifestation in law's allegedly morally limiting consideration of its various and variant addressees as indistinctive instances of the abstracted concept of a legal person. In his defence of the positive normative implications of law's production and use of this concept, Lucy introduces an insightfully drawn distinction between the concept of a “person as presupposition” and the concept of a “person as consequence” (p. 37), which allows him separately to address two distinct objections against the status of personhood in law.
The normatively appealing abstractedness of the person as presupposition is defended as a presupposition of the consideration of law's addressees as subjects of reason and the capacities of agents that make them responsive to rules. The rejection of the charge that the concept of a legal person is stringent and one-dimensional is performed through an appeal to the different types of agency that reflect the subject-specific rationale of different areas of law. The fact that both the person as presupposition and the person as consequence are effectively understood as assumptions of law's abstract judgement (p. 76) renders their elucidation a matter of the mapping of law's abstract judgement, and not of conclusively advocating it. However, their analysis prepares the ground for the exploration of links between law's abstract judgement and a range of moral values that spans the remaining four chapters.
In ch. 3, elements of legal doctrine as practised through adjudication are explored more extensively than in any other part of the book. As such, ch. 3 is worth closer attention, not least because the monograph generally identifies the courtroom as the main site of law's institutionalised but possibly morally compromised handling of a tension between general and particular considerations. More specifically, the chapter is intended to rebut the charge that law's abstract judgement produces unfairness. It counters three arguments in support of this charge: the responsibility argument (instantiated by the claimed wrongness of judging a learner driver by a competent driver's standards, as in Nettleship v Weston [1971] 2 Q.B. 691), the impartiality argument (exemplified by a charge of cultural bias against a court's conviction of a woman practising controversial rituals that are, however, widespread in her community, as in R. v Adesanya (The Times, 17 July 1974), and the argument from mercy which blames the rigid interpretation of the law for failing to account for equitable ideals that are apposite to morally distinctive cases.
Considering that the rebuttal of the responsibility argument concerns outcome responsibility and the rebuttal of one branch of the impartiality argument concerns outcome impartiality, it would be fitting to view these arguments as criticising law's abstract judgement for injustice rather than for unfairness. After all, it is the claim that law's abstract judgement fails to give each person her or his due, in light of her or his own circumstances, rather than to eliminate favouritism and discrimination from rule-based processes under the law that law's abstract judgement critics appear to complain about.
In this spirit, judges’ fidelity to law could have been further defended in terms of the morally tall order of corrective justice; this would have made it unnecessary to advance the doubtful argument that adjudication is inevitably judgemental (p. 100). Furthermore, instead of subscribing to the consideration of the notion of capacity as a necessary condition for responsibility, which is also championed by the critics of law's abstract judgement, one could invite its defenders to raise the bar of moral demandingness and side with defenders of “duties to succeed”; that can be regarded as both fitting and justifying key institutions of responsibility-attribution in law (such as, strict liability).
The last three chapters discuss connections between law's abstract judgement and values associated with political morality. In this regard, these chapters also explore themes from public law and human rights. Dignity and its links to law's abstract judgement are the topic of ch. 4. Though more broadly acknowledged in the recent literature on the philosophical foundations of the rule of law than law's abstract judgement, dignity is no less opaque a concept. To a great extent, the opacity is dispelled through Lucy's illuminating distinction between the value conception of dignity and its status conception. The former encapsulates the second formulation of Kant's categorical imperative, while the latter is inspired by Waldron's notion of dignity as equality before the law and, more precisely, as equal respect to each one of law's addressees in her capacity as an autonomous normative agent.
Lucy argues that both conceptions of dignity are embedded in the concept of law's abstract judgement. It is easier to establish this regarding the status conception. When it comes to the value conception, he turns to current reinterpretations of the Kantian version of dignity that conceptualise it as a person's worth that should remain unconditional, in the sense of it being non-dependent upon contingent characteristics. This approach to the value conception makes the link between dignity and law's abstract judgement more straightforward, but also confines the scope of the argument to a minimalist defence of law's abstract judgement. So understood, the argument may well suffice to establish that the “moral value [of law's abstract justice] cannot be zero” (p. 163), but does little to overturn the critique of law's abstract judgement as less morally comprehensive than a judgement tailored to the particulars.
The advocacy of law's abstract judgement gains strength and width in ch. 5, a chapter on equality. Claims in favour of the compatibility of substantive equality with law's abstract judgement dovetail with ideas put forward in the previous chapter, in light of a carefully endorsed complementarity between dignity and equality. Law's abstract judgement is considered as a meeting point for both these values. Chapter 5 is the most directly engaged with ongoing debates in political philosophy. It celebrates theoretical inquiries into justice as integral parts of the examination of the nature of law. In doing so, Lucy espouses and contributes to Dworkin's liberal egalitarianism through championing a version that insists on the right of law's addressees to equal concern and respect without yet neglecting the normative gravitational force of an institutional architecture that may undercut bolder redistributive claims.
This approach to equality allows law's abstract judgement to withstand the challenge posed by its critics when such a challenge comes coupled with a defence of a purely particularistic judgement (p. 198); but it may encounter difficulties if the model of judgement offered as an alternative to law's abstract judgement presents itself as an intermediate model that bridges the gap between abstract and particularistic judgements or embraces the former through allowing for principle-driven exceptions in favour of particularism. The chapter also anticipates possible objections from “luck egalitarians”. It handles them through allowing for a further conception of equality (“the social and political ideal of equality”) that honours some demands for distributive justice, in the footsteps of Nussbaum's capabilities approach regarding the determination of a currency for a just distribution (p. 191).
The last major political value canvassed as a correlative of law's abstract judgement is community, the subject of ch. 6. It comes as no surprise that some of the most original claims pursued in the monograph are included in this chapter. This is not only because the proposed connection between community and the normative requirements of law's abstract judgement has been little explored in the relevant literature. It is also because the obligations of mutual support and forbearance, along with expectations for a solidarity-driven engagement with fellow community participants, that are generally considered to stem from life in community, may seem too normatively thick to be encompassed in the scheme of formal justice that law's abstract judgement appears to furnish.
Lucy's argument steers clear of such concerns by drawing a distinction between a conception of community that allows community belonging to be dependent on citizenship, and a conception of fraternity that echoes Dworkin's commitment to community belonging understood as membership in a community of principle. The monograph critically discusses the thinnest version of the citizenship conception (pp. 224–25) and argues in favour of the potential of law's abstract judgement to be underlain by the fraternal conception. Again, this amounts to a rather temperate defence of law's abstract judgement against its particularistic-minded critics: the moral credibility of any version of the citizenship conception may be undermined by a level of arbitrariness caused by the heavy involvement of states in citizenship obtainment processes, while the fraternal conception may remain an unfulfilled potential.
Overall, the monograph provides a modest defence of law's abstract judgement. It may therefore be considered by some not to have optimised the exploration of what, from Lucy's refreshingly innovative perspective, could be described as the potential of law's abstract judgement not only for moral awareness, but also for moral comprehensiveness. In any case, Law's Judgement achieves a significant contribution to our understanding of normative abstractions inherent in juristic judgements and of their links to an array of values, while it examines the remarkable scope of this array through the lens of a highly inquisitive and invariably vigilant jurisprudential investigator.
