Why We Must Judge
It’s not all relative: Without judgment, a society loses its sense of justice.
In 2004, The New York Times reported that numerous captured Iraqi military officers had been beaten by American interrogators, and that Major General Abed Hamed Mowhoush had been killed by suffocation. The Times has also published the stories of the so-called “ice man” of Abu Ghraib, Manadel al-Jamadi, who was beaten and killed while in U.S. custody, his body wrapped in ice to hide evidence of the beatings; of Walid bin Attash, forced to stand on his one leg (he lost the other fighting in Afghanistan) with his hands shackled above his head for two weeks; and of Gul Rahman, who died of hypothermia after being left naked from the waist down in a cold cell in a secret CIA prison outside Kabul. And the paper has documented the fate of Abu Zubaydah, captured in Pakistan, questioned in black sites and waterboarded at least 83 times, before being brought to Guantanamo, as well as the story of Khalid Shaikh Mohammed, waterboarded 183 times.
What was missing from these stories, published in the newspaper of record? A simple word: torture.
The omission is standard practice at the Times, just as it is at The Washington Post, NPR, and most U.S.-based media. Clark Hoyt, formerly ombudsman at the Times, defended the refusal to use the word torture and the decision to employ the language of “enhanced interrogation techniques,” a euphemism pioneered by the Bush Administration and embraced by the Obama Administration. For Hoyt, whether banging someone’s head against stone walls to elicit information is torture is in the eye of the beholder: “This president and this attorney general say waterboarding is torture, but the previous president and attorney general said it is not. On what basis should a newspaper render its own verdict, short of charges being filed or a legal judgment rendered?” Alicia C. Shepard, ombudsman at NPR, calls torture “loaded language.” To name simulated suffocation torture means to “unilaterally make such a judgment,” something Andrew Alexander, ombudsman at The Washington Post, argues journalists must avoid. In short, since the definition of torture is a matter of debate, we can’t publicly speak of torture. To judge an act to be torture is beyond our capacity and outside our jurisdiction.
Judgment is in short supply, and not just in the media. President Obama has made it clear that he has no interest in prosecuting and determining the responsibility of the torturers. As he said in April 2009, “This is a time for reflection, not retribution.” “Nothing,” he said, “will be gained by spending our time and energy laying blame for the past.” And so, seven years after the first death by torture in the war on terror, six years after the photos from Abu Ghraib, two years after Vice President Dick Cheney admitted that he personally authorized waterboarding and other techniques of torture, and two years after Barack Obama was elected, the vast majority of those who conceived, justified, and carried out the U.S. policy of torture—acts that are inhuman, unjust, and illegal by both international and domestic law—have not been accused, tried, or judged. Eleven low-ranking Army personnel were court-martialed after Abu Ghraib. For the murder of Major General Mowhoush, Chief Warrant Officer Lewis Welshofer Jr. was convicted of negligent homicide, but given no jail time and not even discharged from the Army. Aside from these scapegoats, the vast majority of those involved in the torture regime continue to work for the government. While Obama worries about a rush to judgment, our real problem is that we have abdicated our right and our duty to judge at all.
In spite of Obama’s call at his inauguration for a “new era of responsibility,” we are suffering a culture-wide crisis of judgment. And not just when it comes to torture. Those who employed fancy lawyers to evade taxes are offered amnesty instead of judgment if they return their money to the United States. We frequent restaurants knowing that affordable food is subsidized by underpaid illegal help in the kitchen and we pay nannies and construction workers in cash, rationalizing our violation of both the law and our moral beliefs that everyone deserves health care and other benefits. In academia, professors have so fully abandoned their duty to judge that more than 50 percent of the grades at Harvard University are in the A range. And no Wall Street firm that has received a bailout has fired its CEO.
There are few better poster children for our crisis of judgment than Ken Lewis, the CEO who drove Bank of America to insolvency. Lewis was not fired, nor has he been compelled to recoup the billions in bonuses he authorized for Merrill Lynch executives in 2008, the year Bank of America acquired the all but bankrupt Merrill Lynch. Indeed, all that “Pay Czar” Ken Feinberg demanded was that Bank of America limit the average size of bonuses in 2009 to $6.5 million. And when Lewis himself finally resigned, he left with his own $125 million golden parachute, on top of the many millions he took home while bankrupting his company during the boom years. While everyone acknowledges that “mistakes were made,” as Ronald Reagan might have put it, no one, it seems, is responsible.
The Fear of Judging
We must face our unwillingness to judge. This fear of judgment is all too recognizable—the political thinker Hannah Arendt was writing about it in the middle of the last century. In her essays and books, Arendt gave voice to what she called the “fear of passing judgment, of naming names, and of fixing blame—especially, alas, upon people in power and high position.” Reflecting upon the anger caused by her own judgment of the Judenräte—the Jewish community leaders who cooperated with the Nazis in the hopes of saving themselves, their families, and others—Arendt was struck by the fear and anger that judging others provoked. She worried about the fear of judgment underlying the uproar against Rolf Hochhuth’s play, The Deputy, which accused Pope Pius XII of silence in the face of the Holocaust. And she chafed at the outpouring of angry letters accusing scholar Hans Morgenthau of un-Christian hubris for writing an essay in The New York Times Magazine pointing out that Charles Van Doren was wrong to cheat on the quiz show “Twenty One.” In all of these instances, Arendt was struck by the “huge outcry the moment anyone fixes specific blame on some particular person instead of blaming all deeds or events on historical trends or dialectical movements.” Instead of judging the wrongdoers, the people judged those who had the temerity to judge.
At the root of our problem with judgment is the undeniable victory of relativism over truth. Judgment requires, above all, what Kant called disinterestedness and what Arendt called enlarged mentality, seeing the question from another’s point of view. While it is singular, judgment is not mere personal taste or preference. To judge is to speak the truth, a truth that must always appeal to a common sense beyond one’s own prejudices. At a time when tolerance trumps truth, judgment’s claim to the truth leaves it vulnerable to mockery and derision.
Our unwillingness to judge is also part and parcel of liberalism itself. There is, as Arendt has written, a great temptation to explain away evil and perversion by means of liberal rationalizations. Liberals are so prone to suspend judgment in the name of tolerance that they are susceptible to a values vacuum. To sympathize with the plight of the poor is unquestionably humane. But well-meaning liberal paternalism that insists the poor be hidden in shelters and offers up compassion in the form of a dehumanizing bureaucracy deprives those we are trying to help of the basic respect of being free and independent persons. To worry about our impact on our planet and expose corporate irresponsibility shows farsightedness. But to hope that politicians will solve the problem while we drive our SUVs, swim in our heated pools, and run our air conditioners reflects a profound unwillingness to judge ourselves and those around us.
The rise of social science is yet another ground for our crisis of judgment. The more that social events and personal actions are understood to be calculable, predictable, and manipulable through norms and rules identified by sociologists, economists, and political scientists, the less responsible people are for their actions. To say that someone commits a crime because he grew up poor with alcoholic parents or has a genetic predisposition to violence is to challenge the very assumption of personal responsibility that underlies judgment. If what we do, what we read, and what we buy—who we are, in other words—can be plotted on a bell curve and reduced to “science,” we trade the rarity of action for the normalcy of behavior. And the diminished responsibility of rational actors leads to an unwillingness to judge those who are clearly responsible for what they do.
Finally, the retreat from judgment is a corollary of the overwhelming belief in equality that marks the modern era. Judgment, as thinkers like Arendt and Friedrich Nietzsche remind us, presupposes pride, or what once was called the dignity of man. Only one who believes oneself right can judge another; thus judgment presupposes a certain authority and superiority. The judge must possess a feeling of distinction, what Nietzsche called a “pathos of difference,” in order to arrogate to himself or herself the right to judge. Proffering reasons for one’s judgment—the mark of rational judgment in modern times—is a sure sign of weakness, an admission that one suffers from a feeling that he or she lacks the right to judge another. Since Justice Louis Brandeis first introduced social science evidence into legal opinions, judges have sought to buttress their judgments with rationalizations and empirical support intended to lend objective and scientific authority to particular judgments. But only one who is unsure of his or her right to judge feels the need to offer statistics, studies, and rationalizations to justify that judgment. It is precisely this arrogance of the judge that is increasingly absent in our age.
From the fact of such a deeply ingrained distrust of judging, Arendt drew an essential lesson: namely, that morality in our times cannot be taken for granted. In the absence of judgment, and amidst doubt about the possibility of justice, she argued that we need to foster, support, and embolden morality.
To keep the idea of justice alive does not require curricula in ethics or a return of the catechism. Morality, as Immanuel Kant wrote in his famous footnote responding to Professor Sulzer, cannot be taught through rules in a classroom. Only by example can one be inspired to emulate moral action. Examples, as Kant saw, “are the go-cart of judgment.” Telling someone that it is wrong to torture and even providing rational arguments will rarely sway another. But decisively resisting the desire to employ torture as a means, or courageously saying no to an order to torture, will do more to inculcate a moral duty in others than any amount of ethical education. Similarly, bringing someone who has tortured to judgment will inculcate a common sense of the wrongness of torture more meaningfully than any amount of philosophizing and moralizing.
Arendt offered just such an example of judgment at the end of her book Eichmann in Jerusalem, where she argued that Eichmann must die even though he had not broken a specific law. Arendt’s judgment was stark and harsh: “Just as you supported and carried out a policy of not wanting to share the earth with the Jewish people,” she wrote, “we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.” Arendt criticized the Israeli court for basing its judgment on ex post facto laws. Eichmann needed to be judged and executed, Arendt writes, not because he was a bad person—after all, she called him a banal bureaucrat—nor because he broke laws, but because justice requires that evil acts be judged and punished. Such an act of judgment assumes the pride of knowing oneself to be right. It rejects Eichmann’s claim that where all are guilty, none are, a rationale rooted in a social scientific worldview. It refuses to say that understanding Eichmann’s normality excuses him. Rather, it announces a truth.
The importance of Arendt’s judgment of Eichmann rests on her conviction that such an act was necessary to affirm our common-sense belief in judgment itself. At a time when religion and tradition no longer buttress universal or public claims to truth, acts of judgment claim that we all must agree that this bad thing was wrong and it must be punished. It is in judgment that we singularly and together make sense of what is new, challenging, and horrible in our world.
Jury Trials and the Space of Judgment
The crisis of judgment in our time has become so pronounced that it has come to affect the one place in which it should be most at home: the law. Consider the paradigmatic space of judgment, the trial, which focuses attention on a person and his act. It is in a courtroom that the fear of judgment can no longer hide behind the obfuscations of systemic blame, bureaucratic irresponsibility, and a discomfort with judging. In mass society, where we too easily imagine ourselves and others to be mere cogs in a machine that is beyond personal control, the trial resists what Arendt calls the “almost automatic shifting of responsibility that habitually takes place in modern society.” In a courtroom, the question is: Did Ken Lewis defraud his shareholders? Did Dick Cheney authorize torture?
The trial, and specifically the jury trial, is, as Alexis de Tocqueville understood, one essential incubator of democracy. The jury trial is the only space in which most people will ever be forced to sit in judgment of their fellow citizens and declare them innocent or guilty; or, in a civil trial, to judge whether one party’s wrong requires compensation. The experience of being a juror, Tocqueville saw, inculcates in all citizens the habits of mind of the judge; it “spreads to all classes respect for the thing judged and the idea of right.” Juries, he wrote, are “one of the most efficacious means society can make use of for the education of the people.”
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