In Sensible Judgement 1409454479, 9781409454472

Table of contents :
Cover
Contents
Preface
Acknowledgements
Abbreviations
Introduction
Part I: Achieving Judgment
1 In Sensible Judgment
2 Deemed and Sentenced
3 Dissenting Judgment
Part II: Making Judgments
4 Judging as Right
5 Living on the Premises
6 Inferring, Judging, Arguing
Part III: Questioning Critique
7 Sting of Reason
8 Mystique of Critique
9 Enigma Absolute
Part IV: Moving Establishment
10 Nomadic Judgment
11 Chasing After Modernity: Some Friendly Words for the Postmodern
12 When to Forget
Bibliography
Index

Citation preview

IN SENsiBLE JUDGEMENT

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In Sensible Judgement

MAX DEUTsCHER Max Deutscher, Emeritus Professor, Honorary Research Associate, Macquarie University, Australia and Honorary Professor of Philosophy, University of Queensland, Australia.

First published 2013 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © Max Deutscher 2013 Max Deutscher has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Deutscher, Max, 1937In sensible judgement. 1. Judgement. 2. Reason. 3. Ethical absolutism. I. Title 121-dc23 Library of Congress Cataloging-in-Publication Data Deutscher, Max, 1937In sensible judgement / by Max Deutscher. p. cm. Includes bibliographical references and index. ISBN 978-1-4094-5447-2 (hbk) 1. Judgement (Logic) 2. Judgement. 3. Thought and thinking. 4. Will. I. Title. B181.D48 2013 121--dc23 ISBN 9781409454472 (hbk) ISBN 9781315588179 (ebk)

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Contents Preface   Acknowledgements   Abbreviations   Introduction  

vii xi xiii 1

PART I AcHiEViNG JUdGEMENT 1

In Sensible Judgement  

13

2 Deemed and Sentenced  

35

3 Dissenting Judgement  

49

PART II MAKiNG JUdGEMENTS 4

Judging as Right  

65

5 Living on the Premises  

81

6

Inferring, Judging, Arguing  

97

PART III

QUESTiONiNG CRiTiqUE

7

Sting of Reason  

111

8 Mystique of Critique  

133

9 Enigma Absolute  

149

PART IV MOViNG ESTAbliSHMENT 10 Nomadic Judgement  

171

11 Chasing After Modernity: Some Friendly Words for the Postmodern   187

vi

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In Sensible Judgement

When to Forget  

201

Bibliography   213 Index219

Preface As he finds himself on the path to his Inferno Dante says, ‘In the middle of the journey of our life, I came to myself in a dark wood, and the straight way was lost’. The hazard I apprehend is to lose my way, abandoned in the dark wood of morality’s language. In the forest of what is ‘morally and ethically’ right1 we lose our vision of the pleasures and displeasures involved in all that we do. I run this risk deliberately, however, since the way I approach the problem of judgement must involve some trespass upon those intensely cultivated domains called ‘moral philosophy’ and ‘ethics’ (the new version oriented towards professional conduct). The trespass is necessary because there are those judgements that concern what is right and wrong. It is only as standing securely within the domain of judgement that I would lean over morality’s shrubbery to open the canopy – to prune ‘moral’ from ‘morally good’ and ‘ethical’ from ‘ethically right’ – so as to judge what is right and good, simpliciter. ‘Morally right (or good)’ or ‘ethically right (or good)’ are dead wood – the remnants of what were once live judgements of what is good and right. The ensuing story about judgement has some bearing on theories of moral language typical of the analytical tradition of moral philosophy that was established in the first two or three decades after the Second World War. If being pleased at is at the heart of what it is to judge then this has something in common with what contemporary inheritors of the tradition of analytical meta-ethics deem to be ‘noncognitivism’ – that the sentences of good and bad, right and wrong do something other than state what could be known. To approach this matter via judgement alters the terms of the debate. To judge a line of action as right is not in itself to make an utterance, whether that be a cognitive statement, an expression of emotion or the issuing of an imperative. To parody Mark Antony, were I to say that Cassius is a good and honourable man then I have come not to describe but to praise and recommend him. In saying that some line of action is right, your language is performative. You issue an imperative, a plea or a request. But the claim of my work is one about judgement rather than utterances and it is therefore not itself a theory of moral utterances. Rather, such acts are numbered amongst the many and various objects of judgement. One judges all kinds of matters – what one ought to do, but also what one can do and how it can be done. Judgement, no matter how well grounded in fact, is neither a statement of those facts, a generalisation or theory of them, on the one hand, or the expression of 1 The scare quotes indicate their use both to intensify each other and to suggest a distinction.

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emotion, or recommendation or imperative. If you are pleased at a certain state of affairs being the case then it will be relevant to recommend, request, order and so on, depending on the situation you are in. The account that emerges in this study of judgement explains something of the attractions and demerits of those ‘meta-ethical’ theories of moral and ethical language, I think. To look back at judgement from recent theories of what it is to say that something is right helps us describe what it is to judge an action or situation as right. I allude to these analytical ethical and moral theories because the terrain of this work on judgement bears the marks of generations of morality’s heavy furrows. My concern with judgement means that I must plough across that old field, but at a diagonal to its usual lines. In speaking of ‘right’ one does need some ‘right’ to trespass on that so-cultivated field of others – that domain of legality and morality. I plead in my defence that recent philosophies of ‘morals’ or ‘ethics’ have rarely used the language of judgement significantly. I enter the fields of others so as to alert the local inhabitants to this lack. We hear about our differing ethical or moral beliefs, and the extent to which reason might be brought to bear upon them. To declare something right or wrong (simpliciter) is to make a judgement upon what one is inclined to think. When analytical philosophy advances hypotheses concerning what is ‘morally’ right it tests them against our ‘intuitions’. But what is their status? Are they convictions? Are they hunches? Are these intuitions some rational or emotional perception? They are at least ours. But what are the criteria of membership for this ‘moral community?’ And who is in this position of gatekeeper, in thus speaking of ‘us’ and ‘our’ possession of these powers?

* * * This work is directed at what it is to judge and what judgement achieves. ‘In Sensible Judgement’ means that the use of intellectual rigour intrinsic to judgement involves sensibility; ‘in sensible’ also suggests how we may be insensible to the making of our judgements – which may be good ones for all that. Whether judgements appear in the grand old categories of the legal, moral, and aesthetic, or as uncategorised amongst the plethora of petits riens that we confront every day, they all involve sensibility – that we are pleased (or displeased) at something’s being the case. That is the thesis of the work. The first chapter acknowledges the continuing power of Kant’s groundbreaking work on judgement, particularly as brought into play for this last century by Hannah Arendt. It is her work that inspires me to broaden the scope of Kant’s theory of aesthetic judgement – a possibility to which she constantly alluded, but

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finally lacked the time to establish.2 I test the strongest hypothesis - that what Kant says of aesthetic judgement’s origin in pleasure can be extended to all evaluative judgements. (That, I presume, must be all judgements.) The striking discovery of the third Critique is that activity with pleasure as its modality can possess the grounds and universal scope required of a judgement whose validity lies in the public domain. Kant shows how aesthetic judgement involves taste at its very centre and yet each person’s judgement that arises from this taste must remain open to critique by the expression of the varying tastes encountered in an interacting community. Then, even while we applaud Kant’s ideal of a cosmopolitan consciousness he recalls us to the immediate pleasure we gain from what we judge to be beautiful. To attempt to escape this ‘subjectivity’ by deferring to what is preferred by a community of people with ‘good’ or ‘refined’ or ‘informed’ taste is to cease to contribute an aesthetic judgement. The demand of Kant and Arendt’s use of a common sense – their sensus communis – is not to seek security in numbers. Rather, it puts in question our acquiescence in commonly shared opinions. Then, after outlining the idea of judging as ‘sentencing’ I offer a description and some observations about the ‘Mabo’ case – the most significant peculiarly national judgement that has been made by the High Court of Australia since the federation into a nation of the colonies that became ‘states’. I seek to bring the reader further within the active field of judgement by considering the dissenting judgement in that case. If we are to think about judgement for law, politics or philosophy we need some such enlivened understanding of all that a real and complex judgement can involve. In the second section I proceed to develop, for judgements of what is right and wrong, Kant’s idea that aesthetic judgement finds its origin in pleasure. The next two chapters deal with the regressive nature of traditional attempts to ‘ground’ or ‘ultimately justify’ what we hold to be the case. These chapters prepare the way for an account of the role of forms of reason as bearing upon this being pleased in judgement. In the third section I take up the challenge posed by the thesis of the opening chapter of the book. Judgement takes the form of being pleased at, and yet, as judgement it involves intimately what we think, observe, infer, theorise and know. If we fail to take heed of that then no one will deem us to have judged well. At its worst, we shall be deemed not to have judged at all. And yet the insistence on the role of intellect and knowledge in judgement must fully take account of how in judgement we are pleased at some state of affairs – to judge is not only to conclude the reality of that state of affairs. And so the argument seesaws. If sensibility is thus involved at the heart of judgement, how can reason have a proper purchase

2  Some of the ideas on judgement, thought and the will that set the ground for the direction of this book ire to be found in my Judgement after Arendt – particularly in Parts III and IV.

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upon it?3 As part of the resolution of that tension I reconsider, criticise and partially deconstruct the tradition that reason is at the mercy of the passions – as if only they are efficacious in taking control of mind and body in action. I pursue the reality of the ‘sting’ of reason and the strength of understanding as motivating, controlling and informing the thought that is involved in judgement. Upon reconsidering the limits of ‘critique’ I conclude the section by pondering the theme of ‘absolutism’ that belongs within the cliché of ‘Platonism’. I read again and rework that allegory of Plato’s about empiricist cave dwellers and form-seeking sun worshippers. The allegory has become so often cited that it has become a cliché of thought about the absolute. I look to how the allegory deals with and then suppresses sensibility. Plato’s repudiation of poetry is integral to his celebration of the absolute and central to his metaphysics as encoding politics. The final section takes up the theme of mobility – the cultural, political and aesthetic ‘visiting’ that is essential to judgement that negotiates a way between formal absolutes and stifling parochialism. I revisit first the figure of the nomad, and then the spectre of postmodernism as epistemological anarchy that haunted the culture wars during the latter decades of the last century. I argue that respect for judgement suggests that in retrospect we should speak some ‘friendly words for the postmodern’. To conclude the work as a whole, I take up the themes of memory, forgetting and forgiveness – again, issues typical of much recent European thought. These thoughts about memorial and forgetfulness bring the work back in full circle to the opening exemplary case of judgement.4 To have force and validity within a tradition that subverts elements of that tradition, the justices of the High Court of Australia had to newly remember the past of their country. They had to remember in order responsibly to forget – to detour around and behind those legal precedents by which the nation had been wrongly shaped.

3 This has concerned those who oppose an ‘aestheticising’ of judgement and politics – Habermas, Wellmer, R. Bernstein and Seyla Benhabib, for instance, who promote judgement as ‘communicative reason’. 4 Exemplary cases of judgement are exemplary not as faultless but as demonstrating something about judgement. As controversial, with ragged edges, they enable us to move within them, to sound them out.

Acknowledgements I thank my partner Phyllis Perlstone for all her ideas and loving support. In her own work (in painting and now as a poet) as in her personal life, she shows me what judgement involves. My daughter Penelope and stepchildren Zoe, Alex, Matthew and Isabel renew my inspiration, and surprise me with what they see. I thank Macquarie University for agreeing to my ‘retirement’, and their continuing support of my writing. I thank the University of Queensland for an honorary professorship. Papers I have read there in the department of philosophy and at the Centre for the History of European Discourses have become chapters of this book. Thanks especially to Marguerite La Caze, Michelle Boulous Walker and Peter Cryle. I owe a great deal to a ‘U3A’ reading group that has been meeting for many years now in Sydney. The first book we worked through was Kant’s Groundwork, then Arendt’s Life of the Mind and after that, Kant’s second and third Critiques. Genevieve Lloyd read early parts of the book and I owe a great deal to her critical perspective, advice and encouragement. Tony Blackshield has given me invaluable advice – particularly about my treatment of the Mabo judgement. (Any errors that remain are my own responsibility, of course.) A version of the first chapter has been published in Symposium, the journal of the Canadian Association for Continental Philosophy. I thank the editor Antonio Calcagno for encouragement and sound editorial advice, and for giving permission for the present version of it to appear here. A version of chapter Seven (‘The Sting of Reason’) has appeared in Parrhesia. I read an earlier version at the 2010 conference (on ‘Affect’) of the Australasian Association of Continental Philosophy. I thank the editors for permission to use it.

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Abbreviations CJ CPR CPrR

Immanuel Kant, Critique of Judgement, trans. Werner Pluhar, (Indianapolis: Hackett, 2002). Immanuel Kant, Critique of Pure Reason, trans. Paul Guyer & Allen Wood, (Cambridge: Cambridge University Press,1998). Immanuel Kant, Critique of Practical Reason, trans. Werner Pluhar, (Indianapolis: Hackett, 2002).

EJ Hannah Arendt, Eichmann in Jerusalem, (New York: Penguin, 2006). LM LMW

The Life of the Mind, Hannah Arendt: Book One, (New York: Harcourt Brace,1978). The Life of the Mind, Hannah Arendt: Book Two.

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Introduction Judgement between the Lines I take a good deal from Immanuel Kant and Hannah Arendt on the nature of judgement as part of the life of the mind and of politics. Arendt sets up specific references to judgement and the role that it would have to play in resolving problems about the relation of thinking to willing, and the inadequacy of both of those phenomena to an account of mental life. My previous work (Judgement after Arendt) contains a more detailed account of her ideas on thinking and willing than will be found here. From that I began to work out a line of thought about judgement ­that is closely tied to the problem as she formulated it. Readers experienced in studies of Kant and Arendt will be aware of the extended discussion of her views on judgement in political life. I allude to some of this work from time to time to frame the work that I am doing. When we attempt to define judgement it appears as a ‘mysterious’ endowment, Arendt remarks. Yet judgement is a familiar business, as she demonstrates. We need to make judgements but this ‘faculty’ seems ‘mysterious’ in contrast with theorising, deducing and calculating. It is hard to normalise an account of judgement because judgement is precisely what we need in order to apply theory, deduction and calculation to events. Without judgement we could only imitate others in following rules. In making our judgements we achieve what theory, calculation and deduction cannot accomplish. We apply established principles to new cases and in ‘reflective judgement’ we set out from something individual in order to discern some principle from within that exemplary case. In that derivation we have no principle from which to make or justify our judgement. In contrast with thinking’s abstracted ‘objects’, judgement deals with the concrete realities that arise within the world as if appears to us. We judge, affirmatively or negatively, the world into which we are born (LM, 71) When we form our will or come to judge, we are engaged in something other than thinking’s activity. The objects of willing and of judging are individual matters that emerge out of the world that appears to us. Arendt’s discussion of the stance of the ‘spectator’ concerns the ‘withdrawal’ from the world of appearance that the thinker effects. The withdrawal from beneficiary interest in an issue so as to achieve impartiality in judgement is yet another stance (LM, 92). The withdrawal that judgement requires is different from what the philosopher needs in order to think. The one who judges does not ‘leave the appearing world’, but makes a partial withdrawal from involvement in the matters that have to be judged. There

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are limits to this ‘withdrawal’. The one who judges is impartial, but should not withdraw from exposure to the views of others (LM, 94, Deutscher 2007, 69–77). This distinction of thinking and judging comes to the fore in Kant, but to deal with thinking and willing Arendt has to deal with judgement ‘prematurely’. She has to use a provisional account of it (LM, 96). The ‘faculties’ are autonomous but the lines of interdependency between thinking, willing and judging are close and intricate. The metaphors by which we explain what it is to judge are drawn from taste; we draw upon different metaphors to describe thinking. The ‘noble distance’ of sight serves us a model for knowledge whereas it is the intimately private and idiosyncratic sense of taste that throws up the question of judgement (LM, 111). Judgement originates with intimate involvement and yet the other central figure for judgement is detachment. So the puzzles begin. What we use from Arendt is a profusion of hints, exemplary cases and historical proof of our need for judgement. This is her famous epigram to the volume she intended to devote to the theme of judgement: In times of a crisis in conventional values and politics, thinking, as destructive of complacency, becomes a kind of action that liberates us in using our faculty of judgement (LM, 192).

Judgement may arise from thinking but is not the same. Judging deals with particulars. Arendt describes how Shakespeare’s Richard III fails in his thinking because of his lack of judgement and she surmises that Eichmann fails in his judgement because of his lack of thought. Judging is related to thinking as conscience is related to consciousness. Judgement, made manifest by the wind of thought, does not amount to knowledge. Rather, it is the source of our ability to judge right from wrong, and the beautiful from the ugly (LM, 193).1 Arendt attends to judgement in the midst of developing her theme of thinking. She alludes to Kafka’s allegory of the ‘HE’ who stands at the junction of past and future, subject to the pressure of both. She shows how Kafka locates thinking’s calm in the eye of the storm of historical conflict within which we must judge (LM, 203). The tradition of the vita contemplativa as the highest form of life errs in using thinking as an escape from the pressures that bear in upon us from the past, and from what is looming in the future. Arendt finds Kafka congenial company. His allegory illustrates the illusion of contemplation as a life-long state, as if a higher form of being. Thinking is the vital momentary interlude where we recognise the pressures upon the will as we come to judge what has to be done. Judgement is the ‘silent sense’. In practical and moral matters it is what we call conscience, and Kant recognises its power as a special ‘gift’, recognisable particularly as we move to deal with the past, Arendt suggests. We cannot change the past so here the will is irrelevant. The past is the domain of thought, but thinking is not enough. What 1 Anything might, on occasion, have to be judged but what is right or beautiful can only be judged.

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we learn about the past puts demands upon our power of judgement as we create a coherent historical narrative. Arendt’s recognition of judgement as autonomous – not yet achieved in thinking or by willing – had emerged in her study of Augustine’s resolution of will, desire and counter-will. Arendt recalls his idea that God who is ‘eternal’ creates man in order to make a new beginning … rooted in natality. Arendt welcomes this natality as a worldly figure of creative freedom. Still, Augustine’s suggestion is ‘incomplete’ and ‘opaque’. What does the figure of natality imply? We have no choice about being born. Are we thus ‘doomed to be free?’ Can we choose to be ‘pleased with’ our freedom in natality, or else escape it by intellectualising ‘fatalism?’ Arendt says that this impasse between the fact of causality and the phenomenon of free initiative can be solved only by appeal to the faculty of judgement. This (unexamined) faculty is ‘mysterious’ in the same sense as a free initiative – a ‘beginning’ that occurs and has its consequences within the causal world of appearances. A timely word – or a revolutionary act – initiates what can be understood causally only by looking back at events after they have transpired.2 Arendt ends the second book of The Life of the Mind with a modest hope about what a discourse about judgement might give us. She says that analysis of this faculty ‘may at least tell us what is involved in our pleasures and displeasures’. Judgement in Politics and Philosophy Arendt’s Lectures In the Lectures on Kant’s Political Philosophy (Beiner 1992), Arendt spoke of how, in writing his Critique of Judgement, Kant became aware of the ‘political’ as distinct from the ‘social’ order. Written ‘spontaneously’ (compared with the two earlier Critiques) this work on aesthetic judgement contains the germ of a plant that might branch more widely. By investigating the meaning, conditions, and public dimensions of taste he showed how judgement has its own way of invoking observation, reason, inference and logical intuition. Judgement, rooted in this taste, cannot encompass the a priori moral imperative of his previous Critique. We cannot judge fundamental moral imperatives. We grasp their validity by pure reason. Judgement deals with ‘particulars’ and has validity, but only ‘for human beings on earth’. There is another employment of judgement that is broader in scope that aesthetics. To put it in my own terms: everything has arisen from natural causes. Every phenomenon may be described in terms of its originating causes and the causal relations between its inner components. Still we make our continuous assessment of what these causal systems amount to. We judge of some interacting set of molecules that it is this person with whom we converse, or quite simply 2 This observation is derived from the Lectures and many incidental statements in The Life of the Mind.

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that it is this blade of grass.3 In its broadest sense judgement is the application of principles and concepts to individual cases. In this sense, judgement is involved in the testing of scientific theories, the making of legal judgements, and in domestic morality no less than the dramas of international affairs. This is ‘determinate’, ‘determinant’ or ‘determinative’ judgement in the standard lexicon about judgement in the tradition that derives from Kant. Judgement works in the other direction also, and this fact is at the centre of the more radical hopes that Arendt had for it. How do we gain our principles? How do we check on them, and limit excessive and oppressive uses of them? From exemplary cases, we come to judgements about new principles. This is a work involving reason and learning that works without appeal to the a priori universal necessity that Kant promoted as the epitome of reason. For Kant, pure practical reason is not judgement in his sense of pure reason applied to the principles of what is right. Nevertheless, our moral declarations about people and their individual actions do involve judgement. Judgement, though it has a home in taste, has to be brought into play in social and political affairs in order that we apply moral principles to them. Furthermore, it is only by judgement that we can derive moral principles from a consideration of exemplary individual qualities and actions. There is an involved and ‘immediate’ dimension to judgement – we judge on the spot the character of what someone is doing; we judge on the run what to do in a fluid situation.4 There is also a contemplative exercise of judgement. Kant likes to say that judgement arises from purely contemplative pleasure - an inactive delight. This is because he took aesthetic judgement as his paradigm. But, asks Arendt, how can this account relate to judgement as required in our socially involved practice? In the ‘Third Session’ of the Lectures she asks whether the American and French revolutions might have woken Kant from his ‘political slumbers’. These dramatic events show that absolute universal principles discerned by pure reason cannot produce the just constitution of a state. Although the need for judgement works implicitly throughout these first two Kantian Critiques, the question, ‘How do I judge?’ does not emerge until the third Critique. There, as Arendt puts it, Kant faces the political problem of plurality. In his first Critique the concept of judgement is used, but does not become the object of analysis. In the second Critique (of Practical Reason), the demand of his moral theory for universal principles constrains his recognition of plurality as vital to political life. Nevertheless, in the long process of the three Critiques we do see Kant, fitfully, making his departure from one of Plato’s prejudices – that pleasure can only distract the mind from its discovery and contemplation of truth. From the outset, Kant recognises that all cognition depends upon the interplay of sensibility and intellect. Philosophers are ‘like you or me’ amongst our fellow men. Evaluating life with respect to pleasure and displeasure is the common lot. 3 Contemporary problems of consciousness, brain and reductionism leap out of the pages of the Critiques. 4 Here I begin to lean towards my own expression of these matters.

Introduction

5

In the second Critique there arises the final antinomy: pure reason demands that we set aside pleasure if we are to determine what is right; reason also demands that we pursue the best possible life. Pleasure and happiness are part of the best life to which we can aspire. Practical (moral) reason does no more than to set the boundaries for our pursuit of a happiness of which we will be worthy.5 In the sixth ‘Session’, Arendt considers Kant’s idea of a ‘critical appraisal’ that is an active alternative to ‘indifference’ between scepticism and dogmatism. In the first Critique Kant reveals what is wrong with a certain concept of truth in science that pushes us into that dilemma. But in the process of setting limits to any possible metaphysics he does not see that he has dismantled its whole machinery, Arendt declares. What he does provide is a way to think about the connection between freedom and reason. In the terms that he takes from his Critiques, political freedom consists in our being able to make public use of our reason at every point. Furthermore, the probity of thinking depends upon its public use.6 Impartiality, in turn, is achieved not by ascending to some ‘higher’ standpoint above the mêlée, but by taking seriously the plurality of the views of others - this we see the emergence of Kant’s famous ‘enlargement of the mind’. Arendt is particularly interested in judgement as achieved from the standpoint of the detached spectator but she does not limit judgement to that role (Deutscher 2007, 69–72). Furthermore, the detached spectator may luxuriate in the knowledge of events that he should deplore were he to be involved in them. Kant admired the French Revolution even while being rigorously opposed to any revolutionary undertaking that flouted existing law, for instance. A spectator can properly judge the qualities of bravery in the actions of a soldier, even while his moral reason would lead him to condemn the war in which that soldier fights. (Kant’s language of judgement is carried by legal metaphors of the ‘impartiality’ and ‘detachment’ of a judge in a court of law.) Certainly, withdrawal from direct involvement with the outcome of an issue is a sine qua non of some judgements, but Arendt holds that the traditional vita contemplativa is not a proper model for a well-judged and responsible life. Far from permanent detachment being intrinsic to judgement, it can betray it – a subterfuge for indifference or procrastination. In the tenth ‘Session’, Arendt introduces the theme of a ‘clash’ of the attitudes of spectator and active participant. Though the active participant must judge, and cannot use his involvement as a pretext for avoiding that, still he should not despise, as if merely parasitic, the status of the spectator. It would be an overreaction to judge that only the involved party is capable of serious judgement. A spectacle, observes Arendt, is enacted as for the benefit of eliciting a spectator’s judgement. In practical matters (Kant’s category for what we ought to do) it is not the will, but rather judgement that prevails. But now we have to remember (from his Critique of Judgement) that judgement is rooted in taste. Only in that we 5 The critiques of knowledge and of morals lead to the need for a thorough democracy. 6 Arendt develops this idea in The Life of the Mind, Vol. I; (See Deutscher 2007, Chs. 3 and 4.)

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have ‘taste’ can we resolve and judge.7 The spectator, who brings into play their ‘faculty’ of taste, is not merely a secondary character in relation to the real players. No one would act out a spectacle if there were to be no spectators. The presence of spectators makes sense of the fact of any performance, whether dramatic, social or political. If it takes genius to produce a work, says Kant, it requires people of taste to judge it. Genius may well fail at criticism. We may reflect on our own account that the spectator is not purely ‘uninvolved’, in any case. While spectators must not get involved in the action they witness, it is vital that they be involved with each other. For Kant, (social) insanity is precisely the loss of that common sense that enables us to judge as spectators. Common sense, judgement and the discrimination of right and wrong all depend upon taste. Arendt asks how Kant can elevate taste as the key to judgement. The answer, she says, lies in what imagination achieves. Imagination transforms objects of sense into imagined objects, and provides us with our representations of what happens.8 (To represent is to begin to detach.) Arendt develops the theme of judgement that takes other judgements into account. The ‘other-directedness’ of judgement is ‘in the greatest possible apposition’ to the ‘idiosyncratic taste’. In judgement, Arendt distinguishes the activation of imagination, by which we can represent what we need to judge from reflection.9 Taste is an inner sense according to Kant and the critique of judgement grows out of a critique of taste. This ‘two-fold’ operation establishes the conditions of impartiality - of disinterested delight. As well as this reflecting-upon sensation, we condense what we experience by use of the concepts that we thus develop. The spectator who judges with skill and commitment has learned to see the play of events as a whole. 1. What, then, are the standards of the operation of reflective judgement? Inner sense, Arendt replies, is ‘discriminating by definition’. To use inner sense is to choose between one thing and another: ‘this pleases’, ‘that displeases’. Then, we approve or disapprove our being pleased or displeased. Arendt mentions (Kantian) examples such as the ‘joy of a needy well-meaning son at becoming heir of an affectionate but penurious father’, or ‘being pleased to find oneself able to grieve at someone’s death, and being pleased that the world of art gives one pleasure. The criterion of judgement must arise out of what stirs feeling, how we communicate that feeling, and what pleases us in the thing we judged. Arendt finds three important points that, following Kant, she would make about this ‘communicability’: 7 To judge is not only to present one’s taste for public critique. We dedicate attention to what we taste. 8  In a modern context, we can judge a current war only because we have access to the daily news. 9  When we judge wines, we develop a vocabulary for tastes, which takes us beyond simple enjoyment.

Introduction

7

2. Any single sensation (of taste) is private, and no judgement is involved. 3. On Kant’s account we rationally comprehend that principles of pure practical reason are necessary. This grasp of pure principle is at the opposite pole from the judgement we need to apply a principle to a case. 4. Judgements about what is beautiful involve our ‘common sense’ – like an extra mental capacity. Communication and language depend upon this capacity. This collective reason of humanity makes judgement possible.10 In the thirteenth ‘Session’, Arendt makes a further point. Something pleases or displeases us as within a community of sense. As such, it is open to challenge and correction within our systems of communication. Nevertheless, the judgements we make within this common sense of taste are not cognitive or scientific. Cognitive or scientific statements are not judgements in the strict sense of the word. They state what we have discovered, hypothesised, or observed. Others agree when they make the same observations and successfully test the hypotheses. In contrast, as Arendt puts it, we must ‘woo’ or ‘court’ those who disagree with our judgements. Arendt’s Achievement Ronald Beiner included the seminar on ‘Imagination’ as a closing piece to the thirteen sessions on Kant’s ‘political philosophy’. It is devoted to Kant’s Critique of Judgement. Here, Arendt sets out from the analysis of imagination as ‘perception in the absence of its object’, the capacity for which is the foundation of memory. (She relates this back to the nous of Parmenides, by which we perceive the ‘it is’ of whatever ‘is’.) Imagination, which provides ‘schemata’ for cognition, provides examples for judgement. Sensory intuition gives us particulars; concepts make them known to us. The question remains, how the faculties of intuition and of reason come to work together. It is by imagination, Arendt claims, that we possess an image for a concept. A concept (a Kantian ‘schema’) is more like a blueprint than an ‘image in the mind’s eye’. To judge is to ‘think the particular’. To think is to generalise. So, to judge is to ‘generalise the particular’. This may be easy when the principle is given and the only problem is to apply it to a particular case.11 It is difficult when only the particular to be judged is given, and the principle must first be derived from it. The standard cannot be ‘borrowed’ from experience or derived from principles already accepted. Arendt analyses Kant’s method as claiming that ‘we might attend to the “purpose” of a thing, when in search of a principle - even, simply, when its purpose to give us pleasure’.

10 Beiner criticises Arendt’s exchange with Jonas about ultimate standards (Beiner 114–5). 11 To apply a principle to a new case can be the most challenging act - the ‘Mabo’ judgement, for instance.

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In seeking to form a principle from a particular case we look to something that has ‘exemplary validity’. As Kant said, famously, ‘Examples are the go-cart of judgements’. Every object has a corresponding concept by which we recognise it as such. Arendt suggests that we might approach this either as a Platonic ‘idea’ or as a Kantian ‘schema’. We may have many examples of a thing and think out their common core of resemblance, or we may encounter an exemplary example that reveals the ‘generality that otherwise cannot be defined (see Scarry, 9, 19–20)’. To discover something’s purpose does not solve the problem. What is beautiful, like the dignity that pertains to being human, is an end in itself. (Kant sees beauty as if purposive in its structure.) Kant’s Impasse In writing about judging one is forewarned by Kant and Arendt that the road ahead is fractured. In their very discovery of judgement as a theme, each arrives at an impasse. They see judgement as indispensable not only in practice but also for understanding how thought and will relate to action. Neither can say how judgement fulfils that requirement, however. For Kant (as for Arendt) judgement is based in sensibility and he hopes that by appeal to this he can explain how we cross the abyss between the ‘noumenal’ world of pure reason and the ‘phenomenal’ arena of motive, will and action. By insisting on the purity of the reason that reveals what is right, he has created a crevasse between that realm and the actions that reason requires of us. Kant will not yield moral principles to the sway of judgement rather than of reason and so he can articulate only their formal shape. He means his principles to be strict, but their abstraction has an opposite effect when people apply them. An abstract principle is a Rorschach inkblot. People see in it what already preoccupies them. One can raise moral monstrosities of inhuman legal practice upon these pure practical principles (Cornell, 158–9). To judge well on the basis of a principle one must have that benevolence which Kant fears will pollute reason’s purity. Arendt points out that Eichmann, for whom obedience to his ruler is an absolute principle, was prepared to will his maxim of obedience as universal law. His lack of judgement does not stand out against the background of Kant’s pure principle whose interpretation of universal will requires the moral substance of a good will.12 In sensibility we take in the character of what we judge as right. Kant’s appeal to pure practical reason is valuable nevertheless. His objections to unguided sensibility are sound. It is salutary to challenge someone who is capable of judgement as to whether she would will her maxim as a universal law (moral or natural). Kant’s ‘Would I make of my maxim a universal law of nature?’ has the power of criticism for someone who does have good judgement. Kant’s recognition of reason’s autonomy of judgement about what is right counters our 12 The term is central to practical reason in Kant’s earlier, Groundwork for the Metaphysics of Morals.

Introduction

9

tendency to favour our own interests, but we need judgement to discover and to apply principles, and that involves what we are pleased to countenance. Kant’s defence of purity of reason in setting aside irrelevant considerations is admirable, but he errs in fearing sensibility as only distracting us from the work of reason. He is right to subject every expression of sensibility to critique, but critique requires judgement. With that judgement in hand, sensibility can return to the field of reason. Kant’s appeal to pure principle checks our self-regard but self-regard is not the only threat to good judgement. Eichmann’s moral failure arose not from self-regard. It seems that a one-dimensional devotion to duty was his defect. A ‘pure reason’ that recognised a formal rule to promote a good will would still have to judge what is good and what is right if it were to articulate operative rules – rules by which we could live. That is what calls upon sensibility. Kant would agree that though an abstract principle might be transparent to reason, we have to judge whether some individual action or person falls under that principle. Our revision of Kant’s legacy goes beyond this. In discovering what is right we need more than reason. We must judge when and how to use it. We must judge not only that some action or quality is determined by a rule under a concept. We must interpret the meaning of the rule itself (Cornell, 155–69). Kant implicitly relies on the business of judgement throughout the first two Critiques. When he makes a theme of judgement in the third Critique consequences appear that require us to reform, radically, his appeal to pure practical reason. He cannot relate the purity of comprehension in the ‘noumenal’ realm to the rough and ready world of phenomenality, but his need to appeal to judgement in order to link his worlds, thus challenges his dream of pure reason.13 New possibilities arise when he brings judgement centre stage to relate the noumenal to the phenomenal. Arendt’s Impasse At the end of the second volume of The Life of the Mind, Arendt declared that she too had come to an impasse – she could not resolve the tension between thinking and willing, nor could she understand willing by turning to those who defined it within a field of action. The political revolutionary finds an ‘abyss of pure spontaneity’ between prevailing conditions and the new order she would bring about. This problem has the same form as that of ‘thinkers’ who attempted to understand an individual’s metaphysical freedom. For Arendt, ‘judgement’ stands at the intersection of politics and metaphysics: thinking is part of life and a condition of sound judgement upon it. The trajectory of the will crosses the same junction, in tension with the thinking it meets there. In its demands upon us, the will to act competes with thinking’s withdrawal. And yet they cannot be kept apart. The business of the will also places its demands; it may set the agenda for thought; the will is even closer to the heart of thinking than that. We have to be willing to think, and to stay with what stands in need of thought. It is by willing thought 13 Hume’s empirical philosophy ‘roused him from his dogmatic slumbers’, as Kant put it.

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that we can turn from thought to will without falling into a mindless urgency of ‘making decisions and getting on with things’ (Deutscher 2007, Ch.12). We have to judge when it is time to have done with thinking and move towards doing, but it is a matter of judgement when to resist the urgency of a situation – to ‘stop and think’. How these sides of our mental life support each other can be revealed in sustained and accurate descriptions of what we do. Lines of metaphysical thought cross through this same intersection. Heavy traffic. In Kant’s terms the question is how the ‘noumenal’ order of pure practical reason can be brought to bear upon a ‘phenomenal’ world of cause and effect. In her volume on the will Arendt adjusts Kant’s conception of the relation between physical principles and subjection to causality. Freedom arises with judgement; with judgement we bring something new into being by thought and will. Arendt’s inspiration here is from Augustine, who accepted temporality as more than a human limitation: ‘God created man as a temporal creature; time and man were created together … [for] the purpose of creation was to make a beginning’. Arendt is keenly aware of the fragmentary character of her account of judgement as co-ordinating thinking and willing. Natality as a model for innovative welljudged actions is ‘somehow opaque’. If natality is the figure of innovative freedom then perhaps Augustine has told us only that ‘by being born we are doomed to be free’. We might reply on her behalf that we are not ‘doomed’ in our natality. We can take pleasure both in bringing it about and in the thought of having been born. If judgement is a mode of being pleased at something then we can freely judge concerning natality. Arendt has observed that it is ‘by appeal to judgement’ that we escape the impasse between thinking and willing. Let freedom be our power of innovation. In that case, being born is the fundamental innovation. I need not judge myself as ‘doomed’ in being free simply because my birth must be prior to my freedom.14 We can make more of natality as figure for innovation. To be born is not intrinsically an imposition. Birth does not reduce to its historical and biological facticity. The conception of a child now comes within the freedoms a woman or a man may exercise. In the atmosphere of care that technology provides we are now free not only to conceive but also to conceive of what pregnancy means (Karpin 2012). We have some say in what it means to be giving birth – and to have given it. A child inherits this mode of having been conceived, gestated, and then born in freedom. Whether conception was planned or a happy accident, having been born need not be thrust upon child or parent. We come to understand how in judgement we may disclose the meaning of our ‘pleasures and displeasures’.

14 Her ‘doomed to be born’ resonates with Sartre’s ‘doomed to be free’.

PART I Achieving Judgement

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Chapter 1

In Sensible Judgement In making a good judgement it is not pleasure but the right result that I seek and yet, displeased at the crime I am pleased at a jury’s resolution. Only in being pleased at what is done can I judge it as right.

Differing Judgements Freedom, Reason and Imperatives In Hannah Arendt’s intended trilogy, The Life of the Mind, she described thinking’s fragile power to disturb a conventional understanding of words and events; thought interrupts the heedless flow of life towards action. In the second book she regarded the will’s tension at odds with the calm of thinking. In place of the traditional ‘indeterminacy’ of the will she introduced natality as a figure for freedom within causality. All men are mortal gives death the victory in definition. She shifts attention to freedom’s onset. ‘All men are natal’ might be her aphorism – a new being arrives amongst us. From the causal net of gestation there is a new beginning. Judgement is another new arrival on the field of thinking’s calm and the will’s tension. To think is, uselessly, to enrich life; to will is to be effective, thoughtlessly. Free judgement is conducted within those two powers though they are, separately, unpromising. As Arendt puts it: I am quite aware that the argument [that freedom as the capacity for beginning is rooted in natality] is somehow opaque, that it seems to tell us no more than that we are doomed to be free by virtue of being born, no matter whether we like freedom or abhor its arbitrariness, are ‘pleased’ with it or prefer to escape its awesome responsibility by electing some form of fatalism. This impasse, if such it is, cannot be opened or solved except by an appeal to another mental faculty, no less mysterious than the faculty of beginning, the faculty of Judgement, an analysis of which are least may tell us what is involved in our pleasures and displeasures (LMW, 217).

Arendt looks for freedom in judgement’s autonomy. To judge is integrate thinking within the will. We withdraw into thinking though only action would ease the will’s tension (Deutscher 2007, 93–106). To analyse judgement ‘may at least tell us what is involved in our pleasures and displeasures’ – an allusion to aesthetic judgement’s ‘first moment’ of pleasure. This use of Kant is arresting. For Arendt, analysis of judgement – of right and wrong also – will tell us what is involved in our pleasures and displeasures.

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In the Critique of Judgement Kant places pleasure as the ‘first moment’ in judging what is beautiful. Yet we aim at universality in the aesthetic judgement that involves this subjectivity. In his previous Critique (of practical reason), contra Hume’s appeal to moral sentiments, Kant has admitted only reason in determining principles as right. His move is revolutionary in proposing pure reason as practical because imperative.1 If reason can be both pure and practical it can determine principles as right without appeal to super-sensible existence. The purity of this reason is no mystery. Kant calls upon everyday examples to show that only a pure reason has the power to enunciate ends that are just. ‘Impure’ reason is designed to determine means to ends and says nothing about ends. To determine a principle as right is to use reason purely to determine ends. To reason about what is right is to disregard inclination towards material or emotional profit. Kant agrees with Hume’s famous claim that no amount of fact will demonstrate what we ought to do. He employs reason not in chasing the wild geese of theology or cosmic order, but in examining imperatives and so disarms the two chief objections to making reason central to what is right. Reason can bear upon what is right in terms of imperatives – thus it remains within its bounds concerning what is the case. His principle, ‘act only on those maxims that you would will as laws of nature’ is neither a statement of particular fact nor of natural law relating facts. As not natural, it is also not supernatural. It is a universal imperative to conduct one’s life within certain limits. Taking moral principles as imperatives also allows Kant to cross David Hume’s famous gap between reasoning about what is and accepting what one ought to do. Kant approaches this problem from the far side of the gulf that others have declared impassable. To accept a principle as right is to accept the imperative to do it – an imperative is self-imposed in one’s understanding of it. Arendt’s difficulties with Kant already comprehend all this. She objects not that Kant says too much but that he specifies too little. We have to judge what a principle means in our situation, and judge whether a principle covers it. Kant’s account of aesthetic judgement shows how judgement can bring pure reason back from the far side of the abyss so as to connect with thought and will.2 Judgement is a deployment of pleasure and displeasure. That is how it bridges the gap between principle and situation.

1  Kant’s ‘practical’ has to do with legitimacy. Its ‘pure reason’ determines the bounds of right and wrong. 2 Cascardi uses aesthetics as basis for critique of the Enlightenment legacy, for instance (Cascardi 1999.).

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Judgement and Claims of Fact3 Arendt has a notion of the autonomy of judgement – a ‘faculty’ equal in status and importance with those of thinking and the will.4 I am interested, for example, in the meaning Albrecht Wellmer gives to Arendt’s appeal to this autonomy: Judgement for Arendt is intrinsically related to the essential plurality of human beings, to our living in a common world which, as a common world, is opened up by speech. Matters of praxis, which belong to this common world, are not matters of knowledge but of opinion … Arendt proves to be a decidedly modern thinker [in contrast with neo-Aristotelians and neo-Hegelians] in that she denies the existence of anything like an ethical community that could provide the basis for the exercise of phronesis. [Rather] it is the sensus communis … that proves its reality in those rare moments when autonomous judgement breaks through the crust of established opinions … The autonomy of judgement becomes manifest in those who, without the support of socially accepted rules and values … are still able to tell right from wrong (Beiner 2001, 166–7).

Wellmer’s statement sums up many of the principal features of Arendt’s approach but I differ from his view that going beyond the community separates judgement from reason. Wellmer, like others of her friendly critics who see how she had to stand against a community in the grip of Nazi fervour, thinks that her account of judgement lacks the shared principles necessary to rationality. Wellmer rightly points out that for the one who acts, judgement arises in the moment that s/he can be (momentarily) spectator of what they do. As I see it, judgement’s autonomy means that it cannot achieve finality and remains open to successive observers, agents and critics. An individual may have to judge alone, but being open to interactive criticism is intrinsic to the ideal of judgement. Wellmer is right – she saw little possibility of well-judged action in her times and her idea of the political as other than social and economic calculation left the content of a truly political judgement unspecified. But my present argument is that she was properly impressed by what Kant achieved in taking aesthetics as the exemplary field of judgement. Her own concerns about judgement as a ‘somewhat mysterious faculty’ relate to Kant’s extreme division between the ‘noumenal’ character of pure reason, as against the worldly site of judgement. So she set herself to undo that division. Wellmer and others are mistaken to think that her problem of judgement arises because of her division between matters of judgement and matters of fact that reason can establish (Wellmer in Beiner 3  It would require book in itself to review the flood of admirable books and articles bearing on the validity of judgement post Kant and Arendt that rose in the 1970s and came to a peak in the 1990s. 4  It is natural to take judgement’s autonomy as a model for her separation of ‘political’ from ‘social’.

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2001, 169). Reason bears upon imperatives, for instance, and there can be no ‘truth value’ in an imperative. Wellmer claims that Arendt shares with Kant the ‘broad presupposition’ of a ‘gulf’ between what can be settled by observation and logic (cognitive fact) and issues (aesthetics or politics) that are essentially ‘opinions’. With regard to matters of fact we cannot but come to a certain conclusion. Matters essentially of opinion require judgement; we must persuade (‘woo’) others towards our view. In persuasion we have reasons and listen to the persuasion of others. But the reasons for a judgement must fall short of proof. If we demand proof with regard to issues of aesthetic judgement, Kant says, we depart the field of judgement. We turn instead to using settled standards (‘perfection’) or to academic or historical studies. In common again with a group of friendly critics who see themselves as checking Arendt’s excesses, Wellmer claims that Arendt has a narrow ‘empiricist’ view of truth: ‘Arendt’s idea of this faculty of judgement [as] the faculty to perceive differences and to perceive the particular in its own right, has a deep affinity with Adorno’s idea of … a form of thought in which the concept would ‘transform the concept’ – a ‘paradoxical construction’ forced on them by their narrow idea of rationality (Beiner, 171). But when Wellmer proceeds to show the place Kant finds for reason in aesthetic judgement, he reminds us that an absence of truth-value does not exclude the operation of reason. In an account of judgement that takes aesthetics as its exemplary field, reason still has its place in the political sphere of preferences. Kant demonstrates how being pleased at something in animating our cognitive faculties connects with ‘a conception of rational argumentation’ and Arendt would extend this to ‘the whole field of possible inter-subjective claims’ Wellmer thinks that Arendt was locked into an ‘opposition between thinking and judging [versus] cognition and truth’ (Beiner, 171–2). But Arendt emphasises reason – as friendly and yet critical conversation. Her notion of reason is broad. Judgements may have been made alone, perforce, but still they look towards critical review. Critics of her Eichmann in Jerusalem said that we cannot judge what (some) Jewish deputies did for an ‘orderly’ departure of victims to the trains. But that is our task, she says. Arendt distinguishes matters of judgement from ascertainable matters of fact. This is a proper distinction we make as we emerge from a ‘narrow empiricist’ notion of reason. Arendt uses much of Kant’s framework for her ideas, and that requires that we admit reason to bear upon sensibility.5 Wellmer may overlook the significance of Kant’s ‘first moment’ of judgement as pleasure. Then we analyse beauty’s special pleasure in its particular object and connect that with various dimensions of reason. To do this we have to allow reason a function different from that of evidence for observable fact, or theory of how the world functions. It is the work of critical reason to recognise the difference between taking a state of affairs to obtain and being pleased at that state of affairs. Then we can 5 This position, important to a theory of judgement, is elaborated in Chapter 7.

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articulate reasons for being pleased at some state of affairs. We can show how these reasons differ from evidence that the state of affairs does obtain.6 In effect, Wellmer accepts this in welcoming the emphasis by Habermas on ‘communicative rationality’ and he is acute in exposing its limitation:7 The only criteria [my emphasis] of validity … are those we have inherited from an existing culture of reason. [But] if we conceive reason [as intersubjective] … and [as] situated then the faculty of judgement loses its independent status … But how do we explain the functioning of judgement when a context of rational argumentation no longer exists? (Beiner 2001, 176–7).

We ‘call these judgements valid’, Wellmer explains, because they spring from a ‘soil’ of ‘institutional conditions under which everyone ha[d] the chance to develop his … judgement’. This is where I differ. One calls one’s judgement valid because one takes it to be properly grounded. The intent of judgement is to be open to reasonable scrutiny and response, but that never constitutes its validity. We agree with Arendt’s judgement as against Heidegger’s about the politics that was emerging in Germany in the early 1930s. In assessing her good judgement in promptly seeing the Nazi project for what it was, we do not have to first assess the (micro) culture in which she developed judgement. We take judgement to be autonomous, but we (like Arendt) foster a culture of communicative reason because one judgement is broadened or corrected in relation to other (reasonable) judgements. But the operation of such a desirable culture cannot be made a criterion of validity. That would reduce judgement to consensus. Wellmer appreciates the risk of judgement in its coming to be pleased at a certain situation, but not to take the risk is simply not to judge. So we maintain the successive gaps between prevailing ‘communicative’ criteria and the step of judgement made from whatever does ground it. The step is hazardous but its avoidance is disastrous. Criteria of Judgement As a priori, Kant’s structure of aesthetic judgement requires that it is necessary and thus universal.8 Thus he would establish a certain validity to aesthetic judgements, though they involve us in being pleased at some state of affairs rather than determining (cognitively) that the state of affairs exists. When this condition

6  Wellmer insists rightly that we need a subtler epistemology than empiricism. Nevertheless, judgements must be marked off from the facts that ground them. Reason stands to aesthetic judgement in a relation different from that of evidence to a claim of fact. 7 My own similar reservation is developed in Chapter 4. 8 The noumenal order is ‘prior’ to time. The question is how it can order the phenomenal realm.

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is extended to political judgement, critics of that view (such as Habermas) speak scornfully of making political judgement aesthetic. They confuse two questions: Does political judgement involve the sensibility of being pleased at some aspect? Should we judge political claims and actions by aesthetic criteria?9

What pleases us in regarding a thing of beauty is its power to reanimate the sense of our powers of imagination and understanding. The aesthetic judgement implicit in that pleasure thus arises in the free play of those faculties. According to Kant we can expect any other reasonable person capable of sensibility to agree with an aesthetic judgement we make because any person capable of reason and cognition must have those faculties, and be able to use them in harmony. That is what makes it possible to proceed from sensation to knowledge of objects and principles. To judge something as beautiful, then, is to judge that it would similarly animate any rational person’s sense of their powers of imagination and understanding. This shared possession of imagination and understanding means that it is possible for individuals to ‘enlarge’ consciousness. They articulate what they find in the object that so stirs their sense of their cognitive powers; they develop a critical understanding of the nature of the objects of their judgements. Arendt deconstructed for her century the metaphysics of this Kantian story. She proceeds to the possibility of communicative understanding without resort to an a priori guarantee of such successful communication and enlarged consciousness. We shall have to be content with taking the risk of self-disclosure in a public space of discourse. We do sometimes succeed in persuading others of the beauty (for instance) that they find in an object. And it is in the utterance of judgement that we lay it in our public space (domestic or grand) as universal. Thus one’s pleasure at the object is made universal in intent. If I form a judgement about it then I have presented it as fit for public critique or endorsement. Since the aesthetic pleasure is that particular form of being pleased at the power of the object to reanimate the (cognitive) senses, it is meaningful to propose that anyone else ought to be able to enjoy that same re-animation ‘with a little help from their friends’ (the Beatles). Arendt does not present her ideas as a systematic theory and so we cannot assess them directly against Kant’s. In using her ‘post-noumenal’10 version of Kant’s aesthetic analysis, implicitly she tells why we cannot have, a priori, a guarantee of success before we enter the public space. Nor can we be guaranteed of success by critical engagement.11 As with the early Socratic dialogues, there is 9 To make this distinction leaves room to permit an aesthetic moment in political judgement. Fabrizio Elefante (referring, incidentally, to Arendt (Elefante, 197–99) countering the association with fascism of politics as aesthetics, ventures a (positive) aesthetic critique of democracy (Elefante, 183–199). 10 My expression. 11  I take up this line of thought in Chapter 8 on the ‘mystique’ of critique.

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pleasure and enlarged comprehension in the process of the dialogue that is real and not extinguished by the failure to achieve final agreement or a final definition of our object. This sketch is intended to show what we can expect of the ‘validity’ and ‘criteria’ of judgement as we extend a version of Kant’s aesthetic theory to judgement in general, but without relying on his case for some a priori (subjective) universality. We shall not think it reasonable to expect any guarantee of ultimate agreement between all rational persons, or even those with whom we happen to engage in our public space. We can engage in the business of reasoning and informing our judgements in the midst of unsuccessful attempts to secure reasonable discourse. We establish our rights to our judgements as going beyond private feeling whether or not we have the good fortune to be part of a rationally communicative group.12 In your political, economic or geographical position you may reasonably despair of creating a public space of self-disclosure. To be sure, one ought not to romanticise the lonely artist and political thinker in their garrets. But writers, painters and activists go ahead with their work in order to create a reciprocating community. Judgement, as judgement, aims at communicability and invites critical response, but we may have to use our judgement already in creating the ‘circle of witnesses’ required to demonstrate (or demolish) its validity (Le Dœuff 1989, 55).13 Still we are free to read Kant’s a priori universality of aesthetic judgement as a myth of an ideal public space of discourse, on analogy with that ‘kingdom of ends’ (of the Groundwork for the Metaphysics of Morals) that he had to image as the condition of living according to the moral law. It is not unreasonable to expect to find in others at least some structure of aesthetic receptivity somewhat akin to our own. For us, after Kant, it is on sociological and physiological rather than a priori grounds that we have some advance confidence in fostering common modes of understanding and receptivity, though embedded within cultural difference. This is true of law, also. Part of the legal history of change leading up to the Mabo judgement is the increasing recognition by Justices, though raised in the British tradition, of aboriginal law as law (Justice Blackburn: Mabo, 20). There is something in Kant’s emphasis on structure and form when it comes to judgement that transcends local difference. It was initially very difficult for the unsettling settlers to recognise pre-existing law. They could not see past the superficial differences between indigenous and British life – differences of dress, mode of housing, how to signal the presence of territorial boundaries and how to formally resolve disputes. Indigenous people had to persistently utter their claims to land in a public space that had totally excluded them – throughout decades that approached two centuries until they created some semblance of a public space of shared political discourse.But the

12  So good judgement may hang on good fortune. 13  Seyla Benhabib is one who has traced, clearly, the connections between Habermas’s ‘communicative rationality’ and Arendt’s ‘public space’ with its ‘enlarged consciousness’ (Benhabib, 199–211).

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logic of law being as it is, indigenous law can then be heard as having made valid judgements before that public space had been achieved.14 The capacity for recognition of political or aesthetic form and enjoyment of sensory content pre-exists the communicative structure. We need good judgement in order to work towards such structures. The existence of good judgement does not formally require that it issue from within an already formed communicative rationality. Rather, what is required is that it aimed at helping to create, or at discovering the site of some such institution. And so, with no prior guarantee – whether from Kant or from Habermas as it were – we make our judgements in any case. We make the silk purse of judgement out of the sow’s ear of being pleased at how something is or might be. We achieve this by proceeding in advance of the ideal conditions of communicative discourse. In being prepared to risk ‘selfdisclosure’ we display and explain the object of our pleasure in what we thus attempt to create as a public space. People do persist in demanding of an account of judgement that it should establish criteria of validity. There must be ‘objective criteria’ for our being right in being pleased at the very appearance of what we sense. The question is radically obscure. Even if someone learns how to articulate what he finds beautiful in something whose very appearance pleases him, he can no more guarantee his listener’s aesthetic response than he could his own. It is the ‘subjectivity’ at the heart of judgement that makes us yearn for ‘criteria of valid judgement’ when in fact we cannot settle this anxiety for cognitive claims either.15 There can be no criterion of the truth of a proposition either. When we attempt to enunciate it we say only that the proposition is true if and only if the world is as the proposition proposes. This is a tautology, not some criterion of truth. We can say of someone that she treats her pleasure in an object as a judgement of it – as ‘beautiful’, ‘fair’, ‘well-timed’, ‘politic’, ‘humorous’ or ‘kind’. She will feel inclined to share her pleasure in what she has judged. In articulating what 14 Their testimony of aborigines as witnesses was not admissible in courts in Australia for many decades after the proclamation of British sovereignty. The question was fraught. Aborigines were charged with offences under British colonial law and yet neither the accused nor their peers were permitted to state what they had seen happen. In an electrifying case (R v Murrell and Bummaree before the Supreme Court of New South Wales in 1836), Sydney Stephen argued, amongst many other matters, that this silencing of witnesses was a gross injustice under British law. But to recognise the status of indigenous people in court immediately raised the question whether they were not British subjects. If they were, then they were under the protection of the law. But to recognise that was admit that they had some claim against radical and uncompensated seizure of their lands. The whole issue of terra nullius sprang out in full legal view. In the event, the jury ignored the tenor of the summing up by the judge, and found the defendant to be not guilty. There was no doubt that he had committed the act in question, but the killing was a punishment he was obliged to perform according to his law. The jury seems to have made a proper legal distinction. 15  Kant himself makes the point in the opening sections of his Critique of Pure Reason.

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stirs her admiration she will articulate what it is about the object that makes it work. Thus the workaday criteria that provide a language of criticism. Sharing in that language may allay our anxiety at the ‘subjective’ involvement of pleasure in judgement; at last we recall Kant’s own warning: to prove that one’s judgement is correct is to cancel it as judgement. Aesthetic Judgement ‘Beautiful’, ‘good’ and ‘right’ relate to various forms of pleasure; their opposites relate to corresponding displeasures.16 Pleasure as being pleased at something is the ‘first moment’ of aesthetic response that (in the right conditions) is the judgement of it as beautiful. We need a nuanced approach to this ‘first moment’. The being pleased of aesthetic judgement need not coincide with the first time of one’s experience of the object. When the beauty of an object strikes, you experience it as unprecedented – yet precedents are in the wings: The beautiful thing seems – is – unprecedented; and that … conveys a sense of the … ‘newbornness’ of the entire world … Then Odysseus startles us by actually searching for and finding a precedent (Scarry, 22–23).

We place, carefully, the effect of information and prejudice on one’s being pleased at the very appearance of an object as beautiful. In being informed that a painting I own is fashionable and will command a high price I may be more pleased in seeing it on my wall. I am pleased at owning a valuable thing rather than its power to stir and refresh my mind and senses. Kant’s aesthetic judgement of the painting is ‘the very consciousness of a formal purposiveness in the play of the subject’s cognitive powers … [it] is that pleasure [we take in an aesthetic judgement]’ (CJ, §12). I can like things in different ways, and for different reasons. (These origins of different pleasures are empirical. They are not the pure and transparent origins that Derrida exposes as mythical.) This being pleased at beauty is aboriginal - judgement as from its origins in the object we judge. The work on that response by critics, scholars and one’s own broadening experience comes to modify, define and explain one’s predilections. It helps you in attempts to state reasons for a judgement. What we had first felt, now we pronounce in the form of a judgement that has the form and intention of being valid for all beings capable of aesthetic response and mental powers. We say that our judgement is ‘valid’ for others. This is to say that we expect others also to be delighted in the thing – that it will arouse their own powers of sensation and understanding. To expect this more general confirmation of validity is also to be ready to accept that it was by means of our cultural skills and experience that we took in the object in the first place. We may have to learn to appreciate what lies within a work before it arouses that particular pleasure we call aesthetic. 16  To say this is, of course, to fly in the face of Kant’s project of pure reason.

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At the same time, to reckon the object as beautiful is to impute to it a power to quicken sensory and cognitive powers; we expect that an object of beauty is liable to unsettle and challenge us, as it reanimates entrenched ways of perceiving. So to accept the central role in aesthetic judgement of being pleased is not a cultural ‘relativism’ that places aesthetic ‘validity’ as only ‘true for its own culture’. Neither does a favourable cultural reception entail that it is judged beautiful within that culture. It may be thought no more than agreeable. To work with aesthetic judgement as a particular kind of (informed) pleasure in its object requires a fine balance. (One has to use good judgement in the very use of a theory of judgement.) Though heavy weights hang on each side of the fulcrum it is a fine balance. On one side is the moment of our pleasure in the object’s power to animate our sensory and intellectual being. The counter-balance is the weight of the common sense of our enlarged consciousness as we place our critical pleasure in the public arena of taste. Pleasure is measured out as aesthetic judgement in this oscillation. In our shared and contesting pleasures we relieve our unease at judgement’s subjectivity. We may then be secure in the swing towards pleasure itself, sure that we shall recover a frame for criticism in the cognitive region of explanation and analysis. Not that the balance is guaranteed of success. Overcome by reputed critics we may lose the nerve to respond to beauty and become the connoisseur.17 Only a considerable moment of that ‘cognitive’ mass of learning, comparison and skilful recognition can counterbalance immediate aesthetic pleasure. It is because our susceptibility to beauty arose as disinterested that we can remain open to the judgements of others – without fear that their conflict with our own response will destroy it. Furthermore, this being pleased at an object’s power to reanimate the intellect and the senses provides us with motive and energy to look further into the incommensurable elements in the object that provided that pleasure. That goes to make a judgement of that pleasure. In that animation we extend the immediacy of pleasure into a measured appreciation of the object. A judgement is the culmination of what is set in train when we are determined to come to resolve the elements of our pleasure in an aesthetic object. Limits of Reason Kant appeals only to pure reason in determining the foundations of ‘practical’reason in universal imperatives that frame what is right. In contrast, Arendt discovers judgement of what is right at work equally on the unique event and on general principle. Kant argues that we forfeit the universal status of our imperatives if judgement’s dimension of subjectivity is involved. Arendt reverses the argument. Without judgement our most general principles are worse than useless. ‘Live only by those maxims that you would will as universal law’ is also bedside reading for a Mafioso or an Eichmann – those who would will total destruction before 17  It is openness to the un-conceptualised that marks the love of beauty off from mere ‘aestheticism’.

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abandoning their universal will. So good judgement is required in the use of Kant’s pure principle if it is to frame sane rather than fanatical policies. (Judgement is involved in the very use of logic itself.) The first moment of that judgement must be in response to an exemplary individual person or action. Thus to accept the role of taste in our determining of what is right restores a proper gravity to taste and feeling – our pleasures and displeasures are the principal we invest in principle. There is thus no reason for Seyla Benhabib’s ‘perplexity’ that Arendt imports judgement in the Kantian sense into the ethical domain (Benhabib, 186). For Kant ethical principles are outside the province of judgement but Arendt openly opposes this. Ethical and political judgements differ from aesthetic judgements in their intentional objects; they differ in the structure of publicly contestable reasons to which they appeal. Like aesthetic judgements, those concerning right and wrong arise within our reasonably informed sensibility. They involve taste – what pleases and displeases. If judgements of right and wrong arise from our sensibility then, like aesthetic judgements, their first moment is one of pleasure - of our being pleased at the very idea or fact of an action. Someone will object that this ‘first moment’ is never innocent, inexperienced, or free from prejudice. One person will be pleased to observe how a woman has taken her own initiative and is ready to terminate her pregnancy. He may be pleased at the very fact of such an action, in itself, and judge it as right. Someone else will be horrified, displeased in the ‘first moment’ of comprehension of the act she intends. Believing, already, that she is the creature of a Being that forbids the termination of a pregnancy this critic will be displeased with her at having disobeyed her creator. He will judge what she intends. A Kantian view of judgement involves a ‘first moment’ of pleasure or displeasure. This view does not require of that ‘first moment’ some pure innocence or initial freedom from all complicating opinion or prejudice. As judgement, that moment of being pleased or displeased is open at the outset to critique and the need for grounds of one’s feeling. Also, an account of judgement can at best hint at what comprises good judgement. Insistence on one’s being pleased in judging something is right keeps judgement immediately in contact with what one judges. The alternative (as Kant argues in the aesthetic case) is to lose one’s autonomous judgement in favour of conformity with established opinion. The other point, also made clear from the outset in Kant’s analysis of aesthetic judgement, is that we must specify what we judge. If displeasure at a woman’s intended termination of her pregnancy is at her not obeying the edict of her creator then disobeying one’s creator is the immediate object of judgement – not the termination itself. That same critic might be pleased with the woman’s power to take an initiative – to lay hold of what is to happen to her. To criticise the woman for terminating her pregnancy is to criticise her only for disobedience. Religious critics of action rarely see that they have shifted the object of their critique in this way. The example shows how, far from severing judgement from fact and consistency, we open up judgement to criticism by making overt the connection between judging and being pleased. There is no short way with the issue itself

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though. We are led into various arguments. Can an action be right simply in obeying an edict? We ask someone whether being in conformity with a creator’s edict is all that pleases him about what he judges as right. One must judge the creator. Otherwise, obedience may lead us into monstrous action. Judgement is not reduced to being pleased. Rather, being pleased is raised to being judgement. (To identify is not to reduce. ‘A process of thinking is a brain process’ grants electrochemical process the status of thought – activity that deals with what is absent from sense and can move as if within time.) Kant dared to say that aesthetic judgement, while more than the registration of a pleasant sensation, has its first moment in our being pleased. To find something only agreeable, however, is not yet to judge it as beautiful. In the same way, judging as right might comprise being pleased at what you judge without collapsing being right into being agreeable. There is moral hazard in categorising judgement as right as the taking of a certain kind of pleasure. Some will wish to read the view as ‘do as you please!’ It is worth taking this risk. We have seen how Kant negotiated these risks of excessive ‘subjectivity’ when he placed pleasure at the heart of aesthetic judgement. There was a fine balance in accepting aesthetic judgement as a kind of pleasure in an object that we regard with disinterested interest. On the one side was the moment of pleasure in the animation of one’s sensory and intellectual being. In the right conditions this moment of pleasure amounts to aesthetic judgement. One must not lose the significance of that moment in the welter of ensuing theory and description. To abandon the centrality of pleasure in our unease at its ‘subjectivity’ would divert us from sensibility and dump us in the territory of pure expertise. There are already considerations weighty enough to counterbalance it. Aesthetic judgement has a secure pivot. Our free response to beauty swings the balance towards disinterested pleasure and from that we gain the impetus to learn about the object of beauty in its history, techniques and artistic intentions. If the form of judgement is one’s being pleased at appearance, it is a disinterested pleasure that we take. Our pleasure is other than that of owning the thing, gaining social status, or being flattered on our good taste. Our interest is in the thing itself. An interest in beauty is thus powerfully objective. Kant says that in judgement we are without ‘interest’ – as a judge who has no ‘interest’ in a trial’s outcome. The particular delight that we take in sensing something that founds the judgement of its beauty is one we take in the very appearance of the thing – our pleasure in the object’s power to reanimate the sense of our capacities to understand and to imagine. This explains why an aesthetic response seems like a kind of discovery even as we cannot say what it is that we have learned. One must distinguish judgement’s mode (pleasure) from its object (the object to which we respond): For instance, ‘What is relevant … initially concerns only how the object’s appearance makes us feel’ (Wicks, 19) is thus misleading. What is relevant to the judgement is what makes it reasonable to feel that way. What Wicks cites from Kant makes the correct point: ‘We can aesthetically judge the formal configuration of either sort of presentation in a judgement of pure beauty’. In his important work Anthony Cascardi says that ‘judgements of taste are meant to

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preserve their grounding [my emphasis] in … pleasure and pain’ (Cascardi 1999, 69). It is that slippage that makes it seem impossible to bring reason to bear as criticism. But to judge is to be pleased (displeased) at the object of our judgement. The reasons for judgement are the reasons for the pleasure. So the pleasure is not in any way the ground of aesthetic judgement. Kant deemed that basic principles of what is right are not judgements. Judgements involve taste, and taste involves pleasure and displeasure. He declares his fundamental law of practice to be, therefore, not a judgement. ‘Act on only those maxims that you would will as universal natural law’ is an imperative that we apprehend by pure reason; we grasp this: to ignore the imperative is to flout reason. With Arendt, I resist this way of marking the difference between judging as beautiful and judging as right. Kant’s universal imperative should make us stop and think about our careless maxims but we need good judgement to use it and that involves what pleases and displeases. We distinguish beauty from right according to what pleases us in what we apprehend. Aesthetic pleasure is our delight in the power of an object to stir our sense of our powers of knowing and understanding. Pleasure in a situation as right (Kant’s ‘happiness we are worthy to own’) is our satisfaction in the situation being precisely as it is. We find the difference between aesthetic and other judgements in their differing kinds of pleasure; these differences derive from the different interest we take in what is beautiful as against what is right. We may not be pleased by the implications of what we judge to be right. We may be displeased about what it may cost us to follow what we judge to be right. Still we are pleased that what we judge to be right should be the case. If we are prepared to act in accordance with what is right then we are prepared to bear with the incidental costs. When we decide not to pursue what we judge to be right we sacrifice this being pleased at the situation we might have created. When we judge doing what is right as imprudent we count the cost as too high. Being Pleased as a Mode of Discovery We judge something as beautiful in that it pleases us by stimulating our powers of imagination and understanding and enlivening the sense of our cognitive powers. To judge as beautiful is objective in intent, however. We are directed to the thing itself in the complexity and integrity that gives us that pleasure. In terms of judging as right, we judge an action in being pleased at the very idea of its being done. This does not mean that we act for that pleasure. The syntax of judgement predicates as what is right, not the pleasure but the action or principle in which we take pleasure. It is not as pleasing us but as having those characteristics that please us that we judge it. Evidently, action is appropriate to judgement of what lies within one’s power to choose, modify, support or oppose. In the same spirit we also judge how things stand as right or wrong. We discover that someone we care about has untreatable cancer. We feel with them, feel for them and grieve at their life being now so brief.

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We say ‘it’s just not right’. We judge that things ought not to be that way. If we believed in a Being that sent such trials we could judge it as acting wrongly. But we need have no opinion about a Being responsible for the cancer. We judge that it is not right that this person should have been so afflicted. A state of nature itself flouts our sense of what is right. The sense that it ought to be changed is then an impulse towards medical research (say). As not right it calls us towards action to shift the framework of what lies within our power. The moment of our judgement of what is beautiful is the arousal of pleasure at the enlivenment of imagination and cognitive powers that the object effects. From that we refine a philosophy of aesthetic judgement but it is not pleasure but the painting, poem, building, or flowering gum tree that is the object of judgement. It is the object that we judge as beautiful, not the pleasure engendered by it. The pleasure integral to aesthetic judgement cannot function as a reason for it. The reasons or grounds for judgement are what we attempt to state, and such reasons consist not in what we say but in what is said to be. The reasons or grounds are what it is about the beautiful object that excites the imagination and stirs the sense of one’s powers of knowledge and understanding. It is precisely because the (aesthetic) judgement coexists with the moment of pleasure we gain from the appearance of the object that we turn to something other than that moment of pleasure when looking for the grounds of judgement. (Kant thinks pleasure in simple sensation is not judgement since there is no room to go beyond individual likes and dislikes. Finally though, within his emphasis on form, he comes to recognise the artful juxtaposition of colour as a proper object of beauty.) Thus in dealing with judgements of what is right we differ the moment of the judgement and the object that occasions it. Also, we differ the reasons we can articulate for being moved from what occasions our pleasure. These distinctions make sense of Kant’s appeal to universality - to declare something beautiful is to urge others to pay attention to it. This condition of universality by which feeling becomes judgement is not the arrogant demand that everyone must agree with me. I may be the one in error. Rather, in sentencing beauty as universal I launch my judgement into the public domain. By using the objective mode I make my claim vulnerable to that of others. We locate the moment of aesthetic pleasure within the structure of judgement directed at the object. Criteria and Grounds Whatever we judge, we may appeal to the same distinction between the pleasure intrinsic to judgement, and the grounds of judgement. We take account both of feeling (approval, commendation, admiration) and the communicability and attempted universality of judgement as going beyond a report of feeling. When we judge as right, we are pleased with an action for being as it is. We are pleased (in that respect) with the person who has done it. Again, the pleasure we take in the action’s being done is not the reason or ground for the judgement. A judgement of what is right is grounded not in the fact that the action pleases us but in what

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we judge as making it right. It is in taking a certain pleasure at what an object provides that we judge it beautiful, but we judge it on the basis of the reasons it pleases us in that specifically aesthetic mode. The fact that it pleases us in that way cannot be internalised to become a reason for itself. It is consistent of Kant to say that the ‘first moment’ of aesthetic judgement consists in a peculiar mode of pleasure, while it is not our pleasures that we cite when defending a judgement of it as beautiful. Our judgemental pleasure in the object is the mode of the particular kind of attention to the object. The pleasure specific to a mode of judgement is other than the object of judgement. Confusing the two makes judgement seem ‘subjective’. We judge what is right in finding a certain kind of pleasure in the doing or observing of certain actions - or in contemplating their principles. If we judge an action right because it best promotes what is good we had better develop a very broad idea of what is good. Being happy is good, but utilitarianism turns the promotion of that good into a universal and exclusive criterion of what is right. In so doing it makes opponents of those who would be its allies in rejecting theocracy and promoting democracy. The pursuit of understanding mostly assists in the promotion of happiness – but is good in any case. The same can be said for the promotion of just laws and practices. If we were to define a right action as what promotes what is good then we would have to acknowledge an unlimited plurality of beneficial aims. It is a quite different role that pleasure plays in the very formation of judgement – pleasure is judgement’s mode rather than object. In judging something as good we are pleased at it but we do not therefore judge it on the criterion of giving us pleasure. Hedonism’s claim that only pleasure is good is a substantive judgement – a mistaken limitation – of what is good and right. The hedonist makes the evaluative judgement that anything is good simply in that it pleases the speaker (egoism) or as it pleases the largest number to the highest degree (utilitarianism). Our account of judgement leaves us free to disagree with those judgements. We are free to judge things objectively – in terms of what we find within them. The desirable aim that everyone should be as happy as possible then takes it place as a broad framework for judgement – a check on fanatical or mono-manic pursuits of ideals. As with aesthetic judgement, when judging what is right we distinguish between what comprises a judgement and what grounds it. Aesthetic judgements involve a (measured) pleasure at something’s very appearance. At the same time, in making judgements we do not base our judgements on pleasure as if that were a criterion. That would make the pleasure intrinsic to judging, the ground of its own validity. Rather, the grounds of a judgement are the grounds for being pleased with it in the respect relevant to the judgement. The distinctiveness of the various kinds of judgements remains intact within the framing of judgement as right as being pleased at a certain resolution of factors. Kant points out how we exclude the aesthetically irrelevant pleasures that we may gain from the existence of an object. We can distinguish a judgement that

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something is beautiful from an assessment that it is no more than agreeable, or that we shall gain prestige from its existence. Any account of the various kinds of judgement will involve nuanced descriptions of the kind of pleasure we take in our response to something, the structure of the objects of that pleasure, and the reasons and grounds of our being pleased ­– that incipient formation of judgement. There is a specific form and object of pleasure relevant to each kind of judgement, whether of beauty or what is right, what lies within the law, and within art. There is another objection to saying that judgement comprises being pleased at its object. That a judgement consists in being pleased at the fact or very idea of an action’s being done seems an affront to the sternness of a judgement of what is right. When I judge such a thing I must set aside what specifically pleases me. This sense of ‘sternness’ in such a judgement is most evident when we judge something as wrong. And yet, the form of the judgement of what is wrong is still that of displeasure. The judge expresses no softening of his attitude of doing justice when he expresses the court’s ‘intense and deep displeasure’ with the conduct of the accused. This displeasure permits its parallel in the judge being pleased at what is right. The stern constraints in judging what is right are those of disinterest and of facing unpleasant facts. These constraints are consistent with the judge being pleased at the doing of what she judges as right. She is not pleased that the accused is guilty but is pleased at his being found to be so on the evidence proffered in court. A legal judgement of something as right involves being pleased at its properly respecting legal principles, but as such, it is not a calculated application of legal conventions and precedents. Certainly you may be uncompromising in judgement. There are matters of law (or in any other field) so basic and so serious that you will brook no counter-opinion. The form of that judgement is then your utter displeasure with what you judge as an elementary error in law. We have to advance in these stages in coming to understand the place of subjectivity within judgement’s primary objectivity. Long-standing objections to admitting such subjectivity have already complicated the basic thought of this study – that to judge an action as right is to be pleased at the idea or fact of its being done. If, outside a formal context, I am thinking in relation to the various good things that I may foster and produce when acting rightly, I will be ready to judge that it might be wrong to pursue what pleases me in itself simply because that would be displeasing to some others. The judgement that here it is wrong to please myself still operates at the level of my being pleased at the action. I may judge it wrong to injure others by pursuing what pleases me. It displeases me to please myself by injuring others. But I am not therefore compelled to submit my every judgement within a calculus of pleasures and pains – as if I had better pause before engaging in philosophy in case it causes some social harm. This fear of a slide towards utilitarianism is a mistaken apprehension. Very few judgements of what is right can have as their object the well-being of humanity-at-large. Because the utilitarian principle threatens to subsume all other principles we tend not to notice how specialised it is as a criterion. It is the language of public welfare programs;

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its rhetoric is vital there in reminding operatives about fair play in the face of religious or other ideological interference with equity. Appropriate there, it is equally inappropriate as a guide to just legal judgements. Utilitarianism has the status of any utopian notion let loose in the market place. It is inapplicable because incommensurable with the reasons and grounds for a specific and measured judgement. It is true that if I judge something as good then I am pleased in that anyone who needs that good should have access to it. Also, when I judge something as right I take into account whether a decision, well enough judged within its terms, would seriously damage other interests. I can take these utilitarian considerations seriously without making them the sole criterion of what is right. Parents will be convicted of a crime and imprisoned, despite the consequences for their children. (Let us abolish imprisonment then, but still, the shoe of some alternative legal justice will pinch the foot of some innocent.) In a particular case I judge that it is not right to do what, in itself, would please me. Doing that would displease others; it may displease me to admit it as within my character. If I were to pursue what otherwise would be pleasant I would not be able to ‘take pleasure in my pleasure’, as Irigaray puts it (Irigaray 1985, 199). I have the chance to judge as wrong some activity that I would have been pleased to do, thoughtlessly. Perhaps I would have wronged another – or myself. The conditions of getting what I want may be humiliating, for instance. I can wrong myself by pursuing what promises to please me. I can be displeased at my way of pleasing myself. To involve myself in that self-belying behaviour threatens powers of independent thought. Though I harm no one else I may be unable to ‘take pleasure in my pleasure’ because of the wrong to myself involved in obtaining it. I may know that I shall be disgusted at it in retrospect, or dismayed at my having accepted the conditions of obtaining it. If I flout my autonomous judgement and pursue something that would be otherwise purely pleasing, it would not be fully my pleasure to enjoy. Usually we pursue pleasures we find objectionable only because we are addicted. We have to recognise the role of freedom in judgement. Thinking about ‘what pleases’ has taken us beyond any simple measure of what is good. These problems have only local solutions when we judge what is right in the circumstances of what is good. These complications give texture to the judging of what is right as coming to be pleased at the action or principle we judge. Such complicating thoughts are reflections on the very nature of judgement. A moment of being pleased is deemed a judgement in the light of the processes by which we ground and defend it. Judging Eichmann To engage in criticism may be to praise as much as to find fault. To criticise is not restricted to finding fault; to judge is not only to condemn. If to judge is to ‘pass sentence’ then not all sentences will be adverse. The work of criticism, though, is neither to recommend nor to reject, though the material of criticism readies us for

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taking such stances. In Eichmann in Jerusalem Arendt, writing of how Hitler set about his project of murdering the Jews of Europe, describes how insidiously, step by step, first involving them in the ‘helpful’ process of arranging the pressured emigration of Jews from Germany, finally he had the Jewish Deputies themselves working with his own administrative machinery, in effect helping to organise the Jewish people for their ‘deportation’ to the sites of mass murder. She does not pass sentence on the Deputies, nor provide material that would entail the passing of sentence. She could understand, as can anyone, how it came to seem to them that since they could not prevent the wholesale murder, the only thing they could do was to involve the least trauma and terror for the impending victims. This involved being party to hiding from them the meaning of their transit from their homes to the collection points.18 Arendt exhibits this collaboration to us as evidence, not of the Jewish deputies being Nazi sympathisers (which of course they were not) but as their being profoundly misled by a sense that the main issue was to make things seem as normal as possible, and by an inability to break out of their world of organisation. She would have argued with them that everything was as far from normal as could have been humanly imagined. The only thing left for those who were still permitted to retain administrative powers within the Jewish communities was to make all the trouble that they could - to do all they could to reveal what was happening and to inform people what was about to happen to them. Arendt reveals the Jewish deputies as being drawn into making a mistake made by leaders of democratic countries who, in an effort to keep public calm and the confidence of their electors, hide from their people the reasons for which they commit them to war, and the dimensions of the disasters to themselves and those of other countries that are intrinsic to a military adventure. Arendt’s adherence to judgement in ‘dark times’ reveals to us the elementary errors committed by the people who so bitterly found fault with a politics of ‘blaming the victim’ that they read into her account of Jewish organisational collaboration. Arendt’s critics complained against her that that only someone who had had to deal with the situation faced by the Jewish leaders could legitimately make a judgement. That response obfuscates the issue. She insists that it falls to us who live afterwards to make a judgement. Arendt does not ‘condemn’ the Jewish deputies. She speaks from no position of administrative or legal authority. It would be cheap talk in another way, too. Anyone might say that as an unthought reaction at first finding out how people in the Jewish administrative systems were used. Arendt does the endless work of judgement. That requires a steady and persistent ear to the months of evidence at the trial and the application of eye and memory to thousands of pages of documents. What we read, then, is not her judgement as passing sentence. Rather, it is an exercise of judgement of what was done and how it happened. 18 Arendt has been criticised for some points of historical inaccuracy. Seyla Benhabib has discussed this and other critical issues in relation to he report of the trial (Villa 2000, 65–85).

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The judgement that Arendt evidences in her reading of the trial, in the context of her intricate personal and documentary acquaintance with the people, systems and events of the Nazi era is plain, though. Her critics do not mistake her in that. One reads, amongst the multitude of other themes and judgements, the depth and extent of her judgement which is her reasoned and grounded displeasure at any attempts that anyone made during or after ‘that which happened’ to smooth over the procedures of murder organised by the state. My language of displeasure as lying at the heart of a judgement - a judgement so momentous as that upon the murder of the Jews of Europe - may move a reader now to react against me as Arendt’s critics reacted against her in speaking of banality in relation to Eichmann’s mentality. The charge would be different, but the error by such a critic would be the same. Any word one chooses in characterising the nature of a judgement of those who initiated, participated and colluded in Hitler’s ‘Final Solution’ is inadequate to the gravity of the judgement. This is for the same reason that any word one chooses is unequal to the task of conveying the nature of the event that spurs all those derivative judgements - that organised murder of millions of people itself. So this business of judgement as ‘keeping steady’ in the face of what one judges - whether terrible or admirable - does encompass feeling as at the heart of judgement. ‘Being displeased’, a mere term of theory, may sound pitifully inadequate to the depth of one’s judgement of Hitler’s plans and of an Eichmann’s willing and expeditious enactment of them. But each of our words of disapprobation separately, and all of them in combination fail to convey the nature of the displeasure at deeds and collusions that are beyond the measure of ‘moral’ language. Arendt makes linguistic choices like those who survived the death camp and lived to write about it. With deadly effect she sets herself to write in the register of accuracy and concision rather than of expostulatory outrage. The outrage and grief fall to us, now witness to these matters. When we attempt further to characterise our judgement of the murder of the Jews of Europe in terms of how bad it was or how much the perpetrators wronged their victims, there is a recursive failure of epithets. First we try to find epithets adequate to qualify the actions we wish to condemn. At the suggestion that we rest with the fact of our displeasure and the facts that prompt it, we try to qualify the degree of inadequacy we observe in this language merely of ‘displeasure at’ or ‘disapprobation of’ what was done. So we clutch at a bunch of epithets that would intensify the inadequacy of the language of ‘displeasure’. We may grab at ‘ludicrously’, for instance. We expostulate that is ‘feeble’ to speak of being displeased by what was done’, but we achieve nothing by doing that. What shall we do next, then? Say that the language of displeasure is monstrously inadequate? In the inner ear we hear these loud words debase the currency, just as attempts to intensify descriptions of ‘that which happened’ weaken it. Whether we talk as if viscerally about the ‘bestiality’ of perpetrators or make a profound theory of the Reality of Demonic Evil, still, we rebound to the same spot.

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Arendt omits these conventional intensifiers and epithets intrinsic to moral language, along with profundities about ‘absolute and transcendental moral values’. This is how she succeeds in conveying the nature of the events and the crimes that were committed. It is her mordant and often ironic record of it all – her intense condensation of what individuals did within the structures of organisation that they inhabited – that exhibits her judgement. Our attempts at intensifying disapprobation - ‘vicious’, ‘murderous’, ‘ruthless’, ‘bestial’ - become the more shrill, pointless, as we attempt to make them do the work of judgement that must lie beyond their means. (‘Bestial’ is another epithet yanked from a bag of rhetorical tricks. A lion horrifies us as it gnaws its still-breathing prey. It would be worse but then not ‘bestial’ if it plotted to exterminate deer from the face of the earth.) Arendt’s critics say that she minimises ‘that which happened’ by writing of the ‘banality’ of mind of those who carried it out. For those critics, ‘banality’ is an aesthetic category that would reveal the sensibility involved in our judgement of the perpetrators of mass murder. Arendt responds that such critics are liable to confer an illusory greatness upon the plotters and perpetrators - as if there were a kind of greatness in their evil, something that would suitably match the magnitude of the suffering and destruction wrought upon the victims. That is the illusion that figures such as Himmler himself attempted to convey about the undertaking of making the whole of Europe judenrein. His rhetoric, in summoning his underlings to undertake the killing was of a ‘great and terrible task’ that would require their utmost dedication to duty in the face of their tendency to relapse into the human weaknesses of compassion and pity - or into sheer disgust at the enterprise. Arendt does not pass outraged sentence on Eichmann. Rather the gravity of her judgement is contained within the work of the persistent sentences that comprise her whole account of the trial of Eichmann and of the events in Europe leading up to and during the War that frame what he did. We have to work to take in the dimensions of such a work of judgement as Arendt’s. We do not diminish that judgement by describing it as a reasoned and informed displeasure. Judgement becomes the more intense and deep in the measure of this displeasure at the actions and events that comprise the attempt to exterminate the Jews of Europe. Certainly it is easy to feel that an attempt to understand judgement that places terms so subjective as ‘pleasure’ and ‘displeasure’ at the centre must weaken it. The very mention of pleasure and displeasure threatens judgement with ‘mere subjectivity’. At the same time, this understanding of judgement in terms of one’s measured response in this pleasure and displeasure may seem too cool and detached. Do we find no place for words of absolute condemnation? Furthermore, a characterisation of judgement as measured pleasure or displeasure may appear to over-emphasise the need for measure. Thus Arendt’s measured language outrages those who think that she thus blinks at the immeasurable wrong that prompts the (correct) judgement of it as evil. All parties must agree that good judgement is grounded in fact. Hitler and his ‘gang’ (as Churchill called them) never did the work of judgement when they blamed the Jews for Germany’s loss in the First World War, for instance. There is a crucial need that we be measured in our

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feeling, since judgement is itself one’s being pleased or displeased at what one judges. And yet this being measured might seem to put out of play all expression of our feelings of compassion, horror, admiration and disgust. All of these feelings are aspects of our displeasure at crime, however, and thus have their proper place in judgement when they are measured and grounded in fact. Horror and disgust can be measured for all that such feelings are strong. Arendt’s being measured in all her judgements had the result that some of the critics of her descriptive method in Eichmann in Jerusalem complained that she made the Jewish Deputies look, in their administrative compliance with Eichmann, comparable with Eichmann in his active planning of the deportations to the death camps. As if Arendt was trying to make us ‘understand’ an Eichmann who worked to ensure the success of Hitler’s ‘Solution’ while not trying to understand the situation of the Deputies who worked at ameliorating its effects. A recent critic of Arendt, Adam Kirsch (Kirsch, 62–68) looks back at more than four decades of response and reaction to her account of Eichmann’s trial. She makes no room for how we feel about the murder of the Jews of Europe and the individual narratives told during the trial, he claims. In looking for her sentences of judgement these critics miss her precise words of critique. For Arendt, the Jewish Deputies misjudged the situation and their proper role in it. They overestimated what they could achieve by cooperation in continuing to help organise an orderly ‘departure’ of Jews and they underestimated the chaos on the streets that would have faced the Nazis had they refused all administrative co-operation. In Arendt’s implied judgement, for being unable to (or refusing to) come to terms with the radical nature of their situation, the Jewish Deputies deserved only her critical history of their partial mistakes. Her judgement of Eichmann is utterly different. She concludes her report of the trial with the words she imagines herself saying to him had she been the one to pass sentence: Politics is not like the nursery; in politics obedience and support are the same. Just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations – as though you and your superiors had any right to determine who should and who should not inhabit the world - we find that no one … can be expected to want to share the earth with you. This is why you should hang (EJ, 279).

Arendt was right not to waste her final words on emotions of disgust and abhorrence. To write such emotions is ineffectual - forcing epithets to work beyond their powers. She has shown us the rigorous restraint that judgement demands in the face of horrors that defeat moral epithets. However, Arendt’s concluding judgement (‘This is why you should hang’) reads as if stuck on. A lapse in style, her ‘hanging sentence’ is not a convincing conclusion to an argument that Eichmann refused to ‘share’ the world. Perhaps it would have been closer to the mark to declare, ‘This is why you must spend the rest of your life in solitary confinement’. She has

demonstrated not that Eichmann should hang but that nothing is a suitable or an adequate punishment of him. That is the measure of his wrong.

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Chapter 2

Deemed and Sentenced The challenge of judgement is to start somewhere. To set out is both to set forth and to lay out.

Sentencing ‘Il faut cultiver notre jardin’1 Every judgement is a sentence and deeming is dooming, etymologically speaking. The Doomsday Book was so-called because of the ‘irreversible nature’ of its sentences on land tenure. But not every judgement is a verbal declaration. Rather, to judge is to sentence. This, a written work, will deal with linguistic sentencing; the sentences can be placed so conveniently on the page. Were we painters or musicians we would utter our judgements otherwise. (We utter a cheque.) But even as inveterate scribblers and chatterers we recall how these sentencings may be ‘uttered’ in other media by means of other conventions, and by quite transient agreements. Is every sentence a judgement? What kind of sentence? What do we do with it in our sentencing? To do no more than to classify verbal sentences in the usual fashion – indicatives, conditionals, imperatives – prompts our recall of using any and every kind of them to express judgement. Simply, if the author means the pronouncement to be taken seriously then it lies in the field of judgement. And what is said frivolously may be sentenced by another with whatever solemnity she deems fit. Still it is a forced act to honour as judgement every serious sentence that is familiar to speaker and hearer, writer and reader.

* * * To promote flowering I cut back the Grevillea bush well known to me. I was told, ‘the Grevillea is overgrown’ and so I set about pruning it. I would have said that judgement was involved not in identifying the bush but only in the extent of cutting it. What I thinned out was the plant that is (for me) your ‘typical’ Grevillea. Its broad and open-spaced fern-like foliage with light spidery formations of flowers spreads clear of the ground. It is a bush that approaches being a tree. She who asked me is shocked to find what I have done. How could I have thought of pruning that Grevillea, beautiful in its original loose form? I am exposed in my judgement of 1 The last line of Voltaire’s Candide, which is translated variously. Here it might be read as ‘Its best that we attend to our own garden’.

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it as the Grevillea that needs pruning. According to botanical classification there are two different Grevilleas in the small courtyard garden. They stand each side of an Australian grass tree whose height of nearly two metres measures the lapse of two hundred years since that most recent invading settlement of its land paved the way for the arrival of my grandparents in this country. So there is this other plant that I had never taken as a Grevillea – a small shrub that blooms in small clusters amongst the short leaves. It needed to have its little canopy opened to the light but I have taken the secateurs to my ‘typical’ one that spreads upwards and openly. It is not only that there is a lack of judgement in my mis-identification. I did it only ‘because I was asked to!’ To do something just for that reason betrays a more serious lack of judgement’s wit. Why proceed to prune a plant evidently not in need of it? To judge is to stop and think ‘there is something wrong here’. I should have sentenced the request. If I had judged the plant I pruned as a Grevillea then I should have had in mind what else in the garden might also be one. That is of the essence of classification. ‘Grevillea’ is not a plant’s pet name. So yes, you may be deemed not to have made a judgement when you do no more than to classify a familiar thing in a familiar way. Still, the voice of judgement is waiting in the wings, to prompt or to come out on full stage. Within a different image – to classify is always already on the cusp of judgement. Perhaps no one ever thought seriously that the Tasmanian Tiger was some kind of tiger. It looks typically canine rather than feline. Still, on account of its stripes it had to accept the title. So it was cast in the role of a predatory and powerful killer of docile farm animals – and a shadowy threat to humans. You don’t mess with a tiger. And yet only a few particularly ignorant people could seriously have misjudged the animal as a real tiger. The prejudice arose not from faulty judgement but from a lack of it. Made explicit, the mistake would have been too gross to survive. So the animal lurked like a tiger in that early imaginary bestiary that flourished in the absence of shared judgements about things newly encountered. Deeming In 1992 the High Court of Australia found in favour of a complaint by Eddie Mabo and others that their ownership of land in the Murray Islands was to be extinguished without compensation by the State of Queensland. There were five separate judgements. A joint judgement by Chief Justice Mason and Justice McHugh agreed in substance with the judgement of Brennan J who wrote a lengthy and scholarly judgement that involved a detailed examination of the relevant authorities. Justice Deane and Justice Gaudron wrote a joint judgement and Justice Toohey delivered a judgement. All of these found in favour of the Mabo community on the primary issue but differed on other issues. Justice Dawson was the sole dissenter on the central question and would have rejected the claim that native title had survived. The High Court’s majority judgement took Mabo’s complaint as exemplary for the whole of Australia. There was a national meaning – social and political as well as

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legal – of this small claim that the State of Queensland might have easily settled in a local ad hoc fashion. Its refusal to do that was indicative of endemic injustice by the States in their denial of persistent land claims by the peoples indigenous to the country at its British settlement that commenced in 1788. By a majority of 6 to 1 the High Court declared: The common law of this country (Australia) recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands, and that … the land of the Murray Islanders in accordance with their laws and customs is preserved, as native title, under the law of Queensland (Mabo, 15).

The court specified implications for the whole continent of Australia: Although there are differences which might be said to distinguish the Murray Islands and the Meriam people of 1879 from other colonial territories and their indigenous inhabitants … the propositions on which the defendant (the State of Queensland) seeks to rely have been expressed to apply universally to all colonial territories ‘settled’ by British subjects. Assuming that the Murray Islands were acquired as a ‘settled’ colony … the validity of the propositions in the defendant’s chain of argument cannot be determined by reference to circumstances unique to the Murray Islands; they are advanced as general propositions of law applicable to all settled colonies. A ground of distinction [between Murray Islanders and other indigenous groups in Australia would] discriminate on the basis of race or ethnic origin, for it [would] deny the capacity of some categories of indigenous inhabitants [to] have any rights or interests in land (Mabo, 25–26).

This need to respect the Racial Discrimination Act (1975 Cth) launches the judgement about the claim by Mabo into the existence of Native Title and its relation to Crown Title. Brennan specifies, ‘It will be necessary to consider presently the racial or ethnic basis of the law stated in earlier cases relating to the entitlement of indigenous people to land in settled colonies’ (Mabo, 26).2 All claims to the use of land based on Native Title that had previously come before the High Court had been rejected. It had been declared that after the Proclamation of 1778 the Crown had radical title to all colonial lands in Australia. It had been deemed that in consequence of that (radical) Crown title, indigenous inhabitants had no claim of ownership or right to use any land in Australia. Use 2 The sense of gravity and drama of a judgement about to be under intense public scrutiny makes gripping reading of the two hundred and seven pages of the five judgements. It has something of the ‘judgement of the statesperson’ that Marguerite La Caze so well describes (Schaap, 71–87).

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made of the land and its resources was henceforth by favour of the Crown, to be removed without reason or compensation. Based upon its annexation of the Murray Islands in 1879, the State of Queensland claimed unlimited and unqualified legal powers over all their lands. It claimed absolute beneficial ownership, legal possession, and the exclusive power to confer title as entailed by its annexation of the Murray Islands. The State thus rejected as contrary to its prior beneficial ownership, the claim of the plaintiff (Eddie Mabo) to a right and interest in the land on which he and his forebears had lived. Brennan commences his argument in favour of Mabo by a critical analysis of the theory of universal and absolute Crown Ownership: the question concerns the precise nature and extent of the ‘radical’ title possessed by the Crown in relation to lands it proclaims as under its sovereignty. He has to counter the weight of legal precedent in line with the claim of the defendant (Queensland) to deal with its Murray Island people in this fashion. The State of Queensland cited a judgement by Stephen, C.J. 1847 as precedent for their case (Mabo, 26). A certain conception of the ‘common law’ is propounded. ‘The whole territory of NSW … [and] whole vast island belongs to the Crown’. Queensland admits that in England, ‘all property is the Crown’s’ is a legal fiction but claims that it was not a fiction in a country being settled by British subjects. A paper tiger of old law sprang out from the pages as real. Brennan admits that this judgement has ‘formidable support’ by Windeyer (1969), who agreed that the Colonial Act (1836) gave Governors the power to ‘grant and dispose of the waste lands’ The purpose, says Windeyer, is to ‘validate grants [by] Governors instead of in the name of the Sovereign’ (Mabo, 28). Brennan opposes Windeyer’s implication, however. Although these powers were properly transferred from the British Crown to the Governors, this did not warrant the conclusion that all land had been alienated absolutely from the original inhabitants. The land was alienated from native title, Brennan argues, only by specific grants that created land titles for the settlers. It is these that are inconsistent with native title, and extinguish it. Still, in finding for Mabo the High Court writes against a history of legal precedents consistent with what the State of Queensland now claims. Stephen J. (Seas and Submerged Lands Case 1975) again affirmed these same principles that Windeyer had enunciated: ‘the prerogatives of the Crown were a part of the common law which the settlers brought with them at settlement’ (Mabo, 28). What Brennan challenges is the interpretation of these ‘prerogatives’. In previous cases Justices have taken the Crown ‘prerogative’ to mean that the original inhabitants lost, in one moment and in one blow, all legal right to inhabit and use their lands. With that done those inhabitants were bereft of a basis for any claim with respect to their land. Along with the majority of the High Court, Brennan argues that the representatives of the Crown in Australia were bound by common law to adhere to the principles of justice that had been imported. Certainly they had the power to grant land titles to settlers but this came with the duty to do justice on behalf of all subjects of the Crown. The proclamation of British sovereignty that created the legitimacy of imported British common law

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made the original inhabitants subjects of the Crown. As such their interests ought equally to have been regarded with due justice. Brennan thus clears the ground for his challenge to the precedents created early on by Stephen C.J. (1847) and recently by Justices such as Windeyer (1969) and Stephen J. (1975) He asks whether the arrival of a group of settlers under a Proclamation of British Sovereignty can be enough to extinguish all interests in the land previously possessed by people indigenous to it. He declares: ‘Judged by any civilised standards a law made upon such an interpretation of sovereignty would be unjust. Therefore it is questionable that such an interpretation can be considered legitimately to be part of common law’ (Mabo, 29). It can be a shock to our lay mind as it struggles with the complex legal history involved in the judgement to find that Brennan can pursue his case by such a direct and simple appeal to ‘justice in common law’.3 Brennan prepares the ground thoroughly in his examination of common law in respect of land title – a tradition developed over many centuries in England in the continuing struggles between sovereign and parliament. This is what was ‘imported’ to Australia in the Proclamation of British Sovereignty. In its country of origin, Radical ownership by the Crown was applied only if consistent with justice in common law. In nineteenth century Britain (and thereafter) the Sovereign could not appropriate or grant all ‘waste land’ in England to whomever it chose. When the Governors and Courts representing the Crown in Australia alleged that under Sovereign ‘radical’ title indigenous people have no rights to the use, nor any recognisable ownership of land they were claiming in effect, that justice in common law did not apply to the indigenous population. In the Mabo case the State of Queensland argued that the power to dispose of land was transferred to Governors acting on behalf of the Crown. That is not denied in the finding for Mabo. It is not that delegated power but its unjust use that the High Court identifies as the fault in Queensland’s case.4 3 Richard Broome details the history of the realisation of law, art and philosophy in aboriginal culture, and how this change framed the possibility of the Mabo judgement possible (Attwood 1996, 54–72). 4 M.J. Detmold, in speaking of the complaint that the High Court had ‘imposed extraneous value judgements upon citizens’, says that he agrees that ‘the High Court is a court of law and nothing else. But the view (of the Mabo judgement as “extraneous value judgement”) is based on a mistaken understanding of law. It is the essential nature of law to recognize difference. And it is the failure to recognise difference that constitutes an illegitimate (unlawful) value judgement [as had been made in previous judgements refusing to recognise native title]’ (Flew 1993, 39). By rejecting terra nullius [the High Court] rejected the most fundamental denial of difference – the denial of the very existence of the other. It is not enough to be aware of indigenous people [as along with] trees and hills and animals on the land. To see difference is to see the other as other conceiver and perceiver. It was precisely the point of terra nullius to deny this otherness (Flew 1993, 41). Detmold proceeds to argue that Brennan, in his concern not to ‘fracture the skeleton’ of law, has failed to take full account

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Have the British courts in the Australian colonies in the nineteenth century and then the Australian courts in the twentieth century (after Federation) radically revised the understanding of common law justice that was imported in the act of Proclamation? Or, in this new land and undefined situation, have they revoked British common law as it had been developed by the nineteenth and twentieth centuries? In stating its case against Mabo, the State of Queensland recognised that in England it is a legal fiction that all property is the Crown’s. But the State claims, brazenly, that ‘in a newly discovered country, settled by British subjects, this ownership is no fiction’. It would seem that the State has wished to revert to a feudal era. It was then that the sovereign’s ultimate ownership of all lands was no fiction. Furthermore, to say that only British subjects were settling Australia would be to make an error of fact. Many settlers who gained land were nationals of countries other than Britain. It might well be said in response, that all who lived here permanently under colonial British rule were to be deemed British subjects in being both obliged and protected under British law. But in that case a question arises against the claim by the State of Queensland. The Proclamation had the effect that all indigenous people in the land were now British subjects and thus obliged to and protected by the British law thus imported.5 This legal fact underpins Mabo’s claim of being unjustly treated in being summarily deprived by the Crown of his long-standing occupancy and use of his land. (This raises the question of terra nullius, of course. We shall come to that.) Brennan sets out from English-based law where Sovereign (‘radical’) ownership is a legal fiction. Since it is strictly distinguished from the ‘beneficial’ title one has over land one purchases, he argues that it cannot legitimate the summary dispossession of those with some title – as from longstanding or traditional use and occupation. Evidently, if the State appropriates for public purposes land held under a ‘beneficial’ title then it must pay adequate compensation. ‘Sovereign’ or ‘radical’ title is a fiction within which all private (‘beneficiary’) title is deemed a ‘tenancy’. This distinction does underpin the right of the state to appropriate land though it is held under beneficiary title. But justice according to common law requires both that the case of public interest is strong, and that adequate compensation is made. But the High Court, in finding for Mabo, did not countenance compensation for land though it declared that land had been appropriated unjustly.6 Thus the ‘native title’ that the Court recognises in its judgement has a status less than that of beneficial title ‘in fee simple’. In the judgement that forms the major statement of the majority of Justices who found for Mabo, Brennan constructs an argument that from the very beginning there of the injustice of terra nullius. He supports Justices Dean and Gaudron in their minority judgement that compensation should be paid. 5 Here I compress the result of tortuous debates in the early decades of the 19th Century about the legal status of aborigines. 6  Justice Toohey argued strongly and cogently for compensation, and with Justices Deane and Gaudron constituted a significant minority in favour of compensation.

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was injustice in the manner of appropriation of the land for settlers. There was no due recognition of its use and occupancy by indigenous people and the practice of the State failed to be just in common law. He depends upon longstanding and weighty historical precedents – more entrenched than the judgements Australian Courts have made against claims by indigenous people. That short history of judgements adverse to claims to native title, begun by the Proclamation of 1778, had the effect of deeming the whole vast island to be initially ‘waste land’. (This term has a bizarre taste to the lay tongue. It is used f­ or Crown land not committed to specific public use.) Some critics of the Mabo judgement7 have denied that territory of Australia was ever deemed as terra nullius (Connor 2005).8 None of these critics, however, claim outright that the Crown did accept that the land was already settled, that a customary law did prevail with regard to its use, and that these facts were deliberately to be disregarded. Indeed, documents cited within the written Mabo judgement itself point firmly in the other direction. Connor and others also suggest that the question of terra nullius is in any case irrelevant to the power of the Crown to appropriate it and distribute land to new settlers. (Justice Dawson takes this line in his dissenting judgement.) However, the British legal authorities in setting up the colonies made strong explicit statements that there was no evidence of ‘settled inhabitants with a settled law’. The (majority) Mabo judgement does not question that the Crown (through its representatives) had the legal authority to allocate land to settlers. The issue of terra nullius for the Mabo judgement is whether preexisting (traditional) habitation and laws ‘burdened’ the Crown to take account of that – whether by way of compensation or by ‘usufructuary’ rights of access to leasehold grazing land. The implications of this have subsequently been pursued both in parliament and in courts. It is not relevant whether the phrase terra nullius was common at the time of the Proclamation and the earliest crucial claims to a native title. Terra nullius does not mean empty land, but, literally, no-one’s land – land that belongs to no one. The logic of the Mabo judgement is certainly that the justice of the Crown’s land distribution practices depended upon the land being effectively terra nullius at the time of Proclamation. On the evidence now available to it the High Court, in finding for Mabo, rejected the assumption of terra nullius. It was a grave error from the very beginning. But the Court did not therefore entertain the absurd idea (as some critics allege) that the British authorities had imagined the land as unpopulated. Rather, the authorities had deemed, erroneously, that the people they encountered there did not inhabit the land according to law.9 7 Henceforth, ‘Mabo judgement’ means the judgement as supported by a majority of Justices. 8  For more nuanced discussions of the issue, see Ritter 1996, Frost 1981 and MacNamara 2004. 9 Gareth Nettheim cites the Admiralty’s 1768 instructions to Lieutenant James Cook, ‘You are also with the consent of the natives to take possession of convenient situations … or, if you find the country uninhabited [to] take possession for his Majesty’ (Flew 1993,

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There is evidence of increasing judicial uneasiness about the continued summary dismissal of claims to native title. Brennan reports Blackburn’s judgement of 1971: The evidence shows a subtle and elaborate system highly adapted to the country in which the people lived their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called a ‘government of laws and not of men’ it is that shown in the evidence before me (Mabo, 39).

Blackburn was not swayed, however by these facts. He deferred to the precedent of the Privy Council (in Britain) that terra nullius had become a ‘legal fact’. In creating the non-habitation of Australia as a legal fact it had made observable fact irrelevant.10 So it appears that the Mabo judgement does involve a rejection of ‘terra nullius’. Common observation and anthropological study in the decades after settlement in 1788 revealed the existence of indigenous law in relation to the land. Only within the legal fiction that it was terra nullius – not belonging to anyone (even though populated) – was there no ‘burden’ on the Crown to deal justly with the indigenous inhabitants – shortly to be declared British subjects, in fact. In making his judgement Brennan enunciates (perhaps as a caution to those who will interpret it) that the Court is ‘not free to fracture the skeleton of principle that gives the Australian [common] law its shape (Mabo, 29). This is a striking metaphor. The picture covers cracks in the legal wall between justice in common law – an issue for the Court – and a sentiment for justice that might be articulated outside that judicial context. ‘One must not fracture the skeleton of legal principle’. What kind of judgement is that? Is it a judgement that to fracture the skeleton would be unlawful? Is it an historical judgement that to make that ‘fracture’ would terminate the era of law? Perhaps it is an appreciation of logical paradox – that a law that destroyed its own framework would destroy its own validity – and therefore that it would not have had the power to do anything. Brennan puts it another way: ‘Our law is a prisoner of its history’ (Mabo, 29). It seems that only

103). This makes clear from the start the relevance of the land being deemed to be not ‘inhabited’ by those who lived there. Nettheim comments that Cook neither ‘sought nor obtained consent’ from the few he happened to encounter. 10 Against those who claimed that the Mabo judgement represented ‘a change in the common law of Australia’, Richard Bartlett makes this comment: ‘All that the High Court did … was to explicitly recognise … that native title was part of the common law of Australia and the decision of Blackburn J in Milirrpum v Nabalco was wrong’ (Flew 1993, 64). He proceeds to state, more trenchantly than Brennan, what he sees as the specifically legal errors in previous judgements against claims of native title. Barbara Johnson lays out the same legal argument in considerably more detail (Flew 1993, 68–9)

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imprisoned law can sentence the prisoner. Or is this a rueful smile at the price you pay in order to acquire the force of law for your judgement? Whichever way you read him, Brennan uses this requirement not to ‘fracture the skeleton’ so as to limit implications of justice in common law in respect of the dispossession of indigenous people. Expressing the need not to ‘fracture the skeleton’ of law is perhaps a way of reassuring us ‘settlers’ that we are secure in our backyards. Our land may have legally ‘descended’ from allocations that flouted common law justice but it is not in the power of the Court, anyway, to upset tenure of land held with beneficiary title – ‘in fee simple’. Indeed, the soundness of the Mabo judgement rests on a distinction that entails the security of present private land holdings. The judgement of an absence of native title that has prevailed in Australia since settlement in 1788 has been founded upon a false and unfounded assumption. This means that native title ought to be respected as a legal ‘burden’ on the Crown. But if the Crown does, albeit unjustly, convert its ‘radical’ title in favour of some settler’s ‘beneficial’ title then native title is extinguished. There is no longer a native title to be respected. There may be justice, but never fear. It is certainly rough justice. If it were not, it would not survive.11 One may ponder the question, though, of how Brennan can fence off certain questions about the limits of any appeal to justice in common law. If it is contrary to common law justice to deny Mabo his land, can the High Court be silent about the consequences of a history of wrongful dispossession? We can see that it is not within the Court’s power to countenance some renewal of native title to land that has been allocated to others by the Crown. And yet the Court places the issue of justice at the centre of its judgement. Yes, the Court cannot ‘fracture the skeleton’ of the legal order of ownership even as it affirms that Australian law is no longer in thrall to its British origins. And yet Brennan states plainly, ‘Since the Australia Act (1986) the law of this country is free of Imperial control. So this Court is free to develop independently of English precedent’ (Mabo, 29). This raises the question of how far a just departure will take us. The oscillation of emphasis continues. It is even as he announces himself a ‘prisoner of history’ that Brennan affirms that ‘our law is not now bound by decisions made in the era of Empire’. The fulcrum of this swing rests on two points that have an uneasy stability: One cannot be a ‘prisoner of history’ or one could not now overturn the precedents set from the earliest history of Australian law: one cannot fracture the skeleton of law in overturning this major precedent or the new judgement would lose its framework for validity. In terms of the first metaphor of ‘fracturing the skeleton of principle’ it appears that Brennan would break its fingers at least. He must weaken the long arm of old law that much. There is a further question. Does the declared injustice of previous judgements by Australian Courts have legal implications for descendants of 11 Andrew Markus details the intense reaction in conservative politics and the popular media to the Mabo decision as threatening that ‘skeleton’ of law that Brennan claimed to protect (Attwood 1996, 88–99).

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dispossessed people? To answer that requires interpretation of the force of ‘Native Title’. Native Title depends on continued occupancy of land, and a claim to it requires proof of some social cohesion of those who have remained upon it. But even then, laws that would normally entitle descendants of those defrauded of their possessions to sue for compensation do not automatically apply to indigenous people. Brennan judges the long practice of granting land to settlers without regard to native occupancy as ‘unjust by any contemporary standards’. Nevertheless, native title is ‘extinguished’ in the Crown’s act of granting freehold title. The High Court has no power to overturn those titles, though it does judge as unjust what was done. The power to grant land title to British (and other) settlers did follow from the British declaration of sovereignty over the territory of ‘New South Wales’ in 1788. This emphasis on legitimated power as untouchable might seem at odds with the power of the Court to judge the exercise of that power as systematically unjust. Which principles constitute the bones of law’s skeleton? The Court can make only a tacit answer to that question. The Mabo judgement recognises native title as a ‘burden’ on the Crown in its exercise of power. By use of that lever the Court can raise the issue of justice to indigenous people as an issue in the allocation of Crown land. So Brennan’s ‘skeleton’ is more than a structure of dry bones – a life’s remains on display for academic study. The skeleton Brennan needs to retain the vital shape and continuous life of law is alive with its contemporary flesh of facts, theories and judgements. Stiff enough to uphold the body’s shape, still it flexes to permit the organism breath, and expands to allow human growth. So we might concede to Brennan this skeleton as an apt metaphor. A skeleton too must bend to maintain the body’s continuously changing identity. Not only the muscles but also the skeletal structure of law in Australia has flexed during more than two centuries, now to accommodate the Mabo judgement. It has as its marrow the steady growth of knowledge about the people who inhabited this ‘vast island’ and the knowledge and claims of those inhabitants and their descendents against the newcomers. The ‘skeleton’ to which Brennan refers as if beyond the reach of new legal judgement has sustained and connected progressive phases of social and legal understanding of that native title which the Mabo judgement now proclaims to have pre-existed British law. In its Mabo judgement the Court has departed from decisions made before Australian law was declared autonomous. Brennan says that ‘is even more reluctant to depart from [prior] decisions of its own’. A court’s overturning its own precedents is particularly dangerous to the ‘skeleton of principle’ that upholds its own legal validity. Nevertheless, if the Court can never overturn precedents set by its own earlier judgements then its judgements are beyond reform. In completing this sketch of the legal issues it is important to stress that the High Court could not, of course, deal with all entrenched discriminatory practices in connection with land tenure. The very notoriety of the Mabo judgement, being about Native Title, tends to occlude other questions of justice. The representatives of the Crown liberally used their power to grant leases and freehold title but there was a determined refusal to allow indigenous people to share in the new systems of land tenure. Some indigenous people who ‘squatted’ on land and farmed it in

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the European style were summarily moved off. Inheritance of freehold title was also made impossible. (In a rare case a mixed couple gained a freehold title but the indigenous partner was not permitted to retain it when his white wife died.) Knowing ‘too well’ In Home and Street The story of pruning the ‘wrong’ Grevillea began with a comment about being asked to do it by someone I ‘knew well’. This sentencing of people as ‘those I know well’ is itself one of those acts that we only doubtfully call judgements. The sentences we utter (and our unuttered opinions) are frequent and rapid. To speak of judgement seems artificial and forced. And yet these ‘sentences’ are but a pile of ossified categories until we treat them with the criticism judgement deserves. The history behind the Mabo judgement is of an incomprehension of others that emerged as a magnified consequence of a ‘small’ error. First came a casual explorer’s observation of ‘very sparse population’. Then an official deeming of what was too obvious to require judgement – the few that moved across the land were reckoned to be as if ‘of no fixed abode’. We think it a slight sentence to say that we know someone. It is enough that we have met them and have noticed something of what they do. At the outset of this enquiry we had begun to think of the many sentences we pass on what we encounter in the everyday. We know it all ‘too well’ to judge it. The cat is drinking its milk, the greengrocer has Russian tomatoes on sale at the moment, the day is sunny but the wind is cold. One could deem these remarks to be judgements, though. Such examples from the kindergarten slide towards more complicated issues. To know someone well as (say) living in the same house for a long time is to be aware of their likes and dislikes, and to be used to their appearance and dispositions. We would recognise them even at some distance. And yet we find that these usual judgements are quite dubious when put to the test of understanding what they do and say. The judgements we have made tacitly then appear impertinent. My partner remarks that the assistant in the greengrocer’s shop (who knows our names) is making a ‘thing’ of showing a youthful employee the ropes. I reply that he is a rather intelligent man who is warding off boredom. I recall that he is always hungry for any conversation I am prepared to start up about issues that extend beyond the fruit business. Plainly these sentences move in a territory of speculation and still, you accept you have passed judgement only when it turns out that you have to own your sentence. In describing the assistant as intelligent and thus bored, I ward off a judgement by my partner that I find too critical of his manner. The language of ‘displaying judgement’ (or not) then comes into play. So we might do well to distinguish judging from being all too ready to sentence – being judgemental. As judgemental I take too little time. I fail to judge. In trawling through the Mabo case we may have become alert to whether an issue is ‘justiciable’

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in our home court. Is it one over which your court has jurisdiction – the very utterance of law. We might also have begun to think about the kinds of sentence we ‘utter’ in judgement – declaratives (‘that cat is sitting on a mat’), conditionals (‘if the cat sits there it will leave fur on our new rug’), imperatives (‘open the cat-door before you go to bed’) and counter-imperatives (‘animal welfare rates higher than carpet condition’). We can sentence in any of these categories in singular, general or even universal terms. When our sentences seem obvious then even their conditionals and imperatives arrive dressed as facts. Judgement is most prevalent only in its dying cadence. It falls away before the blindingly obvious and yet the world itself asserts its point of re-entry. The innocent photochemistry of the greenhouse effect would be amazed at its political implications. Everything gets scrambled. Suddenly we need a rare level of judgement to grip the facts and get the politics. When Matters become Formal When Eddie Mabo complained against the State of Queensland, legal minds had to concentrate on the new case itself in order to create a new precedent. At the same time they had to turn back to principles older than Australia’s short history so as to see clearly the injustice of its own legal precedents that might have seemed overwhelming. Thus there is a permanently dubitable framing of judgement without which judging would be a still more dubious business. Those firm liberating judgements we make in their proper spirit of finality would become oppressive. Our familiar long-standing judgements take the guise of disinterested deductions of conclusions from legal principles and precedents whose lettered meaning are as graven in stone. The drawing of new principle or interpretation from new cases or old cases newly considered is a counter to the weight of all-too-shiny conclusions that have at once the force of a judgement and the certainty of a logically deduced conclusion. On some momentous occasion we draw a new principle or interpretation from our judgement of a particular case – a case that is paradigmatically unjust, let us say. Conservative critics complain that a judge who does this permits personal sentiment to cloud a judgement against what is already settled in law. But judgement involves questioning legal precedents that in their time were formulated as new judgements derived from exemplary cases. Justices Deane and Gaudron (who also found for Mabo) articulate what the making of their judgement involved: [W]e are conscious of the fact that, in … deal[ing] with the dispossession of Australian Aborigines, we have used language … which some may think to be unusually emotive for a judgement in this Court. We have not done that … [to attribute] moral guilt … [What] has led us to describe … the dispossession of Australian Aborigines in unrestrained language is that the full facts of that dispossession are of critical importance to the assessment … of [two] propositions – that the continent was unoccupied for legal purposes, and that the unqualified legal and beneficial ownership of all the lands of the continent [was] vested in the Crown. Long acceptance of legal propositions … can … impart

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legitimacy and preclude challenge. It is their association with the dispossession that, in our view, precludes those two propositions from acquiring the legitimacy which their acceptance as a basis of the real property law of this country for more than a hundred and fifty years would otherwise impart (Mabo, 120).

Thus judgement as a legally grounded displeasure has its own proper subjectivity. In its legal context displeasure is the expression of the issue as serious. Legal judgement must be disinterested but not neutral. One must be unbiased but to be neutral is to refuse to judge. Suppose that we attempt to apply to the Mabo judgement the distinction between ‘determinative’ judgement as applying principle to cases, and ‘reflective’ as drawing a principle from an ‘exemplary’ case. To make a judgement against a history of precedent to the contrary involves taking this distinction seriously. It is to be prepared to ponder an exemplary case and to draw a judgement of principle from it, even though, in the legal case, the precedent must be framed by ‘determinative’ judgements that apply to pre-determined principles. Legal judgement is generally thought of as more ‘determinative’ than ‘reflective’ for the obvious reason that a judgement is legal only if it is made with due consideration for written (‘black letter’) law and legal precedents that have, themselves, been made in the context of written law. At the same time it involves reflective judgement in considering an exemplary case, in order to judge that a history of precedents in applying a principle to a case might have been an error of judgement. Furthermore, when the principle to be applied (within the complex web of legal argument that surrounded it) is that of justice in common law, the difference between determinative and reflective judgement is of little use. The judgement is determinative in that there is a principle of common law upon which the Justices lean. But the content of the principle stands patently in need of judgement if it is to be applied at all. The Justices who found for Mabo were moved by the exemplary case of manifest injustice when they ruled that the principle applied to it. At the same time they could have done nothing if they had proceeded merely on the basis of a sense of injustice that had no place within their legal framework. For instance, it would have been outside the jurisdiction of the High Court to rule against the very proclamation of British Sovereignty as ‘unjust’. The Proclamation is not unjust in common law, because Sovereign acts lie outside that principle. What was judged was within the jurisdiction of the High Court to determine but, like all legal judgements in the last analysis, the statement of legal principle in conjunction with a description of the case does not logically entail the decision. If that were possible, legal judgement would not be required at all. One would simply employ experts in formal logic to deduce the right answer. I conclude this consideration of the Mabo judgement by considering a different but allied reflection about the question of justice in granting freehold title. The Proclamation that gave the Crown radical title raises the question whether those already occupying the land were thus British subjects. Certainly they were obliged to respect colonial law imported from Britain, and it seems that in 1838 there was a decision of policy that the indigenous inhabitants were to be considered

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British subjects. One can say in retrospect then that in that case they were rightful claimants to a fair share in the distribution of freehold title. It is evident that no such even-handedness prevailed. One cannot strictly prove a universal negative proposition in such a matter, but various legal experts in Australian colonial history can find no recorded example of an indigenous person being granted land ‘in fee simple’, as the legal phrase has it. There is a good deal of anecdotal evidence that authorities were set against that idea and in any case, the granting of such a right would have run counter to the official policy of gathering aborigines together in reserves, under the strict supervision of white officials. Furthermore, although it seems that even where there was no legal barrier to aboriginal men enrolling to vote, they would fail because they did not pass the test of owning land. So the denial of freehold title to land was de facto an exclusion from suffrage. In recognising native title as legal fact the Mabo judgement does not address that issue, of course. Nevertheless, to judge that indigenous people had a right of use and habitation of their land that can be extinguished only by the Crown’s granting of freehold title certainly sharpens the question of why land grants were never made to indigenous people themselves. In making its judgement about native title, the High Court reveals this other injustice to us as spectators of the legal process. The injustice of refusing to recognise native title was concurrent with the refusal to grant freehold title to indigenous people, along with the grants made to the new settlers. As British subjects indigenous people had a rightful claim along with settlers to freehold ownership ­of significant tracts of land: ‘In a settled colony in inhabited territory, the law of England was not merely the personal law of the English colonists; it became the law of the land, protecting and binding colonists and indigenous inhabitants alike and equally’ (Mabo, 37). The Crown had the legal power to allocate land as it chose but not to decree its every use of that power as just. That burden on its powers, the Mabo judgement has exposed with regard to native title. Inadvertently, perhaps it readies us for another judgement – not about illegality but about justice as fairness. Even without the proper recognition of native title that should have ‘burdened’ the Crown in its dispossession of indigenous people in granting the land freehold to others, indigenous people would have had an immeasurably better standing from the very beginning had they enjoyed at least the benefits of the newly imported system of freehold tenure. Judgements come in different kinds. People are inclined to speak of ‘moral’ judgement about freehold title since it did not arise as a legal one at any stage. Nevertheless a concern about freehold title for aboriginal people raises questions about unused legal opportunities to safeguard the rights of these indigenous but newly British subjects, within the legal system instituted after the 1788 Proclamation of British Sovereignty. From the point of view of an account of judgement it illustrates how judgements at various levels – both legal and moral and about prevailing morality – work for and against each other. In making a judgement one launches what pleases into the public political space that is not one but many overlapping regions of discourse and action.

Chapter 3

Dissenting Judgement The Structure of Dissent Minimising the Differences Justice Dawson emphasised the legality of the ‘act of state by which the Crown in right of the Colony of Queensland exerted sovereignty over the [Murray] islands’ where Eddie Mabo had his parcel of land. In his judgement he alludes to and perhaps endorses a ‘change in sentiment’ between 1879 and the 1980s about such annexations. He makes this concession, however, so as to divorce the questions of law that the court must address, from the moral judgements that might be made about those annexations. Though there is no difference of legal opinion between Dawson and the rest of the Court about this distinction, the emphasis is designed to set his direction from the outset. The conclusion towards which he is heading is this: [While] there may not be a great deal to be proud of in this history of events [of appropriation of land already occupied at and from the time of British settlement] … the policy which lay behind the legal regime was determined politically, and, however insensitive the politics may now seem to have been, a change in view does not of in itself mean a change of law. It requires the implementation of a new policy to do that and that is a matter for government rather than the courts. In the meantime it would be wrong to attempt to revise history or to fail to recognize its legal impact, however unpalatable it may now seem. To do so would be to impugn the foundations of the very legal system under which the case must be decided (Mabo, 145).

In beginning his argument Dawson summed up the case of the plaintiffs (Mabo’s descendants). They claim to hold land under native title, or to possess ‘usufructuary rights’ (such as to hunt, fish and gather food) over the land, or to own the land by way of customary title (in having been the recognised settled users of the land since occupation, as well as before it. The plaintiffs (‘Mabo’) accept that the Crown has the power to extinguish these rights, but only by ‘clear and unequivocal action’ that would require special legislation. They say that the Crown has taken no such steps to extinguish those rights. They assert that the Queensland Coast Islands Declaratory act of 1985 that stated that upon annexation the Murray Islands were vested in the Crown … freed from all other rights [such as those of inhabitants to continued occupation) was rendered inoperative by the Racial

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Discrimination Act of 1975. (This was settled, Dawson concedes, by a ruling of the High Court in 1988, four years before the ‘Mabo Case’ now before the Court.) The plaintiffs for Mabo also claim that the Crown has effectively recognised their rights over the land since the annexation in 1879 by setting it aside as land reserved for aboriginal inhabitants of the State. This reservation shows, the plaintiffs claim, that the islands were not intended to be opened up for settlement or to be the subject of Crown grants that would extinguish traditional land rights. Dawson takes as common ground between plaintiffs (‘Mabo’) and the defendant (State of Queensland) that upon annexation the Murray Islands was subject to ‘radical’ title vested in the Crown but he makes a different emphasis from that of the Justices who found for Mabo. Brennan firmly distinguished the Crown’s ‘radical title’ (a legal fiction) from a ‘beneficial ownership’ that the Crown does not thereby possess. People (or companies) gain ‘beneficial ownership’ upon purchasing or being granted land and the Crown stands as a fictional origin of order and justice in this process. Dawson’s words are weighted towards the sense of an unchallengeable right of those acting in the name of the Crown to decide about the use and users of the land it holds by ‘radical title’. He will argue that those acting for the Crown had no obligation to consider the rights of those who occupied land it had declared its own. It is precisely this assumption that the other Justices challenge, citing as precedents judicial decisions in other British Colonies, and considerations of justice in common law. Dawson accepts that pre-existing rights over land that the Crown ‘chooses to recognise’ may then continue to exist beyond the power of the Crown summarily to revoke them. Simply not to disturb an existing occupancy, however, does not amount to validating it. Dawson points out that in a case (1924) concerning land in India, whose rulers had ceded to British rule, ‘the whole object of the enquiry of the British Court is to see whether, after cession, the British Government has conferred or acknowledged as existing the proprietary right which the (Indian) appellants claim’ (Mabo, 123–4). ‘Their Lordships judge that the moment that cession is admitted, the appellants necessarily become petitioners and have the onus cast on them of showing the acts of acknowledgement, which give them the right they wish to be declared’. Dawson cites four more cases that involved the relation of Crown title to land and property rights that existed prior to an imposition of British rule, and a further case brought by people who held property under native title and claimed those rights against appropriation. The judgement was that ‘the only legal enforceable rights they could have as against their new (British) sovereign were those … which that new sovereign … chose to confer on them’. Yet another case concerning land in India (at a later date) arose when sovereignty was passed over to the (British installed) ‘Government of India’. As being the agents of Crown title, the Government ‘had the right to recognize or not recognize the existing titles to land. In the case of the lands in suit they decided not to recognize them, and it follows that the plaintiffs have no recourse against the Government in the

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municipal courts’ (Mabo, 12). Their Lordships ‘decline to consider whether the decision was just or unjust, politic or impolitic’ (Mabo, 124). In a case in Nigeria, the Crown did recognise rights existing prior to the assumption of sovereignty. Although ‘there was no doubt that the radical title to the land was vested in the British Crown, compensation was involved for land taken for public purposes’. Though the municipal courts ‘cannot enforce obligations … against the sovereign, it did afford some evidence of the recognition of those rights by the new sovereign’. Furthermore, the Privy Council considered that ‘the system of Crown grants … was not introduced with a view to altering substantive titles already existing but to define properly those substantive titles’. The Privy Council concluded that the radical title to the land … in the Crown … was ‘throughout qualified by the usufructuary rights of communities, rights which … have been respected and recognized’ (Mabo, 125). In another case (in Lagos) the Privy Council judged that the treaty of cession was an act of state by which the British Crown acquired full rights of sovereignty. Even so, ‘the courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected’ (‘Mabo’, 126).1 Mabo claimed rights deriving from pre-existing and continuing inhabitation and use. Dawson can see only that ‘recognition of these interests by the Crown may be a matter of inference from … the Crown’s permission of continuing habitation’. Dawson cites a case concerning those dispossessed by British rule of what they had owned under a previous Chief in Rhodesia. In this case, British possession was achieved by conquest and the Court dismissed previous property rights as having no continuing validity. In choosing these cases Dawson is arguing that interests in land occupied before or at British settlement (or conquest) are those granted the occupants by favour of the Crown. Such grants are not to be taken as the recognition of a right or title continuing from times before settlement. While the ‘Crown’ may ‘acquiesce’ in the continued occupancy of the land by aboriginal inhabitants, such interests ‘can then only be determined by reference to the nature of the former occupancy’. He concedes that where claims are favourably considered by the Crown, ‘the new title may be identifiable by reference to the previous title’ (‘Mabo’, 129). What he resists is the notion of some ‘native title’ (even to gather food) that predates and survives possession of the land by the Crown. Dawson declared as irrelevant to the status of occupancy under British laws the existence or the details of aboriginal law in relation to tribal territories. Any ‘native title’ must be a construct of British (or Australian) law. If informed by the needs and concepts of aboriginal law and practices, still it is the prerogative of British (Australian) sovereignty to countenance that. He admits only ‘the appearance (not a matter of law) that native interests may continue undisturbed’. Thus when Dawson reads judgements made in the USA and in Canada that respect traditional occupation of land, he interprets an apparent recognition of rights as lacking 1 Dawson insists that ‘the Crown is [not] legally bound to pay compensation’. (Those who found for Mabo differed about the question of compensation for dispossession.)

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legal force. (Some of these cases are like those Brennan cites when arguing for recognition of native title within Australian law.) Dawson would minimise the difference between himself and the other Justices – they all accept that the Crown has the power to recognise aboriginal interests stemming from times before Crown possession. The difference between him and the others is that Dawson recognises no ‘burden’ upon the Crown to use this power in the interests of aboriginal subjects. He interprets Crown ownership as creating a radical break with any rights and obligations that arise from within indigenous custom and law. Therefore it is not obliged to recognise what remains of them after settlement. Those prior rights to land become ‘interests’ that the Crown may countenance, at its pleasure. This has an immediate bearing on the ‘Mabo’ case. The State of Queensland acts for the Crown in determining the use and status of Crown land. If it pleases the State to ignore the traditions and established occupancy of aboriginal people then that injustice is not the business of the High Court but of the Parliament of that state and the voters who elect it. Parliament has the power to pass laws recognising aboriginal claims to traditional lands. Facts and Precedents: Under an Opposite Sign In the choice of cases that he cites and in his interpretation of them, Dawson accounts for his difference from the other Justices. For Brennan, the claims of native title require more than concessions offered as ‘generosity’ or ‘clemency’. Continuing native title constitutes a legal ‘burden’ on the Crown in its decisions about land use, occupancy and ownership. It is a case argued in the Privy Council (British court of appeal) in 1888 concerning native title for indigenous people in Canada that Dawson takes most seriously. ‘[A] royal proclamation of 1763 [stated] that … it was just and reasonable that the several nations and tribes of Indians who lived under British protection should not be molested or disturbed in the “possession of such parts of Our dominions and territories as, not having been ceded to or purchased by us, are reserved to them or any of them as their hunting grounds”’ (‘Mabo’, 131). Furthermore the proclamation of land reserved for the ‘Indians’ was ‘not the only source of their title’ which would imply that respecting it was not simply at the Crown’s pleasure. Furthermore, though the ‘nature of the Indian title has never been given a precise answer … Lord Watson did suggest [it was] a ‘right to possess, use and enjoy the advantages of land … without causing damage or prejudice to it’ (Mabo, 132). This would seem to be a precedent relevant to Mabo’s claim, but Dawson takes the matter no further. Dawson then considers cases argued and won in the USA in respect of indigenous land claims as irrelevant to the Australian context because ‘policy involved dealing with a largely hostile native population’. A treaty made after ‘hostility with the natives’ has a particular status, in Dawson’s view. It is significant, then, that Dawson does not consider the extent of aboriginal resistance to displacement under British (and then Australian) sovereignty. Also, he does not take up the relevance of legal arguments current at the time of settlement in 1788 that land

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in Australia could be appropriated without reference to previous inhabitation. In those arguments it is taken as relevant that the land was not inhabited in a legal sense of rules of land use and territorial limits. By the same token, evidence of systems of indigenous law would be relevant to Mabo’s claim. As he constructs them, Dawson’s arguments move directly from the ‘radical’ title that exists for all lands claimed by the Crown to the entirely unfettered right of the Crown to dispose of those lands in any manner it pleased. These arguments bypass the question of whether the land of Australia was held by occupation without significant displacement of others, or gained by dispossessing others, or by conquest. These distinctions, however, do sometimes bear upon Dawson’s attitude to the rights of indigenous people. We have noted that he respects the land rights of ‘Indians’ in the USA because wars were conducted and treaties were made. And yet he had declared the distinction between conquest and peaceful occupation in the Australian case as irrelevant because Crown title is absolute and the use of land is at the Crown’s pleasure. Dawson seems unsure how seriously to take warfare as establishing rights to land. In the United States he finds it relevant, but closer to home, in New Zealand where warfare has resulted in formal treaties he returns to his ‘basic principle that, upon the assumption of sovereignty, the radical title to lands in New Zealand vested in the Crown [gave] it the right - apart from the treaty - to extinguish native title’ (‘Mabo’, 137). It is significant that Dawson repeats so often this legal fact of the ‘radical title’ possessed by the Crown, which is the point of no distinction between him and the other Justices. There is no dispute about the power of the Crown to extinguish native title, nor that native title operates as a construct within Australian law. Dawson does not consider, even to reject summarily, the judgement of the other Justices that the Crown must exercise this power with regard to justice in common law. And if native title is constructed within Australian law then extinguishment of native title would come under legal scrutiny of the Racial Discrimination Act, for instance. It is Dawson’s re-iteration of the Crown’s ‘radical’ title that provides his argument with an air of unimpeachable authority. By re-iterating what all must accept, Dawson appears as the one who rests on strict legality while his fellow justices are swayed by moral emotion. Dawson leaves untouched the points that are in contention. Judgements in the nineteenth century that set the precedent for denying the legitimacy of native title were based on what now is known to the Court as falsehoods about the extent of aboriginal occupation and the system of laws that governed the use of land. Those judgements that set the precedents upon which Dawson relies make the presumption of an absence of pre-existing ownership of land when Australia was proclaimed a Crown possession. Brennan’s case that Australian law must recognise some form of native title also stems from his attention to current Australian common law - something ignored by Dawson, as if it were only an issue of ‘sentiment’. Both Dawson and Brennan take the judgements in the nineteenth and twentieth centuries as highly relevant to their arguments. Dawson, however, does not deal with the fact that the

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Australian High Court is now autonomous, not subject to decisions by the Privy Council in Britain. While Brennan and Dawson are in agreement, in fact, that the High Court cannot make a judgement that would ‘fracture the skeleton’ of the judicial system within which it is made, they, with the other Justices who found for Mabo, recognised that the skeleton had grown. There was now legal space within which a new judgement could be made, responsibly. Brennan argues, then, that recognition by Australian law of native title does not fracture the skeleton that upholds the orderly disposal and ownership of land. We shall find Dawson claiming that the recognition of native title risks doing precisely that, but he makes no attempt to rebut Brennan’s case. There are two fundamental points that safeguard the ‘skeleton’ of law, untouched by the new judgement about native title. Even as they safeguard non-indigenous land ownership, these points limit the justice that aboriginal people might achieve from the ‘Mabo’ decision. First, native title has automatically been extinguished on all land that has already been granted or sold with a title valid in Australian law. Second, the Crown retains the power, despite the existence of native title, to extinguish that title. The difference is that it must not transgress Australian law (such as the Racial Discrimination Act), or principles of common justice, in doing so. In Brennan’s judgement the lack of a precise definition of native title is no objection to taking it seriously. He seems to have been right about this. Following the ‘Mabo’ case, basic ground rules about prior possession and use of land were sketched out. The formulation of more precise rules regarding the entitlements and basis for claims was thus a task set for future work – both in the courts and in parliament. In contrast, Dawson questioned the very status of native title. The plaintiffs (‘Mabo’) maintain that aboriginal title may be extinguished only by express legislation and that the specific act of the State of Queensland would violate the Racial Discrimination Act. Dawson claims that it requires no legislation to extinguish native title, if that means the expectation of continuing customary occupancy and use. What it does require is a ‘plain intention’ by the Crown. We may recall that although the plaintiffs argue that legislation is required, Brennan does not make this assumption. He argues, rather, that such acts of dispossession flout principles of common law justice. Dawson insists upon the power of the Crown to extinguish native title while his fellow Justices insist upon the role of the Court in judging whether such a power is exercised according to principles of justice in common law. It thus appears that Dawson, rather than making a contrary judgement, fails to exercise his legal judgement on that vital issue. In dissenting, Dawson has not ventured onto the new ground established by the existence of autonomous Australian law. Terra Nullius Dawson accepts that the arguments involved in the ‘Mabo’ case cannot be restricted to the legitimacy of Crown appropriation of land in the Murray Islands. In doing so, he points out that in declaring its power, the Colony of Queensland

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‘saw no need to resort to notions of “terra nullius”’ (Mabo, 138–39). Nor did it rely on definitions of the annexation as involving conquest, the ceding of the land, or of occupying ‘uninhabited’ land. This does not demonstrate that the issue is irrelevant to the justice of the act, however. We have noted that from the time of settlement in 1788 questions of the land as formally ‘belonging to no-one’ were in the forefront of legal and administrative discussions. That the islands were annexed as a convenient place to locate aborigines on the mainland made it possible in 1878 to overlook what used to justify not granting ownership or lease of any land to aborigines in the decades after 1788. Dawson has argued that so far as precedent is concerned, land was regarded as legitimately annexed regardless of how it was acquired. This is supposed to render the whole question of ‘terra nullius’ irrelevant to the debate about the legitimacy of dispossession. In the next paragraph (36), however, he returns to the fact that ‘from the inception of the colony, the Crown treated all land in the colony as unoccupied and afforded no recognition to a native interest in the land’ (Mabo, 139). Always ‘terra nullius’ lurks in the background. Brennan’s argument is that the conception of the land as not effectively belonging to anyone was a crucial part of the justification for dispossession of aborigines without compensation. From the new base of a High Court now functioning autonomously, separate from (though derived from) British law and precedent, Brennan challenges, as established on false premises, precedents made ever since colonisation of Australia began. Certainly, Dawson assembles an impressive array of judicial and administrative decisions throughout the nineteenth century to demonstrate that it was considered legally proper to dispossess aboriginal people without compensation or any means of resettlement. He uses these facts to support the idea that these matters were part of the version of British common law that had been imported into the colony. (He makes no mention, however, of the evidence of serious and persistent doubts about the justice of these practices.) Dawson says that however ‘unpalatable’ this history may be, ‘it would be wrong to attempt to revise history or to fail to recognise its legal impact’ (Mabo, 145). The judgement for Mabo as articulated by Brennan does not revise this history. Nor does the judgement ‘fail to recognise its legal impact’. The vast impact of the past refusal to recognise any kind of native title is that almost all arable and watered land (and a great deal of the rest) is forever beyond any aboriginal claim for redress or compensation for dispossession. Native title has been extinguished by the granting of lands to private individuals and to companies. Whatever the injustice of the original proclamation in 1788, and whatever the injustice in the ensuing dispossession, the Court that found in favour of Mabo’s descendants held that native title was forever extinguished over land that had been granted or sold for the use of settlers. What remained within the Court’s power, however, in addressing the justice of Mabo’s complaint, was to rule that what remained of ‘unalienated’ Crown land was subject to claims of native title on the basis of a continuity of use and occupation of such land.

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Dawson confesses that ‘there may not be a great deal to be proud of in this history of events’. He admits more than he realises when he observes that ‘the policy which lay behind the legal regime was determined politically’. He claims that ‘however insensitive the politics may now seem to have been, a change in view does not of itself mean a change in the law’ (Mabo, 145). Certainly, a change in political outlook is not a change in some specific law. But Justices now judge what constitutes a just use of the power of the Crown. They are not creating a new law. (That power does belong to parliament.) They are interpreting a principle of justice in the light of what is now known about its field of application. Dawson is also right to say that a change in commonly accepted views about the dispossession of aboriginal people does not constitute a change in the law. Brennan lays hold of Dawson’s undeniable evidence that dispossession without compensation was normal practice throughout the nineteenth and much of the twentieth centuries. He does not deny it, but writes his judgement cognisant of the precedents that Dawson sets out. Brennan writes ‘According to the cases (of the sort that Dawson details) the common law itself took from indigenous inhabitants any right to occupy their traditional land’. Recognising these facts is the ground for his informed judgement: ‘Judged by any civilized standard, such a law is unjust and its claim to be part of the common law to be applied in contemporary Australia must be questioned’. It became a common theme of those who criticised the Mabo judgement - the very right of a court to make such a judgement - that it was the business of an elected parliament rather than the High Court to change laws in connection with the rights of aborigines to land. Dawson himself says precisely this in concluding the principal section of his dissenting judgement. This view, however, is inconsistent with the practice of the courts in having created precedents of not recognising native title. These problems have always been within the jurisdiction of the courts. It cannot be now be said that such issues are beyond their proper powers. That would be to deny all legitimacy to the making of the precedents cited by the critics of the ‘Mabo’ judgement. It has always been the business of the courts to judge on questions of the justice of land ownership, tenancy and distribution. In historical terms, it is not shocking that a new judgement should be made by the High Court in 1992. It is an institution no longer subject (after the Australia Act of 1986) to appeals made to the Privy Council in Britain. It was called upon to consider justice for Australian citizens. When previous judgements had been made about them, they were not yet included in the census or reckoned as entitled to vote. So what emerges is that Dawson did not make a different judgement about what is just under contemporary Australian law from that made by Brennan, Mason, Deane, Toohey, Gaudron and McHugh (those who judged in favour of Mabo). Rather, he has made only a deduction – that the Crown had the power to grant or to withhold entitlement to land at and after the proclamation of sovereignty. Dawson is right in saying that a change in sentiment is not a change in the law, but Brennan’s invocation of justice in common law is a judgement of principle based

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on a change in our knowledge about the people to whom the law applies. In terms of judicial reasoning, Dawson radically under-describes (as ‘sentiment’) the changes in outlook on the question that had gradually developed in the two centuries since settlement. A change in sentiment that is brought about by profound changes in knowledge about the nature of the society of the indigenous people generates a changed judgement about what constitutes a just settlement of their claims. Thus it is relevant to the interpretation of common law. Dawson suggests that the High Court arrogated to itself the powers of parliament in finding in favour of Mabo. But the Court did not need the powers of parliament in order to consider a question of common law. In saying that only an act of parliament could give legitimacy to native title, Dawson judged that he should make only determinative judgements that create no precedent. The appeal to common law justice calls out for reflective judgement, since the principle is too open to determine an answer by logical deduction, and a judge must interpret the content of the principle from the exemplary case that comes before them. While there are questions of justice that do lie outside the jurisdiction of the High Court it is implausible to suggest parliament as the proper body to determine what is just in common law. Certainly the High Court can decide nothing about the justice of the original declaration of this continent as under British sovereignty. The question of the burden of justice that resides with the Crown in exercising its power is another matter. Judgement’s Arbitration Judicial Pleasure It is of the essence of judgement that it involves the one who judges in being pleased or displeased at a certain situation, or the very idea of such a situation. One hesitates to state such a position baldly within a situation of controversy because of those who are cynical about judgement – particularly legal judgement since that assumes authority over them. Such cynics will read this hypothesis as saying that any legal opinion is as good as any other and that only the judge’s sympathies (or lack of them) determines whether a judgement will be in your favour. That is neither a proper reading of the hypothesis nor of what is involved in judgement in any case. Particularly when a judgement is not popular there is talk of judgement as ‘arbitrary’, which is strange since it is precisely arbitration that we call for in a judgement. The judgement that is made in becoming being pleased (or not) with a certain situation has its reasons as appropriate to what is being judged, and to the mode of judgement as concerning matters of law, custom, or simply etiquette. (If it lacks reasons entirely it is linguistic charity to call it a judgement at all. Simply to decide is not enough.) As such, a judgement is open to being justified – or else demolished by a manifest lack of grounds.

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As being vulnerable to what is the case, and open to criticism by appeal to principles of evidence, judging as being pleased at runs in parallel with thinking (‘opining’) that something is factually the case. Reasonable people differ in the factual conclusions that they draw from any given evidence. Reasonable people differ in whether they are pleased or displeased, in the light of what they know about the ins and outs of the situation they are judging. Much as they differ in what they think is the case, they differ in whether they are content with it being the case. Furthermore, people can pretend to think what they fancy they are supposed to hold, as reasonable people. It is hard to guard against that corruption of the process of communicating reasonable factual views. Parallel with that, people can pretend to be pleased that some situation should obtain, because they are afraid of how they will be viewed, or even how they will view themselves, if they are not pleased at it. The cynical reading of judgement as being pleased at is that in matters of judgement, then, a person can ‘decide what s/he likes, just as s/he pleases’. But it no more follows that I can be pleased at whatever it suits me to be pleased at, than that I can really think (‘opine’) whatever it suits me to think. The evidence at hand may give me virtually no alternative but to think that a good friend of mine has committed a serious crime. The evidence has the same force in making me displeased at the very fact – the very idea – that he should have done such a thing. The parallel of opinion with judgement is simply that it might please me if I were able to be neither pleased nor displeased at the sort of crime of which my friend is accused. I would be more comfortable in my mind if I could find a way of opting out of judgement. I would then be spared the pain of thinking very badly of him. But I cannot ‘please myself’ in that sense about whether I am deeply displeased at the very idea of such a crime being committed. If he really has done what the evidence implies then his action incurs (in the old-fashioned cadence) my deepest displeasure. What makes legal judgement legal rather than moral (on the one hand) or a pure judgement of what is right (on the other) is that it is either a determinative judgement of a case that it falls under a given legal principle, or a reflective judgement that it is an exemplary case that requires the creation of a precedent. The judgement as legal is also constrained by the requirement that any creation of a precedent can be deemed (judged) not to be contrary to any written legislation. (Of course it does not have to be entailed by any such legislation or there would be no room for judgements that create precedents.) The remainder of what prevents a legal judgement from being whatever the judge pleases is the whole educational, social and institutional framework of law, whereby each person judging knows that a judgement can be open to appeal. This inhibits but does not eliminate the creation of precedent because any one judge is aware that his or her colleagues are aware of the need to be able to create a precedent when a new kind of case arises, or an old one is presented in a new light, and framed by a different structure of facts. The judge who creates a precedent is aware that his or her fellow justices are capable of considering reasoning to persuade them of the justice of the creation of a precedent.

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We can feel in the considered language and extensive reference to history of Brennan’s judgement the weightiness of the tradition that bears so heavily that no one judge might ever create a striking precedent. And yet this weightiness becomes a source of the strength of mind it takes to be (judicially) displeased at a series of judgements (unbroken for one hundred and fifty years) that denied indigenous people any kind of entitlement to the land they had possessed since time immemorial. By turning back to the struggles between king and people in feudal times Brennan was able to show both how the law must be capable of some shift in shape that does not break its bones of continuing legitimacy. Without that capacity for growth we would still live under a law of the ‘divine right of kings’. And, even the ‘divine’ right of kings had to be exercised over people who were prepared to recognise that right. If it was not to become known to all as a ‘satanic’ right, then the king had to be able to present judgements as being just. The Crown’s title to his or her whole realm could not continue to be taken to legitimate seizure of property or life at the whim of the current royal. I shall not reiterate Brennan’s own arguments; they were designed specifically to demonstrate the long-standing and profound distinction between what has become the ‘fiction’ of crown title, and the ‘beneficiary title’ (freehold) tenancy that is (now) the right of the common people. I would, however, remark on the logical and persuasive power of his employment of historical arguments that go back behind the very settlement of Australia to find the legitimacy of Eddie Mabo’s claim. The Crown had, for centuries before settlement, been bound in common justice not to wilfully, or in a discriminatory manner, without compensation or excuse, deprive its subjects of land they had long held and used. These claims constitute a ‘burden’ on the proper and justice use of the powers of the Crown. So Brennan is arguing that as he looks with a clear eye and head at the facts of the case and the nature of law as it pertains to the powers of the Crown he can be nothing other than displeased at the intended action of the State of Queensland (under the powers of the Crown) to deprive Eddie Mabo of the land upon which he and his forbears had dwelt for generations. The High Court judgement is not ‘determinative’ (as Kant or Arendt put it) since there is no specific written rule governing Crown prerogative that enforces a claim that Mabo’s would typify. That such an act, in Mabo’s circumstances, would be against common justice is a legal judgement. It is a judgement that is only possible within the framework and institutions of Australian (previously British) law. To that extent it is irrelevant whether Brennan is pleased or displeased. One who hankers after a purely objectivist account of judgement will rightly insist that it is the legal case rather than the feelings of the Justices who found for Mabo that determines their judgement. That is what determines them, as a High Court Justices. But I argue that a hypothesis about the nature of judgement as being pleased at is untouched by that objectivist objection. The event of coming to a judgement is, on my hypothesis, one and the same with coming to be pleased (or displeased) at a state of affairs – at the very idea of it. A judgement is not (or should not be) determined by feeling. This follows from the theory of judgement as the

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gaining of a resolved feeling – in the light of the relevant case for the judgement in hand. The feeling, being the judgement, cannot influence it – for better or for worse. The feeling, being the judgement, cannot take the role of an improper bias of that judgement. Thus (on the hypothesis being tested) Brennan’s judgement against the State of Queensland is (in those circumstances and under those constraints) his being displeased at the State’s intention to make no consideration of common justice in its (intended) dispossession of Mabo. And, as the Justices make explicit in their judgement, Mabo’s claim becomes an exemplary case for anyone in his position of having been threatened with summary deprivation of the occupancy and use of their traditional land. The Validity of Judicial Pleasure The ‘Mabo’ decision is an exemplary case of judgement. If we pay attention first to an exemplary case of a judgement then we have a chance to tell the right story about it. We need already to employ judgement if we are to give any just account of judgement. Furthermore, if we start with theory then we have already assumed the priority of determinative over reflective judgement and perhaps have betrayed our cause before we had begun. If we set out from the exemplary case then we are in a position to check how an intended account of judgement works – what makes it an achievement that differs from inference, perception, thought or theory. We have displayed something of what judgement involves. The case indicates what it takes to make a judgement, what is done when judgement ‘goes down’ and how, even within the most sophisticated and institutionalised reason, judgement involves pleasure and displeasure. Much of the recent discussion about Arendt’s use of Kant on judgement has involved a struggle between the ‘Habermasian communitarians’ and the ‘post-Kantian’ position represented by figures such as John Rawls. Within that problematic the paramount question concerns the conditions of the validity of judgements. The very reasonable requirement of communicability of judgement and the need to ‘visit’ other points of view generates an argument about what makes a judgement a ‘sound’ or ‘valid’ one. But then this ‘communication’ of judgement and the ‘visiting’ of other points of view are made criteria of having made a judgement. That, I think, is a mistake. Important as ‘communication’ and ‘visiting’ are in their own right, the enquiry into their role does not tell us what it is to judge. Consider a judgement made by someone who has not discussed it properly and has not ‘visited’ other points of view. Though its validity is initially questionable, it might come to be regarded as a good judgement when, finally, the relevant considerations are fully articulated. And in any case, we still need

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to understand what has transpired when the judgement was made. What is a judgement? An occurrence? An achievement? A process?2 In advancing the hypothesis that to make the judgement is to become pleased at (the very idea of) something’s being the case, it is the specification of what I am pleased at that determines the judgement as legal, aesthetic or moral – or perhaps an issue of etiquette, athletics or music. I cite and describe the Mabo case as a way of indicating the importance and gravity of judgement and to indicate what transpires when a judgement is made, and to indicate how judgement as being pleased takes its proper place in the business of institutionalised reason. Judgement as becoming pleased at a situation is a hypothesis that must be adequate to the phenomena of judgement. Arendt emphasises both reflective judgement (from an exemplary case up to principle) and determinative judgement (from principle down to case). She has been described as working towards a ‘non-juridical’ political philosophy and yet here we extend her legacy by recognising reflective judgement at the heart of a judicial decision. Arendt is alert to the need still to judge when the stairs from ground floor to principle ‘lack banisters’. In the Mabo judgement law does provide the stairs but the banisters fall away when there is a major break with precedent. Judges then depend upon a poised strength of character – mental structures that contain their long experience and the inheritance of the law’s centuries. In making a judgement they apprehend ill-informed criticism. Confident in their displeasure at a prevailing legal situation they are prepared to make a judgement that is judicial in being precisely informed by a system and tradition of law. The appeal to ‘justice in common law’ dismantles the opposition between the unguided and the juridical, or the reflective and the determinative. To deconstruct a distinction is not to destroy but to exhibit it. A judgement such as the Mabo decision involves a reflective moment where principle is formed and informed from an exemplary case – the essence of a reflective judgement. But in this moment the reflective borrows from and is borrowed by the determinative moment of legal history and specific precedent. This is why the decision for Mabo in terms of ‘justice in common law’ is a legal judgement and does not reduce to a prevailing sentiment. But also we challenge the insinuation of ‘sentiment’. Without judicial pleasure or displeasure judgement reduces to deduction and cannot perform its task.

2  For instance, Kierkegaard (Kierkegaard 1983) and then Derrida (Derrida 2007, 119–158) have examined what was involved in Abraham’s judgement – even more dreadful because absolutely uncommunicated – to set about obeying God rather than preferring the life of his son.

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PART II Making Judgements

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Chapter 4

Judging as Right An aura of arrogance surrounds declarations of a judgement of an action as right. Famously, Tony Blair committed Britain to the invasion of Iraq in claiming it was right that the dictator Hussein be deposed. It is the reasons for judging something right that are the reasons for doing it. That it is right cannot be a reason for judging it to be right. Judging as right has echoes of the political right; what is right sounds bad to the left, who cannot retort ‘It is left!’ The left also must judge it is right. ‘It’s left to be left’ says nothing. The left, suspicious of being right in being left say it is not right to be right.

Categories and Commitments Judgements are made about issues other than what is right, or what is a thing of beauty. ‘All sentencing is judging’ warns us not to be blinded by the no-brainer – the error of saying no to the brain. When ambiguity, ambivalence or controversy removes our comfort zone we proceed without a set rule. We must judge what kind of judgement to make. Tentative categories locate the place from which to do it. We can use Kant’s distinction of ‘pure’ and ‘dependent’ beauty without confusion if we take ‘free’ and ‘dependent’ as kinds of judgement rather than of beauty. Free judgement concerns whether something is beautiful whereas dependent judgement rates something as an example of its kind. It is under no concept that we judge something as beautiful. If I judge a flower as beautiful then I do not rate it on a scale of fine examples of that flower. That is an arbiter’s judgement in a flower show. The arbiter need not find a bloom beautiful in order to pick it as the finest example of its type. The same goes for a judgement of what is right. We judge what is right, but not as relative to a concept. It will emerge in the grounds that sustain a judgement whether it is dependent upon a concept. Someone who makes a free judgement that it is not right to apprehend someone for possessing a small quantity of drugs can make a dependent judgement that as a police officer she ought to do that. She might then make a free judgement not to do her formal duty. It is not only these iconic judgements of what is right or beautiful that are ‘free’ or ‘dependent’. Free judgements come into play when we contest criteria, or discover inconsistent ones. Also, even a dependent judgement at a dog show – whether the poodle has been clipped in the right style – leaves open the judgement of it as the best clipped or the most beautiful in shape or deportment. There is another division of judgements that cuts across distinctions of gravity and category. Some sentencings are essentially judgements – there can be no

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recourse to measurements or calculations instead. You judge as appropriate in the circumstances a joke you have the urge to make. Many sentencings are not essentially matters of judgement, though judgement was made. Early aviators judged whether their planes were flying level. Confident in using cues they were pleased at their situation as ‘flying level’. From the ‘seat of the pants’ it ‘felt right’. Now pilots check judgement against instrument. Judgement is essential or not in the situation. Being pursued I judge whether to leap a gap. A sports laboratory might analyse from my style and strength whether I could make it. (What is at stake in taking the risk is a judgement essentially.) So changes in technology replace some sentencings that had to be judged. That early aviator again – though informed by a fuel gauge and an airspeed indicator – could not calculate exactly how far the plane would fly before running out of fuel. She had to judge the effect of weather conditions, for instance. Now a computer might adjust the estimate from meteorological data. But we cannot imagine how to program a computer to tell her whether her joke on the intercom to the passengers after an alarming event in flight is appropriate. Comedy depends on surprise. A ‘sense of humour’ is a good judgement of the audience in its current mood. You judge that on the spot. Science fiction in which social interactions are quantified by one’s information device reveals the subtlety of judgements of self and other in our social interactions (Shteyngart 2010). A comedian essentially judges the line that startles the audience to laughter, not disgust. Since judgements fuse we may confuse the implicit free judgement with an associated dependent one. Defusion (to coin a term) cannot quite purify the blend since the judgement ‘free or dependent’ might be fused. In the simplest description we evaluate in the one hit, an epithet as witty and its object as deserving of it. These minimal evaluations involve free judgement even though impure. Because we fuse dependent and free judgements, when we sentence we normally do more than classify according to a concept. So someone judges whether to leap across a gap, which fuses the comparative estimate of distance against agility, with the free judgement that it is worth taking the risk. Although only a small subset of judgements, the range of free judgements is broader than that of the classical values of what is good, or right, or beautiful. In a crisis, I must determine what to do. In judging what to do, I go beyond fitting objects and events to their concepts; I determine what will be recognised after the event as the operative category of the choice. ‘Is this an easy jump?’ and ‘Is it betrayal to be captured?’ are barely conscious dimensions of the judgement that fuses them in action. Nice questions of social behaviour can tax judgement more than momentous issues. We do not ponder non-comparable issues in judging the Nazis’ extermination of the Jews of Europe. It is a failure of judgement to treat finer social feelings as trivial by comparing them with ‘real’ disaster. As we ponder what it is suitable to give as a wedding present we fuse issues of affection, economy and social form. We may contemplate, too, what this wedding means and how marriage affects a relationship, or whether we really care what the couple will think of our gift.

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Free judgements ‘spring up like partridges’, in Sartre’s phrase. The small-scale judgement can be intense. Can you speak directly with someone about an issue? Will a joke get you by? Can I speak confidentially? Or the issue is absurd: in new company we hesitate to pick up a cutlet from the plate to get the last shreds of meat. In judging such everyday ‘trivia’ our sentences cannot reduce to the dependent judgements of category that may be involved. In dealing with how to rub shoulders while not rubbing them up the wrong way, the question of what to do flies beyond the field of categories. It is the right action over-all that does not fall under a concept. We may find we need a philosophy that creates concepts (Deleuze 1994). Only in retrospect might someone state a principle for future use. Free judgements are required not only in responding to those tremendous issues of what to do when you discover you have been born into in a society that practices slavery or declares a war you take to be unjust. Life demands of us these minute (small, up to the minute) free judgements where the prevailing rules guide you the wrong way. Sheer decision is not enough – as if to toss a coin would do. As Arendt reminds us, the practice of thinking breaks up the shiny surface of words and appearances; it readies us to judge. These small, subtle judgements that make no news are not petty. To be petty is to fail in judgement already. Judgements that extend from etiquette to social considerateness grow without warning in the eruption of large issues. At dinner, conversation with the acquaintances of friends reveals vicious attitudes. Will you risk ruining your friends’ party in saying what you think? You make a judgement, but not between fine principles of social consideration. The choice is between social decorum and ‘defending what is right’. Is ruining your friends’ event just collateral damage? Or are you confusing moral emotions with what the situation itself requires? Perhaps ironic repartee is the only answer. In small decisions as in mortal ones, to qualify ‘right’ is to fudge the judgement of what is right. To use the right tactic to defraud someone is not right. Judging what is right goes beyond the question of satisfying the criteria for a concept. To judge what is right is to judge tout court. Judgement of what is right is achieved in a conceptually open court. We question and discuss established principles. We appeal to them to aid judgement rather than settle the conclusion without the need for judgement. Judgements tout court are free of conceptual qualification such as ‘customary’, ‘moral’ or ‘prudential’. Judgements of what is customarily, morally or prudentially right may enter into the considerations of what is right, but do not overtake or determine it. Certainly, in making judgements of what is right under some particular limiting concept we reason and determine grounds within that concept. It is clear that when we decide that someone is a good employer or good citizen, a judgement of what is right goes beyond fixing what is judged under a concept. In doing that, we have yet to judge whether (given what that employment involves) it is right to be that good employer or that good citizen. Having decided that some procedure is the right way to break down a suspect by torture, we have yet to judge whether it is right to use that ‘right procedure’.

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Much of the time this need for judgement may be hidden by the everyday making of decisions that we intend to be limited, dependent for their validity upon already established categories whose adequacy is take for granted. It is not that we fuse or confuse what is right with what is sanctioned. We mean to judge only what is fitting or appropriate. We want to resolve whether what we would do is sanctioned by the morality of our society - or of one in which we find ourselves cast. That constitutes its own problem for judgement. There is thus an uneasy oscillation in the use of the phrase ‘moral judgement’.1 Sometimes it is used for decisions about what the rules are and whether an action falls within them. But when the rules are found unacceptable we revert to free judgements. ‘Moral judgement’ swings towards pleonasm – to speak morally is to judge. Then it swings back towards oxymoron – to speak morally is to defer judging what is right whereas to judge is to critique what is morally expected. We like to use ‘moral’ in ‘morally right’ as if it determined a particular category of what is right. In effect, however, ‘moral’ as an intensifier insinuates that ‘right’ is critically weak. We like to talk of ‘moral judgement’ to mean a judgement of right or wrong. It is a mistaken feeling that judgement is supported or categorised by such an epithet. Within this feeling, rightly uneasy that ‘morally wrong’ contains judgement within current practice, we redouble the epithet and utter (in the language of ‘community leaders’) ‘morally and ethically’ wrong. The defender of public values speaks to cover both bases because they have secured neither. We are not about to be told of some actions that are ethical but immoral while others are moral but unethical. Rightful Cause: Just War2 War as Terror: Terrorism as War We become hardened to making hard decisions. In the process we lose our power of free judgement. Having bound our judgements within customary mores as signalled by ‘morally good’ and ‘ethically right’, we lose the concepts to appraise violence (for instance). Our mores are built to do more than tolerate some ‘necessary’ lapses into violence. They are finely honed; they put their own gloss on it. We have a 1 Alice Crary argues against limiting moral thinking to moral judgement (Crary 2007, 1). While emphasising the need for judgement within and upon morality, I agree with her. My prior work (Deutscher 1983) also recognises objectivity as involving subjectivity. Her project for ‘ethics [to] reach all the way to [our] sensibilities’ runs parallel with my effort to extend Kant’s theory of aesthetic judgement. 2  I have not placed these ideas specifically in relation to Arendt’s complex distinction between the values of morality and politics. George Kateb (of course) covered this ground very finely (Kateb, 85–112). Also, see Phillip Hansen on ‘Kant’s surprising discovery that moral philosophy was no help [in coming to terms with a politics] (Hansen, 195–229).

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ready-made path to judgements that some in our society ought to ‘do their duty’ and go to war. The use of cluster bombs and mines laid in the agricultural fields of the people of one’s national ‘enemy’ is judged ‘part of the ugly but necessary business of war’. When confronted not with nations but terrorists – those small groups of individuals who commit atrocities designed to produce terror within our daily lives, we judge these acts as wrong without reserve. We can have no sympathy with what we know of the perpetrators’ cause. To stress its causes does not amount to endorsement. However, ‘terrorist’ has become a cliché that carries a suspension of a properly complicated attitude to the use of violence in war. If the use of violence to produce terror or demoralisation was the whole case for our judgement against all activities of small-group localised bombers then we would judge as wrong also many of the standard strategies of large-scale nationally organised warfare that are specifically designed to terrorise and demoralise a population. The use of cluster bombs, the laying of minefields, the firebombing of cities, and nuclear strikes, all aim primarily to terrorise, demoralise, kill and maim people without discrimination of combatant or non-combatant. ‘Ah! To indulge in these reflections is to lapse into a ‘relativism’ of ‘moral equivalence’, say those who speak for the organised nations that combat the atrocities of ‘small-group’ terrorists by use of large-scale terror techniques (‘shock and awe’) against countries suspected of harbouring those small-group terrorists. But nations are equivalent in that respect to small groups who use violence locally. They are equal in justifying and using terror in pursuit of their aims. The disruption and demoralisation of the populace is a principal technique of modern warfare. If we judge as right some acts of war then we are prepared to judge others as wrong. Nothing could be further from some thoughtless ‘moral equivalence’ of all parties. Of course, we judge an act of war as wrong, immediately, if we have judged its cause as wrong. This is what confuses the issue when (correctly) we condemn the violent acts against civilian populations by religious fundamentalists, for instance. The theocratic state that they aim to install is intrinsically unjust. Laws based on religious faith oppress not only those in the country who hold no such beliefs, but also all children in that country. Children are not yet able to judge whether to adopt a faith, and also are powerless against punishments of them according to those rules. These issues are all contentious, but not fundamentally confusing. What does clarify the relation between any war-like act and the cause of its perpetrators, however, is the shocking immediacy of such violence to local inhabitants of towns and trains that are bombed by terrorists. Those who experience the bombing of the restaurant where they are eating, or the bus on which they travel to work are not already hardened in their judgements of acts of extreme violence typical of those committed in the conduct of a war. Typically, terrorist acts occur as sudden and unpredictable irruptions that explode everyday normalcy. The sensibility of those attacked has not been dulled by some persistent dedication to war. The violence evokes the clear judgement proper to such tactics. Confronted immediately with the nature of war-like violence in our own living space, we neither accept nor reject the perpetrators’ cause in judging an indiscriminate act of

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killing and maiming as wrong. The point of these analytical considerations about violence is not to question that judgement, as if were too ‘hasty’. The point is that these war-like terrorist acts alert us again, in their domestic immediacy, to the wrong that is intrinsic to many standard techniques of modern national warfare. Plainly, then, if we do judge some acts of violence as justified by their cause then we must, with equal rigor, judge the cause of any particular act of terrorism. We may endorse some causes – the aim of the Stern Gang to make the British relinquish control of Palestine after the end of the Second World War, perhaps. Then, the dilemma is this. If some terrorist methods seem defensible when practised in order efficiently to achieve objectives we judge to be right, is it only the objectives of terrorists that is relevant to our condemnation of them? Or has our contemporary experience of terrorist acts made it clear to us that such methods and tactics are wrong? Perhaps our experience or nearby observation of what they involve has brought us to a new unqualified judgement. If one can achieve one’s ends by such means then one must wait until better methods become available. Those who fret at the torture and oppression they must suffer while waiting for those ‘better methods’ to appear around their corner will allege hypocrisy on the part of nations that condemn all terrorism while conducting their own stupendous wars. Here we tend to fly off at a tangent. Hypocrisy is much easier to judge than whether a cause can make acts of extreme violence right. Hypocrisy is a wrong at a minor level compared with one person exploding a bomb in a market place or squadrons of planes fire-bombing entire cities – or standing by and not using even minimal violence to prevent great violence. Hypocrisy is no more and no less than the state or act of being under-critical. In the context of the present discussion, then, someone cites the cruelty of ‘terrorists’ (say, small-group bombers of public places and transport) as a total and adequate reason to condemn them. The next day the same person takes some just cause as a total and adequate reason for a major pre-emptive military strike on the major cities of some nation that involves immeasurably greater killing, maiming and destruction of property. This violence becomes only ‘the rough business of war’. We find ourselves arguing about hypocrisy rather than about violence and its prevention because it seems we cannot continue to discuss anything in the face of this lack of critical attitude. Arguing with such a person is like ‘trying to knock in nails with your forehead’ as Charles Simic wrote a propos arguing with relatives who get all their information from Fox News (‘Diary’, London Review of Books. Vol. 32, 2). The charge of hypocrisy is correct but still it is risky to go off on this tangent. To explode a bomb on a crowded train is immeasurably worse than hypocrisy. Exposing hypocrisy clears the air in disputes but it settles nothing about war, terrorism, violence and what is right. Hypocrisy as one’s failure to be thoroughly critical arises from an uncontrolled shift in one’s perspective and is therefore endemic to our discussion of violence as wrong and causes as right. In thinking we set out from our premises, and these are not the same from day to day in relation to violence, its causes and its cause. In the midst of the market place strewn with body parts and sounding with the groans

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and screams of the wounded, it is obscene to present an argument for the ‘higher purpose’ of the act. But if we presently inhabit the premises that launch the justice of a cause we proceed all ready to justify the violence required. Being seized with the just cause of a projected war one then judges as ‘adolescent’ another who opposes a war waged in pursuit of it. We do judge a war’s cause, and it may be just. It does not follow, however, that the war in pursuit of that cause is just. War is a series of acts of violence against people as members of a nation. As such those acts cannot be just. In war, irrespective of their involvement in the wrong that is signalled by the justice of a cause, people as members of a nation are killed, maimed, made orphans, or physically and mentally disabled. The destruction of property, properties, arable lands (mined and poisoned) and of institutions injures people irrespective of any culpability implied by the justice of the war’s cause. These destructions are the acts that constitute war. As a judgement, ‘just’ does not transfer from cause to act of war. Any case that a war is to be fought, far from being an argument for just war, is an argument that one must perpetrate that prolonged and extreme series of injustices that compose the thing called war. In our immediate sensibility to a ‘terrorist’ act such as the flying of passenger planes into commercial buildings in New York we do not hesitate to judge it as a wrongful act. In that judgement, we are right to ignore the cause of those who perpetrated it. The same distinction holds for the acts of violence carried out in wars between nations. The point is made graphic when, as in the attack on the World Trade Centre, ‘terrorism’ produces large-scale effects that resemble the scenes of war. Certainly, we condemn the cause as well as the action of those who flew passenger planes into a workplace, but the wrong we see perpetrated in the attack, projected before us on television or as bystanders, has nothing to do with that. It is after absorbing the reality of the event that we begin to ask about the cause for which it was done, and the causes – how it came to be that people took up that cause. It is not as if the answers to those questions determined whether a wrong had been done, however. We had the same capability directly to judge the wrong being done to the people of Viet Nam in the 1960’s and ‘70s by the intensive bombing of their cities and country. If we have some inner resistance to that ‘moral equivalence’, it can derive only from the moral pressure exerted upon us as loyal members of a nation. Within that context, criticism of methods of war with a just cause counts as moral treason. The language of shock and awe had to induce our own awful respect! Invading the bloodstream through the wound of just cause, the virus of just war attacks our power of judgement. It emerges in the darkness of thought to neutralise any critique of war from within a nation that practices it. The virus marks with the face of a traitor those who refuse to join in their own country’s war irrespective of its justice. Once war has begun, that question is set aside out of ‘loyalty’. From that point on, to question the justice of the cause is equally morally (and often legally) treasonous. For their part, the small group terrorists burnish military weakness with the wax polish of their cause; they gloss the violence that wrongfully they bring against a populace. Small-group terrorists and warring

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nations are alike at least in this: by ascribing justice to a struggle they defer or disable their own powers of judgement on violence. Disabled in judgement, they project that inertness of sensibility upon any one of their own who places their war in question. The critic cannot feel the justice of the cause, they say. The internal critic is dead to the deeds that must be done. Terrorist violence is wrong in method, language, and aims. It affords us a kindergarten lesson in easy judgements. But when our own nations, in their response, prosecute war on a nation that is made to symbolise that scattered entity called terrorism, all conspires to dull the sensibility that our close encounter with terrorist violence re-awoke. Our projected violence is pre-endowed with an aura of brave solidarity. Peacetime rhetoric –the folly of war – is seduced in the sublime of a Last Post cadence. It fades in the glare of new war. We would like to be Kafka’s He who snatches thought in an eye-blink of the world’s storm to judge a war’s cause even as he contemplates peace. He wants to know its cause; if he cannot fight for that he would prefer to die than to fight. He does not do ‘whatever it takes’. He judges each moment of ‘what it takes’. Of some acts of war he judges not to give that part of what it takes to part-take. He wants to know the war’s causes, also. This conflagration of mind, body and object is no just process but he will stop at something. He does not fire bomb cities. Or perhaps he does not lay mines in fields. Or from the outset he refuses to join in the joining up. Attempts to set limits to the methods of war distinguish a war’s cause from ‘what it takes’ to succeed. We can treat these separately. A war with a just cause is unjust if one has no chance of success, for instance. One kills and destroys for no good outcome. Those who waged the war on Viet Nam finally admit it was ‘wrong’. A mistake, they say. They were wrong in ‘misjudging what it would take’. What is thus true as history runs at a tangent to the judgement of the specific acts of war involved in this little ‘mistake’. Suppose that the bombing of cities and country, the napalming of villages and their inhabitants, and the poisoning of vast areas of the land had brought about the collapse of the Viet Cong. Surveying the human and material ruins our victors might have sighed, ‘war is a dirty business’. Such concessions mean nothing. Just war theory speaks to justify war, no matter that it is critical of some methods and causes. It speaks within the language of authority for the prosecution of wars. It speaks in the terms of a society that enacts war in the very act of mourning its dead. Burglary, War, Mining It might be said that ‘war’ is itself a neutral descriptive term that presupposes nothing about whether a war or war itself is right or wrong. Thus, it will be said, ‘war’ is a term of which one can properly predicate justice or injustice, right, or wrong. It is not like ‘burglary’, a term that implies wrongful appropriation of goods – a wrong that at best might be outweighed by some cause. Justifying war would be like justifying mining. For, mining is not in itself right or wrong and is worth its cost because important to the maintenance of certain cultures and economies.

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What is wrong is the careless operation of a mine. There does seem to be some parallel. Like war, mining is a dangerous activity and we justify it in terms of the value of its outcome. Like war, mining involves risks. Injuries and fatalities will occur from time to time no matter however responsibly it is conducted but still we need the products and so we justify putting miners at that risk. Given the need for the produce, it is right that we proceed with responsible mining. As mining comes under increasing attack by environmental groups and so on, perhaps there will emerge a philosophical tradition of ‘just mining’ theory. It is right that we proceed with responsible mining, and it is right that we prosecute a just war. Indeed, it is wrong if we do not do so. The analogy fails, however. The acts of war are wrong in themselves; the acts of mining are not. War, as such, kills and maims. Otherwise, it would not be war. It would be diplomacy or embargo. As such, mining moves material from where it lies. Any wrong consists only in the method of removal, or in not restoring the environment, or in cutting costs and putting miners at unnecessary risk. The justification of war cannot proceed in that way. Shooting anti-mining protestors is not ‘collateral damage’ intrinsic to mining. The only rightness there can be in acts of war is their being the right way to achieve success in war. Shooting an armed guard might be the right way to succeed in burglary. That is no defence. That the burglar has a just cause does not make the killing right, either. The ‘rightness’ of an act as the most effective way of waging war for a just cause does not transfer to an acts taken as integral to that war. That someone is starving might justify him in breaking into a bakery but killing a guard in order to succeed is not therefore made right. ‘It is right to do this’ is a free judgement whether about war, peace or burglary. It consults only in detachment, the dependent judgement that this is the right way to achieve a just cause. We can apply to judgements of war what Kant said of judgements of what is beautiful. It is a free judgement whether a fine example of a gladiolus is beautiful. It is a free judgement whether a war undertaken for a just cause is just. We who are to Judge Reckoning with Morality ‘Who is to say what is right?’ As rhetorical, the question implies that no one has a right to judge, but that is inconsistent. That none of us are worthy or capable of judging is itself a judgement. If so, then no one is worthy or capable of judging that we ought not judge. Thus we disarm the rhetorical question. Each of us is to judge what is right, on the best evidence and the firmest grounds we can find. Each of us is to judge, individually when we must, and in negotiation with others when we can. While a free judgement is what is needed, the morality of the others with whom you share social space is a relevant (though not final) consideration

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in itself. It is part of the integrity of a society to have a morality.3 Once morality is recognised as a social object, we are free to cherish it for what it is worth. A morality is a thing to be considered, judged, and used for the best. Our easier judgements concern whether an action accords with morality. Being pleased with an action is a judgement only when we are open to criticism and information. Hence, we must take account of morality as a social object when we make a free judgement of what is right tout court. To judge morally and to judge morality is to be both prudent and properly critical. We can say what is moral; we can observe what is moral in the society that sets the frame of our life. We can observe the various mores that prevail in the various moral sectors we find, in business, on holidays, in centres of entertainment. We ignore these mores ‘at our peril’, as they say. To learn one’s morality is more than learning the road rules in gaining a driving license. It is like learning the ethos of courtesy, including its lapses and limits, that prevails in the myriad interactions between drivers as they go about the business of getting to a destination while cognisant of the fact that every other driver has a destination different from one’s own, or a different mode of handling the problems involved in getting there. To tell someone that to be ‘moral’ they will undertake a certain responsibility, or that to step beyond a certain boundary is ‘immoral’, is to create conceptual confusion about what is right. Are those who are being subjected to moral pressure simply being told what is expected of them - and what is prohibited? Well and good. But they are liable to be told these things in a manner that suggests that some judgement has been made about what is right and what is wrong. These edicts of a society’s morals may well be uttered, explicitly or tacitly, as moral judgements. Traditionally, philosophers have imagined that they identify as moral, a peculiar force in judgement that goes beyond saying how a morality applies to a given case, or beyond the system of morality itself. This language of ‘moral judgement’, however, must inevitably fail to convey the particular character and force of such judgements. A judgement whether an act that is required by a morality is morally right cannot exceed the force or content of a judgement that the action is right. A clear ‘moral’ judgement that includes a critique of morality itself is a judgement of good or right tout court. The same goes for a judgement that an object or person is morally good. A judgement that challenges or appraises the moral ethos within which the object and judge is situated can be nothing other than the judgement that the object is good tout court. The morality itself has been in question along with the object – amongst the factors we take into account when judging what it is right, there we find our mores – the rules and shared understanding about what is valued that help to form the identity of a society and the self-identify of its members. Peter Steinberger suggests that when Arendt speaks of the banality of mind demonstrated by Eichmann, and the absence in him of critical autonomous thought about what he was doing, she is making a moral criticism of him (Steinberger 1993, 300). 3 Margaret Canovan makes a challenging venture into morality as an object of critique rather than source of ground or principle (Canovan, 155–200).

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Arendt’s point, however, is that Eichmann was being thought-less in following the rules of his morality. It may seem to give security or validity to a judgement of what is right to say that it must be formed in close consultation with the views of others in one’s society. But that is precisely what Eichmann did do. That is why Arendt is interested in judgement as a ‘faculty’ which, in its connections both with the freedom of thought and the reckoning day of the will, may bring critical attention to bear upon morality. Steinberger had made another interesting suggestion earlier in the book (Steinberger 1993, 281), that Eichmann’s opinions operated in ‘disjunction from the common sense of German civilisation’. One might debate the facts of this claim. Anti-semitism was a long-standing part of the culture, and not only as a rebellious breakaway from a mainstream but as given endorsement by the Catholic Church. The real point in relation to the need for judgement, however, is that judgement is required in the very process of making a culture or group part of one’s relevant communicative structure – privy to one’s thoughts. One can say only this much of Steinberger’s conditions for judgement – that to judge includes the desire to be able to test one’s intentions against the judgement of others. To judge is to desire not to have to come to a resolution without testing it first against and within a critical community. At the same time, however, to be prepared to judge is to be prepared to do so without that aid. There is something right in what emerges in Steinberger’s approach. If Eichmann had used his judgement, he could have called upon the best in the German cultural traditions to support him. And yet, still, judgement shows its autonomy in the fact that judgement is involved in this prior matter of what is best in a tradition. It is true that individuals are bound to consider their morality as a serious force to be reckoned with. It is at least imprudent to ignore it. Furthermore, the fact of moral expectation may contribute to judgement. An individual or group takes account of these social expectations when they judge. It is part of morality to pay one’s taxes and the mutual benefits conferred constitute a reason for judging it right to pay them. But that is a judgement, and it is by the same power of judgement that someone concludes that taxes fund a war of aggression. The need to judge our civic obligation to serve in the armed forces remind us of the difference between knowing what is required by one’s mores and judging what is right. Judgements made in Hindsight It is all too easy to bring morality to bear upon past events in historical hindsight. In contrast, it is patently difficult to make a critical ‘well-judged’ appraisal of the past. This is difficult partly because, initially, morality makes it seem so easy to judge. The habitual recourse to morality does not ready us for the task of judgement. To judge actions performed within a morality that we flatter ourselves in having outgrown requires us to bring historical hindsight to bear upon current concepts and actions. Judgement involves the possibility of two-way traffic. What seems easy is to make judgements of the past from within our present enlightenment. In bringing our concepts to bear upon the past we are proud to recognise that Wilberforce was

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right to oppose his society’s morality of slavery - that established view of owners as having a ‘moral right’ to use their slaves since, quite simply, they owned them. When the slaves are freed we are free of being party to the system. Then it is easy to judge the difference between what was wrong and what was part of a past morality. Within the system of slavery, traders and owners had no difficulty in establishing their rights over their slaves. They did that with the moral confidence with which British settlers in Australia after 1788 established legal title to parcels of land after the whole continent was declared to be ‘under the Crown’. We excolonial Australians establish our property rights to our particular parcels of land by continuity of practice from that original proclamation. Our solicitor’s search establishes that the title is valid, we prepare a proper contract, pay the money and we own the land. (‘End of story’ as they say.) Can we make a fair criticism of our own current moral system of resting upon legal rights? We are an interested party, liable either to make an aggressive defence of it, or else to engage in twisted critical logic as we turn ourselves inside out in the effort to think from beyond a system in which we have no daily alternative but to be a party. It is the space of history and our inheritance of an economy that does not depend upon slaves that sets us up to appraise slavery. We have observed earlier that it took two hundred years for Australian jurists to come to a position from which they could clearly read critical limitations into the meaning of the Crown Title that had been proclaimed over the land of Australia from the moment of British settlement of some coastal patches. Within the system of state sanctioned slavery, to establish by appeal to recognised practices one’s legal ownership of a slave was the end of any publicly valid critical process of establishing rightful ownership of someone who had acquired the status of being a slave. Our contemporary critique of that conclusion of the rightfulness of slave ownership from the fact of its being legal is usually called (in its retrospect) a ‘moral judgement upon the values of the times’. I am arguing, however, that to follow this usage of ‘moral judgement’ is to import into one’s thought a history of a witting or unwitting confusion. It is in retrospect that we so easily see slavery as having been wrong. This contemporary judgement, however, must operate at a level that is beyond morality just as, also, it surpasses an older legality. Those engaged in the practice of slave-ownership acted according to their morality. They practised it. A critic had to argue that the practice of slavery was not right. If our own society reverted to laws that permitted and regulated the ownership of some of us as slaves we should need a sharper critique than that it was ‘morally wrong’. Within this new morality we would lose the argument and would be forced to develop a distinct point of view as a critique of practices with which, as citizens of that society we would find ourselves inevitably partially complicit. This critique of ‘moral’ judgement would have to be deconstructive – able to recognise yet not deterred by the aporia between one’s being part of a society’s practices, and corroding their structure at the cost of one’s own certainties. Judgement that is critical while also recognising the self-conceit of ‘transcendental values’, takes apart the machinery of ‘morality’ from within. The space voyager must climb into

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the brain and disengage some vital circuits of the computer system that guides his own enterprise, in order to escape its domination (2001: A Space Odyssey). We are now rightly confident in judging the institution of slavery as wrong. The problem is that a moral representation elides the complications of feeling and contradictions of practice intrinsic to judgement’s critique. The representation of moral progress in Amazing Grace (a recent movie on Wilberforce) installs its critique of past practice too securely within our contemporary habits - as if we have only to appeal to those codes by which we define ourselves as living in a good society. We are given to think that one only has to be part of morality in order to see how an action is wrong. If all you need to judge well is to be firmly contained within your morality, then those who remained within eighteenth century morality judged well in supporting the practice of slavery. Not to import pre-judice we keep a conceptual distance from morality. We are glad that the wrongness of slavery has become part of our established morality – and of our law. The risk is that condemnation of slavery is but a reflex of everyday morality; we lose sight of the judgements that condemnation required. That Wilberforce was a player on his national stage might distort one’s picture of was required of him in judging issues upon which his morality gave him confused and hypocritical advice. Wilberforce did what we all might do when uneasy about established practices. He thought beyond an intricate web of moral opinion and practice and yet used part of that same web to ensnare the public worthies he attacked. He was not disarmed by being part of a society made prosperous by what he struggled to eliminate. His autonomous judgement flourished not in transcendental stratosphere but in dense social atmosphere. Wilberforce broke with patterns of conformity by deploying against itself the morality he inherited. Contemporary Judgements One can see a parallel negotiation in the Australian ‘Mabo’ judgement that feared breaking the ‘skeleton’ of law that framed the very possibility of legitimacy for the judgement. Those who made and wrote this judgement recognised the gravity of their refusal of two centuries of legal precedent. It had taken two hundred years of change in social and legal understanding for this injustice to be recognised in law. The injustice was, indeed, blinding and is still ingrained as part of our common morality. Hannah Arendt has demonstrated the need for a critical position about the morality into which we are born. It forms one’s feelings, habits and sense of what is beyond moral question. She writes of moral dizziness – the need to ‘think without banisters’ – in order to question ‘our’ morality. It is possible to do this when we are lucky enough not to be immersed in one homogenised culture.4 Questions of legitimacy emerge in the cracks of our differences. Criticism is not the province 4  Perhaps the very idea of such a thing is a totalitarian fantasy – an excuse not to exercise judgement.

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of saints or heroes, and critics may think no better than those they judge. For all that, we take the risk. To judge involves the thoughtful exercise of the will; to be ‘decisive’ is not enough. In judgement we try to keep faith with the subtleties of thought in the urgency of action. Thus, alive to contemporary changes in sensibility, in judging actions that are now part of history we deal with the moral pressure to take for granted the ‘advanced’ nature of what has nurtured us. It is sensibility that generates critical judgement about new issues and new concepts. Without a lively contemporary sensibility, criticism of past wrongs is a new moral orthodoxy that blinds us to our present. Moral pressure consists in the force exerted on you to take up the burdens your relevant group expects of you. Judgement requires the corrosive work of deconstructing those expectations. This can take unexpected directions that intensify old values of care even as thought is shaken by technology. While it is a moral truism that a parent ought to care for his or her child, modern technology has unsettled the meaning of this obligation. Since sperm or egg donors can be biological progenitors without being physically or personally involved in conception or birth, judgements have to be made about being a parent. Typically, now, it is those who have accepted the egg or sperm who are deemed the parents, because they have accepted the responsibility for the pregnancy and then the child. The donor is a biological operative rather than parent. The genetic originators are no longer the mother or father of the child. The concept of parenthood is shifted. Alternatively, one might cling to genetic origin in deeming who the parents are, but shift the rule that it must be parents who have primary rights and responsibilities towards the child. This would be a moral and legal caveat to the rule of parental responsibility. The parent is responsible unless he or she has taken the secondary role of supplying sperm or egg to those who thus take on primary permanent responsibility for the child. The technological advance creates a conceptual break at one point or another. We break the conceptual tie between genetic origin and parenthood or we break the universal tie between parenthood and primary responsibility for the child. A change in rights as well as responsibilities is implied either way. In order not to disturb the relation of the child to those who have received the donation, the donor may be denied the ‘parental’ right to have a say in the child’s upbringing. At such points we make new judgements about society’s morality – accomplishments that require action over time by individuals and groups. To an individual the judgement may seem their own pure act but as a judgement it re-forms shared concepts and rules. Confronted with public objections, the individual’s new pleasure at a certain kind of action becomes closely reasoned, and grounded in relevant social and scientific facts. New concepts may be required, and new principles of inference formulated. The new judgements cannot be deduced from old descriptions. The success of the technology forces an issue to the point of judgement. There is room for conflicting opinion but in the end egg and sperm donation will be permitted – or it will not. A woman who bears a child using egg and sperm from donors will have primary responsibility for the child -

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or she will not. The law can deem as the parent, the donor of the egg, or the woman who gestates the foetus. Judgement has that finality about it. It is not only the law that judges these things. A surrogate mother might declare it ‘not right’ to honour her contract and relinquish the child she bore. In going beyond her own suffering, she re-creates her displeasure at her situation as a judgement – a principled displeasure. Now she might claim in quasi-legal terms, ‘Surrogacy is the forfeiture of one’s involvement with the being one has borne’. Or she may says simply, ‘I feel the loss terribly. Perhaps others take it more easily but in any case the mother of a child ought never be forced to give it up’.5 Respecting the Mores To accept the critical thought that moral or ethical behaviour is an object and not only a framework of judgement encourages us to place a proper value on the common guidance and limits that cultural experience has established. It is good to feel loyalty to one’s own people and ways. Arendt’s ‘dark times’ are precisely those in which one must break with that loyalty. To be moral is to accept one’s social and civic duties. It is to support and receive the strength of one’s fellows. By and large, therefore, it is good to be moral and right to be ethical. Being good involves being considerate so one does not transgress lightly even those practices one would judge adversely. But there are limits to this social considerateness. Some of our forebears had the courage to stand out against the pioneering morality that saw a virtuous exertion of proper strength in their forcible displacement of indigenous people and the removal of their children. Such critics, exercising judgement, would not have respected an official observer of a massacre of aborigines resisting dispossession who wrote that ‘the guns spoke English’ (Deborah Bird Rose, Reports from a Wild Country). Thus the official observer described as ‘sublime’ what happened when guns demonstrated a power the invading settlers conceived as beyond the comprehension of those being displaced. We shall ask what was being sublimated there, and we may recall Kant’s caution about that sublime. In the object of beauty we take pleasure ­– it renews imagination, refreshes perception and excites the sense of our cognitive powers. The sublime stands in stark contrast: Who would want to call sublime such things as shapeless mountains piled on one another in wild disarray, with their pyramids of ice, or the gloomy raging sea? But the mind feels elevated in its own judgement of itself … and abandons itself to the imagination and to a reason that has come to be connected with it – though quite without a determinate purpose (CJ, 113).

We mind the gap between engaging in scientific enquiry and judging what is right. We can then more clearly recognise what scientific enquiry brings to bear in strengthening 5 This example is employed not against surrogacy but to examine the intersection of legal and non-legal judgements.

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the ground of those pleasures and displeasures that become our judgements. Such a theory of judgement avoids the reduction of moral language to the expression of emotion or the issuing of imperatives. We might form a judgement about what is good without having occasion to give advice or commend. We can judge an action or maxim as right while hesitating to issue any advice or imperative. Grounds for displeasure are not automatically grounds for commendation, advice or orders.

Chapter 5

Living on the Premises1 When we judge we are pleased at each factor getting its due. Judgements are grounded and yet not inferred. In judging we go further into our premises; when we infer we take our departure from them.

Regressive Reasons Like inference, judgement is grounded in observation and goes beyond its premises. You can have good eyesight and bad judgement. An optometrist checks the precision of our vision but not our power of judgement. Sound judgement depends upon what we know, experience and understand, and yet the relation of judgement to its basis is different from that of a conclusion to the premises from which we draw it. Being neither deduction nor probable inference, judgement has its own relation to premises and grounds. The argument of this phase of the study of judgement is that the premises of our judgements are the places where we dwell – where we work, take our leisure, instruction and entertainment. We dwell within our minds in our hopes and dreams –in dwelling places such as tents, offices, houses, theatres and caravans. We dwell, too, within our concepts, experiences and theories. We make a living place of them by the emotional responses and attachments that we maintain. In Arendt’s story, we call upon judgement in moments of conceptual crisis, for instance, when we have to create a bridge between the withdrawn world of thinking and the involved world of public action. (The need for judgement is not confined to moments of crisis, but crisis brings judgement into the foreground.) In this public arena we have our share of responsibility for what goes on, no matter what we think of the business in which we find ourselves, and no matter how much it may be of another’s making. This responsibility makes even more urgent not only that we have stopped to think but that we come to the point of making a judgement – always bearing in mind its origins in our thought, perceptions and dwelling places. How is judgement grounded and yet autonomous? There is an old conundrum about the premises that justify inference and the reasons that justify what we claim to know. A statement supports a position only if it is well based itself. If it is well based only in further statements this sets off a regress of reasons. In refuting an 1 There are similarities between the idea here of premises as dwelling places and Wittgenstein’s ‘form of life’. Hegel’s Sittlichkeit is too much bent towards ethical life to do what is needed here. John Searle’s ‘background’ is also cognate with my ‘premises’. I think that Husserl and Lewin’s ‘life-world’ is more centrally what has worked in the background for my use of these ‘premises’ as ‘places to dwell’.

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account of knowledge (proposed by Theaetetus) as true opinion supported by a logos, Plato questioned whether the logos (an account that provides reason) must itself be known. Knowledge could not be soundly based on a ‘logos’ at which one had only guessed – even if by chance one was right. But if the logos must also be known then the knowledge of it will require a logos for the logos. Thus the regress. Sound judgement subverts the structure of this regress. Traditionally it is ended by an empiricist move or by a rationalist alternative to that. The empiricist will say that sensory experience makes reasonable what we claim to know, but sensory experience is an event rather than an opinion and therefore needs no further reason behind it. The rationalist will say that this appeal to sensory experience is only a dogmatic assertion, without reason, that the senses provide us with correct and reliable knowledge. The rationalist alternative is that there are truths self-evident to reason that justify claims to knowledge without having to be justified. The empiricist will reply that only tautologies satisfy that rationalist requirement, and that a tautology is consistent with any statement of fact and therefore cannot be a reason for what we claim to know. One main contemporary escape from the regress is to call upon the status of entrenched systems of the sciences as philosophy’s own premises. These have neither the simple empiricist finality of ‘I saw what happened’ nor the rationalist mystification of ‘This non-tautological principle is self-evidently true’. To that extent, such contemporary philosophy has taken a step forwards. The step creates its own difficulties, however. It is those outside the sciences who accept reported scientific observations and principles only on account of their being well entrenched. For those who work in those sciences the reverse is true. The observations and principles upon which a practising scientist relies become entrenched because each individual (or research group) finds that they can make the observations reported by another. Separately, each becomes satisfied at the principles designed to explain these observations. It is one small step for philosophy, to employ scientific theory and fact within its thought. If we are not to take then a double back-step into a pragmatist theory of the sciences we need first to work out a better alternative to the traditional regressive problem. There is in fact another major alternative to this triad of empiricism, rationalism, and a pragmatics of entrenched high status theory. First we distinguish between stating reasons and having them. Our premises are not the propositions that propose them. It is by our propositions (important in their own right) that we may propose a dwelling place as ours, or as where we would like to be found. In such statements we indicate the nature of the premises where we dwell. So it is a prejudice (a view prior to judgement) that premises as ‘statements’ or ‘propositions’ form the basis of our inferences or live arguments. When discussing forms of argument we do nominate propositions as premises because we are interested in the validity of arguments from them rather than in their truth or falsity. In that sense, the question of ‘reality’ drops out in the formal analysis of argument. In common practice when we put logic and observation to work we do state our premises, certainly, but the question of the truth of these statements becomes central because it is not

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the statement as my stating something but the reality stated that has the power to support the conclusion proposed. The premises (what ground inferences and judgements) must be material rather than sentential. This is a homely rather than a mysterious or metaphysical point. We state (‘propose’) what we eat and drink – it is not these propositions but rather, what we eat and drink that nourishes us and slakes our thirst. A proposition is defined as ‘that which is true or false’ – it is in the field of representations. It is not a proposition that that enables us to judge and infer. You see a flag at half-mast. You infer that an important personage has died, not from a proposition that the flag is at half-mast but from your seeing the flag at half-mast – that makes your inference sound. (To take seeing as representational because also a proposition obscures ‘representation’ incurably. If even your seeing the flag were the proposition ‘I see the flag at half-mast’ then seeing would turn out to be a representation of itself.) Dwelling on our Premises Arguing, Inferring, Premising There is a substance to that from which we infer, by which we test a theory and upon which we found judgements. In such theorising, inferring and judging we have a place from which to set out and to which to return.2 Our practices of dwelling and the places wherein we enact them jointly are, accordingly, the sources of these tropes of ‘dwelling’. Certainly, when arguing we may be driven to use ‘premises’ outside our usual more comfortable dwelling places. In persuading a friend about what to do with the evening you might have to set out from premises foreign to your own kind of ‘dwelling’. In philosophy itself - in dealing argumentatively with puzzles about the meaning of life – we may have to work from premises that are abstract and detached from our own lives. We have here two kinds of arguing. If I set out from somewhere other than where I am when I persuade my friend then I am using argument as a hypothetical – to introduce a speculative possibility. It is different when I use argument to show that something is the case. More serious is the persistent confusion of inferring and arguing. If you are not happy with your premises then you can make only a mock step of inferring. (You might brazen a line of argument.) There are kinds of premises. Business places are premises in respect of what we dwell upon in occupying them – the structures in which we dwells on our manoeuvres, investments and take-overs. There are commercial premises and factories. Legal chambers are the sites of premises in many senses of the word. As we look about these worlds we mark how we need them for our informed 2 Elizabeth Young-Bruehl’s work is exemplary in grounding Arendtian ‘philosophical politics’ (as I would call it) upon its ground in classical, modern and contemporary times (Young-Bruehl 1989).

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occupations. As premises they are figures for the dependency of inferences and judgements upon their grounds. ‘Premise’ moves easily between figure and materiality. We develop sound judgement in our movements upon material premises; valid inferences can meet with substantial premises. You can refer people across to other premises, also. We do not therefore confuse material premises with sentential elements in a formal argument structure. Rather, it is upon material premises that we learn what’s what in argument. Certainly, commercial premises are not propositions from which to construct an argument but this is no loss to epistemology since propositions are not the kind of premises that can ground an inference or judgement. Rather, they state the existence of such grounds. I infer that an accountant has wrongly calculated a profit margin. I might point to a written statement from which that could be deduced but the written statement would be empty of force unless secured materially within the premises. So material premises ground sound business judgement in not being sentences. There is a conventional line between premises as propositions that state the basis of inference and argument, and premises as the material conditions for those practices. In the double entendre of premises it is premises in the material sense that ground our inferred conclusions and judgements. So material premises include the dwellings that house and cultivate information plus the events of observation, conversation and crosschecking that can proceed within such premises. It is this coupling that warrants our confidence in deductions and judgements. The dual meaning of premises generates liberty of thought. With that liberty we can deal with the ambiguity in identifying premises as the basis of inference and judgement. We can move freely between premises as statements of the basis of inference and judgement, and premises as the places where we dwell so as to infer and judge soundly. So we distinguish the construction of arguments to test the logic of inferences from the grounding of them. We risk no confusion between premises as places to dwell and sentences about what goes on there. What we maintain is that premises as dwelling places ground arguments, inferences and judgements. Grounds involve material specific to a particular inference or judgement and also material conditions for what we state as being actually warranted and credible. These grounds are outside the category of statements that must be grounded. They include the observation of events, and the perceptual and other skills and familiarities of those who make the observations. Grounds also include the material and social structures within which our use of shared knowledge and inherited experience is made reliable. Such material and social premises shelter and foster human and physical resources. The arguments that occur within them have a chance of being grounded and communicable. Material premises work in their own way to help ground what goes on within them. They are not the propositions that hang together in patterns of valid inference. Material premises have to do with the reliability, credibility and generally informed character of the assertions from which arguments proceed. They have to do with the presence and availability of conditions from which inferences and judgements may fairly be made.

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The broadened use of ‘premises’ clarifies what we must do in treating the regress of reasons seriously. The material premises upon which we infer and judge alleviate the sense of a need to ‘plump’ for some assertion from which to reason rather than being left in stays, whistling for a wind. What we learn from the regress is to not make a proposition of what warrants us in what we say. What we do, and our practices of observation and our specific observations are none of them propositions. They all contribute to the rationality of our propositional claims. Places of dwelling are indispensable for the reliability of what we think, infer and judge. Without them, sentences stand motionless in their logical relations. So, the broadening of premises is epistemically conservationist rather than conservative in its effects. Totalitarian politics exploits our need for premises by excluding anyone who would dare to use them freely. Pluralist politics allows its premises to be occupied also by those who challenge the way they are currently used. To identify premises as propositions that ground knowledge and judgement is politically hazardous. Endless proliferation of utterances or inscriptions marks no difference between knowledge and indoctrination. From these expanded premises we can sketch again the old domain of inference and judgement. The world of premises as dwellings places the dwelling ahead of its house. Plays are housed in theatres. There dwell actors and directors; the audience dwells upon the production. Art galleries frame their framed works, providing a place for our dwelling upon them. We contemporary flaneurs might, for an afternoon, make a dwelling for dissatisfied desires by roaming the car yards. Heidegger noticed how lorries used in long-distance haulage become a kind of dwelling. Perhaps his trucker dwells upon the road when on the move and then in the cabin in his breaks. Now we have premises on the move that contain movement within them. The nomad is not to be excluded from having premises needed for knowledge and judgement.3 To accept the mobility of dwellings is to find a place for judgement between settled institutions and in the fractures within legitimated centres of dwelling. ‘Squatting’ is my figure for a provisional life of inquiry and perception. The urban squatter is a figure of our original position as a willing sensate being who would make a home of what becomes a world because s/he dwell(s) in and upon it. So I exploit, conceptually, this mobility of premises. The model sites that have been brought into the discussion are both rhetorical figures and our practices of judgement and inference. They are the (un)stable material homes of our specialised and nuanced experience.

3 Nomadic thought is to be considered in detail in Chapter 9.

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Still Standing In having premises we inhabit and retain positions that we establish only in standing somewhere.4 Your judgement is respected if you are held ‘in good standing’. The question of our standing can be posed only as we form some possible answer to it. Since we cannot stand (to be) standing still we would rightly judge nomadic thinking in philosophy as advantageous in gaining and testing knowledge. As nomads we profit from continual disturbances to what we learn; we gain strength from the rigours of travel. When we lack the economic or intellectual power to own dwellings in settled philosophical establishments, we resort to squatting within philosophical structures that are not strictly our own. We use them on an ad hoc basis. Like the nomad, the squatter is a figure for the use of premises without ownership of them. The urban squatter relates to terrain and buildings defined as previously owned and occupied. In philosophical terms, such squatting depicts our need to think, from time to time, within the now vacated philosophical constructions left standing (usually in part ruins) from a long history of adventures and misadventures. Wondering how to think about judgement, perhaps we go to live for some months in the baroque towers of Kant’s Critiques. Like the urban squatter, one does not imagine (or desire) that one’s site should be a permanent habitation. The likeness of urban to intellectual nomadism may be that sometimes the urban squatter takes over a space so as not to work - to have free time to think. But the more strict point of resemblance between domestic and intellectual squatting is that you inhabit premises for a period faute de mieux. As intellectually nomadic, one occupies Kant’s constructions, without formal ado. Without licence, you move into Kant’s Critiques as a place where you are free to think about judgement. The choice is made only in the absence of any suitable contemporary dwelling place and so your permanently dwelling there would be anachronistic. Kant’s third Critique (let us say) is your intellectual house for as long as you can dwell there – until you become restless and must find a place from which to view it. You do not own Kant, just as the squatter does not own his lodging. Nevertheless, you have to invest considerable effort and expense to make his premises habitable. We number just some of our premises amongst our properties, but premises do connect with property even when they are borrowed or appropriated. As material property is a figure for (metaphysical) properties, material premises are a trope for the philosophical dwellings. While it is important to intellectual mobility that your effective premises need not be your property, it is arrogant to imagine that what you occupy tacitly belongs to no one. Australia as terra nullius was a pretext for appropriating land already premised – the ‘deeds’ had been sent forward from previous generations. By squatting, borrowing, leasing or stealing, public property became the living 4 There is some resonance between ‘premises’ as different dwelling places producing diversity of judgement, and John Rawls’s ‘burdens’ of judgement (Rawls 2005, Lecture I, Section 2).

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premises of individual settlers. This was a seizure of land beyond the practical reach of law that might have been (as Crown land) declared ‘commons’ – territory for the enjoyment and use of all. These commons (an English tradition) survive as residual open space in rural and in urban areas. No individual can supply these ‘commons’ that reason requires. Kant and Arendt work to give back status to the idea of a common sense that can unsettle what is ‘blindingly obvious’ to commonsense. What is needed for work, perception, thought and judgement and action is the a public space – Aristotle’s common place in which one can move amongst others while remaining in the same place. Within Kant’s moral a priori, each individual can be his own authority because each can recognise a universally necessary requirement. One can recognise this only under the condition of a shared recognition, however. Only within such a ‘kingdom of ends’ may an individual live according to the moral law. Aesthetic universality also requires a shared recognition of the subjectivity (pleasure) that is at the heart of aesthetic judgement. But also, Kant has the temerity to claim that the special pleasure of aesthetic judgement involves a sense of the harmony of imagination and understanding that a beautiful thing has the power to evoke. Kant deems as a priori the different kinds of universality he finds in moral and in aesthetic judgement. Thus, neither is changeable by the will of any individual. But it is an individual’s consciousness ‘enlarged’ by taking account of the consciousness of others, that recognises this ‘a priori’ universality in the judgements they make. Within the figure of premises as property, we who use premises stand as those who must own up to the ground, the site, the terrain from which they interpret, infer and judge. This ‘owning’ is demonstrated by the nomad and the squatter too, even though the ownership is transitory and the claim lies without fixed authentication. For so long as the squatter takes over the remnants of establishment or the nomad makes a campsite, that ground is owned as the place that they know, the place within which they are known, and the place from which they explore. A squatter’s ‘holding’ is a residence and involves (temporary) commitment to place. The Common Place Aristotle observed the existence and importance of the common place. Denying himself such a luxury however, he argued that, strictly, there could be no such ‘common’ place. The only ‘proper place’ for any thing or person he argued, as he clipped its wings to fit, was defined by its occupant’s outermost surfaces. If there is to be a common place it must be more extensive than that. A common place is a geographical and social space within which a thing or person can move. By the same token, it must be a space within which more than one thing or person can move about without leaving it. In its perceptual and judgemental sense, this common place creates the possibility that a person or group should justify occupying their position. A common place provides them with premises that do not lock them in to where they stand. This makes it possible for an occupant to justify a position, albeit provisionally. When an occupant’s place is defined generously as extending

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beyond its own outer surface, and extending in a mobile fashion, there is room to stand back from where s/he is. A position is justifiable in that we stand on ground that allows us to shift – without being shifty. We may now further extend this argument from the idea of a ‘common place’ that allows more than one person to occupy it without moving out. Where people gather to discuss philosophy (let us say) they claim a ‘common place’ – a part of space that a number of people can occupy and in which they can move while still holding to the same position. Such a space is a metaphor for the intellectual life that takes place within a ‘room’. There is intellectual and emotional room for our various premises to be shared with others - with the give and take about that is entailed. There is room for each to ‘move about’ within those premises and within their own part that they carve out. There is room to try out first this and then that interpretation. When trying to comprehend how we have premises for what we understand and know, we have felt free to enlarge our notions of the premises of that. We can now reassess the demand always to justify our premises. A lecturer will say to first-year students of philosophy that the point of the discipline is to justify one’s position. And yet s/he does not dream of justifying that assumption. To whom would one justify it, and from where? With some issues we cannot justify our position, argumentatively, without dogmatism or circularity. (Every argument that we are awake presupposes premises that are ours to hold only because we are awake.) In that case what are we to do? Are we then justified after all – in wandering aimlessly? Rather than being frightened or repelled by this last sceptical flourish, let us look more steadily at this business of being a wanderer. Perhaps the wandering need not appear so aimless. If we accept our nomadism, along with some experience of squatting, as the conditions of a reasonable reason then we shall come closer to our premises, nearer to the places where we can dwell with judgement. Movement and Establishment Nomads, Gypsies and Subversives One may take fright at such an epistemology, even though squatting does presuppose prior established premises. Philosophy’s current friendliness to naturalism, though ill defined and tending towards reductionism, is helpful at this point. If epistemology is to set out from an even-minded description of the situation within which we know something, then it had better place in relief the variety of our ‘premises’ and ways of dwelling in them. To think naturalistically is to consider how things are, without moral prejudice. Such thought might welcome the idea of occupying a position temporarily to see what it is like to live within it. To think naturalistically is to tolerate and to encourage practices - in theory as in cultural practice - of moving from position to position according to seasonal needs. The security of strict proprietorship by certificated owners poses its own

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risks to the growth of knowledge. Such limitation obstructs our understanding of a world that is wider than the one in which we learned our first lessons in epistemology. Naturalists soon flip into a ‘normative’ phase, however, if they display intolerance of plural modes of description of events and deride as ‘sceptical’ or ‘relativist’ the liberality of a post-modernist acceptance of differing systems of concepts. Kant, though such a defender of an enlarged outlook as the precondition of serious judgement, still judges that nomads are outside the settlements of reason: As the legislative continued to show traces of the ancient barbaric rule (under dogmatism), philosophy’s empire (as queen of the sciences) gradually broke up, and intestine wars introduced ‘the reign of anarchy’ while the sceptics, like nomadic tribes who hate a permanent habituation and settled mode of living, attacked from time to time those who had organised themselves into settled communities (CPR, 99).

There may be a tinge of irony or self-mockery in these words, though, written as they are by someone so broad in his comprehension. As against this warning about philosophical terrorists in our midst, we remain calm but alert to the premises that have served us well even when borrowed, leased, or stolen. Like a squatter in earlier Australian times, one may be, intellectually or territorially, a de facto occupier or inheritor of the land of others whose continued dwelling upon the land has become as if invisible. It was the squatter who had the authority, ‘mounted on a thoroughbred’ to bring up his troopers, One! Two! Three!’5 Squatting seemed simple. To over-ride native entitlement one simply had to remain there; legitimacy became you. (Then premises became too broad to be held together. Cattle stations became holdings to be ‘inspected’.) These days it is more likely that, like users of vacant urban buildings, we intellectual squatters are, in our use of theories, dwelling in disused dwellings. Perhaps now it is such ‘squatters’ who are at the mercy of (propriety’s) troopers. Gaining Premises, Forfeiting Properties If your properties are too large, you cannot maintain a vision of being ‘on the premises’ as you move from one part of the property to another. (‘Maintain’ – from the French maintenant as ‘held in hand’ and now meaning ‘now’.) You lose any sense of being amongst, within or upon them. A ‘nomad’ might move in a seasonal cycle of areas, a terrain, in order to keep a grip on premises too extensive to possess. One would maintain each successive premise by hand and foot, during a long ‘now’. A whole land may thus become a (non-proper) premise: premises without property - one has a proper tie and thus can explore premises without owning them. We newer Australians are more aware, these days, of how, when 5  From a line of the Australian bush song, ‘Waltzing Matilda’.

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aborigines sing the land, they sing the land into a dwelling, to give themselves premises. And something more than premises. In the Pintupi, the Pitjantjatjara and Aranda languages the one word is widely used for ‘word’, ‘mark’, ‘singing’ and for ‘law’. By practices of singing, the terrain is constructed as significant country, as a social area, as a place to dwell. (In the present context this singing must be shorthand for a network of ‘aesthetic’ and other practices. The question becomes how ‘terrain’ or ‘land’ becomes a significant dwelling.) It is now a commonplace to speak of the Australian aborigines’ ‘unique relationship to the land’ as evoked in their dreamings. This over-iterated translation is saved from cliché when read within the poetry and musicality of the stories.6 And there is something lyrical in non-aboriginal philosophy, too, when it dares to raise up its premises out of a terrain that was, hitherto, undifferentiated. There have now been various experiments in crossing over and back between ‘European’ and ‘aboriginal’ language without appropriating the cultural territory of either side.7 To be a nomad, geographically, is no longer an option for all but a few in urban and industrialised worlds. Rather, the premises of a nomadic spirit are maintained by intellectual mobility and, so far as geographical travel goes, by ‘informed’ touring. Unlike the nomad this travel is subtended from a base of owned or leased secure lodging within a nation whose passport we bear. The asylum seeker is neither tourist nor nomad, on that account. The security of owning your own dwelling or formally leasing premises is that it requires crime, war or dictatorship to turn you out summarily without consultation or compensation. One may think of the consequences of radical dispossession for those who inhabited, before 1788, what has come to be known as ‘Australia’. Consider the time before the event of … what shall it be deemed and who is to deem? Displacement? Unsettling settlement? Invasion? In practices of singing and painting the land, the prior Australians had their means of inscribing extensive social and geographical shared knowledge. Disrupting these practices damaged this knowledge and judgement; dispossession from terrain and social dispersion was designed to destroy premises. Imagine our scientists being evicted from their laboratories simply for being scientific in their practices and banished from the dwellings that provide the material and emotional conditions of their work. It is hard to imagine scientific judgement surviving the catastrophe. They may cling to opinions and ideals they had formed on their premises but progressively, these become no more than propositions they recall. They have no material premises upon which to ground inference and judgement. The statements of scientific theories would degenerate into opinions. (Theoretical physics might survive longer than organic chemistry.) Even within industrialised society, loss of premises is also not a simple function of monetary value. Some minor common criminal act may dispossess you of a 6  For instance, Kerry Brown and Sima Sharma (eds) Warlpiri Dreamings and Histories (Brown 1994). 7  For instance, Krim Benterrak and Stephen Muecke’s Reading the Country (Benterrak 1996) and Stephen Muecke’s Textual Spaces (Muecke 2005).

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motor vehicle but unless you live or work in it that is not a loss of premises. Social attacks upon you in the place where you dwell to work or where you retire for privacy can destroy essential parts of your outlook. Without being sacked from work or evicted from home that harassment can amount to the destruction of one’s very premises of life and judgement. If the public land of non-specific use that was called the ‘commons’ becomes commercialised (‘proper-tied’) then nomads have no premises in their own country. (As indigenous people in Australia became trespassers overnight.) Loss of rights to use common land becomes a forced eviction of a pariah people. When premises are mobile, or when the uses of fixed premises are mobile, acts by the State that virtually nullify citizenship in depriving one of the right to dwell may well go unremarked as crimes. Laws of property connect substantial premises with properties on premises. Tending not to recognise rights to a less tangible use of land, laws of premises that take material properties as the standard are not likely to observe the substance of premises sustained by those relatively ‘insubstantial’ dwellings that are the key to the success of the economic and cultural practices of those who dwell there. Dispossession of one’s premises as property and properties is not only a literary figure for intellectual and cultural loss of premises. Intellectual and cultural life is always already material. Premises are a material condition no less than a literary figure. We might imagine Australia if it had been totally occupied by a vastly more populous nation. (One might press Japan during the 1940s into the service of this fiction.) Waves of appropriating settlers would have displaced us Australian ‘natives’ from our material and cultural premises. Though rendered ‘baseless’, something might have survived amongst the ‘fascinating historical ruins’ the new settlers would visit as anthropologists or tourists. Intellectual premises are worldly things of which only a shadow would remain in some domain of Karl Popper’s ‘third world’ (Popper 1978).8 Some of our intellectual premises might no longer exist to be stated. This can apply to the invaders, also. Some keen observers who wrote of the first phase of appropriating premises in the name of the newcomers tell us how precarious were the old ‘premises’ of the European occupiers. The intellectual, legal and cultural premises they left behind materially had to be imported or promptly created to preserve an illusion of legitimacy. Premises torn from their originals become progressively more distant grounds for judgement - distant in time and space. Joseph Furphy as Tom Collins narrating Such is Life records the problematic superimposition of European philosophical ideas onto the terrain of a disorienting Australia. To know the limits of one’s premises calls for discovery and exploration; they are not fully known by living within them. Only by exploration are you aware that your premises are specific and limited. When held but not grasped as private 8  World One is that of physical objects and events; World Two is the world of mind and ideas; World 3 contains abstract objects – scientific theories, stories, myths, tools, social institutions, and works of art.

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property, premises are open to less familiar visitors. With their fresh eye we can discover the limits and shape of what is over- familiar. We observe what novelty arises when premises are re-arranged and areas excised. New combinations might change the area ecologically and that may change how other premises previously settled can be used and occupied. Contested Legitimacy To move in thought between premises as the basis for inference and judgement and as material dwellings and working places requires a spirit of enquiry. Within the dwellings of our work and professions we put in question the familiar concepts upon which we depend habitually. We have had to shake up our old idea of the premises of reasoning. We had used this word without thought; we leaned upon the word, too confident that it would carry its load. Still, the sound of ‘solid premises’ has an historical origin in legal use that can still be heard over the noise of the whirlpool of regressing reasons. ‘Premise’ comes from praemittere – to ‘send before (one)’. It is by a subtle shift that the legal sense of house or building with grounds and appurtenances has arisen from this. In fact, ‘premise’ involved a certain manner of legal reference to entities. The premises were the houses, lands, tenements as previously specified in a document – previously ‘sent forward’ from an earlier legal document (or by an earlier reference within a document). This gives a new twist to premises as ‘there as from the beginning’ – ‘a priori’ in fact. As already there, they enable us to proceed. As we rehearsed the problem of the classical dilemma of the premise, it seemed impossible for premises to provide us with what, symbolically, we call grounds. It seemed that, as already ‘justified’, there must have been prior premises for that premise, then a premise for those premises and so on. If this requirement held universally then it would have been impossible to ground belief by appeal to argument from premises. Legitimation would have been viciously regressive. On the other hand, if there were no grounds for the premises essential to our justification then either those premise-less premises were dogmatic, or they were ‘self-evident’. Only by taking premises as material did we escape the traditional trilemma of self-evidence, dogmatism and regress. The legal origins of the notion of a premise fit this story of non-regressive justification - a warrant that is real but not absolute. A premise as something whose documentation is ‘sent ahead’ is what provides prior legitimation. This ‘being sent ahead’ suggests a different picture of the function of a premise. You may well ask whether any specific situation of alleged justification really is as thus pictured, but at least to think of the practice of sending authorisation ahead frees us from the seemingly inevitable alternative of premises as attempts to stop a regress of reasons - premises behind one’s premises behind one’s premises. We have seen how that picture of a regress confuses premises with claims. Substantial premises from which legitimate claims may be made come to us as the ‘dwellings’ referred to in an authenticating document forwarded to us. To doubt that where someone dwells constitutes their premises is not to doubt that their terrain is a real

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place. Though this picture of material premises generates no regress of premises of premises, a new critical question properly replaces the older sceptical one. Our contemporary (‘post-modern’) question becomes, not ‘How can we end the regress of reasons?’ but ‘What are the means of legitimation for those deeds of material, intellectual and emotional occupancy that are sent forward to us as (at least) premises?’ That last question is a real one and answers to it are never obvious and always contestable. There is no intrinsically unsolvable problem for well-based judgement, however. The problem of prior authentication is posed outside the domain of the classical trilemma of dogmatism, scepticism or self-evidence. Though the question of authenticity and legitimacy of deeds of occupancy can rarely be resolved with complete satisfaction to contesting parties, there is no threat that we therefore dwell only amongst ‘unfounded beliefs’. We dwell upon our contested material premises. In our efforts to know, as in our efforts to live with others in a bearable polity, what remains with us is neither absolute foundations nor mere beliefs or decisions. The materiality of premises is registered in continued contestation about entitlements to material and intellectual property. It is in the aftermath of modernist ideals of founding life and nation upon universal principles of reason that deliver the same answers for all, that we can decipher this picture of premises as material places of dwelling. Premises as propositions and propositions as the source of legitimation have an abstraction from use. That abstraction requires propositional ideals of a universality of reason and knowledge that would stand independently of our varied material premises. The picture of warrant for a position being given by these propositions is what impels the regressive search for premises behind premises. This present sketch of an enlarged view of premises does not find a place for any final warrant for taking the positions we do. Rather, it firmly pencils in the material and social reality of our grounds. So the indifference to judgement that marks a relativist outlook is no part of its scene. The defender of a proposition as warranting belief recommends it as a ‘bearer of truth values’, not merely as an utterance. A bearer of truth-values is a representation of what there is, and is true when it accurately represents things ‘as they are’. How can it appear so plain to many philosophers, then, that it is propositions that are the basis for what we reasonably believe? When someone claims that something is the case (‘uttered a proposition’) we may, on occasion, reasonably accept that they have clinched their case. But we forget that we take them to have clinched the case not simply because of the proposition they uttered but because, happily, we had reason to accept what they said. And this ‘reason to accept’ must, on pain of regress, be something beyond another proposition. Evidently, a logically necessary proposition, though it requires no external support, will not shore up the structure. As a tautology it is consistent with all states of affairs. And its tautological character does not even ensure that it is reasonable to accept it. Mathematical propositions such as Gödel’s theorem are recondite. Only one who comprehends its proof has a direct reason to accept it. (A set of

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propositions expressing a scientific theory will not turn the trick, either. That the theory might happen to be true does not justify anyone in thinking so.) Someone who believed the premises of Gödel’s proof and then inferred its conclusion (which is true, and is entailed by the premises) is not thereby justified in making the inference. The theorem is accessible only to those familiar with the language and practices of logic and mathematics. To make a correct inference cannot be reasonable if the one who makes it has no comprehension of what they are doing. Since Gödel’s proof is a work in mathematical logic its premises (if true) are true of logical necessity. Only if we are in a position to understand them, however, can they become our reason for accepting the proof. Propositional premises are not enough. We have to know how to live on and within them. Concluding Reflections A story of knowledge and legitimate judgement as arising from where we dwell and how we visit the dwellings of others can replace the myth of premises as propositions as our basic premises. The ‘title’ of our premises is sent forward as having been given legitimation. Contestation can begin on some ground. This take on an old story has the strength that rather than suppressing questions of legitimation it openly invites them. The questions posed within this broader view of premises are manageable and we achieve a finality of judgement that is not disturbed for its times by the historical perspective within which that finality is a temporary phase. The classical view of premises as propositions that justify was incoherent. Always, it was what propositions told us rather than the propositions themselves that provided legitimation for what we could conclude. The circumstances in which we enunciate those propositions are part of what makes it reasonable of us to accept them despite the fact that this makes judgement’s finality historically transient. Certainly, to accept premises as places of dwelling and of departure does not work magic in any contest over who is to hold premises. Any solution that would offer so much must be unreal - one more version of absolutism. Our premises, in this new story, may be realities before and after their legitimacy is contested. Our claims of occupancy remain contestable, as ever, but the contesting parties come to understand on what premises they each reside. Contests of authentication draw upon ‘title deeds’ that had been sent forward for arbitration. Judgement is ‘arbitrary’ simply in being the work of arbiters. Shared judgement and an understanding of our differences in judgement can be achieved – most visibly in specialised fields such as law and the sciences where there is a shared understanding of criteria. But the co-ordination of the diverse kinds of judgements that arise even in these areas requires always the employment of the Kantian common sense - our capacity for continual correction of each other’s thoughts, perceptions and interpretations of this world we share.

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When we sense the need for more thought we say that the matter ‘calls for judgement’. We mean not that it’s ‘just a judgement’; rather, we mean that to enter the territories of law, politics and ethics – and the sciences – calls for just judgement. To think of premises as material conditions provides a guide to how disagreement arises and persists. We do not therefore despair of judgement; we place a sensible construction on judgement as arising where we dwell and from our mode of dwelling there. We can sense our constructions and those of others and so, as Kant and then Arendt suggest, we develop a common sense of our differences. The ‘sensible’ becomes the ‘sensible-as-reasonable’. There is no impossible regress in establishing the grounds of judgement. We can grasp the finality judgement that can be achieved when we recognise the material status of premises whose implications we contest.

Chapter 6

Inferring, Judging, Arguing

The Concept of Judgement To judge is different from inferring, arguing or theorising. Formally, inferring is an arrival, arguing is a process and theorising is predictive. Judgement is an accomplishment – of coming to a certain satisfaction. Peter Steinberger has remarked in his own way on the differences, but works to minimise the difference between inference and argument on the one hand, and judging on the other (Steinberger 1993). As he argues, a notion of judgement as pure intuition overemphasises one phenomenon of judgement over another. He puts the case for judgement as intelligent performance. It is the performative dimension of the language of judgement that sets it apart from inferring and arguing; the requirement of intelligence marks it as other than some ineffable intuition. He invokes Habermas’s idea of a communicative rationality – something that can moderate the extremes of a priori necessity on the one hand and irrationalism or relativism on the other. In this present chapter of this book I would suggest a (sympathetic) difference from that part of his position. The one who judges may not be the one to formulate the operative reasons for their judgement. Judges must write their judgements, certainly, but one’s judgement might be better (or worse) that one’s articulation of its grounds. Still, what I say meshes with Steinberger’s account. To judge well is to proceed reasonably; satisfaction in judgement is always (in part) at your having respected all considerations. Articulating and explaining reasons is not the same as good judgement. Someone’s resolved satisfaction with a position is well-grounded in an acquaintance with the field within which the judgement lies, and is the pleasure of one who has paid close critical attention to the various factual issues., An investigator of their practice would find that relevant material was attended to and irrelevant matter was dismissed. Suppose that when you proffer judgements in this sort of area they mostly turn out to have been right. And now suppose that you are not adept in stating your case. You have never learned confidence in that. Perhaps you feel alienated from your peers by class, wealth, or race, say. Still, you hold your job because colleagues so rely on your judgement. Good judgement displays a particular kind of intelligence, certainly. To offer one’s judgement is to invite questions. It requires a different skill – another judgement if you like – to answer them well. In this respect judging is like inferring. If that from which you infer makes probable what you infer then your inference is sound. Constructing the case is arguing, not inferring. There is more difference between judging and arguing than between judging and inferring. In judging as

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when inferring, having the grounds on which you rely is not a performance. The intelligent performance of stating a good case is a different skill. (A detective makes an intelligent inference; a barrister presents a well-reasoned case.) This approach overlaps with Steinberger’s emphasis on performance. It requires that, like inference and theorising judgement be constrained within parameters of reason. An attempt at judgement that ignored fact and logic is scarcely judgement at all. Someone who has good grounds and relies on them is being logical and factual. We expect some modest ability to state reasons from one who makes sound inferences. Still we assess inference as arriving safely from where you set out, not as arguing that it would be safe to set out. If that distinction is secure, we can then freely admit the importance of constructing arguments. Without those practices it would be difficult to maintain the publicly communicative character of reason.1 One who is politically active must articulate reasons and construct arguments. Though they judge political issues well they cannot enter politics without that. Steinberger notes that ‘Supreme Court judges must write their opinions’ (Steinberger, 294). They deal in written law. Writing is their field of judgement. The case is prepared in writing in order to begin. Those who use judgement in uncovering and collecting the facts of the case are working on premises that only overlap those occupied by the judge. The court depends upon evidence admissible in court, and it is admissible simply to the extent that the facts about material evidence can be stated and co-ordinated with written principles of law. Judgement in law is literally a sentencing, and the reasons that can be admitted can be no better than the clear and detailed way in which they can be articulated so as to be transported from outside the walls of the court to be lodged within. There is every reason why we should closely co-ordinate the gaining and using of material grounds for an opinion with the articulation of reason and the construction of argument. There is an equally grave reason why we should not make a general identification of being grounded with being good at argument. It is typical of many of those who have recently (from the late decades of the last century particularly) taken up the issues of judgement that they attempt to solve, in the one unbroken discussion, the problem of what constitutes judging and that of what makes for good or ‘valid’ judgement. This is natural enough. Just as to believe is at least to take something to be true (and thus, also, if one can say that much, then it is to take it that there is some sort of warrant) so also, to judge is to be pleased at some situation or other as being the case. You can no more take your judgement to be wrong at the time that you are judging, than you can take it as a dry day when you believe that it is raining. The essential intentionality of judging is towards being right and reasonable. Others will wish you to be able to show them that you are right and reasonable. You will want to be able to make good on their request. All that is in the nature of the business of judgement (and also of belief). So it is the validity of that very connection which is likely to make us take 1  Yes, there is a whiff of paradox here. One argues cogently for the difference between cogent argument and inference or judgement.

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an invalid step. We mistakenly identify the reasoning that we employ in order to show that a putative judgement is grounded, with what makes for the difference between its being a judgement rather than guesswork. There is one other point – central to this present project – that can become hidden within the (intrinsically) worthy over-emphasis on communicative conversation, contesting argument, culturally entrenched standards of discourse and so on. The issue of what it is to judge gets lost. The accent on good standards of ‘validity’ is, at best, a condition of better as against worse judgements. There is a great deal that cannot be explained about judgement if we take it to be only another kind of belief or opinion that has perhaps, some special domains of its own, or perhaps its own particular relation to evidence. This is the strength of Kant’s taking pleasure at the very appearance of something as the first (and always central) ‘moment’ of aesthetic judgement. One would never appreciate the particular force of aesthetic judgement, or the reasons for the different relation of grounds to judgement (why it must not be proof, for instance) if we had not got that point straight from the beginning. The brilliance of Kant, to repeat my earlier claim, is shown in his confidence that still he will succeed in demonstrating the vital role of various forms of reason in relation to such judgement. But if he had thought that he was trying to find special kinds of reason for a new kind of fact, one peculiar to aesthetic judgement, then his whole project would have come to the usual state of confusion. Judgement, Argument, Inference Setting Out and Arriving When we judge, as when we infer, we proceed from what we come to identify as our premises. We may identify these premises at the very time of inferring or judging, or at some later time. To collect together inferring and judging as each having their reasons and grounds, requires the work we have done to enrich our appreciation of premises. Premises needed for judgement and for inference include the realities we might, when explaining our position, state as reasons or grounds. Such realities may include not only evidence specific to the conclusion but matters such as the entrenchment of a proposition within one’s received science. (To accept apparent empirical evidence of telepathy would involve rejecting basic laws of physics, for instance.) To infer and to judge well we need to dwell in close familiarity with these material and cultural premises. That judgement and inference have a certain common origin in premises provides standing room from which we can regard their differences. Each moves along roads radiating out from common territory. It is by regarding each for what it is that we find them, in their differences, as not alien to each other. We shall become clearer about the accomplishment of judgement as we describe what is involved in inferring. In turn, we become clearer about inferring as arrival at a fact when we contrast that with the activity of arguing. The modality of judging is to become pleased at, on the basis of the grounds of this

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satisfaction. The modality of inferring is to think that, on the basis of the grounds of that conclusion. The structure of inferring is of an arrival at fact. Otherwise one has not arrived. From an outside point of view, or from what one discovers later, one may have to describe this as an arrival at what seemed to be fact. In this respect the logical force of ‘I inferred that a theft had occurred’ is like ‘I (visually) saw a theft being committed’. In each case, if it turns out that no theft was in process, I retreat to ‘It seemed that a theft was being committed’. To Infer and to Argue Typically, we argue for what already we take to be the case. We establish what we think upon a ground that we hope the hearer or reader holds in common with us. We can see this as the normal use of argument when it so happens that, while intending only to present an argument to interest someone else, the process crystallises our own thoughts. Even as I attempt to convince the other, it is I who am convinced. (Within the very busyness of arguing, or in a reflective moment as the argument ends I might come to the very conclusion of what I have argued for as someone’s agent.) I have made the inferential step to the conclusion on the grounds of finding myself able to marshal such a good case for it. Alternatively, I might have begun to argue the case only to provoke my interlocutor. I knew he would detest the conclusion while being partial to the premises that I provide to disconcert his prejudices. The distinction between the activity of arguing and the arrival that occurs when one infers remains firm, however. What we have just noted – that on occasion arguing may provoke one to come to hold its conclusion – emphasises the difference between the arguing and inferring. It is only by accident that they coalesce in their results. To argue is not to infer; to infer is not to argue. Typically, to argue in earnest is already to hold the conclusion and in any case, to hold it in the process of making the argument. To argue ‘in earnest’ is to demonstrate what one thinks – unlike a barrister who defends a client she privately thinks is guilty or a teacher who presents arguments as case studies for a class. However well you argue, it is normally too late for you to infer it. When the one arguing inferred the conclusion in being persuaded by his own argument he was, initially, not arguing in earnest. This coincidence may arise also in the process of arguing for a conclusion in which one had disbelieved – as in a formal debate. In the process of debating you might convince yourself of the conclusion that you had meant to put forward only as a manoeuvre. Similarly, you might, in the process of arguing for a point you already hold, realise that it is far better supported than you had supposed. This would be a meta-inference. In contrast with arguing, to infer does not involve making some attempt at justifying one’s conclusion to anyone. (That includes oneself.) At the same time, in inferring I take myself to be within my rights to come to the conclusion. To infer is more than being moved, from my grounds, to come to a new conclusion. To infer involves also being confident of one’s ground as adequate to the new thought. This is why it is to the fact of the matter that we infer, not to our believing in the

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fact. This is basic to inferring. It is true that I might have erred. My ‘fact’ might not hold. Then I have to concede that I had only come to think it was so. In this more enlightened retrospect I did still make the inference as a step of thought, but I did not arrive at the fact of my conclusion since there is no such fact. Inferring is an arrival at what one takes to be new knowledge – or a new understanding of the basis for it. In contrast with this move of inferring, to argue is to produce a statement of premises that permits someone to accept your conclusion. There is some connection between inferring and arguing, naturally. Having inferred something you may wish to make statements in explanation and defence of your inference in the hope of convincing others to come to your conclusion. So the aim of argument is to convince someone who may be critical or sceptical about its conclusion, and to do this by producing statements of what would support that conclusion. Argument is but a small part of reason. After all, it may be better to take the disputant where he can observe for himself. In contrast, to infer is to inhabit the premises necessary for a sound inference and from there to arrive somewhere beyond one’s previous position. I take this arrival as the gaining of new knowledge, or a new understanding of its basis. When inferring, it is often from new perception (or another’s new information) that I make the crucial step from where I dwell to some territory beyond it territory that swiftly I annex within the domain of my securely held premises. No less dramatically, however, the step may be taken from perceptions or information that one has had for some time. I might come across some small point of information that expedites the inference. Or I might at last grasp the implications of what I long known. Now I have two adequate sources. In the midst of some dull conversation, our detective (in real life, novel or TV) makes a sudden start. Food in transit from plate to mouth is suspended in its motion. The detective sheds the superfluity of information that has confused her. Not an influx of new material but rather the culling of what she already knows is the new event that spurs her to infer the identity of the perpetrator. The event of inferring may be very modest drama, of course. One has long known that at least ten million people live in New York. For many years the information that there are about 100,000 hairs on the average person’s head has rested quietly somewhere in one’s ragbag of resources for Trivial Pursuit. Musing on nothing much during some rainy Sunday afternoon, a thought strikes. Improbable as it might seem, there would be many pairs (and triples and quadruples) of people living in New York who have precisely the same number of hairs on their head. This is the sort of example that makes one liable to confuse the event of inferring with the production of an argument. Being an intellectualised inference in the first place, the appearance of an argument ready at hand to defend one’s conclusion is liable to emerge within pretty much the same event as one’s inference. The event of inferring will be announced in a statement of one’s basis, succeeded by a statement of a warranted fact. This exemplifies the difference between inferring and arguing. The valid argument (about New Yorkers) records no inference made by the author as he typed out the words. The inference had long lapsed into antiquity.

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Seeing the Connection: Making the Step That we finally realise a connection and thus complete an inference can itself mislead us about the event of inferring – a misreading that does arise from what is special to inferring. We think of the event of inferring as the moment of seeing the connection between premise and conclusion. In so doing, we confuse understanding (‘seeing’) with the step of inference. We do ‘see the connection’ between various facts. Practice in this is the stuff of training in practical logic. Also, seeing the connection is an event, and it might be hard to separate the seeing of the connection and the step of inference. However, if we identify the making an inference with the seeing of a connection, each becomes elusive. First, one may see the connection and yet stubbornly refuse to take the inferential step. I may see the connection and yet be unable to make the inference, thinking that I must have overlooked some other fact. The conclusion appears too improbable, or too repugnant. Alternatively, I may make the inference although I cannot see a clear connection because I am very inclined to its conclusion and it requires very little to move me. When I refuse to infer what I can see to be warranted, my obstinacy is virtually self-deceptive. If consciously I do not let myself make the step then mentally I have virtually accepted the repugnant conclusion that (say) my friend is guilty of a serious crime. It is no mystery that I shall not make the inference that I can see to be sound. To embrace the conclusion is to un-embrace my friend. But if I can see that my refusal is wilful, do I not see that I am already half standing on the new ground marked out by that conclusion? My means of refusal are designed to cover my new tracks, perhaps. It is hard to think clearly about this difference between seeing (the connection) and stepping to the conclusion. This is because the figure of inference as inner vision makes a mixed metaphor when laid over on the figure of inference as a mental step. A good metaphor stirs the mind to sharp activity but a mixed one transfixes it. There is a second reason why this ‘seeing of a connection’ becomes elusive if made the essence of inference. We have observed how I may make my inference in coming to see the connection between what I have long known and what I now conclude, although I may also, stubbornly, stall the inference. It is when I do this that the ‘seeing’ of a connection lingers as an intellectual after-image. The second reason for the elusiveness of ‘seeing a connection’ is the obverse of this. When no obstacle occludes this seeing of the connection the inference is made in the very instant of the seeing. This brings the ‘step’ right within the frame of the intellectual vision and so it disrupts the application of one metaphor or the other. The metaphor of understanding as seeing is grounded in physical vision. When we (optically) see an event that grounds an inference and intellectually ‘see’ a connection, we are most liable to confuse literal and figurative uses of the same term. We extricate ourselves in making clear that neither the optical nor the intellectual seeing amounts to the taking of an inferential step. Certainly, seeing involves interpretation of what is visually accessible but this fact leaves intact the difference between vision and the step one takes from that.

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Legal cross-examination of witnesses is designed to reveal any seepage. Upon optically seeing, I may come to infer. At the same time, when I see intellectually and nothing obstructs the inference then the announcement of the ‘seeing’ and of the inference can be made in the one utterance. Again, to employ the apt metaphor of inference as a step removes us from the site of confusion. In itself the metaphor of sight for comprehension does work and we cannot resist using it in practice even though it encourages a confusion of understanding with inferring that makes elusive this understanding of a connection. From where we stand in contemplating the step of inferring this ‘seeing’ will appear as too far off on the horizon to be observed precisely. When we go to move up to it by making the step of inference, however, we are then too close to the ‘seeing’ to see what it is. Derrida reminds us (On Touching) that to look to see seeing itself is to find a moment of blindness. To get our bearings we can compare this ‘seeing’ of a connection between ground and conclusion with the (visual) seeing of some feature from which we can make an inference. Allow me to enlarge on an example touched on in the previous chapter.2 A traveller returning across a plain to their colonial outpost sees the flag on a municipal building flying at half-mast. Knowing that the Governor was seriously ill when he left, the returning traveller collapses the language of seeing and inferring. He exclaims, ‘I see that the Governor has died!’ His companion cautions, ‘Yes, we can both see the flag at half-mast, but you’re inferring the death of the Governor. We’ve lost count of the days in our travels. It might be the day of remembrance for the last war. Or perhaps, if someone important has died, it is some other dignitary than the Governor’. The point of these challenges is other than the obvious one that the claim to see that the Governor has died is fallible. The modest claim to see a flag as at half-mast is fallible, too. The point is that the Governor’s dying (or being dead) is not revealed to the sight of either comrade as they gallop across the plain. In stark contrast, the flag is there clearly (if fallibly) within their sight. That ground of the inference is secure in any case. It is very different when one ‘sees’ a connection between ground and conclusion. If one ‘sees’ that connection correctly then the inference must be sound. If the inference turns out to be not sound then one cannot really have ‘seen’ the connection. Linda La Plante’s detective is seized by a conclusion as inescapable. She has inferred the identity of the murderer. ‘What makes you think it was him?’ says her assistant, sceptically. The detective responds with the angry impatience of one does not yet have the case fully articulated. Being pushed too soon to explain what she has ‘seen’ so clearly, the detective splutters, blurts and appears unreasonable. But her judgement is in good standing. She is more sure of the premises and how they bear upon the conclusion than she is of articulating the connection between them. She has to work that out later in discussion and argument with her colleagues. 2  I feel I may have read some version of it. If so, my apologies and respects to the author.

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The step of inference is made because of certain perceptions and information that stand out from a plethora of material. One makes the step because of certain parts of the material. That ‘because’ combines a causal and a (putatively) justificatory sense that establishes initial material as the premises for the final step. Then one declares the material as establishing the conclusion. Thus one argumentatively signs off on having made an inference rather than a blind move. At that moment of inferring, in contrast, no statement of justification need be in the mind of the one who infers. As to the ‘seeing of a connection’, one can only guarantee that there has been some such valid ‘seeing’ if one were to say that the step itself must embody that ‘seeing’. If that rule of language pleases you then you can insist, ‘She must have seen the connection since the step she made was so brilliant’. But in that case, the making of the inference is the horse that draws the cart of ‘seeing’. The metaphor of ‘seeing a connection’ had been attractive because it seemed to explain the remarkable inference. But now it is the sound inference that establishes the existence of the seeing. In thinking about what does go on in the daily inferences that extend what we think and know, we need a better picture of inference – and of this ‘seeing’ of a connection between reason and conclusion. There is some difference between the form of inferring as lived and its form as reported but the ‘seeing’ of the connection has its place as much in verbal reconstruction as in the event of inference. Suppose I am a farmer who has been living through a drought and I come to think that it may soon break – I have inferred a change in the present dry spell from seeing the barometer suddenly fall. The observer will say of me sceptically, ‘He thought there would be a weather change because he noticed the barometer had fallen’. In contrast with an observer of an inference, the one who infers moves as from fact (stored or newly perceived) to a new fact. The one who observes this inference sees a movement from something observed (or thought) to something that is thought. The one who infers will also be held to have ‘thought’ that a fall in the barometer is enough in itself to come to expect rain. ‘He’s always the hopeful one’, observes his neighbour dryly. Thus, in standing off from the business of inferring one can say, justly, that the process intrinsic to the occurrence of inferring is that of coming to think something because of what one takes oneself to have perceived, or from what one already thinks. But each person is one who infers, no less than one who observes the inferences of others. Vitally, in this process, we who make the inferential trip take ourselves to be warranted (by our new perception or previously unused fact) to come to rest upon our conclusion as a fact. And so that is established swiftly as an extension of our regular premises. That from Which We Infer The one who infers moves from what they perceive, or from previously acquired information. Responding to this, it is common for one who describes the business of inference to say that we infer from reasons. This is uttered as a truism, not as

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a hypothesis. So it will appear as another truism that we infer from statements. We have already criticized the standard prejudice in philosophy that reasons are statements. It is the tacit move from ‘reasons’ to ‘statements’ that would cast our steps of inference in the same category as activities of argument. If we accept as a truism that we infer from reasons, this must leave it an open question just what is allowed to count as a ‘reason’. If we infer from what happened, and the basis of an inference is the reason for the conclusion, it is false that all reasons are statements. Typically, we infer from what we have seen, heard, overheard, noticed, read about - or from some other material source of which we have gained an over-all impression. Thus I infer that the field of drooping wheat shoots will shortly recover, not from the statement ‘It is raining’ but from noticing that it has started to rain. (If no mode of perception is nominated, I infer as from the fact of its raining.) We do pronounce a proposition in answer to the question ‘What is it that you heard, overheard, noticed or read?’ This fact tells us only that a candid reply to any question takes the form, ‘This was thus and so’. It does not show that one inferred from a statement. To infer from a statement is an exception – it is inferring from the making of a statement. I hear a suspect talking to the police and infer that he has decided to co-operate. In contrast with inferring, in arguing you deal only in what is said. You argue from statements pronounced on an issue. This limitation in argument’s scope again exhibits the difference between inferring and arguing. Scientists, detectives and solicitors search for material evidence and construct hypotheses to be tested mostly by methods other than argument. Arguments that break out from time are liable to be about proper procedures and personal probity – anything that threatens their principal business of enquiry and testing of speculations. In contrast, philosophers, barristers, politicians and sports fans do conduct their business primarily by way of argument. Argument can be useful to anyone since having to defend what we say and do makes us check our observations and our inferences, and develop a critical view of our judgements. But arguments have their limits. It is obvious that argument cannot usurp the place of observation, for instance. Exasperated by argument one says ‘Stop talking!’ and takes the person by the hand to let them see, hear, touch or taste how things are. It is less obvious that argument cannot usurp the place of inferring, since the two are often confused anyway. As we shall see, argument cannot usurp the place of judgement, either. One must judge when an argument has run its course. Argument may cease because someone has made her own relevant inference. Inferring may be a visceral response. Even when careful checking of facts and careful discussion of the issue has preceded one’s inference, to make the inference is to take the step for which these processes of reason were at most a preparation. And as to judgement, that is required at every stage. Judgement is involved in controlling our inferences and in deciding whether to get involved in an argument. To argue is to rehearse the statements of premises and to make a further statement as being a probable or certain consequence of them. In contrast, inferring is a movement of the mind in which one comes to a fresh opinion or, freshly to an old one. It is, therefore, a movement of feelings too. When we

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make an inference we shall have to adjust our feelings about thus gaining new premises. With a significant inference that means adjusting to what is involved in changing or extending our intellectual and emotional lodgings - the feelings that are connected with coming to a new conclusion. In all our intellectual endeavours we have our interests. We are eager to take in some arguments but hostile towards others - reluctant even to listen to what may disturb a valued position. To run through a pattern of inference may be a rehearsal for actually inferring. To infer is to come to think something we had never thought - or never thought for that reason. That conclusion leads us back, in a long arc, to how reason is involved when one comes to infer. We have reflected on one who returned to his settlement to find a national flag at half-mast. He inferred that an eminent person had died. Evidently, a familiarity with a culture lent the observation its significance. So, to argue is to state propositions in support of others and every argument begins with a statement not ‘backed up’ by another. Hence, if a statement can be supported only by another statement there is an infinite regress in arriving at a soundly based inference or judgement. We have seen that the problem is spurious. Observation, though conceptually structured by argument and inference will not reduce to either of them. Furthermore, to observe, to infer and to judge are each of them other than argument. Each can achieve something that arguing cannot. To argue is to defend what you already hold. It is too late for inference. The same holds when you follow someone’s argument. If you already hold its conclusion, you make no inference when you agree that it is valid. Repudiating Argument People who believe in ‘rational argument’ often end up feeling bad. ‘Why is no one moved by my arguments?’ they complain. They feel that they are ‘men of reason’ but that argument is impotent. They feel that they are dealing with an irrational populace that cannot rise above its ‘intuitive folk psychology’. Since they have produced such good arguments the other party ought to have come around to their conclusions. This last error is a cartoon of reason as a sound argument that forces its recipient to a conclusion. It is a cartoon because the recipient cannot be reasonably persuaded unless they are in a position to incorporate the arguer’s statements of premises. Their position in this regard is unlikely to be the same as that of the one who produces the argument. It is not reasonable for the listener to make their inference merely from their having heard premises confidently asserted - even by someone of good reputation. Someone who is ‘given’ a scientific explanation is not reasonable in accepting it until they can stand on their own good premises and comprehend for themselves how the considerations ground the conclusions. Only then can they summon a good will in accepting an explanation. (‘There is nothing … good without limitation excepting only a good will’, Kant 2002, 9). It is in exercising the autonomy that one’s own reason requires that as a newcomer one can come to dive willingly into the surf beyond the safety of the shoreline.

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One may read these last remarks as an analysis of what goes on when a scientific expert tries to force a scientifically naïve person to abandon their inference from the facts of nature to the fact of a divine creation. One might remind the scientifically experienced that they themselves did not have to be forced – whether by argument of any other means – to accept scientific theory. The subtle aspects of field observation, laboratory experiment and the flights of theory construction were appealing to them. It is delight in the rewards of science, not allegiance to a ‘duty to be rational’ that finally draws a believer away from theistic ‘science’. After all, some have hoped to travel far by methods of inference. It used to be debated in the nineteenth century whether we may ‘infer’ the existence of God from premises about plants and animals. Against the odds, stirred up by the threat to literalist theology by the spectacular success of evolutionary sciences in explaining the formation and development of living beings, these debates have taken on a renewed life into the twenty-first century. We can observe in such disputes, again, the difference between the movement of mind that constitutes inferring, and the movement of speech and writing that constitutes arguing. It is by faith that believers hold to the existence of God. With regard to this Being as a creator and designer their faith consists in a large inferential step from various impressive phenomena they have observed. The first is the complex nature of human mind and feeling. How could that be nothing but the movement of matter? And the diversity of life forms, so well adjusted to their environments, moves the mind of the believer directly to their vision of an intelligent caring creator. None of that is a matter of argument, good or bad. Their dilemma arises because now the broad outline of evolutionary theory has become common knowledge. In reaction, the believer attempts to present inferences made within faith as arguments designed to unsettle scientific theories. When they argue they step beyond their faith, even as they cite, in defence of it, the inevitable inadequacies in current evolutionary theory. The meaning of their act of argument is confused. They dispute with the scientist neither to secure premises for their beliefs nor to present the scientists with some more informed and refined way of doing scientific work. They already stand firm on their religious premises where they live. It is for other reasons that they convert their inferences made within faith into a mock version of science. Reacting against the loss of prestige of literal theology in the face of scientific success, they are impelled to dwell upon premises not their own – as if to improve the status of their faith by forcing it out on the stage of science. Literalist theology has already ceded the ground to the sciences in order that the debate can be held. In their wildest dreams those ‘creationists’ do not imagine that the scientists would to seek to enhance the prestige of their methods by likening them to those of theology. In thus hooking its cart to science as the star performer, creationism has already capitulated to the prestige of science. In the smoke and mirrors of such battle, judgement is required in the very use of argument. It shares a provisional finality with inference even while moderating rash inference. Equally, it is by an exercise of judgement that a reluctant mind takes a warranted step into unfamiliar territory. Argument leads or pressures

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us towards a conclusion but it requires judgement to embrace or reject it. Any particular argument proceeds from certain chosen premises. Unless we exercise judgement we are liable to plump for the familiar. And when we do change it will be only as caving in to peer pressure. In contrast, when we exercise judgement we consider any or all of our available resources of experience and knowledge. We do not cave into the pressure of argument in order to appear ‘reasonable’. We remain firm of mind, not immediately swayed by arguments which, taken by themselves, might make some conclusion contrary to our best judgement seem inevitable.

PART III Questioning Critique

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Chapter 7

Sting of Reason There is a ‘sting’ of reason; it stuns like Socrates; it can wound, bringing ‘tears before bedtime’; it refreshes like sea spray on the face. We have been arguing that to judge involves becoming pleased at some resolution of factors. We have begun to describe various ways in which reason has its own involvement in judgement. This requires that reason can bear upon feeling. Reason is not to be confined to Kant’s realm of the noumenal and must be more than Hume’s ‘slave of the passions’ too. If judgement involves being pleased then it wants reason as its frame and stimulus. (If not as master then certainly not as slave.) I shall argue then, not for a new dichotomy of reason and affect, but still for a distinction between their roles in our emotionally intelligent lives. Plato figures the relation of reason to passion as that of a charioteer controlling horses of differing temperament (Phaedrus 1973, 61–65). Hume figures the relation of reason to passion as that of a slave to his master (Hume 1978, 415). Kant figures the relation of (pure) reason to the whole field of sensibility – particularly ‘inclination’ – as that of detached judge to witnesses giving evidence and lawyers pleading their case (CJ, 45–60). 3).

Archetypes of Control Driver and Horses In the Phaedrus, Socrates delivers a palinode to atone to the gods for a previous speech on love’s evils. To mark the event, Plato writes him a new allegory. This time there is no dark-caved illusion cruelled by the sun’s revelation (Republic, 376–378). Now Socrates projects a new-wave cinema. Galloping horses and chariot chattering, whose driver with a practised hand gains freedom in his full flight by respectful use of ‘unruly passions’ – those horses that keep it all in motion. The driver would neither wish nor dare to stand in their way. This is a moving picture of what commonsense might have vaunted as a stasis of self-mastery. The effect is deconstructive. The entity is charioteer-horses-chariot. Dependent for its motion on the interaction of its elements (including those very ‘horses’ whose excessive spirit might lead the whole caboose over a cliff edge), it moves itself (Phaedrus 1973, 46).1 This melodrama offers a good deal that is lacking in post-Platonic accounts of our ‘higher’ and ‘lower’ nature. As represented by two horses, the passions are 1  This capacity for auto-motion is a definition of ‘soul’ that Plato invokes.

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neither blind nor stupid. Being of opposed temperaments, the horses recognise each other’s tricks. They pit their wits against each other. They play ‘good cop-bad cop’ in the face of the charioteer in his pretexts to quit the very field of passion. Passion rendered as equine becomes a pair of creatures – each with its own temper of reason and passion. As to the charioteer – Plato renders him as reduced to brute force rather than reason. He struggles to guide the cunning horses with a savage use of lash and bridle. Thus rendered as driver, Reason is a being whose passion is for control at any cost. It is with passionate energy that the charioteer guides the horses. Even in the moment that the driver deploys good horse to slow down the soul’s approach to what it loves he depends upon bad horse to bring him up short – out of prevarication and up against the reality he loves and which terrifies him. One horse is high-minded; the other represents ‘base’ impulsive lust. But each is a source of motive power upon which the driver depends. Between the three of them, the resultant vector of the ‘soul’ is an alternate acceleration and deceleration towards a reality that will be known because it is loved by all three of them. The horses supply the positive and the negative energy for movement in the face of fear of the unknown. The charioteer must encourage the noble horse’s tactful approach to beloved reality and haul back the base horse’s rush to overpower it. The power of the object to be known – the beloved that attracts them all – is a key part of the system’s dynamics. It is the impending presence of loveable reality that triggers the action, after all. So the story portrays the soul as a bunch of contending individuals who barely comprehend their own natures. They come to know something of themselves as they are forced to know something of each other in their need to deal with a confronting shared reality. Yes, thus we nod towards Hegel. We might bow to Freud; we shall draw down Derrida as we deconstruct the myth. Plato’s story here never fitted that old cliché of a platonic reason versus earthy passion. Plato’s intricate myth springs clear of any snapshot. Socrates is given to depict how control that involves some violence, arises from passionate reason in contention with thinking passion. And up there between the shafts that reckless bad horse is in sore need of its own reason. He will learn the rewards of timing and tact in the approach to what one loves: Finally, after several repetitions of this treatment, the wicked horse abandons his lustful ways; meekly now he executes the wishes of his driver, and when he catches sight of the loved one is ready to die of fear. So at last it comes about that the soul of the lover waits upon his beloved in reverence and awe (Phaedrus 1973, 63).

In mastering Passion, Reason is savage in its methods: The driver experiences even more intensely what he experienced before … and with a still more violent backward pull jerks the bit from between the teeth of

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the lustful horse, drenches his abusive tongue and jaws with blood (Phaedrus 1973, 63).

The Phaedrean movie shows its own narrative in process of unravelling. The charioteer himself must be controlled in dealing with his own complexity of thought and multiple passions. He has his inner steeds, then. Charioteer needs meta-charioteer to control those passionate meta-horses within. The model falls en abîme. The picture explodes to infinity. Master and Slave When Hume figures reason as ‘slave’ of the passions he subverts the politics of Socrates’ phantasmagoria. Draw the cartoon of Hume’s new arrangement. Now the horses of passion ride in the chariot! There they are, each squatting on its haunches, reins wound about one front hoof. With the other they lash out at Reason – a coolie who sweats it out between the shafts up there ahead of the chariot. As thus personified Reason might choose to be not compliant to Passion’s orders, nor easily subject to its lash. And what if Passion chose to be not passionate in its task of steering Reason? Where there is master and slave there is disobedience to one’s allotted place on both sides of the fence. If Passion is master and Reason slave then passion must control its reason and reason must bring its passion into play. A slave can serve a master only by dint of reason and intelligence. As servant of passion, reason must adjust to its situation by prudence or principle. Reason must be willing to serve. As Slave of Passion, Reason must learn the hard lesson of mastering itself in order to obey. Hume’s way of relating of reason to passion inscribes the problem again within the answer.2 Thus Hegelian dialectic reveals that ‘reason is slave of the passions’ has a reverse effect. In subordinating Reason, Hume has countenanced its power. As slave, Reason must have the energy to carry out orders. So Reason has some power of revolt against Passion. Hume sets his analysis and rhetoric against any such possibility for reason. Trouble is brewing. By making a dichotomy of the distinction between reason (as reasoning and understanding) and passion (as feeling, emotion and motive) Hume has in fact demoted passion. Stripped of reason it can neither possess nor consult reason. It would be blind and helpless in its role of directing it. (The ‘classical’ view of reason as master will mirror the same internal regress.)3 If there is the dichotomy between reason and passion that Hume insists upon then to be master is a poisoned chalice, whoever gets it. When Hume binds reason as servant of passion he blinds passion even as he breaks reason’s spirit. He divides them in opposition to what they control. For our own 2  ‘Master and slave’ is a leap back to Plato and ahead of Hume’s successor, Kant, to his successor, Hegel. 3  In reading the Phaedrus allegory we have seen how far a classic can depart from the ‘classical’ picture of reason in combat with passion.

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part, we must go on learning to think outside and beyond Hume’s reversal of the modern cliché of Plato’s allegory. We might call upon Arendt’s idea of thinking as friendly conversation with oneself (LM, 187–189). It would be a sweet reason then, that would understand and thus moderate the whims and weaknesses of the mastering passions. Instead of mastering passion by whip and punishment, reason must project the passions within itself so as to understand passion’s whims and weaknesses and its strength in bringing reason face to face with reality.4 And, conversely, before Passion can be commanded by Reason it must import reason within its own province. What appears from our analysis so far may be at least one step beyond the platitude that neither Reason nor Passion can be a master – neither can unload its chores onto its ‘other’. In the Phaedrus speech to the god of love, reason is charioteer and the passions, its driven horses. Still, reason can only nudge and steady the horses. Perhaps more moderate than Hume, Socrates speaks of a control that is moderated even as it is motivated by reason’s own inner passion, and properly limited by passion’s inner intelligence. Thus the sting of reason … or the lash … the movement of an eyelash … or the injection that numbs … the ‘brush with reality’ returning colour to the scene.5 This is a double ‘realisation’ – of what it is that we want, what is involved in it, and the ways and means of attaining it.6 We shall understand by appeal to examples, theories and images this involvement of reason in passion and passion in reason. We Who Think and Feel Even as we work to deconstruct these personifications of allegory we are reminded of the power of any kind of figuration to resist efforts to deconstruct it. We might take as a general principle that it takes a new trope to drive out an old one. This is because the use of tropes is part of the work of reason. Allegory, with its personification of qualities, lays out a visible structure of the relationship between what we now like to figure as ‘capacities’, ‘powers’ and ‘tendencies’ (Ryle 1976, 26–35). And yet, for all its vivid clarity, allegory is limited not only in its power of analysis but even in its resources to picture what it deals with. By attributing agency to (reified) capacities, allegory injected capacities within the structure of 4 This shows how the cliché of ‘Platonism’ occludes the allegory’s nuances. The good horse procrastinates; the driver, in hauling back on the other’s impulsiveness, only aids and abets this vice. 5 Daniel Nicholls in ‘A Whisper with Reason’ (unpublished) recalls a story in Pliny the Elder’s Natural History: ‘bees settled on the mouth of Plato as a young child and foretold the charm of his eloquence’. Nicholls reads the ‘sting’ as the meeting of surfaces: ‘Words too can brush against each other’. 6  From that point one could trace movements of thought since Hume, such as the German mid twentieth century ‘Critical School’ – attacks upon the limiting of reason to considering means to ends.

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a personified quality. (In Derrida’s terms, allegory creates an endless deferral in dealing with what we wanted to understand.) So we had better do our best not to personify reason or passion.7 If reify we must, it might as well be someone who reasons and someone who suffers passion.8 It is someone who feels that calls upon reason. It is someone who reasons that questions what they feel. In those terms, if feeling and desire (Kant’s ‘inclinations’) are the motive forces of action then they are neither slaves nor masters. The one who reasons and feels is not slave or master in either capacity. Rather, we modify, enhance, or shelve our passions – and our tendencies to reason and analyse. This is neither dominance nor submission. If Hume cannot accept this as simple fact, it is because he pictures reason as constitutionally unable to oppose passion. ‘Reason is the slave of the passions’ is the banner of a system of concepts, not an idle slip that we can rectify by amending his Treatise at some isolated point. Hume writes as if reason’s inertness were axiomatic9 – as if to think to the contrary would confuse reason (conceptualising and theorising) with feeling and motive (brute non-conceptual existences). For Hume, reasoning can only remind us of what we desire, and suggest means to attain it. Hume himself begins to deconstruct ‘reason is the slave of the passions’ by iterating concessions – ‘Reason has no force of its own, but to …’ and so on. Each iteration concedes another mode of reason’s force.10 On this account, feeling that is elicited by reasoning or understanding was there already. Reason cannot initiate one passion as counter to another: ‘Abstract or demonstrative reasoning … never influences any of our actions, but only as it directs our judgement concerning cause and effect’ (Hume 1978, 414). Hume writes that it is a mistake to think of any ‘combat’ between passion and reason: ‘we speak not strictly and philosophically when we talk of the combat of passion and of reason’ (Hume 1978, 415) – as if reason is not the kind of thing that could have an effect.11 But as he develops his discussion Hume concedes, as evident common sense, facts that entail that reason does have some power over desire and motive. Yet he iterates these concessions while never openly proclaiming the power of reason that they entail. For instance he insists that reason cannot take the form of a counter impulse, and we would be right to agree. Reason is a capacity (or use of it) rather than an impulse. As such, reasoning (as a process) and understanding (as a stable grasp of situation and concept) provide a structure that contains and directs thinking, desire and will. This is a causal role, other than

7  In analytical philosophy, that we can (or are inclined to) act is reified as disposition – as a kind of entity. 8 Certainly, the notion of ‘the person who’ has its own vicissitudes. 9  I take ‘reason’ to be the powers of reasoning and of understanding, and our uses of these powers. 10 He might thus have argued that it is the passions that have no force except to enable reason etcetera. 11 This is the sort of error that Gilbert Ryle calls a category mistake (Ryle 1973, 11).

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impulse, for reason.12 Furthermore, though not an impulse, reason might also have a generative role in the formation of desire, motive and willingness. To argue ad hominem against Hume, he is the one who places no a priori limits on what can cause what. So, after all, he cannot be sure that reason is only ‘slave’ of passion. For him, reason is at least our power to recognise tautologies and the valid moves to be made from premises. He does not realise, however, that in admitting such a power he has countenanced reason as a causal factor in determining how we think and act. He admits this only in a concessionary syntax that leaves his admission of the force of reason essentially undeclared: A merchant is desirous of knowing the sum total of his accounts … to learn what sum will have the same effects in paying his debt … as all the particular articles taken together. Abstract reasoning, therefore, never influences any of our actions but only [author’s italics] as it directs our judgements concerning causes and effects (Hume 1978, 414).

That last sentence is equivalent to ‘Abstract reasoning does therefore influence our actions by directing our judgements concerning causes and effects’. By ‘directing’ our judgement it has an effect – measurable and observable – on us and in the world of commerce. One’s grasp of principles and facts is necessary to the strength of mind it requires to apply one’s understanding when the occasion demands it. Out of her understanding of structural principles an architect persists in opposing the plans of her employer – a developer. The building is radically unsafe. The architect is no hero who leaps into burning fires, but simply one whose comprehension of an intellectual error lends her a strength that may surprise. This is at least one of the powers of reason that we would hope that Hume, in his good sense, would not have meant to reject. There is much uneasiness in Hume’s text from this point. The dubious implications of ‘reason as slave of the passions’ begin to emerge. Hume rightly emphasises how effective is the empirical side of reason. He can see how by use of reason, as the power to gain knowledge and to make useful generalisations, we modify not only how we think and act but also how we feel. We consider facts and principle and come to oppose what in passion we had first proposed. ‘But reason just brings into play other sympathies’ one says, in the spirit of Hume. ‘Perhaps it does more than that’ says the one who more thoroughly pursues the implications of an empirical view of causality. ‘And, in any case, think of the strength of mind it takes to handle one emotion while bringing to bear the implications of another’. So must we posit a second-order emotion (rather than reason) that exercises the needed control? Then we would have in play two passions and a meta-passion. Thus we would need something to hold them in all

12 A.T. Nuyen (amongst various contemporaries) argues that in consigning reason as ‘slave’ to the passions Hume still reckoned reason to have some kind of power (Nuyen, 26–45.).

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in focus – to judge their merits and implications. We would place, once more en abîme, passion as active and reason as inert. Kinds of Causality In any causal field there are factors other than initiating conditions. That a billiard ball is made of hardwood rather than rubber is crucial to what happens when it is struck by the cue. That the table is flat is a causal factor relevant to where the ball rolls, though neither being hard nor being flat is an impulse. There are other distinctions amongst causes that upset Hume’s vision of reason as inert. When out running you collide with someone. The momentum of your body supplies the energy for you and your victim’s changed vectors. (This seems to be Hume’s picture when he denies that reason can set itself up as an oppositional force.) In contrast, when you press a power switch to set powerful machinery in motion, you release but do not supply the colossal energy of the machinery. The operation of reason may be (inter alia) as a trigger or switch. A line of thought could lead to such a switch point. And, as our capacity to understand a situation, for instance, it is reason that has the strength to structure our various motives, needs and information so that we can focus on a coherent objective. In steadily modifying his first bold denial that reason can control passion, Hume himself points us towards these distinctions. He concedes, for instance, that when you learn that it is impossible to achieve your aims you may lose your desire to pursue them (Hume 1978, 416–417). Here he relies upon reason having a causal relevance other than that of an impulse. So reason – not a counter passion since it is not a passion – can corrode or dismantle passion. Such an approach to Hume’s denial that reason has efficacy readies us for what he comes to admit – that by reasoning and by use of the strength of understanding we can shape, deflect or corrode what initially we desire. We can partially deconstruct and reconstruct the elements and the system of our motivation.13 By reason we comprehend information that can trigger a new aim, or deflect us from a course on which we had been set. Thus, suddenly to comprehend the implications of what we observe can release our total energy for fight or flight – or for sustained and steady work. Also, not only events of reasoning have an effect. Abstract understanding of principle shapes the strategies and plans we follow, and therefore makes a difference to a physical outcome. An aerodynamic problem is solved by a certain kind of mathematics. A designer finds a mathematical flaw in their calculations. It would be a ‘sting’ of reason to admit this since it might bring his or her reputation into question. Nevertheless their comprehension of the issue makes them admit it. One cannot allow an aircraft to take to the air at risk of failure under certain conditions of stress. (Certainly, Hume would be right to point out in his usual way the relevance of passion here. One would reason in vain with an 13  For Hume such reflections are as minor corrections to a major principle.

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engineer who cared nothing about the product failing or the safety of passengers. As a cause, however, this leaves reason on an equal footing with passion. Caring about these things will not give the engineer any power to fix the matter. Only the use of reason has the power to do that). We have considered the bearing of Hume’s concessions on his rejection of ‘combat’ between reason and passion. Hume’s opponent is one who would ‘regulate his actions by reason’, but Hume has gone on to describe us as using reason to regulate feeling and conduct. We inform ourselves of what is possible, arrange to be warned in advance of hazards, and work out the implications of acting as we are inclined to. This makes a difference to what we think, feel, and do. Passion and Reason work in reciprocity or in tension. In tension, still they are not placed as two locomotives heading at each other on the same track. To pursue the metaphor – by reason we learn how to lower Passion’s head of steam. Alternatively, we stand to one side of the track and change the switching points to send the locomotive onto a divergent line.14 We have already recalled how Hume, properly, distinguishes kinds of reason. There are ‘demonstrative’ matters – matters that are strictly provable from axioms and definitions as in systems of logic and mathematics. There are matters of experience and probability. We have observed (and are currently observing) what happens, and it is part of reason that we use this stored and current knowledge both in forming desires and in seeing them through to operation. Hume has allowed reason various ways of taking effect – short of being an impulse or a passion. In addition, reason as understanding is that by which we shape and give texture to our motives and desires. Hume says nothing of this but it is open to him to accept it. What we now observe is how wide and intricate is the net of reason’s power to shape passion and action. In contemporary terms Hume might insist at least that Reason is not a base-load energy source. We are in step with him in not setting up reason as a competitor to passion in that respect. But his point that reason is not a motive is a truism of classification. It is no objection to reason’s causal role. As a capacity, reason is not an impulse. Still, that leaves room for many ways in which by use of reason we modify not only what we do in the face of passion, but weaken or deconstruct that passion. Even within Hume’s concessions to reason’s power we can find room for a certain power of reason to shape and deploy passion. Hume would claim that we take his concessions too far. He reminds us, for instance, that facts, principles and deductions that bear upon someone’s wellbeing (whether one’s own or that of another) have no influence upon one who does not care about that well-being: ‘ ’Tis [not] contrary to reason to prefer even my own acknowledg’d lesser good and have a more ardent affection for [that]’ (Hume 1978, 416).

14  ‘In your dreams!’ you may retort, recalling the morning’s headlines of disaster and crime. Thought and judgement are but slight and erratic in their effect but the structures of the understanding are stronger.

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But to what reason is this not ‘contrary?’ After all, it is a tautology to say that it is useless to reason about needs with someone who has no susceptibility to those needs. For all that, various methods of reason might make that person more susceptible to the needs in question. In suggesting that possibility, we take at least one small step beyond an empty version of Hume’s proposition that if someone is not susceptible to relevant considerations however presented then we waste our time in advancing them. Such a tautology is consistent with all matters of fact and does not entail any limit upon reason’s powers.15 Regarding any issue whatever it is no use arguing with someone who is not susceptible to reasons relevant to that issue. It may be, though, that Hume does make a more specific point – not just a tautology – in his famous claim, ‘ ‘Tis not contrary to reason to prefer the destruction of the whole world to the scratching of my little finger’ (Hume 1978, 416). In such an elemental state of total self-absorption it is certainly very unlikely that one could reason adequately with someone only in terms of cause and effect. We tell him that the destruction of whole world would impinge on him too, but he does not care. Hume has argued that it is not ‘contrary to reason’ to prefer one’s own (‘acknowledg’d’) lesser good. It is not contrary to any tautology or valid principle of inference, but that does not make it a reasonable choice. Interplay of Reason and Passion Force of Reason There are two main points to make about this argument of Hume’s. One point is quite definite and the other is more conjectural. The first sets out from various examples Hume gives of reasoning that is effective in getting someone to cease to care about something. In general this reasoning works when it shows one’s desire to be ‘founded on a false supposition, or when it chuses means insufficient for the design’d end’ (Hume 1978, 416). He speaks of himself as in a more reasonable frame of mind than when he dismissed the destruction of the whole world as nothing to him: ‘I may desire any fruit of excellent relish, but whenever you convince me of my mistake (about its ‘relish’) my longing ceases’ (Hume 1978, 416–17). In Hume’s example someone who has a passion for getting something is persuaded by reason that it is quite impossible that he should succeed. He comes to lose interest in it. To spell out the case more fully in Hume’s terms we would say that he already has a passion to get something out of life and when he learns that he cannot get one thing, he is persuaded by reason to pursue some more approachable object. But this posit of a pre-existing framing passion is conjectural at best. Commonly, people find it far more difficult to modify their passions in the light of information than does Hume’s very reasonable subject. I shall sketch an 15 This argument does appeal to Humean principles, but one of them conflicts with another.

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example of this – one that brings out more sharply how Hume tacitly invokes the force of reason in order to make his kind of concession that reason may change our passions. Someone is driving – on his way to a remote country town, let us say. His ‘passion’ is to get there to meet someone with whom he is involved. He is absorbed in driving and can think of nothing but getting to the next town and letting nothing stand in his way. He notices that his fuel gauge indicates he can scarcely get to his destination. By reason, we can say, that person understands what he observes as a threat to his getting where he wants to go. A sign comes into view that advertises fuel at the terminus of a detour of some kilometres from his road. The sign warns of a very bad road surface and advises low speed and caution. He apprehends the frustration and impatience he would suffer in going out of his way and driving slowly. He needs not only perception and reason but also some power in his understanding of his situation if he is to break the spell of his breakneck progress. He must have the capacity to keep the facts and their implications firmly before his mind so that they can sufficiently disturb him in his present passion to keep driving regardless – towards where he yearns to be. It is by force of reason that he will have to handle (even if he cannot banish) the painful irritation he must suffer in dealing with what his passion to get to the next town entails. Yes. It does depend upon his passions too, whether he will have the strength of mind to take the detour and to negotiate it with care. On a leisurely drive he would need no strength of mind to take the detour. Or, if he only wanted the thrill of a fast drive then taking the chance of running out of fuel before the next town might be a reasonable risk. In speaking about the force of reason we need not strain to deny such platitudes. The point is that the will he forms out of his conflicting passions cannot be explained as their simple vectorial sum. When passions can be reconciled only when modified then (at our best) we apply reason and understanding to change or defer one or more of them. This exhibits the power peculiar to reason. The driver’s passions are not the only forces in play, but the force of reason that he may bring to bear upon them is no mystery.16 The use of it involves a variety of skills and practices. We speak of strength of mind as part of a picture of conflicting impulses being reshaped within that resilient container we call the understanding. Or (as suggested earlier) we might use a metaphor of conversation, in line with Arendt’s neo-platonic figure of thinking as conversation with oneself (LM, 187–89). We make our various passions ‘talk’ to each other. To reason might be important but it might not be enough. I reason to the right conclusion (‘I must take that detour’). If I lack strength of mind I drive on regardless, muttering inwardly ‘I’ll just make it to the next town’. By knowledge of fact and powers of deduction I learn that I must no longer pursue something I want, but what I know is not enough in itself. I must bring it to bear on my situation. To understand my situation is not only to be aware of conflicting or unreal aims and to be informed about facts relevant to my chances. Understanding can resolve 16  In the next section we shall draw upon Kant’s notion of the autonomy of reason while regarding his division of phenomenal and noumenal realms as a guiding myth.

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passions into a resultant vector that partially satisfies them. Understanding is not therefore master or mistress, but had better not be slave, either. The second point is more conjectural. It is an empirical question, after all, whether reasoning about why something matters achieves nothing with someone who does not already care about it – or any of its causal or logical implications. If we clear away the tautology that reason is ineffective when it appeals to reasons that matter nothing to the person concerned, we are left with an interesting question. Do some uses of reason enable someone to begin to care?17 We surprise ourselves by what we do and by what we find ourselves incapable of doing. What we do in a crisis, for instance, is no simple resultant of the passions and concerns that we carried into it. Observers read us as demonstrating new and unexpected passions in response to unexpected demands upon our reason and our capacity to care. In a crisis you may be stirred to powers of perception and imagination that provoke (produce?) fellow feeling of which you had been hitherto incapable. Reason is at play here. It is from vivid perception and an enlivened mind that we understand what is at stake. That brings us to the point of caring about the lives of others even if we risk our own. A Humean critic might insist that the passion of care must have preceded this work of extreme reason – ‘there must have been a latent concern released by the crisis!’ The ‘must have been’ speaks of prior theoretical commitment rather than certainty of fact. You might find that the one who risked life to help another whose need was inescapable to sense and mind, had never bothered to support charities or to put money in a busker’s hat. It speaks tellingly about the force of reason that what we learn and understand in unexpected situations can disrupt a stasis of feeling by re-animating powers of perception, imagination and deduction. (Compare: ‘The manner of presentation in a judgement of taste … can be nothing but [that of] the mental state … when imagination and understanding are in free play … as required for cognition in general’. (CJ, 62).)18 What we come to understand when circumstances force reason and perception into operation can convert a numb life into one of active reciprocity with others.19 Perhaps a blighted vision of the range of methods of reason has inclined us to assent to the Humean dictum about reason and passion. Just to tell someone they ought to care, or to inform them of principles from which it follows that they should care is unlikely to elicit a positive response. But similarly, to use such didactic or authoritarian methods of teaching mathematics or science is not likely to be effective, either. In all matters, the presentation of a case in a fashion that permits the learner to participate, feel with and work within 17  Kant challenges us to live only by maxims that we would will as universal natural law. Reflection on that dimension of a principle can effect a shift in the world of phenomena, according to his examples. 18  Kant’s analysis of the pleasure in what we judge as beautiful. My remark on reason’s force is the same. 19 The point is made if this can happen. I am not suggesting crisis as a panacea for moral torpor!

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what is being taught is what brings them to comprehend and thus to be moved by reason. There is that ‘splash of tears’. It may cost more than a twinge when we cross the line between intellectual insulation and accessibility to another’s appeal. Once we cross the line we are immersed in caring. We are affectively involved and interactive. We may need no further ‘force of reason’ to keep us going. But perhaps it was only by reason that, when cold, we crossed the boundary in the first place. ‘Abstract Idea’ and ‘Brute Nature’ We have outlined powers one may attribute to reason – principally our ability to steady emotion and modify and pace the expression of desire. To concentrate upon what we understand of logic and of cause and effect is a means to that end. Like Hume, we reject reason as a rationalism that seeks to achieve fundamental understanding of nature by appeal to principles that have the self-evidence of principles of logic or of mathematics. Certainly we see no power in that appeal. The principles of reason that we still share with Hume are those of the various sciences, including the ‘pure’ realms of logic and mathematics. We are interested in reason, in this sense, both in itself and as a means of achieving our aims. With Hume, Kant rejects a priori analytic scientific principles. But in his second Critique he argued that by pure reason we could understand a universal principle of what is right; he considered it as a priori although ‘synthetic’. The principle of this Critique takes the form of an autonomous imperative – an internalised power to act. Hume writes sometimes as if formal reason – the recognition of tautologies and valid inferences – can play no causal role because its field is abstract ideas rather than cause and effect: I believe it will scarce be asserted that the first species of reason [demonstration by the abstract relation of ideas] is ever the cause of action. As it’s proper province is the world of ideas, and as the will always places us in that of realities, demonstration and volition seem … totally removed from each other (Hume 1978, 413).

But a grasp of principles and facts is necessary to the strength of mind it requires to apply such understanding when the occasion demands it. The comprehension of an intellectual error possessed by the architect we described earlier lent her strength. In his more considered concessions Hume accepts such cases but not their implications about the nature of reason. Yet Hume opens his attack on any possible conflict between reason and passion on the basis that reason, as abstract understanding, cannot be an operative cause. We have seen how in the face of common experience Hume has to concede that reason can perform an ancillary role in relation to passion’s aims. Tacitly

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Hume grants some power to reason.20 In the first paragraph of ‘The influencing motives of the will’, Hume declares that he will ‘prove, first, that reason alone can never be a motive to any action of the will; and secondly, that it can never oppose passion in the direction of the will’. We agree that reason is not a motive but still in the opening line of the next paragraph Hume himself finds it natural to say, ‘the understanding exerts itself [in two different ways]. Thus he associates understanding with some kind of force (Hume 1978, 413). We ‘exert’ ourselves in our efforts to judge what is ‘demonstrable’ (mathematical and logical principles) and ‘probable’ (scientific principles and issues of cause and effect). He must be right in saying the first sort of exertion ‘cannot alone be the cause of any action’. Unfortunately, his reason (we are dealing in ‘the world of ideas’ removed from that of action) confuses the issue. The use of mathematics makes a crucial difference to our conduct of business affairs. Abstract understanding is not intrinsically removed from practice.21 Hume has confused the abstract character of understanding with a sort of inertness. What he does is more acute than what he says, fortunately. What he does is to exhibit a number of cases in which reason does act as a partial cause. The ‘exertions’ of the understanding are said ‘never alone’ to cause action. But reason and passion are on the same level then. Passions alone do not bring about action. Putting aside the countless contextual conditions for cause and effect, embarrassment (a passion) might be named the whole cause of one’s blushing (a reflex). But blushing is not an action, and does not involve the will. Embarrassment cannot be a whole cause of a specific action such as exiting the room in one’s discomfiture. One might equally have made a joke of one’s predicament. To exit the room is already to use one’s understanding of a situation in a particular manner. To deny that reason alone is the cause of passion or action is to concede that reason can be at least part of their cause.22 Hume’s general argument that demonstrative reasoning cannot be a cause because it deals only with the relation of ideas (not of ideas to things) is a step in quite the wrong direction. Whether mathematics really does deal with a ‘world of ideas’ separate from that of action is beside the point. Even if you accept a dualism of ‘pure’ and ‘applied’ mathematics, dealing with that ‘world of ideas’ leaves reason in touch with action. Throughout his discussion of the relation between reason and passion Hume has two main issues at play. One issue is whether reason has a causal relation with passion (and thus with action), and the other is whether by reason we can 20  We saw how the initial subjugation of reason to passion betrayed his acceptance of reason’s causality. 21 There is some irony here, in the light of Kant’s opposition to Hume. Kant’s ‘noumenal’ realm is Hume’s ‘world of abstract ideas’ writ large. Each of them makes a radical separation of pure reason from practice, only to make concessions in the name of common experience and of theoretical coherence. 22  We have already sketched the possibility that new comprehension of a situation may initiate a sympathy not previously connected with pre-existing concerns.

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justify how we feel and what we are concerned with. These issues (though easily confused) have a connection. It is the abstract nature of ideas in contrast with the sheer existence of the passions that makes it seem to Hume that reason cannot get a grip on them. By the same token, passions as ‘brute existences’ would lack intentional structure and so reason could not exhibit them to be rational or irrational. Hume argues that it is reason’s representational power that gives it the status to confer reasonableness. Correlatively, it is only a representational character in what is made reasonable that permits it to accept that endowment. It follows straight off that whereas one can by reason show why one should have a certain belief about fact or abstract principle, one cannot use reason to gain some logical purchase on the passions. Those who deny Hume’s conclusion come to a dilemma here. They might take issue with his concept of the passions as brute existences lacking the wit of concept or proposition. Alternatively, they might challenge the apparently impregnable doctrine that when it comes to rational justification it takes two to tango – each partner being formed within the same intentional structures. Our opening critique of passion as ‘slave’ is again relevant. Passion cannot be cast by allegory as reason’s slave if it passion is a brute existence that shares no world with the master.23 Thus Hume originates a tradition of analytical philosophy – that strictly speaking only the beliefs that accompany passions are rational or irrational. In the case of sensations this is evident. To have a toothache is not rational or irrational. Reason can bear only upon the remedy one might employ to alleviate it. But most emotions, motives and impulses are conceptual through and through. That passions cannot be rationalised only follows from Hume’s premise that they are ‘brute existences’. And yet, even as brute existences reasoning might have an effect upon them, though the effect that did occur would be as blind as to its cause. Whatever the truth about effects – whether ‘blind’ or as comprehended – of reasoning on passion, Hume is right to this extent: if passions cannot be rationalised then our main reason for thinking that reason can modify them disappears.24 Except by lucky coincidence, reasoning appears to work to modify my passions by the fact that in my passion I understand how the points of reason that are brought to me, bear upon it.25 Reason brings fact, inference and conceptual judgement to bear on the passion of dedicated aspiration – as it does upon reflective thoughts. 23  Whether perception itself might be at its heart such a brute existence, too, has become a renewed controversy in a new genre of analytical philosophy. John McDowell makes a neo-Hegelian critique of non-conceptual sensation as no reason for belief (McDowell, 3–23). For Hume, reason cannot justify brute existence; for McDowell brute existence cannot justify a propositional attitude. 24 As with believing in God after evolutionary theory, the theory removes the prime reason for belief. 25  One might lull someone to sleep who is upset. Your steady murmuring of facts that do establish the situation as ‘not so bad’ are not understood at all but in the event of the giving of reasons does the trick.

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It becomes apparent that the issue of the conceptual structure of passion in its relation to reason is too large to pursue further in this work. What I have argued is a strong prima facie case that various modes and uses of reason are causally relevant to the state, intensity and texture of our passions, and the timing of their expression. Hume’s own examples of reason’s influence assume that within our passions we comprehend reason’s demands. Reciprocally, his examples (and ours) assume a comprehension within reason of the character of passionate life. The causal bearing of reason upon passion remains credible only by taking the passions not as ‘brute existences’ but as having conceptual structure and intentional content. Perhaps it was because of a certain vision of reason’s methods that people found a strong appeal in Hume’s picture of reason as passion’s slave. They must, too, have had some prior disposition to be persuaded by his arguments that it is impossible for reason to act in relation to the passions except in terms of beliefs accidently connected with them. It takes care to construct a good model of the reasonable effect of reason upon passion. Just to tell someone they ought to care, or to flatly inform them of principles from which it follows that they should care, is not the way to elicit any positive response. Certainly. But those are lazy and unimaginative uses of reason. To use such didactic or authoritarian methods when teaching mathematics or science rarely works, either. When we use reason properly, we present a case so as to permit the learner to participate in what is being taught. That is what brings them to comprehend and thus to be moved by reason. That is what is involved in making reasons one’s own. That is how we gain and develop what Kant called our ‘autonomy’ in reason. Pure Practical Reason Pure Power Kant appeals to pure practical reason both as a source of comprehension of what is right, and as a power that enables us to follow that principle. Kant is determined first to establish the autonomy of pure practical reason in the understanding of what is right. He has reason to be wary of Hume’s appeal to the sentiments alone as the basis for recognising and doing what is right. Since Hume stresses the role of good feeling as a basis for doing what is right, what he says seem reasonable and appealing. But a cruel repressive morality can also be founded on feeling – on vicious and punitive sentiment. If reason can say nothing about the difference between good and bad feeling then the prospects of fundamental reasoning about what is right are bleak. Kant argues that ‘pure practical reason’ can be a full determining consideration for the will. This would be in direct opposition to Hume’s subordination of reason to passion. Kant’s second critique, The Critique of Practical Reason has the task of grounding the validity and the power of pure reason to form a pure will to do what is right. His principle of pure practical reason is designed as if specifically

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to counter Hume’s denial that reason can initiate what we desire (then to resolve and pursue to an end). In ‘determin[ing] the will a priori with regard to its object’, Kant’s pure practical principle is supposed to give us the power to be willing to do what is required. The business of pure practical reason is to ask of our maxims of conduct whether we would find them acceptable as laws of nature.26 Practical reason will not be distracted by the micro-causality of its business. An empirical enquiry into that takes place outside the realm of pure reason. Our action in the phenomenal world has its causes in that world, and yet the noumenal will is effective in the noumenal realm while free of the net of phenomenal causality. Kant is frank about the predicament: It seems paradoxical to want to find in the world of sense a case which … falls only under the law of nature [and] nonetheless permits the application of a law of freedom to it [Then Kant begins to see a way out.] The concern is not [as it is in theoretical reason] with the schema of a case according to laws, but with the schema of a law itself, because the determination of the will through the law alone … ties the concept of causality to conditions that are entirely different from those that amount to natural connection (CPrR, 90–91).

Can this division of ‘worlds’ make sense? Kant sketches how pure practical reason becomes an incentive for this pure will. To avoid a clash of freedom and of causality he has marked pure reason as noumenal and actions in the world as phenomenal. Now he must bridge the two. How can noumenal reason bear upon the will to act? Traffic on this bridge must not pollute the noumenal realm. The will is to be pure though effective upon phenomenal action. Kant proposes an idea of pure reason evoking our respect for ‘moral law’ (CPrR, 102–104). Respect is a feeling and as such can be an incentive in the phenomenal realm. Since its object is only pure practical reason itself, the purity of reason is preserved even as it engages with the everyday world.27 This may be an appealing idea but it takes for granted the possibility of traffic from noumenal to phenomenal. Work of pure reason in the noumenal realm summons up respect in the phenomenal, Kant observes. But if the power of noumenal pure reason and that of phenomenal causality are of different orders, the noumenal could not affect us with respect. Reason’s Pleasure We do have Kant’s capacity to judge what is right in the face of contrary inclination but he constructs his pure reason as divorced from every kind of passion. And yet reason’s pure principle can evoke our awed respect – a pure passion. We can go further in this direction. In doing what we take to be right we are pleased at the 26 Alternatively, we ask of our maxims of conduct whether we would will them as universal legislation. 27 Circularity still threatens since noumenal reason must evoke phenomenal respect.

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very fact of its being done, despite the costs. I take that pleasure for myself, and I recognise the same pleasure in another – at how he or she is open to information whether or not it is agreeable. I take pleasure in the disinterested rigor of judgement, which neither rushes when there is more time for thought, nor spins out the process of deliberation until it is too late. Like Kant we admire purity of reason, but we accept it phenomenally as part of the purity of considered sentiment. But Kant insists that respect for the moral law provides an incentive that has nothing to do with any sort of pleasure: So little is respect a feeling of pleasure that we give way to it only reluctantly in regard to a human being. We try to discover something [in him] that could lighten the burden of it for us … On the other hand, there is nonetheless so little displeasure in respect that once we have shed our self-conceit … we can not take our eyes off the splendor of this law (CPrR, 101).

While insisting on the austerity of this ‘respect’ Kant becomes inconsistent. ‘Splendor’ speaks of pleasure. Kant will write of our ‘awe at the moral law within’. Awe too is a pleasure, albeit austere. Whether in awe or in simple satisfaction, being pleased at what is right in itself has the same purity as the practical reason that gives it focus. Contrary to Kant’s strictures, this is how pure practical reason might supply motivation. Judgement draws upon it; to judge is already to be affected. Kant has another argument against pleasure as at the heart of pure judgement. In the light of our preceding argument, I read it as a case against impertinent motivation: If this feeling of respect were … a feeling of pleasure based in inner sense then [trying to] discover a priori a link of it to any idea [such as what we ought to do] would be futile; however [respect] applies only to the practical; moreover, it attaches to the presentation of a law [only] in terms of the law’s form and not on account of any object of the law (CPrR, 104).

Kant is arguing that if being pleased at something were a mode of understanding there could be no ‘practical necessitation’ of the will by pure practical reason. His manner of division of phenomenal (observable matters of fact) and noumenal (issues of pure principle) misleads him here. This necessitation (of will by principle via an a priori link) cannot exist in any world, phenomenal or noumenal. Kant deplores how we hide from the implications of what we understand, but he cannot deny that we do. Also when we deliberately refuse to pay the price of principle we are not ‘necessitated’ by what we understand to be right. We might respond, for Kant, that this ‘necessitation’ is the conceptual connection between what the principle states and the justice of following it. But that reasonable suggestion proposes no kind of cause. Causality is not a conceptual relation. Causality in

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doing what is right is the force of the understanding of what we do that makes us willing to undertake its costs. Kant holds that as ‘objectively’ practical, reason excludes influence from any kind of ‘inclination’ (CPrR, 19–34). He is thinking of inclination as a tendency to proceed as we please, irrespective of what is right. By providing understanding of what is right, pure practical reason gives us the power to do it. In that case pure practical reason generates its own inclination. We shall proceed to do what is right unless it is so dangerous that we turn away from that course. We can agree with Kant in distinguishing the concerns of pure practical reason from irrelevant inclinations. But though it cannot necessitate, Kant’s pure practical reason can provide strength in the understanding and pursuit of what is right.28 Rather than a distraction, this ‘inclination’ is intrinsic to the concerns of reason.29 As being pleased at what is being done judgement would not thereby be motivated by pleasure. To be pleased at what we do takes more than doing what we please. This being pleased at is no prior or improper ‘inclination’. The considered way of being pleased that constitutes judgement cannot be a prejudicial inducement upon itself.30 Also, in thus respecting the autonomy of reason we can agree with Kant that when we judge an action as right we consider the ‘form’ of a principle rather than an action’s ‘subject matter’. When I pay a debt I take no pleasure in my action as handing over my money to a stranger. But in judging that I should pay it I am pleased – as Kant says – at the ‘form’ of what I do. It is the debt’s being paid that I am pleased at. (This is a far cry from paying the debt out of disguised self-interest.) Where Kant speaks of (pure) reason (Vernunft) in contrast with understanding (Verstand), I would speak of judging what is right by using reason to understand it. His ‘will’ to do what is right proceeds from pure reason but we need make no mystery of that purity. Kant’s examples are utterly of ‘this world’ – if we treat customers fairly as ‘good for business’ then our motive is mixed. From this commonplace we distil, in thought, a pure motive. When pure reason is out in the open to that extent, it has a hold on the mind that prudence can only weaken. We can then agree in our own terms with Kant’s notion that what we realise in the use of pure reason can generate the will to act. It is from this use of reason (‘understanding’ in contemporary terms) that we draw the power to bracket off ‘inclinations’ that obstruct our good will. That is the source of the ‘sting of reason’ that causes the ‘splash of tears’ at what we relinquish in the face of our situation. But, unlike Kant, we permit this pure intellect to live in the same house as the ‘inclinations’ that would corrupt it. Pure reason cohabits with pure passion and

28  I import understanding (‘Verstand’) within noumenal reason (‘Vernunft’). 29  Kant cites pleasures irrelevant to beauty but still ‘first moment’ of an aesthetic judgement is pleasure. 30 Grasping a principle’s validity can work, but narrative – exemplary cases – may be more effective.

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thus, like sense and desire, appears as a phenomenon. (Perhaps every phenomenon trails clouds of the noumenal – of what is in itself.) It is the power of understanding gained by our use of reason to sustain the will to act that is at the heart of Kant’s pure practical reason. It falls to us to comprehend this purity as existing in the midst of the busily impure world of phenomena that is the arena of action. What makes an action right rather than convenient or profitable is preserved on that arena by our undivided and unswerving attention to what is relevant to an action as right. Thus we hold pure practical reason within experience (Deutscher 2007, 134–162; Schaap, 27–54). Kant founds the purity of practical reason on a noumenal realm outside phenomenal causality. His determination upon preserving the autonomy of pure reason generates a theory that renders it incapable (in any way he can comprehend) of affecting the phenomenal world. But Kant analyses examples in social and political life of people who do what is just despite extreme or fatal consequences for themselves. Kant has demonstrated despite himself that pure reason operates upon the same plane as affectivity. Hume has demonstrated despite himself that reason takes hold on passion. Though with a motive the opposite of Kant’s, Hume also tries to remove pure reason from the field of passion. Inevitably, this scenario has the same weakness as Kant’s more florid picture of noumenal and phenomenal realms. Hume argues that pure (abstract) reason cannot oppose passion because it deals only with the world of relations between ideas. But in that case our understanding of mathematics and logic cannot work even to serve passion. Passion would have no hold upon it. Freedom in Reason One has to deal with this continuing tension between Kant’s separation of sensibility and pure reason (speculative or practical), and his need for the will (as responsive to the validity of a maxim) to influence conduct. In the Groundwork for the Metaphysics of Morals, published some three years before the second Critique he writes: [It is] entirely impossible for us human beings to have an explanation of how and why the universality of the maxim as a law, hence morality, should interest us (Kant 2002, 77).

This vision of exclusive realms of the phenomenal and noumenal is at the centre of Kant’s thinking. What for us appears as philosophical myth, for him secures the autonomy of what is right as against what is only agreeable. Yet, having separated these ‘realms’ Kant then has to find a way of placing them in communication with each other. He has to rescue pure practical reason from irrelevance. Even as we escape the myth, we find that the problems that brought it into crisis remain on our own contemporary agenda. The use of reason is a key part of the freedom we have in relation the world we understand, even as we understand ourselves ever

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more fully within that world of cause and effect. And for Kant, as for our almost contemporary Arendt, this problem of freedom is prior to that of understanding by pure practical reason what is right. Contemporary analytical philosophy takes the question of freedom as ‘Could I have done otherwise?’ That is not Kant and Arendt’s central concern. The challenging question for them is how, in a world of causes, I can initiate a new sequence of events that breaks with hitherto fixed patterns. Kant tells two stories in immediate apposition. By use of reason we have the power not to do what, under the force of passion, we feel we must. And by use of reason, also, we know that we have the power to do what natural inclination would seem to place beyond our powers: Suppose that someone alleges that his lustful inclination is quite irresistible to him when he encounters the favored object and the opportunity. [Ask him] whether, if in front of the house where he finds this opportunity a gallows were erected on which he would be strung up immediately after gratifying his lust, he would not conquer his inclination. But ask him [too] whether, if his prince demanded on the threat of the same prompt penalty of death, that he give false testimony against an honest man whom the prince would like to ruin under specious pretenses, he might consider it possible to overcome his love of life, however great it might be (CPrR, 44).

If Kant’s character sets aside inducements and threats he might think, clearly, whether he would want a world in which it was a law of nature to destroy someone’s life by a lie in order to save one’s own. In understanding that he would not will such a world he realises that he has the power to refuse the sovereign’s command. In this freedom of mind he might break with what ‘they’ think that he ‘has to do’. Sovereignty might crumble; new sequences of events might unfold. Kant claims that in grasping a pure practical principle we become determined to do what is right. The double meaning of ‘being determined’ works out to the benefit of his theory. In a resolute action that ends a cycle of oppression one is fully determined to make that change. In becoming absorbed in what justice requires, one can say finally, ‘I could have done nothing else’. My freedom, then, consists not in the mythical ‘contra-causal’ opposition to an easier and safer option but in putting that option out by play by attending to the ‘pure practical principle’ at stake. We say that someone was free not to do something right (it was demanding and dangerous) but in the same breath observe how she was determined to do it. It is facile to dismiss this as ‘bad’ ambiguity. The play on ‘determined’ is a creative one. There is a proper link between being obliged by (appropriate) factors and being fully set upon doing. When someone has become involved in a connected series of dangerous actions in order to do what is right, it has become (for that person) only an imaginary possibility to retreat suddenly into isolation. It is not

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necessary to treat the noumenal realm of pure reason as therefore cut off from the phenomenal realm of cause and effect. Still, we are at best only moving towards a model that goes beyond Kant’s. His own examples integrate the noumenal with the phenomenal even if his theory does not countenance that. The reality of Kant’s ‘purity’ of reason is demonstrated to us even in the simple capacity of a jury to obey a judge’s injunction to ignore tantalising evidence that has been ruled inadmissible. We place the operation of that reason ‘always already’ as within the field of determining factors. We think of a person as becoming determined (I am quite determined!) within the factors by which they are determined (by factors within and without). To be free is to be willing to do what you understand the situation requires. The purity of reason within the myth of the noumenal emerges as our becoming determined (in both senses) in the light of what we understand. Hume invoked only the phenomenal realm but still he placed reason outside the structure of causes that impel us. Though he had the good sense to concede reason at least a subsidiary role, he thought of it as constitutionally ineffectual. We have outlined something of what reason requires if it is to carry out passion’s needs. For his part, Kant set out by placing reason outside the causal framework and then tried to resolve reason’s efficacy and phenomenal causation by dividing noumenal power from phenomenal causality – each within its own sphere.31 As we work out the complementary structures of empirical and transcendental thought, we discover reason operating as within a causal framework even as it retains the normative power that binds it with judgement. Concluding Remarks It is Kant’s distinction of phenomenal and noumenal as a division of different orders of being that makes so implausible his appeal to pure principle as itself a kind of ‘higher’ motivation. And yet, when we return from a critique of Hume it is Kant’s approach that offers better prospects for understanding reasons’ power. While Hume’s appeal to humanity in its natural habits, propensities and sympathies is initially attractive, his default position is that reason is inert. For Kant it is only by reason that we can take the initiative. Hume makes reasonable concessions about reason’s role, but does not revise his main principle. In consequence he finds too limited a role for reason, and is less able than Kant to account for its peculiar power.32 Edmund Husserl would encourage us to examine as inspired allegory, myths such as that of the noumenal: ‘Kant get[s] involved in … mythical talk, whose literal meaning points to … a mode of the subjective which we [cannot] make intuitive’ (Husserl, §30, 114). Gilbert Ryle also treats dualism as a myth to be investigated for its meaning (Ryle 1976, 9–11) Kant’s mythology dramatises 31 The account of judgement must challenge the division of noumenal reason and phenomenal feeling. 32  I admit that success in this depends on integrating the phenomenal and noumenal.

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the force of reason when directed purely at what is relevant to an issue. That he has to resort to myth alerts us to the need to understand that power. Kant’s exemplary moral tales and the use he would make of them as a proper method of moral education counter the vision of him as a philosopher of unfeeling duty. For Kant, reason is not only logic coupled with an appreciation of cause and effect. It involves our most abstract comprehension of principle, whether formal, speculative or practical. His ‘pure reason’ is not required to abolish our impulses towards pleasure and safety. Reason’s clear understanding does not – as if only one more impulse –­ overpower those self-protective passions. Rather, absorbed in what we understand we set them aside.33 By reason we may not dominate but we can defer passion. With good fortune, in all good time, we may come to fulfil it. Kant linked practical reason with being willing to act rightly. He claimed that the force peculiar to practical reason derived not only from its purity but also its practicality. It operates in the imperative mood from the outset, bypassing Hume’s barrier between ‘ought’ and ‘is’. In judging what is right we start with what we grasp ought to be. Like Hume, Kant recognises that neither facts nor theories of science determine what we ought to do. Hence, he turns to imperatives – principles that make no appeal to facts hidden from science. Our objectivity derives from imperatives that shape the mind.

33  One might think of Husserl’s ‘bracketing’ of the objects of our natural attitudes.

Chapter 8

Mystique of Critique Thought bounds. Critique flies off in public space.

Introduction So far we have described and analysed a major judgement, sketched an account of what is involved in judging, elaborated how judgements of what is right can be made, provided a structured picture of how judgements can be grounded, and distinguished judgement from inference and from argument. The preceding chapter opened with an argument for a degree of autonomous power for reason; we can recognise how it plays an effective role in the ‘phenomenal’ realm of causality and thus in Arendt’s public arena of self-disclosing politics. The force of reason is not demoted to its role in calculating means to ends, nor is the validity of reason fully contained within cooperation in communicative discourse. Anyone or sub-group has to bring judgement to bear upon the tissue and quality of the communicative discourse available to them. At the same time, to consider public interaction as irrelevant to your judgement is to bring into question whether you mean to judge at all. Kant would give judgement – that mental resolution that arises in being pleased at rather than thinking that – a ‘subjective’ validity. He does this by reference to the ideas of necessity, universality and the a priori. He can borrow from his theory already established as ‘rigorous’, and use its terms and structure to raise the status of taste. In our work here, however, we need to understand how forms of reason bear upon our resolved pleasure at a situation.1 What we need now, given that the noumenal order with its a priori universal structures are for us myths, is a way of gaining what we can from them. We have to use our judgement in order to understand judgement. In these efforts to use the modern without ‘making a fetish’ of it and without idealising a classical past, we are edging towards a renewed and calmer version of the postmodern. So, in search of a method, I turn to forestall the mystique generated by critique by questioning critique but without looking to some absolute limits of critique. That would reinstall the mystique – the spectre of a forbidden outer territory. Kant’s Critiques – particularly the first – are destructive of long-held hopes for metaphysical proof – about the nature of freedom that co-exists with causality, whether God exists, whether the soul is immortal. Hume’s scepticism about such metaphysics was acerbic but on the same conceptual level as what he attacked. 1 To read the Mabo decision closely was part of this process.

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Kant argues, by means of his method of critique, that reality is divided into the ‘noumenal’ realm of freedom, pure principle and the thing-in-itself at which we can but gesture in thought. What we can know of it is that it must lie beyond what we can know. There are various ways in which systems ‘contain’ their own limits.2 THIS PROGRAM CONTAINS VIOLENCE THIS PROGRAM CONTAINS HUMOUR THIS PHILOSOPHY CONTAINS CRITIQUE

As to the first: since the program contains its violence, no violence is let loose on the streets then; it is well contained within the television signals and reception. As to the second: If I contain what is humorous then I am not humorous; a violent program contains the violence it depicts by placing depiction between you and the violence while a program contains humour in releasing it. A violent program contains violence in keeping violence pent up. Philosophy ‘contains’ critique as a TV show ‘contains’ humour – it is comprised of critique as the show is comprised of humour. But can it keep its critique contained? Will critique fly philosophy’s coop? We have reason to doubt that it can keep within proper bounds the very thought involved in uttering its limiting conditions. Thought bounds, itself. Critique set loose in philosophy’s living room vampires into that public space of politics. As if a violent show began to make us replicants.3 Radical critique produces at least the image of such a result – of critique as bursting the very bounds of the reason it was supposed to serve.4 Kantian critique is born contained – not imposed from on high – or outside our ways of thoughtful and perceptive knowing. In his method he places us – we who practice it – not as watchmaker to fine mechanism but as ants that begin to ponder on their ant heap: ‘How does this structure give such sense to our scurrying?’ Or we read Kant as internalising Plato’s unspeakable reality beyond the cave: we articulate what it requires to perceive knowingly; we discover conceptual ontology as a bounded system. But the very boundary is unthinkable when what lies beyond is beyond the reach of concepts. If such an argument were valid we would not be able to comprehend a word of it.5 2 Nikolas Kompridis has investigated another dimension to this question of the ‘containment’ of critique in his work on ‘disclosure’ (Kompridis 2006, particularly 254–274). 3  Kant’s noumenal as a real region beyond empirical knowledge was a stimulus for romanticism. 4  Within these terms Plato’s allegory of a ‘break-out’ from the cave of illusory appearance is exemplary. 5  Wittgenstein: ‘If a lion could speak we should not understand him’.

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The Imaginary as a Limit of Critique While Luis Costa Lima was engaged with the ‘dark’ side of reason, Michèle Le Dœuff was writing about systems of imagery that bridge a hiatus in philosophy. Like him, she wanted both to delineate and make intuitive that ‘mode of the subjective’ implicit in each Critique. Luiz Costa Lima alighted with Le Dœuff upon a passage in the Critique of Pure Reason that we had ignored as ornament. Kant offers ‘the promise of … returning home to an Ithaca – a familiar landscape to compensate for the harsh journey’: We have now not merely explored the territory of pure understanding … but have also measured its extent and assigned everything in its rightful place. This domain is an island, enclosed by nature herself within unalterable limits. It is the land of truth – enchanting name! – surrounded by a wide and stormy ocean, the native home of illusion, where many a fog bank and many a swiftly melting iceberg give the deceptive appearance of farther shores, deluding the adventurous seafarer … with empty hopes (Kant 1965, 257, B294).

To comment on this allegory Costa Lima makes a detour behind it. He discovers another story that warns of the dangers of accepting subjectivity. He tells of Menocchio: [He] had the misfortune of being enthralled by … John Mandeville’s Travels. Impressed by the diversity of values and customs described in the book … [he] could no longer believe in the orthodox principles of Counter Reformation Catholicism … When asked by his Inquisitors which was the best law, Menocchio answered, ‘Sir, I believe that each man thinks his own faith is best, but no one knows which is best’.

Costa Lima remarks that ‘the inquisitors failed to realize that the accused man’s religious conceptions were rooted in popular belief, and viewed them as like “theorizations of contemporary heretics with a Humanistic background”. These new popular beliefs, incommensurable with theology’s philosophy, result in comic tragedy: Menocchio [discovers] the new importance … of individual judgement – of subjectivity … [Where] Montaigne legitimated the self’s discriminating power … Menocchio, an uneducated man … presented his personal judgement in a straightforward way … proclaim[ing] what to the subtle ears of his judges could only sound like a blatant defense of relativism – sheer heresy’. Kant’s island borders should be contrasted with Menocchio’s travels. Acknowledging subjective judgement … made travel writing dangerous and suspicious (Costa Lima 1993, 72–73).

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Now consider Le Dœuff’s contemporaneous rediscovery of Kant’s island of understanding and truth. She too cites Kant’s allegory of the ‘territory of pure understanding’. Her theme also concerns suppression of the imaginary, but in a different mood. Costa Lima connects narrative with philosophy to reduce the mystique of Kant’s division of (noumenal) pure reason and (phenomenal) understanding while, for her part, Le Dœuff will come to treat the slide from the individual subject to transcendental ego that is inherent in making a theme of the individual subject (Le Dœuff 1986, 22.) She remarks on the Kantian atmosphere of paternal repression – but not only repression. Kant’s stern warning (ironically self-indulgent) against mistaking melting ice floes for new found land catches her ear. Kant guys his own interdiction: ‘It is the land of truth – seductive name!’ Le Dœuff interjects, ‘Kant is on his guard against his own text’. In recognising his presumption of charting the land of truth he distances himself. ‘Seductive name’ is a gamesome remark from one so famous for promoting reason over pleasure: His text presents itself along with its own censoring – to announce a seduction is also to denounce it – and to enjoy dispensation to let the seduction work, ‘even so’. Between the writing subject and his text there is a complex negating relationship. This is a sign of something troubling that seeks utterance – which cannot be acknowledged, yet is keenly cherished [my emphasis] (Le Dœuff 1989, 8–9).

Le Dœuff returns to Kant from other islands – including Bacon’s New Atlantis: This island of the Critique of Pure Reason is the emblem of the Kantian enterprise … the self-justification of a project which is … conducted on the terrain where that project could least readily be defended: that of the pleasure principle. Reflecting on … his own intervention in the domain of his object [that] introduced … the operator called ‘critical philosophy’, Kant takes a further step (beyond the idea of a use, for the progress of the sciences of a philosophical work): he constructs a self-justification centred on a discrimination of pleasures and pains. Without the critical theory, the understanding ‘must unavoidably’ court the worst reverses … With the Kantian philosophy, the understanding will learn to stay on the island – of whose charms … nothing is said to us, except that it is a place where one can stay, which does not seem much unless one … has been caught by a squall in the Irish Sea or the Baltic! (Le Dœuff 1989, 11).

Finally she makes her judgement on the scene: Only a terroristic mise en scène can justify Kant’s threats about these pains (of venturing beyond the island). Images are the means by which every philosophy can engage in straightforward dogmatization, and decree a ‘that’s the way it is’ without fear of counter-argument, since it is understood that a good reader will

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by-pass such ‘illustrations’ – a convention which enables the image to do its work all the more effectively (Le Dœuff 1989, 12).

Costa Lima, interested in the mystique surrounding critique, cites Walter Benjamin: In the writings of the early romantics, of all philosophical and aesthetic technical terms, ‘critique’ and ‘critical’ [kritisch] are probably the most frequent … Through Kant’s philosophical work, the concept of critique acquired a nearmagical meaning for the new generation; in any case, for them it was not associated predominantly with the sense of an … attitude [that was] merely judicative …; to the romantics and to speculative philosophy, the term ‘critique’ meant objectively productive, lucidly creative (Benjamin 1974, 51; cited Costa Lima 1993, 103).

Costa Lima takes us on a revealing tour of all Kant’s Critiques, setting out from that ‘northern island’ of pure understanding: For reason, not being limited to the medium of possible experience, is characterized by the fact that it goes astray. Reason is marked by what, from the viewpoint of the understanding, is excessive: it thinks what cannot be known, The immediate object of its thought is freedom … which is what cannot be explained by a cause (Costa Lima 1993, 76–77).

We can achieve a theoretical rather than pure understanding of the world, whose ‘rigor seem[s] rather mild’ in comparison with that of the moral Law. That law is thought by pure (though practical because imperative) reason. The world of causality that we can understand through scientific theory is not only disenchanted [a positive trait], but torn apart because there can be no theory by which to understand pure practical reason – the realm of free obligation. I have argued previously (Deutscher 2007, 137–147) that Arendt, after Kant, calls upon judgement to work magic in solving his insoluble problem in her revised form. Each of them needs judgement to mediate the realms of pure thought and the causal order of will and action. He alights on Kant’s attempt to weld judgement’s pleasure in taste with some a priori character that would befit the universalist pretensions of any judgement: Here we may … assume that judgement likewise contains an a priori principle of its own and that, since pleasure or displeasure is necessarily combined with the faculty of desire … it will effect a transition from the faculty of pure knowledge (the realm of concepts of knowledge) to that of the concept of freedom, just as in the logical employment of judgement it makes possible the transition from understanding to reason (Kant 1982, 17; B 24–25).6 6  At this point Kant is making a demanding comparison with his first Critique.

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Anthony Cascardi puts it this way: In the third Critique, it turns out that the idea of an aesthetic ‘bridge’ over the gap between these [noumenal and phenomenal] worlds is impossible to build … because the ‘unity of experience’ or ‘world as a whole’ can only be reconstructed … but never attested as true (Calhoun, 108).

Costa Lima alerts us to how, in setting universal limits to understanding Kant risks reinventing metaphysics in the very project of exiling it from his austere island. We need concepts and methods in philosophy by which to subvert this drive towards the super-sensible. We read the road sign: Wrong Way! Do Not Enter! But what is the exit route? We can start from Kant’s identification of pure practical reason as imperative and for that reason not at odds with theoretical reason. In getting hold of the significance of Kant’s move in the second Critique to connect pure reason with imperatives, we need to move forward to the even more daring expansion of the territory of reason in judgement that he makes in the third Critique. It was a brilliant stroke on his part to deploy judgement to make a bridge between the (noumenal) world of freedom and the (phenomenal) world of causality. Though judgement is founded in the lightness of the aesthetic, Kant and Arendt press it into heavy theoretical work. It is the lightness of judgement’s origins and associations, nevertheless, which prepare it for the task. Relieved of the burden of practical reason’s moral responsibility, judgement is sent to work within taste and feeling. For Kant, judgement has no place with regard to moral law, which is recognised by pure (practical) reason. Pure in its application to principles that are practical imperatives and outside any collision with cause and effect reason determines the will as good, and the will determines conduct as obedient to moral law. Kant cuts ‘theoretical’ from ‘practical’ reason, and separates the activity of the self in its phenomenal world from the will of a noumenal self that knows nothing of the ‘before and after’ of causality. From that moment Kant’s text ‘pitches and tosses’. No sooner has he maintained nature and freedom as ‘antithetical’ principles than he goes to bring them together again - only to react against this accommodation. A synthesis of nature and freedom would be achieved at the cost of freedom, since there can be no limit to the application of scientific principle in the world of nature. It is by the craftiness of judgement (urteilskraft) that we attempt a salvage operation: ‘the critique of judgement [is to be] a means of linking the two parts of philosophy into a whole’ (Kant 1987, 15). Kant needs judgement to work some magic – separating the realms of nature and of freedom while connecting them so that a pure practical will can bear upon what we do. In assigning nature to the phenomenal realm and freedom to the noumenal, the Critique of Pure Reason aims at a ‘separation of powers’. In being consigned beyond the phenomenal, freedom becomes ineffable. This is the price of resolving the standoff between nature and freedom. If the noumenal lies beyond understanding, no outright contradiction can be stated between the

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phenomenal and the noumenal (Kant 1998, 537–46). This is a pyrrhic victory, gained at the cost of any comprehension of freedom; it threatens the viability of Kant’s distinction between reason and understanding. If we cannot understand the speculative thought of our own reason then it would appear that reason contributes only mystique to judgement’s ‘criticity’. Accordingly, Kant sets up judgement to resolve the tension between the first Critique’s emphasis on limits and the second Critique’s requirement that pure practical reason can bear upon conduct. In the first Critique the intellect discovers the world as governed by causality (‘What causes what I do?’). The second requires our freedom to operate by a pure reason that bears upon practice (‘What shall I do?’). Kant hopes to ease the tension: What cannot be included in the division of philosophy [into theoretical and practical] may yet be admitted as a principal part into the general critique of our faculty for pure knowledge if it contains principles [that is, of judgement] that are not in themselves adapted for either theoretical or practical use (Kant 1987, 15–16).

Not being theoretical knowledge or practical reason, judgement might bridge the gap between the phenomenal and the noumenal orders. In judgement we have to survey events as causes and effects, but also form a will according to a grasp of principle. The division seems intense, but judgement spans these separated fields. It is not only theoretical knowledge and practical reason that is subject to judgement – we may ‘provisionally assume that, [like the] power to know and to desire, judgement contains its own a priori principle’: [Judgement also deals with] our capacity for pleasure and displeasure, and our power of desire. To be able to feel pleasure lies between the power of knowing and the capacity for desire, just as judgement lies between intellect and reason (Kant 1987, 16–17).

The ideas in Kant’s provocative argument operate as analogy. Since pleasure is necessarily connected with desire, judgement ‘will effect a transition from the faculty of conceptual knowledge of nature to our faculty of freedom’. It is ‘in the same way’ that judgement effects the transition from intellect’s knowledge of causes and effects to practical reason’s principled determination of the will (Kant 1987, 17). But how does judgement give stability to a flimsy bridge between noumenal and phenomenal? This remains obscure. Only within a ‘northern island’ made intelligible by the understanding within its domain of experience can truth exist. Still, if we are by pure reason to think this limit then we must ignore the warning not to go beyond understanding. Since Kant proclaims the island’s shores as the limits of understanding, we can travel beyond the island only in thought that cannot yield knowledge. If he is to think the very division between phenomenal and noumenal, Kant himself must risk shipwreck on those melting icebergs – illusions of land. Pure practical reason requires that we

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can act according to pure practical reason’s law – within the phenomenal order of cause and effect. The freedom pure practical reason requires is that of autonomy – more than an absence of social constraint – a power to initiate new series of events within the causal order. Faced with such imponderable issues we should consider a modest proposal when thinking about the mystique intrinsic to radical critique. Perhaps Kant’s analytic description of what is involved in aesthetic judgement tells us what we need to know about the possibility of judgement’s critical power. Kant distinguishes beauty’s pleasure from what he calls ‘interests’, and describes that relevant pleasure as what we take in the free play between imagination and understanding (and so on). Thus he provides criteria that isolate and reject ersatz judgements. The analysis is a critique of the way the financial investor (or the connoisseur no less) judges ‘what they like’ in art. The acts of critique’s mystique occur off-stage – ob-scene. Still, they are heard in echoes of the very title of the third Critique. Our ‘judgement’ comes down to us via Latin from the Greek ‘kritikos’. Judgement now centres the cluster of words by which we translate kritikos. Kant’s third Critique is thus a critique of critique – a judgement upon judgement. A critique of every kind of critique would be infinitely regressive. Thus again we encounter the hazard of a new mystique. Only a nuanced description of the situation tells us how to dispel it. Naïve Judgement Being Experienced A critique of aesthetic judgement aims to vindicate the universality in judgement that survives a foundation in pleasure. Where ‘this flower is beautiful’ announces the flower’s own ‘claim to everyone’s liking … the agreeableness of a smell gives it no claim whatsoever’. A scent delights you but it makes me dizzy. But equally, of course, where one person gains the special pleasure that founds a judgement of beauty, another is only bored. We differ in our responses to the beautiful, as we do in what we find agreeable. Kant’s more pertinent point is that the pleasure we take in beauty is ‘peculiar’ in its object. One facet of this ‘peculiarity’: a beautiful thing lays claim to ‘everyone’s liking’. There is an adjoining facet of this thought gem: I abdicate rather than vindicate judgement if I fall back upon the fact of a general admiration of it – ‘We demand that [each] judge for himself … [and] that he not make [the judgement] by way of imitation’. But how do we judge? Kant argues that our judgement ‘involves no concept’ – we judge it but not as of some kind – thus the judgement is made a priori. We do not place the object under a concept so we must make a judgement in the sheer face of what is presented. Judgements made a priori are initiating and original. Judgement that aims at universality and is grounded in sensibility is not intrinsically well informed or properly considered. Kant’s abstract discussion may seem distant from practice: Kant brings it back to earth with his ‘young poet’

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whom he defends in her confidence against experienced poets and critics. Though her judgement is naive and fallible she must maintain her autonomy, without which she would sacrifice sensibility – and thus her judgement. She can develop better judgement only by educating her sensibility. Though she does not have the experience to recognise flaws in her work, she must attend first to poetry and what inspires her towards it. Only this attention leads her to use the criticism she needs. If she does judge her work (even if not well) she is pleased by it not simply because it is hers. So others should be able to see what is in it. Judgement’s implied universality demands that she and her critics fathom their reasons. To judge a poem as beautiful implicitly demands that others lend their close attention. The young poet must hold to her naive judgement until criticism and experience has truly modified her own sensibility. Simply in judging she has already gone beyond ‘This poetry is beautiful because it is mine’. She is claiming (for Kant) that it animates imagination and understanding; it reaches beyond our differences about what is ‘agreeable’. The ‘second peculiarity’ of a judgement of taste: it cannot appeal to proof. To attempt that is to abandon judgement. An empirical proof would concern only the history of art and criticism, or the sociology of taste and opinion. As a claim of logic, judgement would rule inadmissible the pleasure we take in our object. Kant’s third ‘peculiarity’: there can be no ‘objective’ principle of taste: ‘I must feel the pleasure directly in [the] presentation of the object, and I cannot be talked into that pleasure by means of a proof’ (Kant 1987, 286). It is by not subsuming a presentation under a concept that we claim the universality appropriate to aesthetic judgement. In its power, judgement rules the province of ‘a harmony between the presentational powers, imagination … and understanding’. Imagination is involved when we catch a glimpse of an animal and combine the ‘manifold’ of impressions we get so as to perceive something as a whole. Understanding is what we use when we realise what we make of our impressions is a dingo (say). The beauty of the dingo in its stance and movement is its power to reanimate our sensation of being able to imagine and understand what we sense. Critique’s Romantics Costa Lima affirms that ‘Schlegel always kept within the confines of Kant’s third Critique … : ‘The modern supremely beautiful of artistic form is never reached; it is a regulative idea’ (Schlegel, 199; cited Costa Lima 1993, 173). To Kant, ‘a regulative principle … can be inferred from an Idea … which, indispensable to reason, is … [for] the understanding no more than an … inaccessible concept. Judgements inevitably risk arbitrariness; hence there is urgent need for a criticity to watch over their every step’ (Kant 1982, 173; cited Costa Lima 1993, 173) … This criticity [had] an opposite current. … Schlegel’s theory of criticism … was cut short, neutralised and ultimately abolished by [his belief in a new harmonizing mythology]’ (Costa Lima 1993, 174). Costa Lima proceeds to describe how

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Schlegel eventually swung towards religious conservatism in order to secure his ideals of art as ‘integrating and harmonizing’ society. (We hear the echo of Kant’s idea of the power of beauty.) Costa Lima thus shows how Kant’s emphasis on being pleased (or displeased) as essential to aesthetic judgement connected with justifying judgement’s quasi-universal intent. He takes us again into the quandary of a pure reason that can think what conceptual understanding cannot grasp. Kant’s analytical description of what is involved in aesthetic judgement provides a limited critique – not of critique but of betrayals of beauty’s ‘first moment’ of pleasure – of our use of that delight as an excuse for ignoring criticism and not taking on the work of communicable judgement. He opens sub-section (#8) with this very question of the ‘universality of our liking’ (in the case of judging as beautiful) presenting itself as no more than ‘subjective’. These are the elements in such judgements that are in tension: We make judgements of beauty in response to the delight we take at what something presents. We make judgements of beauty without imposing any concept upon the thing that delights us. We require others to agree with us about what we have found beautiful (as if it were objective).

Now, Kant’s descriptive analysis, as well as ruling out ersatz judgements of taste, has also exhibited the difference between aesthetic judgement and the kind of pronouncements we may make within logic or science. There, also, we expect that others will agree with our conclusions on the evidence, or else point out our mistake. Whether we take pleasure in the conclusion, however, is beside the point. A detective or a judge may take no pleasure in the evidence of some killing, or in judging the suspect – previously held in high esteem – as guilty. They expect others to come to the same judgement because pleasure or displeasure is beside the point. But curiously, when we agree that judgements of beauty are grounded in pleasure, still we expect others also to find that same pleasure in the power of the object of beauty to stir the imagination and the sense of our cognitive powers. Pleasure at some appearance stands to judgement as conviction about the fact stands to well-based opinion. In that respect, aesthetic judgement and judgements of scientific probability are equal in appealing directly to their objects. To accept at least in broad outline Kant’s approach to judgement helps us avoid a pointless project of simply objectifying beauty as a way of justifying the possibility of judgement. We do differ in our sources of pleasure but this need not disturb our judgements of beauty. They are quasi-objective. In expecting me to respond, you may make allowances for my mood. Thus we distinguish ‘I am enjoying this’ from ‘This is beautiful’. We think of the beauty of what we judge thus favourably as lying in reserve, ready to be appreciated. Sometimes Kant takes

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a false step and says that a judgement of beauty does not deal with the object at all – our responsiveness, our sensibility, is crucial to the aesthetic judgement. But it is in our responsive sensibility that our attention is directed to the object. When we attempt to display the beauty in what we have seen, we direct attention not to our feelings but to what we find in the object. Rather than reporting feeling, judgement directs attention to its object, though on the basis of a ‘mental state [in which] imagination and understanding are in free play’. Kant adds that ‘we are conscious that this subjective relation … [is] universally communicable’ (Kant 1987, 62). So, certainly we can move onto this field of public criticism, but still it is not clear how this ‘communicability’ arises. Kant suggests that we judge beauty by ‘formal purposiveness’, in a direct liking for the thing itself as it is presented – in the ‘ appealingness [of the form to] the imagination’ (Kant 1987, 73): [An] aesthetic judgement … provides absolutely no cognition … of the object … [but] instead refers the presentation by which an object is given, solely to the subject; it brings to our notice no characteristic of the object, but only the purposive form in the way the presentational powers are determined in their engagement with the object (Kant 1987, 75).

As yet, Kant’s critique is particular and evokes no mystique, but he is about to head into some wild territory – unexplored by familiar or systematic thought. It is in the ‘fourth moment’ of judgement that he sows the seeds of a romantic vision of what is opened up by this new ‘free judgement’ of beauty. Since to judge as beautiful is not to assign a thing to some class or category there can be no aesthetic ‘law’ that relates a beautiful thing with the liking we have for it. At the same time, when we respond to an object of beauty we judge that anyone who experienced what it presents must like it. Unlike a scientific principle, however, ‘it does not allow us to [know] … that everyone will feel this liking for the object I call beautiful’ (Kant 1987, 85). It is by taste that we sense how we must like what is beautiful. Now in deep water, Kant turns to the idea of a ‘common sense’: [W]hoever declares something to be beautiful holds that everyone ought to give his approval to the object at hand and that he too should declare it beautiful. Hence the ought in an aesthetic judgement, even once we have all the data needed for judging, is still uttered conditionally (Kant 1987, 86).

We have to ‘solicit’ the assent of others and yet there is a ‘rule’ for approval: Indeed, we could count on that assent, if only we could always be sure that, [what we judge to be beautiful] had been subsumed correctly under … the rule for the approval (p.86) … [even though the] necessity that is thought in an aesthetic judgement … can only be called exemplary [because] an aesthetic

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If this is beautiful then whatever has the same relevant qualities is also beautiful – even if we cannot cite them. So we appeal to the ‘exemplary’. (It is a failure of judgement to attempt to prove that what you find beautiful is universally so.) Since there are no fixed criteria, others must make their own aesthetic judgement in being pleased at what is presented: Cognitions and judgements … must be universally communicable. Otherwise we could not attribute to them a harmony with the object … [They would be] a merely subjective play of the presentational powers (Kant 1987, 87–88).

An aesthetic judgement ‘does not subsume a presentation under any concept at all’, and yet we ‘allege a universality and necessity’. Kant concludes that its basis ‘is only the subjective formal condition of a judgement’ – our power of judgement (150–1) – that takes as its province ‘a harmony between … imagination … and understanding’. Since aesthetic judgement is not set to find a concept, imagination is free to ‘schematise without a concept … A judgement of taste must rest upon a mere sensation … of our imagination in its freedom and the understanding with its lawfulness as they quicken each other’ – but not to any specific task. When we are moved by beauty we have a ‘sensation’ of our power of understanding as left free to play with what we perceive. I think of the sensation an ex-athlete might have in watching new people coming on to the scene. No longer performing in competition, she takes Kant’s ‘peculiar’ kind of ‘aesthetic’ pleasure in the events. She has this ‘inner sense’ of her animated imagination of competing, and of her understanding of the lawfulness of what she witnesses. Her freedom of imagination is in direct interplay with her understanding of the nature of the constraints that apply to the performances that unfold so smoothly before her. She can see the beauty in what she used to perform. Kant thinks of judgement as exercised upon the form of an object. Under his pressure to make aesthetic judgement look like judgement, Kant is prone first to eviscerate his language and then to reanimate it with thoughts on the communicability of this ‘sensation’ (inner sense) of the animation of understanding at play. ‘The pleasure we take in what is beautiful … is a pleasure of mere reflection’. This is same pleasure that we enjoy when we ‘cognitively’ grasp an object: [It] rest[s] on the same conditions for everyone, because they are subjective conditions for the possibility of cognition, and because the proportion between those cognitive powers that is required for taste is also required for the … common understanding that we may presuppose in everyone (Kant 1987, 159).

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Thus Kant formulates his first ‘antinomy’ about judgements of taste. On the one hand, we cannot decide them by placing instances under concepts and yet it seems that judgements of taste must be ‘based on concepts’ or we would not be able even to quarrel about them. The ‘dialectic’ of aesthetic judgements will emerge at two different levels – our coherent exchange of observations about these matters as critics of food or painting or musical concerts, and the question of how such a dialectics is possible when an aesthetic judgement is not cognitive. We can say that this object rewards the attentive viewer and that judgement can give rise to a contest with another point of view: [T]he presentation of the object [painting] … and of the subject … is referred more broadly … beyond ourselves … and this broader reference is our basis for extending such judgements [and treating them] as necessary for everyone (Kant 1987, 212).

But now we venture beyond this familiar territory: ‘Such a concept is reason’s pure concept of the super sensible underlying the object [and … the judging subject] as an object of sense and hence as appearance’ (Kant 1987, 212). The Romantics took Kant as showing that judgements of beauty reveal to us a world beyond the sensible realm – thus critique’s mystique. Certainly, our appreciation of beauty is ‘super sensible’ in going beyond a pleasure in the colours, sounds and shapes. Involving an ‘inner sense’ of a reanimated mind, judgement also goes ‘beyond the sensible’ in not placing an instance under a concept. In experiencing beauty we go beyond analytical perception and scientific curiosity. But this needs no realm beyond the world of sense. There are judgements about the sensible that do not assign some trait to it. Kant reminds us of how we tend to respond to beauty as if were produced with real purpose: Certainly it seems as if anything beautiful must have been produced on the basis of an idea of it in the producing cause - a purpose that this cause pursued for the benefit of our imagination (Kant 1987, 221).

Kant exposes that tendency, even as he evokes an involvement with natural beauty that makes it seem designed to suit our sense of pleasure in it – the aspects in which we take delight need have nothing to do with their functions in the life of the plant or animal: Those colors, so likeable and charming to our eyes … have to do merely with the surface … and nothing to do with the structure. that might be needed for these creatures’ inner purposes after all - it seems that their sole purpose is to be beheld from the outside (Kant 1987, 221–2).

Although we respond to beauty as if it had a purpose, taken as a criterion that purpose would divert us from natural beauty and take the spirit or ‘genius’ out of

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art. We regard nature and created art only as if they were essentially purposive. It is this ‘subjectivity’ of purposiveness, however, that makes us able to share our judgements in the public arena. But Kant will not admit this ‘as if’ in relation to linking judgement’s pleasure in taste with an a priori character befitting the universalist pretensions of any judgement. As usual, Costa Lima alights precisely upon the significant passage: Here we may … assume that judgement likewise contains an a priori principle of its own and that, since pleasure or displeasure is … combined with the faculty of desire … it will effect a transition from the faculty of pure knowledge to that … of freedom (Kant 1982, 17; cited Costa Lima 1993, 80).

Costa Lima emphasises how it is that in setting universal limits to the understanding, ‘critique’ evokes the super sensible, and that to move in this direction is to import metaphysics even as we place it beyond our understanding’s island. Concluding Remarks Where can we stand in all of these plays upon judgement as essentially critique? I think that what maintains our fascinated work on Kant’s thought about judgement is his unexpected acceptance of pleasure, coupled with his drive towards the impossible universality that judgement demands of us. We do not close the book on Kant’s noumenal universality because we ourselves feel how his account calls us to an existential commitment, as in the making of a speech act that accomplishes what is uttered. We make a judgement of our sentiment by treating our pleasure as a judgement. We treat our pleasure as subject to challenge, and we appreciate objectively what we judge. To be involved in aesthetic judgement is to attend not only to feeling but also to the quality (and qualities) of what promotes the feeling. This attention makes it possible for us coherently to enter the public world of critical discourse. We can enjoy imagining a prior harmony between the world and our sensible faculties but we can proceed with judgement without postulating it. Whatever we speculate about that harmony, we do have in any case powers of discrimination and a capacity for disinterest. We can bracket considerations of ego and prestige. What is only ‘agreeable’ becomes tedious. A thing of beauty is more challenging. So we proceed with no prior guarantee that the cultivation of our tastes within the society in which we are cast will thrive and produce a coherent critical discourse. We develop judgements out of the sensible facts of what we can be pleased at; with regard to criticism we must risk the turn of fortune’s wheel. We may find that we cannot find or create that ‘circle of witnesses’ that critique requires. What Kant evokes in his critique of aesthetic judgements is remarkable, then. It is an appreciation of what is extraordinary in the ordinary world of sense. The ‘performative’ interpretation of judgements that I here portray provides its

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own special place for this sense – of accomplishments achieved out of pleasure. Accomplishments for which the aim of universality has been made intrinsic. It remains some cause for wonder that these worlds of informed and experienced taste do arise from time to time, along with critical discourse about their objects of sensibility. For it is possible that our judgement will be refined and broadened within a critical community. There are such phases in life. These phases may turn out to be temporary. Nevertheless, what is actual is therefore possible.

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Chapter 9

Enigma Absolute The absolute that would overcome all distance between Form and Imitation has to seek representation in order to be granted a hearing.

Travelling Light The Absolute as a Condition of Judgement Arendt reminded us how Socrates challenged us to judge our familiar ideas by questioning what we mean by them: The topics of these early dialogues deal with very simple, everyday concepts, such as arise whenever people open their mouths and begin to talk. … [In consequence] when we try to define them they get slippery: when we talk about their meaning, nothing stays put any more, everything begins to move (LM, 170–171).

The provisional nature of these enquiries fails to satisfy. Plato directs Socrates towards pure forms of those common ideas. There are two phases in the shift towards an absolute after wrangling over everyday ideas. The first is an overreaction by Socrates to a cheeky question by the young Meno who is annoyed by his everlastingly ‘not knowing’ what virtue is. ‘If you don’t know what it is, Socrates’, quips Meno, ‘how would you know you had found it, even if you did come across it?’ Socrates postulates that we have our knowledge from a previous existence. Critical philosophy consists in its recall. By holding fast to your first thought you move towards the absolute. Theaetetus is another thoughtful young member of the group. Socrates had pondered the conundrum of knowing what knowledge is and Theaetetus had said that it is an opinion – a correct one. Socrates points out that one may just happen to be correct. Theaetetus corrects himself. We know something when we have a logos for our opinion. A logos – an explanation, justification, reason or account of what we claim to know. But what if Theaetetus correctly guessed the logos, asks Socrates. That would be worthless, says Theaetetus. You must know it. So that secondary knowledge requires its logos, and so on. The step Socrates takes next is more profound than his jaunt into pre-existence. He reads the logos not as a reason for an opinion but as a breakdown of the proposition known, into its logical elements. I know that some proposition is true when I have the elements of what it proposes. The regress continues though. Each knowing requires its logos, but if that is unknown you fail to know the whole that it composes. It is no use guessing it. Still they drive down an endless track in search for knowledge.

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The absolute appears when you stick to your first thought come what may. Socrates pauses, is silent, and tells us of a dream. There are elements of all objects of knowledge and they are without feature - without inner complexity. We do not know them because there is nothing to be known of them. So there is no failure of knowing. They can figure in Socrates’ dream but he cannot contemplate them. Within this enigma Socrates grounds propositions in their structureless elements. Form Becomes Presence About eight centuries after this Socratic incursion from the complexity of claims to the absolute simplicity of their elements, Augustine addresses the absolute as if it were a person. In his Confessions, Augustine enforces a division of space and time between his enquiring soul and an all-knowing father-god. Where Socrates dreamed of elements too simple to be known, Augustine abases himself before one that knows. He addresses it as beyond time and space. This speech act contradicts that concept, just as the speech act of mourning (‘How can you have left me?’) contradicts the reason you engage in it. Out of the thought that informs grief one cries out as if it were not true after all. In Derridian style one might understand Augustine’s addressing a being beyond time and space as the mourning for a reciprocity he has placed beyond reach. The removal of the conversational Other as beyond time creates the textual impasse of the Confessions. It is Augustine, alone, who can ask the questions of this timeless father and only he can set down what comes to mind when he cries out to understand time. What Augustine writes within this baffled genre endures for philosophy and literature. Arendt would explain this record of a failed antiphony of his voice and that of a Father’s as the construction of a form of thinking. To think is to converse with oneself as a friend – even if a critical one. Augustine has made a moral enemy of his own former self 1 but he loves the inner self who puzzles from past to present, from present to future and from future to past. By thinking we travel in time, and when we travel in time we gain provisional judgement. Augustine’s idea of knowing is of a moral journey from his early life of reckless enjoyment to his later one of abstinence. Upon this he models a discursive journey from his place and time to an eternity from which One could regard time and space. Both as a departure from sin and as transcending the very order of time, he conceives of his travel as a departure from what is intolerable, towards what he knows to be unachievable. It is within this impossible task that we read his famous proof of the impossibility of time. He accepts the need for this travel in travail, and yet his ideal of a motionless contemplation of a timeless being would cancel his need to move. He might have compared the prior life he had lived without regard for judgement more charitably with his life of ecclesiastical punditry. But in writing the Confessions, Augustine’s 1 He had loved a woman and they had a child but he abandoned them for his high life in the church.

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self-displacement from his past gave him an opportunity to travel to new premises – though he tends to stall in agitation. Sensuality denied emerges in the emotionality of his supplications to a being necessarily removed from communication with him. Plato, writing, had displaced the lively dialogues between Socrates and his fellows by a speechless figure blinded in the presence of a perfect Idea. That Idea had ‘risen above’ the language in which Socrates had tussled with his fellows in the market place. Augustine’s Confessions displace the socially communicative life he had enjoyed in his youth but he is not brought to silence before his absolute – that perfect father who cannot respond. Augustine alone can ask the questions but, alone, he can create that inner conversation we call thinking. Augustine’s writing endures because he constructs self-contained thinking in place of Platonic dialogues, Aristotelian high theory or the remorseless logic of a Thomas (after Aristotle) whose questions never doubt their premises. So Arendt can warm to Augustine. She can understand his heartfelt record of a failed antiphony as amounting to thinking. He made an enemy of his past self – there is no philosophy in that. But his converting of Thomas’s God as pure principle into a God as conscious being gives him headroom to be a friend to himself in thought. He loves the one he finds within. With that one he can puzzle about the nature of time. He is on the way to judgement. A Hardy Perennial Thought slides towards an absolute to escape tensions internal to our ideals of understanding. There is a state of civil war between legitimate parties that urge their interests in how we function in intellect and feeling. The needs and interests of these parties drive us towards and then away from their unstable pictures of an absolute state where they are resolved. For we have intrinsic commitment to the place from which our current and operative understanding derives – a confidence that makes it possible for us, in finite time, to assess and judge what comes our way. A judgement is useless if made too late. Timing is part of it; to act in time we play down ways of understanding the situation within which we must judge that conflict with the only resolution we can manage. At best, we keep sight of other systems of interest and need as a limiting framework – or as the receding horizon of our moving field of view. And yet, as sane, we do have at least a subliminal awareness of what thus we keep to the margins. Our economies of time and what we have invested sideline competing understandings of what we are doing, and contrary claims upon the premises we share or survey.2 Still, only the fanatic who is totally consumed by an already defined mission erases contrary claims as if they had never been.

2 Cook was to take possession of un-owned land. His observation of indigenous peoples in the ‘great southern land’ was in conflict with his instructions. So the land had to be deemed terra nullius –nobody’s.

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So this is a conceptual sketch of the absolutism of any interested party’s ruthlessness to those whose very existence is a trespass upon its domain.3 The local – antithesis of the absolute – operates as absolute when you make a fetish of it.4 James Cook travels the world but because ‘the world’ is to him ‘a prospective British possession’ he remains at home in his head all the while. Charles Darwin is vulnerable; his science and integrity of observation conflict with his own locality of religious and political conservatism. There is a universalising party of opposition to a localist vision as so intense (because limited) that it appears to itself as pure truth. This is a party whose project is universal understanding – a movement of successive pratfalls richly portrayed and satirised in Hegel’s Phenomenology of Spirit. Spirit takes what it learns in each tumble as universal understanding. Confidently it steps forward into action that reveals the illusion. Still it incorporates what it has learned and leaps forward in a new confidence –to take another fall. Hegel shows up the hubris but also the fecundity of thinking ‘Ah, now we do understand at last’ when experience deals a hard lesson. Because we do recover our confidence, we do at least keep track of our errors and (may) continue to move in and amongst the world. To accept the irony – the absurd confidence of Hegel’s Spirit that it will arrive at the absolute – is to be free of any local absolutism.5 I want to be able to frame and deconstruct the absolute rather combating it full-frontally. Total attack speaks of being in awe of the opponent. I recollect how casually we use the idea to good purpose: I had absolutely no idea that he was capable of that. Are you going to the beach today? Absolutely. Absolute alcohol is unmixed with any other element or compound. Absolute zero is the cessation of relative motion between molecules. You are absolved of any criminal charge in relation to the accident.

Patently, we declare the ‘absolute’ relative to its context of concept and occurrence. (You might call that ironic.) On learning this we might pursue the absolutely absolute, only to discover that iteration of a contextual epithet has its own contextual force. 3  In Tarantino’s film, Inglourious Basterds, the Nazi hunter of Jews frames his prey’s outlook within his vision. 4  See Lisa Disch on ‘pure sisterhood’ in consciousness-raising groups dedicated to local experience (Calhoun, 132–42). 5 Drucilla Cornell has a sustained critique of oppression in Hegel’s project of overcoming alienation (Cornell 1992).

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Escapes from Enclosure Enforced Enlightenment It is time to loop back to Plato’s second, famous, image of approaching the absolute. Let me show you in a figure how far our nature is enlightened or unenlightened: Behold! Human beings housed in an underground cave, which has a long entrance open towards the light and as wide as the interior of the cave; here they have been from their childhood, and have their legs and necks chained, so that they cannot move and can only see before them … Above and behind them a fire is blazing at a distance, and between the fire and the prisoners there is a raised way, like the screen which marionette players have in front of them, over which they show the puppets. And do you see, I said, men passing along the wall carrying all sorts of vessels, and statues and figures of animals … which appear over the wall? While carrying their burdens, some of them, as you would expect, are talking, others silent. You have shown me a strange image, and they are strange prisoners. Like ourselves, I replied. To them … the truth would be nothing but the shadows of the images. And suppose [that one of them] is reluctantly dragged up that steep and rugged ascent [of the tunnel from the cave to the outside world] and held fast until he is forced into the presence of the sun itself … When he approaches the light his eyes will be dazzled, and he will not be able to see anything of what are now called realities. Not all in a moment, he said. He must grow accustomed to the sight of the upper world. At first he would find it easier to gaze upon the light of the moon and stars at night than to see by the light of the sun. [But] men would say of him [when he returns from the place above] that his eyes [are]ruined and that it was better not even to think of ascending; if anyone tried to loose another and lead him up to the light … they would put him to death. No question, he said (Plato, 376–379)

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Plato’s allegory of enlightenment permits no role of critical initiative to us who have been ‘in chains since childhood’. (We are those people in the cave, he says.) In his story of liberation still we are forced, given no time to become familiar with each revelation of our situation – or to question the liberator’s interpretation of it. We learn that what we have seen was a shadow of a statue hauled along to amuse us. We might want to ask the welcome stranger whether a shadow is not itself an actuality, though different from what casts it. In disturbing our acceptance of how things appear, however, Plato’s disturbance of what had appeared to us still has its power. In our own times it reminds us of the new dimensions we discover within familiar scenarios; we must revise what hitherto we had understood. Plato’s ‘enlightenment project’ is a myth of successive traumas of disillusionment that occlude our need to sew patches (‘shadows’) into our new cloth (fires, parapets, statues). Without that, humiliated in naked ignorance, we capitulate to a new illusion. Plato’s liberating stranger drags us up that exit tunnel whereas the Socratic critique Arendt admires is the democratic spirit of a small group. In political practice democracy put Socrates to death, however, and Plato sets up a cave to supplant the scene of the marketplace. Plato’s prisoners, chained from childhood, will no doubt reject enlightenment. Plato takes it only as proof of the folly of democracy where only those without integrity become rulers. The narrative force of Plato’s allegory skates over an insoluble problem. If it is we who are the ones in the cave, then we are spectators of shadows when told of prisoners who are released to discover their true situation. Plato writes through Socrates as speaking to those around him. The one who knows the secret of the cave is there with the prisoners. He is speaking within its situation; he is not an external observer but one of the oppressed bent on securing his own release. It is we who (by allegory) are in the cave, being spoken to by Socrates. How do we understand the allegory since we have not, like him, been enlightened at his transcendent level? We ourselves must be those blind lovers of democracy who care nothing for truth and everything for power and deception. But we hear him and it stirs us. There must be something of his world within our cave, then. If it can be told and we can hear it, then we were not entirely within our oppression when he arrived. We who hear the story, and reckoned to be cave dwellers, may judge for ourselves to tolerate rather than kill that so-superior liberator. The allegory of the cave unfolds after six books of the Republic. We readers will have become alert to fallacies and errors about justice and truth. In the terms of the allegory, some of us have been taken into the outside world of reality and have returned, eager to communicate our adventures. This stranger who breaks the chains of some prisoner may be one of us who now returns not to admonish but to enthral us with what she has discovered. (There is a particular enigma in Plato’s allegory of learning to judge what limits us in power and perception. The story of the allegory – as told to the prisoners themselves – is of a world of enlightenment out there. If we try to tell it, we falsify it. We present nothing but representations of it – more shadows.)

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In his allegory, Plato passed over the reality of us human beings who live in the cave; when let loose, our attention was directed towards the stage machinery that produced the shadows and echoes. But we ourselves are, like the statues, beings that cast shadows. Within Plato’s allegory we too are only stage-posts on the road to unmediated reality. We ‘lovers of shadows’ must think carefully if we are to judge what we experience out there on the unprotected surface of our planet. Plato’s allegorical Stranger offers to promote us prisoners to his status – but then tells us to fear for our lives when we face the unenlightened. Our liberator is doublebinding us in his fold; he holds his power in setting us against our acquaintances. Plato’s tale reminds us of anxieties about knowing what goes on in the world. Television offers us access to what is going on in the world; we do not totally reject television on the grounds that as a medium it can be manipulated. To know what goes on must involve some medium. Rather than rejecting mediated knowledge we seek to gain a critical attitude towards the medium by knowing something about its means of production. Plato’s ‘cave’ retains its power to haunt us, though. In order to know the means of production of our television images we have had to rely on other forms of mediation. It is no solution for me to attempt to know all I need to by and for myself. Not only am I then deprived of almost all information, but also I hide my own means of representation from myself. Any limited objectivity I attain depends upon the critical attention that only another takes towards my ways of observing, thinking and judging.6 Plato works with an ideal of knowledge as infallible and unmediated; it requires that only what is unchanging can truly be known. All the same, it is by means of a figure of travel that he can frame the possibility of motionless knowledge. Change is essential to this ‘enlightenment’. Only because we move do we achieve the radical shift of point of view that Plato’s conception requires. For us now – we would move from the comfort zone before a screen and go out to interview reporters, observe the camera crew and scrutinise the editing room. Forming the Forms In Book Ten of the Republic Plato develops his dichotomy between originals and imitations in a different way. He argues that despite its ‘charms’, poetry misleads because it imitates reality; it threatens reason because it implants emotion within the imitation. In derogating imitation’s affect, Plato reprises the allegory of Book Seven. The problem he creates is that not only imagery but everything we observe becomes an imitation. A table imitates the designer’s idea of it. We are material beings in a public world and so the body too becomes imitative – of the reality of the soul. We might tell Plato he has ennobled imitation, then. He would reply that, entranced with imitation, we forget the original.

6 Luce Irigaray analyses the ‘stage-setting’, journey, and revelation (Irigaray 1985, 243–293.)

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In Book Ten there is another shift in Plato’s themes of appearance and reality. He raises up as ultimate reality a One that a diversity has in common - the original of which diversity is imitator. Plato thus changes drastically the scene his Socrates plays. First he places him out of the glare of this absolute Sun – among some household furniture - a bed. He wanted a respectable object to place midway between a philosopher’s reality (being) and the artist’s debased imitation of it. Plato uses him to rouse us from restful complacency about everyday notions. There are many beds and many tables but there are only two forms - one, of a bed and the other, of a table. The artisan makes various beds according to the one form. It is the form that is the true ‘original’. The making of beds out of wood, plastic or steel cannot amount to the making of the Idea - form - of a bed. Only a God could create the form as original but not even He could create duplicate forms. Plato argues that if there were two ideas of the bed they would resemble each other. As resembling each other, there would be then one (super) bed that they resemble in their imitating of it - something that makes these two forms, forms of the one thing. Plato is himself an artist with words. He inserts this image of rest as a respite from the intellectual labours of the previous nine books of his Republic. The bed is reassuringly substantial - a place supporting us while we are unconscious of it - a day bed for our daydreams, a night bed for our sleeping dreams and a couch for philosophical dreaming - that inspired reverie between sleep and wakefulness. The philosopher’s thought of the form of the bed marks an intellectual ascendancy over the material bed. This bed of our common dependency is that of sleep, birth and sexual enjoyment. A place of illness and convalescence, it is upon the bed that we yield the body to exhaustion and despair. The bed signifies the end of life as rest. In modern times the figure of the deathbed shifts to hospital, but death comes to bed us as it may. Santa Claus in black, down the chimney he gifts his presents in the familiar bedroom; in a field, as we walk, we fall from the innocent failure of a heart; the field where nations or motorcars collide is that same bed. Thus, by way of being bedded, the material bed leads thought to a form of the bed that is a translation from classical to postmodern times. This last bed upon which we can experience no discomfort is any place and anything. Like Plato’s form it is no one thing. Now, it seems, any place we’re bedded or embedded is bed. When climbing, at our limits we ‘give ourselves up’ to the body on some grassy level, a momentary bed.7 We recover ourselves in our integrity as one being of body and of mind. The bed signifies the dependence of intellectuals upon labourers who provide materials, and skilled people in the trades who form them. The table is not too humble for philosophy, either. There is a poetics of the table in relation to the bed; the table is another signifier of rest. On the table rest plates, food and our books. As a substantial surface a table confounds the dichotomy of reality as below appearance’s surface and above the surface in status. Substantial surface 7 The allusion is to Sartre’s example (Sartre, 456).

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confounds the ontological class system. A table raises its substantial surface against the philosopher’s demotion of the superficial. The substance surfaces – it tables what we would display and access. The table is defined as superficial – we want nothing of it beyond its surface. And yet there we gather to satisfy our hunger. The table is obdurate to our bodies. The table brings us close enough to say what we think while we eat - and it separates us - keeps each in their place. On another day we gather around the table as thinkers and readers contesting ideas. At some construct of wood, steel or glass we discuss our elevated notions of a form of the table. But it is the table that we gather around to contemplate its form, and so to think of the bed where we shall retire from the work table. Thus we live from dependency upon one substance to another.8 In writing of our general needs we do approach the forms of these familiar things, but, unlike Plato, in thus making a theme of table and bed we are returned to materiality at every point. And yet we are not in a position to scoff at his representation of our material dependencies as a drag upon our soul in its effort to achieve pure thought – a drag that we must resist if we are not to remain in dark ignorance of our position in the world, and of the world. Our own present enigmas of understanding and judgement, in the sciences and in politics, reflect our conflicting needs for immediate involvement to ground us in reality, and for theory and test to weaken the illusions bred in that same ground. There are real predicaments for us in saying how, as a ‘material girl’ or boy in a material world, we come to know, understand and judge. In coming to a new judgement of our contemporary position about matter and form we take account of a ‘modern’ outlook and yet, in this ‘modernity’ there is, ingrained, an inheritance of Plato’s division between the ‘sensible’ and the ‘intelligible’ world.9 In this inheritance within modern thinking we are inclined to fall into old traps when we construct our new versions of the division. The scientific renaissance from the seventeenth century required and then reinforced a new version of this ‘sensible as against intelligible’. The key role of mathematics in understanding conscious individuals and society no less than physical matter and energy, intensifies this picture of a division between the innocently perceived world and the intelligible forms by which we explain it.10 Whatever course we choose, we shall encounter some version of these divisions between matter and form, or sensible and intelligible. Plato attempted to handle the divisions in terms of imitations and originals. We had better make our own reading of this project.11 Plato’s blinding sun still generates a gravitational field. To escape that requires energy – force sustained over a distance.

8  Substance abuse would be a theme for another day. 9  In due course I shall elaborate the terms of this inheritance. 10 This theme will be developed in the next section. 11  As a finite task the project will be specific to the concepts we need.

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The Absolute Recedes at our Approach In dividing ‘sensible’ and ‘intelligible’ in terms of imitation and original, Plato takes imitation as corrupting. But if every representation is banned as substituting for its original we must be silent in the face of the Form. ‘Whereof one cannot speak, thereof one must be silent’ (Wittgenstein’s quip.) Plato would skirt this impasse by allegory – a use of words that alludes to truth without stating it. There is acute anxiety over replicas of reality for any structure of thought that would place us in the presence of reality as the original from which imitations derive. Only if we can make a representation of this pure presence, in the event of understanding it, can we have something to repeat after we depart the scene of perfection and head back to the crowd. Contrary to the ideal of pure understanding that shuns imitation, this process of transmission requires that in being understood the form is always already represented. If Plato would eliminate all imitation from his scene of philosopher in the presence of being there would be nothing on the site beyond philosopher and being - no relation between them. Being where something is does not amount to understanding it. To understand is to be modified by what you understand. One might move to avoid the consequences of this logic by positing12 a special kind of understanding suitable to grasping a form – a grasp that involved no representation. This move meets its own dilemma. If nothing can be said about this special understanding then nothing has been said to distinguish it from no understanding. Suppose, then, that something can be said about the form. It is unitary but not ineffable. Let us suppose that understanding the form adds something to the scene that contains form and philosopher. In that case, understanding traces the form. (Plato likes to say it is ‘imprinted’ on the soul.) We might decipher it as we do a hieroglyph. Alternatively, we might read within science, as we read the double helix as a gene. However you run with it, what the philosopher takes away from the presence of the form counts as some representation. The point is this: If there is no transmissible content in the understanding one has in the presence of the pure form then there is no coherent content for oneself in the announcement to the crowd that they are deceived by appearances. Unless the reality of the form is represented, ‘reality’ and ‘form’ have no content. Suppose that I repeat without further (‘imitative’) description that I have gained an understanding of a form. In that case, I have claimed that the glory of this wordless understanding casts the justice of everyday judgements into the deepest shade. But nothing would distinguish, for me or for others, my wordless understanding of the form from the form itself. To distinguish the two would be to distinguish understanding from misunderstanding.

12  Of what we cannot describe there can be no proof or explanation. One poses this for the sake of theory.

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Back to the Rough Ground Short of the absolute, we do, in finding a common thread to various decisions, describe the form in a diversity. In rejecting two centuries of legal precedent the Justices who found for Mabo invoked justice in common law – not a wordless justice as absolute and yet hauntingly pure in its non-dependency on any specific concept. Their resolution called into question judgements that, cloaked in the conventions of cultural superiority, had slipped under the legal radar. The figure of justice as blindfolded makes an ironic comment on the search for perfection. Whatever we can imagine is too concrete and too local to be the form of a perfect paradigm of which the philosopher’s understanding is wordless. If we did bring Plato’s Form into the court’s dusty chamber that Form itself would be traduced; it would have to be represented in court in terms that would gain it a hearing.13 The absolute that had overcome all distance between form and representation could not be heard. Nor could it be written. Plato writes about the Form in order to say that it cannot be written, but he cannot write what it is that cannot be written. The Justices did have to write their judgement. They had to be bold enough to declare their displeasure with precedent and, equally, articulate that displeasure in representing the grounds of it. There an art of judgement; a profound judgement is a work of art. Plato’s metaphysical politics is this: he alludes to what he writes that he cannot represent; in eluding written justice he promotes in the name of purity the state’s suppression of art where imitation is brazen. His allegorical allusion thrives on that contradiction. He operates a contradiction in pleading for unmediated confrontation with the form while writing about it; to recollect pure encounter is to re-present it. And yet, as writer, Plato uses every device of poetry and drama to convey his message about the corrupting character of poetry and drama.14 He confesses that poetry is something he loves and before which he ‘stands in awe’ but art’s attractiveness is what brings it under the suspicion of the well-ordered State. Its psyche is susceptible to poetic emotion. Plato uses the allegory of the cave to administer a summary lesson in political realism. The mass of mankind exists in a cave of illusions; only the privileged few leave that womb. Most are determined upon remaining in a world of shadowy illusion. Embryonic in their understanding, they must submit to the rule of the enlightened few. Plato argues that democracy is irrational – in a democracy it is the popular candidates rather than those with knowledge and self-governance who get elected. Also, democratic rule is unstable, Plato argues. The ruler must be populist in order to hold on to power. In consequence, Plato claims, the ‘ruler’ in a democracy does not rule. The elected head must satisfy the wishes of the majority, and facilitate rather than resist the people in satisfying desires they 13  ‘Employ yourself in your own defence and you have a fool as a client’. 14  I refer the reader to Frederick Dolan’s fine piece on philosophy and politics (Villa, 200, 261–274).

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scarcely understand. With some historical validity, Plato argued that this process of implementing bad policy in order to please majorities had led to anarchy. In turn, the evils of anarchy persuaded the masses to submit to tyranny - the next stage in the cycle of disasters for the State. Plato points out how people will submit to and even adulate dictators rather than suffer anarchy. The attack on poetry in Book Ten is part of this attack on democracy. In a democracy people claim the right to do what they wish. As Plato says, the people love to read and hear the tragic poets. They love to weep with the afflictions of their favoured characters and to rejoice in their successes. Though they would hate to live in the worlds the poets depict, they love to imagine living in those worlds. They delight in the way the poet evokes how things, people and their feelings appear. They love to see the events, things and people around them in terms of the characters and plots and the ethos of their favoured poetry. In the well-ordered State that Plato’s Socrates proposes to us, the ‘wise rulers’ would have the power to ban the writing, reading and performances of such emotional material. At the same time, the Socratic character conveys his awe at Homeric poetry, even while he expresses his fear and rejection of it. Socrates criticises poetry as ‘merely imitative’. Worse, it imitates reality so vividly that people are deceived into using it to supplant the ‘real thing’ that it imitates. That is the first line of Plato’s criticism. Then he constructs other, very different, arguments. He argues that the epic and tragic poetry of Homer and the drama of playwrights such as Euripides, Sophocles, and the comic plays of Aristophanes, all embody bad values. So charmed is the audience by the language and dramatisation of emotions that it imbibes the world of the poets. In real life, claims Plato, the members of the audience would be ashamed to own these emotions. However one argues out these issues at any particular stage in history, some practical solution to the relation between democratic politics, expert policy, and the claims of aesthetics has to be found. The tensions between them are profound. Plato’s discussion of the place of poetry (and the other arts) in the ‘well-ordered state’ reveals the oppressive role philosophy may assume, in its conceit as ‘providential legislator’. The laws that are enunciated (in Book Ten) forbid various kinds of artistic representation of reality. For all that, it is by using all available arts of rhetoric that Plato has justified the State in censoring art as dangerous to public order. The rhetoric of his argument is dedicated to a preordained conclusion about the relation of aesthetics to politics. The assumption of power by the philosopher in this political fantasy is complete.15 If Plato’s project of being in the presence of a form is to work, truth must escape the disparaged ‘imitative’ level of representations. Plato’s language suggests that the truth of anything – even the lowly bed – is its form. The problem of escaping a system of representation reaches crisis point. The (ideal) philosopher would have to be the form in order not to be at one remove from it. They must find themselves 15  Imagine how Socrates would have to speak if the poets were in control and he had to justify philosophy to them.

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face to face, no intermediary, with the blinding reality of the form and yet their relation to it must remain unspecified. To grasp the truth of the form is to ‘get it right’ – to have understood it correctly, and thus to have made an ‘imitation’. Plato develops another line of criticism of art - that the artist need know nothing of the reality that they depict. He compares the ‘rational’ faculty of mind that understands ‘one thing’, with our naïve capacity to sense it as a multiplicity. It is by thought that we distinguish the one stable bed from the changing aspects it presents to the artist. Art is further derogated. The various arts evoke the specific and vivid character of things as seen from particular points of view. Within the action of a play, or at the various stages of the Homeric epic, we feel and understand first one and then another and then yet another point of view on events. Plato might have devised someone in the dialogue to maintain that art could contribute to our understanding of reality itself by its depiction of a multiplicity of points of view taken on reality. Perhaps reality itself is complex, and knowable only by means of a multiplicity of different, even apparently conflicting, approaches. No one speaks for this view. Plato claims that a bed is one (simple) unchanging thing no matter how our perspectives upon it change. This fact about materiality is then used as a figure for the comprehension of the unity of the form of the bed. The artist, who is involved with the particularity of any vision and the multiplicity of possible visions, is further consigned to the role of purveyor of mere appearances. Only the ‘rational’ mind attempts to find the one reality behind them all. Plato rejects poetry for making us feel the sorrow of those who have lost what they love, and rejoice with the happiness of others. It will weaken our resolve to bear everything ‘with equanimity’. But people do come to terms with loss, though not by first finding an equanimity that is inconsistent with the attachment whose rupture now makes them grieve. Poetry and the other arts do not hide their face from suffering, nor from joy and boredom. They remind the one who has suffered loss that they are not alone in their feelings - and that there are other feelings about loss that they may not have taken into account. There is a longer-term perspective, too, that does not consist in Plato’s stoical attitude to ‘human affairs’. Contemporary discussions about the morality of depicting violence, sexual behaviour, and racially or sexually biased attitudes in movies and books, show that Plato has touched a nerve of anxiety within societies generally. For Plato there was, already, a ‘quarrel between philosophy and poetry’ and that quarrel was symbolised in terms of the division between men and women. ‘We shall receive her (Poetry), says ‘Socrates’, only when she proves her credentials. We are ‘conscious of her charms’, but she has to prove she is of use in the well-ordered state. The law may not join with Socrates in permitting even his ‘hymns to the gods and the praise of famous men’. Some hymns will be declared blasphemous, and some famous men will be declared enemies of the people. We might ponder, also, whether Plato’s State censors will continue to permit the words of the philosophers who helped to set up them up. How life is to be depicted in the various arts continues to be a hot issue. There is no short way with it. We have to set out from a blind spot in Plato’s view of poetry, painting and drama in relation to philosophy and political

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power. It is by the art of allegory that he has argued that those who deal in imitative artistic devices (such as allegory) should have no part in government, and that government control their activities. Plato’s philosophical dialogues are works of art in which dramas, myths, dreams and visions are interwoven with arguments and analyses. This is no accidental slip that he might rectify by re-writing his philosophy without art. The perfect unutterable ideal for which people were oppressed and destroyed for their forms (yes) of art is still a savage commonplace of modern times.16 Perhaps the form must return in some form. Art is banned or controlled within the well-ordered State in order to set up rational thought. Unlike art, such thought is imagined as untainted by special interests that threaten State cohesion and purpose. Such a self-image of pure understanding is preserved by its contrast with the activities of artists and poets whose representations evoke dangerous emotion. Within this image, reason – ‘planning the best for all and taking all necessary steps for success’ – appears to itself to have escaped the cycle of imitation. Absolute revolutionary aims – whether those of Plato or of the twentieth century totalitarians – are haunted by the threat of the freedom and the revelatory force of representations of what is being done in their idealities. Perhaps Plato is right in this – since there is something imitative in all representation even avant-garde art will carry its tinge or allusion to a past order. Art is thus prone to parody. Furthermore, the stultified forms of enforced conformity in art themselves graphically project how the past order of cruel exploitation is present in another form in revolutionary practice. In all its violence, the ideal form of the state is at the mercy of the power of art. The force that it takes to suppress it creates its own confession of the need to hide its face. Either way the fractures in ideality are exposed. Travelling out of Prejudice: Modernity We can step directly into modernity with René Descartes who left the absolute clear behind, but in his method of absolute scepticism. About nine centuries after Augustine’s adventure in thought and feeling, he sets in motion thought as a conversation with his reader – a new adventure. God is not denied but has no part in the conversation. Quite beyond Plato’s contemplation of an absolute, Descartes breaks with the impersonal metaphysics of scholasticism.17 He will hold only to what cannot be doubted and all the metaphysics that he has inherited can be doubted. Although he does offer proofs for the existence of a God, he calmly leaves this Being to its self-contained perfection – mute guarantor of what

16  One says ‘modern’ to block throwing it back as if ‘mediaeval’. This is not to blame ‘modernism’. 17 This, despite the fact that the language of the Meditations is imbued with scholastic terms.

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Descartes can render as clear and distinct. The Perfect Being is now outside the field of judgement. Descartes’ text proceeds in metaphors about travel. His new ideal is to be no longer mute and transfixed in the presence of some absolute being. The problem is that Descartes has been educated to accept things on the basis of authority, and by travel he has learned how the pronouncements of authority vary from society to society. His determination is to challenge all that. Travel in time enables him to challenge prevailing opinion. To know of history and of ancient cultures is ‘almost the same thing … as to travel’. But then he sounds a warning: ‘a man who spends too much time travelling becomes a foreigner in his own country’ (Descartes, 4). Descartes path of doubt makes a ‘foreign land’ of his old beliefs: ‘After spending some years thus in studying in the book of the world … I resolved one day to study within myself’ (Descartes, 6). As thinker thus he speaks directly to the reader as co-adventurer. Quite unlike Plato in the Republic he speaks to the reader and, unlike Augustine in the Confessions he eliminates God as intermediary. Thus he calls upon the reader’s involved judgement to make his writing possible. Though he doubts everything he never doubts he is addressing his reader. In the second part of the Discourse, Descartes pictures knowledge as architectural construction and de-construction. Winter ‘detained him in a stoveheated room’; his isolated space does not imprison; ‘I am at full liberty to discourse with myself about my own thoughts’ (Descartes, 6–7). This room, metaphor for mind, frames his thoughts. Knowledge is a construction; as with a city there are differing ways in which it may be built. The phase of gaining knowledge by travel to disturb the imagination is over; he takes up the ideal of a unified form that proceeds from a single designer: Buildings undertaken … by a single architect are usually more attractive … than those which many architects have tried to patch up by using old walls that had been built for other purposes.

His image of thought then shifts to that of cities: Ancient cities that were once mere villages and in the course of time have become large towns are usually so poorly laid out, compared to those wellordered places that an engineer traces out on a vacant plain as it suits his fancy (Descartes, 7).18

The image shifts again, to the contrast between ‘civilised’ and ‘half-savage’ peoples. The decrees of ‘some wise legislator’ are associated with modern civilisation, 18 Three centuries later, Wittgenstein is gripped by a similar picture; ‘Our language can be seen as an ancient city: a maze of little streets and squares, of old and new houses, and of houses with additions from various periods; and this surrounded by a multitude of new boroughs with straight regular streets and uniform houses’ (Wittgenstein, 8).

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in comparison with the laws made up to deal with ‘crimes and disputes’ while civilisation was developing out of some primitive state of society. The laws of ‘the true religion’ are reckoned, without discussion, as ‘incomparably better ordered’ than those of any other, being made (he trusts) by ‘God alone’. Descartes has implied that as one designer he could produce a better house of knowledge by removing the accidental cities inherited from the past. He does note the risks of pulling down a dwelling before he has alternative safe lodgings, but claims the right to pull down ‘his own house’, even if not the whole ‘untidy city’ of others. In this thought he recognises a provisional value in the rest of the old city that surrounds and supports him in his rebuilding programme, and so he shifts ground. He had emphasised the untidy and unplanned nature of an old city, and the mixed and accidental set of laws that would govern the society that inhabited it. Now his mind is taken by the image of the accumulated wisdom of knowledge that has been gradually acquired in practice. As to their imperfections, custom has doubtless greatly mitigated them and has even … imperceptibly corrected many of them … These imperfections are almost always more tolerable than any change would be; similarly the great roads that wind through mountains … become so smooth and so convenient by dint of being frequently used, that it is much better to follow them that to try to take a more direct route by climbing over rocks and descending to the bottom of precipices (Descartes, 8).

Descartes has conflicting considerations about his solitary enterprise; he feels ‘like a man walking alone in the dark’. He has come to suspect his belief in the superiority of European civilisation. Other societies are considered ‘barbarians and savages’ only because of their different customs and dress. It would be foolish of us to rely upon our own customs of good sense and reason – we may find them ridiculous ten years later. But then he swings back to the side of establishment – ‘within customary practice there may be inscribed a whole history of accumulated experience’. He resolves still to move but to ‘go so slowly and to use so much circumspection … that [he] would effectively keep [him]self from falling (Descartes, 10). His priority becomes to plan out his method in advance – if lost in the woods, of keeping to one direction (Descartes, 14). While meaning to use reason to reject ‘as if false’ every proposition about which he can imagine the least doubt, we observe him resorting to prior judgement at crucial stages in the process. He needs ‘a provisional code of morals’ (Descartes, 13). He must conduct himself ‘as firm and resolute in action’. He must change his own desires and habits rather than make the world conform to his wishes. Thus he recognises the premises on which he must live. These are not amongst the items subject to scepticism. According to the ‘fable’ of his life he makes these provisions isolated within his ‘stove-heated room’. These living premises isolate his method of scepticism

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from his judgement in making moral provisions. He offers only the reasoning and conclusions of the sceptical method for public criticism. Since deciding to rebuild his intellectual house he ‘counts [his] own opinions as nothing …[and he can] do not better than to follow those of the most judicious’ (Descartes, 13). There is a question of judgement here in his following the opinions of those who are ‘judicious’. In setting up the conditions for his enquiry he moves both within and then outside the frame of radical doubt. Descartes shows judgement in his considering what others do rather than what they say but this judgement is contrary to his counting his own opinions as nothing. Descartes must weigh his own opinions, even in setting them aside. Freedom of mind and action are essential to Descartes’ project. During the phase in which he doubts everything, he follows his strategic policy of accepting in practice only ‘the most moderate’ of the ‘opinions equally well accepted’ (Descartes, 14). This involves a refusal to renounce his freedom of mind. That judgement lies outside doubt: Nothing always remain(s) in the same condition [hence I would] commit a grave indiscretion against good sense if, having once approved of something, I obliged myself to take it as good later on (Descartes, 14).

Descartes would like to make easy work of these practical matters but issues of practical commonsense require his thoughtful judgement. Only by judgement can he insulate them from his method of hyperbolic doubt. He accepts for his practical guidance only the ‘most moderate’ of accepted opinions. In questioning everything they are then secure from doubt. It is a questionable judgement, to set moral and religious principles as beyond question. If he needs a criterion for what is exempt from doubt the method is limited after all. His radical doubt exists within the frame of conformity; it relies upon good judgement. Pending further judgement then, the narrator departs the safe enclosure of his room: In the next nine years that followed I did nothing but wander here and there in the world, trying to be more a spectator than an actor in all the comedies that are played out there … I meanwhile rooted out from my mind all the errors that had previously been able to slip into it. Not that I was imitating the sceptics who doubt for the sake of doubting … on the contrary, my entire plan tended simply to give me assurance and to cast aside the shifting earth and sand in order to find rock or clay (Descartes, 16).

It is at this point that Descartes shifts the scene of his fable to one of solitude in retirement; his ‘world of men’ is now that of the nearby armies as the guarantors of his peace. In a space between battles he declares: ‘I am able to live as solitary and as withdrawn a life as I could in the most remote desert’ (Descartes, 18). The unsettling character of his enquiries makes this well nigh impossible, however. His

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‘hyperbolic’ doubt behind ‘the mask’ of doubt has led him to some strange images – that his senses might deceive him; that he might be dreaming; that some demon is deceiving him about seems most evidently true. Exercising judgement in freedom he decides to take a break from doubting. But now life outside the frame of hyperbolic doubt seems like a dream. In this holiday from philosophy he feels more like a ‘like a prisoner who happens to enjoy an imaginary freedom during sleep, and then begins to suspect he is asleep; he is afraid to wake up, and connives at the agreeable illusion’ (Descartes, 65). His everyday involvement with the world has taken on the sign of a dream where one forgets unresolved problems. Now he fears his ‘slothful’ mind that pretends its doubts are unreal! He has suffered a reversal of understanding within the makebelieve scepticism he had set out to play. Now he is truly haunted by his dreams. Within scepticism he thinks he could be dreaming. Within the natural attitude he thinks he could be dreaming that his doubts have been resolved. Descartes is an actor who becomes the character he portrays. But it is because he is a writer that he cannot take off his mask within the text he has begun. When Diderot heads a narrative ‘Ceci n’est pas un conte’ (‘this is no mere story’) the title is part of the writing. That what follows is not a story, is a story. When Descartes expresses alarm, we can no more diagnose it is genuine than we can decree that Hamlet is mad. Still the lines of the second Meditation are compelling: (Y)esterday’s meditation has plunged me into doubts of such gravity that I cannot forget them, and yet do not see how to resolve them. I am bewildered, as though I had suddenly fallen into a deep sea, and could neither plant my foot on the bottom nor swim up to the top (DM, 66).

The terrain of his doubts now seems more familiar to him than that of everyday objects and people. Strangely, he regains a confidence in himself as he reaffirms the mantra: I suppose, therefore, that whatever things I see are illusions; I believe that none of the things my lying memory represents to have happened really did so; I have no senses; body, shape, extension, motion, place are chimeras. What then is true? Perhaps only this one thing, that nothing is certain (Descartes, 66).

It is typical of Descartes’ exercise of judgement that he feels free to alternate between speculative abstraction and experiential immediacy. Within the space of the first three pages of the third Meditation, Descartes comes upon a marvel of the commonplace by enacting a childlike device. He cuts out the world around him by ensuring he cannot sense it – buries his head in the sand to make a predator disappear: I will now shut my eyes, stop my ears, withdraw all my senses; I will even blot out the images of corporeal objects from my consciousness. I will discourse with

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myself alone … I will try to grow by degrees better acquainted with myself. I am a conscious being; that is, a being that doubts, asserts, denies, understands a few things, is ignorant of many, is willing or unwilling, and that also has imagination and sense (Descartes, 76).

It had seemed to him as if he ‘had suddenly fallen into a deep sea’ – and yet only the insane could doubt what he pretended to. But to make a judgement within the strategy of radical doubt is to take for granted what one would have doubted, but which the project requires. The method reveals judgement already at work prior to doubt’s absolute demand.

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PART IV Moving Establishment

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Chapter 10

Nomadic Judgement Being Nomadic Nomadism is as old as any figure for the condition of our knowing.1 The exit of Plato’s cave-dwellers, the Hebrews’ exodus from Egypt, modern colonial adventurism – Gilles Deleuze and Felix Guattari refurbished the figure again in their famous Nomadology: The War Machine (Deleuze 1989) One might read their work as a rather questionable romance of the nomad; their figure of the nomad as a guerrilla warrior may remind us again2 of Kant’s horror of the sceptic as a nomad, a threat to metaphysical dogma: In the beginning … [the rule of metaphysics] was despotic. Yet because her legislation still retained traces of ancient barbarism, this rule gradually degenerated through internal wars into complete anarchy; and the sceptics, a kind of nomads who abhor all permanent cultivation of the soil, shattered civic unity from time to time (CPR, 99).

Even while it may upset us in disturbing our clichés about solid information and grounded judgement, it is an attractive image within a philosopher’s co-ordinated systems of images that constitutes our implicit outlook - our imagerie: Philosophical discourse is inscribed and declares its status as philosophy through a break with myth, fable, the poetic, the domain of the image (Le Dœuff 1989, 1).

The nomadic moment within settled forms of knowledge remains at the edge of our peripheral vision, however. The place from which one looks is not what one can look at until one moves away. And when one does move, this ‘place from which one views’ keeps perfect pace and this new place can be seen only peripherally while one remains there. This conundrum nags at philosophy. Something in conservative procedure is at odds with the ideal of fixed knowledge. The philosopher’s ‘restless search’ is the inscription we make on what we found when settling after hard travels (‘Home at last!’). ‘This is how the world is’ transfixes, as a hypnotic gesture, what we would continue to know only if we continued to 1  Lisa Disch (Calhoun, 132–165) takes up Arendt’s figure of visiting that shows another dimension to nomadism – ‘being and thinking in a place where actually I am not’ (Arendt 1977, 237). 2 The reader will recall the discussion of this passage in Chapter 8.

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explore. The philosopher transfixes this how the world is (the real world) as the result of search (‘re-search’). Thus they can imagine that this world lies securely within and yet outside enquiry. It is inside because they have searched it. At the same time, outside because the familiarity of the ways of the search makes those ways transparent. The world stands out; the means by which we know it - the scaffolding - falls away. The idea of the people indigenous to Australia as nomadic enabled the ‘settlers’ (!) at once to regard the land as not truly inhabited and to enjoy, when convenient, the sense that they lived in an exotic land. To be (too) charitable, one might say that it was the beginning of the incomers’ own (uneasy) dreaming of the land. The figure of a nomad as the one for whom life requires movement from one source of nourishment to another, exposes the conflicts essential to the ‘situatedness’ of knowledge and judgement. Being nomadic is essential to what I would call ‘knowing judgement’ – judgement that is formed within structures of knowledge. This judgement within the interstices of knowledge can reveal the déformation professionelle of the regimen to which we subject ourselves in laying hold of established judgement and knowledge. Any sustained commitment produces some such ‘deformation’; the form this takes within each ‘solidly established’ system of knowledge requires its particular examination.3 To think and work only within what is established is to lose access to a place from which to observe where one is ‘coming from’. From external access to that, we may upset the complacent sense of solidity that limits knowledge and understanding. As an established system of knowledge grows (along with the social organisation that reinforces it) the system’s achievements seem to place the mentality of that establishment beyond challenge. We ignore what others know as from elsewhere. What is known as from elsewhere is then excluded on principle. Those grounded in techniques and information warn against flitting from one way of doing things to another. The nomadic moment that appears frivolous to those cosseted by establishment, however, is precisely what may offer a buffer zone between being established and being dogmatic. During the 19th Century, new settlers on the frontier between ‘European’ and indigenous culture inhabited such a buffer zone on the fringe of their own language and mechanisms of survival. They began to know, perforce, that there was already knowledge of the land – of how to travel in it and where and how to find water. What they lacked, and mostly were unaware that they lacked was the indigenous culture that made a significant texture of the inland mass of the country the settlers saw as a ‘vast and desolate landscape’. The importance of the Dreaming in dealing with the land can be gauged from some notes from an explorer’s journal which conveys what an abyss of nothingness that land appears to be, without that poetic, inspired and yet also practical imagination, by means of which aborigines see and move in the land, in terms of how they ‘sing’ it: 3 As when the Australian High Court articulated its case in favour of the ‘Mabo’ claim.

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Words can give no conception of the ghastly desolation and hopeless dreariness of the scene which meets one’s eyes from the crest of a high ridge (Carnegie 1989).

Though being nomadic is essential to knowing judgement, mobility does not make sense as a single ideal. To raise the figure of the nomad over and above all others as displacing or over-riding them would deprive being nomadic of an outside critical standpoint. The nomadic moment has on its horizon the need to be established, even as it prepares for change in the face of the unexpected, and so to make an exclusive ideal of the nomadic would betray its inspiration. The nomad is figure of supple apprehension of the world. We can use being nomadic to displace establishment as a figure for knowledge and understanding, a figure for the partiality of knowledge, raised against establishment’s aim to transcend partiality. At the same time, to idealise nomadism would cut the ground from under its fleet foot. If there were nothing but movement then the nomad could not sustain its various locales or derive nourishment from them. There would be no place from which to assess the values of nomadism, or to challenge its limitations. The periods of establishment needed for development of judgement and knowledge are a normal part of nomadic life, since it takes time to examine a prospective dwelling-place, and sustained social effort to form a community of collaboration and critique. This community is developed as much on the move as when settled. Nevertheless, to accumulate materials and devices that preserve information and to make experimental devices that test conjectures, require periods of settled establishment. Judgement’s Textuality Writing Realities Judgement has its own problematic textual structure. One may compare that structure with the way our project of knowing works in and through sensation and the historical contingencies of what theories are available to us. We have become, let us say, clear-headed so as to accept that we are always situated and thus limited in whatever knowledge we claim, while seeing with equal clarity that it is absurd to reject reality or realities on that account. We shall not think that it is any aspersion on reality or our grasp of it that we know something only after we have encoded it in some way. We take the fact that it could have been encoded in ways different from the one we have available attests, not to the divorce of encoding from reality, but to the extent of the reservoir of information that is latent in any reality. If there has been encoding then certainly there will be a need (on the horizon or right away) for a process of decoding. Dare we say, deconstruction? The decoding is vital both as a reminder that we employed one amongst other possible encodings (the easier realisation) and (the harder one) that to know what we know we have to be prepared to take it apart, even when that would appear to destroy it. To fail

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in this deconstructive task is to cease to think what we know. It is to begin to reify our knowing so that it seems that we have the warrant of Reality Itself in our claims about it. To decode is to remind ourselves that we had encoded, and that we would have had, not pure knowledge but only the experience of sensation had we failed to do so. Yet it is not to misappropriate this need for encoding so as to place it beyond reproach simply because ‘without it we would have nothing but experiential chaos’. To recognise the textuality of knowledge is to recognise that however bluntly ‘Realist’ we profess ourselves to be, we are (until we fall silent or our computerscreens flicker and fail) bound to be encoding our realities rather than goggling at some ‘Reality-beyond-our-writing’. Reality is not our writing of it since we can be wrong in what we write and even when not mistaken we are no more than partial in our positioned coding. We write not only from a point of view (such a reassuring simplicity) but also from moving within a field of view - and of touch. In these relatively formal encodings without which there would be nothing of the reliability (the iterability) that we require of knowledge, we are in the subjection of our objectivity, involved at every moment in our absorption of sense as in our subjection to the need for judgement. The word ‘judgement’ has a deep tone. Dark tone perhaps, since in the one gesture it reminds us of facts that remain in permanent tension. To make a judgement is thus to be exposed to the possibility of being judged mistaken. To refuse to judge is to fail to move into the arena of being right or wrong. It is to fail to move beyond the immersion in sensation that is the condition of informed judgement. And only to revel in that precondition is then to fail even to inform oneself for judgement. There are small preparatory judgements all along the route of sensation, in our preparation for what is recognised, overtly and as framed by context, the judgement that we make about reality, the realities of the situation. Being Situated Whether thought of as part of an establishment or as informed in a nomadic form of life, we gain our knowledge within some kind of situation. To arrogate all other places of ‘knowing judgement’ as subsumed and comprehended within one’s own is a strategy for hiding from one’s situation. Conversely, one may abdicate from handling the problems of one’s epistemic situation by assuming the superiority of an epistemic culture other than one’s own, simply on the basis of its being ‘other’, as if worthy of infinite respect. (This is the phenomenon of ‘exoticism’ - regarding another’s culture as a marvellous and incomprehensible mystery.) To assume the equality of all epistemic situations or knowledge cultures is equally an abdication of judgement. One places oneself, effectively, nowhere. We can consider knowledge only as subject to critical judgement and we distinguish judgement from wishful thinking insofar as it is practised knowingly. ‘Knowingly’ implies both that we make our judgements knowingly, as circumscribed by the extent of our knowledge. Also, ‘knowingly’ implies that they are generated and grounded

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in what we know. (This is why I introduce the phrase ‘knowing judgement’. To recognise this connection of knowledge and judgement is the first step in dealing with the tension between the established and the nomadic as figures for knowledge and understanding.) ‘Knowledge is situated’ is epigram rather than axiom. It is we who are situated in our procedures and ways of life. Some have read that epigram too literally, as implying that any claim to knowledge should be modified by a statement of the situation of the one who claims to know, or the cultural institution that houses the claim. Others who talk of knowledge as ‘situated’ might vaunt ‘local’ as against ‘global’ conceptions of things. This ‘local’ is an important concept. Locals know the difference between ravens and white-winged choughs without having to wait for the birds to fly off, revealing (or not) white feathers on the under side of the wings. Locals on farms, during a war, can spot the difference between a haystack and the camouflage for an anti-aircraft gun. From these simple examples one might construct a more general figure of knowledge as within its locale. Partialities and Localities Our need for our partiality if we are to sense, encode, formulate, and judge is, if we survey the thoughts that form the train just behind us, no excuse for being exclusively partial in that fashion that is called ‘being prejudiced’. In acknowledging that we must be partial in order to take an appropriate interest, we can be warned nevertheless against being partial in those ways that are inappropriate to the needs we have decided (or are obliged) to serve. This is what is meant by any reasonable interpretation of the requirement upon a judge in a court of law that they be ‘impartial’, and of the requirement of a scientist that they be ‘unbiased’ in their treatment of evidence when testing a hypothesis. Knowing is a kind of partiality, but partiality comes in many degrees and kinds, some of them incompatible with one’s knowing what one claims, even when one happens to be right and happens to have some good evidence for it. One can have the evidence, and cite it perhaps, but still not treat it with the respect that is required of those who would claim to know what they are talking about. As Gilbert Ryle pointed out famously, as a matter of category, to gain and to continue to possess and refresh our knowledge is a kind of accomplishment. There is no act of knowing. Rather, there are various acts by which we increase our chances of gaining knowledge and of retaining it as up-to-date. The claim of knowledge is the claim to have arrived at a certain point. But Ryle is less famous for his equally important reminder that to continue to hold what one has come to know, one must hold it in a certain fashion. I would amplify this reminder. To desire to know is to desire to know as much as we can, and to do that requires that we be open-minded and enquiring about what we know, rather than simply assertive of it because, after all, we know it. So, if we are confident enough to hold our knowledge sceptically, tentatively, then we can deal with our being constantly disconcerted by the discovery of the degree of blindness, conceptual inadequacy,

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sheer miscomprehension and partial conventionality in any declaration of what we know. And this applies even when, particularly when, we have not found ourselves to have been in downright error. Thus the need for a continual deconstruction of the encoding of what we know. This reminder returns us, then, to the picture of the nomadism that is involved, not only in our getting to know - our foraging for it – but in our actively retaining it in refinement and adjustment. Amongst the partialities essential to knowing Reality (how things are) lay our restlessness, our desire and will to move outside the established camp within which we came to know, so as to gain a critical view of how we knew. And therefore to risk discovering that it was not knowledge after all. To make a fetish of the local, however, as if it were superior to global concept or evidence is to arrive at the same degree of arrogance displayed by those who are complacent in their establishment. To make a fetish of the local is to travel around the globe of possible ideas only to end up back in the same place, unchanged. (‘East west, home’s best!’) Like the one who thinks they have a position of universality, the one who makes a fetish of the local cannot absorb new information and ideas from zones outside their present premises. To be satisfied with one’s own locale, holding all others in contempt is to be embedded, in stasis, like the one whose knowledge is so wide and strong on some issues that s/he can fancy his or her position is universal. Those who make a fetish of the local, flagrantly exclude those grounds of knowing judgement that lie beyond their own territory. In apparent contrast, the one who holds that, if there is a ‘situation’ at all it is the one system for anyone who rightly claims to know something (a ‘universalist’) lays claim to having encompassed all other grounds. We can work between these extremes of localism and globalism by use of the figure of the nomad. To say that knowledge is situated is to emphasise the importance of being able to travel between localities. Critical Nomadism ‘Local’, ‘Parochial’, ‘Objective’ In developing ideas of the local, the universal and the nomadic impulses in judgement and knowledge we have now an important legacy from developments in feminist thought. Linda Nicholson remarks in her introduction to Feminism/ Postmodernism (Nicholson 1990, 6–8) that feminists have an uneasy relation to the more extreme forms of postmodernism. Just when women are succeeding in establishing an identity as thinkers rather than as a problem to be thought about, as painters rather than as ‘objects of the male gaze’, the postmodern outlook that seemed to provide a liberal inclusion for new ways of thinking itself undermines the very idea of viable self identity (for instance). And, even as women emphasise and articulate ways of knowing and areas to be known that have been neglected or belittled in a masculine ‘mainstream’, the very idea of objectivity and knowledge comes into question. Then it can seem as if the knowledge and understanding

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women claim is built on the same quicksand as the spurious objectivity that they had attacked. Various feminist philosophers respond in their own ways to the relation of women and feminist thought to this postmodern climate change.4 Elspeth Probyn, examining the implications of ‘localism’ in understanding the exclusion, historically speaking, of women’s knowledge as ‘outside the mainstream’ is not inclined to glorify the local: ‘The local is only a fragmented set of possibilities that can be articulated into a momentary politics of time and place’ (Nicholson 1990, 187). This is not to deny that there is a good deal of local knowledge that fails to gain the respect it deserves, but only to warn against making an ideal of that localism. For, following the paths of localism to their ends, we soon pass the signpost pointing to ‘parochialism’. Even as Probyn takes the nomadic figuratively she cautions against idealising it. Constant travel by those who remain uncommitted to any place, and who exit too soon to come to know the problems and complexities of the ‘foreign’ cultures they find exciting, are no model for flexible knowledge and understanding. In adopting such an uncritical adventurism, we may engage in only (in her memorable phrase) the ‘unsalubrious aspects of tourism’. Susan Bordo, another philosopher writing in the same volume dedicated to the attractions and risks of the ‘postmodern’ for feminism, apprehends another risk in the figure of the nomadic. As well as that ‘unsalubrious tourism’ she reads signs of the reappearance of an objectivist5 desire to transcend one’s situation – a fantasy that is reinvented in a ‘new postmodern configuration of detachment, a new imagination of disembodiment: a dream of being everywhere’ (Nicholson 1990, 143). The question is whether nomadism is a figure for the autonomy of each field of knowing judgement within which the ‘nomad’ resides, temporarily. Or is this ‘nomad’ a being of universal wisdom, who can survey from some higher point the whole array of the sites of different ‘seasons?’ That is the medieval notion of a ‘God’. (Scientists and philosophers of science still call upon that figure as a guiding image, in their effort to describe the universal comprehension of all things at which physics aims.) What Bordo apprehends is that the recognition of a need for movement in forming knowing judgement, may be mistaken for the need for an ever increasing acceleration towards a vanishing point at which one would occupy all positions at once. Within such a collapsed post-modernity there would be no possibility of occupying any position.

4 The papers of Elspeth Probyn Susan Bordo and Donna Haraway (Nicholson 1990), and Donna Haraway (Haraway 1991) are representative of critical but friendly responses to the postmodern. 5 By ‘objectivity’ I mean the capacity to take subjectivity into account in ways that increase the chances of contact with the ‘object’ of knowledge. By ‘objectivism’ I mean the confused idea that the object itself guarantees our objectivity. The objects of our knowledge are neither objective nor subjective.

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Donna Haraway had already rehearsed in an earlier work these various dangers both for ‘objectivist’ modernism and for the post-modern recognition of multiplicity. Within both modernity and post-modernity thinkers push their way into a new transcendentality6 and thus to the point of collapse. She thinks we can make headway, tacking between these shifting headwinds: Our problem is how to have, simultaneously, an account of radical historical contingency for all knowledge claims and knowing subjects … and a nononsense commitment to faithful accounts of a ‘real’ world, one that can be partially shared (Haraway 1991, 187).

We need to describe a mobility that does better than that ‘unsalubrious tourism’ of which Elspeth Probyn warned. I read the debased nomadism that she apprehends as a movement that only skims the ground it covers, and which lacks commitment to or grounding in the localities it traverses. The figure of the ‘nomad’ that we shall evoke is of one that works in stages of involvement with and dependency on a locality. For the tourist, movement is in the foreground. If the going gets tough or unpleasant then there is always the thought – ‘I’m out of here’. In contrast, for the ‘nomad’ their movement out of any locale within which they dwell is pushed back on to some horizon. For the nomad, the thought that one will (and must) move at some time to come, does not veil or soften the realities that they must deal with currently. The nomadic life is practical and engaged rather than mystical or abandoned. It may seem bizarre to describe as ‘nomadic’ a dedicated surgeon, thoroughly versed in all the techniques and skills that established science can sustain. But to consider that conceptual possibility is to learn something of how nomadism works as a figure. A surgeon’s intense care with each successive patient requires that ‘the next case’ be always on the mental horizon. But during the time the surgeon consults with and operates upon a patient, that case takes total attention. The surgeon must move from case to case - yet she or he had better not become a medical tourist less than dedicated to the current case - ‘shortly, I’ll be elsewhere’. So how are we to approach the issue of the real and the representation, the known and what appears locally - as if merely locally? Imaginative detachment of being placed elsewhere - is part of the answer. A realistic epistemology accepts that each one who knows, and each group of contesting and co-operating people who desire to come to know something, are situated. If aware, then these people know that what they are doing, in all confidence, can be viewed critically (or in total disbelief) from some other epistemic locality. This fact in itself should not disturb the confidence of their enquiry, and yet the fact, or the imagination of it, in framing their enquiries, is the first condition of their gaining objectivity. 6 To transcend is to attempt to step beyond one’s situation in the effort not to be misled by it. Transcendentality is the (fantasised) separation of thinking self from its conditions of knowledge.

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The nomad is a philosophical figure for the imaginative (as well as geographical and temporal) shifts in view and method of those who aim at Haraway’s ‘faithful accounts of the ‘real’ world, ones that can be partially shared’. Use of this figure emphasises, equally, the ‘partially’ and the ‘shared’ in her statement. The sharing of enquiry and knowing marks the scientific enterprise as such. That enterprise includes the systematic and specialised bodies of working knowledge and skills that we call the sciences. These are not fully shared amongst the members of a society, or even amongst the members of various scientific groups, but the partial sharing is important. Equally, the scientific enterprise is (partially) shared in being founded in the everyday and continuous attempt that we make to be rigorous and critical, subject to the scrutiny and information of others, in all our dealings with people and issues. It is from those attitudes in the everyday that the specialised sciences themselves can emerge as continuously generated and regenerated operations of the common sense of a search for what is the case.7 The View from Nowhere Thomas Nagel in The View from Nowhere (Nagel 1986) would escape the tension between the need for local and for global knowledge by cutting the knot. He would describe the aim of the physical sciences as the ideal of a ‘view from nowhere’. (One might say, critically, about his view that to know objectively is to be as if no one, since anyone is inevitably placed somewhere.) Susan Bordo responds to his ideas as an over-reaction to an excessive desire within the ‘postmodern’ to recognise multiplicity. But, Bordo is arguing, Nagel’s own reaction to this risk is exorbitant. I would put the criticism of Nagel this way: If the view of physics is as from nowhere, then the physicist is imagined, correspondingly, as ever contracting at the same rate as they comprehend an ever-widening universe. In terms of a mathematical function what is known approaches infinity as the one who comprehends contracts to zero. At zero the one who knows is nowhere and no-when. In response to that desire, Nagel’s objectivism offers a view for no one, ever. Nagel could argue that the post-modern at its extreme would deny no-one’s position. He could point out that to be postmodern in that sense one would have to speak as if from everywhere at once. Certainly, that would be no less absurd than being nowhere. (Indeed, to be everywhere indifferently is to be not anywhere in particular.) So Nagel’s position virtually collapses into that of extreme postmodernism. Like Nagel’s hope for an objectivity gained by seeing the world as from nowhere, an extreme post modernity that would welcome all plurality aims at being as if nowhere. Both Nagel’s extreme objectivism and the extreme point of postmodernist pluralism affect an escape from the need to be on the move. The objectivist thinks they should not be anywhere in particular, and the (extreme) 7 To state ‘there are no realities’ is to state that as the fact of the matter. Thus one confutes oneself. A significant denial of ‘reality’ can be a denial only of specific allegation about what is.

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postmodernist thinks they can be everywhere at once. It is against both of those extremes that one can use the figure of the (critically) nomadic. Susan Bordo remarks that Nagel’s phrase ‘view from nowhere’ is ‘apt’. Not that it makes sense, but that the phrase evokes, pithily, the absurdity of the project of objectivism. Such objectivism flaunts its self-contradictory character as if to disarm a critic who would point out the incoherence. Nagel himself introduced it with deliberate provocation, to characterise what he argues to be a legitimate enterprise of scientific theory. As he argues, scientific theories achieve a high degree of abstraction and generalisation from particularity of place and observer. That is true, but the fact gives us no understanding of how a ‘view’ could arise or function as from ‘nowhere’. Perhaps the absence of anything local or personal in the propositions of elementary arithmetic and the formulae of algebra might seem to give currency to Nagel’s idea.8 These propositions are not localised views, but this is because they are not views of the world at all. They do not arise from any ‘view’ - literal or metaphorical - about anything. They are not pronounced as from one place or from everywhere but it does not follow that they are as stated as if from nowhere. The same goes for the ‘impersonal’ study of algebra. It is not from a point of view that (x+y)2 = x2 + y2 +2xy. This is a valid algebraic formula, not a point of view. In contrast, a mathematical point of view is a predisposition to see the numerical, algebraic or geometrical formalities of the systems and tangles one comes across.9 Various kinds of uses of these techniques can exhibit thought that operates from what one might call a mathematical ‘point of view’. Such thinking is concerned with what mathematical techniques can achieve when employed on a broader field. It might be argued that when Nagel writes of a ‘view from nowhere’ he wants only to remind us that theoretical physics (for example) attempts to articulate a view as from everywhere. But it is no more comprehensible how a view could be from everywhere than from nowhere. What would it be such a view be like, whether sensible or intellectual? The superimposition of countless views from countless angles is an indecipherable blur. On the move, in contrast, we gain successive ‘views’ from all available angles. The object is what stands out over and against us in our attempts to comprehend it in its complexity. The nomadic figure gives us as epigram, ‘Serial views from anywhere’.

8 Gödel proved that for any set of axioms adequate for arithmetic, at least one is not provable. 9  The difference between Willard Van Orman Quine’s influential Methods of Logic and his essays From a Logical Point of View illustrates the distinction.

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Nomadic Judgement Knowing Judgement In considering the role of judgement it is usual to pay primary attention to judgements of what is right and wrong, beautiful and ugly, just and unjust - ‘evaluative’ judgements. At this juncture, however, we are turning attention more widely to the family of forms of knowledge forms such as knowing how to do something, knowing the facts of the matter, and knowing theoretically what occurs. Nevertheless, we must also read ‘knowing-judgement’ into judging what is right and wrong, beautiful and ugly, just and unjust. To couple ‘knowing’ with ‘judgement’ is conceptually to expand what is involved in judgement. To resolve, in the mentality of judging, an array of facts and issues is to aim at a kind of knowing. In the same act, one’s aim is to be knowing in one’s judgement. The judgement itself is energised by all the knowledge one can bring to bear upon it, even as it is also constrained by that knowledge. In knowing nomadically one might want to express one’s situation as ‘moving around in the real world’. To be alive to words is to wince at the phrase, ‘the real world’. If ‘real’ before ‘world’ carves out a desired subset of worlds, there would be some worlds left un-chosen – the ‘unreal’ ones. It is self-contradictory to say that there are worlds that are unreal. (In the predicate calculus, ‘there is an unreal world’ would come out as ‘there is at least one thing such that there is not that thing’.10 Levels and kinds of realism are what can be attributed to modes of representation, not to what those modes represent. To accept being situated is already to accept a qualification to one’s specific situation. It is to accept already that there is more to something than meets the eye from where one happens to be. In one form or another this last thought has led into a traditional scepticism. The nomadic strategy is an alternative response to the sceptical Descartes’ tower ‘that at a distance, appeared to be round’. Upon approaching it, he found it to be square. If this establishes for me that I cannot by use of my senses determine the reality of the tower then I have not established that I was in error in the first place. On the nomadic strategy, in contrast, I shall declare that I know more than I had when I drew conclusions from perception as from just one place. I shall not reject the use of my senses as my only source of information for making judgements and drawing inferences. I retain what I had learned when at a distance, even when I discover some apparent conflict with that as I approach. I find the tower to be square when in its immediate locality. I do not make a commitment to a narrow localism, however. There is a good deal that I discover only from further off.11 10 David Lewis posits possible worlds to give a truth-value to contrary-to-fact conditionals such as ‘If Hitler had invaded Britain after Dunkirk he would have won the war’) (Lewis 2001). 11  Picking something out at a distance, then examining it ‘close up’ gives us an informed perspective.

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To take a nomadic rather than a sceptical attitude is to keep a wary eye on the assumptions made in saying that I am ‘close up’. When I come much closer (too close) I see no square tower, but indefinitely extended pitted surfaces. It would not do to forget, either, that it was as from the first, greater, distance that I knew that the tower stood on a broad plain, that mountains stood some miles further on, that there was a broad lake to the east, and an eroded gulley to the west. In knowing less about the tower’s shape I know more about its setting. As to the ‘contradiction’ that the tower cannot be both round and square, I may become more judicious in my assessment of what I could tell as from afar. I ‘took’ it as round because, at a distance, nothing indicated its corners. I did not so much ‘see what was not there’ (its non-existent roundness’) as fail to see what were there (its existent corners). The figure of the nomad as central to our understanding of knowledge and judgement warns us against taking the confidence we develop on our home turf as more than partial. It warns us that the world within which we know what we do, borders upon and interlocks with the world of our unknowing. If, in imagination, we look as from outside where we happen to be, we can grasp how we may lack vital knowledge. There is what we do not know that is implicit in what we know so far. So we make the effort to travel, in knowledge and in imagination, beyond the vantage point of our present comfort zone. Appreciation of what we perceive and deal with in bodily ways degenerates into a dogma called ‘realism’12 This teaching is made out of fear that we may overlook what we perceive, feel, think, speak and write about, in the processes of perceiving, feeling, thinking, speaking and writing. There is no reason, however for overlooking, in our perceiving, what we perceive. We have no need of the dogma. By the ‘ism’, realism would supplant our recognition of the realities-of-asituation. We respect these realities without recourse to realism. One may easily fall into self-abnegation: From what standpoint are we to judge these things? Everyone operates from personal and cultural prejudices. Everyone has an equal right to his or her opinions. Who am I to say what is right or wrong, good or bad, true or false, well or ill founded? (Deutscher 1983, 19).

We are momentarily overcome by a sense of our localisation. It is adequate response to localisation to accept that I will make mistaken judgements. What I learn somewhere and some when can be corrected by what I learn in another ‘where’ and ‘when’. If it is not for ‘little me’ to pronounce upon this big world then I am not large enough to judge myself incapable of knowing the world, either. The answer is that my ground is local but that my inferences and theories and judgements can be extensive. There are reasonable responses to rhetorical questions about the limits of one’s grounds for outward-looking claims. Both 12 A dogma is a teaching. That there are ships, candle wax and kings is no such dogma.

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local subjectivism13 and realist dogmatism exaggerate the threat posed by being situated. A mind that is dominated by awareness of its local subjectivity is caught in the dilemma ‘In being here I fail to be there - out in the real world’. Consider this tension, then. Dominated by the need to escape local limitations one accepts the need to judge more extensively. After taking due care, though based in the place and time of one’s existence, one perceives, thinks and judges what is the case. Something of the world - how things are - confronts me and I deal with it. But, elated by the power of thought, inference and theory, one is liable to fall from that sturdy confidence into dogmatic realism. To accept overtly the conditions of good judgement seems to subjectify one’s position irretrievably. That is to say, if I am a judge in a law court I cannot add to my reasons for a judgement ‘and I am an ageing white male, member of an affluent section of society etc.’. As a physicist, it is pointless to qualify my case that string theory can integrate general relativity and quantum mechanics by gesturing at where I am situated. In that frame of mind one might say: I am a scientist of the early twenty-first century with no resources beyond the physics and mathematics I have learned in my society. Seeing how previous scientists, limited by their times, have presented inadequate theories I cannot fairly judge my own.

Such qualifications to the detail of a case, from considerations of one’s position in judging, are not some proper humility. They are not even candid. Such pronouncements would be empty formulas. And yet, the fair-minded reasonable judge is the one who retains a constant awareness of his or her position, natural prejudices, limitations of outlook and understanding of people in other sections of society. When the thoughtful person attempts to be just in their judgement these considerations are in the wings of the stage upon which they play out their scripts. By maintaining a sense of one’s specificities and limitations one is ready to seek out further opinions and information and ready to conquer a tendency to ridicule someone of a different culture or social class. To attempt justice is to be eager to come to terms with uses of language that are not familiar, or which jangle on one’s sensibilities. Certainly, (with deference to Nagel) the physicist has a different nest of problems to deal with in being locally based, even while making breathtakingly general theories about the universe. The business of their theory is to state, without cultural localism, how the elements and constellations of the universe behave as they do. Nevertheless, their take on these things themselves is as through these theories that are particular to their times and scientific culture. These are the premises on which they live that make possible the grounded premises from which they corroborate and falsify theories. This consideration of material premises upon which we live cannot be brought on to the stage of their scientific case. It would be fatuous to do 13  I mean by subjectivism, ‘I can know only how I experience the world’.

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so. And yet there is a world of difference between a dogmatic realist who conducts science as if he or she has the universe itself in the headlights of their theory, and a realistic theorist whose hold on the objects of their enquiry has the elasticity of one who is aware that they are part of an ever-changing understanding of things. If I accept the conditions of judgement I shall not step to dogmatic realism from my right to judge, outwards, from my locale. Nor shall I treat the conditions of my judgement as if they were only sociological facts that lie beyond my judgement. The conditions of judgement operate on it differently from the observation and theory that warrant it. I do not need that (impossibly) universal position from which to judge. I can escape subjectivism, but I need not regard myself as one of the lucky few on this earth who are in contact with reality itself rather than the experiences and theories about it specific to the group of which I am part. Dogmatic realism, one might say, confuses the fact of being in possession of something of what is real somewhere, with being in possession of what can be known about it from everywhere by anybody. Partiality and Prejudice In demonstrating exacting observation and critical thought the philosopher must be sufficiently discourteous to ‘received opinion’ that they may resist the various stratagems that would efface or even liquidate the nomadic moment.14 At the same time, the philosopher appeals to a received sense of courtesy that permits them the use of terms they need in order to state the issues and their solutions. By this device we can de-stabilise both the ordinary production of knowing judgements and the inscription of this as fixed knowledge. The strategy of dogmatic realism is, at the crucial moment, to shunt off the practices that made possible the establishment of this knowledge. The operator throws the points lest the philosophical express be diverted. Once the gaudy boxcar containing our idiosyncrasies in describing things rests at a dead-end siding they are fit only as entertainment in a local cultural circus. Then it is hard to distinguish decoration from substance. Simply because that language is no longer in operation, the style and the vocabulary of the grounds for our judgements come to take precedence over what we once explained or judged by use of it. Our need for partiality in forming our knowing judgements is no excuse for partiality exercised without judgement. A newcomer on the bowling green, unaware of the ball being biased, will be frustrated in putting their shots. They can learn to use the bias artfully, however. One can put a biased ball, precisely, where a ‘true’ ball could not go. We can move around our objects of observation and thought. We can make a policy of taking an interest in various aspects. We can allocate time to various inquiries into our object. We are partial simply in taking a keen interest in what we judge. This need for partiality warns us against a partiality that damages understanding of what we investigate. Knowingly judging is a kind of partiality. The nomadic understanding is a flexible and moving partiality; when 14 These are strategies I call ‘appropriation, reduction and assimilation’.

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open-minded and enquiring we can welcome unexpected facts that require new conceptions. Our partiality is thus enlarged - or corrected. Our contemporary figure of nomadic thought is a re-formation. It appears precisely as we ‘write over the traces’ of our most ancient tropes and practices of knowledge. (It was to this end that we revisited Plato’s famous allegory in which he contrasts ordinary knowledge as a love of representational shadows with absolute knowledge as the unmediated presence of the original source of illumination.) ‘Nomadic’ versus ‘Relativist’ Historical detour is a vital part of a nomadism of knowledge and judgement. The problems intrinsic to a geographical nomadism – of rummaging over the earth’s surface to pick up all available ways of knowing and grounds for judgement – are scarcely less severe when we take our contemporary nomadism to involve travelling across different historical moments, and between textual genres. Like the tourist (and in the style of colonialist adventurer) we have to negotiate our way between being romantic about the ‘exotic’ other, and being only condescending in our (pretended) availability to any critique whatsoever. The way out of this dilemma is to use the critical judgement we have from what we are ourselves, culturally and intellectually, just as we expect that those we encounter will be exercising their critical judgement upon us.15 Nomadism is not tourism or adventurism, though it involves continual tours and adventures. One’s trajectory will be a tour but it need not be tourism. The travelling need not be conducted according to the detached and irresponsible ocular and gustative presence of one who is just passing through. In contrast, the shrewd nomad cannot afford either to idealise or to be blind to what is encountered. Our figure of the nomad is something other than that noble child-adult desired by the nineteenth century colonists when they gazed upon the ‘untouched’ lands of the Pacific islands – and then that ‘great southern land’. To enlarge that figure – the nomad will fight if needs be, but cannot afford protracted war. The nomad will move away from that. To be nomadic is to have realised that any place in which one happens to be may be vital to survival; it is to be resistant to the illusion that in finding somewhere fecund one has found the right place. Within the nomadic consciousness there is no promised land. One might find such an absolutist who thinks he knows it would be ‘mere fashion’ to move on. He survives in the remains of a camp left behind by the nomads at the end of an earlier season. (An enterprising nomad might plan to pay those absolutists a visit during the next seasonal cycle.) The absolutist is lost in a fantasy of having found the ideal city. Confronted with the decay of what they see around them the absolutists blame each other for having failed to keep the faith. The relativists, in contrast, keep moving with the nomads. We find them, half-dead of ennui, on the outskirts 15  Paul Crowther made a timely demonstration on the possibilities of critical judgement in aesthetics within a postmodern problematic whose provenance stems from Kant, through Adorno to Lyotard (Critical Aesthetics and Postmodernism, (Crowther 1993).

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of each successive camp the nomads establish. For the relativists, uninvolved and uncommitted as they are to whatever the nomad continues to discover as new, everything always seems the same. The nomads permit the relativists to travel with them as a reminder of the wrong way to go, for the nomad senses the reality of the place that is here, and the time that is now. This sense of what they must deal with in being alert to change, frames their travel and work of remembering. They make judgements; they must project where they are headed.

Chapter 11

Chasing After Modernity: Some Friendly Words for the Postmodern Re-circulating and Contesting Theory So there is a nomadic strategy to deal with the trilemma of absolute unification of theory, ‘tourism’ between differing theories, and the exoticism of marginalised points of view. Michèle Le Dœuff developed her critical epistemology in the context of a similar structure of views competing for ascendancy. She asks ‘whether there is or could be, in heaven or earth, a discourse capable of working as a criticism of another?’ (Le Dœuff 1986, 22). The question evokes the ease with which we can switch in our thinking from seeing a necessity in one founding explanation to finding no possibility of one discourse having a logical bearing upon another. A foundational discourse will appear as necessary to carry you beyond a ‘relativist’ or ‘non-objective’ critique. Yet, if one discourse is irreducible to another then the consequent autonomy of plural discourses makes a critique of one of them by another impertinent. Le Dœuff argues that the desire for one founding text, whether psychoanalytic, literary, philosophical, economic – or from the principles of physics themselves – requires that the founding text must either justify itself or be arbitrary and dogmatic in excluding the possibility of its being the object of critique from another discourse. Unlike some of her Parisian colleagues (at the time of writing the article, at least) Le Dœuff takes up a friendly attitude to developments in the sciences in her theory and practice of philosophy. But her argument would oppose any attempt to make one or other of the systematic physical sciences into a discourse by reference to which all other discourses must be tested. In Le Dœuff’s context, it was Lacan’s philosophical form of psychoanalysis that some colleagues paraded as the discourse that could subsume the language of philosophy itself. She points out that philosophy is also a critique of psychoanalysis. Her reciprocal critique is what, in another sphere, might occur between ‘cognitive sciences’ of mind and philosophical discourse.) The sociology of physics, for instance, is neither a substitute for nor a covert invalidation of physics. And yet it has been read by some who regard themselves as ‘realists’ or ‘objectivists’ about physics as implying that there is no truth in physics since its production can be understood in sociological terms. This has to be a misunderstanding. Certainly, it is always unnerving to find one’s own careful approach to issues become the object of another’s scrutiny. At a colloquium, someone’s arguing a point in analytical ontology might be observed as their engaging in sexual power play. The overt point that person may have made about

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the theoretical advantage of tropes over universals might be accurate. At the same time, the cultural critic of their terms and the manner and tone in which they use those terms, in the tenor of excluding other voices, might be equally accurate and observant. Just as the sociology of physics is no substitute for physics, physics is no substitute for the sociology of the practices of physics that are intrinsic to its enquiry. There is no part of the world about which physics has nothing to say, so, certainly, sociology is concerned with part of the same world that physicists study. Still, sociology is a stratum of knowledge that physics cannot supply for itself The relation of a physicalist philosophy to what is pronounced within physics itself is also problematic. If a philosophical physicalism claimed that physics fully described everything that there was in the world to be described, this philosophy would face a dilemma. Either the philosophy about physics is logically reducible to the principles of physics, or it is not true. If the physicalist statement is not true, a successive dilemma arises. On one horn of the dilemma, physicalist philosophy is false if it is true. If the physicalist philosophy truly says that physics states every truth then that philosophy is not true. It has truly stated something that physics fails to state. On the other horn, physicalist philosophy is not true because it is neither true nor false. Either it is meaningless, or it is some mode of declaration other than a statement. (An injunction, a plea perhaps.) Any philosophical statement about physics would be false, as stating something beyond what physics claims, or else not true because neither true nor false. To avoid these dead ends various philosophers1 have been devising practices that steer philosophy away from the metaphysical ‘matters’ of the nature of being, of universals, and of ultimate descriptions and explanations. Those still invested in the old practices, however, suspect all these new manoeuvres to avoid absolute ontology of being covert forms of relativism or idealism. That is to say, they suspect that to abandon the search for an ultimate explanatory system that subsumes all others is to abandon realism.2 If there are no alternatives to such fundamentalism than relativism and idealism, the suspicion seems warranted. Reality becomes relative to one’s mode of describing it or else collapses into a kind of linguistic idealism – there is no reality but within our modes of descriptions of it. Foucault, for instance, promotes attention to the power play involved in the acquisition and maintenance of knowledge as a core part of epistemology. He is therefore suspected of diverting epistemology in a direction that turns away from what we know to what is involved in knowing it. If we take ‘Derrida’ as a convenient focus for all that analytical philosophy has loved to hate about what it imagines to be the ‘postmodern’, he will stand for a trend that is reckoned by its detractors to trivialise philosophy because of its (alleged) exclusive interest in textuality. This detraction – ‘deriding Derrida’ – is taken to the point where ‘it’ (the movement) or ‘he’ (the paradigm exponent) is 1  One might estimate this as a significant minority. 2 C.B.Martin’s The Mind in Nature is an unusually rich conceptual elaboration of physical ontology. (Martin 2008).

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charged with an error that would suggest some psychopathology. Attributed to Derrida as his blazon is a remark thrown out casually enough on a certain page in On Grammatology – ‘Il n’y a pas de hors-texte’. This has been mistranslated, in any case, as ‘There is nothing outside the text’.3 Compounding the effects of a bad translation, the remark has been taken as an axiom rather than the epigram that it is. So Derrida’s most summary and severe critics place the deconstructive method into drawer (of their hand-me-down cabinet of metaphysical errors) labelled ‘linguistic idealism’ (within the principal filing system, ‘Realism’, ‘Relativism’ and ‘Idealism’). In brief, for the present need, his epigram is read more precisely as ‘There is no adjunct-text’. In reading what someone writes, there is no adjunct text that is ‘key’ to the lock of the box ‘meaning of what is being written’. Supposed ‘adjunct-texts’ carry their own problems of interpretation, and are as liable to require the texts they are supposed to decipher, as they are to act as ciphers. In the context of his epigram, Derrida is arguing that, for instance, the details of Jean-Jacques Rousseau’s life4 are not an ‘adjunct text’ that gives the key to the meaning of his preoccupation with banishing intermediaries that stand in the way of origins. Biography stands on its own feet, and has its own problems. It is not ‘hors-texte philosophique’. Alternatively, to read it significantly along with the writing received as philosophical is to make it become part of a philosophical text – still not something ‘hors-texte’. Rather than finding adjunct texts that are the key to the ‘meaning’ of some problematic writing, one can find positions from which to judge a text by means of a kind of intertextuality. As a nomadic philosophical practice, intertextuality permits any form of discourse its moment to make its claims as commentary and source of criticism on any other.5 It is over-conservative to react to this textual nomadism as if it admitted every irrationality, pre-scientific concept and pre-objective attitude – in short, ‘tribal primitivism’ (Brian Medlin in Heil 1990, 201–204). Radio Short-circuits the Urban-Rural Line On going deep into the forest to find the reclusive lyrebird your ‘return to nature’ was met with a mobile phone theme-call, mimed of course by the reliable native bird, oblivious to your eco- sensibilities, perhaps not even innocent of the appeal of technology.6 Here, lines intersect: classical purity of nature, progressive sciences of modernity and postmodern irony. Not that I would reduce to ironic distance what the postmodern has to offer. The postmodern is a deliberate and 3  It means ‘there is no adjunct text’. ‘There is nothing but text’ would have been ‘il n’y a que de texte’. 4  His mother died in giving birth to him; he was raised by ‘substitute’ figures. 5 This is not to say that just any form of discourse will succeed as well as any other. 6  I heard of it in the first few years of this new century – the postmodern hybrid of ‘nature’ and ‘culture’.

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deliberately partial resolution of the competing demands and attractions of past traditions and modern discoveries and challenges.7 The postmodern is alternative to the dreams of a golden classical age that could coexist with innocent nature. It is alternative to purist modernist fantasies of an escape from superstitious ignorance and the darkness of human nature - from history, in short. A lyrebird returned our technology to us, dispelling classical and modernist illusions. In Reports from a Wild Country, Deborah Bird Rose cites reports from that ‘wild country’ that existed for the peoples who began to encounter each other, here, in the late 18C (Rose 2004). Those who arrived thought to ‘tame’ a ‘wild country’ - and had their pangs of regret at the loss of a state of ‘pre-civilised innocence’, too. Bird presents the recorded words of those already here who saw Cook and those around him as ‘wild men’, and mourned the increasing wildness of the Australian land that was being produced by the newcomers. It is not that they saw it as being ‘tamed’ and hated that, as if longing to continue their ‘wild unfettered ways’. They saw an influx of ‘wild unfettered ways’ destroying what they had, in immeasurable years of physical work and artistic practice, raised up to a decipherable order. Their words and perceptions issue in a gesture that deconstructs modernist pretensions to an unequivocal command of what counts as civilisation. But with no less force, that indigenous judgement deconstructs the nostalgia of the modern settlers for a ‘return to nature’. Nostalgia for a past that never was, as Derrida puts it.8 Is there something about the radio that announces the postmodern? Years ago we were camping on the banks of the Murray River near Corowa. In the evening we were sitting in the car - taking refuge from the rigours of the tent - from the dark, perhaps the silence. There beside the river, under the red gums, over the radio came a voice of someone. The expected comforting voice of steady narration sounds like that of a radio commentator: You are about to begin reading Italo Calvino’s new novel, If on a Winter’s Night a Traveller. Relax. Concentrate. Dispel every other thought. Let the world around you fade. Best to close the door; the TV is always on in the next room. Tell the others right away, ‘No I don’t want to watch TV!’ Raise your voice – they won’t hear you otherwise – I’m reading! I don’t want to be disturbed!’ Maybe they haven’t heard you, with all that racket; speak louder, yell: ‘I’m beginning to read Italo Calvino’s new novel!’ Or, if you prefer, don’t say anything; just hope they’ll leave you alone (Calvino, 3).

The words of Italo Calvino’s compose a self-referential parody of an author’s inclusion of the reader in the contract of willing suspension of disbelief. It is 7  See Craig Calhoun on Arendt in relation to the postmodern (Calhoun, 232–259). Anna Yeatman used the postmodern to frame a rigorous study of contemporary feminist (and other) politics (Yeatman 1994). 8 This is a common theme with Derrida: ‘Memory stays with traces, in order to “preserve” them, but traces of a past that has never been present’ (Derrida 1986, 58)

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Calvino himself in the act of making a veritable work of that old dodge of speaking through the pages to the reader before the work begins. The author himself becomes his own compère who introduces a literary work. The parody itself amounts to a question about the possibility of going on reading novels now that we readers know their forms. We know from the start what must happen simply because the book is a novel and has its appointed task to fulfil. As when, watching a tense crime drama, we look at the program and say to the one watching with us, ‘Well, they’ve only got less than ten minutes to wind it up and bring it all together’. Calvino turns that fragment of a literary compère’s voice into a text that it no less a fragment of a story than it is a compressed discourse on writing and reading. It is as if we are being introduced to the author himself but no. Just as, at the Writers’ Festival we meet the author in yet one more of his or her literary conceits so too, here too, the gesture of coming before the audience as if between the audience and the work, we hear but one more voice of another persona. The one originating author that realism tells us must be somewhere back there in the dark behind the dark of a voice on radio remains elusive as ever. Yes, someone once actually wrote the whole thing. The unseen author. Yes, one might well have met this Calvino. The reading might well have been preceded by an interview with him. Or you might have been lucky enough to meet him one time. He felt like talking, let us say. What could he tell you, what could any writer tell you but that still you are separated by a categorial difference from the ‘one real source’ of the various narrators that were constructed as he turned to his daily task in writing his non-novel. Like an actor’s character, that source as a coherent identity behind the consistency and integrity of the work comes into existence as a conceptual corollary of the figures in the work. These, with other like observations about how the materiality of writing goes with the dematerialisation of the ‘author’ as origin that explains it, are collected under a famous dictum typical of the postmodern - ‘that the author is dead’ - a figure of language that recalls the Zarathustra who says ‘God is dead’.9 Another of Nietzsche’s voices says that, in effect, God is preserved in our grammar. ‘God’ has the grammar of a proper name. One thinks of the voice in the Hebrew Tanakh (Psalm 14, 1) that utters ‘The fool has said in his heart that there is no God’. Only a fool would name something and then say that it wasn’t there. To utter ‘God’ is to call upon ‘him’ for response. What kind of a fool calls upon a being in order to announce his non-existence? Early in the last century, a few decades after Nietzsche wrote Also Sprach Zarathustra, Bertrand Russell was sensitive to the tangle involved in denying existence to a being that one seems to accept in the act of naming it. He untied the tangle. By deconstructing proper names he neutralised naming’s implication of existence (Russell 1973, 103–119). As with the paradoxes,10 he offers an evasive 9 Nietzsche raises up a voice from the pantheon to utter in frenzy that we have murdered God. 10 He sidesteps paradoxical self-reference in logic and mathematics with a theory of ‘types’.

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manoeuvre to avoid the gesture of calling upon a being one denies to exist. He avoids naming altogether, reminding us of how, when an interlocutor does not know whose proper name is in question, they replace it by identifying descriptions. In place of ‘God exists’, Russell writes ‘There is something that is all-knowing and all-powerful, and any being that is all-knowing and all-powerful is that (same) one being’. One can then deny the existence of any such being without making the gesture of first naming something. A definite description identifies the particular use of a name. Imagine that someone called ‘Isaac’ lives next door. You hear someone from the next house further along say that Isaac was almost murdered by his father. You are shocked. ‘Isaac next door was nearly murdered by his father!’ Your neighbour laughs, ‘I mean the one in Genesis who was bound and readied for sacrifice!’ Russell took himself to be offering a logical equivalence to the use of a name. We now say that he was offering us not a duplicate language but an alternative form – not equivalent but still adequate to what we need when we identify the people, things and events that we name. In the contemporary encounters of Richard Dawkins with the dedicated and the sometimes verbally quite skilful ‘creationists’ we can perceive shades of the difficulty that Russell encountered in trying to argue for atheism when confronted with practised theologians. Dawkins says that he thinks the theological tradition asked the right questions, but gave the wrong answers (Dawkins 2006, Chs. 3 and 4). So he presents his own (right answers) so as to be considered on the same ground as that of the theologians. He is right to resist the appeasing line that theology and science have their own proper validity in their own spheres. But to score a direct hit by placing science on the same terrain as theology he turns science into a kind of theology despite himself. In some ideal imaginary world he would not have to mention God or Real Origins. He would so intrigue his listeners with the details of scientific practice and thought that they would leave ‘God’ and ‘Christ’ and all that in some lumber room under the house. Decades later they might peep in at it with a rueful smile. After some millennia, people could finally enjoy the whole story with impunity, as we enjoy and learn from the ancient Greek tales, and those still older ones indigenous to our own country. If we follow Russell’s manoeuvre these days we do not pretend that any use of descriptions (no matter how extended) restores the sense of a proper name. Rather, we might use a picture of explanations typical of Derrida - writing our new ‘descriptions’ over the partially erased traces of the old ‘proper names’. Derrida is amongst those of a ‘postmodern’ temper who would leave behind, along with assertions and denials of the existence of God, the whole field of metaphysical declarations about the mind, soul, consciousness and time. To insist upon the name of God even in denying ‘His’ existence - to call out to a being one holds not to exist - is a gesture that resembles mourning. To mourn is, for the very reason that one knows that someone is dead, to call out to them. Because to grieve involves one’s continuance in a mind that would address the one we miss, we engage in acts that we know to be self-belying. Derrida took up as an iterated theme, these deliberate impossible acts from which we seem to find it impossible to extricate

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ourselves. Derrida’s foes criticise him as ‘irrationalist’, citing him as accepting contradictions - as if he believes in what is impossible. But to shoot the messenger is unjust and to call Derrida’s tracing of paradoxical speech acts self-contradictory is illiterate. What disturbs even his careful readers however, is his acceptance of these ‘impossible’ practices of mourning, giving gifts and finding origins. Perhaps they think that he ought to chide humanity for its mourning, giving of gifts and final explanations of origin rather than describe it so patiently. Deconstruction does not translate away these practices. Reality and Textuality Involving Writing If we go back to a paper such as Andreas Huyssen’s ‘Mapping the Post-modern’ (in 1990) we evoke again an idea of what was perceived as the postmodern denial of reality in favour of a play of text on text. Discussing ‘whether … a self-limitation to language and textuality has not made post-modernism a mere ‘atrophied [relic] of an earlier aestheticism’, Huyssen concludes with the flourish: To insist on the adversarial function of … breaking linguistic codes when every second ad bristles with domesticated … post-modernist strategies strikes me as … that very overestimation of art’s transformative function for society, which is the signature of an earlier, modernist, age. Unless, of course, écriture is merely practised as a glass bead game in happy … or cynical isolation from the realm the uninitiated keep calling reality (Nicholson, 261–62).

But one cannot call upon ‘the uninitiated’ since ‘they’ (that is, we ourselves) talk not about Reality, but of the usual things - ships and sealing wax and kings. Those who do remark about Reality at large speak as if it is those in another domain who have access to it. To say that post-modern intensified forms of writing are carried out in isolation from what the uninitiated’ call ‘reality’ makes it seem as if there are reports about what happens ‘out there’ which the post-modernist ear would not heed.11 But any claim about how things are can, as a ‘text’, be considered by anyone. Nothing is foreign to the post-modern. The mythical postmodernist is reckoned to hold that it is texts that are heard and seen rather than the reality they purport to describe. How could this be other than a myth? Is it really supposed that those who deconstruct our language about the world make sure to keep their eyes and ears ‘wide shut?’ Then they could not read texts since textualists take writing as material - not as an immaterial

11 Anna Yeatman frames this: is the postmodern a climate or a failure of judgement (Lennon, 187–200).

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‘meaning’. Friends of the postmodern adopt the language of ‘textualisation’ when it suits; at all times we keep our eyes peeled and an ear to the ground. The paranoid reactions to ‘post-modern practices of deconstruction’ - to ‘the emphasis on text and inter-textual play’- arise out of an implicit assumption that acts of speech and writing are a kind of intermediary between Reality and us. The reactions to the persistent textual focus of deconstructive methods are so extreme that you would think the world itself was in danger of demolition - as if ‘postmodernism’ or ‘deconstruction’ might replace Reality-Itself with postmodernist language and that the public might be taken in by this legerdemain. Even were such suspicions correct, only remarks about language as a ‘play of text on text’ would replace remarks about language as ‘concerning Reality’. ‘Language might replace Reality’ is itself a piece of ‘text’ that one would set about to deconstruct. Philosophy stages its own special theatre of the absurd for those players who declaim about the need to recognise Reality-Itself as that which authenticates speech and makes true what we declare in language. The declaimer reveals himself as thinking of Reality as flimsy - ready to be blown away by the deconstructive rhetoric that he decries as enfeebling ontology. As if reality might be at risk from what the Realist wants to regard as ‘mere’ writing. If writing were ‘mere’ writing, and did not involve reality at every point, and at every stage, then it could not, in any case, threaten anything. And if writing can carry force, can pose and take an existential and an ontological risk, then one ought not fear that the close study of the play of text on text would diminish the vivid and concrete sense of dealing with how things are - just what good writing evokes. We get merely a bizarre image if we were to require the writer to have one eye on Reality and just half an eye on the page as they put pen to it. To evoke reality when we write, we fully attend to writing. To attend to text as erasure and the tracing over of previous texts is to pay close attention to how things are. Derrida describes the project of metaphysics in terms of indefinite deferral because he diagnoses its chronic intellectual disease as the project of ‘capturing’ reality itself and giving it an immediate presence in a writing that would (as if by magic) transcend its own contribution to the process. Thus Derrida describes as an indefinite deferral the practice of metaphysical writing (Derrida 1982, 3–28; 207–272). If metaphysics aims at an absolute revelation of Reality then its results defer its Presence. We go to grasp Reality Itself and fill the page with writing. It is childish to blame Derrida or the ‘corrupting practice of deconstruction’. We need have no fear that attention to text is inattention to how things are. Every text says how things are. (To decree how matters ought to stand is to say that how things are leaves much to be desired.) Saying how things are is the one act that cannot be deferred when you write. If we do not like what we find has been said (or the way it is said) then we contest it. In so doing, we add to the currents of writing about how things are. To defer that is to defer the business of writing. Inexorably, texts lead on to further texts as we explain and describe what we began to deal with. But that is not an indefinite deferral of description and reference, since every coherent part of a text says how something is. And the appearance of

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the text is not a deferral of the appearance of Reality Itself, since that cannot appear as part of a text. So let us erase ‘Reality Itself’ and lightly pencil over it, ‘Each and every way that something is’. What, in a text, is said to be cannot be excluded from the text - but is neither inside nor outside it. It is ‘within’ simply as mentioned. And were we to fantasise textuality as replacing or displacing reality then, as taking on reality’s role, it would remain neither inside nor outside the text.12 There would be nothing left to be ‘inside’. To be ‘outside the text’ reality would be outside itself. Out in the Real World Academics, perhaps philosophers in particular, are liable to think of themselves as cut off in their living and their thinking from the ‘real world out there’. This is an illusion that is common to any profession. A real-estate agent, the archetype of a ‘hard-nosed realist’, expressed his envy of philosophers. His own life seemed to put him ‘out of touch with the real world’, he said. Locked in to the closed circuit of seeing people in terms of their moving out of or into houses, he feels that he has come to see houses merely in their capacity to inspire the fantasy that generates a sale. Thus he comes to feel that a philosopher, meeting others on the basis of mutual disinterested interest, is the one in the ‘real world’. As philosophers (he romances) we deal with people and their ideas without impediment or restriction. People involved with intensive commercial enterprises are not ‘in touch with the real world’ – hypnotised as they are by the ledger sheets or computer screens of profit and loss, of futures, take-overs, and all the ‘merely symbolic’ representations of some underlying industrial, agricultural and domestic realities without which business would scatter like moonbeams. Like the ghostly phenomena of epiphenomenalism,13 the business of entrepreneurial capitalism seems to ride upon a material base that it needs but from which it is forbidden intimate acquaintance.14 There is a ‘real world out there’ of those who invent, build, produce, carry, shop, cook, store and sell. The lawyer deals with social shadows cast into their chambers by theft, violence and fraud. City folk buy food as a commodity - inside wrappings that bear no trace of the white heat of a wheat field or the bellowing and stench of the abattoirs. Scientists can feel enclosed in their laboratories as they control processes in artificial environments; they describe the world only in terms of the most extreme of abstractions. And still those who would ‘return to the earth’ and become non-scientific again would come no closer to Reality in thus abandoning intellectuality. To abandon intellectuality leaves us only up in the air. Still cut off from the earthy life we sought. We would be worse off then, being unwilling to probe how things appear. For lack of concepts and theories we would not longer see beyond the present moment. In this predicament we humans who give up on 12  When Berkeley’s ‘ideas’ replace ‘objects’ the ideas become realities in themselves. 13 Here, the representation produced by the Real has no effect upon it. 14 Dealers in electronic capital then appear to be the ones in touch with the realities of economics.

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theory only take up bad theory. We take up causes rather than explanations. We confer the status of theory upon old myths (Ryle 1964). Such alienated scepticism about one’s world recalls for us the first moment of uncomprehending reflection when we have been disturbed from our usual absorption in the world, as we know it best. We are derailed from the tracks that had set the familiar view. We had lived within the consciousness of totalizing realists, accepting over-familiar things as being simply ‘the world-as-it-is’. A contradiction lurks here. Its source resembles the confused imagination of a time traveller who would go back to the past. They know they must remain an uninvolved spectator so as not to disturb history. They arrive in the Past. Too late! Already the time traveller exists where ‘before’ the time travel s/he was not, so that they are and are not at that place and time. The history of the world is undone by a silent presence and a glance. We are involved in a similar tension when we become aware of the partiality engendered by our position and its synergistic vision. We feel caught in unreality. Reality now ‘lies beyond’ these ‘old illusions’. Reality as where we are not - the talisman of traditional metaphysics. While ‘in’ the East you recall the sense that you hoped by travel to surpass - that you were in reality by being where you were, self-referentially. But if that were now true you would be living here and no longer in the ‘East’. One might have said, carelessly, ‘Western’ metaphysics - the ‘West’, not a geographical relation but a quality of life and thought. Orientalism makes the East exotic only then to denigrate it; if Orientialism denigrates the West, this is only from a platform on which itself, as West, is already glorified. The cultural fantasy is of a ‘genuine’ reality over that horizon from which new days dawn. But it is the truth that dawns. If you were to live in the east, no longer would it be before you as ‘the East’. Only as a visitor who ‘lives elsewhere’ does it remain east of you, exotically. If you still live back in the West when present in the East, you realise that you left the ‘West’ in the illusion that reality was elsewhere. (The graffiti in the elevator: ‘I am lost’ (then below) ‘you are here’.) After the enlightening task of sorting out these confusions our next thought might be that everything is real - all too real. Freed from the sceptical hiatus in finding reality and truth, now it seems that there is no escaping it. Far from eluding our search Reality becomes our shadow. It dogs every step, laughs at every tic as it eludes our every attempt to leap from it. But also – as when I jump towards my own shadow, I cannot get so close to Reality as to stand upon what moves with me at every step (Ryle 1976, Ch.6; Haraway 1991, Ch.9). Being True and Being There Tell me, where is fancy bred? Or in the heart or in the head?

Merchant of Venice, Act III, Sc. 2

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Truth is predicated of what we say and think, not what there is – beyond the ‘what there is’ that includes the beings who do the saying and thinking - ‘true friends’, ‘true observers’, ‘true recorders of events’.15 If we are inclined to say that there were truths such as ‘dinosaurs existed during the Jurassic period’ long before beings capable of asserting or thinking them, this leaning is well served by recognising more directly that dinosaurs existed then. That is to say, before anyone thought about what there is, there were, roaming and populating the world, not truths but animals, birds, forests. And yet people do often react against any denial of the reality of eternal unwritten unspoken truths as if that denial were a sort of relativism. The spirit of the postmodern is to include a variety of texts. On this account, also, it is suspected of infection by a virulent new strain of that loose thinking.16 Worse, ‘relativism’ itself is uttered as an almost universal swear/smear word. The pope thinks we are relativists if we think that we work out moral principles for ourselves rather than receiving them from an omniscient divine being. For those who would flourish their absolutes, the modernists who violently reject ‘postmodern relativism’ are themselves derogated as relativists because modernity (in the form of science and many kinds of professional philosophy) make people the judge of any alleged absolute, whether it be an absolute of faith, morality or science. Whether one is a ‘relativist’ is also a relative matter. There are varieties of relativity. Dealing with them is integral to any possible objectivity in our approach to issues, people, things and events: a large ant is smaller than a small elephant. What we judge to be the case is relative to the framework of measurement taken (usually tacitly) as appropriate. If that is ‘relativism’ then we had better be ‘relativist’. Within the disputes about relativism (even in professional philosophy) a form of ‘subjectivism’ is passed off as the most objectionable sort of relativism. What is true is what is true for ‘me’. Any being who currently assumes this self-referring expression is such an ‘I’. For each person, what is true is what is true for that person. Like Basil Fawlty letting loose his feelings upon his unreliable car by beating it with a branch, this is the position that those style themselves as ‘realists’ in their rejection of ‘relativism’ love to refute. It is a helpless confusion of a thought that cannot assume responsibility for itself. Let loose, defenceless, into the cruel world of intellectual debate. ‘What is true is what is true for each person’ is nobody’s child. If each person takes to be true what each thinks, simply because each thinks it, then each would refuse to grant the truth of what another thinks, if they disagree with them. If I think that what I think is true because I think it, then I do not think that what you think is true merely because you think it. Such a relativist cannot make a generality of their claim. They would like to sound tolerant, generous to all, but that extension of tolerance is inconsistent with the privilege that each ‘I’ 15 Margaret Canovan shows judgement in steering between the absolute and relativism (Canovan, 264–268.) 16  Richard Beardsworth demonstrates how Derrida’s methods open the field of law and politics to judgement (Beardsworth 1996).

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grants to itself in declaring that what is true is what is true for ‘me’. And finally, if that inconsistency is avoided by the only possible recourse - that to be true means only to be thought to be so - then nobody is in a position to think anything. For the postmodern outlook, relativism is but another absolutism, scarcely disguised. A relativist must maintain both ‘there is a widespread prolonged drought in Australia’ (because he does think that) and that there is no such drought (because someone else thinks to the contrary). So relativism as theory transgresses its endorsement of what I claim to be true as being true (for me). As a relativist one thinks from outside the frame of ‘What is true is what is true for me’. From outside that frame, my thinking there is such a drought remains inconsistent with what you think. Can you think what I think? If not, you cannot think the contrary of what I think. In a kind of absolute idealism, the contrary thoughts of others become mere appearances of difference. You say there is no drought in Australia but I cannot think what you think when you say that. This gesture at a tolerance by exclusion of expressible difference falls apart. We need call upon no devious opponent to snip or snipe at it. ‘What I think cannot be the same thought as what you think’ defeats itself in its attempt to speak to another. If I have told you my theory then what I think has been thought by you. But if you cannot think what I do when I say ‘What I think cannot be the same thought as what you think’, I say nothing to you. Or, perhaps I can keep darkly to myself this thought that what I think cannot be what you think when I tell you about it - to muse upon as I go to sleep. But to think is a conversation with oneself. As inner drama, I split into speaker and hearer. If the thought spoken by one is not what is thought when heard by another, the listening ‘me’ cannot comprehend what is said by the ‘I’ that spoke. This critique is more than logical pyrotechnics. It is a serious observation that since thinking is an inner dramatised form of speaking and listening, the ‘me’ that listens must make sense of what the ‘I’ utters. As Gilbert Ryle has observed, one cannot identify intelligent thought as talking to oneself (Ryle 1976, 35). I can speak nonsense or rant to myself just as I can talk nonsense or rant to another. You may guess rightly about me, ‘You have no comprehension of what you are putting to yourself!’. The extreme relativism against which ‘realists’ would define themselves is incoherent. So, its denial fails to define their realism as coherent. There is no significant contrast. Criteria other than ‘being the denial of relativism’ must be invoked. So people say that realism means that what is believed to be true exists outside the thinker. This requires a dualism of thinker and the reality, thought as existing in different categories. No realist who identifies thinking with physical states or processes in the brain (or the ‘embrained’ body) can take ‘being external to the mind’ as a criterion of ‘being real’. The thinker’s own brain or embrained body is what is doing the thinking – and that is not external to the thinker! Yet it must be declared ‘real’ because part of physical reality. Most of what is real is not confined within the brain or embrained body of the thinker, to be sure. Nevertheless, not its externality but what it is, constitutes it as real. If the physical brain renders us capable of thought, let us speculate on a physical universe as comprising an organisation of particles capable of thought. This physical universe

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is devoted to thinking of its own existence. The physical world it thinks of is thus not external to itself. Still, it is physical and real. If those last two definitions were the best that we could find to define relativism then we need not bother with it. It fails to be a position. Relativism deconstructs. In contrast, a healthy respect for the relativities of size, age, colour, strength, loudness and vivacity is a condition of objective thought and perception. A relativist position is not robust enough to permit ‘realism’ to be defined by denial of it. An absolutist would claim, about truth, a tautology that corresponds with the incoherence of relativism.17 Whatever I think, I think to be the truth. So I must take as false whatever you think that is contrary to what I think’. This is the mainstay of a fundamentalist objection to religious tolerance. One cannot deny the tautology but perhaps one can avoid the ‘absolutism’ that typically attends it. Certainly, to think something is to think it to be true, but still you can wonder whether it is true, after all, and consider the terms and reasons of others. There may be more subtle - certainly devious - accounts of relativism and absolutism. One may point out that there are circumstances in which I have discovered something as true, even though were you to have looked, equally carefully, it would have appeared to you to be false. But there is nothing strange in this. This is what makes crime detection, scientific discovery and discussion of passing events so fraught. It is the inability to recognise relativities in how things appear to us - relativities that depend upon our education, past experience, cultural expectation - that constitutes intolerance and bigotry. Bigotry is buttressed by an abuse of the ‘absolutist’ tautology that I cannot but think to be true whatever it is that I do think. And that I am bound, if consistent, to think to be false whatever you think that is contrary to that. I must, out of respect for what I think, think you wrong. This is a version of Moore’s paradox: I cannot say coherently, ‘It is raining but I do not believe it’. I cannot think coherently outside what I do think. To be bigoted is to draw, invalidly, the conclusion that respect for the differing views of others is condescension, and multiculturalism is muddle-headedness. This road to bigotry is a fraudulent use of the tautologies, ‘I must think to be true whatever I think’ and ‘I cannot but think to be false whatever you think to the contrary. Separately or conjoined, these formal truths imply nothing about how I deal with our disagreements. That you find that something appears otherwise than it does to me, leaves me free to entertain the possibility of my own error - to recognise at least the partiality in the way in which I have perceived and expressed what I have discovered. It is partiality that relates the postmodern to the theme of judgement. Every thought that is finite and coherent involves something of partiality (Deutscher 1982, 73).

17  I am after the sense of absolutism that taking one’s own assertions seriously seems to require.

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Noise There is a high level of noise in the culture wars and truth contests. There is noise in the battle between the ‘we can now establish settled truths by rational procedures’ of the modernists and ‘we deal with what we call our various “realities” in working within our various textualities’ of the postmodernists. Technically, a level of noise is the ratio of indecipherable signal to the desired one. (In radio signals, ‘static’ as against decipherable matter such as speech or music.) The sound of the postmodern contra modernist battle is that of universal frustration with opponents who cannot hear one’s words. The trouble is that few respect the aporias endemic to every theory of knowledge. As if, in a drought, we fought each other for causing the lack of water, thus rendering ourselves incapable of understanding how to use the inevitably limited quantities of it. The postmodern condition is a syndrome and postmodernism is not the invention of some devious intellectuals. Postmodern lines of thought articulate changes in the social and political weather. (The old right and the old left unite at last – against the spirit of the postmodern.) The changes have causes whose momentum is beyond the power of opinion to control. What is called postmodernism, as a kind of thought, marks the efforts of those who have recognised and attempted to chart those changes. Arendt was ahead of this before the battle started: I have clearly joined the ranks of those who for some time now have been attempting to dismantle metaphysics, and philosophy with all its categories, as we have known them from their beginning in Greece until today. Such dismantling is possible only on the assumption that the thread of tradition is broken and that we shall not be able to renew it … This loss … does not destroy the past and the dismantling process is not destructive; it only draws conclusions from a loss that is a fact and as such is no longer part of the ‘history of ideas’ but of our political history, the history of our world (LM, 212).

Anti-postmodernists are themselves caught up in the postmodern climate change. After the realities of the twentieth century they cannot restore an eighteenth century faith in enlightened progress. The desperate spirit of those fought against the postmodern in the latter decades of the twentieth century speaks of their own loss of confidence in the high hopes of modernist enlightenment.

Chapter 12

When to Forget (Done with Judgement)

What we remember will be no longer what we forgave; we will remember some better part – a temporal recompense – making up for times lost and lost time.

Judgement that Never Was Amongst those many who during the 1990s (predominantly) wrote on Arendt and Kant’s use of judgement, Maurizio Passerin D’Entrèves is one of those who designate Arendt as having a theory of it. He entitles his third chapter ‘Hannah Arendt’s theory of judgement’ and opens his discussion with what has subsequently become a virtual commonplace about her approach: Arendt’s conception of modernity is characterized by a deep concern about the loss of meaning (Freiheitsverlust) and loss of freedom (Sinnverlust) brought about by world alienation and earth alienation, the rise of the social and the disappearance of the public sphere … that has undermined the possibility of … stable identities, … an adequate sense of reality and endowing our existence with meaning … Against this predicament Arendt sets out to revindicate the importance of memory, … a selective reappropriation of the past that can critically illuminate the present, and the value of action, understood as the free and spontaneous intercourse among a plurality of agents mediated by speech and persuasion (D’Entrèves, 101).

This is an important commonplace not of platitude or popular opinion but of Kant and Arendt’s sensus communis of modernity – a public space of understanding sufficiently shared to permit productive contestation. We have already introduced (Chapter 5) Aristotle’s ‘common place’ as against his alleged ‘proper’ place. The common place is that space large enough for more than one occupant to say truly that they are in the same place – a dinner table, a seminar room, a public hall. It is from that platform of memory (rather than the more usual emphasis on thinking in relation to judgement) that he takes his step into a theory of judgement: I want to examine another proposed remedy to the losses incurred by modernity, namely, the exercise of our capacity for judgement, and to reconstruct Arendt’s theory [of] this most crucial faculty (D’Entrève, 101).

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We set out in this work from a study of judgement as deeming and sentencing; in attempting to judge what judgement is we used the ‘Mabo’ legal finding as exemplary. We observed how a long legal memory was necessary in order to maintain the validity in law that disturbed a (relatively) short history of local precedents. The Proclamation of British Sovereignty was made from the edge of a continent almost unknown to the authorities; that required an absolute sense of entitlement. That inordinate (lack of) sense afforded the authorities and ‘settlers’ the momentary power to overlook prior occupation they had already observed; it seems also to have granted (most of) them an absolute power to forget that the dimension of prior occupation of the continent at large was entirely unknown to them. Mabo’s claim to a ‘native’ title could at last be heard because of all that then occurred during the next two centuries. It became possible for six Justices to overlook, without forgetting, that long-established forgetfulness. They overlooked it by looking over it. They looked over it as one ‘looks over’ items in an auction sale to survey them before the bidding. Also they overlooked it as a house overlooks a valley – its windows give on to what lies across in the distance. The Justices were determined to remember what living within that valley had made hard to see. This was not some retreat to the ‘wisdom’ of the passive spectator. A committed involvement in the business of justice in common law makes them critical spectators of the exploitation of the fiction of ‘radical Crown title’ that had deemed those already occupying the land as henceforth trespassers upon it.1 To ask when to forget is already to have undertaken the importance of remembering. It is co-extensive with the question of how and when to remember. Jacques Derrida, also during those same 1990s, judged it timely to attempt, once again, some judgement of the tradition of Marx and Marxism (Derrida 1994). Moved by the frantic rhetoric of Marxism as ‘dead and buried’ after the end of the Cold War, he wondered aloud whether this reiterative denial signifies that a ghost has come back to haunt us. Is it yet time to forget it? Have we negotiated with it so as to allow it to rest, and to allow ourselves finally to let go of its grand promise of justice, peace and prosperity? Derrida thinks that, like Hamlet, we feel we must go to seize the spectre; we demand that it speak to us. Derrida was interested in apparitions that arise within a shared imagination of unresolved conflicts that gives the spectre an object-like status, a thing that revisits as a thought, an image or a startling hallucination as when you see amongst a crowd of faces, someone long dead. Those spectres haunt us about Marx, and the materializations of his ideas in the twentieth century nightmares. There is the iconic Marx – foe of unjust capitalism and inspiration of movements of resistance and liberation. There is Marx himself – the body that lived from 1818 to 1883. Derrida imagines this haunting figure as calling upon us to remain true to his legacy. Also a vast body of doctrine haunts present economic theories that affect to 1 Bain Attwood writes of those who attacked the Mabo judgement as fracturing national identity. What it disturbs, he argues, is the unstable ‘disremembering’ of Australia’s history (Attwood 1996, 100–116).

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be neutral with respect to the values of equality and justice and a life of desire and imagination. All of this may haunt us, too, as a true ideal lost in a mess of detail. The iconic Marx fell finally with the Berlin wall perhaps; from then on declared dead and buried for the twentieth and now the twenty-first century. Marx returns to haunt us as a ghost bursting from that recent secondary interment. The actualities of present capitalism in formally democratic societies stand out, involuntarily, against the high hopes that used to fly first in the name of Marx and then in that of rational capitalist economics. These renewed conflicts haunt the present and there are others to join them. Marx and Marxism have come to be icons of the demonic rather than a high ideal (albeit an impossible one.) The totalitarian intent that was revealed historically within ‘overthrowing capitalist oppression’ now supersedes the aura of ‘From each according to his ability, to each according to his need’. So there is something unresolved for us that can be discussed more clearly now that Marx and Marxism are no longer political, military or intellectual hopes or threats. Are we to regard Marx simply as a significant writer of ideas, now consigned to the (modern) pantheon? Derrida’s playful writing urgently resists that academic neutralization of the ‘Marx effect’. Derrida resists reinstating Marx by that device. Striving to change the world even in revealing the limits intrinsic to understanding it, Derrida’s sentences take on performative dimensions. So what of this Marxian ghost – father of welfare villages designed to house and moderate capitalism? What is this thing that has come to haunt us with a sense of betrayed ideals? Marx’s ghost charges us with sheltering at home – accepting a corrupt state as a permanent normality. Shall we address this ghost? Can it respond? Derrida is revising rather than reviving Marx’s use of theory as a call to arms. Listen to Marx as to a spectre, he says; he is warning us that words significant as spectral become anachronism when taken at face value for our own time. ‘The time is out of joint’, Hamlet laments, astutely. Marx’s spectre speaks as from times past in unsettling words that bear upon the present but cannot instruct it directly. Derrida reads the present meaning of Marx in the feverish declarations that he is dead and buried. A death so much proclaimed must give rise to doubts in capitalist hamlets. Derrida’s response to Marx’s dark spirit hints at a justice beyond deconstruction that haunts us with a hospitality whose limits are indeterminable – as necessary as they are impossible. There are parallels we might draw between political spectres of this sort and those of personal lives. To clarify spectres as political and also as personal, we call upon figures of our personal past to speak – our dead relationships – because of what was never resolved. Derrida’s always partially elusive writings are more useful than directly practical ones. Personal as well as political resolutions are always partial; people and peoples are bound to be partially haunted. It is no singular failure of ours that we must now traffic with

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ghosts, if only to ‘learn at last how to live’, to cite the words with which Derrida opens up to his spectres.2 Remembering, Forgetting, Forgiving3 In Dana Villa’s introduction to his book on Arendt and Heidegger, he comments on Arendt’s view that now the tradition fails to ‘transmit’ to the present: we suffer not from an excess of memory and its enervating effects, but rather from a peculiar forgetfulness. When the medium of remembrance – tradition – dissolves … escape from … forgetfulness seems to reside in … aggressive, critical recovery … [T]he problem is not to recover ancient concepts but … to deconstruct and overcome the reifications of a dead tradition (Villa, 8–9).

Women’s liberation in the 1960s and 70s disclosed the ‘personal as the political’. I want to make use of that idea to ease the language and experience of the personal into the terms of public memory and tradition. I would use the personal both in its own right and as a figure for the political. Remembering has to do with bringing back, iterating, and renovating.4 We remember in order to judge and we must remember to judge – if we are to forgive. To forgive is not to forswear or to forsake judgement. To remember and to forgive are connected negatively in the cliché ‘forgive and forget’. We might strike a different note with ‘forget and forgive’. If you forget first then you lose the chance to forgive. Someone who forgets your wrong before they forgive provides you instant relief but later you may discover that you have not been forgiven. The injury has become infected. Another thought: if someone forgets an injury so easily that might show how little the person cares about what you say or do. You don’t want them boiling their brains or stewing in resentment but you are disturbed that they so easily forget without forgiving – as if what you do has no grip on their mind. Just as speedily, they may forget what you’d done with them that had seemed so good. People do say, ‘I forgot it as soon as it happened’. That is a speech act of forgiveness. Other things being equal, you accept it as your friend’s having found how, instantly, to forgive. They realise you were tired, or tense about something that did not lie between the two of you anyway. Out of affection or respect your short rough remark is properly forgiven in being forgotten by someone who thinks 2  John Morton discusses the value and risks in symbolic incorporation of indigenous culture on the football field and in a popular television series, Heartland. These symbolic dramas are also part of this ‘learning at last how to live’ (Attwood 1996, 117–135). 3  As a counterbalance to the personal as figure for the political, see, for example, Bain Attwood on the impact of a new sense of Australia’s past on political and legal possibility (Attwood 1996, vii–xxxvii). 4  I explore these themes in ‘Remembering “Remembering”’ (Heil 1990, 53–73).

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well enough of you to go on thinking the best. Rapid forgiveness of that sort is other than disguised indifference. Your offensive remark must have been noticed, however, or it could not have been forgiven. Though not recollected as from a later date, the faux pas was recognised and assessed. We say that the response to the event was judged though we need sound no echoes of sitting in judgement. As we forgive, we also forewarn, foreswear, forego, forbear, forecast and forsake; only events forebode, however. Though our demeanour be foreboding, we assign that active verb to the weather and claim the power to forbid, rather. To forbid and to forgive – to give in advance. What do we advance and whose is the advantage? I might make an advance to clear someone’s debt to another, but this might make him indebted to me. If to forgive is to make some gift in advance you might need Derrida’s perfect gift, cleared of all strings attached. The perfect gift is ‘impossible’ to the extent that giving creates a bond and thus an obligation: By its very appearance, the simple phenomenon of the gift annuls it as gift, transforming the apparition into a phantom and the operation into a simulacrum (Derrida 1992, 14).

Imagine someone who says ‘This is purely a gift! I don’t want you to feel any obligation!’ Their protestation imposes still greater obligation. The giver should let go of the gift as if carelessly, letting the gift appear in another’s hands for what it is in itself. Derrida says the detachment can never be pure. I would observe that by ‘wrapping up’ a gift we distance giver from gift. By wrapping it up the giver disconnects; in the unwrapping the receiver makes it her own. The gift’s origin is as if from within the wrapping (Derrida 1992, 14–15). When what we give is forgiveness, what we remember will be no longer what we forgave; we will remember some better part that made forgiving feel alright. To remember what is good is thus a temporal recompense – making up for times lost and lost time – (à la recherche du temps perdu.) Forgiving has the good and the risky consequences of exculpation, amnesty and other annulments but its path veers off that of exculpation and amnesty. To exculpate is to find that no harm was done, or that harm occurred inadvertently. If exculpation is rightly judged there is nothing to forgive, and forgetting is beside the point. Not the same as amnesty, forgiving still has a similar effect. To be forgiven is to be set free of retribution or censure but you may be granted amnesty without being forgiven. We give amnesty when we think that someone faces unreasonable retribution or punishment otherwise, or because only harm will come of pursuing what has been done. The police declare an amnesty from prosecution for owning unregistered firearms to allow weapons to be handed in. In social terms, amnesty as institutional stands in for forgiveness personally. Those given amnesty might not have been forgiven. Someone had the power and judged it better to accept the pariah back within social life. A turn of events may reveal, bitterly, that forgiveness had never been achieved.

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To forgive is not to deny the wrong done. To forgive is no longer to raise what has been done but still you leave it in place as wrong. When you forgive a debt you rule a line under the account but do not falsify the records. The perpetrator makes amends to relieve what was done, but leaves in place the wrong of doing it. To forgive a debt is to be satisfied with less than full restitution but only in Alice’s wonderland would A discharge B’s debt to A by paying it off for B. The forgiving that one makes cannot be a giving back, by the one who forgives, of what was taken from them! To forgive is to afore-give but not as if for someone else who owed the debt. What is given in for-giving and what has to be done in practice is not a simple transaction. Partial recompense may trigger forgiveness but not as a reward for it. To reward someone for good behaviour would fall short of forgiving them. Barter displaces forgiveness and makes the recompense that frees you to forgive hard to define. Though forgiveness can occur within business affairs it is not then only a commercial transaction. Full repayment might ruin your creditor and out of friendship or fellow feeling you choose not to demand it. Forgiveness does not reduce to winding up affairs quickly so as to secure something from the ruins. To forgive is certainly not to whitewash but still you do not inflate how much it costs to forgive. Within close friendship we may speak lightly of the wrong done. In forgiving we want to spare the other’s feelings. This lightening of the issue operates still within a real process of forgiveness; you do not deny the extent of the injury, and you are open about the injury but not as punishment behind a façade. Facing the fact of injury is a strict condition of forgiveness, for you may be tactful and yet not gloss over the affair. To gloss is to foreclose on fully forgiving. It is false generosity. To make the effort to forgive someone is no easy task. To pretend that the issue was ‘not so bad after all’ is to rupture the process. To forgive is to give up – to give up on recrimination and other harsh words. It is to give up on efforts to make the person feel their guilt and suffer shame. Also, since to forgive is not divine, to forgive is to engage in the moral hazard of ‘giving up’ on blame. So you have to judge when and how to forgive. This is evident when you consider forgiving what someone did to another. In concept and in practice this is a particularly awkward. It may have been none of my business to forgive someone for what they did to another but at a certain point I may have to do that. I may find that I cannot forever hold against A his injury to B (one of my friends) even when B will not forgive A. I may finally forgive A anyway, but still not on behalf of B. It is less fraught to apologise on behalf of another for what they have done – you bring a casual acquaintance to a party and he acts abominably.5 But by extension, however, it must be possible to forgive someone on behalf of another – perhaps now dead. You may feel that though the one who offended him has never made amends the other would have finally come to forgive him, and you have to resolve how to treat the offender. 5  It has been put to me that while I may apologise for bringing my (uncouth) friend, it can never be my role to apologise on his behalf for what he said or did. I am not persuaded of this.

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Some systems of thought elevate forgiveness as a virtue in itself – a generosity of spirit above vindictiveness or revenge. Such forgiveness exists in rarefied atmosphere where you cannot think. Imagining that B has died, you forgive A for having wronged him. You come down with a bump when B returns one day, safe and sound. ‘I will never forgive you’, he says, ‘for forgiving A for what he did to me. Where is your loyalty? You cared nothing it. You just wanted to get along with him’. Even if, in the circumstances you still think it was reasonable to have forgiven A, you are forced to realise how wrong it can be to forgive too easily. Particularly when an injury has involved others it is liable to be arrogant to forgive in advance of recompense, apology, and remorse. Such an act of forgiveness may be only an act, deluding the one who offers it. We have been thinking of the daily injuries one suffers at the hands of another – insults, being cheated, slandered, robbed or framed. Acts of immeasurable wrong raise other questions. Adolf Eichmann committed and colluded with crimes we cannot place on a standard scale. He had no remorse for what he had done in obeying and giving orders for the murder of millions of the Jews of Europe. Although Hannah Arendt takes the capacity to forgive as central to personal life and a civilised politics she judges it impossible to forgive Eichmann for what he did.6 To forgive involves being prepared to judge and then to forget. We do eventually forgive people even for their serious crimes that, unlike Eichmann’s, still are measurable – apology, recompense and remorse can still make sense and then we can be prepared to forget. That is the strange thing about forgiving – that we may resolve to forget. This fact is shelved in the curiosity shop of concepts and intentions. To resolve to forget involves bearing in mind precisely what is to be forgotten. You get dizzy thinking about it. It seems like trying to lie to yourself –­ you must lie about the right thing. To succeed in lying to yourself involves being aware that what you tell yourself is not so. Clarity of mind is impossible, whereas to resolve to forget requires a clear and firm mind. How is this possible? When I resolve to forget something I use strategies to keep it out of mind. I do not tell myself, absurdly, that I do not know what I know. This resolve says something about remembering as well as forgetting. Unless I hold it in mind without thinking about it I will have to constantly remember what I had resolved to forget. To promise to forget is therefore a promise to find indirect strategies. If I have forgotten to forget then I shall have to just remember to. Promising to remember involves the same breath of paradox. If I promise to remember then I promise to keep something in mind. I may lose sight of my forgetting and equally I may lose sight of the need to remember. But the possibility of failure exhibits the same possibility of success in remembering or forgetting without having the event already before my mind. 6  Julia Kristeva marks the important tension in Arendt between forgiveness as essential to politics and a judgement that forgiveness can be rightly impossible (Kristeva, 230–40).

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These quasi-paradoxes have a history in Meno’s argument to Socrates that one cannot acquire knowledge: If you do not know something then you will not know when you come across it, but if you do know it then it is too late to acquire that knowledge. Socrates responded that we must have acquired our knowledge before birth – ignorance is forgotten-ness and gaining knowledge is remembrance. We respond that knowledge arrives in degrees and stages – gradually we get familiar with the skills by which we gain knowledge. In gradations of something less than knowledge, we acquire grounds and methods of testing ideas. It is out of these stages that are neither ignorance nor knowing that we come to the stage of knowing. We can resolve to forget because we can take on responsibility for not-doing. To undertake a duty is to resolve to not-forget. We bear it in mind while scarcely thinking about it, being otherwise engaged but still ready to recall it when the time comes. To remind yourself all the time would be so distracting that you would be unready for the occasion. That we can resolve to forget (or not to forget) seems mysterious when we think of conscious control only as current reminders. In order to forget – or to remember – we rely on having acquired a mental set that can stay with us without constant attention. Initially, we remind ourselves from time to time of what would happen if we did not remember. Then it stays in mind. If the brake pedal has failed on your vehicle but you must drive on, you are constantly ready to use the handbrake while fully attending to driving on. Derrida’s discussion of the pure giving of a gift as requiring something beyond a ‘simple non-experience’ of holding on to it involves us in a ‘forgetting of forgetting’. Along with the gift that you forget as having been yours, this forgetting is also a gift that you give in a free style that leaves the recipient free of obligation. Your forgetting has to be a not-acting. Action would return the problem to the same circle. Forgetting is a mode of being - part of the way you are. When we are capable of freely giving a gift we make nothing of it. Our pleasure or relief that the other has what they wanted displaces the thought, ‘It is I who have made all this possible!’ Forgetful giving is a way of being, not a willed good act. That things are is their being, and that is not a being. Rather, there is a thing. In German you might say ‘es gibt’ - ‘it gives’. You don’t ask ‘What is it that gives?’ just as you don’t ask, when it is raining, ‘what is raining?’ In French, one says ‘Il y a’ - ‘It there has’ and again one does not ask what ‘has’. This tacit it that rains for us in English and gives to us in German and has for us in French, invites Derrida’s imagination in relation to the giving of a gift. It is the perfectly tactful giver. If we can make a like pure gift then for the recipient ‘it rains [pennies from heaven]’, ‘it gives [manna]’, ‘it there has [just what I needed]’. If you give me your time, I need not prise it off you, then clutch it to myself. When you spend time with me, there is the time we need. ‘Es gibt Zeit’ (it gives time), ‘il y a du temps’ (It there has time) and ‘there is time’. These impersonal gifts of grammar express the ‘being of time’, if anything does. Derrida develops this play with language. ‘What is “proper” to being and to time?’ he asks. What is ‘properly their own’ that they can ‘give’ and be ‘given’ is discovered within the roles they can play. If time has three conventional

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dimensions of past, present and future then the liveable present that we give time is a ‘fourth’ dimension. Defined conventionally as what lies between past and future the extensionless present is, by a gift of time, extended into a living and liveable space. Such a present is doubly a gift. Out of time that there is, there is the time taken by the King and at the same time, the other time that we give. This play of fours (a French card game) makes one ask ‘[what] one thinks of the hand as dealt’ - this ‘game of words’ about the giving and taking of time. Derrida returns us to the forgetting required in making a gift – the forgetting of oneself in giving up time. We traverse the tricky ground of forgetting the giving. The gift arrives tied up, parcelled. Otherwise, Derrida warns: [T]he simple consciousness of the gift [as such] right away sends back the [self] gratifying image of goodness or generosity. [Consciousness of the gift throws up the] giving-being who, knowing itself to be such, recognizes itself in a circular specular fashion (Derrida 1992, 23).

How can we become able to forget what we banish to the past? Equally, how are we able to remember? We take steps to secure forgotten-ess rather than remembrance and this banishment differs from careless forgetfulness. We aim at forgotten-ness in the cause of forgiveness – or to protect self-image. Initially we spend time going over the event to be forgotten – how cruel or unsettling it would be to harp on about it. We cannot guarantee no glimmer, snatch of thought or involuntary association, but we do promise to banish rather than harbour such thoughts. We divert incipient memories as unjust, disloyal or discomfiting.7 Insofar as we do not have the power to forget or to minimise our recollections, we do not have the power to forgive – though we were sincere in avowing forgiveness and forgotten-ness. We do not have the power to keep all promises we make sincerely and responsibly. In finding that we fail to forget we find that we cannot yet forgive. Someone must deal further with the issue. Equally, since forgiving is unresolved we cannot go to forget about it. So here is the other part of the puzzle of promising to forgive – and thus to forget. The solution lies in a series of small changing steps. We can promise to begin to forget. Forgetting is not like pushing a button. To begin to forget something is to commence a persistent negative action of not remembering. Negative actions – waiting for someone (not going away), being on vacation (vacating one’s mind of work), dieting (not eating fatty foods) – all involve persistence in not-doing. You build a mental set not to be doing that which you have decided to relinquish. Derrida looks into this erasure of the past required when God ‘gives back’ Isaac to Abraham and gives back Abraham his own life that would have been insupportable had he sacrificed Isaac. This ‘return’ occurs in that instant when 7  Stan Spyros Draenos subtly develops Arendt’s ideas on remembrance and retrieval from tradition – what we can do when we accept, as she does, that we have lost continuity with it (Hill, 209–223).

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Isaac’s life has been ‘placed beyond economy’ - when Abraham ‘renounced calculation’ (Derrida 2007, 54–81). As Derrida puts it so neatly, those who ‘demystify’ the religious scene will say that Abraham has ‘played his cards well’ in not allowing God to call his bluff. But this is a useless reading of Abraham’s situation. For Abraham, a Being who knows his every secret has commanded him to commit a terrible act. To think that Being could bluff would be to give up belief in it. And if he gave up belief then he would have no need to proceed with the charade of setting up a sacrifice. The story would fall apart. Derrida points out how this paradox of sacrifice recurs in the new formulation, after ‘Jesus’ (‘Yeshu’ from ‘Yehoshu’a’) came on the scene of Jewish and Roman history. In telling his version of the story some decades after the death of this ‘Yeshu’, Matthew has him say that one should make no public show of one’s good deeds but make a ‘secret’ of them between oneself and God. This instruction replicates the logic of the dreadful ‘secret’ that Abraham kept. God ‘rewarded’ Abraham by sparing his son: there is still a ‘Father which seeth in secret and shall reward [us]’. Derrida is alert to other implications of this story – that we must learn this lesson ‘by heart’. If we are to keep our good deeds secret then we cannot publicly announce, ‘My policy is never to tell about the good deeds I do’. But the paradox of Abraham’s ‘secret’ is perpetuated in this ‘new testament’. It would be an economic strategy to keep our deeds secret in the understanding that God will reward us. Matthew writes down what we readers must then keep secret. Erase his message as we read it, then? Finally, on the importance of not forgetting: I had begun to investigate ‘it’s past history’. Learning to forget is not a unilateral action of fact-avoidance. ‘It’s past history’ is used too much and too early, to whitewash that which has happened, wherever and whenever it happened. If the past is what is earlier than some liveable present, still not every part of the past is past history. Between those who used to be good friends settlement can be straightforward. They can use better times from a shared past as a resource and motive to mend feelings. After the hearing of apologies and the receiving of amends some one of you will spread his or her hands in front with palms open towards the other and say with kindly impatience, ‘Enough already! Past history!’ It is more difficult when friendship has to be created in an atmosphere still infused with bad air from the past. The fact and manner of the invading settlement of Australia from 1788 disturbs all times since then. In that situation, formal justice must come first, always ready in the hope of a friendly hand from either side. For there are those better moments in the past and our gradually lengthening present that might make it possible for justice to be done in friendship. Such better feeling is at least a catalyst for those who have been dispossessed to accept and make use of amends. Remembering is a specific action or event; with firm satisfaction you can say, ‘Yes, I remembered – just in time – that I must leave the house by midday so as to catch the bus and keep my appointment’. To aim at forgetting is also to aim, but not at a specific action or event. Rather, it is a set of mind that rules out the occurrence of events or performance of actions that revive memory. If I were forever to have

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forgotten some injury then, strictly speaking, I could never have the satisfaction of realising that I had succeeded. Ours is not a perfect world of ideal souls. For us demigods it is upon a lesser condition that we satisfy the terms of our promises to forgive and forget. If is enough if, one fine day, we find that more than a year has elapsed without our thinking of what we have forgiven. At that stage, the thought of the injury we forgave can pass away as quickly as it arises. To forgive and to forget is not to have had a lobotomy. Eventually I find that it no longer matters if the thought of what I had promised to forget does cross my mind. At that stage a momentary recollection fails to disturb the material reality of my old promise. It is now a harmless blip on the screen of consciousness when I remember occasionally and inadvertently the bare fact of a past wrong. It is a cog that turns no wheels, as Wittgenstein described one picture of an inner life. The event of the wrong, now forgiven, has indeed become ‘past history’ – sleeping. Still. Ready to be awoken for some new turn at the wheel.

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Index

Absolute, absolution v, x, 4, 8, 31–2, 38, 53, 92, 93–4, 133, 149, 150–56, 159, 161–63, 165, 167, 185–8, 194, 197–9, 202 abstract(ion) 1, 8–9, 91 fn 8, 83, 93, 115–17, 122–4, 129, 132, 140, 166, 180, 195 accomplishment 1, 78, 97, 99, 146, 175 actor, action (activity, reactivity) vii, ix, 2, 4, 5, 8–10, 13, 15, 23, 25–8, 33, 43, 48, 65–8, 74–8, 80–81, 107, 112, 115–6, 118, 122–3, 126, 128–30, 137, 149, 152, 164, 179, 194, 201, 208–210, 216–7 actual, actuality (factual) 58, 84, 97–8, 106, 147, 154, 171 fn1, 191, 203, adventures, adventurism 30, 86, 135, 154, 162–3, 171, 177, 185, aesthetic judgement viii, ix, 3, 4, 13–17, 18–27, 61, 68 fn1, 87, 99, 128 fn29, 129, 140–46, 185 fn15, sense x, 19–21, 32, 137–8, 90, 160, 193 agree, agreeable (disagreement) 7, 18, 19, 22, 24–7, 32, 35–6, 54, 95, 106, 127, 140–42, 166, 197–9 allegory x, 2, 111–15, 124, 131, 134–6, 154–5, 158–9, 162, 185 allusion 13, 156, 159, 162 amnesty 205 anachronism 86, 203 analogy 19, 73, 139 analysis 3, 4, 13, 18, 22–3, 38, 82, 107, 113–14, 121 fn18, 140, 187, 215–17 analytical vii–viii, 69, 115 fn7, 121–4, 130, 140, 142, 145, 187–8 animation (of mind by beauty) 16–18, 21–2, 141–5

a priori 3–4, 17–19, 87, 92, 97, 116, 122, 126–7, 133, 137–140, 146 arguing, argument v, ix, 16, 22–3, 33, 38–9, 40, 47–55, 59, 60, 70, 71, 76, 81–4, 88, 92, 97–8, 99–101, 104–108, 111, 118–19, 125, 127, 129, 133–4, 159–60, 162, 179–80, 187, 208 appropriation 41, 49, 50, 54, 72, 86, 90, 91, 184 fn14, 201 arbiter 65, 94, arbitrary 57, 94, 187 arbitrate, arbitration 57, 94 architecture 116, 122, 163 arrival 8, 13, 36, 39, 152, 175, 196, 208, 209 inferring 97–106, arrogate, arrogance 6, 57, 65, 86, 89, 174, 176, 207 author, authority, authoritarian 30, 35–6, 41, 48, 53, 57, 72, 87, 92, 101, 103 fn2, 121, 125, 163, 190–91, 202 artist, artistry 19, 24, 141, 156, 160–62, 190 autonomy 2, 3, 8, 13, 15, 17, 23, 29, 44, 54–5, 74–5, 77, 81, 106, 120 fn16, 122, 125, 128–9, 133, 140–41, 177, 187, 217 awe (shock) 13, 69, 71, 112, 123 fn20, 127, 152, 159–60 Banality 31–2, 74 betrayal 5, 60, 66, 142, 203 beauty (beautiful) ix, 2, 7, 8, 14–28, 65–6, 73, 79, 87, 121, 128 fn29, 140–46, 181, 216 beginning 3, 10, 13, 41, 48, 92, 94, 98–9, 106, 149, 171–2, 190–91, 200, 209 benevolence 8 bias 47, 59, 161, 175, 184 bigotry 199

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blindness (to reason) 46, 65, 77–8, 87, 103–4, 112–13, 124, 151, 154, 157, 159, 161, 175, 185 bombing 68–72 bridge (phenomenal, noumenal) 14, 81, 126, 135, 138–39 burglary 72–3 Calculation 1, 15, 28, 66, 84, 117, 133, 210 capitalist, capitalism 195, 202–203 cause (project) 60, 68–73, 209 causality 3, 10, 115–17, 122–4, 126–8, 129–32, 137–140, 145, 196, 200, 214 cave (Plato’s) x, 111, 134, 153–5, 159, 171 censors, censorship 136, 160–61 cognitive, cognition vii, 4, 7, 16–18, 20–22, 25–6, 79, 121, 142–5, 187 colonists, colonisation 20 fn14, 37, 38, 40, 41, 47, 48, 55, 76, 103, 171, 185, 215 combat (war, reason and passion) 69, 113 fn3, 115, 118, 152 Common Law (justice in) 37–43, 47, 50, 53–7, 59, 61, 87, 202, 217 commonplace 90, 128, 162, 166, 201 common place 87, 88, 91, 201 commonsense 87, 111, 165 common sense ix, 6, 7, 22, 75, 94–5, 115, 143–4, 179 communication, communicative judgement 60, 75 rationality ix fn3, 7, 17, 19, 20, 58, 97–8, 133 understanding 18, 99, 129, 151 compensation (work, land) 20 fn14, 36, 38, 40–44, 51, 55–6, 59, 90, 135 comprehension, incomprehension 7, 9, 14, 18, 23, 45, 79, 88–9, 93–4, 103, 106, 112, 116–7, 122, 123 fn22, 124–5, 129, 132, 134, 139, 161, 174, 176–7, 179, 180, 196, 198 concept, conceptual 4–9, 16, 20 fn15, 22 fn17, 33, 51, 65–68, 71, 74, 75, 77, 78, 81, 85, 89, 92, 97, 106, 115, 124–9, 131–42, 144–5, 149, 150, 152, 157 fn11, 159, 176, 178, 181, 188 fn2, 189, 191, 195, 204, 206, 215, 216

conception 10, 38, 55, 78, 115, 135, 155, 173, 175, 184, 201, 207 condemnation 5, 29, 30–32, 69, 70, 71, 77 connoisseur 22, 140 ‘containing’ 1, 3, 32, 61, 68, 77, 85, 91 fn8, 115, 120, 133–34, 137, 139, 146, 151, 158, 162, 184 conscious, consciously, consciousness ix, 2, 4 fn3, 18, 19 fn13, 21–2, 46, 66, 87, 102, 143, 151, 152 fn4, 156, 157, 161, 166–67, 185, 192, 196, 208–9, 211 contemplation 2, 4–5, 27, 66, 72, 103, 150, 157, 162 contradiction 77, 138, 150, 159, 180–81, 182, 193, 196 conversing, conversation 3, 16, 45, 67, 84, 99, 101, 114, 120, 150–51, 162, 198 creating, creativity, creator 3, 8, 10, 19–20, 23, 25, 38–9, 42, 46, 52, 56–8, 67, 74, 78, 79, 81, 91, 107, 115, 130, 137, 145–46, 150–51, 155–6, 162, 191–2, 205, 210 crime, crime detection 13, 29, 31–2, 58, 90, 91, 102, 118 fn14, 152, 164, 199, 207 critique v, ix–xi, xiii, 3–6, 9, 14, 18, 23, 74–7, 86, 109, 122, 124–5, 133–4, 137–43, 145–6, 152 fn5, 154, 173, 177, 185, 187, 198, 214–15, 217 Crown (title) 37–57, 59, 76, 87 culture x, 17, 19, 21–2, 39 fn3, 72, 75, 77, 79, 88, 90–91, 99, 106, 159, 163, 172, 174–7, 182–5, 188, 189 fn6, 196, 199, 200, 204 fn2 custom, customary 37, 41, 49, 51–2, 54, 57, 67–8, 135, 159, 164 Decision, decisive 10, 29, 42 fn10, 43 fn11, 44, 47, 51–2, 54–5, 61, 67–8, 78, 93, 216 declaration viii, 4, 5, 9, 14, 25, 26, 33, 35, 37, 39, 40, 42–6, 50, 51, 53, 54, 57, 65, 67, 76, 79, 87, 104, 116, 123, 143, 152, 159, 161, 165, 171, 176, 181, 188, 192, 194, 198, 203, 205 deconstructive, deconstruction 76, 78, 111, 114, 173–4, 176, 189, 191–4, 203

Index deduction 1, 46–7, 56–7, 61, 78, 81, 84, 118, 120–21 dependent, independent beauty 65 judgement 17, 29, 43, 65–7, 73 derogation 155, 161, 197 detachment 2, 5, 6, 32, 73, 83, 111, 177–8, 185, 205 determinacy, indeterminacy (causal) 13, 14, 17, 22, 33, 66–7, 116, 125, 129–32, 138–9, 163 determinate, determinative judgement 4, 5, 9, 23, 37, 44, 47, 49, 51, 56, 58–61, 68, 71, 126, 143, 159, 181, 202 detour x, 120, 135, 185 difference, differing, indifference viii, 1, 2, 5, 13, 15, 16, 17, 19, 21, 23–6, 33, 37, 39 fn4, 47–9, 50, 51 fn1, 52, 54, 56, 58, 60, 74–7, 81, 85, 86 fn4, 87, 89, 90, 93–9, 100–102, 103–7, 111, 118, 123, 125, 131, 140–42, 144, 155, 161, 163, 183, 187, 191, 198–9, 204, 205, 209, 214, 215 discourse (critical) 3, 18–20, 48, 99, 133, 146, 163, 166, 171, 187, 189 fn5, 191 discrimination 6, 37, 44, 50, 53, 54, 59, 69, 135, 136, 146 disillusion, illusion 2, 32, 91, 111, 135, 139, 151–2, 154, 157, 159, 166, 185, 190, 195, 196 dialectic 113, 144–5 dialogue 18, 149, 151, 161, 162, 215 disinterest, interest 1, 6, 9, 22, 24–5, 28, 29, 37, 39, 40, 46, 47, 51–2, 55, 76, 106, 119, 122, 127, 128–9, 140, 146, 152, 162, 175, 184, 188, 195 dogma, dogmatic 5, 9 fn13, 82, 88–9, 92–3, 136, 171–2, 182–4, 187 doubt 45, 51, 55, 92, 134, 151, 154, 164–7, 203 dreams, dreaming 9, 90, 150, 156, 166, 172, 177 duality, dualism 123, 131, 198 Economics 15, 19, 66, 72, 76, 86, 91, 151, 187, 210, 195 fn14, 202–3

221

emotion vii, viii, 14, 33, 53, 67, 80–1, 88, 90, 93, 106, 111, 113, 116, 122, 124, 151, 155, 159, 160, 162 empirical, empiricism x, 9 fn13, 16, 17 fn6, 21, 82, 99, 116, 121, 126, 131, 134 fn3, 141 encoding x, 173, 174–6 English law, custom 40, 43, 48, 87, 208 ‘the guns spoke’ 79 enigma v, 150, 154, 157 enlightenment 14 fn2, 75, 153–4, 155, 200, 213 entrenchment 21, 41, 44, 82, 99 epiphenomenalism 195 epithets 31–33, 66, 68, 152 etiquette 57, 61, 67 exculpation 205 exotic, exoticism 172, 174, 185, 187, 196 experience, inexperience 6, 7, 21, 23, 61, 69, 70, 79, 81, 82, 84, 88, 107, 108, 112, 118, 122, 123 fn21, 129, 137–9, 140–46, 152, 155–6, 164, 166, 174, 182 fn13, 184, 199, 204, 208 Fable 164, 165, 171 fallible, infallible 103, 141, 155 fanatic, fanatical 22, 27, 151 fact, factual, facticity, de facto vii, 4, 6, 10, 14–16, 17 fn6, 23, 26, 28, 31–3, 40–42, 44, 46, 48, 52–3, 55–6, 58, 75–8, 82, 89, 92, 98–9, 100–107, 115–21, 124, 127, 132, 140, 142, 146, 161, 178, 179 fn7, 181, 184, 200, 206–7, 210, 211 faculty, faculties 1–3, 6, 7, 13, 15–18, 75, 137, 139, 146, 161, 201 feeling, unfeeling 6, 19, 23, 26, 31–3, 59, 66, 68, 77, 105–7, 111, 113, 115, 118, 121, 125–27, 131 fn31, 132, 138, 143, 146, 151, 160–62, 182, 197, 206, 210 forgetting vi, x, 93, 155, 166, 182, 201–5, 207–11, 217 forgiving x, 204, 205–7, 209, 211 form, formal ix, x, 2, 8, 9, 20–21, 24, 26, 28, 46–7, 53, 65, 81 fn1, 82, 86, 122, 127–8, 133, 141, 143–4, 149–50,

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155–9, 160–1, 162–3, 171–2, 174, 180–81, 191, 197, 199, 210 free judgement 13, 27, 44–7, 48, 65–8, 73–4, 76, 143–4 freedom in judgement 3, 5, 9, 10, 18, 23, 29, 42–3, 59, 67, 75, 84–6, 88, 121, 131, 133, 137–8, 139–40, 144, 146, 165–6, 199, 201, 205 fundamentals, fundamentalism 3, 10, 25, 39, 54, 69, 122, 125, 188, 199 Gene, genetic 78, 158 ghosts (haunting) 202–3 gifts, giving 193, 205, 208–9 global, globalism 175–6, 179 good, goodness vii, 13, 21, 27, 28–9, 66–8, 79, 74, 77, 80, 118–9, 125, 128, 182, 205, 209–10 good will 8, 9, 106, 138, 208 grant (land, amnesty) 38–9, 44, 47–8, 50–1, 54–6, 205 grounds (grounding) vii, ix, 17, 19, 24–7, 23, 25, 28–9, 31–3, 37, 39, 47, 50, 54, 56–7, 61, 65, 67, 73, 74 fn3, 78, 80–81, 83–5, 87–8, 90–2, 93–5, 97–9, 100, 102–3, 106, 126, 133, 140, 142, 150, 155, 157, 159, 171–3, 174, 176, 178, 182–5, 192, 208–9 gypsies 88 Habitation, non-habitation 41–2, 48, 51, 53, 86 haunting (see ‘ghosts’) High Court (of Australia) ix, x, 36–9, 40–43, 44, 46–8, 50, 52–5, 56–9, 172 fn3, 217 hindsight 75 horses (Plato’s metaphor) 104, 111–14 hors-texte (il n’y a pas de) 189 hypocrisy 70 Ideals, idealism ix, 19, 15, 20, 27, 90, 93, 133, 142, 150–51, 155, 158, 160, 162–3, 171, 173, 177, 179, 185, 188–9, 192, 198, 203, 211 illusion, illusionary (see disillusion) imagerie 171

imaginary 36, 130, 135–6, 166, 192, 213, 215 imagination 6, 7, 18, 25–6, 79, 87, 121, 140–45, 163, 167, 172, 177–8, 182, 196, 202–3, 208, 213 imitation 140, 149, 155–59, 161–2 immediacy ix, 4, 20 fn14, 22–3, 52, 69, 70–1, 108, 130, 137, 157, 166, 181, 194 impasse 3, 8–10, 13, 150, 158 imperative, imperatives vii, 3, 13, 14, 16, 22, 25, 35, 46, 80, 122, 132, 137–8 inclination viii, 20, 102, 111, 14, 115, 118, 126, 128, 130, 197 indifference 5, 93, 179, 205 indigenous, non-indigenous 19, 20 fn14, 37, 39–45, 47–8, 52–4, 56–7, 59, 79, 91, 172, 151 fn2, 190, 192, 204 fn2 individual 1, 4, 9, 15, 18, 23, 26, 32–3, 55, 69, 73, 75, 78, 82, 87, 112, 135–6, 157 inferring v, ix, 3, 51, 60, 78, 81–7, 90, 92, 94, 97–107, 119, 122, 124, 133, 141, 181–3 intellectual viii, ix, 4, 22, 24, 86, 88–9, 90–91, 93, 101–3, 106, 116, 122, 128, 139, 151, 156, 165, 180, 185, 194–7, 200, 203 intelligence 45, 97–8, 107, 111–14, 198 intimacy ix, 2, 195 islands (as metaphor) 135–39, 146, 185 Judgement aesthetic viii, ix, 3, 4, 13, 14, 16–19, 20–27, 32, 68 fn1, 90, 99, 101, 137–38, 140–46, 185 fn15 and intuition viii, 3, 7, 99 as right vii–ix, 6, 8, 13–14, 22–9, 33, 48, 50, 59, 65–9, 71–9, 80, 127–8 essential 16, 39 fn4, 65–6, 142, 146, 165, 172–3 exemplary x, 1, 4, 8, 23, 36, 46–7, 57–8, 60, 128 fn30, 143–4, 202 moral vii, viii, 2, 4, 8, 14, 31, 33, 48–9, 53, 58, 67–8, 71, 73–80, 87, 138, 165 political 1–4, 15–20, 23, 48–9, 61, 98, 159, 204, 213–14, 216

Index reasons for (see ‘grounds’) 16, 25–8, 57, 81–5, 93, 98–9, 105, 115, 121, 141, 183, 199 validity of ix, x, 3, 8, 15–22, 27, 43, 37, 60, 67, 75, 98–9, 133, 202 utterance of vii, 18, 19, 35, 45–6, 74, 85, 93, 136, 143, 146 weight of 22, 24, 38, 41, 46, 50, 58 judicial (reasoning, pleasure) 42, 50, 54–5, 57, 59–61, 216 judicious 165, 182 justification ix, 1, 55, 69–73, 81, 87–8, 94, 100, 124, 136, 142, 160 fn15, 187 Killing 20 fn14, 32, 69, 70, 73, 142, know, knowledge vii, 2, 5, 7, 15, 18, 44–5, 81–5, 87, 89, 90–91, 94, 101, 112, 118, 120, 134, 137, 139, 149–50, 154–5, 161, 163–4, 171–79, 181–5, 188, 192, 196, 200, 207–8 Law, lawfulness (in judgement) 8, 19, 20 fn14, 25, 37, 38–43, 47–9, 51–9, 61, 77–9, 90, 95, 98, 126–9, 137, 144, 159, 217 legislator, legislative 49, 54, 58, 89, 126 fn26, 160, 163, 171 legitimacy 14 fn1, 30, 38–9, 40, 44, 47, 53–57, 59, 77, 85, 89–92, 93–4, 135, 151 liberator, liberation 2, 154–5, 202, 204 local, locale, localism 29, 37, 69, 152, 159, 173, 175–84, 202 logic, logical 3, 16, 41–2, 46–7, 57, 59, 76, 82, 84–5, 93–4, 98, 100, 102, 121–4, 129, 132, 137, 141–2, 149, 151, 158, 180 fn9, 188, 191 fn10, 192, 198, 210 logos 82, 149 Magic, mystique (of judgement) v, 18 fn11, 94, 121, 133, 136–9, 140, 143, 145, 194 Marxism 202–3, 214 mathematics 94, 122–3, 125, 129, 157, 183, 191 fn10 maxims 8, 14, 22, 25, 80, 121 fn17, 126, 129

223

mediation, unmediated (also see ‘immediacy’) ix, 4, 22–3, 69, 108, 130, 137, 155, 159, 181, 185, 194, 201 metaphysics, metaphysical x, 5, 8 fn12, 9, 10, 18, 19, 83, 129, 133, 138, 146, 159, 162–3, 188, 196, 171, 189, 194, 200, 214 mind, open-minded, high-minded, mindless 3–5, 9, 10, 13, 21, 32, 36, 39, 59, 74, 79, 81, 91 fn8, 102, 105, 107–8, 112, 116, 119–22, 128, 130, 132, 145, 150, 156, 161, 164–6, 175, 183, 187, 188 fn2, 198, 204, 207–10, 215, 216, 228 modernity, post-modernity v, x, 15, 69–70, 78, 83 fn2, 89, 114, 133, 141, 156– 7, 162, 163, 171, 176–80, 185–99, 200–201, 203, 213, 215–16 moral imperatives vii, 3, 14, 46, 80, 132, 137–8 moral, morality (see ‘moral judgement’) vii, viii, 2–5, 8–9, 14, 31, 46, 48, 53, 58, 61, 67–8, 71–80, 87, 125–9, 132, 137–8, 150, 161, 164–5, 197, 213 mourning 72, 150, 190–3 multiplicity 161, 178–9 murder 29–32, 45, 191 fn9, 192, 207 myth, mythology 19, 21, 94, 112, 120 fn16, 129–33, 141, 154, 162, 171, 193, 196, 217 Naïve (judgement) 140–41 Native title 36–44, 48–57, 76, 89, 202, 216–17 Nature, naturalist 14, 88, 111, 122, 126, 130, 132 fn33, 135, 138, 145, 166, 189–90, 214–15 Nazi, Nazism 15, 30–33, 66, 152 fn3 natality 3, 10, 13 necessity 4, 94, 97, 133, 143–4, 187 negative actions 112, 209 noise 92, 200 nomad, nomadic, nomadism v, 85–91, 171–86, 189, 213, 215 noumenal 8, 9, 15, 17 fn8, 18, 120, 123 fn21, 126–39, 146 ‘nowhere’ (view from) 174, 179–80, 215

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Obedience, disobedience 8, 23, 33, 60 fn2, 113, 131, 138, 207 object, objective vii, 1, 4, 6–8, 18, 20–28, 59, 66, 68 fn1, 74, 79, 91 fn8, 112, 119, 126–7, 132, 137, 140–43, 144–6, 150, 155–6, 166, 174–80, 184, 187, 195 fn12, 197, 199, 214 observation 7, 16, 27, 42, 74, 81–2, 84, 103–6, 116, 118, 127, 151 fn2, 155, 172, 184, 188, 197–8, 202 order, orderly, ordering viii, 14, 16, 33, 50, 80, 113, 159–64, 190, 207 origin, original, aboriginal ix, 2, 3, 19 fn14, 20 fn14, 21, 35–40, 43, 46, 48, 50–57, 76, 78, 81, 91–2, 99, 104, 124, 138, 140, 155–58, 172, 185, 189, 191–2, 205, 216–18 owning 21, 24, 48, 87, 89, 90, 205 Orientalism vii, 196 Paradox 16, 42, 98 fn1, 191, 192–3, 199, 207–8, 210 partial, impartial ix, 1, 2, 5, 6, 33, 100, 123, 173–8, 182, 184, 190, 193, 196, 199, 203, 206 passion, compassion ix, 32, 111–32, 217 history, ‘past history’ 55, 76, 78, 164, 190, 196, 200, 210–11 parent, parenthood 10, 29, 36, 78–9, 172 particular, particularity 2, 3, 7, 8, 16, 18, 21, 24, 27, 46, 67–8, 70, 76, 88, 97, 99, 123, 143, 154, 161, 172, 179, 180 performance, performatives vii, 6, 97–8, 144, 146, 160, 203, 210 persona, personification, impersonal 3, 23, 70, 115, 150, 162, 191, 208 perspective 70, 161, 181 fn11 phenomenon, phenomenal 1, 3, 8–10, 17 fn8, 61, 97, 120 fn16, 126–9, 131, 133, 136–9, 195, 205, 214 phenomenology 152, 214 physical, physicality, physicalist 10, 71, 78, 84, 91 fn8, 102, 117, 157, 179, 187–8, 190, 198–9 physics 90, 99, 177, 179, 180, 183 play, player, interplay viii, 1, 4, 6, 18, 21, 32, 65, 77, 112–3, 116, 120–21, 123, 130, 140, 143, 144, 146, 153,

156, 161, 165–6, 183, 187–8, 193–4, 199, 203, 208–10 plural, pluralist 4, 5, 15, 27, 85, 89, 179, 187, 201, 215 poet, poetics, poetry x, 90, 140–41, 155–6, 159, 160–62, 171–2 point of view 16, 48–9, 60, 86, 93–4, 100, 137, 145, 155, 161, 171, 174, 179–80, 187 politics ix fn3, x, 16, 18 fn9, 2, 3, 9, 17, 30, 33, 43 fn11, 46, 49, 56, 68 fn2, 83 fn2, 85, 95, 98, 133–4, 159, 160, 177, 190 fn7, 197 fn16, 207 fn6, 213–14, 216 postmodern (see modernism) power, powerless (aesthetic, political, physical) viii, 2, 3, 10, 13–14, 18, 22–26, 38–9, 44, 48–9, 52–9, 68–9, 71, 75, 79, 81, 112–13, 115–26, 130–33, 135, 138–42, 144, 154–5, 162, 174, 183, 202, 205, 209, 216 pragmatics 82 precedents x, 21, 28, 38, 41–7, 50–58, 61, 77, 159, 202 pregnancy 10, 23, 78, 214 prejudice, prejudicial 21, 23, 36, 52, 82, 88, 100, 105, 128, 162, 175, 182–4 prerogatives (Crown) 38, 51, 59 premise, premises v, 55, 70, 81–95, 98–108, 116, 124, 151, 164, 183 presence, presentation, present 6, 70, 75, 78, 120–21, 127, 136, 140–45, 150–53, 185, 194–6, 201–4, 209–10 private, privacy 2, 7, 19, 91, 100 Proclamation (of Sovereignty) 19 fn14, 37–41, 47–8, 52, 55–6, 76, 202 propositions 20, 37, 46–7, 82–5, 90, 93–4, 99, 105–6, 124, 149–50, 180 provision, provisional 2, 139, 149–50, 164–5 prudence, prudential 25, 67, 74–5, 113, 128 purpose, purposiveness 7, 8, 10, 21, 46, 70, 79, 143–5, 152 pure, impure (reason), purity 3, 4, 8, 9, 14, 15, 21–2, 58–9, 65–6, 97, 122–3, 125–42, 145–6, 149–52, 157–9, 162, 189, 205, 208

Index Racial Discrimination Act (Australia) 37, 53, 54 rational, rationality, irrationalism viii, 7, 15–18, 19, 20, 82, 85, 97, 106, 124, 159, 161–2, 193, 200 reason, unreason ix, 3–9, 13–19, 22–6, 58, 65, 78, 81–2, 92–9, 104–6, 111–29, 130–2, 135–9, 162–4 recompense 201–7 regression ix, 81–2, 85, 92–5, 113, 149 rehearsal 92,105–6, 178 relative, relativism 22, 65, 89, 93, 97, 135, 152, 185–8, 197–9 religious, religion 23, 28, 69, 135, 141, 152, 164–5, 199, 210 remembering x, 5, 186, 201–11 resemblance 8, 71, 86, 156, 192, 196, responsible, irresponsible x, 5, 13, 25, 54, 73–4, 78, 81, 138, 185, 197, 208 rhetoric, rhetorical 28, 32, 72–3, 113, 160, 182, 194, 202 romantic, romanticism 19, 134 fn3, 137, 141, 143, 145, 185, 215 Sceptic, scepticism 5, 89, 93, 133, 162–6, 171, 175, 181–2, 196 science 5, 82, 89, 94–5, 99, 107, 122, 132, 136, 158, 178–9, 183, 187–9, 192, 197, 215 seeing a logical connection 102–4 sense, sensibility ix, 18, 23–4, 141–43 sensus communis ix, 15, 201 sentence, sentencing, sentential v, vii, ix, 26, 29–36, 43–6, 65, 84–5, 98, 202, 203 sentiments 14, 42, 49, 53, 56–7, 61, 125, 127, 146 shadows 153–5, 159, 185, 195 shock 39, 56, 69, 71, 192 sites (dwelling) 30, 83, 85–7, 158, 177 skeleton of law 39, 42–4, 54, 77 slavery as within morality 67, 76–7 passion as slave of reason 111, 113, 115–16, 121, 124–5 spectator 1, 5, 6, 15, 48, 154, 165, 196, 202 spectres x, 133, 202–4, 214 speculative (speculation) 45, 83, 105, 129, 132, 137, 139, 166

225

squatting 89 as metaphor 86, 88 ‘sting’ (of reason) v, ix, 111, 114 fn5, 128 substance, substantial 8, 83, 91–2, 156–7, 184 surfaces 67, 88, 114, 145, 155–7 super-sensible (beauty) 14, 138, 145–6 subject, subjective ix, 14, 17, 19, 20–22, 24, 27–8, 32, 47, 68 fn1, 87, 119, 131–6, 139, 142–5, 177 fn5, 178, 182–4, 197, 228 sublime, sublimity 72, 79 Tables, tabling 155–7 Tanakh 191 taste ix, 2–7, 22–5, 121, 133, 137–8, 141–6 technology 10, 66, 78, 189–90 tension ix, 9, 13, 118, 129, 139, 142, 151, 160, 174, 179, 183, 196, 207 fn6 Terra Nullius 20 fn14, 39–42, 54–5, 86, 151, 213, 217 terror, terrorism 30, 68–72, 89, 136 text, textual, textuality 116, 136, 138, 150, 163, 166, 173–4, 185–9, 191–7, 200, 215 theory vii–ix, 1, 4, 16, 18–19, 22, 31, 38, 59–60, 68 fn1, 72–3, 80–83, 88–90, 94, 99, 107, 114–15, 121, 123 fn21, 124 fn24, 126, 129, 131–9, 141, 151, 157, 158 fn12, 173, 180–84, 187–8, 191 fn10, 195–8, 200–203, 213, 217 thinking 1–5, 9–10, 13, 15–16, 24, 28–9, 57–8, 67–8 fn1, 70, 81, 86, 94, 102, 104, 112, 114–15, 124, 128–9, 133, 140, 150–52, 155, 157, 171 fn1, 174, 176–8, 180, 182, 187, 195–9, 201, 205, 207–8, 211 time beneficiary Crown (radical) 38, 47, 50–53, 76 extinguishment 36, 39, 44, 48–50, 53–5 ‘freehold’ 45, 47–8, 94, native 37–44, 48–52, 54–7, 59, 202, 216–7 Title (legal) travel (imaginary) 90, 103, 150–51, 163, 177, 185–6, 196

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totalitarian, totalitarianism 77 fn4, 85, 162, 203 tourist, tourism 90–1, 177–8, 185, 187 tout court (judging) 67, 74 transcend, transcendence 150, 173, 177, 178 fn6, 194, 214 transcendental 31, 76–7, 131, 136, 154, 178 travel (also see ‘time travel’) 69, 85, 90, 103, 107, 135, 139, 149–52, 162–3, 176–7, 182, 185–6, 196 trespass vii, viii, 91, 152, 202 true 20, 22, 28, 82–3, 93–4, 98, 138, 149–50, 154, 156, 164, 166, 180, 182, 184, 188, 194–9, 203 truth 4–5, 16, 20, 82, 93, 124, 135–6, 139, 152–4, 158, 160–61, 196–7, 181 fn10, 187–8, 199–200

logic 82, 84, 101, 104, 106, 116, 119, 134, 180, 199 ownership 50–51, 76, 98 political judgement 17 reason in general 3, 8, 15 fn3 67, 75, 99, 126, 128, 133, 160 science 187, 192 violence 68–72, 112, 134, 161–2, 195 ‘visiting’ (other points of view) x, 60, 171 fn1 vita activa (involvement) 1, 4–6, 25, 71–2, 78–9, 81, 111, 120–22, 130, 145–6, 157, 161, 163, 166, 174, 178, 192–4, 195–6, 202, 207 contemplativa (uninvolvement) 2, 5, 186, 196

Universal connections 27, 37–8, 46, 48, 78, 92–3, 138, 197, 200 implications of judgement ix, 4, 8, 14, 17–19, 22, 25–6, 87, 121 fn17, 122, 126 fn26, 129, 133, 140–46, 152, 176–7, 184 universals (metaphysics) 188, usufructuary (rights to land) 41 utilitarian, utilitarianism 27–29

War, warfare 6 fn8, 32, 53, 67–8, 69–73, 75, 89–90, 171, 175, 185, 200, 213 warrant, warrantable 38, 84–5, 92–3, 98, 101–2, 104, 107, 174, 184, 188 waste land 38–41 will, willing (unwilling) 1–3, 8–9, 13–14, 22, 25, 31, 87, 113–16, 120, 121 fn17, 123, 126, 128–32, 138–9, 167, 176, 190, 195 wooing (agreement in judgement) 7, 16 wrapping, unwrapping (gifts) 195, 205 wrong, wrongs, wrongness vii, viii, x, 2, 6, 13, 14 fn1, 15, 23–5, 28–9, 31–33, 42 fn10, 43, 49, 55, 67–9, 71–4, 76–8, 98, 174, 181–2, 186, 199, 204–7, 210

Validity (invalidity) in aesthetic judgement ix, 17–22, 27 legal judgement x, 37–8, 42–4, 54, 60, 202

Index Names Abraham 60 fn2, 209–10 Allen, Amy 213 Arendt, Hannah viii, ix, 1–10, 13, 15, 16–17, 18, 19, 22–3, 25, 29, 30, 31–3, 60–1, 67, 74–5, 77, 79, 81, 87, 95, 97, 114, 130, 133, 137–8, 141, 150–51, 154, 171, 190, 200, 201, 204, 207, 209, 213–16 Attwood, Bain 39 fn3, 43 fn11, 202 fn1, 204 fn2–3, 216 Augustine 3, 10, 150–51, 162–3 Bartlett, Richard, H. 42, 216 Benhabib, Seyla ix fn3, 19 fn13, 23, 30 fn18 Behrendt, Larissa 218 Beiner, Ronald 3, 7, 15–17, 214 Beardsworth, Richard 197, 213 Benjamin, Walter 137, 213 Berkeley, George 195 fn12 Blackshield, A.R. xi, 217 Blair, Tony 65 Bordo, Susan 177 Brennan (Justice) 36–44, 52–6, 58–60 Calhoun, Craig 138, 152, 190 fn7, 213 Calvino, Italo 190–91, 213 Canovan, Margaret 74, 197, 213 Carnegie, David 173, 213 Cascardi, Anthony 14, 24, 138, 213 Connor, Michael 41, 213, 217 Cook, James 41 fn9, 152 Cornell, Drucilla 8, 9, 152, 213 Costa Lima, Luiz 135–38, 141–2, 146, 213 Crary, Alice 68, 213 Crowther, Paul 185 fn15, 213 Cullinane, Justice, K.A. 218 Dante vii Dawkins, Richard 192, 213 Dawson, J. 36, 41, 49–57 Deane, J. 36 Deleuze, Gilles 171, 213 Derrida, Jacques 21, 60, 103, 112, 188–9, 190, 192–4, 202–5, 208–10, 213–4 Descartes, René 162–7, 181, 214

227

Deutscher, Max 2, 5, 10, 13, 68 fn1, 129, 137, 182, 199, 214 D'Entrèves, Maurizio Passerin 201, 214 Disch, Lisa 152, 171 Dolan, Frederick 159 Eagleson, Robert 216 Eichmann, Adolf 2, 8–9, 16, 29, 31–3, 74–5, 207 Elefante, Fabrizio 18 fn9, 214 Fitzmaurice, Andrew 217 Flew, Janine 39 fn4, 42 fn10, 216 Gaudron, J. 36 Gödel, Kurt 93, 94, 180 fn8 Habermas, Jürgen ix, 17, 19 fn13, 20, 60, 97 Haraway, Donna 177 fn4, 179, 188, 196, 214 Hegel, G.W.F. 15, 81 fn1, 112–13, 124 fn23, 152 Heidegger, Martin 17, 85, 204, 214, 216 Heil, John 189, 204 fn4, 214 Hill, Melvyn A. 209 fn7, 214 Hume, David 9 fn13, 14, 111–126, 129, 131–3, 214–15 Husserl, Edmund 81 fn1, 131–2, 214 Huyssen, Andreas 193 Kant, Immanuel viii, ix, 1–10, 14–17, 18, 19–27, 60, 65, 68, 73, 79, 86–9, 94–5, 99, 106, 113 fn2, 115, 120–22, 125–29, 130–46, 171, 185 fn15, 201, 214, 216 Kierkegaard, Søren 60 fn2, 214 Irigaray, Luce 29, 155 fn6, 214 Kafka, Franz 2, 72 Karpin, Isabel 10, 214 Kateb, George 68, 214 Kompridis, Nikolas 134, 215 Kirsch, Adam 33, 215 Kristeva, Julia 207 fn6, 215 La Caze, Marguerite xi, 37 fn2 Lang, Peter 215 Le Dœuff, Michèle 19, 135–7, 171, 187, 215

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Lennon, Kathleen 193, 215 Lewis, David 181 fn10, 215 Mabo, Eddie 7, 19, 36–49, 50–52, 53–6, 59–61, 77, 133, 159, 172, 202, 216–18, 215 McHugh, J. 36 Mason, C.J. 36 McDowell, John 124, 215 Martin, C.B. 188 fn2 May, Larrie 215 Medlin, Brian 189 Mews, Horst 215 Millán-Zaibert, Elizabeth 215 Morton, John 204 fn2 Muecke, Stephen 90 fn7, 215 Nagel, Thomas 179–80, 183, 215 Nicholls, Daniel 114 fn5 Nicholson, Linda 177, fn4, 176, 193, 215 Nietzsche, Friedrich 191 Nuyen, A.T. 116 fn12, 215 Partington, Geoffrey 217 Pearson, Noel 217 Pether, Penelope J. 217 Plato x, 8, 82, 111–12, 114, 127 fn2, 134, 149, 153–63, 171, 185, 215 Popper, Karl 91, 215 Probyn, Elspeth 177 fn4, 178 Rawls, John 86 fn4, 215 Reilly, Alexander 217 Reynolds, Henry 216–18 Rose, Deborah Bird 79, 190, 215 Russell, Bertrand 191–2, 215

Ryan, Lyndall 218 Ryle, Gilbert 115 fn11, 131, 175, 196, 198, 215 Sharp, Noni 218 Sartre, Jean-Paul 10, 67, 156, 216 Scarry, Elaine 21, 216 Schlegel, Friedrich 141, 215–16 Schaap, Andrew 37, 129, 216 Shakespeare, William 2 Shteyngart, Gary 66, 216 Simic, Charles 70 Socrates 111–14, 149–51, 154, 156, 160–61, 208 Steinberger, Peter, J. 74–5, 98–9, 216 Stephenson, M.A. 216 Strelein, Lisa 217 Tarantino, Quentin 152 Toohey, J. 36 Van Krieken, Robert 217 Villa, Dana 30, 204, 216 Voltaire, 35 Wensing, Ed 217 Wicks, Robert 24, 216 Wilberforce, William 75, 77 Wittgenstein, Ludwig 81 fn1, 134 fn5, 158, 163 fn18, 211, 216 Yeatman, Anna 190 fn7, 193 fn11, 216 Young-Bruehl, Elizabeth 83 fn2, 216 Zolkos, Magdalena 216