Am I over-qualified or under-qualified to comment on cases concerning mad women who might become pregnant. They affect me deeply for reasons that should now be obvious. But is this affective awareness a qualification? It is not self-evident that lived experience of disability makes me better able to criticise the current operation of the law than my other attributes – I was an academic lawyer long before I developed epilepsy.
This is a profound philosophical question and although the literature on judgement has extensively considered the importance of shared cultural experience to the ability to exercise judgement I have not seen the specific issue of experience of loss of decision-making capacity and the consequent ability to evaluate legal judgments debated.
Judging is a faculty we all exercise continuously but its precise nature is contested. It would appear to mean more than something beyond the purely cognitive – the rational deduction of the truth from the application of information to a particular set of circumstances. Judging involves evaluation too. But neither legal nor moral philosophers can agree upon the precise nature of this evaluation: Whether it is a cognitive, affective or imaginative capacity.
Within the philosophical literature on political judgement we can trace a line from Kant’s Critique of Judgement, Hannah Arendt’s application of these ideas to the specifics of political judgement and specifically Ronald Beiner’s hugely influential book on Arendt’s view of Kant and Jennifer Nedelsky’s more recent work on the idea of judgement and especially the idea of the enlarged mentality.
To grossly over-simplify we need to define two ideas when making a critique of judgement: Partiality and imagination. Judgements which are purely partial are weak judgements. Kant stated that to say ‘This house is not beautiful’ purely because one would not want to live in it is irrelevant and no subsequent scholar has seriously challenged him on this point. So if my evaluation of a legal judgment relating to a mad pregnant woman were made on the basis that I would not want that judgment to be made about me it would be a poor secondary judgement (my apologies to my colleague Marko Milanovic – out of sheer laziness I am using the term judgment as a term of art to apply to legal judgments handed down in court, and judgement to apply to the large class of aesthetic, political, moral and professional judgements which we are continuously engaged upon, mainly because it gives me an excuse to link to Silent ‘E’).
One can, of course, have subjective affective responses to houses, or anything else. But one cannot make appeals to the universal; that something is or is not good on the basis of affective responses. Kant argues instead that claims about beauty are a priori claims but they are based not on rationality (or deductive logic) but on an imaginative faculty.
Hannah Arendt then drew heavily upon Kant’s highly specific arguments regarding the role of imagination in the exercise of aesthetic judgement to make the further, highly debatable, argument that political judgement is also founded upon the exercise of imagination. In particular excellence in the exercise of political judgement is exemplified by the ability to exhibit an enlarged mentality, the ability to place oneself in the position of all others when evaluating political claims. This links to the idea that political judgement is exercised within communities, not external to it and her famous aphorism that ‘Men, not man, inhabits the earth.’
This point has drawn criticism because Arendt drew a distinction between judgement as a cognitive faculty and judgement as an imaginative faculty, and yet clearly the exercise of this enlarged mentality relies heavily on one’s ability not merely to imagine but to apply real knowledge to a situation.
If we consider political judgement to reach a decision about how we wish our community to make legal judgments and endorse clinical judgements concerning the treatment of women with mental disorders during labour we can contrast two approaches. A purely cognitive or rationalist approach would want to know what information is required to reach an optimal decision, including what are the values of all of the actors involved. Once transparency on these issues has been reached we can try to build a consensus (I did warn this approach was over-simplified, but for an expansion try Habermas on communicative rationality). Arendt by contrast, took the view, that political judgement is reached within actual communities of people and its exercise involves attempting to imagine the perspectives of those others, not from above but from within the discourse. Impartiality is attained by standing back from one’s judgements and critically assessing how they will appear to supposed others. These possible judgements of others, even if they are not actual judgements are valid bases against which one can evaluate one’s own judgement. In this situation the critical function then is not to establish statistical information concerning the risks of complications during childbirth either for women as a whole, or for a specific woman, and evaluate that against the ethical value we assign to the woman’s right not to be subjected to force. Instead we need to imaginatively evaluate the lived experience of the frightened labouring woman, her family, the healthcare professionals involved, and the interests of her child and imagine how we might communicate about the different interests of those involved intersubjectively.
So being a situated individual, like a potentially mad pregnant woman, obviously does not disqualify one from exercising judgement if one accepts Arendt’s analysis of Kant. However, wherever one is situated, as clinician, lawyer, or mad pregnant woman, one does have to continually try to evaluate one’s judgements to assess whether they meet the criteria of impartiality. Impartiality is therefore an attribute of how we deliberate not an attribute of who we are.
The issue of imagination remains though. Why should imagination be more foundational to the exercise of political judgement than cognition? And is it possible or plausible that people who anticipate a specific legal judgment applying to their own situation may make a different and more nuanced appraisal of that judgment than another, less directly affected observer?
Legal judgment at first order
Legal judgments are distinctively constrained. They are exercised within a tight system of rules, they are not imaginative evaluations of a wide field of possibilities. Judges deliberate upon how specific and bounded rules apply to a specifically chosen set of facts. Rules further apply to the facts which can be taken into account. And as both Hart and Luhmann emphasised, judges have to judge. I can choose to suspend political judgement if I wish. But a judge has no such privilege – once presented with the arguments he must adjudicate.
So the application of arguments regarding political judgement to the act of reaching a legal judgment is not straightforward. Legal judgment performs a function which is distinct from that of political judgement and we should not confuse the two activities.
The argument is sometimes made that we need disabled people to act as judges at first order (the point is reiterated in the UN Committee on the Rights of Disabled People’s Draft General Comment on Art 12 CRPD). Commentary on Arendt’s work has dodged the question of how much of her work on political judgement can be extended to judgments made in courtrooms – I would argue that such judgments, especially where they concern the application of values as foundational as personal and political autonomy, retain a political character, notwithstanding their legal nature. But the normative justifications for arguing that disabled people should be represented within the judiciary tend to be based upon the politics of representation and not a wider argument concerning the nature of judgment itself.
Evaluating legal judgment at second order
I, of course, am not a judge and I am not making a legal judgment when I comment on a case. When I read caselaw on caesarean sections decided in the Court of Protection I am evaluating at second order how a judge operating at first order has made a legal decision within a tightly constrained system of rules which, I hope, I understand well.
The function of second order legal observation is, precisely, to identify the blindspots of first order legal judgments. It does not solve anything in a trivial sense but it allows us to move the discourse forwards. The specific blindspots of our legal system appear to me to be a failure to provide mechanisms empowering women to safeguard their choices during childbirth, and a lack of adequate concern for their privacy when conducting hearings or reporting judgments.
And the virtue of second order critique is that it creates the possibility of imagining the law to be other than it is. I can imagine a legal system that operated to empower the prior autonomous decisions of women, even though I know that the statutory framework that the judge sitting in the Court of Protection actually has to apply does not allow her to make the judgment I would will in an ideal universe.
At this point I think personal experience which extends the possibilities of imagination does matter. I had spent many years working with people who lacked capacity as a result of mental illness and learning disability before I became active as a researcher. And it was a long-time before I either had my first child or developed a condition which compromised my own decision-making capacity. I hope I tried to imagine the experiences of the people I worked with. I am sure my imaginative capacities failed me frequently and I made errors of judgement and would still do so today. But nothing in my life has taught me as much about loss of decision-making capacity as losing it. It is a stupid way to learn a lesson and I would not advocate it to anyone, but it was certainly effective.
So yes, if we conceptualise second order evaluation of the law as a type of political judgement and as an imaginative exercise then first-order experience of mental disorder, pregnancy or legal coercion may all help to qualify us to identify the blindspots of the current law and imagine the law differently.
They are not the only qualifications of course. And they are not a qualification at all if one’s experience is used to advocate for a position which is wholly partial and does not attempt to imagine the lived experience of others, either other women, or the others affected by the consequences of decision reached: family members, healthcare professionals and the newborn infant.
The great tragedy is that the complexity of my affective reactions to childbirth, the deep shame I personally experience in response to my own experiences of psychosis make articulating my perspective on this phenomenally difficult. So that this distinctive contribution to the sensus communis is difficult to define and include within political debates about over who should make decisions about women’s bodies. Statistical information about risk and an analysis of existing caselaw are, understandably, given precedence over my deep intuition that to frighten a person who is already experiencing deep fear must be wrong because the former information is easy to share, and the latter type of expertise is difficult to define and its significance is less certain.
I’m not sure what we can do about that.
But perhaps saying something is better than saying nothing.