Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
27 June 2012

Thoughtlessness and reflective judgment in democracy

We live in the time of the blogosphere, the Social Network and first generation commercial artificial intelligence. Moreover, politically we continue to live in a kind of afterlife of neoliberal democracy, the permissive society and hyper-technological, so-called “late” capitalism.

Under these conditions, everyone is entitled not only to have an opinion, but also to broadcast it across the world. It turns out that democracy is not necessarily an institution of reason, as thinkers like Hannah Arendt and in our time, most prominently, Ronald Dworkin, thought. Rather, democracy is increasingly thought of as an institution of feeling, and moreover, the feelings that count (ie the feelings to which the law should bring the power of coercion) are the feelings of what Hart and Devlin long ago referred to as the feelings of the man on the Clapham Omnibus. My final year students will tell you that this is the ordinary man, but that he need not be the rational man and, when this hypothetical man’s feelings about a matter reaches concert pitch, the law should come to his aid, for if it does not, society may find itself in the dangerous grip of anarchy.

Against this version of the democratic subject, republican thinkers have generally emphasized the importance of reason for democracy. The exemplary thinker in this tradition is Hannah Arendt. For her, the human faculty of reflective judgment ultimately underlies every single aspect of a republican theory of politics. It is in fact implicit in the republican state as an institution of what Michelman calls “law rule” and “people rule”. The very fact that the people adopt a constitution, the constraints of which they adopt as the limits of “people rule”, means that they founded / constituted a link between reason and democracy.

The inverse of reflective judgment (which Arendt on occasion refers to simply as “thought”) consists in what she names as “thoughtlessness”. In The Human Condition Arendt expresses the belief that thoughtlessness is one of the most outstanding characteristics of our time. She defines thoughtlessness as “the heedless recklessness or hopeless confusion or complacent repetition of ‘truths’ that have become trivial and empty.” From this definition we can discern that thoughtlessness manifests in at least three forms: as heedless recklessness, as hopeless confusion or as the complacent repetition of ‘truths’. It is necessary to say two more things about thoughtlessness: one about what its political implications are and second, the specific meaning Arendt attributes to it in her report on the trial of the Nazi super-bureaucrat, Otto Adolf Eichmann. On the political implications of thoughtlessness Arendt is clear. Thoughtlessness is what ultimately fuels totalitarianism. Why is it particularly thoughtlessness that enables totalitarianism? Because thoughtlessness is that which renders or allows evil to become banal, thus unrecognisable, perhaps even unstoppable. This is why Arendt describes the banality of evil literally as ‘thought-defying’.

By removing the ability to stop and think, totalitarianism camouflages its evil in such a way that it is performed in a banal, normalistic fashion and thus becomes less and less permeable, less and less interruptible, less and less recognisable as grotesque and abominable. The specific meaning Arendt attributes to thoughtlessness in Eichmann testifies to its ability to enable totalitarianism. In her report of Eichmann’s trial, she describes thoughtlessness more precisely as the inability ‘to think from the standpoint of someone else’  — a profound lack, then, of the capacity to imagine. In an incisive article on the role of thought in Arendt’s understanding of politics, Thiele writes that ‘imagination … allows us to engage in representative thinking. Herein we gain appreciation of the world of others, not so much the actual thoughts and feelings of others but their possible thoughts and feelings, given their respective standpoints.’ Thoughtlessness is what is required to make someone unaware of what it is that they are doing – it is the ‘most reliable of all safeguards against the words and the presence of others ’.

I think that Arendt’s plea for consideration / thinking – and especially for thinking from the position of someone else, is as urgent in South Africa as it was when she formulated her ideas on the subject in the aftermath of the Holocaust. Of course it is true that we need to learn from reason’s totalizing tendency – an uncritical or unimaginative reliance on reason or a version of reason masking as irrationalism will be inadequate if our goal in South African democracy is to better understand each other’s stories, to learn from each other how to be with one another. Whilst it is impossible to fully represent to the mind what it must be like to be another (especially a dispossessed, oppressed, powerless, wounded, sick, hungry or broken Other), it is the possibility of this impossibility that lies at the heart of an ethics for a post-apartheid South Africa.

This is also why I maintain that the following remains the question of our age (some of you might recognize the author): When will we be ready for an experience of freedom and equality that is capable of respectfully experiencing that friendship, which would at last be just, just beyond the law, and measured up against its measurelessness? O my democratic friends …’

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