Kant and the Common Law: Intersubjectivity in Aesthetic and Legal Judgment

Douglas E. Edlin

doi:10.1017/S0841820900004999

Kant and the Common Law: Intersubjectivity in Aesthetic and Legal Judgment

Published online by Cambridge University Press: 20 July 2015

Douglas E. Edlin

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This article develops some conceptual correlations between Kant’s theory of aesthetic judgment and the common law tradition of legal judgment. The article argues that legal judgment, like aesthetic judgment, is best conceived in terms of intersubjective validity rather than objective truth. Understanding the parallel between aesthetic and legal judgment allows us to appreciate better the relationship between subjectivity and intersubjectivity, the individual and the community, in the formulation and communication of judgments, which combine a personal response and a reasoned determination intended for a discrete audience. The article frames and pursues these themes in relation to four core concepts in Kant’s aesthetic theory: judgment, communication, community, and disinterestedness. Through sustained comparison and application of these concepts in aesthetic judgment and legal judgment, the article provides a conception of judging that more accurately captures the common law role and relationship of the individual judge and the institutional judiciary as integral parts of the broader legal and political community.

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common law judgment aesthetics Kant subjective intersubjective community disinterested objectivity validity

Type: Research Article
Information: Canadian Journal of Law & Jurisprudence , Volume 23 , Issue 2 , July 2010 , pp. 429 - 460

DOI: https://doi.org/10.1017/S0841820900004999 [Opens in a new window]
Copyright: Copyright © Canadian Journal of Law and Jurisprudence 2010

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I am grateful to Linda Meyer and Frederick Rauscher for graciously and generously reading this article and helping to clarify my understanding of Kant, aesthetics, the common law, and the German language. Whatever mistakes remain are mine not theirs.

1. All of my own citations to Kant’s third Critique are to Kant, Immanuel, The Critique of Judgement, trans. by Meredith, James Creed (Oxford: Oxford University Press, 1928)Google Scholar. When I refer to this edition of Kant’s third Critique, I will spell the title as Meredith did. When I refer to the third Critique more generally, I will use the conventional US spelling. I would also mention, if for no reason other than its historical serendipity in relation to this article’s subject, that Meredith was a respected judge who served on the Irish Supreme Court.

2. For reasons of scope and space, I also do not attempt to place Kant’s aesthetic theory in its broader historical context (or in relation to other important theorists such as Lord Shaftesbury, Joseph Addison, David Hume, Edmund Burke or Friedrich Schiller), nor do I address larger questions of aesthetics to which Kant’s answers are contested, such as: (1) the relationship of art to utility, (2) whether aesthetic responses are best conceived as natural or ideal, (3) whether artistic taste is innate or cultivated, and (4) the extent to which beauty (and the capacity to appreciate beauty) signifies or symbolizes morality.

3. Kant was born in Königsberg in 1724 and his major work of aesthetic theory, the Critique of Judgment, was first published in 1790. See Guyer, Paul, “Introduction” in Guyer, P., ed., The Cambridge Companion to Kant (Cambridge: Cambridge University Press, 1992) 1 at 3-4CrossRef Google Scholar. Henry II is often credited with establishing the common law system in England in the middle of the twelfth century. See van Caenegem, R.C., The Birth of the English Common Law, 2d ed. (Cambridge: Cambridge University Press, 1988) at 40–41 CrossRef Google Scholar. Obviously, the historical development of the common law system is a much larger topic than I can address here, and important aspects of that system (reliance on precedent, judicial independence, etc.) evolved over time.

4. Denneny, Michael, “The Privilege of Ourselves: Hannah Arendt on Judgment” in Hill, MA., ed., Hannah Arendt: The Recovery of the Public World (New York: St. Martin’s Press, 1979) at 263 Google Scholar. Hannah Arendt famously argued that Kant’s third Critique was central to an understanding of his broader political theory. See, e.g., Arendt, Hannah, Lectures on Kant’s Political Philosophy (Chicago, IL: University of Chicago Press, 1982) at 4, 61-63 [Lectures]CrossRef Google Scholar; Arendt, Hannah, Between Past and Future: Eight Exercises in Political Thought (New York: Penguin Books, 2006) at 216–19, 237-38 [Between Past and Future]Google Scholar. In addition to what she saw as its inherent philosophical interest and its inescapably political nature, Arendt’s observations on the nature of judgment in Kant’s third Critique are helpful to my argument, as well. Although I do not systematically address Arendt here, her reading of Kant has surely influenced my understanding and I cite her in relation to specific points of contact throughout this article. I should also mention that Arendt’s reading of Kant is itself the subject of ongoing scholarly debate. See, e.g., Beiner, Ronald, Philosophy in a Time of Lost Spirit: Essays on Contemporary Theory (Toronto, ON: University of Toronto Press, 1997) at 184.CrossRef Google Scholar

5. A notable exception is Meyer, Linda, “Between Reason and Power: Experiencing Legal Truth” (1999) 67 U Cin. L. Rev. 727 Google Scholar. Meyer’s discussion is enlightening and is in many ways consistent with and supportive of the argument I make here. My one lingering reservation about her analysis, though, is that Meyer presents the goal of aesthetic and legal judgment as truth rather than validity. For reasons that I will explain, this seems a problematic and ultimately misleading characterization of Kant’s project in the third Critique and of the common law’s conception of judging. For example, Meyer writes, “If the question is really one of truth and not of power, then we must explain how truth can be both shareable and yet subject to dispute …. Kant seems to find a basis for the unity of human experience that does not rely on subjective experiences of the effect of particular objects on particular people, the contingent agreement of inter-subjectivity, nor on universal principles of reason that we would share with all other reasonable beings.” Ibid. at 748, 749 [emphasis added]. Framing the inquiry in terms of truth or power leads Meyer to find her cognitive bridge in the form(s) of rhetoric. I am sympathetic to this effort, and it is shared by others as a way through these problems in the understanding of law. See infra notes 29 and 66. I agree that understanding the nature of legal reasoning helps us to unravel certain perceived problems about the realities of legal indeterminacy However, Meyer’s account misstates Kantian aesthetic judgment, because Kant’s theory does not, as Meyer claims, seek to avoid the subjective experiences of particular people or the central role of intersubjective agreement in the formulation of judgments of taste. Indeed these are indispensable to Kantian aesthetic theory. In my view reorienting our focus from truth to validity helps us to appreciate the authentic operation of subjective experience and intersubjective agreement in Kantian aesthetic judgment and in common law legal judgment.

6. I do not organize this article in accordance with Kant’s four “moments” of a judgment of taste (viz., disinterestedness, universality, purposiveness, and necessity), although I will discuss disinterestedness, universality, and necessity at some length. My principal reasons for eschewing the moments as an organizational structure are: (1) approaching Kant’s work in this way would necessitate familiarity with Kant’s Critique of Pure Reason; and (2) the moments do not seem the most effective means of applying Kant’s aesthetic theory to the common law. On the relationship between the four moments in the first and third Critiques, see Christian Wenzel, Helmut, An Introduction to Kant’s Aesthetics: Core Concepts and Problems (Oxford: Blackwell, 2005) at 10–18 CrossRef Google Scholar; Longuenesse, Béatrice, “Kant’s Leading Thread in the Analytic of the Beautiful” in Kukla, Rebecca, ed., Aesthetics and Cognition in Kant’s Critical Philosophy (New York: Cambridge University Press, 2006) 194 at 195-97 [“Kant’s Leading Thread”]Google Scholar. Although it would take me too far from the focus of this article to address this in detail, I should note that scholars disagree as to the correspondence between Kant’s analytic method and structure in the first Critique and the third Critique. Some (Paul Guyer and Salim Kemal, for example) argue that Kant did not intend for the logical functions of cognitive judgment in the first Critique to be read as tracking the four moments of aesthetic judgment in the Critique of.Judgment. See, e.g., Guyer, Paul, Kant and the Claims of Taste (Cambridge, MA: Harvard University Press, 1979) at 128–31Google Scholar; Kemal, Salim, Kant and Fine Art: An Essay on Kant and the Philosophy of Fine Art and Culture (New York: Oxford University Press, 1986) at 150–51Google Scholar. Others (such as Henry Allison) contend that Kant meant for the moments of aesthetic judgment to be understood as mirroring the table of logical functions of cognitive judgment in the Critique of Pure Reason. See Allison, Henry E., Kant’s Theory of Taste: A Reading of the Critique of Aesthetic Judgment (Cambridge: Cambridge University Press, 2001) at 72–84 CrossRef Google Scholar. For a sustained examination of judgment in Kantian thought, which encompasses the relationship between the first and third Critiques, see Longuenesse, Béatrice, Kant and the Capacity to Judge: Sensibility and Discursivity in the Transcendental Analytic of the Critique of Pure Reason, trans. by Wolfe, Charles T. (Princeton, NJ: Princeton University Press, 1998) [Kant and the Capacity to Judge].CrossRef Google Scholar

7. See Martindale, Charles, Latin Poetry and the Judgement of Taste: An Essay in Aesthetics (New York: Oxford University Press, 2005) at 39 Google Scholar (“Kant maintains that there are no rules for beauty or concepts under which objects can be subsumed as beautiful (if there were, the judgement of taste would be logical, not aesthetic).”). See also ibid. at 23, 29-30. I am grateful to Meghan Reedy for introducing me to Martindale’s work.

8. Stephan Körner, , Kant (New Haven, CT: Yale University Press, 1955) at 175 Google Scholar. In fact, the German term Kant used urteilskraft, is more accurately translated into English as the “power of judging” or the “power of judgment” and many scholars now translate the title of the third Critique this way. For more on analysis of the third Critique beyond its applicability to aesthetics, see, e.g., Bell, David, “The Art of Judgement” (1987) 96 Mind 221 at 231-32.CrossRef Google Scholar

9. Beck, Lewis White, Essays on Kant and Hume (New Haven, CT: Yale University Press, 1978) at 55 Google Scholar (quoting Meredith, “Introduction” supra note 1 at 31 [footnote omitted]. The footnote to this passage in Professor Beck’s book indicates that it appears on page 91 of the Meredith Introduction to the third Critique. This is an error.

10. Paul Guyer views this considered aesthetic judgment as the result of a “double process of reflection both producing pleasure and evaluating it.” Guyer, supra note 6 at 151. There is some dispute about whether these stages of apprehension of a work of art are successive or simultaneous. See, e.g., Burgess, Craig, “Kant’s Key to the Critique of Taste” (1989) 39 Phil. Q. 484 at 485, 491CrossRef Google Scholar. Burgess’s essay is an effort to expose an error in Guyer’s work. According to Burgess, Guyer “assumes that the two types of reflection comprising aesthetic experience are successive” whereas Burgess argues that they occur simultaneously. For ease of ex Pression, I will sometimes describe the process of aesthetic judgment as though it occurs sequentially But this should not be read as an endorsement of Guyer’s view on this subject. For my purposes, the important point here is that Burgess and Guyer agree that the feeling of pleasure engendered by contemplating a beautiful object is a consequence of (not a precursor to) the judgment that the object is beautiful.

11. See Kant, supra note 1 § 9 at 57 (“Hence it is the universal capacity for being communicated incident to the mental state in the given representation which, as the subjective condition of the judgement of taste, must be fundamental, with the pleasure in the object as its consequent.”) [emphasis added]. See also ibid. at 58-59 (“[T]his purely subjective (aesthetic) estimating of the object, or of the representation through which it is given, is antecedent to the pleasure in it …”).

12. See Eva Schaper, “Taste, Sublimity, and Genius: The Aesthetics of Nature and Art” in Guyer, supra note 3 at 375 (“[N]ot only I, but every subject of experience standing in the same relation to the object would feel the same, and further, have the same justification for having such a feeling in virtue of sharing the same structure of mentality …. We rely on our innermost feelings of pleasure alone when estimating the beautiful—an aesthetic judgment ‘is one whose determining ground cannot be other than subjective’ (§1, 5:203)—and yet we claim for the deliverances of taste a suprapersonal import. We believe it to be binding for all subjects and not merely for the one on whose experience it is based.”) (quoting Kant, supra note 1) [emphasis in original].

13. See Crawford, Donald W “Reason-Giving in Kant’s Aesthetics” (1970) 28 J. of Aesthetics and Art Criticism 505 at 506-507CrossRef Google Scholar (“The pure judgment of taste is based on a feeling of pleasure, but this feeling is occasioned not by mere sensation but by the contemplation of, or reflection upon, the form of that being considered—by a consideration of whether it is suitable for cognition in general …. Although the pleasure resulting from the awareness of this purposiveness of form is subjective, the awareness itself must be intersubjective as a necessary condition for communication … and hence there is a basis for the universal validity of judgments of taste.”).

14. See Kemal, supra note 6 at 157-58, 166. Kemal also mentions a third characteristic, necessity, which is the claim that other future judges of an object should concur with my judgment of it. I discuss this in detail infra at notes 32-38, 53-56, 73, 77-80 and accompanying text.

15. See Paul Guyer and Henry Allison, “Dialogue: Paul Guyer and Henry Allison on Allison’s Kant’s Theory of Taste” in Kukla, supra note 6 at 129 [“Dialogue”] (“[F]eeling for Kant plays an essential judgmental role. Indeed, this is the only way in which I can understand the Kantian conception of an ‘aesthetic power of judgment.’ Thus, in the very first section of the third Critique, Kant states explicitly that the feeling of pleasure or displeasure ‘grounds an entirely special faculty for discriminating and judging.’ In short, … Kant is committed to the view that in a judgment of taste one judges through one’s feeling.”) (quoting Kant, supra note 1 § 1) [emphasis in original].

16. I do not address the question whether the capacity to make aesthetic judgments is an innate human trait or a cultivated and refined faculty. For my purposes, whichever answer one gives to this question, Kantian aesthetic theory requires that this capacity is shared by other potential judges of the artistic object to whom the judgment of taste is communicated. Kant sometimes refers to this shared capacity as a “common sense (sensus communis).” See Kant, supra note 1 § 20 at 82. For the different uses Kant makes of this term, see Kemal, supra note 6 at 181-86, 196-214, esp. at 184 (“the common sense is both the feeling shared and the ability to judge that the feeling is shared.”) [emphasis in original].

17. See infra note 76.

18. See Stearns, Maxwell L., “Standing Back From the Forest: Justiciability and Social Choice” (1995) 83 Cal. L. Rev. 1309 at 1376.CrossRef Google Scholar

19. See Bell v. Thompson, 545 U.S. 794 at 830 (2005) (Breyer, J., dissenting).Google Scholar

20. See Edlin, Douglas E., Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review (Ann Arbor: University of Michigan Press, 2008) at 114–19CrossRef Google Scholar. For more on the value of dissent as a part of public discourse, see Shiffrin, Steven H., Dissent, Injustice, and the Meanings of America (Princeton, NJ: Princeton University Press, 1998).Google Scholar

21. The concept of freedom (of the individual as a self-legislating and autonomous agent) is central to much of Kant’s work in the three Critiques. See, e.g., Guyer, supra note 3 at 20-21. Although I cannot possibly engage with the entire scope of Kantian freedom and autonomy in relation to aesthetic judgment or the common law, I do want to emphasize one aspect in particular. Kant understood freedom—or, more precisely, autonomy—to require that individuals may formulate their judgments in the absence of external Pressures and through the exercise of their own reason. This conception of freedom fittingly describes the position and action of common law judges. Cf. Meld Shell, Susan, Kant and the Limits of Autonomy (Cambridge, MA: Harvard University Press, 2009) at 110–12CrossRef Google Scholar. The common law expects judges to bring their own reason and experience to the judgments they make and the common law tradition protects judges from external Pressures in the course of reaching their decisions. See infra notes 24-25 and accompanying text.

22. Geyh, Charles Gardner & Van Tassel, Emily Field, “The Independence of the Judicial Branch in the New Republic” (1998) 74 Chi.-Kent L. Rev. 31 at 31Google Scholar. See also Vanaskie, Thomas I., “The Independence and Responsibility of the Federal Judiciary” (2001) 46 Vill. L. Rev. 745 at 758-59Google Scholar. Consistent with this article’s argument, discussions of decisional independence are usually framed in terms of impartiality, not objectivity. In addition to the quotation from Geyh and Van Tassel, see, e.g., Pryor, William H. Jr., “Not-So-Serious Threats to Judicial Independence” (2007) 93 Va. L. Rev. 1759 at 1765Google Scholar (“decisional independence, that is, the ability of an individual judge to decide each case fairly and impartially based on the facts and law.”); An Independent Judiciary: Report of the ABA Commission on Separation of Powers and Judicial Independence (Washington, DC: American Bar Association, 1997) at 5.

23. See MacCormick, Neil, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (New York: Oxford University Press, 2005) at 277 CrossRef Google Scholar (“[T]here is no point in offering an argument unless it tries to show something, to show at least why some opinion or opinions are legally better or sounder than others …. No one has a judgement other than his or her own to apply to these questions and the result reached can only be a matter of that person’s judgement …. That judgement, however, is one about the possible grounds of rightness.”). MacCormick indicates that this form of argumentation implies a belief in “objective interpersonal criteria of legal soundness.” Ibid. While I believe the word “objective” is problematic in this context, I agree entirely with MacCormick’s view of the personal and interpersonal nature and evaluation of legal judgments.

24. The provisions for life tenure and fixed salaries in the US Constitution are the best known example here. See US Const., Art. III, § 1 (“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensations which shall not be diminished during their Continuance in Office.”). These provisions of the US Constitution incorporated principles of England’s Act of Settlement. See Act of Settlement, 1701 (U.K.), 12 & 13 Will. 3, c. 2, § 3. See also Hamilton, Alexander, The Federalist Nos. 78-79; Holdsworth, William S., A History of English Law, vol. 6, 3d ed. (London: Methuen & Co., 1945) at 234, 514.Google Scholar

25. As I discuss below, this aspect of judicial independence requires the courts to maintain their institutional independence by defending their decisional autonomy. See Geyh, Charles Gardner, When Courts and Congress Collide: The Struggle for Control of America’s Judicial System (Ann Arbor: University of Michigan Press, 2006) at 9 CrossRef Google Scholar. Cf. Committee on Long Planning, Range, Long Range Plan for the Federal Courts (Washington, DC: Judicial Conference of the United States, 1995) at 8 Google Scholar (“Although the autonomy to make impartial decisions is at the heart of judicial independence, the concept extends further …. The federal court system must continue to be in control of its own governance.”).

26. See, e.g., Jaffe, Louis L., English and American Judges as Lawmakers (Oxford: Oxford University Press, 1969) at 21 Google Scholar (“A judiciary which is gagged or has the sense of being gagged in one area may well be gagged in all. The judge should have a sense of moral freedom, a sense of independence in the service of justice. We cannot look to him to resist abuse of power if he is made to feel impotent.”). The importance of the individual judge’s perspective within her institutional role as a judge also helps to differentiate the judiciary from the legislature. Jeremy Waldron argues that “Kant does not have a robust, participatory image of politics; the supersession of individual judgments of right by the centralized deliverances of a civil legislator, in his scheme of things, might involve a decline in genuine ‘omnilateralism.’ He does not claim for positive law that it actually takes account of everyone’s circumstances or everyone’s point of view The virtue of positive law resides in its univocality, its power, its being put forward in the name of the whole community ….” Waldron, Jeremy, “Kant’s Legal Positivism” (1996) 109 Harv. L. Rev. 1535 at 1560CrossRef Google Scholar. There are several problems with Waldron’s reading of Kant here, but I will focus on only one. A central value of looking to the Critique of Judgment for Kant’s account of judging, and for relating his account to the common law, is that it helps us to see more fully the differences between judges and legislators in individual responsibility and institutional function. Leaving aside Waldron’s assertion about Kant not having a participatory image of politics (which Arendt’s reading of the third Critique leaves seriously in doubt), his claim that a centralized legislature’s legal pronouncements demonstrate (in Kant’s view) the “virtue of positive law” due to its univocal pronouncement on behalf of the community can be, at best, only partially accurate. Judicial decisions and legislative provisions differ in any number of ways, including the familiar observation that judges must justify their judgments with respect to legal sources and processes, while legislators need not do so. Moreover, and more directly responsive to Waldron’s point, the virtue of legislated positive law may be its univocality and practical resolution of contentious political and moral questions, but the virtue of positive law made via an adjudicative process is precisely that it requires judges to consider arguments from multiple points of view, including their own, before communicating their understanding of the law’s meaning to the community. Individual judgments are not superseded by generalized deliverances to realize their value as legal pronouncements; individual judgments are the individual judge’s and the judicial institution’s contribution to the community’s positive law.

27. See Geyh, supra note 25 at 9 (“Thinking about judicial independence with reference to judges as individuals highlights the role independence plays in judicial decision making …. [I]f we want judges to decide cases on the basis of facts as they find them and law as they construe it to be written, we must insulate them from external influences that could corrupt their integrity or impartiality—hence the need for ‘decisional’ or ‘decision-making’ independence.”).

28. Cf. Arendt, Between Past and Future, supra note 4 at 217 (“The power of judgment rests on a potential agreement with others … even if I am quite alone in making up my mind, in an anticipated communication with others with whom I know I must finally come to some agreement. From this potential agreement judgment derives its specific validity …. [Judgment must liberate itself … from the idiosyncrasies which naturally determine the outlook of each individual in his privacy … but which are not fit to enter the market place, and lack all validity in the public realm.”).

29. For more on this point in relation to an aesthetic community, see Kemal, supra note 6 at 159 (“[W]e need criteria by which the success of our actual judgements is assured. And Kant proposes that we assess whether particular justifications are successful, and our preferred subjective responses universalizable, by considering whether others can gain our experience. As to justify an aesthetic judgement is to enable another subject to gain the same experience, a successful judgement must also be one that is communicated. Here, we rely on … a regulative ideal of satisfactory communication, and by means of this ideal seek to ensure the success of our actual particular aesthetic judgements.”) [emphasis in original]. See also infra note 60. The concept of universalizability is another important link between Kantian aesthetic judgment and common law legal judgment. See MacCormick, Neil, Legal Reasoning and Legal Theory (Oxford: Oxford University Press, 1978) at 84, 86, 98-99, 214-15Google Scholar; MacCormick, supra note 23 at 99, 146, 147, 149-51. And universalizability also famously serves as a foundation for Kantian moral theory through the categorical imperative. See Kant, Immanuel, Groundwork of the Metaphysics of Morals, trans. by Gregor, Mary (Cambridge: Cambridge University Press, 1998) 4:421 at 31Google Scholar (“There is, therefore, only a single categorical imperative and it is this: act only in accordance with that maxim through which you can at the same time will that it become a universal law.”) [italics deleted]. (Of course, Kant actually offered more than one formulation of the categorical imperative.) For more on the forms and processes of communication in relation to a legal community, see Patterson, Dennis, Law and Truth (New York: Oxford University Press, 1996) at 51 Google Scholar (“Assertions in law are claims the truth of which are vindicated by intersubjective (not mind-independent) justificatory criteria …. The forms of argument are the grammar of legal justification—the way lawyers show that propositions of law are true or false. Apart from these forms of argument, there is no legal truth.”). To some (myself included), it seems problematic that Patterson describes the goal of his book as determining claims of “truth” in law. See, e.g., Halpin, Andrew, Reasoning with Law (Oxford: Hart, 2001) at 140–41Google Scholar (“Patterson does not demonstrate that from forms of argument that are successful we derive conclusions in terms of truth. Indeed his emphasis in Law and Truth on the roles of persuasion and commendation in legal argument would suggest otherwise.”) [emphasis in original]. While I share this concern about Patterson’s way of stating the goal of his project, his references to the forms of legal argument and to the necessity of intersubjective evaluation as predicates for legal judgment broadly support the argument made here.

30. Körner, supra note 8 at 183.

31. Ibid. [emphasis in original]. For Kant’s own articulation of this point, see supra note 1 § 7 at 52 (“With the agreeable, therefore, the axiom holds good: Every one has his own taste (that of sense). The beautiful stands on quite a different footing. It would on the contrary, be ridiculous if any one who plumed himself on his taste were to think of justifying himself by saying: This object … is beautiful for me. For if it merely pleases him, he must not call it beautiful…. [W]hen he puts a thing on a pedestal and calls it beautiful, he demands the same delight from others. He judges not merely for himself, but for all men, and then he speaks of beauty as if it were a property of things. Thus he says the thing is beautiful … he demands this agreement of them [other judging subjects]. He blames them if they judge differently, and denies them taste ….”) [emphasis in original]. See also ibid. § 9 at 59 (“In a judgement of taste the pleasure felt by us is exacted from every one else as necessary, just as if when we call something beautiful, beauty was to be regarded as a quality of the object forming part of its inherent determination according to concepts; although beauty is for itself, apart from any reference to the feeling of the Subject, nothing.”) [emphasis added].

32. See Longuenesse, “Kant’s Leading Thread” in Kukla, supra note 6 at 201.

33. Kant, supra note 1 § 8 at 55.

34. See infra note 92.

35. Kant, supra note 1 § 8 at 54-55.

36. Ibid. at 55. See also ibid. § 6 at 51 (“Accordingly he [the judge] will speak of the beautiful as if beauty were a quality of the object and the judgement logical (forming a cognition of the Object by concepts of it); although it is only aesthetic, and contains merely a reference of the representation of the object to the Subject ….”) [emphasis added].

37. Cf. Kemal, supra note 6 at 317, n. 5. It is, of course, more complicated than this. According to Kant, cognitive judgments are objective in the full sense that they may be determined to be true or false, and they are also intersubjective in the sense that they may be communicated and they carry a claim to assent by other judging subjects. Aesthetic judgments share intersubjectivity with cognitive judgments (in terms of their communicability and claim to universality) but they are not—and this is the point I wish to emphasize—objective (i.e., they depend for their validity on subjects’ shared responses and capacities of response rather than on empirical claims and falsifiability). For an excellent discussion of the nuanced comparisons and contrasts between cognitive and aesthetic judgments, see ibid. at 161-70.

38. Perry, Stephen R., “The Varieties of Legal Positivism” (1996) 9 Can. J.L. & Juris. 361 at 369-70CrossRef Google Scholar. See also John Gray, Chipman, The Nature and Sources of the Law (Aldershot, UK: Ashgate/Dartmouth, 1997) at 147 Google Scholar (“[I]t is not true that we can trace historically the development of theological, philosophical, or scientific truths in the utterances of successive thinkers; what we can trace is the development of human knowledge and belief of those truths; but the truths themselves are entirely independent of human knowledge and belief …. So the laws of light do not depend upon the ideas of Sir Isaac Newton or any other physicist with regard to them. ‘We do not infer that philosophers make the laws of nature; how then can we infer that judges make the law of the land?’ is what Professor Hammond says …. Because the laws of nature are independent of human opinion, while the Law of the land is human opinion.”); Grossman, Joel B., Lawyers and Judges: The ABA and the Politics of.Judicial Selection (New York: John Wiley & Sons, 1965) at 214 Google Scholar (“The products of scientific decision are open to verification by accepted methods. Its premises are acknowledged, and its results are empirical. But the judicial decision is the product of a greater array of forces, its premises are often inarticulate, and its results are not similarly verifiable.”); Dworkin, Ronald, Justice in Robes (Cambridge, MA: Harvard University Press, 2006) at 152 Google Scholar (“Some of our concepts are governed … by an entirely different set of background assumptions: that the correct attribution of the concept is fixed by a certain kind of fact about the objects in question …. What philosophers call ‘natural kinds’ provide clear examples …. Are the political concepts of democracy, liberty, equality, and the rest like that? Do these concepts describe, if not natural kinds, at least political kinds that like natural kinds can be thought to have a basic ingrained physical structure or essence? Or at least some structure that is open to discovery by some wholly scientific, descriptive, non-normative process? Can philosophers hope to discover what equality or legality really is by something like DNA or chemical analysis? No. That is nonsense.”). Dworkin goes on to draw an analogy between natural kinds and political concepts, ibid. at 154-55, which for purposes of this discussion I will not address.

39. See Beck, supra note 9 at 168, 170 (“[U]nless there is some standard for assessing a judgment, that is to say, unless the judgment first is ‘necessary’ in contrast to ‘arbitrary,’ the judgment cannot be said to be right or wrong …. Error in taste arises from sinning against the conditions of aesthetic validity …”) [emphasis in original].

40. See, e.g., Kemal, supra note 6 at 168; Guyer, supra note 6 at 9.

41. Beck, supra note 9 at 169.

42. For example, imagine a case in which the law dictates that the plaintiff should prevail and a judge decides in the plaintiff’s favor not on the basis of the evidence or the law but instead out of a fondness for the plaintiff’s necktie.

43. See Guyer, supra note 6 at 148-51. For more on this point, see Kemal, supra note 6 at 163, 164, 165 (“[Concepts are used to make objective judgements—which can be true or false, depending on whether they correspond to the way the world is. As the truth of a judgement depends on its agreement with an object, in an important sense agreement with other subjects does not provide objective judgements with any greater validity …. Validity does not depend on the existence of other individuals, but has consequences for their judgements on the same objects in that it compels their agreement …. In all these features, aesthetic judgements differ significantly from cognitive ones. And accounts of Kant’s aesthetic theory are likely to be mistaken where they try to apply the epistemological model of the First Critique too quickly to the Third Critique …. [W]e must treat the subjectivity, autonomy, basis in feeling, and intersubjectivity of actual aesthetic judgements as recommendations and require a distinctive necessity of them—one gained through cultural development.”). Just to follow up on a point raised above in note 6, even those scholars who believe the structure of aesthetic judgment in the third Critique should be read as tracking the logical functions of cognitive judgment in the first Critique agree that the distinction between objectivity and intersubjectivity holds in relation to Kant’s approach and argument in the Critique of Pure Reason and in the Critique of Judgment. See Allison, supra note 6 at 77 (“[A]n aesthetic judgment is a judgment, and therefore necessarily has a scope. But, once again, since it is an aesthetic judgment, its scope or quantity cannot be understood according to the model of the logical quantity of a cognitive judgment about objects (“All S are P”), but must rather concern the sphere of judging subjects to whom the feeling is applicable. In short, as Kant argues … the universality of a judgment of taste, as an aesthetic judgment, can only be a subjective universality. Furthermore, even though the judgment of taste has a subjective basis and cannot be quantified over objects, it ex Presses an evaluation of an object or its representation …. [T]he relation here differs markedly from its logical counterpart, since it holds between the feeling of the judging subject and the object judged ….”) [emphasis in original]. And for their part, scholars who argue for the differentiation of cognitive and aesthetic judgments also concede that these judgments should be recognized as, in certain respects, “complementary to each other in culture.” Kemal, supra note 6 at 151; see also ibid. at 268.

44. Guyer, supra note 6 at 149 (quoting Kant, supra note 1 § 8). See also Longuenesse, Kant and the Capacity to Judge, supra note 6 at 168-69 n. 4 (“[According to Kant, … for them [aesthetic judgments] we claim subjective, although we make no claim to objective [,] universality and necessity.”) [emphasis in original].

45. See Kant, supra note 1 § 9 at 59 (“[W]hen we call something beautiful, beauty was to be regarded as a quality of the object forming part of its inherent determination according to concepts; although beauty is for itself, apart from any reference to the feeling of the Subject, nothing.”). This indicates that Kant did not mean to describe or ascribe beauty as an objective quality in any “mind-independent” sense, which means that beauty is not something that exists in an object irrespective of our perception and evaluation of that object (in the way that, for example, an object’s chemical composition does). For more on the relationship of objectivity to mind-independence, see Kramer, Matthew H., Objectivity and the Rule of Law (New York: Cambridge University Press, 2007) at 3–14.CrossRef Google Scholar

46. See Cohen, Ted & Guyer, Paul, “Introduction” in Cohen, T. & Guyer, P., eds., Essays in Kant’s Aesthetics (Chicago. IL: University of Chicago Press, 1982) at 12 Google Scholar (“The statement ‘x is beautiful’ is deceptive, then, insofar as it may seem to signal an underlying logical (objective) judgment, but Kant’s deep and radical idea is that there is no deception whatever in using the statement, for using it is the only way to say what one wants to say about it. The form of words may seem to be appropriate only if one purports to say something ‘objectively’ true about x, something which has a genuine contradictory, but it is in fact justified whenever one refuses the disagreement of others who judge about x …. Kant is the first to formulate the point precisely, in this way: one says ‘x is beautiful’ instead of ‘x pleases me’ or ‘I like x‘ just when one wants to make a judgment with more than personal import.”) [emphasis in original].

47. See infra notes 116-21 and accompanying text.

48. See, e.g., Kant, supra note 1 § 6 at 16-17. And, of course, Kant called the first book of the third Critique the “Analytic of the Beautiful.”

49. Here I may be extrapolating from Kant’s theory in a way that diverges from his own view It is not clear that Kant himself would have seen artistic objects as succeeding when conveying a sense of something other than beauty.

50. Cf. Dillon v. United States, 184 F.3d 556 at 566 (6th Cir. 1999)Google Scholar (“[W]e are not at liberty to act as free-wheeling chancellors of old riding roughshod over rules that in our opinion are inequitable. The rule of law requires that such a change come from either Congress or the Supreme Court, which I in fact would urge be done. In the meantime, I agree with the wisdom of President Ulysses S. Grant’s statement that ‘the best way to get rid of a bad law is to enforce it.’”) (Gilman, J., dissenting). President Grant’s precise statement, to which Judge Gilman refers, is from his first inaugural address: “I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.” (March 4, 1869).

51. See generally Allan, T.R.S., Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001) at 249–50Google Scholar; Anastaplo, George, The Constitution of 1787: A Commentary (Baltimore, MD: Johns Hopkins University Press, 1989) at 3, 135Google Scholar; Soper, Philip, A Theory of Law (Cambridge, MA: Harvard University Press, 1984) at 55, 64CrossRef Google Scholar; Shklar, Judith N., Legalism: Law, Morals, and Political Trials (Cambridge, MA: Harvard University Press, 1964) at 117 Google Scholar; Kress, Kenneth J., “Why No Judge Should Be a Dworkinian Coherentist” (1999) 77 Tex. L. Rev. 1375 at 1410Google Scholar; Adler, Matthew D., “Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty” (1997) 145 U. Pa. L. Rev. 759 at 784-85.CrossRef Google Scholar

52. A complicating factor here is that aesthetic judgments are evaluations of artistic objects, but legal judgments are not solely evaluations of existing legal sources. A legal judgment (in the form of a judicial decision) is itself also an independent source of law.

53. Guyer, supra note 6 at 71.

54. See MacCormick, supra note 23 at 277 (“The kind of reasoning which goes forward in legal decision-making, legal argumentation, and indeed in legal thought in all its forms and levels … proceeds under a pretension to correctness, an implicit claim to being correct …”) (citing Alexy, Robert, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (Oxford: Oxford University Press, 1989) at 104–08, 214-20).Google Scholar

55. On the provision of supportive reasons in Kantian aesthetic judgment, see Crawford, supra note 13 at 508, 509. On the provision of supportive reasons in the common law tradition, see infra note 76.

56. Kemal, supra note 6 at 87, 88. See also infra notes 60, 103.

57. Barbara Herrnstein Smith’s excellent discussion of “the unquiet judge” relates well to the discussion in the text. See Smith, Barbara Herrnstein, Belief and Resistance: Dynamics of Contemporary Intellectual Controversy (Cambridge, MA: Harvard University Press, 1997)Google Scholar c. 1. I cannot do justice to Smith’s account here. Very briefly stated Smith argues that the absence of a commitment to objectivist thought does not in any way disable normative claims, convictions, and justifications. Objectivists, Smith says, frequently assume that non-objectivists cannot make normative judgments of value (because they have no external basis on which to ground their conclusions). Non-objectivists are urged to (and often do) retreat to postures of quietism—the abstention from making value judgments—as a result of their rejection of objectivism. Smith’s point, which supports and reinforces my argument, is that a rejection of objective truth as the goal for judgment does not entail an incapacity to judge, or to justify one’s judgments. See ibid. at 2-3. Once we reject the false dichotomy between “objective reasons” and “subjective preferences,” we can see that “judgments that do not claim objective status … [can] reflect not merely the [ ] individual or partisan preferences [of judges] but the interests and values of larger relevant groups, including, sometimes, the entire relevant community.” Ibid. at 3, 4. There is a valuable parallel here between Smith’s and Kant’s accounts of the subjective and the intersubjective in the process of judging. Moreover, applying this analysis to judgments of law, Smith argues that judges can and should acknowledge that their values and experiences inform their judgments, while at the same time attempting to justify their judgments by reference to the “extensive and effective explanatory and justifactory [sic] resources at their disposal. Contrary to the common charge or fear, then, neither the authority nor the persuasiveness of a non-objectivist judge’s rulings would be hobbled by the fact that, in justifying them, she did not invoke any ‘objective grounds’ but only indicated … how she weighed and weighted such matters in the light of historical evidence and judicial precedent (as she interprets them), broader communal interests and communal goals, and her own general values, beliefs, and prior experiences.” Ibid. at 16-17.

58. Bowie, Andrew, Aesthetics and Subjectivity: From Kant to Nietzsche, 2d ed. (Manchester, UK: Manchester University Press, 2003) at 36.CrossRef Google Scholar

59. See, e.g., Shapiro, Martin, “Judges as Liars” (1994) 17 Harv. J. L. & Pub. Pol’y 155.Google Scholar

60. See Winter, Steven L., A Clearing in the Forest: Law, Life, and Mind (Chicago, IL: University of Chicago Press, 2001) at 318 Google Scholar (“[T]he central concern of the conventional view is to avoid subjectivity in legal decisionmaking. It requires reason to do so because it does not recognize any other kind of constraint. On this model, persuasion represents the antithesis of reason—and thus, is understood to exacerbate the danger of subjectivity—because it appeals to extrarational considerations …. [However,] if persuasion works only to the extent that the decisionmaker already shares the values being appealed to, then it is hard to see in what sense the resulting process could be said to be ‘subjective.’ Quite the contrary. Persuasion is, by definition, an intersubjective process—not only in the trivial sense that it takes at least two people to occasion persuasion, but also in the more important sense that persuasion can proceed only on the basis of shared values and perspectives.”) [emphasis in original]. It is not entirely clear whether Winter seeks to devalue the subjective aspect of the decisional process or to challenge conventional views of what subjectivity means. And there is a question begged here about the extent and kinds of values and perspectives that must be shared for the process of persuasion to proceed. In fairness to Winter, though, I should mention that his larger project aims to reinterpret the “subject-object” dichotomy itself as a means of reframing our understanding of human cognition and law as a process and a product of human imagination (as he uses that term). For reasons of space and focus, I cannot address Winter’s more expansive project here. For now, it is enough to observe that, pace Winter, the Kantian and common law traditions are concerned more with explaining the complementary and reflexive dynamics of subjectivity and intersubjectivity in the process of judgment, rather than challenging or redefining the subjective aspect of the process. With these qualifications in mind, Winter’s insightful comments concerning the threat subjectivity allegedly poses for legal judgment and the intrinsic importance of intersubjectivity for the process of persuasion help to illuminate the discussion in the text.

61. To be sure, errors and disagreements occur with respect to empirical cognitive judgments, as well. But the point is that the means of testing cognitive judgments and the conclusions reached as a result of a realized error differ importantly (at least so far as Kant is concerned) from the means of testing aesthetic judgments and the conclusions reached as a result. See Kemal, supra note 6 at 317, n. 5. In the legal context, dissenting opinions are the most familiar (and perhaps the most important) institutional demonstration of the value of disagreement. See, e.g., Cardozo, Benjamin N., The Nature of the Judicial Process (New Haven, CT: Yale University Press, 1921) at 79 Google Scholar (“It is the dissenting opinion of Justice Holmes [in Lochner v. New York, 198 U.S. 45 (1905)Google Scholar], which men will turn to in the future as the beginning of an era. In the instance, it was the voice of a minority. In principle, it has become the voice of a new dispensation, which has written itself into law.”). See also Employers’ Liability Cases [ Howard v. Illinois Central RR Co.], 207 U.S. 463, 505 (1908) (Moody, J., dissenting)Google Scholar; Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257, 329 (1837) (Story, J., dissenting).Google Scholar

62. See Kant, supra note 1 § 8 at 56 (“The judgement of taste itself does not postulate the agreement of every one (for it is only competent for a logically universal judgement to do this, in that it is able to bring forward reasons); it only imputes this agreement to every one, as an instance of the rule in respect of which it looks for confirmation, not from concepts, but from the concurrence of others.”) [emphasis in original]. See also Kemal, supra note 6 at 172-73 (“Kant goes on to link the possibility of error in actual judgements with the need for communication. At best, in aesthetic judgements we can only impute agreement to everyone …. For the only way to confirm an aesthetic judgement is to bring another subject to gain the pleasure felt by the judging subject. That is, given that a putative judgement may be mistaken … the only way he can support his claim for the rightness of his own judgement is by enabling another subject to make the same judgement … it goes to confirm that our own reflection and pleasure are universalizable and that our actual judgement is not mistaken …. Though we may not recognize our mistakes through our own reflection, we could do so when our judgement is unable to gain concurrence ….”) [emphasis in original].

63. Guyer, supra note 6 at 1 (quoting Kant, supra note 1 § 8) [footnote omitted].

64. See infra notes 100-10 and accompanying text.

65. For more on the form of Kantian aesthetic judgments, see Crawford, Donald W. Kant’s Aesthetic Theory (Madison: University of Wisconsin Press, 1974) at 92, 96-100Google Scholar (noting the distinction in Kant’s theory between the form of aesthetic judgment and the content of specific judgments). For more on the form and structure of common law legal judgments, see MacCormick, supra note 29 at 123; Eisenberg, Melvin Aron, The Nature of the Common Law (Cambridge, MA: Harvard University Press, 1988) at 12–13.Google Scholar

66. Patterson, supra note 29 at 19-20, 146-50; MacCormick, supra note 29 at 55-57, 64-65, 121-23, 186-88, 250-51.

67. A useful parallel to Kant on this point is his treatment of aesthetic judgments as “recommendations.” See Kemal, supra note 6 at 170, 180, 181. See also supra note 43.

68. Of course, there are questions of vertical and horizontal stare decisis that complicate matters here. In the interests of clarity and space, I cannot pursue these questions at length. Nevertheless, in an effort to forestall certain possible objections, I would note that judges do not often make decisions that they know are wrong. To the extent that stare decisis sometimes requires judges to reach decisions with which they disagree, the common law permits (and might even require) them to say so. In addition, if a judge’s reasoning in criticizing existing precedent (even if the judge felt compelled to follow it in her ruling) is persuasive, future judges may well choose to follow the reasoning of their predecessor rather than their predecessor’s ruling in future cases. So the individual judge’s claim to the correctness of her reasoning and her preferred judgment remains (even when that judge was obliged to decide otherwise due to institutional constraints).

69. For more on the importance of legal reasoning for the justification of legal judgments, and the distinctions between legal judgments and logical conclusions, see MacCormick, supra note 23 at 39-40, 67-72, 98-99, 144, 147-48.

70. See, e.g., Dworkin, Ronald, Law’s Empire (Cambridge, MA: Harvard University Press, 1986) at 229 Google Scholar (when a judge communicates his judgment, “future judges confront a new tradition that includes what he has done”); Wyzanski, Charles E. Jr., “A Trial Judge’s Freedom and Responsibility” (1952) 65 Harv. L. Rev. 1281 at 1303.CrossRef Google Scholar

71. See Kant, supra note 1 § 9 at 57 (“Were the pleasure in a given object to be the antecedent, and were the universal communicability of this pleasure to be all that the judgement of taste is meant to allow to the representation of the object, such a sequence would be self-contradictory For a pleasure of this kind would be nothing but the feeling of mere agreeableness to the senses, and so, from its very nature, would possess no more than private validity …. Hence it is the universal capacity for being communicated incident to the mental state in the given representation which, as the subjective condition of the judgement of taste, must be fundamental, with the pleasure in the object as its consequent.”). This section of the third Critique is notoriously opaque. Whatever else it means, however, Kant differentiated purely private reactions from intersubjec-tively valid judgments in virtue of a specific process of cognition and communication.

72. See ibid. (“[I]t is the universal capacity for being communicated incident to the mental state in the given representation which, as the subjective condition of the judgement of taste, must be fundamental ….”). See also Allison, supra note 6 at 80 (“[T]he subjective universality (or universal communicability) of one’s feeling is part of what one means in judging an object beautiful.”) [emphasis in original].

73. See Melissa Zinkin, “Intensive Magnitudes and the Normativity of Taste” in Kukla, supra note 6 at 159 [“Intensive Magnitudes”] (“When I claim that something is beautiful, I do not merely demand that someone else agrees with me, in the sense of adding her judgment to mine and saying she thinks so too …. I do not think that my judgment could count as a judgment of taste unless I believe everyone ought to agree with me.”) [emphasis added]. On the possibility of disagreement in Kant’s account, see supra notes 61-62 and accompanying text.

74. See Longuenesse, “Kant’s Leading Thread” in Kukla, supra note 6 at 200.

75. See Reid, John, “Doe Did Not Sit—The Creation of Opinions by an Artist” (1963) 63 Colum. L. Rev. 59.CrossRef Google Scholar

76. See, e.g., Grutter v. Bollinger, 288 F.3d 732, 752–753 Google Scholar (6th Cir. 2002) (en banc) (Moore, J., concurring); Baker, Thomas E., Rationing Justice on Appeal: The Problems of the U.S. Courts of Appeals (St. Paul, MN: West, 1994) at 119–20Google Scholar; Llewellyn, Karl, The Common Law Tradition: Deciding Appeals (Boston, MA: Little, Brown, 1960) at 26 Google Scholar; Schauer, Frederick, “Giving Reasons” (1995) 47 Stan. L. Rev. 633 CrossRef Google Scholar; Dragich, Martha J., “Will the Federal Courts of Appeals Perish if They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat?” (1995) 44 Am. U. L. Rev. 757 at 765-84Google Scholar; Fiss, Owen M., “The Forms of Justice” (1979) 93 Harv. L. Rev. 1 at 13CrossRef Google Scholar, reprinted in Fiss, Owen, The Law as It Could Be (New York: New York University Press, 2003) at 11 Google Scholar; Radin, Max, “The Requirement of Written Opinions” (1930) 18 Cal. L. Rev. 486 at 489CrossRef Google Scholar; Pound, Roscoe “The Theory of Judicial Decision” (1923) 36 Harv. L. Rev. 940 at 940-43, 952-59.CrossRef Google Scholar

77. See Bell, supra note 8 at 225 (explaining that a judgment must be “taken to be true” by the judge offering it). The key here is that a judge must in good faith believe his judgment to be the proper legal conclusion, but this is different from the judgment being “true” in an objective sense.

78. Cf. Longuenesse, “Kant’s Leading Thread” in Kukla, supra note 6 at 214.

79. On the confluence of legal and moral obligation with respect to a judge’s duty to articulate and develop the law, see MacCormick, supra note 29 at 33 (“That ‘must’ is not the ‘must’ of causal necessity or of logical necessity. It is the ‘must’ of obligation. The judge has a duty to give that judgment. It is merely banal to observe that his having a duty so to give judgment does not mean or entail that he does or that he will give, or that he has given, such a judgment …. The judge’s issuing an order is an act which he performs or does not perform, and in so acting he either fulfils or does not fulfil his duty.”) [emphasis in original]; Greenawalt, Kent, Law and Objectivity (New York: Oxford University Press, 1992) at 22–25, 54-55, 89Google Scholar; Greenawalt, Kent, Conflicts of Law and Morality (New York: Oxford University Press, 1987) at 32 Google Scholar (“A duty attaches to a particular position or to one’s status as a human being; one speaks of the duties of judges and parents and of people generally. In this usage, one can speak of moral obligations and duties, but one can also speak of obligations and duties that are other than moral. These nonmoral duties, or obligations, may carry moral weight—’it is morally right that judges perform their legal duties’—but moral argument is needed to link the nonmoral duty to what one morally ought to do.”).

80. Kemal, supra note 6 at 206, 207 [footnotes omitted].

81. See Crawford supra note 65 at 162 (“[I]n Kant’s aesthetic theory the activity of judging the beautiful is intimately connected with the appreciator’s experience of the beautiful …. Verdictive judgments of taste are, for Kant, the natural culmination of the process of experiencing beauty, at least in the social context in which we wish to communicate our knowledge and feelings to others. Kant explains the existence of the institution for making judgments of taste in terms of our innate desire to obtain and share knowledge, our desire to reach and communicate that which lies beyond the realm of our sense experience …. Thus, although the verdictive judgment is a social act, it is the making public of a product of a natural human activity—exercising our reflective power of judgment in order to apprehend a unity (purposiveness) in a manifold of intuition.”).

82. See Paul Guyer, “Pleasure and Society in Kant’s Theory of Taste” in Cohen & Guyer, supra note 46 at 52 (“Kant does not always or even usually say that in solitude there is no pleasure in the beautiful; most frequently he does say merely that there is no taste in solitude …. But if the judgment on the communicability of a felt pleasure is properly distinguished from the reflection leading to that pleasure, the claim that there is no taste in solitude need not mean that no one in solitude can take pleasure in beauty, but implies only that the solitary cannot be imagined to make judgments of taste about his pleasures …. [I]n fact it may be only in society that an individual can learn to make that judgment about his own feelings requisite to call an object which pleases him ‘beautiful.’”) [emphasis in original]. See also infra at note 101. I discuss certain senses in which a judgment of taste necessitates a conception of the self as a part of a larger community in the next section.

83. See Zinkin, “Intensive Magnitudes” in Kukla, supra note 6 at 149-50.

84. See Kemal, supra note 6 at 185-86.

85. See Crawford, supra note 65 at 162-63.

86. It may well be that communication requires a community at all times. By limiting my statement to Kant and the common law, I do not mean to contest the “private language argument.” See Wittgenstein, Ludwig, Philosophical Investigations (New York: Macmillan, 1953) at paragraphs 243-326Google Scholar. I limit my statement to Kant and the common law because of the focus of this article.

87. See, e.g., Kant, supra note 1 § 6 at 51 (“[T]he judgement of taste … must involve a claim to validity for all men ….”); ibid. § 7 at 52 (“[W]hen he puts a thing on a pedestal and calls it beautiful, he demands the same delight from others. He judges not merely for himself, but for all men … he demands this agreement of them. He blames them if they judge differently, and denies them taste …. [A]esthetic judgement [is] capable of making a rightful claim upon the assent of all men.”) [emphasis in original]; ibid. § 8 at 56 (“[When] we call the object beautiful, we believe ourselves to be speaking with a universal voice, and lay claim to the concurrence of every one ….”); § 9, at 59 (“In a judgement of taste the pleasure felt by us is exacted from every one else as necessary …”).

88. See supra notes 29, 66-67 and accompanying text.

89. See supra notes 13, 29, 54, 76 and accompanying text.

90. See supra notes 29, 57, 63, 69, 76 and accompanying text.

91. See supra notes 29, 56, 60, 70 and accompanying text. See also infra notes 102-03, 109 and accompanying text.

92. Scholars disagree about whether the community of subjects to whom a judgment is communicated—”those with the capacity to judge”—encompasses everyone with this potential as a rational agent or only those with an already refined faculty of taste. See, e.g., Savile, Anthony, Aesthetic Reconstructions: The Seminal Writings of Lessing Kant, and Schiller (Oxford: Blackwell, 1987) at 153–59Google Scholar. Analogizing to the common law, people also disagree about whether the audience for a legal judgment is the public itself or the legal community. See generally Baum, Lawrence, Judges and Their Audiences: A Perspective on Judicial Behavior (Princeton, NJ: Princeton University Press, 2006)CrossRef Google Scholar (considering differently configured potential audiences for judicial decisions and arguing that the way we define the audience affects the way we perceive the judge’s actions). For purposes of my argument, either the more expansive or the more restrictive conception of the community is acceptable, and I will refer to both groups as the potential audience for legal judgments in the discussion that follows.

93. Kant distinguishes between the act of judging and the product of judging. See, e.g., Ralf Meerbote, “Reflection on Beauty” in Cohen & Guyer, supra note 46 at 61 [“Reflection on Beauty”]. In a manner consistent with the argument of this article, the formulation of the judgment and the independent existence of the judgment are related in terms of the common law, too. In other words, the reasoning that supports a judge’s decision and the rule of law contained within the decision are intimately connected, but still distinct, in the process of legal reasoning and evaluation of the judge’s ruling as a judgment about the law, and as an ongoing source of legal authority.

94. See Postema, Gerald J., “A Similibus ad Similia: Analogical Thinking in Law” in Edlin, D.E., ed., Common Law Theory (New York: Cambridge University Press, 2007) at 119–20Google Scholar [“Analogical Thinking in Law”] (“[T]he reasoning process by which judgments are formed is necessarily normative …. The root thought here is the Kantian idea that judging is an activity for which judgers are, and take themselves to be, responsible …. In making judgments, judgers vouch for the correctness of their judgments. Of course, the correctness of their judgments cannot be constituted by their commitment to them; for then no distinction between their seeming to be correct and their being so could be made, and without that no mistakes would be possible, and without the possibility of mistake, the normative idea of correctness loses its content …. Thus, judgments stand in need of reasons and are capable of functioning as reasons for other judgments, and judgers are regarded and regard themselves as beings capable of giving, requesting, and being challenged to give reasons.”).

95. See Meerbote, “Reflection on Beauty” in Cohen & Guyer, supra note 46 at 75 (A judge “would be right to expect and to demand that his declaration be concurred in by other human beings. ‘To concur’ here means not that some other person would merely accept his judgment—there is for Kant no such thing as aesthetic belief based on testimony or even authority—but rather that any other human being, were he to apprehend the same object in a fashion identical in all nonaesthetic respects … should likewise declare the object to be beautiful. Any undesirable arbitrariness is ruled out, according to this analysis, by the requirement of such qualitative identity of pleasurable responses of all human beings under the stated conditions, and hence the analysis guarantees the possibility of the correctness of the judgment by means of this very requirement.”) [emphasis in original].

96. Arendt, Lectures, supra note 4 at 72. See also ibid. at 67 (“I judge as a member of this community and not as a member of a supersensible world …”).

97. Kemal, supra note 6 at 151.

98. See supra note 9.

99. See supra note 63 and accompanying text.

100. Cf. Arendt, Between Past and Future, supra note 4 at 214-15.

101. As Arendt put it, a judgment “cannot function in strict isolation or solitude; it needs the presence of others … whose perspectives it must take into consideration, and without whom it never has the opportunity to operate at all … [J]udgment, to be valid depends on the presence of others …. [Kant] was highly conscious of the public quality of beauty ….” Arendt, Between Past and Future, supra note 4 at 217, 218. See also supra note 82.

102. Kemal, supra note 6 at 88. See also Eagleton, Terry, The Ideology of the Aesthetic (Oxford: Blackwell, 1990) at 75 Google Scholar (“When, for Kant, we find ourselves concurring spontaneously in an aesthetic judgment … we exercise a precious form of intersubjectivity, establishing ourselves as a community of feeling subjects linked by a quick sense of our shared capacities.”).

103. See, e.g., Winter, supra note 60 at 317 (“If there is one thing that practicing lawyers certainly know, it is that the life of the law is not logic but persuasion. … The law that emerges from this process is a social product—that is, the product of an interaction between particular, situated historical actors …. It follows that any theory of law that takes seriously the insight that law is not a ‘thing’ but an activity that judges do, must take into account the role of persuasion in the decisionmaking process.”) [emphasis in original] [footnotes omitted]. See also Dworkin, supra note 70 at 254; Wyzanski, supra note 70 at 1302-04.

104. Guyer, supra note 6 at 9.

105. Ibid. at 272.

106. Guyer & Allison, “Dialogue” in Kukla, supra note 6 at 132. While Guyer and Allison agree that Kant’s theory incorporates a justificatory dynamic into aesthetic judgment, they disagree about the proper characterization of the ultimate goal of aesthetic judgment (as an “expectation” of agreement or as a “demand” of agreement). I do not address this further disagreement here.

107. See MacCormick, supra note 29 at 75 (“The court which today decides a specific case between individual parties ought to take account of its duty, at least its prima-facie duty, to decide the case consistently with prior decisions on the same or similar points …. That I must treat like cases alike implies that I must decide today’s case on grounds which I am willing to adopt for the decision of future similar cases, just as much as it implies that I must today have regard to my earlier decisions in past similar cases.”).

108. See Postema, “Analogical Thinking in Law” in Edlin, supra note 94 at 125 (“[Although it is only individuals who participate in analogical reasoning, these individuals proceed as members of a group, participants in a social practice: and even when the reasoning is carried on, as it were, in their own heads, it is an interior version of an essentially exterior, interpersonal, public enterprise. They deliberate … not for their own part only, but as members of a larger whole.”) [footnote omitted].

109. Jefferson Powell, Cf. H., Constitutional Conscience: The Moral Dimension of Judicial Decision (Chicago. IL: University of Chicago Press, 2008) at 71–72 CrossRef Google Scholar (“Persuasion in a constitutional-law argument, furthermore, depends on the extent to which the interpreter seems, to the reader (or hearer), to grasp the point of the constitutional enterprise …. [The interpreter] assume[s] that the Constitution is, or gives rise to, law in a technical sense, the sort of human practice in which there is a role for technical expertise, learning, and skill which are not common among any citizen body as a whole. But his own practice, while technically skilled [i]s aimed at allowing those lacking the relevant professional training … to understand and indeed to judge his professional judgment.”) [emphasis added].

110. Pillow, “Understanding Aestheticized” in Kukla, supra note 6 at 263-64 [emphasis in original] [citation omitted].

111. Kant, supra note 1 § 2 at 42. See also ibid. § 6 at 50-51.

112. Kant, supra note 1 § 2 at 43. See also ibid. § 5 at 48, 49 (“[T]he judgement of taste is simply contemplative, i.e. it is a judgement which is indifferent as to the existence of an object …. [T]aste in the beautiful may be said to be the one and only disinterested and free delight ….”) [emphasis in original].

113. Kant, supra note 1 § 2 at 43.

114. See Kant, supra note 1 § 6 at 50 (“This definition of the beautiful is deducible from the foregoing definition of it as an object of delight apart from any interest.”).

115. See Allison, supra note 6 at 94-95 (“The short answer is that one cannot be indifferent, but that, appearances to the contrary, the disinterestedness thesis does not really require that one be …. This explication indicates that the disinterestedness thesis concerns the quality of the liking (or disliking) by means of which an object is deemed beautiful (or nonbeautiful). In other words, it is the determination of aesthetic value that must be independent of interest, because any such dependence would make this determination subserve some other value, thereby undermining both the autonomy and the purity of taste.”) [emphasis in original] [footnote omitted].

116. Pillow, “Understanding Aestheticized” in Kukla, supra note 6 at 262-63. See also Guyer, Paul, “Disinterestedness and Desire in Kant’s Aesthetics” (1978) 36 Aesthetics, J. & Art Criticism 449 at 450CrossRef Google Scholar (“Kant’s explanation of aesthetic response does imply that we cannot take a certain form of interest in beautiful objects, but this does not mean that we must look beyond the phenomenon of aesthetic response itself to explain our desires with respect to natural and artistic beauty.”) [emphasis in original].

117. See Kant, supra note 1 § 6 at 50-51 (“For where any one is conscious that his delight in an object is with him independent of interest, it is inevitable that he should look on the object as one containing a ground of delight for all men. For, since the delight is not based on any inclination of the Subject (or on any other deliberate interest), but the Subject feels himself completely free in respect of the liking which he accords to the object, he can find as reason for his delight no personal conditions to which his own subjective self might alone be party. Hence he must regard it as resting on what he may also presuppose in every other person …. The result is that the judgement of taste, with its attendant consciousness of detachment from all interest, must involve a claim to validity for all men ….”) [emphasis in original]. See also Allison, supra note 6 at 81.

118. Cf. Posner, Richard A., The Federal Courts: Challenge and Reform (Cambridge, MA: Harvard University Press, 1996) at 349 Google Scholar (“It is easy to confuse impartiality with indifference, a tendency fostered by the modern usage of the word ‘disinterest’ (which formerly meant impartiality—and still does to purists) as a synonym for lack of interest.”).

119. The Oxford English Dictionary defines “uninterested” as “unconcerned, indifferent.” I should note, in connection with Judge Posner’s observation in the previous footnote, that this is the second definition offered by the OED The first definition is “impartial, disinterested.” In this respect, I am an unrepentant “purist” where the different shades of meaning between these two terms are concerned.

120. The Oxford English Dictionary defines “disinterested” as “not influenced by one’s own advantage; impartial, free from personal interest.” Again, this is the second listed definition. The first definition treats “disinterested” and “uninterested” as synonymous.

121. I need to be careful about a point of translation here. In English, as I noted supra in note 119, uninterested can be defined as indifferent. In German, the term gleichgültig might be translated as indifferent or uninterested, and the term uninteressierte might be translated as disinterested or uninterested. Kant used both of these terms in his writing of the third Critique. I am not arguing that Kant did or would accept the distinction that I discuss in the text and I am not quibbling over varying translations of gleichgültig or uninteressierte. I simply wish to note the different German terms and to explain that I use the English terms uninterested and disinterested to underscore the terminological distinction in English and to challenge the assumption people often make about common law judges (that they should be both disinterested and uninterested). Cf. Guyer, Paul, Kant and the Experience of Freedom: Essays on Aesthetics and Morality (New York: Cambridge University Press, 1993) c. 2-3CrossRef Google Scholar; Meerbote, “Reflection on Beauty” in Cohen & Guyer, supra note 46 at 70-71.

122. Kant, supra note 1 § 13 at 64 (“Every interest vitiates the judgement of taste and robs it of its impartiality.”). Arendt stressed impartiality as the “the most important condition for all judgments” and she also noted its direct connection to disinterest. Arendt, Lectures, supra note 4 at 68. See also infra at note 124.

123. To take just one obvious example of the legal system’s commitment to this principle, see American Bar Association Model Code of.Judicial Conduct (2007) [Model Code]. The Model Code (or some set of similar principles) has been adopted in every state. See Geyh, Charles Gardner, Alfini, James J., Lubet, Steven & Shaman, Jeffrey M., Judicial Conduct and Ethics, 4th ed. (Newark, NJ: LexisNexis, 2007)Google Scholar § 1.03. The Code of Conduct for United States Judges is substantially similar to the Model Code. See, e.g., Code of Conduct for United States Judges (2009), canon 3 (providing that federal judges “should perform the duties of the office fairly, impartially and diligently.”) The Model Code defines impartiality as “absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.” Each of the four canons of the Model Code refers to impartiality. Canons 1, 2, and 4 do so explicitly, and canon 3 does so in terms of minimizing any “risk of conflict with the obligations of judicial office.” Moreover, these canons recognize that the personal experiences of individual judges are not threats to judicial impartiality. For example, Rule 2.2 states that “A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.” And comment [2] to this rule acknowledges that each judge comes to the bench with a unique background and personal philosophy …. So the Model Code does not assume any inconsistency or incoherence in a judge acting impartially while still maintaining her personal background and philosophy. Of course, a judge must still interpret and apply the law even when she disagrees with it. I should also mention that comment [1] to Rule 2.2 indicates that judges should be “objective” but this comment seems to treat this term as meaning “open-minded.”

124. Arendt’s comments on Kantian aesthetic judgment apply quite closely to this aspect of my argument. See Arendt, Lectures, supra note 4 at 42 (“You see that impartiality is obtained by taking the viewpoints of others into account; impartiality is not the result of some higher standpoint that would then actually settle the dispute by being altogether above the melée.”) [emphasis in original]. Cf. Caperton v. A.T. Massey Coal Co., 556 U.S. —, 129 S.Ct. 2252, 2263 (2009)Google Scholar (“Following accepted principles of our legal tradition respecting the proper performance of judicial functions, judges often inquire into their subjective motives and purposes in the ordinary course of deciding a case. This does not mean the inquiry is a simple one. ‘The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth.’ The judge inquires into reasons that seem to be leading to a particular result. Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work.”) (quoting Cardozo, supra note 61 at 9) [emphasis added].

125. See supra note 10.

126. Whether Kant understood the formulation of an aesthetic judgment to occur in separable stages is not a point that I pursue here. I describe the process in this manner for the sake of clarity and ease of exposition.

127. See Kant, supra note 1 § 6 at 50-51 (“This definition of the beautiful is deducible from the foregoing definition of it as an object of delight apart from any interest. For where any one is conscious that his delight in an object is with him independent of interest, it is inevitable that he should look on the object as one containing a ground of delight for all men …. [S]ince the delight is not based on any inclination of the Subject … the Subject feels himself completely free in respect of the liking which he accords to the object …. Hence he must regard it as resting on what he may also presuppose in every other person; and therefore he must believe that he has reason for demanding a similar delight from every one.”) [emphasis in original].

128. See Kemal, supra note 6 at 158 (“The Analytic of the Beautiful sets out our expectations of judgements of taste …. We learn that judgements must be disinterested and formal in order to ensure that they are singular but subjectively universal and necessary …. What makes the universality of aesthetic judgements subjective is that it attaches to a mere feeling, and the feeling is universal in that we expect it to carry more authority than an ex Pression of merely personal preferences.”).

129. See Crawford, supra note 13 at 507 (“Of course, showing that a judgment of taste is impure is not sufficient to show that it is false; it simply shows it is ill-founded. One can always be right for the wrong reasons.”).

130. See, e.g., Model Code, supra note 123 at canon 1 (“A judge … shall avoid impropriety and the appearance of impropriety.”); Code of Conduct for United States Judges, canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”).

131. See generally McCloskey, Robert G., The American Supreme Court, 4th ed. (Chicago, IL: University of Chicago Press, 2005) at 17 Google Scholar (“[S]ince the constitutional questions that do successfully claim the attention of the Court are often those least answerable by rules of thumb, the predilections, the ‘values’ of the judges, must play a part in supplying answers to them.”); Posner, supra note 118 at 310 (“[M]any judicial decisions will be based in part anyway, on value judgments rather than just on technical, professional judgments.”); Anastaplo, George, The Amendments to the Constitution: A Commentary (Baltimore, MD: Johns Hopkins University Press, 1995) at 91 Google Scholar (“[T]he Constitution, from the beginning, anticipated that American courts (whether National or State) would continue acting as courts in the common-law tradition had ‘always’ acted. A sense of fairness, consistent with precedents, general expectations, and the political, social, economic, and religious opinions and institutions of the Country, is relied upon in how the law is to be developed and applied.”); Brennan, William J. Jr., “Reason, Passion, And ‘The Progress Of The Law’” (1987) 42 Record of the Ass’n of the Bar of the City of New York 948 at 951-52Google Scholar; Greenawalt, Kent, “Policy, Rights, and Judicial Decision” (1977) 11 Ga. L. Rev. 991 at 1052-53.Google Scholar

132. See, e.g., Crawford supra note 65 at 170 (“Analyzing aesthetic value in terms of pleasure allows it to remain at the level of being felt; by giving it a basis in purposiveness and form, Kant allows for the possibility of positive reasons. Thus, in Kant’s aesthetic theory we see a necessary, intimate connection between experience and evaluation ….”). See also supra note 29 and accompanying text.

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Kant and the Common Law: Intersubjectivity in Aesthetic and Legal Judgment

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