Differences do sometimes make a difference. There will be occasions when taking account of the particularities of an individual and her situation is appropriate, even obligatory for those charged with implementing the law – if not from a legal perspective then from a moral or practical one. This is where judgment comes in.
In a high school in Wisconsin, an African American security guard is dealing with a disruptive student, also African American. While being led away by the guard, the student repeatedly calls him a notorious racial slur. The guard tells the student several times: ‘Do not call me a [n-word],’ using the actual word. The school district, however, has a ‘zero-tolerance, one strike and you’re out’ policy governing the use of that word. It is a well-intentioned policy, conceived to ensure a safe and respectful learning environment for a diverse body of students. It is also a policy that the security guard appears, technically, to have violated, and so the principal fires him. (After a public outcry, the guard is later reinstated.)
At a cross-country run in Ohio, a 16-year-old Muslim woman is disqualified for wearing a hijab during the race. Because her coach neglected to fill out paperwork requesting a religious waiver (which she would have received), officials said that her headwear (which brings her no competitive advantage) violated regulations governing athletic uniforms. She had run her personal best time in the race.
In a grocery store in New York City, an elderly man with a walker approaches the checkout counter with a bottle of wine and other items. The man is clearly well above the drinking age of 21. But because he doesn’t have a photo ID proving that he is, as he says, at least five decades older than the state’s legal minimum for the sale of alcoholic beverages, he is told he may not purchase the wine. If he wants the wine, he must go home, retrieve some form of identification, and return to the store.
What we see in all three cases is an overzealous, thoughtless application of a rule. In the first two cases, it leads to what any reasonable person should regard as unjust treatment; in the third case, the situation is handled in a senseless and silly (and, for the elderly gentleman, inconvenient) way. The problem is that the rule-enforcers are not thinking hard enough about what they are doing, and therefore they are acting unreasonably.
Laws, regulations, rules and principles – whether civil, moral, commercial, athletic or some other sort – are by their nature general. They have to be, to cover effectively a large number and broad range of circumstances and cases. As the legal theorist H L A Hart explains in The Concept of Law (1961), no society could work if its members had to be separately and directly informed by some representative of the sovereign authority whether their actions were permitted or forbidden. You can’t expect the holder of executive office to have to determine in every single case whether persons may or may not do what they intend to do.
The problem is not just one of timing or communication. A publicly accessible list of actions that specifies what each particular individual is allowed to do under what circumstances and when would be equally unworkable. Instead of a body of highly specific edicts indexed to individuals and their situations, we rely on laws. Hart calls them ‘general forms of directions which do not name, and are not addressed to, particular individuals, and do not indicate a particular act to be done’. Hence, the ‘standard form’ of laws is general in two ways:
It indicates a general type of conduct and applies to a general class of persons who are expected to see that it applies to them and to comply with it … In a modern state it is normally understood that, in the absence of special indications widening or narrowing the class, the general laws extend to all persons within its territorial boundaries.
Laws, while general, can still be more or less particular. Some civil laws, for example, are directed at all citizens no matter what their circumstances – for example, laws concerning the most egregious forms of criminal behaviour. The law against murder or theft applies to everyone. Other kinds of laws are directed only at individuals who satisfy certain conditions – for example, if they are authorised and active participants in some organised practice. The balk rule of baseball specifies that the pitcher on the mound with the ball in his hand may not fake a pitch or a throw (to fool a baserunner) if his foot is on the rubber. This rule, while not naming any particular player or team, applies only to people who are actually engaged in playing the game, and only some of them (the pitchers); players who are not pitchers, and people who are not even playing baseball, can do whatever they want on the mound. Still, even if the domain of a law or rule is specifically restricted in this way, there must be some degree of generality, otherwise we aren’t talking about a practice-governing ‘law’ proper. It can’t be that only a certain relief pitcher for the New York Yankees is not allowed to fake the throw.
To preserve their generality and practicality, laws must be relatively simple and straightforward. Their purpose – not always successfully accomplished – is to prescribe or proscribe ways of acting in a clear and unambiguous manner. Built-in exceptions would thwart this purpose. The law doesn’t say: ‘Do not drive over the speed limit, unless you are heading to the hospital for an emergency and are a really good driver.’ It says: ‘Do not drive over the speed limit,’ period.
While laws are general, the human beings to whom they apply are particular. Their conditions, needs, desires, preferences and circumstances vary in innumerable ways. Even so, human behaviour tends to fall neatly under laws in relevant respects. Rich or poor, good driver or bad, in a Porsche or a beat-up old car, once you take control of a moving automobile, you are a driver – and if you are speeding, you have violated a traffic law.
The relative generality and simplicity of laws and rules means that their implementation and enforcement require mediation. Someone (or, in our automated age, something) has to determine the applicability of a law or rule to a particular case, as well as the propriety of applying it. This is the responsibility of police officers, security guards, judges, regulators, inspectors and others who are formally charged with overseeing compliance, either with public laws or the rules and regulations at work in private sectors (managers in factories, umpires and referees in sport leagues). It is also something that everyone will have to do on many occasions throughout their lives, particularly (but not necessarily) if they have some special expertise or authority. Surgeons need to determine whether a medical procedure that is generally prescribed for a certain condition is appropriate in a given case; teachers have to enforce rules of decorum in their classrooms; managers of grocery stores must decide if there are occasions when there is no need to demand an ID; and parents can’t avoid situations in which they have to choose between enforcing a rule and making an exception. This is where the trouble begins.
The particularities and peculiarities, major or minor, that make for the variety of human behaviour are typically irrelevant when it is time to decide whether to enforce a law. If you are speeding, your height, weight, income and musical talents don’t matter. If you are underage, then your hipster haircut and the fashionable clothes you’re wearing when you try to buy alcohol will be of no exculpatory help.
Still, differences do sometimes make a difference. There will be occasions when taking account of the particularities of an individual and her situation is appropriate, even obligatory for those charged with implementing the law – if not from a legal perspective then from a moral or practical one. This is where judgment comes in.
Even in the simplest and most straightforward cases, the administration of a law or the application of a rule always requires judgment. Knowing the relevant law or rule is the easy part. A police officer is expected to be familiar with the statutes that govern her bailiwick. A security guard should know the regulations of the shopping mall where he works – for example, what type of behaviour counts as shoplifting and what to do if someone is seen engaging in it. Sports umpires must have the rules of their respective sports ready in mind in order to make quick and often difficult judgments in the heat of competition.
A more challenging part of any enforcement job is having the relevant facts at hand. You need to determine the circumstances in which you are now called upon to apply the law or regulation. You must ascertain if the rule or law is germane. What clothing and gear was the athlete wearing, was that gear prohibited by the rules of the event, and did the athlete fail to seek a waiver before the event? Did the shopper slip the shoes into her bag and try to walk out of the store without paying for them? Did the football player’s foot touch out of bounds after he made the catch? Determining any of this can be a relatively easy task, when the law is clear and the relevant circumstances or behaviour evident and undisputed. ‘Yes, officer, as your radar gun indicates, I was driving my car over the posted speed limit.’ Closer inspection – for example, photographic evidence or video review – can resolve ambiguities or contested claims. While there is an element of judgment involved, it remains primarily a matter of ascertaining the facts.
The most difficult question involving judgment – and, for our purposes here, the important and morally fraught one – is whether in any particular instance the law or rule should be invoked and how it should be enforced. Often, there really is, and should be, no choice in the matter. A thief ought to be apprehended and prosecuted; a sport referee who chooses to look the other way at a flagrant foul will pay a price for his leniency. However, there are occasions when someone must decide whether there is some value to overlooking a violation.
Judgment is a matter of discretion. A discreet person knows when (and when not) to say or do something. She is good at assessing an individual or situation and determining what is called for in word and deed. By contrast, an indiscreet person will typically say or do the wrong thing, something inappropriate or offensive.
In the moral sphere, judgment is a matter of reasonable discrimination. A person with good judgment recognises what is both typical and distinctive about the particular case at hand, and notes whether what is distinctive is relevant. The fact that the man in the grocery store was obviously decades above the legal drinking age is relevant; the fact that the wine he wanted to buy was a Merlot is not. The teenage runner was indeed wearing a hijab for which her coach had not sought a waiver; what mattered was not the headscarf’s brand or colour, but whether the hijab gave her a competitive advantage (as well as whether the coach’s failure was an honest mistake or ill-intentioned). Circumstances are everything. The police officer who declines to give a speeding ticket to a driver on his way to the hospital because the driver’s wife is in labour in the back seat is making a judgment call.
Philosophers have long insisted on the complexity of our moral lives. Determining, in quiet moments of armchair reflection, what is in principle right or wrong is difficult enough; knowing what one ought to do in the press of immediate circumstances is even harder. There are often many factors to consider, and doing one thing that seems to be (and maybe is) right can require that one neglect some other duty. Providing urgent help to a stranger you encounter might force you to break a promise to meet a dear friend who requires counsel. Antigone, in Sophocles’ tragedy, must choose between her personal and religious duty to bury her dead brother and her civic obligation to obey the leader Creon’s command that the traitor’s body should be left to the vultures. Her moral conflict is real. Circumstances might be such that we can’t possibly satisfy all of our duties, much less all of our desires. Sometimes, the best we can do is opt for the lesser of two evils.
Some philosophical traditions, troubled by such apparent complexity, aspired to reduce ethics to a single, ultimate principle, to the quasi-mechanical application of a rule that is supposed to provide a unique, unambiguous and morally correct answer in every situation. For utilitarians such as Jeremy Bentham (1748-1832) and John Stuart Mill (1806-73), it is the principle of utility, or maximising happiness: you should always do the action whose anticipated outcome is a net increase in the wellbeing of all who are affected by the action. Immanuel Kant (1724-1804) for whom consequences are morally irrelevant when determining the rightness of an action, insisted that the operative principle is the ‘categorical imperative’: you should always act in such a way that you, as a purely rational moral agent, regardless of your personal inclinations or preferences, could will the maxim of the action to become a universal law that commands all moral agents to act that way. In other words, can you reasonably envision that all people should be directed (or even allowed) to act in that way?
As many philosophers have noted, such simplicity and uniqueness of principle is neither desirable nor practical. Reductionism of this kind can easily lead to questionable, even objectionable consequences. The Kantian principle, for example, generates the absolute moral duty never to make a false promise or tell a lie, since no rational agent could possibly envision a universal law that allows people to make false promises or tell lies when it is convenient for them to do so. Such a law would render false promises and lies themselves impossible, since the trust required for these sorts of deceptions would be undermined. Kant, however, means his principle to apply even to situations where the outcome of telling the truth is morally abhorrent – for example, when Nazis in 1943 come to your door in Amsterdam demanding to know whether you’re hiding a Jewish family in your home.
No single rule can accommodate the variety and complexity of situations in which humans are required to act and the expectations they are called upon to meet. Sometimes, there are clear limits to utilitarian reasoning, strong moral reasons not to do the action, no matter how much happiness that action would generate. The enslavement of a minority population is, in principle, morally impermissible, regardless of how happy it would make the majority. On the other hand, sometimes there are good utilitarian reasons to violate what had seemed an absolute moral proscription. A lie that saves a life or even simply eases a friend’s suffering might be permissible. Sometimes, there is no available rule, and we have to rely on deep-seated moral intuitions, or even just feelings of love or kindness, for guidance. Moral agency cannot consist simply in the mechanical application of a universal principle.
Judgment, however, goes beyond knowing which rule, if any, might pertain to the situation. Deciding the right thing to do, which can include a willingness to bend the relevant rule or even a refusal to invoke it altogether, is a matter of using one’s own sense of justice and fairness.
Exercising judgment differs from either ignoring the rule or overlooking the facts and, in effect, turning the other way. When we turn the other way, we are refusing to make a judgment and thereby abdicating responsibility. By contrast, judgment involves acknowledging that the rule has been broken, that the perpetrating party is technically guilty, but also making a conscious choice not to enforce the rule. When using your judgment, you must be prepared, if challenged, to defend that choice with reasons. It is to recognise that the full application of the rule would result in an unjust, or at least undesirable, state of affairs.
What the Wisconsin school authorities, the Ohio track-and-field referees and the manager of that grocery in New York City share is a kind of stubbornness. It consists in refusing to revise or even abandon a rule in the face of clear evidence that it perverts fairness or justice. Adherence in such a situation amounts to irrationality. The epistemically stubborn person holds on to a belief regardless of the compelling reasons against it – that is, available evidence that shows the belief to be false. The school district, the cross-country meet and the grocery store, in contrast, exhibited practical and normative stubbornness. The normatively stubborn person enforces a rule no matter how obviously wrong and counterproductive doing so is in the present circumstances. He is inflexible, apparently indifferent to the original purpose of the rule, as well as to the consequences of his obstinacy.
Not all forms of normative stubbornness are bad or undesirable. There are often good reasons to stand by and enforce a rule, even when doing so is difficult or entails some loss. Those of us who are parents can easily recall situations where enforcing a rule is more costly, frustrating or counterproductive than making an easy exception, but nonetheless justified, perhaps for the sake of setting a precedent or modelling good behaviour. However, in the three cases we are considering, the normative stubbornness of the rule-followers/enforcers prevents them from seeing the well-meaning intentions that motivated the rule in the first place.
As Aristotle recognised, discretion is an essential part of virtue. He argues in his ethical writings that the virtuous person – the person endowed with arete (ἀρετή), the proper human excellence of reasoning in connection with thought and action – is good at intuitively sizing up her situation (as well as the situations of others) and choosing the proper action. That proper action, on Aristotle’s account, is generally a mean between two extremes. The charitable person, for example, avoids both stinginess and profligacy; he gives away neither too little nor too much. The brave person is neither cowardly nor foolhardy; she knows when to stand her ground and when to avoid a conflict.
Moreover, what counts as ‘the mean’ is usually relative to the person and her circumstances. The charitable mean for a Bill Gates or the Queen of England would be too much for a person of moderate wealth and impossible for someone living in poverty. A courageous move for a strong, young, well-trained individual would probably be reckless for a weak, elderly or infirm person. It would be right, even morally obligatory, for an expert swimmer to jump into a lake to save a drowning person; it would be stupid for someone who can’t swim to do so. The virtuous person, demonstrating excellence in the exercise of practical reason, knows and does what is right and appropriate in the situation. She is good at exercising judgment.
Life would be more difficult if we were supposed to exercise judgment on every occasion in which we are called upon to act. After all, the point of rules is to simplify things so as to make them more tractable. Assessing the relevance of circumstances and likely consequences in applying a rule is not always possible, especially if the situation is complex and requires immediate action. On the other hand, we give up a good deal of our responsibility as moral agents as soon as we surrender all our decision-making to rules.
Years ago, I was coaching my son’s Little League baseball team. It was not my finest moment. The boys and girls had fun, but we were a terrible team. We rarely scored a run, and never won a game. One afternoon, late in the season, when we were down 14-0 – just on the cusp of the ‘mercy rule’ – we finally, in the final inning, managed to get a runner across home plate and score a run. However, that player, in the excitement of celebrating his first-time achievement, removed his protective batting helmet just as he was crossing the base, thus violating the rule (an important safety measure) that a runner must be wearing a helmet at all times while on the bases. The umpire called him out and the run was cancelled. The poor kid was inconsolable (although he cheered up considerably during the post-game snack time). I wish I had used a little more discretion in my irate reaction to the umpire’s call – which, while technically correct, seemed both unnecessary and grossly unjust. But I especially wish that the umpire had shown a little more judgment in making that call.