"The drama of judging", Maud Coudrais presents Alessio Lo Giudice's latest essay
-The drama of judging
Maud Coudrais
Lawyer at the Paris Bar – Doctor of Law
Article published in French in Recueil Dalloz, 6 February 2025, p. 195
Translated in English by the author
In his essay Il dramma del giudizio ("The drama of judging"), Alessio Lo Giudice, professor of philosophy of law at the University of Messina (Italy), offers a meditation on the act of judging and therefore on the law itself. In this essay, published in 2023 by Mimesis, he makes a salutary act of resistance against the current temptation to evacuate judgment. He reaffirms that the act of judging is the very heart of the legal experience. Above all, he explores and rehabilitates the dramatic dimension of judgment.
Everything seems to be conspiring today to short-circuit the judge: dematerialization of procedures, so-called "artificial intelligence", denunciation of the "government of judges". We could add to the list the pro-amicable and anti-trial state propaganda, stigmatizing the litigant who claims to have access to the judge, and asking for protection from the public authorities. A clever way of transforming the resignation of the state from a sovereign mission and liberal policy of externalization into a great humanist cause. However, the main weapon of these ideologies lies precisely in the negation of conflicts and drama, in the often illusory promise of a justice without pathos, without error, purely rational.
Contrary to this misleading and counterproductive discourse, Alessio Lo Giudice very usefully reminds us that the vocation of the jurist is to look humanity in the face, inviting us to an ethics of lucidity. Without dogmatism, the author guides us in an intimate investigation, putting himself in the judge's shoes to understand his mental state when he accomplishes his mission. It explores the philosophical, psychological, ethical, but also quasi-spiritual dimension of the act of judging. He shows us to what extent judgment is a search for truth, a path of knowledge, a profoundly personal and living experience. He describes the torment of accomplishing this mission, which is both necessary and impossible.
The author calls into question the myth of the legal syllogism, affirming "the irreducibility of judgment to an exclusively logical operation" (p. 112). Also, because the response to the "demand for justice" that animates the human being "can never be deduced from a general and explicit rule, universally acceptable, ready to be applied to particular cases" (p. 123). Judging is a leap into the void. Thus, the legal syllogism is above all an a posteriori reconstruction of an apparently logical reasoning, aimed at conferring legitimacy on a solution found by other means (chapter 4). Evoking the drama of the judgment allows the author to settle his account with another myth, that of the neutrality, of the objectivity of judgment ("to which the human being, as such, will never be able to access" p. 12).
Alessio Lo Giudice proposes a third way, that of a sensitive judgment (sensibilità giudicante) who tries to make sensitivity and impartiality coexist. He proposes to go beyond the sterile opposition between "objectivity and arbitrariness" to embrace "a radically human conception of law" (pp. 15 and 16), that is to say, to experience "the coexistence, in the juridical experience, of both the expression of free subjectivity, with its beliefs and aspirations, and the sharing of a core of meanings, of principles, placed to protect the dignity of every human being" (p. 17), but also "to respond to the demand for justice, without possessing a universal conception of justice under which cases can be subsumed according to a purely logical scheme" (p. 19). And the solution to the problem, to the enigma, lies in ethics. We find the Aristotelian trinity of the pathos, logos and ethos. Only personal ethics is capable of mediating between rationality and sensitivity. The author is also inspired by the notion of common sense developed by Kant (p. 140), which he defines as the "faculty of judgment which, in its reflection, takes into account a priori the way of representing of all the others" (p. 160). For the author, this "thinking by putting oneself in the shoes of others" seems to offer a reconciliation between sensitivity and rationality that is much more fruitful than the illusory objectivity, but also than the banal empathy. "Imagining other people's points of view, through the imagination, is not the same as uncritically adopting other people's perspectives or being trivially empathetic. Rather, it is a question of considering as present all those who are necessarily absent" (p. 183).
Professor Lo Giudice's book thus appears as an act of faith in the human capacity to judge, in the vocation of the law to always seek the middle way. With François Ost and Paul Ricoeur, the author nevertheless insists on the fact that the law always bears an irrepressible violent trace (p. 61 et seq.). Obviously, there would have been so much to say, about the drama of judging, about the imperfection of justice and about the violence legitimately felt by so many litigants in front of their judges. This observation is not contradictory to the author's intention. Finally, isn't judging the worst system for settling a dispute, apart from all the others? Hence the urgency of demanding judges rather than wanting to abolish them.