EMPATHY, NOT TRUTH: CAN A DIALECTICAL AND SKEPTICAL ARGUMENTATION ENHANCE BOTH DEMOCRACY AND HUMAN RIGHTS COURTS?

AutorPuppo, Alberto

Human lot. Whoever thinks more deeply knows that he is always wrong, whatever his acts and judgments. Truth as Circe. Error has turned animals into men; might truth be capable of turning man into an animal again? Friedrich Nietzsche, Human, All Too Human (1878) 1. Introduction

Human rights judges are often called upon to apply very indeterminate normative formulations, typical of the declarations of human rights, which incorporate moral values (such as dignity, liberty, etc.). As far as this task depends, at least partially, on some moral judgment, the question of what kind of moral reasoners they are seems to be central. In other words, if some moral issue is at stake, and the solution depends on a moral argument, it is legitimate to investigate how judges work as moral arguers. Even if the judicial format is still traditional, it is undeniable that beyond the appearance of a mechanical application of some evident (international) rules or principles, there is an authentic evaluation. Such an evaluation, because of the format, is often poorly understandable (van den Hoven 2011). That justifies the need for a deeper analysis of the judicial argumentation and of its implicit meta-theoretical assumptions. (1)

The starting point of this work is a question formulated by Jeremy Waldron (2009a): once we accept that judges are moral reasoners, what kind of moral reasoners are they? And, more importantly, are they better at moral reasoning than legislators? The main target of Waldron's work probably was Dworkin's claim--defended in his A Matter of Principle (1985)--according to which, in Waldron's words, "[t]o those who raise moral issues about their own or others' rights, the courts offer a forum in which [...] citizens are assured that these claims will be steadily and seriously considered" (2009a, p. 3).

The question is probably too broad, because the category of "courts" includes ordinary judges, constitutional judges, international judges, and so on. The judge Dworkin is referring to is the U.S. Supreme Court, or any domestic Supreme Court, institutions created in order to guarantee respect for a democratic Constitution and/or equilibrium between domestic constitutional powers. It is very difficult to translate the Waldron/Dworkin debate beyond the frontiers of the U.S., or its domestic law. (2) Nevertheless, the question posited is still fundamental, despite the fact that the arguments advanced are not really useful outside the institutional limits of U.S. domestic law.

The goal of institutions involved is relevant not only to clarify the reasons that support the choice of a given argument, but, above all, to develop some hypothesis about the status of the argumentative premises themselves. (3) Are they certainties or just beliefs on moral issues? (4) The weight of a moral argument depends significantly on the meta-ethical assumption adopted by the arguers. (5) In my opinion, the debate generated by Waldron shows the lack of analysis of the status of moral arguments in judicial and legislative reasoning. At the end, the question posited--who is the best moral reasoner?--opens onto an essentially ideological scenario, and not a genuine assessment of moral arguments.

Waldron argued that legislators are better moral reasoners than judges, on the basis of a set of arguments that it is not necessary to recall here. The reason for that is that, even if we consider his argument plausible, the question itself is problematic. One criticism of Waldron's argument pointed out the importance of the institutional context (Dyzenhaus 2009). We cannot speak of judges and legislators as if they were some sorts of eternal substance. (6) If we are really interested in the question he formulated, we first have to define the institutional context and the goal of the moral arguments. Actually, in his rejoinder, Waldron plainly recognized the virtue of such criticism, and the need for refining the question:

[T]he institutional context in which legislative decisions are made includes the operation and activity of courts (sometimes their projected activity, as legislators seek to anticipate their response, and sometimes their earlier activity, as legislative debate may be triggered or affected by prior adverse court rulings). These interconnections [...] need to be taken into account in my question. (Waldron 2009b, p. 71) Another criticism pointed to his uncritical acceptance of a premise: that reasoning in human rights matters is essentially different from in other matters, "that decisions about rights require a sort of moral competence that other political decisions--which we are quite happy to leave with the legislature--do not" (Waldron 2009b, p. 71). (7) Waldron is "very happy to acknowledge this point" (p. 71).

Both criticisms show, in my opinion, a useful way of questioning the relationship between regional human rights courts (henceforth, RHRCs) and democracy. As such a question is meaningless if we do not refine it, there is a high risk that many theses on this topic --indeed pretty sophisticated ones--are missing the point by being too general. (8)

The refinement of the question can take the path of a comparative study of democratic and judicial institutions. This is not my objective here: I prefer to take a step back, and focus my attention on what constitutes a meta-theoretical starting point for a finer analysis of institutional argumentative interactions. I hope this analysis could be useful for legal comparatist scholars as well as for theorists of argumentation focused on the "opening stage" of a critical discussion, the stage "in which the protagonist and the antagonist of a standpoint at issue in the difference of opinion determine their zone of agreement as far as common procedural and material starting points (or 'concessions') are concerned" (van Eemeren et al. 2012, pp. 35-36).

For this reason, to illustrate such need of refinement, I will not study many cases of interactions between democracy and RHRCs; instead of this, I will show how the same case can be reconstrued very differently depending on how moral reasoning and democratic decisions are understood according to different meta-ethics and theories of democracy. (9)

So I will briefly present, in the next section, the Gelman case, (10) decided in 2011 by the Inter-American Court of Human Rights (IACHR from herein); this case involves five relevant participants: the Uruguayan people, national criminal judges, the national Supreme Court, the national legislator and (obviously) the IACHR, whose interaction is extremely helpful in understanding how a moral question can be differently approached.

Given that IACHR seems to have assumed that it was a better reasoner than the national democratic body, because of its rationality as opposed to the emotivism of the latter, it is necessary to go further and to wonder if both actors are doing the same or whether they are moving in completely different fields. In section 3, I will refine the framework originally drawn by Waldron, by defining in what sense democratic bodies and human rights judges can be conceived as playing the same game, and therefore to what extent their argumentative moves can be part of the same dialogue type, (11) and potentially of a genuine critical discussion. (12)

Once accepted that they are both moral reasoners, and that in the Uruguayan popular deliberation emotions have certainly played a significant role, I will analyze, in section 4, the possible roles played by emotions in judicial moral reasoning; if emotions play a role in judicial moral reasoning, the reason for preferring the Court ruling cannot be that it is completely emotion-free. As the concept of emotion is controversial, (13) I will assume a somewhat trivial--and certainly theoretically deficient--definition: emotions are instinctive states of mind or feelings. (14)

Finally, in section 5, I will sketch out how the interaction between RHRCs and national democracies could generate an enhancing or a threatening effect, for the argumentation itself as well as for the institutions involved in it.

My thesis is that if emotions are not conceived as the key to access to some moral or political truth, but in terms of the empathy necessary to imagine how other people feel and finally to increase the understanding of arguments constructed in hard cases, the interaction could be successful in producing better arguments and thus better decisions; not necessarily true answers, but more reasonable--and therefore acceptable--answers, all things considered.

  1. The Gelman Case

    The infamous case is about people who disappeared during Latin American dictatorships, but its originality derives from the multiplicity of conflicting decisions that I will try to summarize here. (15)

    After the end of the military dictatorship in 1985, the new civilian government ratified the American Convention on Human Rights. A year later, however, it enacted an Amnesty Law (the Law No. 15.848) granting amnesty to members and agents of the dictatorship guilty of human rights violations. According to Gargarella (2015), the Uruguayan Congress was at that moment a democratically elected Congress with enough legitimacy based on voter's intentions to be able to assert that the Amnesty Law had a democratic consensus. In 1988, the Supreme Court of Justice confirmed the constitutionality of the Amnesty Law and one year later, by a national referendum, the electorate voted to retain the Amnesty Law. In 2000, a Commission for Peace was created to receive, analyse, classify, and compile information about the forced disappearances that occurred during the dictatorship. In 2003 a Criminal Court, on the basis of the Amnesty Law, dismissed a case introduced by Mr. Gelman, who therefore asked the Supreme Court of Justice to declare portions of the Amnesty Law unconstitutional; the Court denied his claim in 2004. The Gelman case gained considerable notoriety, to the extent...

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