Transitional Times, Reflective Judgement and the ‘Hōs mē’ Condition
‘The Time that Remains’ as the Circumstance of Transitional Justice
The temporal dimension of justice has been very often a neglected aspect of standard normative theories. Nevertheless, time is an unavoidable condition for determining whether political and/or judicial decisions are taken appropriately. Indeed, more than any other ‘factual’ externalities, temporal dimensions do incorporate a normative aspect. This suggested link directs the investigation of what seems to be an inherent interconnection between time and normativity also into what is a more benevolent understanding of Hume’s ‘circumstances’ of justice. Following this initial move, the understanding of transitional justice as a normative paradigm must be understood as a domain affected by time.
With regard to such preliminary considerations, the present contribution aims to provide a rejoinder to the recent debate on the ideal/non-ideal conditions of justice with the introduction of the intermediate notion of ‘the transitional’. It also wants to achieve this goal by expanding on the judicial aspect of Kantian reflective judgement [reflektierende Urteilskraft] as according to Arendt’s interpretation.2 This will be pursued through the definition of a hypothesis of (dialectical) complementarity between Kantian orienting principle for the purposiveness of judgement and the transitional reading of the Pauline ‘Hos me’ (as not) condition as suggested by Agamben which has been also recently extended to the transitional justice context by Meister in his recent work.3 One of the major assumptions that I will consider includes the notion of how transitional conditions play a fundamental role in defining backward-and-forward orientations within the normative function of judgement, as well as how such inherent dialectic will prevent any meaningful separation between purely retributive and purely restorative judgements under transitional circumstances of justice.4
In recent times a predominant philosophical attitude has shaped our understanding of justice. This has mainly consisted of an ‘objectifying’ tendency on normative thinking resulting, among other things, in a separation of the principles of justice from the same conditions under which justice aims to achieve its purposes.
Is the saying according to which ‘it is never the time for justice’ to be interpreted as meaning that ‘there is not a time that properly belongs to justice’? Is justice a condition external to any temporal dimension of existence? If this is so, how illuminating could such an understanding be for us as subjects regulating our interests within contingently given political communities? For whom would such principles be instructive if conceived independently from our agent-capacity embedded in time?
In order to answer these questions, I will start from the discussion of Hume’s understanding of the circumstances of justice and propose to expand the list with the inclusion of the notion of ‘time’ as the mode in which other scarcities are presented and historically accountable.
In his Treatise of Human Nature, Hume claims that it is: ‘ … from the selfishness and confined generosity of men, along with the scanty provision nature has made for his wants, that justice derives its origin’.5 This same point has also been reconsidered later by J. Rawls who in A Theory of Justice has noticed how the circumstances of justice ‘ … may be divided into two kinds. First … objective circumstances which make human cooperation both possible and necessary’ such as primarily ‘moderate scarcity’ and then … the case of ‘subjective circumstances’ such as ‘conflict of interests’ both forcing men to cooperate.6 The concern over clarifying those factual elements entrenched within theories of justice indicates that the matter of justice arises only in case the scarcity of goods is not too severe and conflicts of interest not too harsh. Any factual condition moving beyond such boundaries would prevent even the arousal of any question concerning justice. This middle ground terrain for justice also sets the level that standards within theories of justice should be apt to achieve, that is, the capacity they must show to account for empirical aspects of the world while proposing normative criteria. Yet, it seems from this picture that something still remains unconsidered, namely the fact that both subjective interests and objective externalities do indeed occur within a certain time frame, as well as the fact that the mode in which they occur (sequence, urgency etc.) is not indifferent to the normative relevance they assume situationally. Time seems, thus, a necessary prerequisite for the understanding of all other features depicting the circumstances under which justice-questions do indeed arise. At a closer look, one might also notice how Hume himself had accounted for ‘less urgent necessities’ and ‘special circumstances’ as externalities positively affecting property acquisition. These cases, though, avoided a proper explanation of the core features defining the circumstances of justice.7 All this has resulted, accordingly, into a narrow reading of the thresholds of justice and, more importantly, in a lack of perspectival understanding of justice as an explicatory pattern for the actual circumstances of justice. In this regard, it is worth noticing in passing how the normative relevance of time has played a crucial role in Nozick’s distinction between historical and end-result principles, and particularly how, in the first case, a just distribution has been seen as dependent ‘upon how it came about’.8 Nozick’s distinctions are only one of the several ways in which time-constraints can be said to be incorporated into justice. Relevant for discussion here is the idea that time bears normative implications on principles for whatever theory is adopted. However, Nozick’s polarization of diachronic and synchronic distinctions for justice seems defective precisely in view of the explicatory force that this bears on explaining the normative import on the circumstances of justice. As a matter of fact, no sharp separation can be usefully drawn between the reason why the adoption of certain principles is justified at a time T1, that is, given any configuration X; and how such a specific distributional configuration came about on the basis of certain historical circumstances. On the contrary, it is rather the case that redistributive accounts of justice intervene at a time T1 by assuming the historical results of previous redistributive patterns.9 In addition, the same notion of time appears to be open to a wider philosophical investigation than an over-simplistic distinction between synchronic and diachronic axes would suggest. In fact, time is a culturally thick notion the diachronic rather than circular understanding of which can be grounded upon specific metaphysical views. In view of the present purposes, therefore, I will consider the role that certain determinants of time play in disclosing transitional justice phenomena and their related adjudication.10
I will do so by proposing an interpretation of Kant’s judgement theory through the suggestion coming from Paul’s Letter to the Romans in Agamben’s interpretation.11 Agamben’s remarks on Pauline text will not be considered here in view of their specifically theological insights, but rather with regards to the contemporary philosophical relevance they assume on the circumstances that inform any theory of justice qua theory. The interest in Paul’s text, therefore, consists in the fact that in analogy to the collapse of state-order (either historically ideal or pre-authoritarian), post-revelatory times point to a new way of experiencing and thinking – a way which cannot pretend either that a previous system of norms never existed nor that this can suffice to provide a conclusive answer to what is yet to be done.12 The eschatological time of the second descent of Christ on earth can thus be taken to represent a political metaphor for the definition of the circumstances characterizing transitional justice phenomena. This is, indeed, the time of ‘inverted tenses’ of the past and future – ‘the time that remains’ – where the apparently concluded past turns into an unexhausted present and a yet to be realized moment of salvation (the parousía, the second descent of Christ) is anticipated now in what is left of time before its end, that is, before salvation.13
Out of the theological framing, the circumstances under which transitional justice judgements are taken reflects a duplicity of inverted tenses – a transitional time in a cognitively thick way – a time which incorporates the paradoxical condition of being something that has both been already, but that is not anymore, and not been yet, but still to come.14 It is the time – as I will later demonstrate – of the double negation of the ‘not-not this’, where Kant’s orienting principle of the ‘as if’ cannot work independently from the circumstance of the ‘as not’ for transitional justice (the ‘Hōs mē’ for Paul).15 Once connected to a reformulated notion of judgement, the perceived factual externality of the ‘as not’ provides a starting point for the orienting function of Kant’s reflective judgement. As previously observed, the relevance of time in providing an understanding of synchronic and diachronic framing of justice theories applies similarly in transitional contexts in as far as the understanding of how the evaluative role of reflective judgement represents the way in which transitional time submits its objects to reflective judgement.
Reflective Judgement Detranscendalized: The Transitional Import
Since Arendt’s reading of Kant’s Critique of Judgment and the debate which it generated, scholars have referred to a ‘political turn’ in Kantian theory of (reflective) judgement.16 What has been noticed as particularly significant for the interpretation of the standards advanced by judgement is a pretence to look for a universal agreement on the basis of both a subjective feeling of pleasure and the assumption of a publicly shareable sensus communis as a meaningful form of interconnectedness among human beings. It is in view of such anticipation of a sensus communis on all others’ modalities of representation that exemplarity of judgement provides an aesthetic dimension of politics through the reflectivity of judgement.17
Nevertheless, the political reading of Kantian judgement is not complete if an account of the principle of the purposiveness of nature as transferred to the political – what I have previously referred to as the ‘as if’ condition – is not also properly conceptualized. Yet, Arendt was not inclined to recognize the full political implications of the notion of purposiveness, and considered the regulative function of this principle as limited to a different type of judgement – the teleological judgement.18 Accordingly, in the following section I will attempt to clarify the use of reflective judgement on the basis of the encroachment of the ‘as if’ principle of purposiveness with the ‘as not’ condition for transitional justice already introduced.
To begin with, Kant’s analysis of reflective judgement proceeds from the ‘principle of purposiveness [Zweckmäßigkeit]’ in natural zoology and in the aesthetic sphere. Through reflection, judgement brings into unity the causal laws of nature and the accord of imagination and intellect springing from the pleasure of the beautiful. For Kant, such purposiveness is purely ‘formal’ and it is assumed a priori as a way to direct reflectivity.19 To reinforce the thesis according to which the political reading of Kant’s principle of purposiveness is textually plausible, it might be instructive to draw a parallel with his writing on The Perpetual Peace where the never ending process of approximation of peace is said to rely on the principle of purposiveness.20
Further, as anticipated, the overcoming of a purely subjective condition of pleasure for reflective judgement points to a claim of intersubjective agreement through the pretence of universal communicability. As in Kant’s ‘Antinomy of taste’, the problem was to reconcile the non-conceptual and therefore indisputable subjective status of judgements of taste with the pretence to universal communicability and reasoned agreement.21 Moreover, in the model of political judgement formulated here, the regulative principle of purposiveness provides a sufficient ground for the never ending disputes of other people’s judgements. The reflective element of aesthetic judgement grounded in the free play of imagination and intellect – for what regards its formal purposiveness – shows to the adjudicating body – the ‘We’ – a possibility of non-biased and unself-interested judgements.
Pleasure in reflective judgements lifts our minds from subjective interests and directs its universally sharable content to a community of fellow human beings. This means that the reflectivity of political judgement is not itself a judgement on a particular something but discloses, rather, a condition of possibility for publicity – the possibility of non-instrumental coordination. This point is of particular interest for connecting Kant’s theory of reflective judgement with his political theory in general.22 As a matter of fact, if in Kant’s aesthetic judgement the implicit moment of publicity aims at overcoming a merely subjective condition in favour of an intersubjective universal pretence of communication, in his legal and political theory (in particular in his transcendental formula of public rights) it provides a negative standard for ruling out non-universalizable maxims.23 It is this latter point that Arendt emphasizes in the political reading of Kant’s judgement, even though she does not draw a connection between Kant’s universal condition of communicability of reflective judgement (as the overcoming of the antinomy of the subjective element of taste in the Third Critique), and the condition of publicity as a universality test in Kant’s political writings. According to the interpretation suggested here, the two aspects are strictly related, particularly since the first represents a preliminary condition for the second. Thus, it is only on the basis of a pretence to universal communicability that those non-universalizable maxims can be disqualified.
To see this point from a different angle it might be useful to claim that the intersubjective validation of maxims is grounded in the subjectively universal aspiration of communication. The overcoming transformation of the merely subjective element of aspiration into a universal form of communication can be seen as a converging element in what Kant defined in the Critique of Judgment as a form of ‘enlarged mentality’. In this respect, reflective judgement, in as far as it anticipates a sensus communis, is bound to consider other peoples’ perspectives from within the formulation of a subjectively universal standard.24
Overall, the political reading of reflective judgement also highlights another often overlooked component of contemporary theories of justice. Reflective judgements do, indeed, incorporate within their adjudicative standards what Quine has referred to as the collapse of the analytic/synthetic distinction. These judgements show the inadequacy of all those attempts pretending to formulate analytically true a priori statements.25 Kant, in fact, holds faith to a functional – not a structural – distinction of the threefold partition of judgements as to the a priori, a posteriori, analytic and synthetic distinctions, and he assimilates reflective judgement to the synthetic a posteriori condition. Furthermore, whereas synthetic a priori judgements are connected to determining judgements for which a universal is given and is a priori, in the case of a posteriori judgements and specifically in the case of reflective judgements, the particular is given but the universal is yet to be found. What is crucial here is that following Kantian functional differentiations, it appears that a posteriori judgements possess the status of judgements of knowledge, both in accordance with their empirical-descriptive version, as in the case of the judgement of experience, as well as in accordance with their paradigmatic version, as in the case of scientific-normative judgements constructed on synthetic a priori judgements. Scientific judgements are not, therefore, constituted on the basis of synthetic a priori principles, since the latter provide only a priori conditions. Synthetic a posteriori judgements, on the other hand, require the functional conditions provided by reflective judgement, and thus necessitate a specific ‘as if’ purposive principle which reflective judgements prescribe to themselves in order to proceed further in their investigations.
As a result of the overall discussion on the connection between fact-sensitivity and normativity of justice – the a priori and the a posteriori properties of judgement – it seems that a contemporary update of the Kantian project on judgement requires a more precise reconstruction of the circumstances for the use of reflective judgement.
If one turns to the (hopefully virtual) circularity of the ‘as if’ and the ‘as not’ condition for reflective judgement, it also becomes relevant to consider the importance of this interconnection for the self-constituting process of identity-construction of a political community. What seems interesting here is the subtle dynamics taking place in the construction of an adjudicating collectivity on the basis of the overcoming of non-identitarian elements within the ‘as not’. One could say that the ‘as if’ principle, in order to suggest a viable perspective for the future, should be capable of embedding within itself the same presuppositions for the validity of its own standard – an ‘as not’ condition – and transform the apparent incommensurability of individual perspectives into a newly reformulated notion of a collective body as a ‘not-not being this’. The co-implication proposed here of the ‘as if’ and the ‘as not’ as part of a reformulation of Kant’s reflective judgement bears, again, important connections to Agamben’s analysis of Paul’s Letter to the Romans where redemption is both a calling and a revoking action on a community and its history. What is claimed is that as a result of the first descent of the Messiah on earth, individual fellow beings are revoked from their socially unrelated bonds and called on to enter a new community. As Agamben argues, with the descent of the Messiah, redemption is no longer a point of view on things ‘as if’ they had occurred. On the contrary, both things and persons are taken starting from an ‘as not’ condition which is far from being ideal.26 The ideal of the ‘as if’ also found in the transitional reading of time as according to Pauline text, is something grounded in the non-ideal condition of a lost collective self. The ‘as not’ precedes the ‘as if’ and the ideal moment of purposiveness is grounded, accordingly, into the non-ideal transitional condition. The Pauline ‘klesis’ (‘call’), following Agamben’s analysis, reminds us that the positive moment for the reflectivity of judgement lies in the negativity and transitionality of the ‘as not’ as a self-constituting moment.
To return, then, to the disclosing force of a detranscendentalized view on judgement, it can be argued that the political perspective on the world presupposes a non-ideal formation of a self-constituting body placed in between a past which has not yet passed and a future which has already occurred. It is from the encroachment of these two moments that one should locate the transitionally relevant founding aspect of the Pauline ‘Hōs mē’ (‘as not’) as a condition of reflective judgement. This is the time which allows to conceive identity as a third possibility beyond the mere opposition between A and non-A or, as Agamben suggests,27 that of the identity-condition of Jews after revelation as no longer being Jewish or not Jewish, that is, as being not-not-Jews. What then does it mean not to be not Jew? Is this only a not being something or other, or is it also a being something else, even if not something which can be positively described?