Virtuous judges, politicisation, and decision-making in the judicialized legal landscape

2.1. Practical wisdom

Both ancient and contemporary proponents of virtue ethics have been sceptical about the possibility of codifying ethics in the form of a set of generalised and comprehensive principles; the variability of the situations one encounters in moral practice arguably precludes us from relying exclusively on ready-made general formulae in order to guide our behaviour.Footnote¹² Faced with this irreducible particularity of ethical life, virtue ethics emphasises the primary importance of an agent’s moral character for successfully navigating it; agents must possess certain virtues, such as courage, or friendliness, that dispose them to reliably act well in the various ethically salient situations that they encounter in their lives. In addition to such moral virtues, moral agents need an intellectual virtue in order to be able express these virtues in particular concrete instances. This is the virtue the ancient Greeks called phronesis and is now typically called practical wisdom. As Solum puts it, practical wisdom ‘is the virtue that integrates and directs the rest— that changes the picture of the virtues from a cacophony of competing voices to a well-orchestrated choir – with practical wisdom playing the role of director, giving beneficence, courage, good temper and the rest their cues’.Footnote¹³

2.2. The virtue of justice

Now that we have a general idea of the role of practical wisdom in judicial decision-making, we may proceed to discuss the virtue of justice. As Lawrence Solum stresses, the virtue of justice is ‘central’ to adjudication; a judge may possess all the other virtues, but if they are unjust, ‘all the rest would be for naught’.Footnote³⁹ In a similar vein, Van Domselaar notes that the virtue of justice ‘goes to the heart of what constitutes the specific judicial role’.Footnote⁴⁰

Notwithstanding this, the substance of the virtue of justice is notoriously evasive and contested. Generally speaking, we could say that in the context of adjudication, the virtue of justice means that judge is disposed to ensure that the parties in a case each receive their due.Footnote⁴¹ What does this require concretely? Arguably, a first element of justice as a virtue is that of judicial impartiality. A judge’s empathy or concern for the parties involved must be even-handed if they are to be considered just.Footnote⁴² What more can be said about how a just judge will tend to settle the disputes before him, aside from the fact that he will do so without special concern for one of the parties? Solum identifies two alternative approaches to further conceptualising the particular virtue of justice, namely as having to do primarily with fairness, or as having to do primarily with lawfulness.Footnote⁴³ On the first conception, a just judge would simply decide cases on the basis of some private conviction about what would be fair in the situation at hand. This conception of the virtue of justice is problematic for obvious reasons. Different individuals, and likewise, different judges, are not unlikely to disagree fervently over what is fair; hence we will be unable to come to any agreement on the question of which judges are just.Footnote⁴⁴ Moreover, if judges were to decide cases according to their private convictions about fairness, this would cause severe legal unpredictability, and would undermine law’s general functions of ‘coordinating behavior, creating stable expectations, and constraining arbitrary or self-interested actions by officials’.Footnote⁴⁵

Given these problems flowing from a ‘justice as fairness’ conception, Solum argues for an understanding of ‘justice as lawfulness’. On this view, which he bases on Aristotle, precisely because of the potentially contested nature of individual assessments of fairness, judges should rely not on their own sense of fairness in deciding cases, but on public judgements about fairness. These public judgements then, are found in the nomoi of the political community of which they are a part.Footnote⁴⁶ These nomoi include not just positive laws of that community, but also other stable customs and norms. Van Domselaar also accords a central place in her conception of judicial justice to such nomoi, and holds that the virtue of justice entails that ‘a judge is disposed to secure the values of political morality as they are worked out in settled (procedural) law, permeate the legal system and figure in society at large’.Footnote⁴⁷ Accordingly, Solum argues that to be just, a judge should not only be impartial, but must also possess ‘integrity’, which he argues consists in a general fidelity to the law and a concern for its coherence.Footnote⁴⁸

In discussing the virtue of practical wisdom, it became clear that judicial practice is concerned with particulars; each case is in an important sense unique. This salient characteristic of adjudication points towards the intimate connection between the virtue of justice and practical wisdom; a judge must be committed to adhering to the various legal rules and principles of the community, but they must also be able to bring these nomoi to bear on the particulars of the individual case in a way that best honours those particulars.Footnote⁴⁹ To do so, they must possess the kind of developed perception that enables them to recognise those features of a case that have legal relevance.Footnote⁵⁰ Hence, we can imagine that in practice, a judge’s sensitivity to and initial evaluation of salient facts will largely determine which fragments of law they deem to be potentially applicable to the case at hand.

Sometimes, then, taking a decision will be rather straightforward, namely when everything points towards some particular rule’s applicability and thus a certain decision. On other occasions, however, various rules or principles may conflict and deciding becomes more fraught. For example, in deciding a particular case, observing the principle of legal certainty may strongly point in one direction, whereas concerns of individual justice can very well point in the opposite direction, and the judge will have to deliberate about which ought to be prioritised and why. In other cases, judges may have to choose among competing interpretations of the same rule. Moreover, as I remarked earlier, whether a judge will be able to identify and differentiate hard cases will hinge on their possession of practical wisdom. The just and practically wise judge, then, is best disposed to resolve particular legal disputes on the basis of the relevant nomoi of the community, and is most apt to see which considerations of justice apply to the particulars of a case and how.Footnote⁵¹

2.3. Judicial virtue and legal justification

Thus far, I have elaborated how the judicial virtues of practical wisdom and justice provide an explanatory account of the process of judicial decision-making and underline the role of judges’ character therein. As I mentioned earlier, a further distinctive feature of virtue-based theories of adjudication is that judicial virtue has a central normative role. In order to fully appreciate this point and its implications, it is necessary to examine the relationship between virtue and legal justification in more detail.

In that regard, Amalia Amaya has developed a useful typology of possible approaches to the relationship between judicial virtue and legal justification, and has identified three main perspectives on this issue.Footnote⁵² On the first perspective, judicial virtue plays no role in legal justification, and is mostly relevant as a matter of legal ethics.Footnote⁵³ This approach does not exclude the possibility that virtue can be conducive to good judicial decision-making, but it remains complementary to the deontological, utilitarian or other theories that actually provide the justification for any particular decision.

A second approach, then, views the virtuous character of the judge principally as a heuristic device for identifying which judicial decisions are properly justified. On that view, a judge’s excellent character is a reliable and perhaps even the best indicator of a properly justified decision.Footnote⁵⁴ Hence, judicial virtue may be an important criterion for ascertaining whether a particular decision is likely to be properly justified. However, the decision’s actual justification is ultimately dependent on other criteria, for example coherence.Footnote⁵⁵

The third approach makes the rightness of a legal decision fully conditional upon the agent’s virtuous character.Footnote⁵⁶ Virtue, on this view, is constitutive of justification; the right decision is that which an excellent judge in like circumstances would likely take.Footnote⁵⁷ Amaya further explains that this constitutive approach comes in two basic variants, a weak one and a strong one. On the weak version, virtue may play a constitutive role in legal justification only in a selection of hard cases.Footnote⁵⁸ For example, if one adheres to a rule-based approach to legal justification, rules themselves are arguably wholly sufficient in order to justify decisions in plain cases, but virtue may need to be invoked in order to justify decisions in hard cases, seeing as how in those cases the rules themselves are not fully determinate. This, however, raises a conceptual problem, since it is difficult to explain how one can identify a hard case in the first place without recourse to something resembling judicial perception. This suggests virtue cannot merely come into play afterwards, which brings us to the strong constitutive version, which holds that virtue is fully constitutive of legal justification in all cases.Footnote⁵⁹ This third perspective on the relationship between judicial virtue and legal justification is adhered to by Amaya, Solum and Van Domselaar, and arguably sets a virtue-based theory apart from other theories of judicial decision-making.

Importantly, advocates of virtue-based accounts of judicial decision-making are keen to emphasise that this position on the role of judicial virtue in legal justification does not commit them to a one-right-answer thesis; they concede that virtuous judges may reasonably disagree as to how a specific case must be decided.Footnote⁶⁰ For example, Van Domselaar points out the possibility of virtuous judges coming to different decisions in a given case, explaining that diverging judgments will often not flow from substantively different choices concerning the same set of value-neutral facts, but rather arise due to differences in virtuous judges’ perception of the facts themselves.Footnote⁶¹ Likewise, Lawrence Solum denounces the idea that there would be a uniquely correct legal decision for each case, and in fact claims that ‘a virtue-centred account requires that two inconsistent outcomes in the very same case could both be legally correct’.Footnote⁶² One of the main implications of a virtue-based account of adjudication is thus that we can or even must expect diverging and sometimes even contrasting judicial decisions in particular cases, all of which may nevertheless be equally justified.

3.1. The judicialization of politics and judicial decision-making

The judicialization of politics is a multifaceted and complex phenomenon, comprising a variety of interrelated and mutually reinforcing developments in law and society, which ultimately lead, roughly said, to greater judicial power.Footnote⁶³ Following global waves of constitutionalisation and the more or less simultaneous rise of international legal instruments – both of which typically involve an increasingly important role for fundamental rights and the introduction of judicial review mechanisms – but also through various developments in administrative and private law, courts are increasingly able to put their mark on public decision-making.Footnote⁶⁴ Whereas before World War II judicial interference with democratically enacted laws or the actions of the executive branches of government was exceptionally rare in most States, nowadays one can witness such interventions on a daily basis.Footnote⁶⁵ Obviously, not all of them carry the same magnitude; many never make headlines or stir public controversy. Nevertheless, the introduction and expansion of judicial review mechanisms in various areas of law, the adoption of fundamental rights catalogues, the strategic turn to legal proceedings in order to achieve or draw attention to particular social and political aims, and the increasing willingness of judges to take up a more activist role, mean there is large potential for perfect legal storms. Many global societal challenges are thus increasingly being resolved in courtrooms.Footnote⁶⁶ Moreover, Ran Hirschl has observed a serious increase in the judicial treatment of so called ‘mega-politics’: ‘matters of outright and utmost political significance that often define and divide whole polities’.Footnote⁶⁷

How does this judicialization of politics affect adjudication? I think the impact of judicialization manifests itself in a number of ways. Firstly, the new institutional position that courts have come to occupy due to various legal innovations and societal developments means that the impact of how judges decide has grown exponentially; many judicial decisions no longer affect an isolated and clearly delineable set of individuals, but are all-affecting. Climate litigation is an obvious example here, but one can also think of judicial decisions concerning election outcomes, or deeply divisive issues such as abortion and euthanasia.Footnote⁶⁸ This increase in potential impact is not limited to issues of constitutional law, but can also be observed in administrative and even private law.Footnote⁶⁹ Importantly, this increased impact means that judicial decisions are bound to draw public reactions, and will incur heightened public scrutiny.Footnote⁷⁰

Secondly, in addition to increasing the potential societal impact and public awareness of judicial decisions, judicialization also affects judicial decision-making itself. Naturally, as Hart has pointed out, judges, when dealing with legal rules, will necessarily encounter language that is vague, ambiguous or in some way ‘open-textured’.Footnote⁷¹ However, the central role of fundamental rights and constitutional norms in the judicialized legal landscape means many judicial decisions will hinge on rules of which the meaning may be even more indeterminate, and often essentially contested.Footnote⁷² In fact, in the case of Hirschl’s ‘mega-politics’, a typical characteristic is that the legal norms in question offer only minimal legal indications or pointers to courts for settling the issues subject to review, so that often they are effectively forced to engage in moral reasoning.Footnote⁷³ Connecting this back to virtue-based accounts of judicial decision-making, which allows for divergence between virtuous judges, such salient characteristics of the legal norms that epitomise the judicialized context suggest an even greater potential for different and potentially contrasting decisions in particular cases.

3.2. The challenge of politicisation

Obviously, the judicialization of politics has seen, as John Ferejohn anticipated, both popular and political reactions.Footnote⁷⁴ This is to be expected when courts are given more power to impact public decision-making. Importantly, however, such reactions are not always welcoming or constructive, but often involve pushbacks and outright backlash against judicial authorities.Footnote⁷⁵ In some cases, judiciaries are faced with deliberate and sometimes brazen attempts to bring them under governmental control, such as in Poland and Hungary, where (high) courts have effectively been reined in after questionable judicial reforms.Footnote⁷⁶ There, judiciaries have become thoroughly politicised, and this has paved the way for concerted efforts by political actors and other powerful players to influence or even manipulate the judicial system in such a way that courts occupying strategic political positions become ideologically aligned with those in power.Footnote⁷⁷ Typically, political actors will focus on asserting control on an institutional level, for example through changing judicial appointment procedures, reducing tenure of sitting judges or packing courts, but it is also possible that individual judges become targets, as is demonstrated by the cases of Gersdorf and her colleague Igor Tuleya. Perhaps unsurprisingly due to their obvious political power, constitutional courts are most likely to be politicised, but there seems to be no prima facie reason that politicisation should exclusively occur in relation to constitutional courts. Supreme courts, for example, may also be targeted, as their position at the apex of the judicial hierarchy means they play a significant role in judicial law-making.

4.1. Tragic legal choice

As I explained in section II, the question of whether a particular judicial decision counts as properly justified effectively hinges on judges’ possession of the virtues on a virtue-based account of judicial decision-making; if a judge is virtuous, this in itself is sufficient for their decision to be considered justified. Notwithstanding this, on Van Domselaar’s virtue-based account the notion of a ‘right’ judicial decision requires further qualification. Virtue ethics in general approaches the idea of a right or justified decision with a certain reservation that is typically absent from other normative accounts, of which Ronald Dworkin’s is perhaps a case in point.Footnote⁷⁸ As is well known, Dworkin has consistently stood by his thesis that there is a single right answer to all hard cases. This position depends in part on the idea that moral and legal values are unitary, rather than plural, and that while conflicts between such values may appear to exist on the surface, they are essentially illusory.Footnote⁷⁹ Accordingly, there cannot be any true conflict between various judicial commitments, such as between competing fundamental rights, or between, say, legal certainty and individual justice. This harmonious or stabilising understanding of law and morality has significant consequences for how we view and evaluate judicial decisions. Not only must at least one of two competing views about the right legal decision be wrong, but because law and morality are characterised by systemic harmony a decision can never be right yet simultaneously imperfect or conflicted; it is either wholly right or wholly wrong. Hence, a corollary of these claims and their underlying commitments is that Dworkin’s conception of law and morality does not accommodate a notion of moral or legal loss.Footnote⁸⁰

Van Domselaar challenges this binary understanding and acknowledges the possibility of genuine, irresolvable and even tragic conflicts between various values that appear throughout the legal system and outside it. In that regard, she identifies four different types of potential conflict between judicial commitments that can give rise to tragic legal choices. The first of these concerns conflicting commitments to various fundamental rights.Footnote⁸¹ This type of conflict can be seen, for example, between the right to privacy and the right to the security of the person in the context of counterterrorism measures, or between a donor child’s right to knowledge about their genetic heritage and identity and the rights to privacy and autonomy of the sperm-donor and the mother.Footnote⁸² A second category concerns potential conflicts arising from a judge’s commitments to settled law on the one hand and their commitment to values of political morality on the other; this type of tragic conflict can occur, for example, when following and applying rules of legal procedure, such as a statute of limitation, effectively involves a disproportionate negative effect on a citizen.Footnote⁸³ Thirdly, there may be conflicts between a judge’s commitment to the law, and their commitment to the well-being of the concrete embodied other. For example, the various personal circumstances of a particular criminal defendant standing trial may rightly incur judicial sympathy, yet honouring one’s commitment to their well-being, for example by acquitting them, may require one to forsake settled law or principles of justice.Footnote⁸⁴ A fourth category of conflicting commitments stems from the presence of epistemic uncertainty, and as such, also permeates the other categories. Due to the irreducible complexity of reality, even virtuous judges may experience (radical) uncertainty about their individual perception of the particulars, or about the correct legal bearing of a case, or about the consequences of a potential decision. The presence of such uncertainties and the accompanying risk of making a mistake can mean the judge has strong reasons not to want having to decide. However, they have a legal duty to do so.

Although each of these types of conflicting judicial commitments differs from the others in important ways, they are bound by a common thread. Each category denotes a type of case in which the values at stake are potentially incommensurable, and one must be sacrificed in order to realise the other.Footnote⁸⁵ Importantly, not every irresolvable conflict of value is tragic; a tragic legal choice presupposes that the value or interest to be sacrificed is of a serious magnitude, not just trivial.

In tragic legal cases, then, whichever way the judge decides, their decision will gives rise to a moral remainder.Footnote⁸⁶ Hence, although a decision may be right, in the sense that a virtuous judge finds that a certain value or interest must, all in all, prevail over another, this may simultaneously involve a kind of loss. Van Domselaar points out that this remainder or loss should evoke in the judge certain appropriate emotions, like pain or regret, and may generate duties on their part toward the negatively affected party; the loss in question must be explicitly recognised and addressed.Footnote⁸⁷ This imperative brings us to another concept that is central to Van Domselaar’s virtue-based account of adjudication, namely that of civic friendship.

4.2. Civic friendship

In examining the relationship between virtue and legal justification, it became clear that a virtue-based theory of judicial decision-making accepts the possibility that virtuous judges may come to a different decision in the same case. Whatever theoretical arguments can be given in support of this claim, from citizens’ point of view, the possibility of diverging decisions in their case is potentially problematic.Footnote⁸⁸ Why would they be compelled to accept a decision that affects them negatively, given that another virtuous judge could just as well have decided differently? Van Domselaar acknowledges the legitimacy of this concern, and takes recourse to the notion of civic friendship in order to mitigate it.Footnote⁸⁹ According to Van Domselaar, this notion of civic friendship involves a shared understanding of the importance of the political community for the flourishing of its members.Footnote⁹⁰ In the context of adjudication, civic friendship means there is a certain bond between citizens and judges, characterised by a mutual concern and goodwill, which flows from their shared commitment to that community.Footnote⁹¹ Accordingly, a virtuous judge will act as a civic friend, and has due concern for the concrete interests of the citizen(s) whose case they must decide.Footnote⁹² By acting as a civic friend and by being seen to act as one, parties are provided with reason to believe that the judge has duly considered and weighed their legitimate interests in coming to a final decision and may be able to accept the decision in their case, even though another judge might have come to another decision.Footnote⁹³

Importantly, civic friendship is not just a symbolic and abstract notion which is automatically present in all cases. Rather, it must be brought to expression in legal proceedings through a range of practical gestures, and it demands of the judge that they express their concern for the citizen(s) involved in various concrete ways. Expressions of civic friendship can involve sincere displays of empathy with the affected citizens’ plight; judges may address certain aspects of a citizen’s predicament explicitly in their judgment, for example in obiter dicta, and during proceedings. A virtuous judge, as a civic friend, will reliably express this concern for the good of their fellow cititzen; for example, in a case over child-custody, they will acknowledge and address the pain of the parent who is deprived of participating fully in their child’s life due to the decision. This example also illustrates that, in the case of tragic legal conflicts, civic friendship seems to demand that judges acknowledge the existence of such conflict, and in some way tend to the moral loss that accompanies their decision in a way that is meaningful to the parties.

4.3. Tragic legal choice, civic friendship, and the challenge of politicisation

Having outlined the basic elements of the notions of tragic legal choice and civic friendship, I now proceed to examine how these might be employed in relation to the phenomena of judicialization and politicisation. Firstly, I explore briefly here how the process of the politicisation of judiciaries might be plausibly explained in part as resulting from judicial disregard of the tragic character of cases with great societal impact. Secondly, and in connection with the first point, I explore in this section how judges could give expression to civic friendship in such cases and may thereby prevent such politicisation.

One advantage of the notion of tragic legal choice lies in its potential explanatory value with respect to the extent and depth of the contestation and resentment arising in response to instances of judicialized politics in contemporary societies. Many instances of judicialized politics essentially involve weighing competing fundamental rights, such as those of security and privacy in the context of anti-terrorism measures, or those of equal treatment and religious freedom in the context of education, and as such, these kinds of political conflict are especially prone to give rise to tragic legal choices. As such, we may hypothesise that contestation of such decisions may become more severe if the moral losses that accompany them are not recognised and acknowledged by judges. By explaining away or concealing the genuine value conflicts characterising these cases, citizens whose rights or interests do not prevail may find that they are not accorded the respect that they are due and can experience feelings of indignation and humiliation.Footnote⁹⁴ Conversely, a winner-takes-all approach to judicial decision-making releases citizens whose rights or interests do prevail from the responsibility to take account of the moral loss suffered by their fellow citizens and may even inspire hubris, adding insult to injury for those on the losing side.

Accordingly, polarisation may arise or be consolidated as a result of impactful judicial decisions, and politicisation of future judicial decisions and of whole institutions seems to become more likely. Importantly, the idea here is not that the phenomenon of politicisation could be attributed to a single cause such as the conduct of judicial actors; the complexity of the dynamics at play is obviously much greater, and other factors over which judges have no control will also determine politicisation’s occurrence and its extent. Still, if there are aspects of adjudication that do affect the occurrence or the level of politicisation it is worthwhile to pursue what kind of judicial behaviour may help prevent or contain it.

As I pointed out, for Van Domselaar the occurrence of a tragic legal choice also means a judge has a particular responsibility to attend to the moral loss involved, and this is related to the demands of civic friendship. Again, Van Domselaar does not elaborate this notion of civic friendship with an explicit eye to defusing or channelling disagreements over judicial decisions in cases with great societal impact. Yet there seems to be no prima facie reason that precludes us from exploring its normative potential in this regard. Hence, we might rely on civic friendship to absorb some of the impact caused by tragic legal choices in particular cases of judicialized politics, and more generally in order to mitigate the possibility of diverging decisions by virtuous judges.

The extension of the notion of civic friendship to these kinds of cases does however raise new questions. For one thing, the idiosyncratic context of judicialized (mega-)politics implores us to consider how judges may express civic friendship in cases which not just the interests of a particular and concrete citizen but the interests of many or even all citizens are at stake. Maria IJzermans has pointed out that in general, judges serve a multitude of audiences, and that they must be responsive not just to the parties that are formally involved, but also to the larger public and the legal community.Footnote⁹⁵ With respect to judicialization, then, it seems fair to say that in cases of serious societal impact, there will often be a shift in, or expansion of, the principally relevant audience; hence, in judicialized disputes, society at large and non-participating stakeholders become more prominent addressees than in relatively quotidian cases.

This shift in or expansion of the relevant audiences has implications for how judges can give expression to civic friendship: if affected citizens in these cases are not formally implicated in the dispute and hence absent from the courtroom, they will need expressions of civic friendship that are different from the personal gestures of concern that suit the more intimate face-to-face setting of ‘ordinary’ legal disputes.Footnote⁹⁶ Most affected citizens in cases of judicialized politics will not actively follow the proceedings but are simply confronted, often quite suddenly, with a decision, for example through reporting by the media. Given these circumstances, it appears that the content and style of the written judgment becomes a more prominent vehicle for the expression of civic friendship. In that respect, the rhetoric of judicial decisions can be argued to play an essential role, and IJzermans has contended that judges must not just consider the legal-rational quality of the various arguments in motivating their decisions, but should also approach their judgments as ‘rhetorical events’; they must render a judgment which is not only legally correct but which also manages to convince those who are not legal experts.Footnote⁹⁷

Moreover, Martha Nussbaum has argued with regard to the language of adjudication more generally, that this must be ‘a language that is expressive of the kind of imagination that's capable of perceiving the individual humanity of the people involved and their circumstances; recognizing that each has a complicated story with factors that make it not the same as anyone else's’.Footnote⁹⁸ This reflects Nussbaum’s wider ideas about the expressive and ‘statement-making’ functions of a text’s form and style, and about the impossibility of neatly separating style and content.Footnote⁹⁹ A more expressive and empathy-laden language may offset or counteract law’s tendency towards technical specialised jargon. One could add to this that another way in which judicial decisions could arguably be made more rhetorically persuasive for large audiences is by using ‘plain legal language’. This furthermore increases these judgments’ accessibility and in itself shows a concern on the part of judges for effectively communicating with affected citizens.Footnote¹⁰⁰

Taken together, these remarks suggest that judges and courts need to communicate their decisions clearly, empathically, and altogether persuasively in order for them to be regarded as civic friends in the eyes of affected citizens and maintain their legitimacy. Concretely, this could involve that they give due concern to the concrete and legal interests of ‘constitutional losers’, which may include not just the parties to the dispute, but (part of) the larger public that has an interest in the outcome of the case. In a similar vein, it appears that judges should reflect explicitly upon the tragic nature of some decisions, and take care to ensure that negatively affected citizens feel that the moral weight of their claim is publicly acknowledged. Accordingly, although some may be dissatisfied with particular judicial decisions in terms of their substantive outcome, the fact that a judge has carefully considered the respective positions of the parties and the interests of other affected (groups of) individuals may inspire mutual civility in the face of profound moral and political disagreement, and may go a long way in preventing public discourse about courts from turning sour. In this way, judicial expressions of civic friendship might defuse persisting disagreement over particular judicial decisions and actors, and could thus contribute to meeting the challenge of politicisation.

Obviously, the above exploration of how civic friendship may be given expression in the particular context of judicialized politics remains very tentative and is in need of further elaboration and substantiation. For example, for judges to express civic friendship to the large groups of citizens, they may need to possess additional judicial communicative or rhetorical virtues. Still, it seems to promise ways forward for courts in the face of looming politicisation, and implies a task for virtue jurisprudence in further exploring some of the directions and concepts introduced here.

5.1. Modern moral discourse

In After Virtue, MacIntyre advances the ‘disquieting suggestion’ that our moral language has fallen into a state of grave disorder.Footnote¹⁰³ Arguably, the (re)turn to virtue ethics in MacIntyre’s work cannot be made fully intelligible without – and indeed flows from – an acknowledgement of this particular calamity, and of understanding the history of moral philosophy as consisting of three consecutive stages: in the first stage moral theory and practice were held to embody genuine objective and impersonal standards which provided rational justification for everyday moral claims, and these standards themselves were likewise susceptible of such justification; in the second stage, there were unsuccessful attempts to maintain that objectivity and the ensuing philosophical projects aimed at supplying new rational justifications for morality faulter; In the third stage, the belief takes hold that the very idea of the possibility of such justifications is untenable.Footnote¹⁰⁴ According to MacIntyre, we as ‘inhabitants of modernity’ find ourselves in this third stage, and he observes that our social and political life is dominated by continuous moral disagreement, which is of a seemingly interminable character.Footnote¹⁰⁵

He argues this by noting three salient characteristics of modern moral discourse and the disagreements that typify it. Firstly, he finds that the participants in various moral debates typically employ rival arguments of which the basic underlying premises are conceptually incommensurable, and notes that we have no established way to decide between these premises, whether they are of a utilitarian, Kantian, Marxist, or other brand.Footnote¹⁰⁶ According to MacIntyre, we may trace back our rival positions on distinct issues about which we disagree to such rival basic premises, but when we arrive at this point, ‘argument ceases and the invocation of one premise against another becomes a matter or pure assertion and counter-assertion’.Footnote¹⁰⁷ Secondly – and quite paradoxically – despite this apparent inability to establish the superiority of the basic premises of one moral theory over those of another, we typically still use moral arguments and appeal to them in a way that purports to their having exactly this type of impersonal, objective, and rational authority.Footnote¹⁰⁸ Thirdly, MacIntyre observes that the various incommensurable premises that underlie the arguments used in these debates have their origin in a wide variety of historical contexts, ranging from Ancient Greece to eighteenth century Prussia, to Victorian England, and so on.Footnote¹⁰⁹ Yet, according to MacIntyre, we wholly underestimate the importance of not only the diverse historical ancestries of the concepts and arguments in question, but especially of the fact that these were once part of a coherent moral idiom and at home in specific social contexts that provided them with meaning and functions, both of which have since been lost.Footnote¹¹⁰ Instead, we employ these various concepts and arguments as if they are part of a single ongoing debate on morality, and consider their historical context rather irrelevant.Footnote¹¹¹

5.2. Emotivism: content and social implications

MacIntyre claims that – very much in line with the general ahistorical tendencies of modern moral philosophy more generally – we are tempted to conceive of this interminability of contemporary moral disagreement not as a contingent historical anomaly, but rather as a necessary truth about all moral discourse regardless of time and place.Footnote¹¹² This position, he says, shows close affinity with the philosophical thesis of emotivism, according to which all moral utterances ultimately express noncognitive psychological states, e.g. purely subjective preferences, rather than truth.Footnote¹¹³ On the emotivist view, a statement such as ‘Hitler was evil’ is thus considered not a statement of fact, but rather as equivalent to a statement along the lines of ‘boo Hitler, boo!’. For various reasons which I need not enter into detail about here, MacIntyre considers emotivism to be a wholly inadequate theory of morality and of general moral utterance. Nevertheless, for all its conceptual defects, he believes that its general thesis concerning the fundamental impossibility of rationally justifying moral claims has gained serious traction and has in fact become embodied in our culture, so that much of our behaviour presupposes its validity.Footnote¹¹⁴

Importantly, for MacIntyre, all moral philosophies presuppose or envision a distinct sociology.Footnote¹¹⁵ In that regard, the thesis of emotivism inevitably embodies a rather unpleasant view of social relations, in which, since there are and can be no rational ways of resolving moral disagreements, discourse about moral issues can effectively amount to nothing more than elaborately veiled attempts to manipulate and persuade others in siding with our particular subjective preferences.Footnote¹¹⁶ At its core, emotivism envisions a Nietszchean social world, one which ‘entails the obliteration of any genuine distinction between manipulative and non-manipulative social relations’.Footnote¹¹⁷

In line with this, MacIntyre argues that the collective acquiescence to the emotivist thesis of morality has had important repercussions for the politics and public discourse of modern societies.Footnote¹¹⁸ For one thing, he thinks it gives rise to ‘protest’ as a distinctive and dominant feature of modern public life. For MacIntyre, modern protest is characterised by participants’ shrill and indignant self-assertion of particular moral claims vis-à-vis rival claims, such as rights versus utility – and precisely in shrillness and indignation being the dominant modes of expression he reads our subconscious awareness of the fact that our protest may be rhetorically effective, but cannot be, for the reasons mentioned earlier, rationally effective.Footnote¹¹⁹ In addition, our implicit belief in the truth of emotivism gives rise to a rather pernicious strategy of ‘unmasking’ those whose evaluative claims we disagree with, by showing that the particular moral theories which are invoked to provide an objective and impersonal justification for their claims – be they of a utilitarian, intuitionist, Kantian, neo-Aristotelian or other kind – are in fact nothing more than masks, worn to conceal the arbitrary and subjective wills that actually underlie our diverse moral positions.Footnote¹²⁰

5.3. The emergence of emotivism and the (re)turn to virtue

In order to uncover the roots of this emotivist understanding of morality and the culture it produces, MacIntyre approaches moral philosophy as a history of ideas. By examining the thesis of emotivism in its historical context, he argues that it must be understood as a logical response to the view of morality propounded its theoretical predecessor, moral intuitionism, of whom G.E. Moore was the most prominent exponent.Footnote¹²¹ MacIntyre then goes on to provide, in reversed chronological order, a narrative genealogy of Western moral philosophy, and finds that the real origins of our contemporary moral predicament lie at the start of the Enlightenment. It was in that period that philosophers began to insist on the is/ought gap and consequently jettisoned the teleological understandings of human nature which had provided the foundation of the earlier theories of Aristotle and Thomas Aquinas. MacIntyre argues that the subsequent Enlightenment attempts to establish an alternative, rationally vindicated foundation for morality were unsuccessful, which eventually set the stage for the emotivist understanding of morality to emerge and thrive.Footnote¹²² Importantly, for MacIntyre, the Enlightenment project was set up for failure from the start, and he considers the philosophical abandonment of teleological approaches to morality an error of epic proportions.Footnote¹²³ Importantly, it is only after identifying these various issues and diagnosing them as problematic, and after extended discussion of their various philosophical and historical origins, that MacIntyre is led to argue for the revival of the tradition of virtue ethics. This means that MacIntyre’s particular defence of virtue ethics can hardly be understood separately from his criticisms of modern moral philosophy and discourse.

5.4. Modern moral conflict and the prospects for meeting politicisation

What are the main implications of MacIntyre’s diagnosis of modern moral philosophy and discourse for understanding the challenge of politicisation, and for how we envision the potential role of judges and courts in averting it? As I have noted already, the salient fact that much of the legal rules which are central to the context of the judicialization of politics are highly open-textured and often employ concepts whose meanings are essentially contested, implies more room for disagreement over their interpretation and application by judges. Virtue-based accounts of adjudication in fact acknowledge the existence and persistence of such disagreements, at least to a certain extent; they argue that differences in perception are possible, also between virtuous judges. On the more optimistic account that I developed in the previous section, up to a certain point, disagreement over particular decisions, or over whether a judge exemplifies certain virtues or not, is not bad per se. We may accept such conflict and disagreement as part and parcel of the complexity of moral and public life, and thus of public debates over (particular instances of) judicialized politics, and rely on civic friendship as a source of social cohesion and of public trust in courts.

On MacIntyre’s view, the expectation that citizens will engage more or less constructively in public debates over (judicial) virtue, and that they will be able to transcend such disagreements when necessary, seems hopelessly naive. On his view, the greater possibilities for disagreement flowing from the nature of the rules animating the judicialization of politics simply hold a promise of increasingly prevalent protest over unwelcome judicial decisions by those adhering to contrasting moral viewpoints. Moreover, insofar as the open texture and essentially contested nature of these rules invariably highlight the role of the judicial actors involved, dissatisfaction with their decisions may invite the particularly hostile dynamics of ‘unmasking’ these actors; after all, unmasking ‘is also a political tactic for undermining the moral credibility of social and political actors, exposing them as the enemy, and revealing for the rest of the world the enemy’s covert intentions, schemes, and machinations’.^Footnote124

In light of these considerations, MacIntyre’s analysis invites us to entertain the thought that the Polish government’s public crusade against Gersdorf and her colleagues is perhaps best understood as an illustration of a sustained attempt at judicial unmasking.Footnote¹²⁵ As such, his analysis provides a potential philosophical resource for understanding the mechanisms underlying the politicisation of courts and attempts to assert political control over them. On this view, increasing politicisation is perhaps not just the ‘inevitable flip side’ of judicialization, as Hirschl has argued.Footnote¹²⁶ Instead, it feeds off the interminability of contemporary moral conflict and an implicit, unarticulated but pervasive belief in the universal truth of emotivism. The judicialization of politics, then, has merely shifted these conflicts from political to judicial arenas, making judges primary targets of protest and unmasking.

Appeals to judicial virtue cannot simply negate this risk. As has become clear, people can and do disagree on the substance of particular virtues, and thus on which judges exemplify them and which do not. In a thoroughly emotivist culture, virtue itself becomes ‘yet another empty and failed moral concept, open to arbitrary definition by one or another partisan community’, so that ‘we have no choice but to expose it for what it is, namely, a fiction among moral fictions’.Footnote¹²⁷ Likewise, civic friendship’s ability to foster an atmosphere of reciprocity and conciliation, and thus to mitigate or avert the risk of politicisation seems unlikely on the MacIntyrean view. Why should, say, a libertarian, whose views on the good life and the role of public authority therein are diametrically opposed to those of a neo-Aristotelian, be soothed by expressions of civic friendship? Like the virtues, it could be said that the notion of civic friendship itself belongs to a particular moral worldview, and presupposes a certain basic moral unity. For civic friendship to successfully mitigate the inevitable vagaries of virtuous judicial decision-making, it seems we must presume an existing societal consensus on and commitment to a basic set of (virtue) ethical and political starting points. Yet the MacIntyrean understanding of moral conflict challenges this very presumption. Following MacIntyre, our societies are in a state of serious moral disarray and thus far removed from the kind of moral unity required for civic friendship to work its magic.Footnote¹²⁸ Surely, this is not to say that judicial expressions of civic friendship may never be effective, much to the contrary. Like protest however, they cannot be rationally effective; they become incantations rather than appeals to a genuinely shared moral commitment.

To make matters worse, it appears that if MacIntyre’s diagnosis is right, there is reason to assume that instances of judicial decision-making which foreground the subjective character of the decision-making process may be particularly vulnerable to get caught up in the antagonistic social dynamics that permeate emotivist culture. Accordingly, even genuine gestures of civic friendship may find a rather indifferent or even unsympathetic audience, and, insofar as these expressions underline judicial subjectivity, can be exploited by those who find themselves in disagreement with the decisions in question.Footnote¹²⁹

Obviously, run of the mill cases are unlikely to stir such deep controversy; and whether these risks materialise in particular cases is arguably dependent upon many other factors and therefore extremely difficult to predict.Footnote¹³⁰ Moreover, the existence of incommensurable moral standpoints does not always culminate in outward manifestations of protest and unmasking.Footnote¹³¹ Hence, not all instances of judicial decision-making in cases that (indirectly) affect large numbers of people will necessarily attract hostility in the ways suggested here.Footnote¹³²

Nevertheless, when we shift our focus from theory back to the reality of the contemporary legal landscape, it is striking that many recent attempts to assert control over judiciaries employ a narrative that points towards the individual ideological proclivities of certain judicial officials, and that promises to restore a much-needed impartiality.Footnote¹³³ After all, it is but a short step from establishing that individual judges (or courts more generally) introduce subjective value judgements – which on the emotivist understanding amount to nothing more than arbitrary wills to power – into what ought to be an impartial and independent enterprise, to weaponizing this and using it to manipulate the discourse about courts in a way that best serves one’s own political or ideological agenda. Such rhetoric may sort even stronger effects in countries where the institution of judicial review - and hence the proliferation of judicialized political conflict – is relatively novel, and where the orthodox fiction that judges merely ought to ‘speak’ the law still reigns supreme in the collective legal consciousness, so that the idea of a judge’s moral character playing a pivotal role in their decisions is more likely to elicit feelings of indignation and outrage.

On a more fundamental level, MacIntyre has suggested that our increasing reliance on the institution of judicial review is itself a symptom of our interminable moral disagreements, insofar as it enables us to recast many of our moral conflicts in legal terms. This juridification leaves these issues to be settled through technical legalistic reasoning, and thereby effectively conceals the unpleasant reality of our moral predicament. It is particularly interesting to connect this understanding of the function of judicial review to Hirschl’s observations on the judicialization of mega-politics. Noting that judicial reasoning in cases of mega-politics is often more of an outright moral and/or political rather than legal nature, Hirschl has suggested that issues of mega-politics are often better addressed in a regular political setting.Footnote¹³⁴ MacIntyre would likely respond that our structural inability to resolve or overcome moral disagreements in the realm of politics is precisely why issues of mega-politics are judicialized to begin with. Lacking rational justifications, it is ‘the mark of a liberal order […] to refer its conflicts for their resolution […] to the verdicts of the legal system’. Hence, on this view, the socio-political fact of judicialization itself is symptomatic of the state of our moral discourse and must also be fundamentally scrutinised.Footnote¹³⁵