Communities of Judgment and Human Rights

Theoretical Inquiries in Law 1 (2) (2000)
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The debates over "universal" human rights versus alleged abuses in the name of culture and tradition are best understood as conflicts between different communities of judgment. This article attempts to respond to the pressing need for an adequate theory of the role of judgment in order to address these debates. Using Hannah Arendt's work on judgment as a starting point, the article tackles the problems and possibilities that arise out of Arendt's view that judgment relies on a "common sense" shared by members of a community of judging subjects. The author identifies some of the puzzles surrounding the concepts of "common sense," "community," and "other judging subjects," concepts not fully developed in Arendt's theory. Section I begins with a brief outline of Arendt's theory and its relation to Kant's. In Section II, the author points to some of the virtues of a community-based theory of judgment and, in Section III, to the link between the issues in international human rights and judgment as community-based. Section IV identifies a set of interlocking puzzles posed by the idea of "community-based" judgment, while Section V offers a more detailed account of the concepts of "enlarged mentality" and "common sense" that serve as the basis for exploring these puzzles. These puzzles are then worked through in Section VI, particularly, the question of how can one decide to change or oppose "common sense" when it seems to be presupposed for judgment to be possible. Finally, Section VII addresses the implications of these theoretical arguments for human rights and the insights human rights debates provide for the theory. The author shows that it is necessary to understand these debates as a concrete manifestation of the problem of judgment across communities and how this particular problem, in turn, helps to refine the issues the theory must articulate and resolve. The modern world makes huge demands on our linked capacities for autonomy and judgment; in order to bestmeet these demands, we must understand the ways in which judgment is community-based.



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