The Ways of Judgmentby Oliver O'Donovan
The Ways of Judgment
This book, by the (Anglican) Regius Professor of Moral and Pastoral Theology at Oxford, is the sequel to and completion of The Desire of the Nations (1996). Taken together, these books provide a theologically substantial and thoroughly Christian analysis of the political order. They are written with the conviction that the political order cannot be understood without theology and that theology requires and entails an account of the political order. In the power and subtlety with which this double conviction is presented and argued, they can stand comparison with Augustine’s City of God, to which O’Donovan often appeals.
Since the seventeenth century, political theory has seemed to most who engage in it, Christians and others, to be an independent subject whose assumptions and conclusions may be brought into conversation with theology but are not themselves theological. One result of this has been that most political theology written in the last four centuries has adjusted its theology to convictions about the political order arrived at on nontheological grounds. This is why we in the United States are subject to the endlessly unedifying spectacle of apologists for one or another point on the political spectrum quarrying the Christian tradition for materials that will support their particular political convictions and calling the result political theology. The work of a Jim Wallis or a George Weigel is too often like this, and even that of more sophisticated thinkers like Jacques Maritain and Reinhold Niebuhr sometimes was. O’Donovan’s work is not: he treats thought about the political order as it should be treated, which is to say as theological first and last. He shows us the political world “as seen from the church’s horizon as vis-à-vis to the church.” And it is because of this that his claims about particular political questions cannot be easily located on the dreadfully familiar liberal-conservative spectrum.
O’Donovan’s purpose is to understand the practices of politics. Understanding these practices requires the clarification of the concepts that inform them, getting to the bottom of them as he likes to say. Doing this in turn means relating them not only to other appropriate goods of our social experience but also to “the transcendent goods in which these are rooted.” God appears almost as often in O’Donovan’s writing as society or politics, and this is because he unapologetically thinks that a complete and consistent account of our political practices requires reference to God. He does not, however, argue this independently of depicting and analyzing our political practices; neither does he offer a full-dress engagement with or refutation of the work of political theorists who do not think so. Such theorists-the liberal political philosopher John Rawls, for example-appear occasionally, but when they do it is as advocates of particular errors or wrong turns, not as interlocutors whose work is of interest in its own right. O’Donovan’s work is both analytical and prescriptive: analytical of the political practices we cannot avoid, and prescriptive of how we should think about those practices.
The fundamental political act as O’Donovan sees it, treated at length in the first part of his book, is judgment: “an act of moral discrimination that pronounces upon a preceding act or existing state of affairs to establish a new public context.” Judgment, he says, becomes political when it forbids or redresses wrong that harms the public good. Legislators judge when they pass laws; judges judge when they interpret and apply the laws; the police judge when they arrest and incarcerate; and every individual judges by voting, running for office, coming to conclusions about matters of public import, and so on. O’Donovan depicts judgment so understood as inevitably accompanied by uncertainty and shame. We must judge while knowing (if we are clear-headed) that we never know enough to be assured of the rightness and righteousness of our judgments, and so we judge in shame and tears, renouncing the purity of the political idealist’s certainty as well as the satisfaction of the political skeptic’s attempts to withdraw from judgment. We judge in humility to constrain damage, knowing that we will often fail even at this, but knowing, too, that we cannot avoid doing it. All this is deeply Augustinian, and an important corrective to the loudly proclaimed political certainties of Left and Right.
O’Donovan uses his analysis of judgment to shed light on kindred concepts, especially justice, equality, mercy, and punishment. Indeed, the chief test of the adequacy of his depiction of judgment as the fundamental political act must be whether this can shed such light, whether with it in mind we can understand better-more fully, more adequately-the political concepts we cannot do without and the political performances we cannot avoid. In analyzing punishment, for example, he argues that all punishment is responsive and backward-looking in the sense that it responds to something already done: this is what makes it an instance of judgment in the sense O’Donovan describes.
He has already produced one significant clarification: that forward-looking theories of punishment, those that claim, for instance, that punishment’s purpose is to reform the offender or to protect society, are not theories of punishment. Such theories divert the gaze from what punishment is, which is to make a judgment of a certain sort on something already done. O’Donovan puts it like this: “Punishment is best understood as a judgment enacted on the person, property, or liberty of the condemned party.” This, he says (and rightly), is something all societies do and must do: they-we-do and must enact condemnatory judgment of this sort. But we may think well or badly about this practice, and we may, therefore, also do it well or badly.
One error in thinking about condemnatory judgment, writes O’Donovan, occurs when we think of it in terms of debt and payment. This is to think of punishment as a form of exchange in which the offender has taken something (money, life, reputation) and must then have something (perhaps the same thing, perhaps something different) taken from him in requital. But to judge condemnatorily need not be thought about like this: there is nothing in the logic of deciding and proclaiming and performing condemnation that requires placing it under the logic of exchange. It is better understood as an act of truth-telling about what the offender has done. This is good for offenders: it proclaims to them what they have done. And it’s good for society: it “offers society the truth about itself” by performing an act of judgment that communicates what is good for it, which is to say, the conditions under which it can endure in relative security and peace. An important implication of this view is that the victim, the one who has suffered theft or violence or defamation, has no personal interest in the judgment passed on the offender, because, for Christians, vengeance has been removed from the interpersonal sphere. It is God’s, and God’s vengeance is evident in public judgment, not in private vengeance.
All this is very refreshing, but it is also very abstract. What does analysis of this kind have to say to questions about particular punishments? One practical implication is clear: the view that an individual offended against has a special interest in the punishment of the offender, an interest different from and additional to the interest of society at large in the same matter, is, on O’Donovan’s account, confused. Therefore, practices of punishment that presuppose or deploy it (inviting those close to someone murdered to watch the execution, for example) do not make sense. They are sub-Christian, certainly, but also irrational. It is also both sub-Christian and irrational to perform practices of punishment that degrade or dehumanize offenders, such as torturing them. The same is true of practices that encourage those offended against to despise offenders. None of this belongs to punishment properly understood. Yet, O’Donovan is clear, rightly, that it is not clear what goes on the list of illegitimate practices of punishment. The death penalty need not belong on that list, nor the Shari’ah requirement of amputating a hand as punishment for theft. Whether these are legitimate forms of punishment will depend on local variables, O’Donovan thinks. He also thinks that specifically Christian commitments (“a certain evangelical self-consciousness”) will encourage Christians toward mildness and mercy on these matters.
Regarding political institutions and political authority, O’Donovan makes a useful distinction between authority, which obliges, and power, which compels. Political authority cannot be reduced without remainder to power since the obedience obliged by authority is a condition of freedom, whereas actions compelled by power may produce slavery. This is not to say that political institutions do not use power; of course they do. It is to say that they are not to be defined simpliciter as users of power. If they were, they could not justly command obedience and loyalty, and O’Donovan thinks that human existence here below cannot properly be conceived without obedience to political authority.
O’Donovan resists perfectibilism in thinking about political institutions as well as political judgment. Shame and tears belong to both, and this means that O’Donovan holds no special brief for democracy’s legitimacy and much less for any suggestion that it holds a place at the apex of political evolution. Democratic forms can endure without being recognized as legitimate by the people they are supposed to govern, and when this happens a democratic political authority can become as illegitimate as any other. Democracy, for O’Donovan, is “a moment in the Western tradition; it has its own ecological niche.” We can embrace it with our imaginations and live within it; but we cannot properly think it the best possible political form, and we should acknowledge its tendency to substitute procedural purity for a substantive understanding of societal good.
This moderate enthusiasm for democracy-it’s ours and we’d better make it as good as we can, but its disadvantages are many and its benefits overstated-is linked by O’Donovan with a depiction of the counterpolitics of the cross. He means a social life lived toward a horizon at which all political authorities will abandon their acts of judgment before Christ’s. This is the life of the church, the community whose common life foreshadows the communion of the world to come. O’Donovan makes a powerful case that political theory (for Christians) requires a depiction of the life of the church, for if that life is a counterpolitics, then the analysis of it and of politics in the narrower sense must proceed hand-in-hand. The church is not, for O’Donovan, a polity that absorbs all others, and neither can it be restricted to a private place and a limited loyalty within a secular city that recognizes no other than itself. Rather, church and nation exist together until the eschaton as political forms to be understood in terms of one another.
It is an implication of O’Donovan’s work that the most adequate understanding of politics is a Christian one. It may also be an implication of his work that Christians should advocate forms of political authority that make explicit recognition of this, at least where there is a people to whose imagination the idea belongs. In this limited sense O’Donovan may be understood as an advocate of Christendom. This may trouble some, but it shouldn’t. O’Donovan is instructing Christians in how to think about politics, not trying to convince non-Christians that this is how politics ought to be thought about. So it is no objection to his work to say that non-Christians probably won’t find its horizons (as distinct from some of its particulars) persuasive. Not all Christians will find what he says persuasive either, but those disagreements-with, among others, some natural-law theorists; with those who think that Christians neither have nor need an understanding of the state; and with those who think that democracy is the political form implied by Christianity-will be deepened and stimulated by this book. It is the most subtle, systematic, and challenging work of its kind to be published in more than a generation.
If you want to think seriously and hard as a Christian about what politics is, and if you’re exhausted and depressed by the harsh and shrill station-identification that passes for political discourse in the imperial America of this new millennium, you should read this book.