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Tuesday, May 08, 2007
Wisdom, Judicial and Otherwise
The New York Times Magazine this weekend, in an unfortunate flurry of Boomer-related articles on aging, has a quite interesting piece on the scientific study of wisdom. Although the piece notes that one of the difficulties of this area of study is the definition of wisdom itself, it offers this start:
Certain qualities associated with wisdom recur in the academic literature: a clear-eyed view of human nature and the human predicament; emotional resiliency and the ability to cope in the face of adversity; an openness to other possibilities; forgiveness; humility; and a knack for learning from lifetime experiences. And yet as psychologists have noted, there is a yin-yang to the idea that makes it difficult to pin down. Wisdom is founded upon knowledge, but part of the physics of wisdom is shaped by uncertainty. Action is important, but so is judicious inaction. Emotion is central to wisdom, yet detachment is essential.
The article goes on to note that, to the extent that wisdom is associated with age, it appears to "plateau" in middle and early old age, and to decline around the age of 75, perhaps in tandem with cognitive decline.
This research looks like a "law and" article in waiting. (For those running pre-emption checks, consider this my effort to stake a claim for priority with respect to any future work on the subject.) Among the questions one might ask: Are the qualities of wisdom identified by the researchers profiled in the article also relevant aspects of judicial wisdom? If forgiveness, humility, and emotion are central aspects of wisdom, does that suggest that a wise judge who possesses these qualities should eschew a more mechanical, formalist approach to legal reasoning -- or is wisdom so rare a quality that formal reasoning is, a la Vermeule, still the best "second-best" approach to judging? Do these qualities make more sense at the trial level than the appellate level, or are they desirable qualities in both cases? And do the researchers' findings on the imperfect and ultimately diminishing correlation between wisdom and age suggest anything about the proper age at which federal judges should be appointed to the bench, notwithstanding the evident desire of Presidents to appoint judges at ever younger ages -- and the ongoing debate about the desirability of eliminating judges' lifetime tenure and instead fixing a retirement age for judges?
Finally, a bonus feature: The online version of the article links to a questionnaire used to assess how wise people are. Test yourself! How wise are you? I will wisely refrain from reporting my own score.
Posted by Paul Horwitz on May 8, 2007 at 09:36 AM in Article Spotlight | Permalink
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Comments
Wait a minute, wait a minute, Scott. Everybody knows that the optimal age for wisdom is [current year] - 1954. The cohorts were just warming up in 1946, and it meant being 22 in 1968. The later boomers, those turning 22 in 1976, had the advantages of the mistakes of the early boomers, came into political awareness with the tailing off of the Viet Nam war and the post-Watergate morality. Our heroes were Bernstein and Woodward. And we preceded the self-satisfaction of the eighties. Plus our '70s clothes were bitchin'.
Sincerely,
Jeff Lipshaw, born June 16, 1954
Posted by: Jeff Lipshaw | May 9, 2007 6:36:43 PM
Scott, If you would permit me (and presumably Paul doesn't mind), I'd like to take a shot at least part of your questions above:
One can be in large measure relativist or perspectivalist (but not an absolute relativist), while still being a 'moral absolutist' or committed to an objective theory of truth (the absolute serving as a kind of regulative ideal never wholly realized, instantiated or embodied [unless, that is, one has the requisite sort of mystical experience that is extremely rare]). The Jain theory of knowledge suggests one way this may be done, as do several philosophical schools of Indic provenance. Cf. too Michael Lynch's Truth in Context: An Essay on Pluralism and Objectivity (2001). Gandhi, for instance, was a moral absolutist, but this did not prevent him from appreciating other religious and non-religious perspectives. An absolutist can be non-judgmental: after all, perfectibilist moral and spiritual theories are developmentalist (Nozick discusses this a bit in the section on ethics in his Philosophical Explanations), meaning, in short, that it's rather silly to denigrate or be judgmental about states or behavior one has oneself previously succumbed to or indulged in but now passed beyond. Similarly, while there may be absolute truth, our perspectives or understanding of same may be--and usually are--relative or partial given our individually unique trajectories of nature and nurture, or differing degrees of realization of capacities and potentials, etc. I suspect our tendency to think someone who is religious may be 'less relativist' in the sense implied above arises from our viewing such matters through the lens of the Semitic monotheistic traditions, but even still some of this may appply to adherents from these traditions too. And of course my remarks are not at all intended to answer what the test would say.
Posted by: Patrick S. O'Donnell | May 9, 2007 1:27:01 PM
Also, nice observation, Paul, that this is part of "an unfortunate flurry of Boomer-related articles on aging". How fascinating that the conclusion was that boomers are in, or just entering, peak "wisdom" age! This from the generation that, when in their teens and twenties, declared, "don't trust anyone over 30!"
Clearly the optimal age for a human to be is calculable by the following formula:
[current year] - 1946
Posted by: Scott Moss | May 9, 2007 11:04:17 AM
Ironically, I was unsuccessful in attepting to complete the "wisdom" test b/c I did something dumb: I was eating grapes while taking the test, and my laptop's touchpad often wigs out when my hands are wet. I should get a zero on this alone.
More serious comment: does the test seem to be saying that moral relativism is an important part of wisdom (e.g., don't be judgmental, the other side always has a point, etc.)? If so, would religious people, at least those who are less relativist, be graded as "unwise" by this test?
Posted by: Scott Moss | May 9, 2007 11:00:33 AM
Paul,
Not off the top of my head: except to make the rather insipid observation that judicial wisdom has its own virtues that are only indirectly related to or at least one remove from 'traditional' conceptions of wisdom (perhaps, therefore, we can only speak figuratively or by analogy); much in the manner I would say Larry Solum's conception of 'virtue jurisprudence' is related to virtue ethics (as such). So I suppose what I'm trying to say is that when we speak of 'judicial wisdom' we should be clear that this is not simply an expression of traditional notions and understanding applied in any straighforward manner to the realm of jurisprudence, or, put differently, we should be clear as to what judicial wisdom is *not*. But I have not thought about this question enough to have anything worth saying (and I suspect if I did it would entail in part getting into the treacherous terrain of natural law or at least questions having to do with morality and the law, emotions (e.g., mercy, compassion, sympathy, anger, vengeance, etc.) and the law, rationality and the law, etc.).
Posted by: Patrick S. O'Donnell | May 8, 2007 12:09:34 PM
I want to second (or third) the comments above about the test. I did the test twice, the first time giving my honest reaction to the questions and the second time guessing which answers were likely to be given the highest "wisdom rating." The first time, I got a 3.6 out of 5 (I am "moderately wise")). The second time I got a 4.8. The criteria I used the second time around were (1) almost never pick the neutral or "3" option; (2) be empathetic and extremely interested in helping people (as suggested above); (3) never be judgmental when it comes to other people; (4) always be rationalistic and in favor of knowing the facts; and (5) take a fatalistic view of my personal history and prospects for the future.
This isn't to say that these qualities don't, on some occasions, bespeak 'wisdom.' They may. But the fact that the test (and, perhaps the research behind it?) can be so easily gamed by a novice like me doesn't speak very well for its sophistication.
Posted by: md | May 8, 2007 11:58:10 AM
What a rich set of comments! Thanks to all. Patrick, any thoughts on how the materials you've discussed can or should apply to the judicial role?
Posted by: Paul Horwitz | May 8, 2007 11:23:06 AM
The wisdom/knowledge conundrum expressed in the statement that 'Wisdom is founded upon knowledge, but part of the physics of wisdom is shaped by uncertainty,' I think can be better expressed by looking at discussions of wisdom in some 'world religions' (and in Platonic philosophy). In these traditions, knowledge as wisdom frequently has to do with 'nonpropositional knowledge' (and I'm not referring here to that sort of knowledge by acquaintance in the Russellian sense, which has everything to do with the senses) that is thought to inform yet transcend propositional knowledge: in the Islamic Illuminationist tradition of Shihāb al-Dīn Suhrawardī, for example, this is spoken of as 'knowledge by presence,' a nonconceptual congnition that is that is non- or supra-rational in an Hegelian sense insofar as it entails a sublation of rational cognition. In the Indic traditions this is captured by the terms vidyā and prajñā, and Patañjali famously describes it as the ‘light of higher consciousness,’ what in yogic meditatitive-concentration (samādhi) is the pinnacle of spiritual practice: asamprajñāta-samādhi, a non-conceptual awareness (nirvikalpa) of reality denoting a fully interiorized awareness that lacks a corresponding external or mental object. In Advaita Vedānta, this knowledge is similarly supra-rational or a-rational insofar as it entails ‘Brahman realization,’ a non-dualistic awareness of Ultimate Reality, a principle of neutral monism (not in the Davidsonian sense) within Advaita Vedānta. No qualities or attributes can be predicated of Brahman, as it is beyond conceptualization. The jñāna yogi pursues a mystical awareness of that which cannot be an ‘object’ of knowledge, as Brahman transcends subject-object distinction. Those within this tradition of apophatic mysticism who have such an experience can be justly termed ‘wise.’ Similarly, in Daoism, the sage (sheng ren) who is wise has an intuitive, non-propositional awareness that permits her to act in spontaneous harmony with the Dao (and the natural world). It is this realization of the Dao that allows the sage to act wu-wei, in a spontaneous, effortless, graceful manner befitting any and all situations, to ‘live well’ as we say. The sage’s experience of this mysterious unified reality, spoken of as Dao, is a wisdom that permits her to participate in the oneness that is the Dao: ‘By embracing oneness the Sage acts on behalf of all under heaven’ (22: 7-8). This is not unrelated to the inextricable intertwining of a 'knowing that' with a 'knowing how,' what others have spoken of, respectively, as intentionalist and participatory modes of consciousness, exemplified in the crucible of praxis and as the living of a certain kind of life.
We might likewise look at the Socratic dialogues of Plato for a similar treatment of wisdom that is, in one sense, the fruition of non-propositional knowledge, of an intuitive cognition that gets to the heart (‘essence’) of what a thing (courage, for example) ‘is’ or how things ‘are’ (the distinction between genuine dialectic and hypothetical method: put differently: between ti esti and poion ti). For in Plato the good is not just any kind of knowledge (neither practical nor theoretical in the Aristotelian sense): ‘My knowledge of the good is itself good; in knowing the good I become good. This means that in some sense the good is the same as the knowledge of the good’ (Francisco J. Gonzalez). Such knowledge is not to be found in a ‘particular kind of knowing,’ but is a species of self-knowledge (or Stoic self-examination): 'The good…must be made manifest in the knowledge of knowledge without being reducible to it. But how can the knowledge of knowledge as such be the knowledge of something distinct from itself (the good)? The answer is that the good is not a particular object of knowledge but is rather something revealed in the very knowledge of knowledge. I know the good in the very process of examining myself and what I know [or don’t know]. Though I can know a mathematical theorem in abstraction from any self-knowledge, I cannot know the good in this way. But now we see what makes the knowledge of knowledge beneficial: in this knowledge alone do we know the good. The converse holds as well: only in knowing the good do we know ourselves' (Gonzalez). This is what makes Socratic dialogue and dialectic so compelling, for in practicing the knowledge of knowledge Socrates effectively demonstrates what it means to be good, something that cannot be fully captured in definitions proposed by his interlocutors, however much their propositional (and experiential) conceptions of goodness capture some aspect, feature, or quality of goodness, but not goodness itself, the good as such, the knowledge of which makes for wisdom. What this entails is of course found in the Cave allegory, involving as it does a dialectical ascent out of the cave of doxa and beyond dianoia to a vision of the Sun or Agathon, a nonpropositional knowledge of the good (noēsis): ‘Propositions are well suited to expressing knowledge of objects or facts; they can no more express knowledge of the good, however, than the can express knowledge-how or self-knowledge, both of which are involved in knowing the good’ [as Iris Murdoch reminded us, this dialectical ascent is followed by a descent back into the cave]. Similar to the Advaitan use of the apophatic negation ‘neti, neti’ (‘not this, not that’) in the Upanishads (in reference to attempts to predicate attributes or qualities to Brahman) and the Madhyamaka (Buddhist) of Nāgāruna), the Socratic (or Platonic) dialectician subjects propositional knowledge or hypotheses in the Platonic sense, to a relentless process of negation: 'The dialectician must be able to separate the form of the good from all those things that presuppose it as the principle of their existence and intelligibility. But how? By submitting hypotheses [e.g., the definitions proposed by Socratic interlocutors] to untiring refutations that will not rest at how things appear (how they are qualified), but will seek to uncover what they in truth are. [….] As seen in the Charmides and the Laches, by refuting one-sided and ambiguous hypotheses the dialectician can gain insight into what the form in question really is. Since the form is what it is best for a thing to be, this process of refutation or “purification” will ultimately lead to an understanding of the good itself' (Gonzalez).
It seems the wise person is adept at using names, propositions and images to point beyond names, propositions and images, as part of the indispensable means for attaining knowledge of what a thing truly is or the way things really are. This intuitive insight or nonpropositional knowledge can use names, propositions and images ‘in such a way as to obtain an insight that transcends them, that is, an insight into that nature which they themselves presuppose but cannot express’ (Gonzalez). In other words, discursive reasoning can be employed as a method to overcome the limits of conceptualization, thereby bringing together discursive and non-discursive thought in a manner similar if not identical to the means of the Daoist sage (or such means as employed in the Dao de jing). As Gonzalez makes clear, dialectic uses the discursive reasoning of the hypothetical method to assist in the awakening of nonpropositional insight: ‘Dialectic, the primary object of which is the good, is essentially a “know-how.” It is the identification of dialectic with knowledge of use [exemplified in the praxis of Socrates] that prevents it from being solely “knowledge by acquaintance” (direct, unmediated intuition) or solely propositional knowledge and makes it instead that process in which insight and discourse are reconciled [cf. the reconciliation of ‘having an intention’ and ‘not having an intention’ in Daoism].’
It strikes me as well that a virtuous life is an essential or intrinsic part, indeed, a necessary condition of ‘living well’ in all traditions that have conceptions of wisdom. Hellenistic ‘therapies of desire’ (after Nussbaum) make this clear, and it would be interesting to discover what philosopher, tradition or worldview speaks of the wise person who is not morally good or virtuous. Neglect of this dimension leaves one with a rather emaciated picture of the person possessed of wisdom. Not unrelated to this are intriguing questions of moral psychology that arise in discussing the perfectibilist moral growth of an individual toward wisdom, including the role of the emotions vis-à-vis rationality or reason. In addition, and not unrelated, is the ‘non-attachment’ (as in the Bhagavad Gītā) and/or sophrosyne characteristic of the wise individual.
Pierre Hadot’s delightful work, The Inner Citadel: The Meditations of Marcus Aurelius (1998) reiterates two themes I think are central to a discussion of the lineaments of wisdom: self-discipline (often described metaphorically as a purificatory process) or askēsis, and self-knowledge, two topics infrequently discussed. Hadot details the triune discipline of assent, desire and action of Marcus that owed much to Epictetus. Similar or analogous to the Buddhist emphasis on the necessity of relying on the complementary roles of wisdom and compassion (or ‘loving-kindness’), Marcus informs us that ‘It is a proprium of the soul, if it is rational, to love its neighbor, which corresponds both to truth and to respect.’
Perhaps something could also be said about value(s) and wisdom. Those who are wise invariably and conspicuously ‘care about, accept, support, affirm, encourage, protect, guard, praise, seek, embrace, serve, [are] drawn toward, [are] attracted by, aspire toward, strive to realize, foster, express, nurture, delight in, respect, [are] inspired by, take joy in, resonate with, [are] loyal to, [are] dedicated to, and celebrate values’ (Nozick in Philosophical Explanations, 1981). Indeed, the second (and sometimes disparaged) half of Nozick’s Philosophical Explanations is chock full of material (e.g., § IV, the ‘Life of Value’) relevant to a treatment of what it means to be wise, in particular, his discussion of the ‘perfectionist aspiration to self-development.’
Those who are wise also appear to have an uncommon appreciation of the folly of ‘willing what cannot be willed’ (on this, see Jon Elster, Sour Grapes: Studies in the Subversion of Rationality, 1983, pp. 43-66).
Finally, and in conjunction with mention of the scope of ethical life and the role of values, Stephen Mulhall has an incisive treatment of Iris Murdoch’s ‘Simone Weil-inspired conviction that human fact-seeking activities are imbued with evaluative structure and significance—that the concept of truth [after Plato] is internally related not only to reality but also to beauty and goodness.’ Those who are wise, in other words, have a peculiar and intriguing take on the ‘fact-value’ distinction: ‘all our states of consciousness and action presuppose discrimination, and any such discrimination is subject to moral evaluation’ (see Mulhall’s essay, ‘Misplacing Freedom, Displacing the Imagination: Cavell and Murdoch on the Fact/Value Distinction,’ in Anthony O’Hear, ed., Philosophy, the Good, the True and the Beautiful, 2000, pp. 255-277). The vision of morality (or moral psychology) that is part and parcel of wisdom suggests that a ‘spiritual pilgrimage’ of sorts ‘“is at the center and essence of morality, upon whose success and well-being the health of other kinds of moral reaction and thinking is likely to depend” (Murdoch). The essentially egoistic energies that permeate and generate the texture of the self’s everyday inner life (energies explored in Freudian psychoanalysis) can be transformed only by transforming their orientation; they must be re-directed [for Freud, and contra Marcuse, in part sublimated], away from the ego and its interests and towards that which is not the ego. The broadest characterisation of the various techniques by which the transformation can be effected is that of attending to particulars: we must either attune our consciousness to its objects, or (if we fail) those objects will be attuned to one’s consciousness, to its fantasies and distortions—for on Murdoch’s account, the reality of our world is determined, the facts are set up as such, by the morally inflected determination of our consciousness.’ The wise, in other words, recognized with Iris Murdoch (in Metaphysics as Guide to Morals, 1992) that 'The moral life is not intermittent or specialised, it is not a peculiar or separate area of our existence…. [W]e are all always deploying and directing our energy, refining or blunting it, purifying or corrupting it…. “Sensibility” is a word which may be in place here…. Happenings in consciousness so vague as to be almost non-existent can have “moral colour”…. (“But are you saying that every single second has a moral tag?” Yes, roughly.) Murdoch’s understanding on this score is close to, if not identical with, that found in several Asian philosophies (e.g., see Joel Kupperman’s Learning from Asian Philosophy, 1999).
Posted by: Patrick S. O'Donnell | May 8, 2007 11:12:17 AM
I agree with the above comment. I realized that a number of my answers lost me points because of the definition of wisdom underpinning the questionnaire, but I would rather lose the points on this questionaire than compromise my answers. The true problem with tests like these is that a truly wise person could pick any of the answers to any of the questions and rationalize it as representational of the values associated with wisdom as defined by the questionaire and an even wiser person would simply challenge the categorical frame of many of the questions and the fuzziness of many of the answers. It also does not appear that question results are synthesized, e.g., one could say that looking back upon life, one was cheated, but also that looking back upon life, one is not resentful. Both are, I suspect, graded as unwise answers, which ignores the possibility that a synthesis of the two is a "wise" response, i.e., "As a matter of historical fact, Person A cheated me at Time X, but I forgave Person A and look forward with optimism."
Posted by: Illogical Test | May 8, 2007 11:07:23 AM
Hmm, I was on the cusp of high amounts of wisdom based on the survey, but I have to say that the answers that would probably make me "wiser" are probably not ones that seem fully congruent to the qualities listed in the quotation by Paul. There were several questions regarding one's willingness to listen to and try to address other people's problems. My guess is that wisdom was somehow being conflated with empathy and compassion. It is clearly empathetic and prudential (good for one's relationships) to listen to the problems of those closest to you but I doubt it's a measure of wisdom to have that willingness or desire to help all the troubled who come before you. One might insist that pursuing one's own worthwhile projects even at the expense of helping some people out some of the timeis not unwise.
Posted by: Anon for this | May 8, 2007 10:57:34 AM
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