Some notes on the category of Trial and Prosecute

The relationship between the particular and the universal (in traditional terms), or at least what is here and now and what goes beyond the here and now takes various forms. And while it may seem like a concern, something that is far from the interests of empirical research, it happens that the ways in which we think that relationship affect how we think of the social life.

In this regard it is relevant to recover the difference between judgment determining and reflexionante of Kant in the Critique of Judgment:

If you are given the universal (the rule, principle, law) then the discernment, which subsumes the particular under the universal […] is decisive. If you are only given the particular, for which the discernment must find the universal, then the discernment is only reflexionante (Critique of Judgment, Introduction, IV)

Then, judgment is decisive is the simple subsumption of the particular in the universal (‘this is a case of X’). The trial reflexionante operates when only the particular and he must make a judgment, but what is relevant here is that when you do that you can’t use any rule (Kant’s Critique of Judgment, Part I, Section I, Book 2, § 34-35). The trial reflexionante is not a mere search of the principle that it was not clear (that is, reaches to make a judgment when it has gone to the situation of the determinant), is that you must generate a judgment, have any validity beyond that of the one who emits it, without using rules.

This distinction does not cease to be relevant for understanding the social life because, in fact, the ways in which we think about the social rules can be questioned in the light of that distinction. When, as was tradition in the function and often continue to be a part of our common sense, we understand an action as running a general rule we are saying that, effectively, the social action follows the parameter of the trial determinant. In fact, many times when we realize that social action cannot be understood under the logic of subsumption of a rule, we proceed to eliminate the very idea of rule (ignoring the very possibility of judgment reflexionante). In fact, several sociological theories finally think of the social practices under a magnifying glass that is equivalent to the judgment reflexionante.

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So in the first Parsons the Structure of Social Action it is the root of his vision of having a vision of proactive, because it does not reduce the action to apply a standard)

Finally, there is an element which does not fall within any of these three structural groups as such but serves rather to bind them together. It is that which has been encountered at various points and called ‘effort’. This is a name for the relating factor between the normative and the conditional elements of action. It is neccessitated bu the fact that norms do not realize themselves aumatically but only through action, so far as they are realized at all (Part IV, Chap, XVIII, p 719).

And in casl of Bourdieu, to speak of the antipodes theoretical, the idea of habitus is precisely developed to explain behaviour with results that are ‘regulated’, regular but which do not conform to any rule.

Even more, this same ability to apply to the particular as something that has validity beyond who emits it, and that it is being done without the use of mechanical rules (and then requires something as personal as the ‘good judgment’) applies to legal theories most modern (as the judge Hercules, an ideal of Dworkin on Rights Seriously, for example).

By the way, in social science we are reluctant to think, as did Kant, in terms of particular/universal, but it is still relevant to the situation of being able to show that our judgment had the sense (that is, the category of good judgment continues to exist) and, therefore, show if not what is universal in our judgment, at least that goes beyond our particular idea. And this by the fact inherently social that we are prosecuted by others in our actions and judgments, and enjuiciamos other (as among us Giannini has emphasized). And this requires that that judgment be seen beyond the individual who emits it.

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In any case, it is a mode difficult to think-and in fact it is more common to say what that is not able to elicit in that it consists of. It is not easy to think of that judgment, which does not operate with rules demonstrable (with an algorithm). And this makes it difficult for the external evaluation. It is a capacity that is ultimately something that is personal -the ability to have ‘good judgement’, to be able to weigh a variety of evidence and issue a decision that seems reasonable, but that can’t be predicted beforehand. A no small part of the increase of the presence of statistics in modern societies has been based on the need to overcome the ‘expert judgement’ by a rule (as I analyzed it, the Porter in the old, Trust in Numbers , 1995). The rationalization of law Weber, the need to overcome what he thought of as justice of the cadí range, is also based on the idea of replacing the need of someone with good judgment by the rules -but in the right, finally, it always requires ‘good judgment’ of those who are responsible for the excellence of the judge, the judge.

The difficulty can be understood in terms of epistemological questions: how do those who observe the judge can establish that fact, its judgment is valid if there is no algorithm true that so secure? There would be more that they, in turn, to execute that judgment, but then apart from the possible consensus of the evaluators (and this, in turn, after removing the trials of those who have bad judgment) there are no other possibilities. The emphasis of Kant in the universality it may seem to us naïve and quite questionable, but while we can criticise that emphasis, if it seems reasonable not to lose sight of the need to get out of the appreciation purely individual.

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To be able to set something hic et nunc, how to something with more validity than my estimate individual requires then the capacity to establish a common sense and reportable. Kant lists several conditions for this: ‘1) to think for oneself; 2) think about putting themselves in the place of any other; 3) to think always consistently with oneself’ (Critique of Judgment, Part I, Section I, Book 2, § 40). The search of that quit one’s self (the condition 2 of Kant) may not require universality (‘other’) but if it requires the community (‘other’).

Our ways of thinking are represented with greater ease with the idea of judgment decisive: the application of the rule to the case. The idea of judgment reflexionante, to establish a decision on a particular case without subsumirlo in a rule is more complex, but in the end it seems to be a capacity irrebasable. Even the sciences (where subsumed as a mere particular case of the general law would be the traditional way) at the end require the use of this type of discernment, that can’t be reduced to rules, but it would still be less ‘reasonable’, or wise. But this requires, in the end, a public reason. It does not produce a guarantee or any certainty, but it is what beings particular as we can hope for.

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