The Art of Judgment

In Literary Interest: The Limits of Anti-Formalism (1993), Steven Knapp argues with considerable analytic force that “the literary as such is devoid of moral significance” (96). However, “the literary” can and often does, Knapp says, give us a striking experience of what moral agency feels like, and what it feels like is best illustrated by Keats’s notion of negative capability, the capacity to remain in “uncertainties, Mysteries, and doubts without any irritable reaching after fact & reason” (qtd. in Knapp 103). By inculcating the sensation of lingering in mysteries and uncertainties, literature can provide a vivid experience of agency, the process of pondering and mulling things over before acting that defines the consequent action as chosen. Such vicarious feelings of agency, however, do not make “someone a better agent” (103). The beauty of Knapp’s book lies in its precision, but that may also be a source of weakness. The desire for precision may lead Knapp to narrow his range of reference so that he avoids the messier sorts of texts, events, or questions which apparently blend or mingle the terms and processes of ethical and aesthetic judgment. Knapp’s argument seems to have no room for the intuitive processes in which experience, analysis, and affect mix. Conceptually porous and limber, the pragmatist inclination tends to be helpfully suspicious, I think, of the type of barrier Knapp finds separating reason and affect. To examine what has been excluded from Knapp’s account, this paper turns to a hybrid text describing a hybrid process—Judge Joseph C. Hutcheson’s well-known law review article, “The Judgment Intuitive” (1929), a pragmatist blend of autobiography, jurisprudential and ethical argument, and poetic speculation.

Hutcheson’s essay presents the somewhat startling spectacle of a judge embracing uncertainty, patiently waiting for a hunch or flash of inspiration, and suggests the extent to which Keats’s notion of negative capability and kindred conceptions have permeated the culture.¹ Hutcheson’s essay, I argue, shows how judicial intuition merges reason and affect and, as a consequence, how aesthetic experience may have ethical significance. The connections between Hutcheson’s notion of intuitive judgment and kindred lines of thought in William James and John Dewey highlight classical pragmatism’s embrace of intuition, a fact which has been neglected or pushed aside, I suspect, out of a widespread suspicion of anything smacking of transcendentalism or idealism. As John Searle has said, in the context of “respectable” philosophy, idealism is “dead as a doornail” (48). But, as Searle also notes, contemporary philosophy, with its anti-idealist orientation, leaves certain prominent aspects of the mind, such as consciousness and the qualitative aspects of experience, in a kind of explanatory limbo—not plausibly explainable in idealist terms but also not wholly explainable in scientific or materialist terms either (126). As Akeel Bilgrami has suggested, such reasoning leaves us without any sense of what may matter beyond our rationally derived notions of value and calculations of self-interest.² Or, to borrow from Alfred North Whitehead, it arguably leaves us with a “trivial” universe robbed of its essential importance (Modes of Thought 84, 148).

A comparative view of intuition and aesthetics moving back and forth among the juridical, ethical, and literary is needed, I think, because intuition and aesthetics do not, at least in the current intellectual climate, lend themselves to direct examination. Perhaps because of our recoil from idealism or because there is no clear consensus on the significance of such concepts, intuition and aesthetics seem to become less, not more visible when confronted head-on. Conversely, they seem to be more visible and discussable in detail when viewed from an oblique and comparative vantage point. My own hunch is that the component parts of intuition, how it works, and what comprises it become clearer when the poet’s account is supplemented by the judge’s.

1. “The Judgment Intuitive”

In “The Judgment Intuitive,” frequently cited as a representative example of Legal Realism (a consequentialist jurisprudence inspired by pragmatism), Judge Joseph C. Hutcheson, Jr., recalls being appalled as a young lawyer to hear a judge “a man of great learning and ability announce...