Humility as an adjudicative virtue

Humility has been primarily employed in law in the context of adjudication, that is to say, as a judicial virtue. Judicial humility is mostly understood as a trait of character that leads judges to exercise judicial restraint, i.e., not to overpass what are taken to be the proper functions of the judicial role.

This view of judicial humility is quite problematic. As I have argued elsewhere, it unduly reduces humility to its intellectual dimensions, defines it in a way that makes it incompat­ible with intellectual autonomy, and limits its reach to it being an argument against judicial activism, which is a claim that would need a political, rather than an epistemic, justification (Amaya: 2018). Humility, however, far from being a mere rhetorical instrument at the service of arguments in support ofjudicial restraint, is a very valuable trait of character in the context of adjudication for several reasons. First, humility is a virtue that is associated with a number of epistemic virtues that are of high consequence in adjudication, such as open-mindedness to alternative viewpoints, a disposition to listen carefully to the views of others, and a willingness to reassess previous positions (Scharffs: 1998; Gerhardt: 2007,44).These intellectual dispositions are not only exceedingly important to individual judicial decision-making, insofar as they enable judges to examine the merits of the case in a way that appropriately takes into account different perspectives, but are particularly needed (more on this in Section 38.5) for judges who sit on multi-member courts.

Secondly, humility is also related to some moral virtues that are critical in adjudication, such as gentleness, kindness, compassion, and service (Amaya: 2018). Humility brings with it an atti­tude of proper care and respect for the well-being of others and disposes those who possess it to avoid boastful behavior that might make others feel inferior or unworthy, as well as cause harm, hatred, and resentment. A humble judge is thus more likely to adopt a respectful attitude toward the parties, not to abuse power, empathize with the parties' and victims' plight, be compassionate in the exercise of the judicial function, and understand the judicial role as one of service to the people (Scharffs: 1998).Therefore, humility's well-known social benefits are critical to foster a courtroom environment that properly exemplifies the kind of social relationships (i.e., egalitar­ian relations of mutual care and respect) that are distinctive of a democratic polis.

Third, humility in judges is also of fundamental importance in contexts of adjudication that require collaboration across jurisdictions, as well as cases in which more than one legal order is relevant (Borrows: 2016).The multiplicity of relevant legal orders may result from the coexist­ence of different legal orders within the state, e.g., an indigenous law and a state law, regional integration, e.g., European Union law and state law, as well as from the interaction of global law with domestic law. Humility is pivotal in multi-juridical legal contexts, insofar as it involves an appreciation of different viewpoints, enables the judge to relate to the diverse normative orders that are relevant in the case in a way that shows respect for the other and avoids privileging one's legal perspective.

In order for humility to perform these central roles, something other than a ‘thin' concep­tion that reduces it to awareness of one's poor epistemic standing compared to others is called for. Indeed, alongside the dominant view of judicial humility as judicial restraint, ‘thick' views of humility that avoid overtones of self-deprecation are also being articulated and defended in legal scholarship. In Berger's account, humility is a virtue that is based on ‘awareness of one's role and position in respect of power and willingness to accept the burdens of responsibility that flow from this' (Berger: 2018). In the context of the judicial role, humility requires that the judge be keenly aware of his role and responsibilities in a web of relationships that are much broader than those between the judiciary and other branches of government. Humility, claims Berger, does not urge judges to be ‘smaller,’ but rather to take ‘the appropriate amount of space' by fully discharging their duties toward others and accepting the burdens ofjudgment.

A focus on the relational aspects of humility is also at the core of Borrow’s conception of judicial humility. In her view, ‘humility is a state of positioning oneself in a way that does not favor one’s importance over another.

A commitment to equality is, in my own account, at the core ofjudicial humility. Humility requires that a person has a profound appreciation of the equality of all human beings, avoiding both self-aggrandizement, in which one asserts one’s superiority, and self-abasement, in which one asserts one’s inferiority. Humility prevents one from holding that one is superior to others on the grounds that one is better than others with respect to some features or qualities (e.g., wealth, status, ability, etc.). In the context of the judicial role, it requires that judges view them­selves as equal to the parties and actors involved in the trial process, regardless of the differences that there might be in prestige, professional or social status, and power (Amaya: 2018).

These thick views of judicial humility emphasize different components of the virtue of humility, namely, its connection to responsibility, diversity and inclusion, and equality. Despite differences, they all focus on the socio-relational aspects of humility, rather than on the self­evaluation of one’s own epistemic abilities. That is to say, they take humility to be a matter of how one positions oneself vis a vis other people, rather than how one stands vis a vis one’s merits or capacities. In contrast to thin views of judicial humility as restraint, they view humility as a relational, other-directed disposition, instead of a self-referencing quality.

38.3