66

When applying legal standards, the judge should take a self-effacing stance to avoid interfering with the law as it applies to a given case. If applied rigorously, this common and long-held ideology would mean that the judge is no longer needed, so threatening is his subjectivity to the values promoted by this system: equality, security, effectiveness. However, the logic of this idea rests on a number of untenable presuppositions: the transparency of the normative statements, a denial of the contingency and variability of human situations. If there is still a need for judges rather than automata or robots, it is because to judge it is necessary to understand both those answerable to the law and the laws. Understanding those answerable to the law implies being capable of putting oneself in their shoes. Understanding the laws implies an appreciation of hermeneutic equity. And these two conditions together contribute to the moral acceptability of legal decisions. But that being the case, judicial judgments therefore constitute to some extent, depending on the case, a compromise between the instrumental values of law (security, effectiveness, etc.) and the moral values promoted by the law. This compromise used to be called equity; according to the latest news, it is now called the “balance of interests” or “proportionality”. But the moral question remains: to what extent do the salient differences in situations justify that the exception become part of the common application of the rules?