To judge, in Latin judicare, is to say the law, jus dicere, whence juris-dictio.
The above sentence is a possible answer to the question: what is judging? It spells out what the word "to judge" says, by recalling the history from which the word originates. Why would anyone ask this question? How helpful is such an answer?
Everyone knows what it is to judge. Only on the ground of such self-evidence could there be that unabating debate on the ' justification" of particular judgments, which is the day to day business of lawyering. Only because the question can be passed over can there be controversy regarding "the forms and limits" of adjudication in general, a preoccupation without which jurisprudence would seem to lose its main occupation. Why ask the question? Precisely because the matter is self-evident.
As soon as we examine it a little, confusion begins to set in all over. Monsieur Jourdain likely would be flattered if he knew that logicians employ the word 'Judgment" in its widest sense to designate propositions of all kinds: He has been judging all along, and therefore knows already how to do it. Even Kant follows this usage when he says that "we can reduce all acts of the understanding to judgments," and goes on to propose a "table" that classifies all possible forms of judment into four groups of three (Kritik der reinen Vernunft, * A 67- pages of the same star editions). Could it be that almost all speaking is a saying of law?
A little later in the same treatise, however, Kant restricts the sense of 'Judgment" to the act of "subsuming under rules, that is, of distinguishing whether something falls under a given rule or not (casus datae legis)" (id. A 132-34, B 171-74). This sense is borrowed from lawyerly usage, not from logic, for, as Kant shows, logic has nothing to say regarding this operation. There are, and there can be, no rules regarding the application of rules. If Kant is right, a sizable part of what we take to be "law," and almost all jurisprudence, are nothing but a futile striving to overcome this essential unruliness of judgment. How can it be that the saying of law is lawless?
48 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol48/iss4/4