In their book Noise, authors Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein describe how the universal passion for judicial discretion fell out of favor in the 1970’s. For many years the popular idea was that maximizing judicial discretion allowed judges to treat each criminal being sentenced as a unique human being and sentences would reflect each convict’s background and circumstances. However, the universal enthusiasm for judicial discretion began to collapse under the scrutiny of judge Marvin Frankel who observed that the predilections and biases of individual judges resulted in vastly different sentences for defendants convicted of the same crime. For instance, one man convicted of cashing a counterfeit cheque was sentenced to fifteen years and another thirty days. His book, Criminal Sentences: Law Without Order, launched a thorough review of judicial sentencing and statistical studies that confirmed the anecdotal evidence. The 1974 analysis of the sentences meted out by fifty judges showed that “absence of consensus was the norm.” And the astounding variations in sentencing suggested that the system was unfair. Kahneman, Sibony, and Sunstein call the variations “noise” and offer a proposal to correct variations in judgment whether in law or sports or business.
The Torah does not seem to be worried about “noise.” Should an Israelite make a donation or seek to substitute for one, it was the task of the priest to subjectively determine its value. As the text has it: “and the priests shall value it, whether it be good or bad; as the priest values it so shall it be” (Leviticus 27:32). Based on this verse, it is conceivable that different priests would assign different values to the same item. It is also possible that the same priests might assign different values to the same item at different times. The Torah maximizes priestly discretion at the expense of perceived inequities.
It would seem that Israelites were not troubled by “noise.” (And if they ever were, there is no source that speaks of any antipathy to this law or initiative to amend it.) Israelites were satisfied that uniformity is not always a virtue. Allowing for variations in circumstance is more desirable that a cruel uniformity. Surely the Israelite who pledges his only cow attaches far greater value to it than a wealthy herder who donates a cow of the same size and age.
In contemporary culture, calling a judgment “subjective” is a way of discrediting it. But some caution is in order. Subjective judgments may better reflect specific situations, to the benefit of some and to the appreciation of all.