Avijjā has a hierarchical structure and breeds only itself.

Let me see if there is anything left for me to say.

Query: If all things are adjudged as characterized by dukkha, who does the judging? And with reference to what criterion or norm? A subject (immortal soul) with reference to an objective sukha, no? Q.E.D.

You ask 'Who does the judging?' This question takes for granted that judging is done 'by somebody'. But this is by no means a foregone conclusion: we are quite able to give an account of judgement (or knowing without finding ourselves obliged to set it up as 'a relation between subject and object'. According to Bradley (and Heidegger, who however is not conveniently quotable, would not entirely dissent), judgement is the more or less conscious enlargement of an object, not in fact but as truth. The object is thus not altered in existence but qualified in idea.... For the object, merely as perceived, is not, as such, qualified as true. (PL, p. 626)

For Bradley, all inference is an ideal self-development of a real object, and judgement is an implicit inference. (See also SAÑÑĀ, last paragraph.) In my own understanding of the matter, I see knowledge as essentially an act of reflexion, in which the 'thing' to be known presents itself (is presented) explicitly as standing out against a background (or in a context) that was already there implicitly. In reflexion, a (limited) totality is given, consisting of a centre and a periphery—a particular cow appears surrounded by a number of cattle, and there is the judgement, 'The cow is in the herd'. Certainly, there is an intention to judge, and this consists in the deliberate withdrawal of attention from the immediate level of experience to the reflexive (cf. DHAMMA [b]); but the question is not whether judgement is an intentional action (which it is), but whether there can be intention (even reflexive intention) without a subject ('I', 'myself') who intends. This, however, is not so much a matter of argument as something that has to be seen for oneself (cf. CETANĀ [f]).

Of course, since knowledge is very commonly (Heidegger adds 'and superficially') defined in terms of 'a relation between subject and object', the question of the subject cannot simply be brushed aside—no smoke without fire—and we have to see (at least briefly) why it is so defined. Both Heidegger and Sartre follow Kant in saying that, properly speaking, there is no knowledge other than intuitive; and I agree. But what is intuition? From a puthujjana's point of view, it can be described as immediate contact between subject and object, between 'self' and the 'world' (for how this comes about, I must refer you to PHASSA). This, however, is not yet knowledge, for which a reflexive reduplication is needed; but when there is this reflexive reduplication we then have intuitive knowledge, which is (still for the puthujjana) immediate contact between knowing subject and known object. With the arahat, however, all question of subjectivity has subsided, and we are left simply with (the presence of) the known thing. (It is present, but no longer present 'to somebody'.) So much for judgement in general.

But now you say, 'If all things are characterized by dukkha....' This needs careful qualification. In the first place, the universal dukkha you refer to here is obviously not the dukkha of rheumatism or a toothache, which is by no means universal. It is, rather, the sankhāra-dukkha (the unpleasure or suffering connected with determinations) of this Sutta passage:

There are, monk, three feelings stated by me: sukha feeling, dukkha feeling, neither-dukkha-nor-sukha feeling. These three feelings have been stated by me. But this, monk, has been stated by me: whatever is felt, that counts as dukkha. But that, monk, was said by me with reference just to the impermanence of determinations.... (Vedanā Samy. 11: iv,216)

But what is this dukkha that is bound up with impermanence? It is the implicit taking as pleasantly-permanent (perhaps 'eternal' would be better) of what actually is impermanent. And things are implicitly taken as pleasantly-permanent (or eternal) when they are taken (in one way or another) as 'I' or 'mine' (since, as you rightly imply, ideas of subjectivity are associated with ideas of immortality). And the puthujjana takes all things in this way. So, for the puthujjana, all things are (sankhāra-)dukkha. How then—and this seems to be the crux of your argument—how then does the puthujjana see or know (or adjudge) that 'all things are dukkha' unless there is some background (or criterion or norm) of non-dukkha (i.e. of sukha) against which all things stand out as dukkha? The answer is quite simple: he does not see or know (or adjudge) that 'all things are dukkha'. The puthujjana has no criterion or norm for making any such judgement, and so he does not make it.

The puthujjana's experience is (sankhāra-)dukkha from top to bottom, and the consequence is that he has no way of knowing dukkha for himself; for however much he 'steps back' from himself in a reflexive effort he still takes dukkha with him. (I have discussed this question in terms of avijjā ('nescience') in A NOTE ON PATICCASAMUPPĀDA §§23 & 25, where I show that avijjā, which is dukkhe aññānam ('non-knowledge of dukkha'), has a hierarchical structure and breeds only itself.) The whole point is that the puthujjana's non-knowledge of dukkha is the dukkha that he has non-knowledge of; and this dukkha that is at the same time non-knowledge of dukkha is the puthujjana's (mistaken) acceptance of what seems to be a 'self' or 'subject' or 'ego' at its face value (as nicca/sukha/attā, 'permanent/pleasant/self').

And how, then, does knowledge of dukkha come about? How it is with a Buddha I can't say (though it seems from the Suttas to be a matter of prodigiously intelligent trial-by-error over a long period); but in others it comes about by their hearing (as puthujjanas) the Buddha's Teaching, which goes against their whole way of thinking. They accept out of trust (saddhā) this teaching of anicca/dukkha/anattā; and it is this that, being accepted, becomes the criterion or norm with reference to which they eventually come to see for themselves that all things are dukkha—for the puthujjana. But in seeing this they cease to be puthujjanas and, to the extent that they cease to be puthujjanas, to that extent (sankhāra-)dukkha ceases, and to that extent also they have in all their experience a 'built-in' criterion or norm by reference to which they make further progress. (The sekha—no longer a puthujjana but not yet an arahat—has a kind of 'double vision', one part unregenerate, the other regenerate.) As soon as one becomes a sotāpanna one is possessed of aparapaccayā ñānam, or 'knowledge that does not depend upon anyone else': this knowledge is also said to be 'not shared by puthujjanas', and the man who has it has (except for accelerating his progress) no further need to hear the Teaching—in a sense he is (in part) that Teaching.

So far, then, from its being a Subject (immortal soul) that judges 'all things are dukkha' with reference to an objective sukha, it is only with subsidence of (ideas of) subjectivity that there appears an (objective) sukha with reference to which the judgement 'all things are dukkha (for the commoner)' becomes possible at all.

Does this sort you out?

Nanavira Thera