Can judges and other lawmakers understand the full human impact of the decisions they hand down? Or are they likely to decide incredibly important cases purely in light of their favorite hundred-year old precedent--or, even worse, their preferred ideological refrain?
If empathy is both an emotion and a form of practical knowledge, how can judges develop that faculty so as to avoid mistakes that will haunt them in history's judgment?
Noting that empathy has been expanding over time, this Article identifies some of the forces that fuel that expansion, including literature, travel, and experience. It. discusses categories of empathy, including the false or misleading kind, as well as an empathic fallacy that can induce us to believe that we understand others' suffering more than we really do.
It concludes that exposure to fiction and personal narratives expressing outrage over human adversity are means to humanize members of a profession, like law, who can easily become enmeshed in abstraction and formalism.
CONTENTS INTRODUCTION: EMPATHY IN LAW AND LIFE I. HOW EMPATHY EXPANDS OVER TIME II. HOW EMPATHY'S ADVANCE IS SLOW AND HALTING III. INHIBITING INFLUENCES IV. JUDGING AND THE ROLE OF TEXTS V. DO JUDGES CRY? VI. THE EMPATHIC FALLACY VII. EMPATHY AND FALSE EMPATHY VIII. BOOSTING ONE'S OWN EMPATHY CONCLUSION INTRODUCTION: EMPATHY IN LAW AND LIFE
The two of us have been writing about empathy for much of our careers. (1)
Here, we revisit that body of work, prompted by reflections on recent events, including the Trump administration's policy of separating children and parents at the border (2) and President Obama's nomination of Sonia Sotomayor, whom he hoped would display that very quality--empathy--during her term on the Supreme Court. (3)
In an effort to situate and understand those recent actions--and to find out what we can learn from them--we analyze how empathy expands and contracts over time. We identify some of the forces that propel those shifts (4) and offer some thoughts on how judges can avoid handing down decisions that will strike observers as inhumane years later. (5) We examine some obstacles that lie in anyone's way, including the ease by which one can become entrapped in the prevailing mindset of one's time. (6) We also address how that mindset can change, even in a time when the President has been nominating a string of judges who are largely white, male, and conservative. (7)
We undertake today's task with renewed urgency for a second reason. Courts seem likely to play major roles in allocating power and authority between the other two branches of government, which are now at odds. (8) Will newly appointed judges and justices fully understand what, in human terms, is at stake? Or will they decide incredibly important cases purely in light of their favorite hundred-year-old precedent?
Although much of what we offer centers on the role of texts, fans of law and economics will be glad to know that we believe empathy also has an economic side, since it enables its possessor to understand what the other side wants and make trades that enable him or her to get what he or she wants in return. (9) The empathic businessman, like the empathic lover or worldly detective, is thus apt to be more successful than one lacking that quality. (10) By the same token, an empathic judge who is sensitive to his or her times and nuance is less likely to go down in history as obtuse or a monster. (11)
We regard empathy then as both an emotion and a form of practical knowledge. (12) It is also a quality that develops over time, so that some end up possessing more of it than others. (13) It may also be, to some unknown extent, innate. (14)
In all its guises, empathy seems to operate most effectively in recognizable situations and with other persons that are like us, familiar and easily knowable. An emerging branch of social science known as "norm theory" holds that our reaction to an individual in distress is a function of how normal or abnormal their predicament strikes us. (15) We see images of people starving in Africa, but we tell ourselves that this sort of thing happens all the time over there. (16) So we do not get terribly excited, since, we reason, those people are probably used to it by now. (17) Think, for example, of newspaper articles you may have seen about Puerto Rico's poverty and colonial past, as though that past justifies our feeble response to recent disasters there. (18)
But we are immediately alarmed if our suburban neighbor shows up at our door, not having eaten in three days because she lost her job and her husband ran off with another woman. That sort of thing is not supposed to happen in nice neighborhoods like ours. We fix her a sandwich and tell her how to seek emergency assistance from the county. (19)
On another occasion, we might be out for a drive in the country and see a Hispanic-appearing family standing beside a broken-down car on the side of the road. We drive by, thinking to ourselves that this is a farming region, after all, and another carload of people will probably come along and help. We are in a hurry, and they probably are not. Besides, we think, farm workers are always driving beat-up old cars and undoubtedly know what to do when they break down. (20) A few miles later, we see a neatly dressed Anglo-appearing woman standing beside her car with the hood up. We slow down and ask if she needs help. (21)
What about judges? Recently, empathy was in the news when conservatives challenged then-President, Obama on the need for empathic judges, which conservatives saw as a kind of favoritism. (22) If you empathize with the plaintiff, they reasoned, you are showing a lack of it for the defendant. (23) If you go easy on a criminal, perhaps because he grew up in poverty, (24) what about the feelings of the victim? And so on.
For many conservatives, legal judgment presupposes a relatively well-balanced system with few cases requiring looking beyond readily available precedent. (25) That is, the answer to most legal questions is predetermined in the natural-law sense.
But no system is completely self-contained or comprehensive. Take a simple example: An adult is playing a board game with a child and beats him or her ten times in a row. The rules say one should play as hard as one can. But no sane adult does this. With a child, the game is not fair, and, after all, winning is not the only value. (26) On another occasion, the same viewer might demonstrate abundant empathy, for example, toward unborn fetuses (27) or operators of small businesses weighed down by taxes. (28) So, empathy is often selective, and someone who feels it in one situation might not in another. One needs to know when a situation calls for reflection on a human element and when it does not. (29) And what should one do in situations like that of children separated from their parents at the border, where the rule of law has seemingly broken down completely? Elementary empathy and basic human common sense would seem to be the only reasonable resort. (30)
HOW EMPATHY EXPANDS OVER TIME
A recent book by Lynn Hunt analyzes how one's capacity for empathy tends to expand over time. (31) Much the way Christopher Stone did in a famous article about environmental rights, (32) Hunt shows that Western societies' identification with outsider groups has been on a slow but steady rise. (33) Peter Singer, (34) Jeremy Rifkind, (35) and David Wallace-Wells (36) make similar points in recent books.
Stone points out that early in history, humans recognized rights for members of their immediate group or family. (37) Others were outlaws; literally, outside the law. (38) Gradually, sympathies expanded to include other clans, then foreigners, women, Jews, and members of other races. (39) Today, laws in Western societies protect animals from certain sorts of mistreatment, and one day, Stone writes, we will endow natural objects, like trees, rivers, and rocks, with legal protection, and not merely because doing so may sometimes benefit us. (40) Indeed, in today's debate over climate change, scientists are beginning to point out how even a small increase in the atmosphere's temperature will endanger millions of species, which may become extinct, and that, whether we care or not today, our actions will bring terrible and irreversible consequences. (41)
What propels this gradual expansion of a society's circle of concern? Hunt writes that the answer may lie in new forms of writing, beginning with the advent of the epistolary novel around 1750, when readers learned that persons of different groups had feelings, hopes, plans, and lives of their own. (42) Over time, additional forms of engagement with texts--reading newspapers, viewing plays, conversations in coffee-houses--contributed to empathy, the ability to see others as like oneself, resulting in documents like the French Declaration of the Rights of Man and Citizen, the American Declaration of Independence, and the United Nation's Universal Declaration of the Rights of Man. (43) Eventually, according to Hunt, we may "go the limit" and recognize human rights for all, including groups that do not have them such as gays and lesbians seeking full equality, felons wishing to vote, immigrants wishing to come out of the shadows, and the mentally ill. (44)
She describes the expansion of human rights and what must happen for it to continue. Feeling and emotion are key elements, she writes: a person knows that a human right has been violated if she feels horrified by its violation. (45) This conviction is closely tied to notions of bodily integrity or sanctity. (46) For example, in the late-Middle Ages, ladies would regularly undress in front of their male servants, whom they did not consider fully human and thus unlikely to notice or take offense. (47) Soon, however, new feelings about hygiene and delicacy arose--including disgust toward such things as spitting, sneezing in public...