On Empathy in Judging

    President Obama’s desire to appoint judges who have empathy is reminiscent of Ninth Circuit Judge John T. Noonan’s lecture and book, Persons and Masks of the Law.  Judge Noonan (then a law professor at Berkeley) presented it as the Holmes Lecture at Harvard Law School in 1972, and then published it as a book in 1976.

    In Persons and Masks of the Law, Judge Noonan warns of the tendency of lawyers and judges to allow abstract rules of law to obscure the human beings to whom those rules are applied.  “Fascination with rules may mean obeisance to force or the delusion of having mastered force,” he says.  “It may also lead to a veritably religious veneration for the rules and their imagined author.  The sovereign and his command may be deified.”  When that happens, the rules become masks that hide and render irrelevant the humanity of those affected by the law.  The effect is to permit lawyers and judges to engage more readily in conduct that is injurious to other persons – conduct that they would otherwise recognize as evil.

    Felix S. Cohen explained the limitations of logic and the relevance of morality (or “policy”) in judging:           
    "To the cold eyes of logic the difference between the names of the parties in the two decisions bulks as large as the difference between care and negligence.  The question for the judge is:  'Granted that there are differences between the cited precedent and the case at bar, and assuming that the decision in the earlier case was a desirable one, is it desirable to attach legal weight to any of the factual differences between the instant case and the earlier case?'"

In short, a judicial judgment should not be simply, in Carol Gilligan’s phrase, “a math problem with humans.”

    Similarly, former N.Y. Chief Judge Judith Kaye has observed: “[T]he danger is not that judges will bring the full measure of their experience, their moral core, their every human capacity to bear in the difficult process of resolving the cases before them....  [A] far greater danger exists that they do not.”

Comments

[Alice Woolley]

Stanley Fish has an article on empathy today attaching it to different theories of legal reasoning, and citing Cohen and others.

http://fish.blogs.nytimes.com/2009/05/24/empathy-and-the-law/

I don't know, though, that one has to put the contrast in perspectives quite as strongly as he does. Is there an inevitable tension between empathy and viewing laws as meaningful, interpretable and applicable?

[Monroe Freedman]

Yes, there is an inevitable tension. Noting with approval that Cardozo was not advocating unlimited judicial discretion, Kaye added:

"Cardozo is careful to stress the limits on a judge’s discretion, and notes that stability and predictability play a significant role in a well-ordered society."

But, emphasizing the tension, she went on to say: "However, he recognizes that, ultimately, the issue comes down to individual wisdom and humanity, writing, 'If you ask how [a judge] is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief from life itself.'"

In short, varying Gilligan's phrase, adjudication should not be simply law without humans.

[Patrick S. O'Donnell]

I hope I'll be forgiven for providing yet more links on this topic:

Robert Justin Lipkin weighs in here: http://essentiallycontestedamerica.org/blog/2009/05/08/whats-empathy-got-to-do-with-it/

At Prawfs: http://prawfsblawg.blogs.com/prawfsblawg/2009/05/is-empathy-lawless.html

Daniel Solove here: http://www.concurringopinions.com/archives/2009/05/what-is-empathy-obamas-philosophy-of-law-and-the-next-supreme-court-justice.html

And Michael Dorf: http://www.dorfonlaw.org/2009/05/empathy-and-justice.html

[Alice Woolley]

What are your thoughts on it Patrick? [and while this is actually I think just as much a minefield as our last conversation I can guarantee you that I won't have much to say about it]

[Patrick S. O'Donnell]

Alice,

I'm most in line with what Bobby Lipkin and Monroe have to say inasmuch as they emphasize the basic human capacity for empathy (on which, I provided some references in my comment at Prawfs) as an emotion which may get submerged or ignored or forgotten in some forms of social scientific and professional training and socialization and which, alas, is not deemed essential to some political ideologies. Other than that, my thoughts are perhaps best expressed in my comments to Horwitz's post at PrawfsBlawg. The irony is that, at least on this occasion, it's the conservatives who are engaging in a "hermeneutics of suspicion" (yet see Orin Kerr's reply to that characterization). It says something about the state of our jurisprudence and judging that Obama should see the need to mention this as a desired attribute in a candidate, for it should, as they say, go without saying.

I've been interested in the notion of empathy for some time owing to the fact that my mentor, the late Ninian Smart, frequently spoke about it (as 'structured empathy') in the context of the study of religions and worldview analysis (the primary domain of my limited academic background), indeed, a collection of his essays edited by Donald Wiebe is aptly titled, Concept & Empathy: Essays in the Study of Religion (1986).

[Patrick S. O'Donnell]

Susan Bandes has something to say as well at Balkinization, using the oral argument in Safford Unified School District v. Redding to illustrate empathy in judging: http://balkin.blogspot.com/2009/05/why-is-empathy-controversial-or-liberal.html

Bandes is of course well known for the groundbreaking book she edited, The Passions of the Law (1999), cf.: http://ratiojuris.blogspot.com/2008/05/emotions-transdisciplinary-bibliography.html

[Joe]

Well, sometimes a literal interpretation of a law is not always going to be in the best interest of the people involved in in the case.

[David McGowan]

I think it is a mistake to take too seriously this notion of empathy. It is a rhetorical move, and should not be mistaken for anything else.

In most cases empathy has no valence beyond one's own leanings, and is therefore just a compliment or an insult to tack onto one's analysis. Does one empathize with the criminal's horrid upbringing or the brutalization of the victim? Does one empathize with the beneficiaries of race-conscious policies or with the marginal non-beneficiary who is excluded by reason of the policy? With the woman or the fetus? It would be better to acknowledge that the concept of empathy cannot answer such questions.

If the concept has a valence it is for individuals and against groups, such as corporations. But one of the most basic lessons of law and economics is that one can harm the class of persons of which an individual is a member by empathizing too much with the individual. Arthur Leff is eloquent on this.

The interesting thing here, and I believe the only interesting thing, is whether empathy will be a successful rhetorical counter to the conservative frame of "activism" or "legislating from the bench." That frame has worked much better than I would have expected, and, indeed, better than I think it deserves to.

Most people seem to feel, though, two conflicting impulses about the Court: They want judges not to make law but to look it up, and they want results they like. "Empathy" is an invitation to favor the second impulse over the first, and conservative rhetoric does the opposite. It will be interesting to see how it works.

DM

[David Hricik]

I spend too much time in the area of statutory interpretation, where several of the Justices emphasize language over purpose or intent, and denigrate the goal of trying to do right over grand notions of being "faithful" or "accurate." A little empathy would in my view make the court a much better, more grounded place.

[Monroe Freedman]

I think you are assuming an unrealistically simplistic model of what is required in adjudication, David McG.

We respect logic, and rightly so. But the application of logic is not always the solution to the uncertain nature of legal precedents. In fact, logic can even be the source of the problem. One reason for the uncertainty in applying legal rules lies in the unfortunate way that the rules have of being inconsistent with, or even contradicting, each other. As Holmes observed:

“All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.”

What that means is that logical consistency can create problems rather than solve them, by telling the judge that two inconsistent rules apply to the same case. As much as we may prize an amoral neutrality in decision-making, logic alone can be neutral to the point of impotency in solving the problems of justice.

What can a judge do, David, when two or more legal rules are both logically applicable to the same dispute, if she doesn’t apply her judgment based upon her intellect, her experience, and her conscientious sense of what public policy requires? And won't honest and conscientious judges understandably disagree when that happens?

[Patrick S. O'Donnell]

David McG,

I think you raise important questions. Nonetheless, I don't think the exercise of empathy takes place in a vacuum of moral psychology and ethics, and thus it's not meant to necessarily trump the exercise of good judgment or other sound moral principles but to enhance or further them. And we might consider it in terms of a developmental or perfectibilist moral psychology and thus while empathy may be rather limited in fact, i.e., "have no valence beyond one's own leanings," it need not be so, indeed, psychological research on empathy shows just how empathy is critical to taking us beyond such biases or ('natural') preferences and thus is critical to moral motivation (of any sort: consequentialist, deontological, virtue ethical). In your examples, therefore, if one is naturally inclined to empathize with the pain or suffering of a victim of crime it would be necessary to cultivate empathy for the person who committed the crime as well. Empathy for those "near and dear" may come fairly easily, the point would be to develop empathy for those more "distant" from us, from those outside our intimate relations or beyond our nation-state borders, for there does not appear to be any complelling reason to think "that empathy for distant groups of people is beyond our developed moral capacities..." (Slote). The cultivation of empathy is about widening one's horizons, whatever those may be and thus one can imagine these vary according to the individual.

Interestingly, the Judge Noonan of Monroe's post wrote an article on abortion and empathy, "Responding to Persons: Methods of Moral Argument in Denate over Abortion," Theology Digest, 1973: 291-307, that would seem to confirm your take on matters here, arguing how we can and therefore ought to have empathy for the unborn fetus (and thus recognize its 'rights'). While recognizing the novelty of Noonan's argument, Michael Slote has countered that we rightly have a difficult time empathizing with a fetus the farther removed it is from a baby:

"Very early fetuses and embryos look more like fish or salamanders or (at least) non-human lower animals than like human beings, and the lack experience, a brain, and even limbs. All this makes embryos and early-stage fetuses seem alien to us and helps us to explain why in fact (given relevant information and perceptual data) we naturally tend to empathize *more* with the later stages than with the earlier.

This point, however, is one that Noonan never considers, and when one does take it into account, than a caring morality that takes empathy seriously is given some reason to claim that it is morally better, or less bad, to abort an early embryo or early-stage fetus than to abort a late-stage fetus. [....] So, pace Noonan, our appeal to empathy here, far from showing the wrongness of abortion, allows us to draw a conclusion that seems congenial not only to many opponents but also to *many defenders* of the right to choose."

Slote is not trying to present us with a knock-down argument for the moral right to abort an embryo or fetus of a certain stage but to help us see how empathy may play a role in our moral deliberations but not perhaps in the manner desired by Noonan. This remains a rather contentious moral topic, to put it feebly, and empathy is not necessarily determinative but I think Slote does at least show that the exercise of empathy need not, indeed, should not, be a matter of simply confirming or reinforcing our existing inclinations and prejudices (not used here in a pejorative sense). And, as I state in my post at Ratio Juris, it's important to entertain the possibility that empathy-based altruism *might* conflict with the desire to uphold a moral principle of justice inasmuch as the former *can* be partial or myopic, as when Western Buddhists identify with the plight of Tibetans inside and outside of Tibet but take no notice of the poverty and misery of many individuals in, say, Haiti, or when an object of our special emotional concern effectively crowds out moral attention toward those in greatest need. But I suspect we are capable of developing an altruistic empathy that would properly motivate conformity to moral principles of justice (distributive or otherwise). And rather intriguingly, Slote argues that a morality of empathic caring "requires one to respect other people's autonomy and not just or simply to be concerned with their welfare."

Incidentally, although the concept of empathy is fairly recent, it was probably central to the "moral sense" theories of those philosophical giants of the Scottish Enlightenment: Hume, Smith and Hutcheson, for example. Where they used the word "sympathy," today we would often substitute the term empathy, as we take more care to distinguish among such related emotions as pity, mercy, sympathy, empathy and compassion.

As to the claim that this is merely a "rhetorical move," I addressed that in my comment at Prawfs.

[Patrick S. O'Donnell]

In the first para. of the quote from Slote, please read: "...and they lack experience, a brain, and even limbs."