Monday, June 08, 2009

Judges: Don't Rely on Empathy

When Obama announced that his SCOTUS pick would be "empathetic," I immediately thought of Martha Nussbaum's theory that empathy (she often calls it sympathy) ought indeed to be the basis of legal reasoning, and that empathy-inspiring stories always lead our judgment in the right direction, a theory that she sets out in books like her Poetic Justice. I'm not the only one who made this connection. See here and here. (And see this for a discussion of the same issues that does not mention Nussbaum.)

The apparent connection here might be no coincidence. Both Obama and Nussbaum taught at the University of Chicago Law School (he as a non-tenure-track lecturer, she as a "distinguished service professor"), and their careers there overlapped by five years.

Obama had many opportunities to soak up Nussbaumian nostrums.

I sometimes hear it said that empathy is a source of fairness and balance in legal decisions. I believe the opposite is true.

Bear in mind what empathy is: feeling -- or more accurately, thinking you feel -- the feelings of another person based on seeing or hearing their story play out. "I feel your pain."

Now, suppose you are a judge hearing the case of a (assume for the sake of the argument) guilty criminal. Where will your empathy lead you? Well, here is the accused criminal with their affecting story to tell. Entering into the feelings of the defendant will incline you to leniency. Of course, you could also enter into the feelings of their victim. The victim will have very strong feelings about the accused. But sharing these feelings and being influenced by them would mean acting on vicarious revenge. You can't do that. Who else could you empathize with? Well, there are the future victims of crimes that you would be failing to deter if you are too lenient on the accused. But in the present decision-making situation, these other victims are mere theoretical possibilities, bloodless abstractions. You can't empathize with abstractions. So, unless you are willing to act on revenge, empathy will lead you to favor the accused criminal and to undervalue your duty to protect society against crime. Here empathy leads to bias.

Again, suppose you are on the Supreme Court, deciding a case involving the continued legality of abortion. Here there are plenty of empathy-inducing narratives about women who want or need an abortion. There are plenty of people to empathize with here. Who else? Could you empathize with the aborted fetuses? Of course not. In its early stages, when most abortions are performed, the fetus has a brain that is about as complex as that of a small fish. And it is not able to appear in your court and tell you its sad story. Empathy will bias you, then, in favor of the pro-choice position and agains the pro-life position.

Don't get me wrong: I am pro-choice myself. But this would be a very bad and unjust reason for being pro-choice.

In general, empathy will favor the person with the affecting story to tell, the one into whose feelings you (think) you can enter: the underdog, the attractive person, the person who seems nice, the person who resembles you. In the law, however, it is not the good guy who should win, but the person who has rights. Rights do not necessarily coincide with traits that make me melt with compassion.

It is best to stick with the old fashioned ideal of rational fairness. That ideal cannot be achieved perfectly, I admit. But empathy does not correct its imperfections. Like revenge, like any other sort of emotion-based decision-making, empathy systematically biases you in favor of one party at the expense of the other.

(I have criticized Nussbaum's sympathy theory at greater length here; a short version under a different title can be found here. I have attacked her on a variety of other, related issues here. If you are able to access it, you can find John Kekes' blistering review of her book Hiding from Humanity here.)

5 comments:

Anonymous said...

Empathy in action, as I understand it, is only the understanding of another person's feelings, and not putting oneself inside the other person and sharing his or her experience (which would, presumably but not necessarily, impart some bias to the adjudicator). That would be called sympathy. And, if one is to employ objectification as a means of facilitating judgments, of making them as unambiguous as simple math, one would be committing the sin so decried in the The Brothers Karamazov and L'Etrange.

Lester Hunt said...

In the eighteenth century "sympathy" (Gr. with + feeling) meant understanding the feelings of another by putting yourself in their shoes and feeling what they feel, eg., in Smith's Theory of Moral Sentiments. Nowadays, empathy (Gr.: in + feeling) means what sympathy used to mean. The Wikipedia page on empathy has almost twenty definitions of "empathy," all attributed to particular theorists and authors. All or virtually all seem to mention either sharing the feelings of another or putting yourself in their shoes, or both.

On the other hand, we have a perfectly good English word for understanding the feelings of another: "understanding."

Anonymous said...

I think the error being made here is that the justice was put in the position of many minority people. Namely she was explaining that she was making her decisions from the pov of her ethnicity and gender. In the past white males and the majority did not have to explain their pov's because it was privelaged by their ethnicity and gender. Just witness the Dred Scott decision and the need for a Thurgood Marshall on the SCOTUS to advance the minority status in this country. Santamayor deserves great respect for how courageously she was making this argument and the right wing took the bait like blood in the water. It's amazing how the Obamanistas put this stuff out there and the right wing looks like a bunch of ninnies going after it.

Lester Hunt said...

Actually, I was trying to not take the Sotomayor bait but ... if you go to the text of that Berkeley speech (see link in post below) she seems to be discussing another person's defense of the traditional idea of rational fairness (Cederbloom was her name I think) and -- if I understand her rightly -- arguing against it.

Anonymous said...

Whether you wish to admit it, justice is not blind and although minorities often claim discrimination based on race and class, it's always been economic advanage ala OJ Simpson and his "dream team". Conservatives are more concerned about break down of the economic order, because economics is 90% of history. The appointment of a minority justice is just a tempest in the boiling teapot of a huge change in the economic order which is the real story.