More on Empathy and the Law

A few articles recommended to me by ToddGailun on Twitter, all of which are good, but the first one, by Stanley Fish is very good in its in-depth look at the theory of law and social connection. Essentially, many have seen the law as an isolated entity, pure and rational. However, the reality is much less clean - law is influenced by religious and cultural values, social structure, and the interiority of its judges (see David Brooks below).

Here is a bit from Fish's article on the two distinct views of the law:

Law would be autonomous if its operations proceeded without reference to norms that reside elsewhere — in religion, morality, economics, social justice, etc. This would not mean that in its unfolding law never made mention of facts and concerns found in the world outside it; only that when those facts and concerns came into the legal landscape, they were recast in legal terms rather than in the terms that belonged to the enterprises from which they were borrowed.

Insanity, for example, is a concept that has a home outside the law. But when lawyers (as opposed to psychiatrists) invoke it, they turn it into something that links up with legal categories. It is defined as an inability to tell right from wrong, not a definition that would recommend itself to the medical community. The law is autonomous when it turns everything into its own stuff so that even when it incorporates concepts from elsewhere they are emptied of their empirical content and given the content the law’s internal imperatives require.

This is precisely what the critics of law’s autonomy (or of its claimed autonomy) complain about. A legal system that first formulates its own special vocabulary (consisting largely of entities no human eye has ever seen) and then shoehorns everything it encounters into that same vocabulary will never touch down on the ground, will never respond directly to the urgencies and needs of real people living real lives.

In his ferociously funny essay “Transcendental Nonsense and the Functional Approach” (Columbia Law Review, 1935), Felix Cohen laments “the divorce of legal reasoning from questions of social fact and ethical value.” Legal concepts, he says scornfully, are “supernatural entities which do not have a verifiable existence except to the eyes of faith,” and rules of law “which refer to these legal concepts, are not descriptions of empirical social facts . . . nor yet statements of moral ideals, but are rather theorems in an independent system.”

The law, Cohen concludes, should not be a self-referring construct of “pure geometry,” but a “social process” that deals with “human activity, with cause and effect, with the past and the future.” A responsible jurist will be one who says, “This rule leads to the following results, which are socially undesirable for the following reasons.” In short, a responsible judge will have empathy.

Whereas Cohen rejects a legal system that is without social and ethical content, other critics argue that no such system is possible, and that what Cohen calls transcendental nonsense is in fact full of the sense sponsored by the powers that be. The myth of a law distinct from substantive value is used to smuggle in the values of the ruling class. “Lawyers, judges and scholars,” says Joseph Singer, “make highly controversial political choices, but use the ideology of legal reasoning to make our institutions appear natural and our rules appear neutral” (”The Player and the Cards,” Yale Law Journal, 1984). And law schools, according to Duncan Kennedy, play their part by providing “training for willing service in the hierarchies of the corporate welfare state” (“Legal Education and the Reproduction of Hierarchy,” Journal of legal Education, 1982).

This is not very far from Obama’s critique of formalism as a “cramped and narrow” way of interpreting the Constitution “in which the . . . courts essentially become the rubber stamps of the powerful.” A better way of interpreting, he believes, would be to begin with the conviction that “the courts are the refuge of the powerless who often lose in the democratic back and forth.” Therefore we need judges “who have the empathy to recognize what it’s like be a young teen-aged mom; the empathy to understand what it’s like to be poor, African American or gay.”

And here is how he reviews the place of empathy in a SCOTUS nominee:

An Obama judge will not ask, “Does the ruling I’m about to make fit neatly into the universe of legal concepts?” but rather, “Is the ruling I’m about to make attentive to the needs of those who have fared badly in the legislative process because no lobbyists spoke for their interests?” Obama’s critics object that this gets things backwards. Rather than reasoning from legal principles to results, an Obama judge will begin with the result he or she desires and then figure out how to get there by what only looks like legal reasoning.

This is the answer to Dahlia Lithwick’s question, what’s wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent. No, says Walter Williams at myrtlebeachonline: “The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions.”

David Brooks, who is turning into one of our best columnists, takes a look at the idea that law should be separate from empathy and finds it lacking much foundation in reality. The minds of the judges are not isolated in a rational vacuum, and they should not be.

The Empathy Issue

The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.

Most people know this is untrue. In reality, decisions are made by imperfect minds in ambiguous circumstances. It is incoherent to say that a judge should base an opinion on reason and not emotion because emotions are an inherent part of decision-making. Emotions are the processes we use to assign value to different possibilities. Emotions move us toward things and ideas that produce pleasure and away from things and ideas that produce pain.

People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.

Supreme Court justices, like all of us, are emotional intuitionists. They begin their decision-making processes with certain models in their heads. These are models of how the world works and should work, which have been idiosyncratically ingrained by genes, culture, education, parents and events. These models shape the way judges perceive the world.

As Dan Kahan of Yale Law School has pointed out, many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities.

The decision-making process gets even murkier once the judge has absorbed the disparate facts of a case. When noodling over some issue — whether it’s a legal case, an essay, a math problem or a marketing strategy — people go foraging about for a unifying solution. This is not a hyper-rational, orderly process of the sort a computer might undertake. It’s a meandering, largely unconscious process of trial and error.

The mind tries on different solutions to see if they fit. Ideas and insights bubble up from some hidden layer of intuitions and heuristics. Sometimes you feel yourself getting closer to a conclusion, and sometimes you feel yourself getting farther away. The emotions serve as guidance signals, like from a GPS, as you feel your way toward a solution.

Then — often while you’re in the shower or after a night’s sleep — the answer comes to you. You experience a fantastic rush of pleasure that feels like a million tiny magnets suddenly clicking into alignment.

Now your conclusion is articulate in your consciousness. You can edit it or reject it. You can go out and find precedents and principles to buttress it. But the way you get there was not a cool, rational process. It was complex, unconscious and emotional.

The crucial question in evaluating a potential Supreme Court justice, therefore, is not whether she relies on empathy or emotion, but how she does so. First, can she process multiple streams of emotion? Reason is weak and emotions are strong, but emotions can be balanced off each other. Sonia Sotomayor will be a good justice if she can empathize with the many types of people and actions involved in a case, but a bad justice if she can only empathize with one type, one ethnic group or one social class.

Second, does she have a love for the institutions of the law themselves? For some lawyers, the law is not only a bunch of statutes but a code of chivalry. The good judges seem to derive a profound emotional satisfaction from the faithful execution of time-tested precedents and traditions.

Third, is she aware of the murky, flawed and semiprimitive nature of her own decision-making, and has she accounted for her own uncertainty? If we were logical creatures in a logical world, judges could create sweeping abstractions and then rigorously apply them. But because we’re emotional creatures in an idiosyncratic world, it’s prudent to have judges who are cautious, incrementalist and minimalist. It’s prudent to have judges who decide cases narrowly, who emphasize the specific context of each case, who value gradual change, small steps and modest self-restraint.

Right-leaning thinkers from Edmund Burke to Friedrich Hayek understood that emotion is prone to overshadow reason. They understood that emotion can be a wise guide in some circumstances and a dangerous deceiver in others. It’s not whether judges rely on emotion and empathy, it’s how they educate their sentiments within the discipline of manners and morals, tradition and practice.

Finally, Jonah Lehrer mentions and responds to Brooks's article at The Frontal Cortex - if anyone understands the complexities of emotion and reason in terms of decision-making, it's Lehrer.

People are master confabulators: we so effectively justify our moral intuitions that we're convinced they're not intuitions, but are instead derived from perfectly rational principles. (Only the other side is dependent on the frailties of feeling.) This is why, as Oliver Wendell Holmes Jr. correctly noted, "Lawyers spend a great deal of their time shoveling smoke."

The important questions, of course, concern the practical implications of this "moral intuitionist" view. (For those interested, I discuss the emotions of decision-making, and what they can teach us about psychopaths, at length in my book. See also the work of Jonathan Haidt.) Brooks makes a good point here too:

Is she aware of the murky, flawed and semiprimitive nature of her own decision-making, and has she accounted for her own uncertainty? If we were logical creatures in a logical world, judges could create sweeping abstractions and then rigorously apply them. But because we're emotional creatures in an idiosyncratic world, it's prudent to have judges who are cautious, incrementalist and minimalist.

Obviously, some decisions call for more than mere minimilism. (See, for instance, the recent decision by the California Supreme Court on Prop 8.) In general, however, the subterranean nature of moral decision-making should make us extremely circumspect of grandiose and overconfident proclamations. Behind those eloquent judicial opinions, after all, is blinkered limbic system, pumping out feelings for reasons we can't begin to explain.

So what should we look for in a judge? Once again, Holmes gets it right: "To have doubted one's own first principles is the mark of a civilized man." If I were a senator, I'd be interested in asking Sotomayor to give an example of a case in which she changed her mind, in which the search for rational-sounding justifications led her to overturn her initial instincts. Too often, we use reason to merely confirm what we already believe. The true mark of good judgment, however, is the use of reason to interrogate what we believe. Rationality won't give us the right legal answers, but it can help us ask the right questions.

The legal system is traditionally seen as the socially codified set of cultural values. Somehow, it has become the ideal that law will hold no values higher than those of the majority culture. This is a bad trend.

When women were given the right to vote, when all races were given equal rights under the law, and in so many other instances, the law was ahead of popular opinion - in essence, it held more compassion or empathy than the public who is subject to those laws. This was seen by intellectuals and leaders as a good thing - but not so much anymore.

Laws against gay marriage are clearly discriminatory. Slowly, we are seeing the law confirm this truth, state by state. When the first state ruled gay marriage was protected under the law, most people still opposed gay marriage. Now, with five or six states having made similar rulings, for the first time in polling, more people favor gay marriage than oppose it. The courts were ahead of the people.

In my mind, one of the primary responsibilities of the courts is to protect the rights of individuals from government interference. To protect the rights of the weak from the power of the wealthy. This requires that those who sit on the Bench, especially of the SCOTUS, be able to employ empathy in how the law is interpreted.

Tags: empathy, law, ethics, culture, society, Stanley Fish, David Brooks, Jonah Lehrer, Sonia Sotomayor