Prof. John Hasnas is an excellent seminar leader, and, like Conor, I cheer on his clearsighted reiteration of the kinds of blindness to future or systemic consequences that a viscerally emotional approach to jurisprudence can bring. Yet Bastiat, whom Hasnas cites, seems to me vulnerable to perhaps the most powerful or ‘enlightened’ sort of empatheticism:
There is only one difference between a bad economist and a good one: The bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen.
The minute you concede that there’s something important about intelligent foresight for people who aren’t and shouldn’t be economists (there must be some such people, right?), you’re off to the races. Indeed I have to say that I too am skeptical about the propriety or possibility of successfully folding law into economics (under the banner of ‘law and economics’). There’s a difference between admiring the great and useful mind of a Posner and believing that the best Supreme Court would by maximally Posnerian.
One reason why might be that the economic critique of empathy as jurisprudence doesn’t quite bring us to bear on the central issues at stake. I’m not sure the economic approach helps us understand well enough what we really mean when we talk about ‘empathy’ on the bench. Conor is not alone in feeling that this word, though allusive to what we mean by it, needs fuller elaboration. I’d say, then, that when critics complain of the wrongs of empathy, here’s what they oppose: a judge who rules in favor of an aggreived party because that party is aggreived. Obviously, this is an illogical way to approach a case — a court in which the complainant always won because they had the complaint would be an absurd court. (This isn’t the place to discuss the difference between the ‘empathetic court’ and a court of equity, but that’s another important point lost on the general discussion so far.) Yet the emotional calculus that we think of when we criticize empathy has a logic all its own — a logic that’s grown powerful indeed of late.
It’s the logic of a moral ideal, an aspiration in the nature of Rorty’s ‘social hope’. If every culture is driven by a set of ruling wishes concerning its moral ideals, one of our ruling wishes is that it be true that everyone who sincerely asks for something they don’t have authentically deserves what they’re asking for. One of our key criteria for an ideal society is that the best person to consult as to whether he or she truly has the right which he or she is demanding is that person him or herself. We want it to ever-more-increasingly be true that people demanding legal rights in our society are the most trustworthy and accurate witnesses to, and therefore judges of, their unrecognized possession of the rights they demand. The ability to recognize this reality is not a property of intellectation but ‘empathy’. The person, especially the judge, who is blind to the authenticity of grief will fail to credit the aggreived party’s privileged capacity for appraising the extent of injustice that they suffer and understanding the appropriate remedy. Injustice is bad primarily because it hurts; to ignore or distrust the cries of the hurting is to be cruel, and cruelty is the worst thing we do.
Why, after all, would somebody cry out if they were not in pain? This is the logic of what we mean by empathy.
June 3rd, 2009 | 10:51 am
Yes, that sounds like a terrible set of evaluative criteria for determining if people have a given right. Yes, I can imagine all kinds of terrible ideas becoming rights if we really adopted that kind of attitude. Yes, there are consequences to all of our rights talk.
But I think you consider need and agony so remotely because you need to. And do I believe people have a right to eat when hungry? yes. Do I believe people have a right to see a doctor when sick? yes. Do I believe people have the right to a safe place to sleep at night? yes.
I don’t think, actually, we have to give up discretion about rights and rights granting in the process of affirming a right to, say, health care access– a right many, many people already believe in, by the way. This is a common argument between Helen and me. The move seems to eternally be to tack back to talking about the philosophical or linguistic consequences of rights-talk, rather than considering the actual tangible issue being considered. But the issue is this right, this grief. An ethic that can’t embody immediacy enough to confront such individual concerns, and instead comes back again and again to talk about rights-talk, is as unworkable as the vision of rights-granting that you’re talking about.
June 3rd, 2009 | 11:12 am
Yes, but, Freddie, law isn’t ethics and can’t simply be, much less be perfected as, ethics. And obviously your phrasing of those fundamental-sounding rights simply begs all the important questions — when ‘really’ hungry, when ‘really’ sick, a ‘really’ safe place, etc., etc. Of course I’m not arguing that blind justice means blindness to absurd results, results that justify themselves as only needing to be defensible in legalese. I am arguing that the ‘reallys’ are where Law does its work, or should — a work that we can’t successfully allow ethics, no matter how great ethics (really) is, to usurp.
June 3rd, 2009 | 3:30 pm
This has all been very interesting for me as I write my dissertation on the Lochner Era in the Supreme Court. You’ll recall the conventional history: those old laissiez-faire ideologue justices in the 1900s struck down state laws that regulated industry (preventing major threats to health and safety, providing eight-hour work days, ensuring fair wages, etc.). They did this in the name of the Fourteenth Amendment, which they believed protected the right of property and “liberty of contract,” which, of course, is not in the Constitution. Empathy was found, not in the Court, but in local assemblies full of elected officials; it was the Court that was full of cold-hearted capitalists, who stuck to their principles while ignoring the social realities of suffering workers.
Much of my dissertation is devoted to debunking this account: the Court was in fact very sensitive and “empathetic” toward the plight of workers — in fact, if we add them up, the justices upheld far more of those regulatory laws than they struck down!
If we read the cases, though, it becomes clear that their real goal was to maintain “neutral” government, in an era of increasing public regulation. This called for an ability to see the long-term, general, public good, rather than an immediate necessities of certain groups. That was, of course, the classic definition of justice.
I think we can see the new definition well enough when we look at the race-based preferences issue. Judge Sotomayor, like many of her colleagues, subscribes to a view of evolutionary justice. It is not a matter of correcting things according to some universal standard of right; it is instead a matter of compensating for past wrongs according to the changing spirit of the times.
The question that needs to be asked at Sotomayor’s confirmation hearings, and in public discourse generally is this: what is the true meaning of justice? It is recovering some lost standard of natural rights? Or is it creating rights by moving forward — aware that some will receive rights and some will not?
June 4th, 2009 | 8:58 am
The dual logics of modernity, sprung from the same Mother Individual, are (1) the ethic of not being accountable for what I did not intend, and (2) the ethic of perceiving an infraction when a wrong has occurred in my life that I did not intend. James, you speak about the 2 logics here, which must somehow be solved in law, which runs on logic. However, both logics run deep in our perception of ourselves, and it seems questionable to me that one could be incinerated in the name of a more consistent logic, without undermining some of the social support that keeps the legal system stable. So we are left with a vast middle ground between what the plaintiff never intended and what the defendant never intended. The solution is ad hoc, and it seems to me that an effort to make this middle ground perfectly consistent will be intellectually satisfying but socially disruptive. As much as I also am leary of an “empathetic” jurisprudence, I am equally hesitant to “solve” the problem of our dual logics. Which is why Kevin’s suggestion for an elevated public discourse on the meaning of justice is not only unlikely, but is also probably going to push us into a further ideologized judiciary. I am not sure how to confront empathetic jurisprudence, but do we really need philosophy of law to be calcified on talk shows and shrunk into digestible campaign phrases?
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