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.