Empathy Revisited

A friend recently shared with me this blog post at The New York Times, entitled “Empathy and the Law”. Considering that this is a topic that I find insatiably interesting, I read with the appropriate voracious interest. In it, Stanley Fish writes:

“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.”

Fish’s analysis spends an enjoyable (for legal hacks) few hundred words tackling the structural underpinnings of the law, specifically focusing on whether unjust laws are actually laws at all. He cites attorneys who posit, “Is moral justice the essence of the law, or is legal justice? Is there a difference?”

This is all fine and good, but I think that a better analysis would be of the repercussions of tailoring laws (which apply to the society as a whole) to individuals, which is a symptom of an empathetic judge. Fortunately, even in our short nationalistic history, we have proof that this is a horrible idea.

Tailoring laws to individual people/situations was one of the major reasons that the Articles of Confederation failed, way back in the 1780’s. The all-legislative governing body would create laws to protect individual members from various misdeeds (like cheating creditors, fraudulent land grants, etc). It’s implicitly understood that today, the roles would likely be reversed. In the 1780’s, the renegade law makers protected the faux aristocracy in America. Today it would ostensibly protect “the little guy”. Either way, the dissolution of standing law creates unpredictability and would constitute a statutory disaster.

Our dalliance with individualized law-making in the 1780’s taught us the importance of the sanctity of laws, and the worth of a strong and independent judiciary that would prevent personal favoritism. From this epiphany sprang the tripartite governmental structure in our current constitution.

Empathy on the bench is, in form, a reversion to 1781, and in practice, a repeat of the mistakes our nation made  made as infants. Empathy also has the nasty tendency to destroy “reliance” – our society must be able to rely on the fact that legal conflicts will be resolved in accordance with the laws on the books. We then govern our behavior appropriately with that understanding.

Furthermore, I think that we already have a reasonable compromise between “moral justice” and “legal reliance”. It’s clear that laws are, like everything else, an imperfect expression of our society’s morality. People, as a whole, have accepted this; while there are occasionally injustices, having a codified moral system produces clear and tactile benefits. Therefore, we have some “catch all” legal tenants, such as promissory restitution or promissory estoppel (just to name a few in contracts/property transactions) that provide a safety net for the small minority that risk falling through the cracks of the rough framework of our morally based laws. These tenants ensure justice, without sacrificing legal reliance on the law.

However, a judge’s personal feelings and whims simply cannot be quantified or relied upon, which is why empathy emphatically fails. Fortunately, the empathy bear will always be there for a hug. But do we really want one on the bench?

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