May 25, 2009


Empathy and the Law (Stanley Fish, 5/24/09, NY Times)

Obama’s invocations of empathy combine a concern for the less advantaged with a theory of constitutional interpretation. Speaking to his choice to fill the seat soon to be vacated by Justice Souter, Obama said, “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives.” That kind of judge, Obama explained, will have empathy: “I view the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

The phrase “just decisions and outcomes” seems beyond reproach (who could object to it?), but many will hear it with suspicion and say, “Just outcomes would be nice and let’s hope we have some, but what courts should deliver is legal outcomes.” You might think that “legal” and “just” go together, and sometimes they do; but in the real world “just” and “legal” can come apart. A decision is just when it reflects an overarching vision of what is owed is to each man and woman. A decision is legal when it can be said to follow from established rules, statutes, precedents.

It is possible then that a legal decision, a decision that has a source and a pedigree in the laws that have been formally set down, could offend one’s sense of justice. And, conversely, it is also possible that a decision widely regarded as substantively just — yes, that’s the way things should be — could at the same time be seen as illegal, that is, as not following from the rules and principles of settled law. This is precisely the criticism that has been made of Brown v. Board of Education (most notably by Herbert Wechsler in his influential Harvard Law Review article “Toward Neutral Principles”); yes, the result is good, the critics acknowledge, but where, they ask, is its legal — as opposed to its empathetic — basis? And on the other side it was said, and is still said, that any jurisprudence that cannot accommodate Brown v. Board is a jurisprudence we must reject.

Indeed it has been argued, by Lon Fuller in a famous debate with H.L.A. Hart (Harvard Law Review, 1958), that a jurisprudence which generates outcomes offensive to justice doesn’t deserve the name of law. It may come fully equipped with procedures, tests, distinctions and all the other marks of law, but it isn’t law because, at its heart, it isn’t good. The question Fuller and Hart debated is whether Nazi law was law. The positivist Hart said that law and morality are two distinct registers and that a system of law could be procedurally legitimate and at the same time rest on an immoral foundation. Fuller replied by distinguishing between “mere order” and “good order,” and declared that a legal system “which clothes itself with a tinsel of legal form can so far depart from . . . the inner morality of law itself that it ceases to be a legal system.”

It is into these thickets of controversy that Obama steps (as he well knows) when he elevates empathy — a fellow feeling for those who have long been on the wrong end of the stick — above “abstract legal theory,” and insists that in addition to being legally competent the judge he approves must have justice in his or her heart. This is the criterion he applied when voting against Chief Justice Roberts. “Legal process alone,” he said in explanation of that vote, “will not lead you to a rule of decision.” Another way of putting this would be to say, it’s not really law if it’s merely legal.

But is there such a thing as “merely” or purely legal? Is there such a thing as the system of law? Is law a self-contained body of thought that rests on its own bottom? Or is what we call law inevitably influenced and even structured by forces and imperatives it does not contain? To put it in a nutshell, is law autonomous? Should it be?

Law would be autonomous if its operations proceeded without reference to norms that reside elsewhere — in religion, morality, economics, social justice, etc.

More: What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned 'round on you, where would
you hide, Roper, the laws all being flat?

This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then?

Yes, I'd give the Devil benefit of law, for my own safety's sake!

Posted by Orrin Judd at May 25, 2009 7:38 AM
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