Legality and Empathy

This article rejects the assumption that legality – by which I mean the dominant belief system about the Rule and role of Law – and empathy are mutually exclusive concepts. Failure to recognize the phenomenon of empathy explicitly in legal decisions more generally may result from a fear of the emotional realm as irrational, rather than a rational. It may stem from a belief that the divide between “subject” and “object” is uncrossable. The resistance to empathy may be attributable to the adversarial ideology acquired during law school understanding the adversary is not important unless it serves one’s instrumental purpose – or to the fact that little in the professional culture and scholarship encourages development and use of empathic skills. But empathy can contribute to meaning and interpretation and enlarge the universe of legal discourse and understanding. The stories or narratives of the law can be heard differently, and more meanings will be available to legal discourse through explicit attempts to understand the situation and experience of others. This can lead to revolutions in habitual legal thinking and transformation of legal problems.

This article argues that an understanding of the phenomenon of empathic knowledge has enormous explanatory power. It does so by examining from the perspective of empathy the stories of the Supreme Court’s decisions in Brown v. Board of Education (I}, Shapiro v. Thompson, Roe v. Wade, and Bowers v. Hardwick. The article argues that Brown I can best be explained by empathy, that Shapiro again manifests the breakthrough of empathic understanding, and that Roe v. Wade and its progeny demonstrate the Court’s failure to hear certain empathic narratives. Finally, the article examines the recent case of Bowers v. Hardwick as an example of the complete failure of empathy in a legal decision.