By understanding the powerful impact of empathy, we can develop empathetic mindsets and thus improve the health and well-being of our law firms, colleagues and ourselves. As lawyers, now is the time to understand what empathy is, why it`s important, and how we can use it to improve our professional and personal lives. We live in difficult times, and perhaps a positive outcome of the challenges we face at work, at home, and in our world is an increased sense of empathy when we have the opportunity to see and appreciate humanity in one another. Professor Fish wrote that “critics of the autonomy of the law” protest: “A legal system that first formulates its own particular vocabulary (composed largely of entities that no human eye has ever seen) and then puts everything it encounters in the same vocabulary will never land on the ground, will never respond directly to the emergencies and needs of real people, who live a real life. This is the devastating vision of the “autonomy of the law” that Kafka brought to life in The Trial. We need some understanding of what real people face in real conflicts, not that all of these people are right. Portia, who is not available, has admirable understudies that could make our Supreme Court a respect for the law and the people. The “original intent” theory, on the other hand, explicitly involves ignoring more than 200 years of precedent, which, as any first-year law student will tell you, is an essential part of the “law.” I will empathize every day for the deliberate disregard for precedent. Insanity, for example, is a concept that has a place outside the law. But when lawyers (as opposed to psychiatrists) invoke it, they turn it into something that connects to legal categories. It is defined as an inability to distinguish right from wrong, not a definition that would be recommended to the medical community. The law is autonomous when it transforms everything into its own matter, so that even if it incorporates concepts from elsewhere, they are stripped of their empirical content and receive the content that the internal imperatives of the law require. The law, Cohen concludes, should not be an egocentric construct of “pure geometry,” but a “social process” concerned with “human activity, with cause and effect, with the past and the future.” A responsible lawyer will be someone who says, “This rule leads to the following results, which are socially undesirable for the following reasons.” In short, a responsible judge will have empathy.
For example, there are decisions that can be considered unjust, for example by siding with murderers whose convictions were obtained in a legally erroneous manner. The judges were not indifferent to the victims` disappointment or sympathetic to the murderers who freed them. They have done so as guardians of our legal system or as interpreters of the Constitution, not as jurors charged with being fair or as judges obliged to treat fairly those who appear before them. Both sympathy and empathy refer to a benevolent response to another person`s emotional state, but a distinction between them is usually made: while sympathy is a feeling of sincere concern for someone who is going through something difficult or painful, empathy involves actively sharing the other person`s emotional experience. President Obama wants empathetic Supreme Court justices. What`s wrong with that, asks Dahlia Lithwick (“Once More, Without Feeling,” Slate.com): “When was the simple realization that you`re not the only one in the room mistaken for anarchy, activism, and social engineering?” It is a wonderful compendium of legal theoretical arguments. Thank you very much. But does it “only” exist or purely legally? Does the legal system exist? Is the law an autonomous body of thought resting on its own soil? Or is what we call law inevitably influenced and even structured by forces and imperatives that it does not contain? In short, is the law autonomous? Should it be? In his highly comical essay “Transcendental Nonsense and the Functional Approach” (Columbia Law Review, 1935), Felix Cohen deplored “the separation of legal reasoning from questions of social fact and ethical value.” Legal concepts, he says contemptuously, are “supernatural entities that have a verifiable existence only in the eyes of faith,” and the legal rules “relating to these legal concepts are not descriptions of empirical social facts.
