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« The "Law and Policy" Mistake | Main | The Role of Empathy in Judging »

Empathy, culture, gender and politics

(sent to lawcourts)

... I don't know that I would say that "justice is not possible without empathy," because this sounds like an ideology ("I like liberal judging"). Philosophically, one should rather say that "justice" is at great risk of failure without good information -- which, being the way humans are, entails some reliance upon phenomenology. Justice in this sense appears to be comprehensiveness in the intellect, not empathy as its own "thing."

In fact, I'm sure people who have practiced law can give you just as many bad illustrations of "feeling jurisprudence" as they can mindless formalism (positivism).

Judging is no different than comprehending. The goal is not to stage a fight between empathy and analycity. The goal is to find refinement in the mind through all of the ways it "gets at the world" (and existence).

The best judge is still the Solomon or the Hercules in terms of what brains do. But where the mistake occurs is that we sometimes take "Solomon" or "Hercules" to be a cultural form -- usually, male and white. This is where the problem is -- in stereotypes and prejudice, not in wanting a different intellectual ideal. We often see this with cultures. We say, e.g., something is "western" or "Greek" because it happened there first, when we should just say it is behavior X conducive to benefits Y. Stereotypes are broken by people like Obama who show us that "Kennedy" is only a method in politics, not the home of a person or ethnicity. So it is with judging and with "Solomons." We know what good judging is; we needn't change the product. We should only find ones that break the cultural form. Diversity is actually about oneness in this sense.

What I am trying to say to you is that one would want to find a Holmes or a Marshall in a multicultural form. One would never want to say "there are multiple epistemologies" "women judge their way, men theirs" "now it is time for feeling jurisprudence" and so forth. Or to say, "the way we can get our liberal rulings is to use slogans like 'empahy is justice.'

Justice is righteousness. Righteousness is correctness. Correctness is understanding. Understanding is meaning. Meaning is cognition. Cognition is both analytic and synthetic. A good mind can do and interrelate both. A good mind is still the single best criteria one could have both in a judge and in "justice."

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