The Role of Empathy in Judging
Saturday, May 23, 2009 at 2:58PM
Sean Wilson in Legal Theory, e-mail discussion

(sent to lawcourts) 

... proof yet again of why Mark Graber is truly our first citizen.

This whole thing reminds me of Richard Rorty and of why his one best idea is still yet incomplete. The idea is this: to make moral judgments, we have to understand one another. To understand one another, we have to be able "to stand in another's shoes," so to speak (to see his or her life as he or she does). But the problem is that once you do this, the process is not over. You have to incorporate that into some sort of mega perspective or mega vantage point. It has to be cognitively synthesized into the intellect. In other words, empathy works ONLY IF it enhances cognition. Another way of saying it: empathy for its own sake is just another mistake.

The key here is to see that the enemy is not formalism for its own sake, it is formalism as a deficient form of thinking (a deficient form of cognition). So the remedy is not "feeling jurisprudence" more than it is superior cognition informed by the processes of BOTH feeling and non-feeling.

Always, there is a mountain to climb, whether Richard Rorty knew it or not.

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