Posted by Jonathan Adler:
Empathy for the Unseen:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1243946562
John Hasnas had a [1]very good op-ed in the WSJ a few days on empathy,
the "seen" and the "unseen." Here's a taste:
Compassion is defined as a feeling of deep sympathy for those
stricken by misfortune, accompanied by a strong desire to alleviate
the suffering; empathy is the ability to share in another's
emotions, thoughts and feelings. Hence, a compassionate judge would
tend to base his or her decisions on sympathy for the unfortunate;
an empathetic judge on how the people directly affected by the
decision would think and feel. What could be wrong with that? . . .
As important as compassion and empathy are, one can have these
feelings only for people that exist and that one knows about --
that is, for those who are "seen." . . .
In general, one can feel compassion for and empathize with
individual plaintiffs in a lawsuit who are facing hardship. They
are visible. One cannot feel compassion for or empathize with
impersonal corporate defendants, who, should they incur liability,
will pass the costs on to consumers, reduce their output, or cut
employment. Those who must pay more for products, or are unable to
obtain needed goods or services, or cannot find a job are
invisible.
The law consists of abstract rules because we know that, as human
beings, judges are unable to foresee all of the long-term
consequences of their decisions and may be unduly influenced by the
immediate, visible effects of these decisions. The rules of law are
designed in part to strike the proper balance between the interests
of those who are seen and those who are not seen. The purpose of
the rules is to enable judges to resist the emotionally engaging
temptation to relieve the plight of those they can see and
empathize with, even when doing so would be unfair to those they
cannot see.
Calling on judges to be compassionate or empathetic is in effect to
ask them to undo this balance and favor the seen over the unseen.
Paraphrasing Bastiat, if the difference between the bad judge and
the good judge is that the bad judge focuses on the visible effects
of his or her decisions while the good judge takes into account
both the effects that can be seen and those that are unseen, then
the compassionate, empathetic judge is very likely to be a bad
judge.
References
1. http://online.wsj.com/article/SB124355502499664627.html
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