Values File

Without empathy in this sense as judge posner

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Unformatted text preview: alue File Empathy Bad Empathy is not always good: it too often valorizes the powerful to the exclusion of others Susan Bandes, Professor, DePaul University, UNIVERSITY OF CHICAGO LAW REVIEW, 1996, p. 373-378 There are two major problems with the use of empathy in the legal context. First, the notion of empathy is laden with serious definitional problems--on close scrutiny, it resembles a moving target. Second, the conceptual utility of empathy varies widely depending on the context in which it is invoked, and the purposes for which it is employed. Henderson, in her seminal article on empathy, explains that the word has several definitions. Specifically, she describes the following three alternatives: "1) feeling the emotion of another; 2) understanding the experience or situation of another, . . . often [ ] by imagining oneself to be in the position of the other; or 3) action brought about by experiencing the distress of another . . . ." Obviously, these definitions describe a wide range of cognition and behavior, and this inherent ambiguity makes it difficult to advance broad claims about the desirability of empathy in law. Empathy is desirable regardless of context in only one sense. To the extent empathy is the facility to perceive the humanity of another person, it is an unmitigated good. In this sense, empathy facilitates the basic recognition that all people should be accorded basic human dignity. Without empathy in this sense, as Judge Posner describes in his discussion of the judges of the Third Reich, persons can be easily excluded from the human community and made into outlaws "to whom no consideration is due." However, accepting that the ability to perceive the humanity of another person is an unmitigated good, it is not clear that empathy is the correct label for it. For example, Anthony Cook describes the same recognition, which he calls a "commitment to the innate worth and equality of all human life," as a form of Christian love. Once we move beyond the basic recognition of human dignity, empathy becomes a more problematic c...
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This document was uploaded on 11/20/2013.

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