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Passions and EmotionsNOMOS LIII$
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James E. Fleming

Print publication date: 2012

Print ISBN-13: 9780814760147

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814760147.001.0001

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PRINTED FROM NYU Press SCHOLARSHIP ONLINE (www.nyu.universitypressscholarship.com). (c) Copyright University of NYU Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in NYSO for personal use.date: 01 July 2022

The Anti-Empathic Turn

The Anti-Empathic Turn

(p.243) 9 The Anti-Empathic Turn
Passions and Emotions

Robin West

NYU Press

This chapter discusses the role of empathy in judging, the anti-empathic turn in the twenty-first century, and the new paradigm of good judging. Analogous reasoning by definition requires empathic understanding, at least where it is people's subjective situations, problems, fears, anxieties, suffering, opportunities, and dreams from which and to which one is analogizing. Likewise, adjudication proceeds largely by analogy. For that reason, some level of empathic ability is a requisite of any judging in a common-law or case-method system. However, people are now being taught, by both senators and judicial nominees themselves, that empathic judging is not only not something to strive for in judging but something to avoid or even abominate; judges should apply the rule of law. Nevertheless, the anti-emphatic turn is a part of a shift to a new paradigm of good judging—sometimes called “scientific judging”—which looks to the consequences of decisions, rather than back to the governing law drawn from the past.

Keywords:   empathy, anti-empathic turn, analogous reasoning, adjudication, common-law, case-method system, empathic judging, scientific judging

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