The Anti-Empathic Turn
The Anti-Empathic Turn
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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