Hostname: page-component-cd9895bd7-dzt6s Total loading time: 0 Render date: 2024-12-26T18:07:10.115Z Has data issue: false hasContentIssue false
  • English
  • Français

Imagining by feeling: a case for compassion in legal reasoning

Published online by Cambridge University Press:  12 May 2017

Maksymilian Del Mar
Maksymilian Del Mar*
Affiliation:
Reader in Legal Theory, Department of Law, Queen Mary University of London, UK. E-mail: [email protected].
*
[email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

This paper argues that feeling compassion (and other relational emotions) makes an important, beneficial difference in adjudication, as it improves the exercise of the perspectival imagination – that is, it helps a judge to better understand, and to better describe, a situation as another person experienced it. Even where a judge has a highly developed capacity for empathy and sympathy (these being cognitive and evaluative processes that are distinguishable from emotions), there is something to be gained by a judge actually feeling compassion. However, given the potential for the distortion of understanding as a consequence of feeling compassion, any such feeling has to be accompanied by the robust exercise of the perspectival imagination – that is, by imagining multiple perspectives (including sometimes constructing imaginary ones), so as to avoid privileging any one perspective over others. It is further argued that this ‘imagining by feeling’, as I call it in this paper, is not a threat to impartiality or the rule of law, but in fact a condition of it. It is part of the rule of law that people have a right to be heard, especially those whom we may otherwise find it difficult to understand. Imagining by feeling helps judges to better ‘hear’ a greater diversity of those who come before them, and thus helps the judiciary to improve the quality of the rule of law.

Type
Articles
Information
International Journal of Law in Context , Volume 13 , Special Issue 2: Law and Compassion , June 2017 , pp. 143 - 157
Copyright
Copyright © Cambridge University Press 2017 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

I owe great thanks to Dermot Feenan, both for the invitation to the original workshop (and the opportunity to comment on a wonderful paper by Susan Bandes) and for subsequent discussion and most helpful comments on an earlier draft. I am grateful too for the feedback provided by the audience at UNAM in Mexico in August 2016, especially from Imer Flores (the chair on that occasion), where I presented a version of this paper.

References

Anderson, R.L. (1998) ‘Truth and Objectivity in Perspectivism’, Synthese 115: 1–32.CrossRefGoogle Scholar
Balcerak, M. (2016) ‘On the Epistemic Value of Imagining, Supposing and Conceiving’ in Kind, A. and Kung, P. (eds) Knowledge Through Imagination. Oxford: Oxford University Press, 41–60.Google Scholar
Coplan, A. (2011) ‘Will the Real Empathy Please Stand Up? A Case for a Narrow Conceptualisation’, The Southern Journal of Philosophy 49(s1): 40–65.CrossRefGoogle Scholar
Corso, L. (2014) ‘Should Empathy Play Any Role in the Interpretation of Constitutional Rights?’, Ratio Juris 27(1): 94–115.CrossRefGoogle Scholar
Hartner, M. (2012) ‘Multiperspectivity’, Living Handbook of Narratology. Available at: http://wikis.sub.uni-hamburg.de/lhn/index.php/Multiperspectivity (accessed 1 March 2017).Google Scholar
Kind, A. (2001) ‘Putting the Image Back in Imagination’, Philosophy and Phenomenological Research 62(1): 85–109.CrossRefGoogle Scholar
Kind, A. (2013) ‘The Heterogeneity of the Imagination’, Erkenntnis 78(1): 141–159.CrossRefGoogle Scholar
Kind, A. and Kung, P. (eds) (2016) Knowledge Through Imagination. Oxford: Oxford University Press.CrossRefGoogle Scholar
Landy, J. (2004) Philosophy as Fiction: Self, Deception and Knowledge in Proust. Oxford: Oxford University Press.CrossRefGoogle Scholar
MacCormick, N. (2005) Rhetoric and the Rule of Law. Oxford: Oxford University Press.CrossRefGoogle Scholar
Moran, R. (1994) ‘The Expression of Feeling in Imagination’, The Philosophical Review 103(1): 75–106.CrossRefGoogle Scholar
Morton, A. (2013) Emotion and Imagination. Cambridge: Polity Press.Google Scholar
Nussbaum, M. (2001) Upheavals of Thought: The Intelligence of the Emotions. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Smith, A. (2002 [1759]) A Theory of Moral Sentiments, Haakonssen, K. (ed.). Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Spaulding, S. (2016), ‘Imagination Through Knowledge’ in Kind, A. and Kung, P. (eds) Knowledge Through Imagination. Oxford: Oxford University Press, 207–226.CrossRefGoogle Scholar
Stevenson, L. (2003) ‘Twelve Conceptions of Imagination’, British Journal of Aesthetics 43(3): 238–259.CrossRefGoogle Scholar
Zipursky, B. (1990) ‘ DeShaney and the Jurisprudence of Compassion’, New York University Law Review 65: 1101–1147.Google Scholar