Empathy, Justice, and Jurisprudence

This paper uses a study of the opinions in a case recently decided by the U.S. Supreme Court, Ledbetter v. Goodyear Tire & Rubber Co., to explain the role of empathy in legal interpretation. I argue for two theses: (1) that empathy is essential to an interpretation of law if that interpretation is to serve the interests of justice and (2) that no interpretation of a law is sound if it ignores whether so interpreting the law serves the interests of justice.sjp_58 73..90 Piaget observes, at the very beginning of his landmark study of children’s moral thinking: Children’s games constitute the most admirable social institutions. The game of marbles, for instance, as played by boys, contains an extremely complex system of rules, that is to say, a code of laws, a jurisprudence of its own. Only the psychologist, whose profession obliges him to become familiar with this instance of common law, and to get at the implicit morality underlying it, is in a position to estimate the extraordinary wealth of these rules by the difficulty he experiences in mastering their details. My aim, in this essay, is to expand on some of the themes expressed in Piaget’s observation. I am particularly interested in the place of empathy in the jurisprudence to which Piaget refers. His reference, while somewhat oblique, is to a jurisprudence that arises with the understanding of social institutions as cooperative schemes of a particular kind. Specifically, they are cooperative schemes whose participants take themselves to be joined together as partners in an enterprise regulated by the rules of the institution John Deigh teaches moral, political, and legal philosophy at the University of Texas at Austin. He is the author of The Sources of Moral Agency (Cambridge University Press, 1996), Emotions, Values, and the Law (Oxford University Press, 2008), and An Introduction to Ethics (Cambridge University Press, 2010). He was the editor of Ethics from 1997 to 2008. 1 Jean Piaget et al., The Moral Judgment of the Child, trans. Marjorie Gabain (New York: Free Press, 1965). Originally published as Le Jugement Moral chez l’Enfant (Paris: Alcan, 1932). The Southern Journal of Philosophy Volume 49, Spindel Supplement 2011 The Southern Journal of Philosophy, Volume 49, Spindel Supplement (2011), 73–90. ISSN 0038-4283, online ISSN 2041-6962. DOI: 10.1111/j.2041-6962.2011.00058.x