In “Empathy, Justice and the Law” Martin L. Hoffman addresses the role of empathy in the legal system. Hoffman believes that empathy has a large role in the legal system, but not without the presence of legal standings to back up decisions. He also warns that everyone involved in the case must be aware of their biases as to not allow them to hijack the evidence in the case. Hoffman uses the example of Uncle Tom’s Cabin by Harriet Beecher Stowe. Stowe used her own experience of losing her 18-month-old son to empathize with slave mothers who had their children taken from them to be sold. The book was widely read all across the world and played a large part in the abolition of slavery. Her empathy allowed her to influence other people around the world and create a positive social change in America. Another example Hoffman uses to develop his point is the case of Brown v. Board of Education, the famous case that overturned the de-facto segregation of schools. In the trial Thurgood Marshall, used narratives of the poor conditions that the black children faced in their schools to prove that separate does not mean equal. The heart wrenching accounts that the justices heard stirred up an empathetic response. Hoffman alluded that some of the justices felt the empathetic response and used that as fuel to search for any kind of legality that would allow them to overturn this ruling. This example is a more direct showing of how empathy in the courtroom itself can lead to a ruling. Hoffman does warn however, that there are issues with empathy in the courtroom. He sights four main issues: the fragility of empathy, “empathic over-arousal”, the familiarity bias, and the salience bias. Hoffmann states that empathy can be easily influenced by our relationship to a victim, the intensity of the cues that they give off, and even our own selfish motives. “Empathic over-arousal” refers to when a story becomes too much for the listener to comprehend so they distance themselves in order to lessen the impact on their own empathic distress. Familiarity bias refers to humans’ tendency to feel more empathy towards people who are like us, which can skew our views of people who are not similar to us. Salience bias states that it is more difficult to empathize with a victim who is not physically present. He warns that all of these issues can cause people to be blinded to the actual evidence that is being promoted and may skew the ruling.
In order to understand empathy Hoffman defines first five methods of “empathic arousal” (Hoffman, 232). Meaning five ways that humans identify someone is in distress, which causes an empathetic response. “Mimicry” is when someone sees the victim’s physical attributes such as facial expression or posture and automatically imitates them. This mimicry sends triggers to the brain, which cause emotions similar to what the victim is feeling (Hoffman, 232). “Conditioning” is the second form of empathic arousal. Conditioning allows humans to feel empathy for people who are in distress at the same time that they are (Hoffman, 232). “Direct association” is when someone is able to make a connection to another’s situation based on an experience in the past (Hoffman, 232). These three are all involuntary responses that allow children to feel empathy before their brain has fully developed the capacity to understand (Hoffman, 232). “Verbally meditated association” is when the victim explains their situation and the listener is able to understand what they are saying(Hoffman, 232). “Perspective taking” allows a bystander to imagine themselves in the victims situation and feel what they would feel if they too were in that situation (Hoffman, 233). The previous two empathic arousals require more cognition and thus are typically only seen after childhood (Hoffman, 233). It is important to understand empathic arousal to understand how people develop empathic distress in courtrooms, but also just in general.
Hoffman, Martin L. “Empathy, Justice, and the Law.” Empathy: Philosophical and Psychological Perspectives. 2011. 230-54. Print.