Martin L. Hoffman’s book, Empathy, Justice, and the Law, addresses the fragile relationship between empathy and the law, weighing the value of its contribution to the court with the potential biases and fickle nature of the human emotion. Embedded throughout, Hoffman asserts that empathy is a quintessential attribute of law and human interaction with society, positively advancing reform towards higher moral standards and Constitutional justice. Beginning clinically, he demonstrates that empathic distress has historically prompted a helpful response as was the case with some Nazi soldiers when they empathized with the treatment of Jewish prisoners. He continues the discussion with neuroscience, showing that empathy is not just a suspended wash of emotions, rather is linked to a cause and effect path within the mind which often triggers the call for justice. Empathic responses are thus an imperative tie between the people and their laws enforced by the justice system. Advancing to historical examples, Hoffman sites Justice Harlan as the lone dissenter in the Plessy V. Ferguson case which segregated schools. His analysis proves that perhaps the rational decision was to ease tensions by providing separate but equal schooling to colored children, whereas the moral and empathic decision was to protect colored children from degradation. It was empathy for the abuse being suffered by colored children which prompted the ruling to be overturned in Brown V. Board of Education in 1954. Finally, Hoffman concedes that empathy can be damaging as it holds biases towards the group one identifies with, and can foster hostility towards the others. It can lead to incorrect verdicts in the face of salience bias. Victim blaming often occurs as a result of empathy, if one connects more with the perpetrator than the true victim, as was the case of the British nanny in 1997. Within Hoffman’s essay, his careful use of the term “empathy” frames his narrative to reinforce the central theme of action inducing emotion.
Affective empathy is defined early in the chapter as feeling what another feels rather than cognitive empathy which is merely the “awareness of another’s feelings” (Hoffman 230). This discernment is crucial to the thesis of the paper because “empathy’s importance for law is based on its presumed motivational properties” (Hoffman 231). Thus, Hoffman’s central argument is built upon the foundation of action, which is more likely to occur under the influence of affective empathy rather than cognitive empathy (which are often used synonymously). Under the assumption of Hobbesian philosophy which asserts that humans are inherently selfish in their actions in order to ensure their own survival, the only way to ensure affirmative action from an individual is to personalize a plight. This is where the distinction between the two types of empathy is pivotal, because simply being aware of another person’s feelings would very rarely incite a constructive response.
Hoffman, Martin. “Empathy, Justice, and the Law.” Empathy: Philosophical and Psychological Perspectives, edited by Amy Coplan and Peter Goldie, Oxford University Press, 2011, 230-254.