Hoffman, in his work “Empathy, Justice, and the Law”, describes his theory on empathy and what he believes its role is in our American legal system. He starts by clearly defining two types of empathy (cognitive and affective) and describing the development of empathy in humans. He focuses on the ways empathic distress can be aroused and be transformed into different feelings, depending on the situation at hand. One of those feelings in particular is called “empathic feeling of injustice”, described as the feeling resulting from a victim being treated unfairly. Hoffman believes this empathic feeling of injustice to be extremely relevant when it comes to the law due to its action-motivating properties as showcased throughout history. He gives many examples of those who have used this empathic feeling of injustice to change laws and motivate court room decisions such as Harriet Beecher Stowe who wrote the historical anti-slavery novel Uncle Tom’s Cabin and Yale Kamisar, who wrote articles opposing harsh police interrogation procedures which helped decide a supreme court decision leading to the accused having the right to remain silent and have a lawyer present during interrogation. He gives other, specific court-case examples, such as Roe v. Wade, where empathy has played a role in the decisions, as well as in society subsequent to those decisions. Ultimately, he notes that empathetic motivation has been shown to exist in court-case decisions and law making and although empathy may be a silent motive whereas other times it is on the forefront of the decision making, Hoffman does not deny the fragility and bias that coincide with all empathy in law. Because of this, he concludes with an argument in favor of tying empathy to moral principles in order to reduce biases and gives merit to the idea of expanding our effort to overcoming the biases of empathy in law. Hoffman’s psychological background plays an important role in his theory, as well as the specific language he used throughout “Empathy, Justice, and the Law”.
For example, one term in particular that stands out and could be misinterpreted from a non-psychological perspective is “witnessing”. Rather than just seeing something happen, Hoffman uses the term to describe the phenomenon of someone feeling such strong empathy that they are motivated to make a change. For example, Hoffman uses the term to strengthen his argument that empathy inevitably plays a role in law by saying “…empathy with victim groups and witnessing can be crucial links between empathy and law…” (237). Context is very important for Hoffman’s use of the term “witnessing”, especially because an important characteristic of the term is that it goes beyond the present situation and creates long-term motivation to act on a victim’s behalf, due to such a strong feeling of empathy. Contrary to witnessing an event briefly and testifying, the witnessing Hoffman refers to may be life-long and can be much more personally taxing. Providing a context-specific definition was necessary to avoid confusion and to ensure its inclusion strengthened, rather than weakened his argument.
Hoffman, Martin L. “14 Empathy, Justice, and the Law.” Empathy: Philosophical and Psychological Perspectives. By Amy Coplan and Peter Goldie. N.p.: n.p., 2011. 230+. Oxford Scholarship, Jan. 2012. Web. 7 Sept. 2016.