Martin Hoffman’s “Empathy, Justice, and the Law,” gives an insightful look into empathy through the window of psychology, within the context of the courtroom. His intent to answer the question, “Does empathy play a role in law?” is made clear early on. This question is driven home as he steers his way to a conclusion that expresses his opinion: Empathy does have a place in law, but its weighted importance should only come to only render itself useful within the parameters of specific cases. Such cases regarding Constitutional Rights for example, as opposed to one that would simply require empathy to be used as a tactic intending to sway the jury’s opinion of a defendant. Hoffman valiantly compliments this conclusion by introducing several examples where empathy induces favorable outcomes, as well as not-so-favorable outcomes. To highlight some of the positive outcomes, he mentions events such as: Harriet Beecher Stowe, and her use of words to elicit empathy in her readers which inevitably contributed to the abolition of slavery. Brown v. Board of Education, where the legalization of segregation was overturned due to the roles in which empathy played. Roe v. Wade, in which during an apparently controversial decision was made that allowed women the legal right to obtain and use birth control. When Hoffman recedes from the positive events that have occurred, he mentions the story of a British Nanny, who after having been sentenced to life imprisonment for 2nd degree murder, she is released some months later on account of empathic psychological and cultural influences. He goes on to explain the limitations empathy has in the courtroom, most notably in the form of victim impact statements, and empathic biases. In short, he regards empathy as being most complimentary in law when it is exerted in conjunction with lawful principles, and not cases where a defendant is merely grasping at straws.
In keeping within the scope of psychology, Hoffman makes a clear distinction between two types of empathy: affective empathy, and cognitive empathy. Affective empathy being the ability to connect with someone on an emotional level about what that individual is going through, and cognitive empathy, being able to imagine, or understand what someone is going through. By deconstructing Harriet Beecher Stowe’s “Uncle Tom’s Cabin,” Hoffman identifies that she is able to share a connection with the characters via cognitive empathy and possibly even affective empathy as well, as stated in the quote: “The high level of detail in depicting slaves’ harsh living conditions, their personalities, and their anguish clearly shows cognitive empathy and suggests the likelihood of empathic feeling as well.” This distinction between cognitive, and affective empathy is important in this essay, because it reveals variability in how a person can empathize with another individual. In the context of law, that becomes important information when dealing with the many different scenarios seen in the courtroom, from the perspectives of the judge and jury being of most prominence.
Hoffman, Martin L. “Empathy, justice, and the law.” Empathy: Philosophical and psychological perspectives., Oxford University Press, New York, NY, 2014.