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Imagining by feeling: a case for compassion in legal reasoning

Published online by Cambridge University Press:  12 May 2017

Maksymilian Del Mar
Maksymilian Del Mar*
Affiliation:
Reader in Legal Theory, Department of Law, Queen Mary University of London, UK. E-mail: M.delmar@qmul.ac.uk.
*
M.delmar@qmul.ac.uk
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Abstract

This paper argues that feeling compassion (and other relational emotions) makes an important, beneficial difference in adjudication, as it improves the exercise of the perspectival imagination – that is, it helps a judge to better understand, and to better describe, a situation as another person experienced it. Even where a judge has a highly developed capacity for empathy and sympathy (these being cognitive and evaluative processes that are distinguishable from emotions), there is something to be gained by a judge actually feeling compassion. However, given the potential for the distortion of understanding as a consequence of feeling compassion, any such feeling has to be accompanied by the robust exercise of the perspectival imagination – that is, by imagining multiple perspectives (including sometimes constructing imaginary ones), so as to avoid privileging any one perspective over others. It is further argued that this ‘imagining by feeling’, as I call it in this paper, is not a threat to impartiality or the rule of law, but in fact a condition of it. It is part of the rule of law that people have a right to be heard, especially those whom we may otherwise find it difficult to understand. Imagining by feeling helps judges to better ‘hear’ a greater diversity of those who come before them, and thus helps the judiciary to improve the quality of the rule of law.

Type
Articles
Information
International Journal of Law in Context , Volume 13 , Special Issue 2: Law and Compassion , June 2017 , pp. 143 - 157
Copyright
Copyright © Cambridge University Press 2017 

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Footnotes

I owe great thanks to Dermot Feenan, both for the invitation to the original workshop (and the opportunity to comment on a wonderful paper by Susan Bandes) and for subsequent discussion and most helpful comments on an earlier draft. I am grateful too for the feedback provided by the audience at UNAM in Mexico in August 2016, especially from Imer Flores (the chair on that occasion), where I presented a version of this paper.

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