Law in Contemporary Society

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EmpathyTheLaw 3 - 05 Feb 2017 - Main.AnaPirnia
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I came across this old article that seems to suggest that if we're concerned about just outcomes that are not divorced from social reality, empathy is important. Cultivating the quality of empathy in the profession and looking for this characteristic in the appointment of judges could be a step in the right direction. Empathy & the Law, NY Times, 2009
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 “The arc of the moral universe is long, but it bends towards justice.” is the quote - it says nothing of morality, and I'd argue, while no inaccurate, it speaks more to a definition of justice made by the history writers than any objective reality about humanity. There are plenty of groups who have not survived to see their justice served, and I can't say for certain a majority have.

-- KaiKar - 03 Feb 2017

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I think we have to be careful about what we label as “transcendental nonsense” simply because the idea seems lofty and there’s no consensus behind it. Was Martin Luther King Jr’s assertion that blacks and whites are equal transcendental nonsense? Undoubtedly many people believed it was back then, and many people believe it now. Does lack of understanding of what equality means and disagreement over how it should manifest itself in the real world make it “transcendental nonsense”? I’m afraid if that’s the conclusion, then the inquiry ends there.

It’s tempting to think we can shape social outcomes by winning the position of dominance in a system and then eradicate injustice through social engineering and elaborate policies, or by adding to an intricate web of laws. But I think any system—no matter how complex—will fail to establish just outcomes if we don’t have some kind of principled, moral foundation that animates the entire structure. So maybe, as this article implies, the law needs empathy. Our “justice” system, we must realize, has been complicit in the dehumanization of the “criminal”, and for that our entire nation has suffered. It has meant the singling out and perpetual denial of equality and opportunity for African-Americans and the systematic destruction of their communities. If only we could appreciate the extent of the damage, I think none would hesitate to demand reparations and more for this community. The law needs to be grounded on higher, principled ideas to avoid such calamities.

I’m aware of how easy it is to dismiss what appears on the surface to be a rather lofty idea. “Unity in diversity” rings almost like the paltry pledge of beauty queens for “world peace”, (and maybe “equality” does too for some). But I believe the mechanics of such a principle are much more complex and far reaching than an empty soundbite, and requires more serious consideration and study. I don’t purport to have a definite answer, but only offer some further thoughts. I agree that the danger of limitless diversity on its own would be an invitation to violent and destructive viewpoints – it would undermine any chance of stability and progress. This problem illustrates why a principle of unity in diversity would have to work in tangent with other principles – a deeper recognition, for example, that every human being is created equal. Not equal in the sense that everyone is equally well off or has the same opportunities or capacities, but equal in the sense that MLK and others have meant – that each person is born with inherent human dignity. His views on this are grounded in religious belief that all are God’s children, made in God’s image. This isn’t a view unique to Christianity. All major world Faiths recognize this on some level, and have various ways perhaps of illustrating the point. So no, a just society shouldn't tolerate the kinds of views that seek to cause harm or deny the human dignity of others whether it be the government, the nazis, or confederate-flag-waiving white supremacists.

A related observation is that in the history of ideas and human existence, our understanding of “reality” is constantly evolving. Although I may have just called something a “universal truth”, I don’t mean to say it is static or absolute. We as social, cognitive beings are continuously evolving, so shouldn’t our ideas evolve too? Why shouldn’t our conception of “morality” or what is right evolve as well? I don’t find this to be problematic; I find it to be a natural part of existing, just like a child has to go through stages of growth and maturation, so does society at large. This principle is echoed in the realm of science. Science is purportedly the tool that helps us uncover the hard “facts” about our natural world. But even in science, what was thought to be a “truth” in one era, is rejected as “false” or extremely limiting in another. When this happens, the discipline experiences a paradigm shiftthat opens the door to new “truths” and human advances. But before long, those “truths” again become limiting and may ultimately have to be discarded in order for advancements to continue and new “truths” to be uncovered. Truth isn’t static. Truth isn’t absolute. What we think is true today and now evolves. I think the same can be said for social reality.

So, it doesn’t surprise me that we have a cacophony of ideas that are in conflict, many of which are remnants of old social orders and ways of existing (“Make America great again”). Yes, they are harmful. Yes, they will continue to cause great suffering and loss. But I think these forces are battling a growing global consensus that is challenging how things should be done – is it not possible that we are now experiencing a kind of social paradigm shift? Are we not questioning now the very form of government some thought was proof of “the end of history”? Hadn’t Western Liberal Democracy “won”? But here we are, with a dysfunctional democracy incapable of addressing the real needs of the masses and unraveling at an astronomical pace.

So in this context, I think new ideas or recognition of the existence of more universal principles that bind us may come to the fore, perhaps out of sheer necessity and survival. And I think the “universal” dimension is only possible now because of where we are in the evolution of human civilization – more globalized, more interconnected, the movement of ideas and communications virtually unhindered. If we haven’t found it yet, I don’t think it’s impossible to find it soon, or discover it’s always been around us, but we haven’t constructed the conceptual framework to see it yet.

-- AnaPirnia - 05 Feb 2017

 
 
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