Unveiling Polish judges’ views on empathy and impartiality

Rechtsgeschichte - Legal History, 2017

The conventional image of a judge as a dispassionate person continues to prevail in both popular culture and academic scholarship, despite influential recent research that has clearly demonstrated the inevitable impact of emotions on judicial decision-making. This article provides a historical perspective on what Terry Maroney has called »the persistent cultural script of judicial dispassion« and extends the discussion to modern continental legal systems. By looking at the legal debates that took place on the pages of professional periodicals and academic monographs across Europe, I show that the role of emotions was in fact an important topic in these discussions, with many participants advancing a very positive view of emotions as something that can help the judge arrive at correct decisions. I further argue that there was a specific historical period around the turn of the 20th century when the discussions about the importance of emotions for legal judgment intensified greatly. I associate this trend with the emergence of the German free law movement and examine the influence of their radical ideas on legal scholars across Europe. In particular, I consider the experimental legal model of »revolutionary justice« that was introduced in Soviet Russia following the Russian Revolution of 1917 as an attempt to put the ideas of the free law movement into practice by placing a particularly strong emphasis on emotions in legal judgment. By bringing in the wider social and cultural context, the article provides new explanations for the rise and demise of the »emotional judge« between ca. 1880 and 1930 and the persistence of the »dispassionate« stereotype in the modern era.

Philosophical Challenges of Plurality in a Global World, 2014

"Each new century brings with it revolutionary technologies and intellectual discoveries which pervade all domains of life. For instance, the way we communicate has changed drastically within the past 50 years and, with the advent of the Internet and new technologies, continues to do so at an amazing pace. Moreover, the society is now more globalized, thus it is easier for us to compare perspectives and acknowledge a plurality of conceptions. At the same time, there are some truths that remain truths – perhaps deeply connected to the reality of human nature. We still expect law to guide our life, our conduct within the society, and mediate our interaction with other individuals more or less the same way it used to during the past few millennia. This does not happen merely in traditional societies, but in progressive and extremely liberal societies too. Thus, with every scientific, intellectual and technological revolution, we have to decide which of our customs adapt to the new realities and which must remain the same because they reflect our ideals. The current chapter aims to address part of this tension between old and new realities, by answering the challenging question “What are the qualities of a judge in the XXIst century?”. The claim here is that the judge has to both adapt to the new realities of the court and, at the same time, stick to the jurisprudential ideals when deciding cases. Although this seems paradoxical, it will hopefully become clear by the end of this essay that judges have the ability to display characteristics that in theory seem contradictory, and this is due to the flexibility of our human nature."

The European Journal of Psychology Applied to Legal Context, 2014

The current study investigated the effects of state and trait empathy in legal judgments and tested the relationship between trait and state emotion in one hundred and fifty eight students aged 18-59. Assessments were taken of participants' trait empathy and then state empathy was induced in half the sample. Following this all participants read a trial transcript and made judgments regarding: the verdict decision; the defendant's responsibility for the offense; what would be an appropriate punishment; the likelihood that the offender would offend in the future; and whether the defendant felt remorse for committing the offense. Findings showed that both trait and state empathy predicted attributions of offender remorse. State empathy also predicted judgments of offender responsibility and agreement with verdict decisions in a lenient direction. Findings also showed that state and trait empathy did not interact. The results indicate that trait and state empathy work independently to influence legal judgments and that inducing empathy in decision-makers can impact on trial outcomes above and beyond the facts of the case.

2011

Original draft: No empathy towards empathy (draft prepared in 2010 for presentation at the McMaster conference "The Nature of Law"- available at: http://tnl.mcmaster.ca/conference/papers/Struchiner%20-%20No%20Empathy%20Towards%20Empathy.pdf since january 2011). Also presented as - Título : Just say no to empathy (sometimes): the perils of empathy-based decision-making in law and morality. Autor : Struchiner, Noel. ... Fecha de publicación : 18-nov-2011. Editorial : Universitat de Girona. Departament de Dret Privat. Citación : Struchiner, N. (2011). ...

The current study investigated the effects of state and trait empathy in legal judgments and tested the relationship between trait and state emotion in one hundred and fifty eight students aged 18-59. Assessments were taken of participants’ trait empathy and then state empathy was induced in half the sample. Following this all participants read a trial transcript and made judgments regarding: the verdict decision; the defendant’s responsibility for the offense; what would be an appropriate punishment; the likelihood that the offender would offend in the future; and whether the defendant felt remorse for committing the offense. Findings showed that both trait and state empathy predicted attributions of offender remorse. State empathy also predicted judgments of offender responsibility and agreement with verdict decisions in a lenient direction. Findings also showed that state and trait empathy did not interact. The results indicate that trait and state empathy work independently to influence legal judgments and that inducing empathy in decision-makers can impact on trial outcomes above and beyond the facts of the case. Keywords: empathy; state; trait; remorse; judgments.

Northern Ireland Legal Quarterly

J udges are human beings; human beings have emotions; ergo, judges have emotions. The simplicity, even banality, of this syllogism belies its potentially revolutionary nature. In legal theory and popular opinion, the judge's humanity has long been either ignored or regarded as a necessary evil, an unfortunate consequence of having to populate the legal system with fallible, biased, real people. Emotion traditionally has been counted among the primary sources of fallibility and bias. The task of the legal system, under this view, is to systematically reduce the opportunities for judicial emotion to insert itself; the task of the good judge is to prevent emotion from exerting any influence wherever such opportunities remain. Understood through the lens of these negative value judgments, the simple syllogism provides a rationale for vigilantly policing and suppressing judicial emotion. But what if those judgments were to change? If we were appropriately to value both the judge's humanity and the role of emotion in human life, the syllogism's implications would be profoundly different. We would seek not to police and suppress judicial emotion in all instances but, rather, to acknowledge, examine and sometimes even welcome it. Revolutionary though it may be, this is the correct objective. The traditional devaluation of judicial emotion is both misguided and destructive. As other contributors to this special issue have no doubt demonstrated, contemporary law and emotion studies have sought systematically to expose the assumptions about human emotion underlying legal theory and practice, and then to examine those assumptions in light of a sophisticated understanding of emotion itself. 1 The aim of this short article is to show how applying that methodology compels a dramatic shift in how we think about judges and their emotions. I have explored these themes in a series of prior articles; 2 I synthesise them here. I first trace the development of the ideal of dispassionate judging and argue that it conflicts with virtually everything we know about emotion and its value. Having dislodged that ideal from its comfortable post, I suggest that the proper stance toward judicial emotion is not elimination but regulation. Judicial emotion regulation provides a flexible structure within which emotion may be examined, accepted, changed, or simply lived with. I then discuss the particular case of judicial anger. Anger can be either

Critical Review of International Social and Political Philosophy

Reason and emotion are often cast as opposites. Yet emotion comes in a wide array of manifestations and has a variety of relations with its supposed opposite. Understanding emotion better is key to grasping how jurisprudence casts the relation between psychology and judicial decision making. Jurisprudents disagree on whether and when (lack of) emotion is a problem for decision makers in the justice system. The aim of this paper is to shed light on unarticulated assumptions in mainstream legal theory concerning this disagreement. The paper plots the different positions jurisprudents hold concerning the role of emotion in judicial decision making, regardless of where they stand on matters such the nature of law. The paper substantiates the claim that legal theorists often take an irrationalist approach to emotion but occasionally develop an alternative account that is closer to a cognitivist approach, the prime example of which is the claim that equity requires practical reasoning. Emotions are then cast as skills to be appreciated. The paper concludes that jurisprudence adopts a simplistic view of emotion. The study of the role of emotion has been hampered by the tendency to view emotions reductively. My classificatory effort warrants the conclusion that lack of emotion-understood as a skill in cognitivist terms-constitutes a problem for justice.

2006

Chase, J.) ("every man's sense of justice"). 21. E.g., Oliver Wendell Holmes, Jr., The Common Law 43 (1881) (deterrence theory of punishment "said to conflict with the sense of justice"). 22. E.g., Erwin Riezler, Das Rechtsgefühl: Rechtspsychologische Betrachtungen (1923) (sense of justice as psychological phenomenon); Jerome Frank, Law and the Modern Mind (1963) (1930) (Freud-inspired account of judicial hunches). 23. E.g., Model Penal Code § 2.03, cmt. at 261 n.17 (1985) (causation inquiry turns on "jury's sense of justice"); Payne v. Tennessee, 501 U.S. 808, 834 (1991) (Scalia, J., concurring) (prior decision precluding victim impact statements conflicted with "public sense of justice"); Richard Delgado, Rodrigo's Eleventh Chronicle: Empathy and False Empathy, 84 Calif. L. Rev. 61 (1996).