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November 7, 2011

"Moral Imagination in Judging"

The title of this post is the title of this interesting new paper now posted on SSRN by Professor Susan Bandes. Though not discussing sentencing directly, I have long thought that discussion of theories of judging — and particular debates over whether judges are like umpires or should have empathy — are especially interesting when considered through the lens of sentencing law, policy and practice. Here is this paper's abstract:

The debate over the role of empathy in judging has revealed a tenaciously hardy folk conception of judicial deliberation and the judicial role.  This concept is most crudely captured in Chief Justice Roberts’ well-known “umpire” metaphor, in which judges leave all their preconceptions and values behind and simply discover and apply the law “as written.”  This conception is the legal variant of the hardy philosophical notion that moral reasoning is the process of discovering and applying a system of universal moral laws, and that these laws exist in a realm that transcends individual subjectivity.  If laws are universal, timeless and discoverable, then a decision-maker’s attributes, beliefs and values; his or her situatedness in a tradition, a culture, a historical time and place, can only be impediments to rational decision-making.

This notion of rationality has long been a subject of criticism, but few of its critics have had kind words for the role of empathy or moral imagination in the judicial process. Yet empathy and moral imagination implicate questions that go to the heart of longstanding jurisprudential debates.  What role should a judge’s prior assumptions and values play in decision-making?  What factors are relevant to principled adjudication?  How do judges give meaning to spacious, indeterminate terms like due process and equal protection of law?  What institutional reforms might serve to improve the quality of the deliberative process?  I will argue that the denial of indeterminacy and the myth of the omniscient judge pose significant barriers to the rule of law.  The widespread reaction against the role of empathy is based on unrealistic and largely undefended notions of the judicial role and the process of judicial deliberation.  More broadly, it reflects assumptions about deliberation that are increasingly out of synch with developing understandings of moral cognition.  Empathy and moral imagination, properly understood, are part of the solution to the problem of unaccountable judges interpreting indeterminate law, rather than part of the problem.

November 7, 2011 at 08:37 AM | Permalink

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