I found this piece in the WSJ today; it excerpts from then-Senator Obama's comments at the confirmation hearings of then-SCOTUS nominee John Roberts. What I find interesting is Obama's emphasis on the 5% of the law that is not cut-and-dried, where the idea of empathy comes into play. It is this idea that to me highlights the ideological divide between left and right, a divide that the George Will and Cal Thomas wing of conservatism have tried to use as a wedge, much to the detriment of the right.
Here's how I see it. The ability to consider the implications of a judgment on the various parties involved (to empathize, which is markedly different than sympathizing) is at the heart of judgment. Parenting has taught me that when a conflict is not clearly delineated between perpetrator and victim, wisdom lies in listening and considering carefully the ways in which justice can affect everyone involved. And sometimes blind justice (the metaphor that so many conservative pundits have tried to contrast with the idea of empathy) is simply mistaken.
I see another connection in how disciplinary action is carried out in the Church. The purpose of a disciplinary council is not some cold hard justice or retribution for an infraction. Rather, the council intends always to bless the lives of everyone involved, both transgressor and any parties affected by the transgression. Mercy certainly rules in these councils, and the guiding principle is that of helping people move on with their lives.
In discussion of welfare, we often talk of how government systems ought to emulate the Church's welfare program. I think a similar principle would work well in the courts. If the justice system were more empathetic--not less--and more focused on helping people rebuild their lives, instead of the vindictive and retributive nature of contemporary American justice, I believe we would have a much more perfect union.
7 comments:
But then Judge Judy would be so much less entertaining. :)
There is a tendency to want to codify every aspect of human existence. I see this in manufacturing everyday, if a process exists it must be set down on paper so that individuals can know that what they've been doing is absolutely right.
The problem is that these informal norms lead to conflicts where one person sees the lack of codification as permission to do something. For example many states still have no language regarding marriage licenses mandating that it is only permissible between a man and a woman. Does this lack of explication mean that indeed gay marriage is legally permissible? Which gets to a fundamental question of justice in our society, if something is not explicitly illegal is it legal?
I think the George Wills of the world would say no that unless it's codified otherwise all questionable actions are illegal.
Stew,
Well said. Speaking of Mr. Will, I'm sure you've read his rant against jeans, but it's worth a link here: http://www.washingtonpost.com/wp-dyn/content/article/2009/04/15/AR2009041502861.html. Talk about an uptight, out-of-touch windbag.
Wow that's some oped piece. George Will is an uptight windbag indeed. That said he does have a couple good points. The dress down culture does tend to make Americans think that there's a one style fits all circumstances which eliminates the idea of sacred space (i have a problem with kids wearing shorts and flip flops to church, there I said it). That said I think the popularity of jeans has more to do with comfort and cost, though I'd rather be ensconced in linen personally.
If George Will wears a fedora everywhere he goes then I'll cut him some slack.
I'll play devils advocate.
While I agree with the intent and general direction of your stance. I believe that justice must also be uniform in its application. Otherwise, varying degrees of 'empathic justice' will emerge that are subject to the empathic ability of the judge that tries your case. In short, it won't be fair for everyone.
While retribution to criminals is clearly failing, so too does mercy in most cases. The very mindset of a criminal is that of moral and social decay. Some would benefit from the empathic approach, but others would feed off of it. In a way, members of the church that are seeking aid are more qualified for aid simply by the grace of admitting they need it.
I suppose the current system is set up to say, "If we must treat some without mercy, then in pursuit of even application of justice, we must treat all without mercy."
Jon
Jon,
Well put. Your comment re: humility is telling as well. I think our society would do well to replace much of our condescension and arrogance with some good old humility.
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