EMPHATIC PLEA FOR THE EMPATHIC JUDGE

• Citation: (2018) 30 SAcLJ 97
• Published date: 01 December 2018
• Date: 01 December 2018

Justice must not only be done, it must be seen to be done. Thus, the contemporary orthodoxy is that the dispensation of justice must be dispassionate and blind, for to do otherwise is to risk accusations of subjectivity and bias. This article adopts the contrarian position – judges ought, in their decision-making, to take full account of the different perspectives of the parties involved, and can only properly do so if they possess and exercise empathy. The prejudice-related risks involved in embracing empathy are acknowledged, and strategies for dealing with these excesses are explored. With that in mind, this article posits field work to identify a judge's propensity towards empathy, and also the development of a professional programme aimed at raising awareness and enabling judges to apply and control empathic perspective-taking in their adjudicatory duties.

I. Introduction

1 The oft-mentioned adage is that justice must not only be done, it must also be seen to be done.1 This has traditionally been interpreted, amongst others, as requiring the judge to exclude irrelevant considerations, including personal biases and prejudices. Judges, after all, “like Caesar's wife, should be above suspicion”.2 Justice is thus portrayed frequently as blind, paying no heed to the parties' race or social stature, and resulting in a judicial decision-making process that denies all else save for cold rationality. But should the scales conceal Justitia's eyes? Is there no room for a humanistic response, like empathy,

in judicial decision-making? The answer is, perhaps, not as clear as initially supposed. Former US President Barack Obama sparked voracious debate about empathy in judges when he commented in 2009 that the eligibility criteria for candidates to succeed then retiring US Supreme Court Justice David Souter had to include the ability to empathise.3

2 In recent years, the language of empathy has crept in, across the Pacific, on an island whose legal institutions' established reputation is one of efficiency rather than emotion. Unlike the fanfare and scorn with which it is treated in the US, empathy's reception in Singapore's legal and judicial ecosystem is something of a quiet revolution.4 Lawyers, in the encouragement of pro bono publico, demonstrate “an empathetic hearing of [the public's] concerns”.5 As part of restorative justice initiatives, the Singapore Prison Service runs the Victim Empathy Programme, in which prisoners are encouraged to reflect on the consequences of their actions from the perspective of their victims.6 The 2011 annual report of the then-Subordinate Courts of Singapore insisted that “showing empathy to court users” is part and parcel of its organisational culture.7 Indeed, its Chief Justice, Sundaresh Menon, in his address at the 2014 opening of the Family Justice Courts, made the general observation that “in some respects, the judicial task can be likened to that of a doctor with a focus on diagnosing the problem, having the appropriate bedside manner to engender and convey

empathy, and the wisdom to choose the right course of treatment to bring about healing” [emphasis added].8

3 Latching onto this last comment, it would appear that empathy is beginning to be en vogue amongst stakeholders in Singapore's judicial system, though without there being a concomitant deliberate debate about its merits. Indeed, just such a discussion ought to take place; this is since the role empathy ought to play in the meting out of justice is a question of public interest. Should judges reject the mercurial influence of empathy, espousing cold formal rationality in order to preserve certainty and predictability? Or, should empathy provide that necessary human(e) counterbalance to law's formalistic propensity towards mechanical rigidity?9 Translated into more concrete terms: should our judges display empathy? If so, should empathy be part of the criteria for judicial appointments? Differences in opinion to these questions could, of course, also be seen as proxies for disagreements regarding the role of judges – and, thereby, the function of judicial decision-making – in any given legal system.

4 Such unanswered questions are important to engage with, and provide a foretaste of the gap in the discussion which this article seeks to fill. It does so in the following manner. Part II addresses and debunks the ideal of the rational objective judge. Part III springboards from the premise of the boundedly rational judge to introduce empathy as a concept and means to perfect judicial decision-making. In part IV, the major objections to the use of empathy are discussed and diffused, ultimately resulting in support for the view that judicial empathy in the form of perspective taking ought to be part and parcel of judicial decision-making. Part V maps out an empirical research agenda on identifying empathic traits in judges as well as incorporating empathy in judicial training. Part VI concludes.

II. The Laplacean rational judge does not exist

5 While the notion of rationality has had a long and steady grip on the legal domain,10 it is neoeconomics' standard of perfect rationality that has dominated the scene in recent years,11 positing that the Laplacean12 judge sets about his task “with cold, rational precision”.13 He is that mythical quasi-Platonic philosopher-king systematically sifting through evidence and facts with ruthless efficiency and applying legal rules coldly to achieve objectively fair outcomes. Of course this should be the case. As Richard Posner pointed out, judges are but “ordinary people responding rationally to ordinary incentives”.14 Judges make decisions on a “judicial utility function”,15 analogous to an economic cost–benefit analysis.16 This is the modern guise of the Hobbesian judge as one “divested of all fear, anger, hatred, love and compassion”.17 That the judicial process reaches efficient and rational,

objectively justifiable outcomes, is a claim made by both common law18 and civilian jurists.19

6 Epistemologically, subjectivity is inevitable: “[judgments] are the result of an act of decision by the judicial decision maker … [T]he objective character ascribed to the logical schema of judicial syllogism is revealed to be specious, because the premises of such a logical inference are the result of unavoidable subjective choices”.20 If this is true, then all judgments are necessarily subjective. However, as Richard Wasserstrom pointed out, jurists are able to reconcile this tension by drawing a distinction between the decision-making process, which is admittedly subjective, and the decision itself, manifested in the form of the written judgment, which can be justified independent of judge's state of mind.21

7 Indeed, one of the litmus tests for impartiality in the judicial decision-making process is the duty for judges to give reasons. In so

doing, the judge is made accountable to both litigants as well as society at large that the decision so reached is done logically, systematically, as well as rationally.22 This is underscored by the celebrated Australian judgment of McHugh JA in Soulemazis v Dudley, in which he emphasised the provision of reasons as the “hallmark of a judicial decision” without which there is nothing to separate it from complete and utter arbitrariness.23 Thus former Chief Justice Chan Sek Keong insists that judgments are assessed “from the careful examination of exact rationale and methodology”.24 Agreeing with these sentiments, the Singapore Court of Appeal in Thong Ah Fat v Public Prosecutor declared that:25

[A] legal decision will … be deprived of many of its illocutionary forces if no sufficient reason is stated[. Today, it] cannot be justified solely by the judge's statement of belief that it is right, without providing any explanation as to why it is so. The days when it sufficed for a judge to say ‘because I say so’ are well behind us …

8 Be that as it may, advances in the realm of law and psychology cast doubt over the sufficiency of the mere duty to give reasons regarding the soundness of the judicial decision. How a person cognates (that is, thinks) – or whether matters are attended to specifically or peripherally – can be divided into two main processes, and this is now widely accepted under the label of dual-processed theory.26 Processes may be distinguished into those which are “rapid, parallel and automatic in nature” (that is, system 1).27 System 2 refers to the deliberate use of

our analytical faculties. It is in this sense relatively slower, conscious and deductive. The mind has limited capacity not only to deliberately think things through, but also to store information in its working memory to aid in such decisional processes. The severity of the mental load brought to bear on our cognition has consequences for man's conduct. The complexity of the task at hand, the (un)familiarity of the situation, the expertise of the person, and whether there are irrelevant pieces of information distracting him from the task all contribute to whether: he is able to efficiently and accurately come to a decision; or, as a result of these factors, he takes into account irrelevant factors or focuses on peripheral issues and arrives at an erroneous or poor decision. It is a result of these demands imposed on man's cognitive limitations, the Nobel laureate Herbert Simon posited that man seeks not to maximise his utility but instead to “satisfice”.28 We simply have make do with what we have.

9 How does our mind process the mountains of information before it and deal adequately with the many tasks at hand? It develops mental rules-of-thumb known as heuristics to help with judgment and decision-making. These are essentially known as system 1 processes. Using them allows for quick decisions to be arrived at with relatively little burden on cognitive resources. It is the frequent and predictable misapplication of system 1 processes which corrupts the...