Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?

Abstract

The legal storytelling theme that is the focus of this symposium on legal narrative is part of a larger, ongoing intellectual movement. American legal scholarship of the past several decades has revealed deep dissatisfaction with the abstract and collective focus of law and legal discourse. The rebellion against abstraction has, of late, been characterized by a "call to context." One strand of this complex body of thought argues that law should concern itself more with the concrete lives of persons affected by it. One key word in the dialogue is the term "empathy," which appears frequently in the work of critical legal studies, feminist, and "law and literature" writers.This article was written not to reject or discredit this claim, but to suggest that the new terminology may not be helpful; to express several concerns about the limitations of the "call to context"; and to encourage a shift in focus to what I believe is the deeper malady that triggers the criticism that the law is "unempathetic" to individual needs. It focuses primarily on the application of the empathy, or "context," discourse to the work of judges, rather than to lawyers, legislators, or legal scholars.