Imagination & legal reasoning, session 2

by Paul Maharg on 16/06/2016

Firt up, Suzanne Keen.  She’s a narratologist, written on empathy and the novel, amongst much else.  She contrasted immersion with perspective-taking and role-taking, and defined various forms of empathy.  Machiavellian empathy — evolved behaviour, eg psychopaths demonstrate it a lot; self-empathy, where you deal with threats by imagining what they will do to you; fantasy empathy — Hamlet does exist, but not as a person but as words on a page; narrative empathy is in response to a story, not a real-world empathy.  Fiction writers score high on this (as does schizophrenics).

Can novel writing change what people do?  Suzanne says no.  But a colleague of her has proven that mental visualising can have a powerful effect, and demonstrated pro-social change in behaviour.  Mental visualising is a form of immersion reading.  She sketched out some of the issues that authors use to reach readers.  No one narrative device will achieve this.  Varieties?  Many authors routinely embed them: bounded, ambassadorial, broadcast.  Bounded: empathy leads to strengthening the group, repels outsiders. Bounded strategic empathy risks — shutting out others, or insiders don’t get the code.  Ambassadorial strategic empathy — goes out to specific types of readers.  Teaches readers to empathise with specific goals.  Broadcast strategic empathy is the widest bandwidth empathy.  Novel reading cements readerships, through pleasure, mental relationships.  Commentator: Iris van Domselaar.  What can legal theorists and judges learn from literature. Iris thought that judges could learn from literature, citing Martha Nussbaum’s poetic judge.  Iris also pointed out that cognitive dissonance plays its role in judicial role-taking.

Very interesting paper and commentary (which was so fast I could only take down some of it).  Three points I’d like to make.  First, judicial voice appears in many subtle and not so subtle ways in judgments — cf Lord Denning on the Treaty of Rome’s effects in Bulmer vs Bollinger, incoming tide etc (so redolent with Brexit in the offing).  Judicial voice can also be extra-judicial.  A colleague at ANU, Heather Roberts, is currently working on swearing-in speeches of judges in Australia.  In legal educational terms, the Feminist Legal Judgment project is an admirable example of recreating judicial voice.  Second, the creation of judicial figures in literature are powerful ways to critique judicial power and violence.  Eg the portrait of Adam Weir in Stevenson’s Weir of Hermiston, is all the more dramatic because seen through the viewpoint of his son.  But it could only be achieved because RLS distanced himself from his own culture.  He achieved a critique of the power of judges in nineteenth century Scotland, especially Lord President Inglis, as a result of that.  Third, empathy and voice: Giving Voice to Values, Mary Gentile — students, young lawyers are enabled to give voice to their own ethical convictions and standpoints by practising what to say in such circumstances.

Next, Margrethe Bruun Vaage on ‘Empathy and the spectator’s engagement in fiction, film and television’.  How does a film make us feel empathy with a character?  She cited the film Carol, the sequence in the car where dissociated details are remembered as part of the exhilaration of being in love with another, the close-ups in fragmented detail.  She posited an integrative account of empathy — embodied empathy (latching onto the others affective state) as opposed to imaginative empathy (imagining what it would be like to be the other and experiencing this as a shared, reflective feeling).  She uses a ‘dual-process model of empathy and morality’, where she argues that empathy leads to sympathetic allegiance and then possibly thwarted moral evaluation.  She showed clips from Breaking Bad to illustrate.  Fianl points — how imagining being the characters requires an effort, and how easily our low-level moral evaluation of the characters can be thwarted by biases triggered narratively and stylistically.  And is imaginative empathy informed by a rational moral evaluation to a greater degree than embodied empathy?

Miriam Aziz raised very direct points and issues, talking to Margrethe — I liked that approach a lot.  Also liked her references to reader-response theory, and the use of time in how we time-slice films, novels etc, fish-slicing other activities within them.


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