Empathic imagination as an intellectual tool

I think we think we miss a vital element of education. In Australia we talk about values to children in primary school and talk about respect and so on, then in highschool it is done less and then in legal education we talk about ethics, but we do not focus on the critical intellectual skill which is required before ethics can work.
I am talking about the use of our empathic imagination. This is what is also known as ‘walking in their shoes’. I am not talking about sympathy which is feeling sorry for a person and treating them as a victim. I am talking about understanding what life is like for someone else. There is neurological evidence that this begins in a child with the ‘mirror neurons’ which develop as the child realises that there are other people in the world who also feel. People who cannot understand this are called ‘sociopaths’. We have far too many of them… but I am talking about why in a legal education you might encourage developing empathic imagination as an intellectual tool.
Two classic scenarios can illustrate why this is useful in a legal education. First, the assessment of damages for personal injury. This requires a careful, reasoned approach to the question ‘what is life like for this person who is not me?’ For example, if this person has lost a leg, how will they respond to life? Careful thought about their position will reveal that they will not be able to pop down to the shops the way they used to, that their job which required working will no longer be possible, and that everything else which required walking is no longer possible. If hiking was their major hobby then not only will they not be able to do it, there will be a major hole in their life – friendships developed through hiking may collapse, a whole social life may be destroyed. I need not go on. This is ordinary stuff for lawyers, but the failure to do it well can be the difference between damages which will really help the situation and damages which won’t.
Another classic scenario is to have people in one class see what life is like for another , for men to see what life is like for women and vice versa, for non-Aboriginal people to see what life is like for Aboriginal people. Again, this is not about sympathy, which can merely emphasise victimhood. This is about clear-eyed consideration of all the factors which flow logically from the situation. This must be practised. It must be thought about hard, and it requires us to check our assumptions about how things work.
A classic example of this going wrong is where the High Court assessed damages in Sharman v Evans (1977) 138 CLR 563. The plaintiff had become a high level quadriplegic. Apart from losing all her employment prospects, she could not sit up, feed herself and had lost the power of speech. She had complete knowledge of her situation. Gibbs and Stephens JJ (at [27]) thought her general damages should be reduced from the high level awarded by the trial judge because:
‘The present plaintiff still possesses powers of enjoyment through the use of her senses; her sight, her hearing and her taste are unaffected and in place of sport, entertainment, cosmetics and clothes she may find pleasure in recorded music, in a movie projector and the hire of films, in days spent on drives in a chauffeured car, perhaps in special foods. She can thus experience pleasure and ward off melancholia by such distractions as may be to her taste and within her means. Many of her former modes of enjoyment are closed to her but some new ones remain to be explored and from which she will be capable of deriving pleasure. ‘
Each year when I teach damages and read this paragraph to my students I hear them gasp in disbelief. At that stage I know they are exercising empathic imagination, but were the judges? I believe they were blinded by their fear of over-compensation.
Teaching this needs to be done as a skill which needs to be practiced. One has to imagine what life is like in a certain set of circumstances and then taking the logical intellectual steps which follow. This should be the bedrock of social justice – not woolly emotionalism, but a clear-eyed view of reality.

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  1. I think you may like to edit this post, which seems to have been doubled up for some reason. Regards Neil Foster

    NEIL FOSTER Associate Professor Newcastle Law School Faculty of Business and Law MC177 McMullin Building

    T: +61 2 49217430 E: neil.foster@newcastle.edu.au

    Further details: http://www.newcastle.edu.au/profile/neil-foster My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 Blog: https://lawandreligionaustralia.wordpress.com

    The University of Newcastle (UoN) University Drive Callaghan NSW 2308 Australia

    CRICOS Provider 00109J


    From: Law School Vibe <comment-reply@wordpress.com> Reply-To: Law School Vibe <comment+7ywccq2yaxykqq1xk027x-qa6@comment.wordpress.com> Date: Monday, 2 November 2015 at 8:46 PM To: Neil Foster <neil.foster@newcastle.edu.au> Subject: [New post] Empathic imagination as an intellectual tool

    lawschoolvibe posted: “I think weI think we miss a vital element of education. In Australia we talk about values to children in primary school and talk about respect and so on, then in highschool it is done less and then in legal education we talk about ethics, but we do not fo”


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