When all you have is a hammer, everything looks just like a nail. In my case, right now, I am immersed in existentialism and everything I read reeks of it. Here’s what I mean. Linda Greenhouse’s column in the NYTimes today was a commentary on the just-issued decision to ban warrantless cellphone searches. Her theme was that when the issue at hand is something the justices can relate to personally, the opinion could be said to more humane, less ideological. Here’s the closing paragraph.

I had planned to conclude my discussion of the court and the search cases with a mention of “empathy,” the ability to put oneself in someone else’s shoes, so often missing from the Supreme Court’s criminal law decisions but perhaps on display here. But on reflection, it’s not really empathy. The justices are walking in their own shoes. The ringing cellphone could be theirs — or ours.

The tie to existentialism is in what Greenhouse started to call empathy, but changed her mind. It was a sense of concreteness that is missing from most cases. Existentialism has roots in phenomenology which is characterized by a focus on the thing itself, as its founder, Edmund Husserl, said. What he meant was that to appreciate the concreteness of a perception, one had to bracket one’s ever present presuppositions and beliefs about what the object held in consciousness “is.” Existentialism grew out of the application of phenomenology to human beings, reflecting their peculiar thingness. Humans are unlike anything other being. Existentialism grew out, in part, of the criticism of applying scientific thinking to the human condition and human behavior.

Science works through abstractions, generalizations made from the particular conditions of the observations on which they are based. Abstraction is “the act of considering something as a general quality or characteristic, apart from concrete realities, specific objects, or actual instances.” Except for very special cases, if they ever do exist, abstraction always omits something from the concrete situation being viewed. When I argue, as I often do, that unsustainability is an unintended consequence of modernity, I am referring to the general tendency to scientize everything with the result that the concrete reality of life is incompletely represented in our decision-making processes, results in these surprises.

Arguing that the world is complex, not machine-like, is another way of getting at the inability of abstractions, the heart and soul of science, to give us precise enough tools to create the future we, as human beings, are always moving toward. (You will find another existential fundament in this last statement.) My usual counter to the ubiquitous use of positivistic frameworks for all our “problems” is to apply pragmatic thinking and processes to find our way through these problematic situations. The essence of pragmatism is simply that every situation is concrete (and complex) and it possible to develop effective solutions only by careful observation of the situation without the blinders and distortions put in place (consciously and unconsciously) by one’s presuppositions. Such pragmatic solutions are the “right ones” to apply, but may lack the “truth” to be found through positivistic methods.

Empathy is another word that fits the existential, phenomenological context for acting. Empathy means uncovering the “truth” that forms the context for another’s actions. Putting yourself in someone’s shoes is an incomplete metaphor for empathy. To be fully empathetic, you need to get into another’s head (a different, but more accurate, metaphor) where you would find the basis of their actions. I put truth in parentheses to indicate that the truth involved in creating human action is different from the truths given to us by science and all forms of positivistic thinking. It is different from ideological beliefs which are also abstractions taken from life, but without the benefit and universality of scientific methodology.

Existentially or phenomenologically derived truth is a statement about whatever concrete situation it refers to. It is the antithesis of scientific truth which is explicitly a generalized statement. Scientific truths assume the constancy of phenomena. Newton’s law applies at any instant. Gravity dose not change over time. Any situation which involves human beings is unique in time and confounds attempts to find generalized truths to describe it.

So now back to the Supreme Court. Laws are forms of generalization, rules designed to apply to general circumstances. The legal system recognizes the existential character of human action and often requires the finding of “intent” and examines the context of a life when passing sentence. But ultimately laws are intended to govern human behavior and to protect one’s humanness. Given that, for practical purposes, laws are written to apply in general, the concreteness of human existence always takes a hit in any particular case. Our legal system of jury trial by a panel of one’s peers and the availability of appeal attempts to return concreteness and “truth” to the system, but does it only imperfectly.

Greenhouse is pointing this out to us in her article. She gives other examples where the decision comes in situations outside the context of the judge’s normal existence.

The Roberts court has too often been on the wrong side of history, most pointedly in its retrograde refusal to protect the right to vote; Wednesday was the first anniversary of Shelby County v. Holder, the shameful 5-to-4 decision that undermined the Voting Rights Act. When it comes to technology, however, the court seems free of ideological baggage and is trying hard, collectively, to get it right.

Justice Kagan’s appointment to the Court was complicated by the President’s mention of empathy in his discussion of what qualities he would look for in a nominee. During her confirmation hearings, the following Q and A with Senator Kyl took place.

Kyl: Let me start by asking you the standard for judges in approaching cases that we talked about, starting with the president’s idea. I’ll remind you. He’s used a couple of different analogies — one was to a 26-mile marathon — and said that in hard cases, adherence to precedent and rules of construction and interpretation will only get you through the first 25 miles. . . . He says the critical ingredient in those cases is supplied by what is in the judge’s heart, or the depth and breadth of a judge’s empathy. My first question is, do you agree with him that the law only takes you the first 25 miles of the marathon, and that the last mile has to be decided by what’s in the judge’s heart?

Kagan: Senator Kyl, I think it’s law all the way down. It’s — when a case comes before the court, parties come before the court, the question is not do you like this party or do you like that party, do you favor this cause or do you favor that cause. The question is — and this is true of constitutional law, it’s true of statutory law — the question is what the law requires. Now, there are cases in which it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on the cases that get to the Supreme Court. A lot of them are very difficult. And people can disagree about how the constitutional text or precedent — how they apply to a case. But it’s law all the way down, regardless.

I find this colloquy an example of how stilted our public dialogue has become. There is no contradiction between applying the law all the way down and approaching the case empathetically. Empathy is a stance taken to understand what was or is in play in another’s actions. It does not reside in one’s heart even metaphorically. It is a wholly cognitive process wherein one examines a situation after putting aside one’s prejudices, presuppositions and anything else that impairs locating the “truth.” It is an antidote to ideology, methodology, and prejudice. Senator Kyl confuses it with compassion, which is an emotion related to concern another’s situation. In the long run, the rule of law in the US is grounded on the concept of protecting the concrete individuality of every real human being. One would have to say that, on this point, that our founding fathers were existentialists.

Leave a Reply

Your email address will not be published. Required fields are marked *