an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
“To understand all is to forgive all.” The old French proverb is often invoked on behalf of forgiveness: if it is true, then we ought to forgive everyone for everything. But the logic cuts a different way. Suppose that some actions are unforgivable – or, more modestly, that it would not be a good thing if all actions were forgiven. Could that mean that we ought deliberately to avoid understanding some things?
The problem is nicely posed in a new paper by my Northwestern Law colleague Kenworthey Bilz, entitled “We Don’t Want to Hear It: Psychology, Literature and the Narrative Model of Judging.” Here is the abstract:
The “narrative” model of legal judging argues that legal decision makers both do and should render judgments by assembling sensible stories out of evidence (as opposed to using Bayesian-type, linear models). This model is usually understood to demand that before one may judge a situation, one must give the parties the opportunity to tell their story in a manner that invites, or at least allows, empathy from the judger. This Article refers to this as the “inclusionary approach” to the narrative model of judging. Using psychological research in emotions and perspective taking and the more intuitive techniques of literary criticism, this Article challenges the inclusionary narrative approach, arguing that, in practice, the law gives equal weight to an “exclusionary approach.” That is, in order to render sound, legitimate legal judgments, the law deliberately limits the sort of stories parties are allowed to tell—and does so on moral grounds, not, or at least not only, to improve the “accuracy” of the legal judgment. That is, as both a descriptive and normative matter, impoverished narratives can be better than enriched ones in leading decision makers to morally acceptable legal judgments.
One of Bilz’s most interesting claims is about literature: she argues that it isn’t possible for a good work of literature to make us sympathetically identify with an evil character. I think that the point needs important qualifications, in the face of some obvious counterexamples, but I am reluctantly convinced. Sometimes it’s morally appropriate to be stupid and insensitive.
Bilz argues that literature would be repulsively distorted if it portrayed evil in a fully sympathetic way, because that would invite the reader uncritically to embrace the perspective of the evildoer, leaving no space for judgment. Depictions that appear to do this in fact cheat. Richard Wright’s novel Native Son, for example (discussed by Bilz at pp. 127-30), manages to combine sympathy for and judgment of its murderer hero, Bigger Thomas, only by oscillating between the two emotions, so that the effect is like a strobe light rather than a dimmer.
Bilz sometimes suggests that it isn’t possible to tell a good, sympathetic story about young Hitler, or about the tough childhood of Amon Goeth, the death camp commander in Schindler’s List. But this is an overstatement. It’s more precise to say that, as with Bigger Thomas, you can portray the antihero’s predicament as fully and sympathetically as you like, but there has to come a moment when the reader’s sympathy is finally withheld – typically, when the protagonist, who has been under a lot of stress, responds to the stress in a viciously inappropriate way, making a choice that the reader rejects and thereby breaking the bond between protagonist and reader. That happens with the murder of Bessie in Native Son, with the attempted murder of Marge Sherwood (the Gwyneth Paltrow character, for those who have seen the movie) in The Talented Mr. Ripley, with the murder of Duncan in Macbeth, with Satan’s decision to ruin the lives of Adam and Eve in Paradise Lost, and so forth. It’s not true that, as Bilz writes on 120-21, “if the portrayal is truly sensitive and convincing, we could not really blame Goeth for his character.” It’s more accurate to say that you could write about Hitler or Goeth and make them the sympathetic central figures, but unless the literature is going to be morally repugnant, the sympathy has to evaporate at some point.
To borrow some terminology from Wayne Booth, we can start out as Goeth’s friend, but we can’t end up that way. Or more precisely, the implied author either is or is not Goeth’s friend. If we are encouraged to see everything from his point of view, then we end up just being him, and he’s not a good person to be.
The distancing, though, has to be carefully managed. The sympathy needs to be created and then withdrawn at the exact moment when the protagonist crosses the line, and it needs to be made clear that, in the view of the implied author, the line is being crossed at just that point.
This takes more literary skill than is likely to be deployed by any of the competing storytellers at a trial. That may be why, in law, we have cruder rules of inclusion and exclusion: letting in everything raises a real danger that our sympathies will go in the wrong direction. This may be one of the salient differences between law and literature. Compare E.M. Forster: “Nothing is more obdurate to artistic treatment than the carnal, but it has to be got in I’m sure: everything has got to be got in.” Letter to Siegfried Sassoon, in Selected Letters of E.M. Forster, v. 1: 1879-1920, at 316. Forster is writing about sex, but the same point can be made about the charms of evil. At a trial, on the other hand, everything has not got to be got in. Relevant information must be excluded if the danger of prejudice outweighs its probative value. Authors can play with fire, but some materials are too flammable to be allowed into the courtroom.
Bilz understands this caveat, and incorporates it into her argument: “Perhaps the reader will disagree and be able to find successful literary examples of the dual-compassion argument. But I am very confident that if they do exist, they are rare. If it is this hard to accomplish in literature, can it really be a lesson we should demand the law adopt, at a retail level, in delivering its own moral judgments? If the trial is a novel, and the judgers are the readers, can we demand that the authors (lawyers, judges, even procedural and substantive legal rules) all be Shakespeares?” (P. 130).
I’m one of the targets of this paragraph. (Bilz and I have been arguing about this for months.) I think that the trick can be done, and that Milton and Shakespeare manage to do it. But it ain’t easy, juries are unlikely to manage it, so the moral blinkering that happens at trial – the refusal, for example, to allow the defendant to tell about his unreasonable susceptibility to homicidal rage when confronted with the victim’s homosexuality - is appropriate. Bilz and I agree about the bottom line.
I’m sympathetic with the argument, made these days most prominently by Martha Nussbaum, that our civilization badly needs the cultivation of empathy and the capacity to understand others’ narratives, and that this should be an element of a liberal education. But I also think that Bilz has qualified Nussbaum’s claim in important, even startling, ways. In some respects, insensitivity and failures of perception are good.
I obviously haven’t done justice here to the rich way that Bilz weaves psychology and law together into a richly articulated picture (and defense) of how moral exclusion operates in the law. Go read the paper.