Tuesday, January 17, 2017

Bo Burt on "Justice and Empathy"

Mark Tushnet

I've just read the manuscript of Bo Burt's forthcoming posthumous book, "Justice and Empathy." The book restates themes from his earlier work. Given my background, I was especially taken with his use of psychoanalytic theory to describe the psychological dimensions of domination and subordination. I recommend the book, particularly because Burt's sensibility is under-represented in contemporary scholarship. (Mike Seidman's work on "unsettlement" has a family resemblance to Burt's approach.)

Were I to write a longer review of the book, I'd raise several questions. (1) Much of Burt's discussion involves how those in positions of domination can come to have empathy for those they are subordinating. But, it seems to me, it's an implication of his approach that those being subjugated should have empathy for their oppressors. (The literature on the psychodynamics of sado-msochism -- on both sides -- and that on Hegel's account of master-slave relations seems relevant here.) And then the normative implications of empathy come into pretty sharp relief. One such implication might be that gay rights supporters should understand that carefully crafted religious accommodations to gay rights legislation might be desirable (though a lot is concealed in "carefully crafted" -- for example, can such accommodations be crafted in ways that don't normatively validate the claims to justified subjugation implicit or explicit in the religious beliefs being accommodated?).

(2) As in his earlier work, Burt emphasizes that well-designed remedial schemes are often desirable because they allow contending parties -- and in particular the previously dominant group -- to work out "for themselves" but under judicial pressure (not compulsion) how to deal with the transformed social relationships they are beginning to experience. Here I'd point to recent developments in scholarship on comparative constitutional law and its treatment of "engagement" remedies such as those developed by the South African Constitutional Court. But I'd also note that the literature on such remedies emphasizes that (in my terms) at their most effective they still impose interim costs on the previously subjugated group. It might be that a short sharp shock could reach the same end state with lower interim costs -- though of course that's an empirical question. (I can't refrain from picking at a scab here and saying that that's what I had in mind when I wrote of "taking a hard line" on religious accommodations.)

(3) Burt contrasts an authoritarian, "command" mode of judicial opinion-writing, with his preferred method of decision that clearly leaves things open to iterative development. I wonder, though, whether this under-estimates the force of classical Legal Realist arguments about the inevitable openness of precedents: According to those arguments even the most seemingly "command"-like opinion leaves so much open that it's hard for me to distinguish between the two modes Burt describes (and his case studies, though of course thinly developed -- the book was not completed when he passed away --, seem to me as consistent with my take on this matter as they are with his).

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