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Kenneth Chestek
ABSTRACT: There is a common misperception (mostly among the general public, less so among lawyers and academics) that the law should be purely objective, logical and rule-bound. Forms of reasoning that include narratives, emotional values, or other criteria are to be avoided at all cost. “Empathy” in a judge is a mortal sin.
This article describes that mindset as a myth; specifically, the “Myth of Empirical Reasoning.” The article uses the term “myth” in the well-defined sense of
an often-repeated story that attempts to explain some moral value or to explain something beyond the comprehension of humans. Although the story is not necessarily grounded in historical or scientific fact, it is regarded by a social group as a true statement of the group’s moral or other values, or is significant to that group in some important way.
This technical definition of myth is absent from most legal scholarship which uses the term “myth” in a much looser sense. My definition is based on scholarship from other disciplines that study myth in a more rigorous way.
The central point of the article is that law is a human institution that must respond to human needs in order to maintain its relevance. Humans are complex beings that have many different interests, or “dimensions of being human,” that are equally important to them. These “dimensions of being” include empirical (or logical), aesthetic, emotional, spiritual or religious, moral or ethical, and mythical dimensions. The article provides examples of how each one of these dimensions can become the subject of a legal dispute, and argues that therefore courts (and judges) must be prepared to account for all of these dimensions in the varied cases they must decide. It concludes that, in order to make decisions that serve both the needs of the litigants and society in general, judges must be able to appreciate all of the dimensions of being, including empathic judging, and must be attuned to the principle of narrative fidelity.