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Emphatic Plea for the Empathic Judge

Gary Low

(2018) 30 SAcLJ 97

Abstract:
Justice must not only be done, it must be seen to be done. Thus, the contemporary orthodoxy is that the dispensation of justice must be dispassionate and blind, for to do otherwise is to risk accusations of subjectivity and bias. This article adopts the contrarian position – judges ought, in their decision-making, to take full account of the different perspectives of the parties involved, and can only properly do so if they possess and exercise empathy. The prejudice-related risks involved in embracing empathy are acknowledged, and strategies for dealing with these excesses are explored. With that in mind, this article posits field work to identify a judge’s propensity towards empathy, and also the development of a professional programme aimed at raising awareness and enabling judges to apply and control empathic perspective-taking in their adjudicatory duties.