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34 Introduction law. While it may provide law students with some interesting truffles in their education, it remains marginal, an exotic specialty of the academy rather than anything the litigator or the opinion writer has to think about” (245). However , Brooks’s dismissal of literature’s ultimate influence on the “resolutely hermetic ” (245) domain of law rests on an outmoded notion of literary practices as applying only to verbal (principally written) texts. A more accurate conclusion about the relationship between law and literature is that offered by Julie peters (2005), who observes that the practitioners of both law and literature are increasingly positioning their fields as cultural artifacts (451). peters’s recounting of the original mutual attraction of the two disciplines provides a valuable understanding of what lies at the heart of each domain’s apprehension of the world: “law seemed, to the literary scholar longing for the political real, a sphere in which language really made things happen. literature seemed, to the legal scholar longing for the critical-humanist real, a sphere in which language could stand outside the oppressive state apparatus, speaking truth to the law’s obfuscations and subterfuges” (448; emphasis added). Empathy and Law in appealing to judges, lawyers broadly employ one of two approaches, directed at either the judges’ formalistic or humanistic predilections. Of course, the same judge may exhibit one predilection in one case, and the other in a different instance, but in general it is fair to say that judges’ decisions show them as falling into one or other category. Formalist judges seek refuge in the structures and written text of the law—the Constitution, legal precedents, and other coded and enshrined practices. they rely more heavily on the established text of the law than on fluctuations of social and cultural forces. Humanist judges are more open to envisioning the unpredictable and tumultuous world outside the courtroom and legal texts, a world that resists neat descriptions, where human behavior is frequently inexplicable and cannot be understood by recourse to stock stories and predetermined patterns. lynne Henderson (1987) observes that formalist judges eschew the “moral anxiety” (1590) that ensues from sensitivity to the complexities and amorphousness of lived reality. thus, the language and rhetorical devices lawyers use are determined by whether they seek to make formalist or humanist appeals—in other words, whether they seek to evoke empathy for their clients with the judges or whether they wish to keep the judges’ focus on the text of the law. Writing on the complicated relationship between legality and empathy, Henderson notes that “fidelity to rules and to the autonomy of a legal system, and belief in its internal coherence, can support a judicial decision maker’s avoidance of empathy and of his responsibility for human pain caused by law” (1590). legal systems have come to take the place of religious systems in many societies; legality or legal rules fill the void left by the weakening controls of religious laws. But Henderson cautions that “legal categories can ‘freeze’ Introduction 35 human experience and reality unreflectively” (1591). taking refuge in legality, or adhering automatically and strictly to the text of the law, leads to the negation of the particularities of a defendant’s situation and therefore to the risk of a decision that may be grossly unjust. similarly, ian Ward (2003) discusses the need for formalist justice or positive law to be balanced by the notions of compassion, mercy, and friendship. Ward berates the present-day “brutal unsentimentality” of law (2) where reason or sense eclipses sentiment or sensibility. He does not argue for an absence of reason but rather for a return to a tradition in which “compassion and mercy are necessary constituents of justice” (4). it is the same argument Henderson makes. she writes that the supreme Court justices deciding Brown v. Board of Education in 1954 or Roe v. Wade in 1973 could not empathize, in the first case, with the feelings of a black child in the united states who received the message that she was not worthy of being in the same school with a white child (Henderson 1987, 1596–1606), and, in the second instance, with a woman suffering an unwanted pregnancy and forced either to place herself in grave danger through a back-alley abortion or to have her entire life materially altered as a result of child care and motherhood (1628–1633). the lawyers arguing for the defendants in both cases had the challenge of evoking the judges’ empathy...

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