Abstract 

Judicial empathy is political—debates about gender in adjudication and “judicial activism” attest to it. In the context of the debates of whether empathy is compatible with justice, and if so, whether so-called “affective” or “cognitive” empathy is superior in that respect, I propose that there is not only one model of good judicial empathy. Rather, depending on their psycho-emotional dispositions, different judges may display different ways of being both empathetic and just. Such diversity, moreover, should consider how emotions circulate and change, transforming agents and context in the process—what has been called “the economies of affect.” My argument is in dialogue with more empirical studies of judicial empathy—both recent quantitative studies as well as fieldwork of my own—acknowledging the ways in which theory can be fruitfully informed by praxis. It also contributes to Adam Smith scholarship by showing that his notion of sympathy, as well as his treatment of self-knowledge, miss an important dimension of psycho-emotional variability that must be considered if we want to understand what judicial empathy looks, and should look, like. 

Bio

Adriana Alfaro Altamirano is Assistant Professor of Political Theory at ITAM, in Mexico City. Her research explores questions regarding power, law, and agency as they appear in modern and contemporary political thought, from a comparative perspective. She is particularly interested in how our subjectivity—both individual and collective—is shaped by language, habit, reason, and emotion in different social, political, and legal circumstances. She is the author of The Belief in Intuition: Individuality and Authority in Henri Bergson and Max Scheler (Penn Press 2021).