Should Empathy Play any Role in the Interpretation of Constitutional Rights?
Version of Record online: 13 FEB 2014
© 2014 The Author. Ratio Juris © 2014 John Wiley & Sons Ltd
Volume 27, Issue 1, pages 94–115, March 2014
How to Cite
Corso, L. (2014), Should Empathy Play any Role in the Interpretation of Constitutional Rights?. Ratio Juris, 27: 94–115. doi: 10.1111/raju.12037
- Issue online: 13 FEB 2014
- Version of Record online: 13 FEB 2014
This paper explores the role that empathy can play in the interpretation of constitutional rights. It starts by analyzing the complex concept of empathy, comparing it with similar yet distinct concepts such as projection, sympathy and emotional contagion, then it discusses the widespread distrust of empathy among lawyers and legal thinkers. It will be argued that empathy can play a significant role in the interpretation of constitutional rights, mostly in identifying the interests and needs put forward in the claims and counterclaims of the parties. In the final section, the impact of empathetic judging on judicial minimalism will be briefly discussed.