Judging between the seen and the unseen

Law professor John Hasnas has an important essay in the WSJ today based on the 19th century economist Frederic Bastiat's argument about how we need to look to the unseen consequences of an action as well as the seen. He applies Bastiat's insight to the idea that we need empathy in our judges. The question is: who deserves our empathy? Is it the victim in court before us or those unseen victims who will suffer the consequences of a bad judgment?

Compassion is defined as a feeling of deep sympathy for those stricken by misfortune, accompanied by a strong desire to alleviate the suffering; empathy is the ability to share in another's emotions, thoughts and feelings. Hence, a compassionate judge would tend to base his or her decisions on sympathy for the unfortunate; an empathetic judge on how the people directly affected by the decision would think and feel. What could be wrong with that?

Frederic Bastiat answered that question in his famous 1850 essay, "What is Seen and What is Not Seen." There the economist and member of the French parliament pointed out that law "produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them." Bastiat further noted that "[t]here is only one difference between a bad economist and a good one: The bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen."

This observation is just as true for judges as it is for economists. As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about -- that is, for those who are "seen."

One can have compassion for workers who lose their jobs when a plant closes. They can be seen. One cannot have compassion for unknown persons in other industries who do not receive job offers when a compassionate government subsidizes an unprofitable plant. The potential employees not hired are unseen.

One can empathize with innocent children born with birth defects. Such children and the adversity they face can be seen. One cannot empathize with as-yet-unborn children in rural communities who may not have access to pediatricians if a judicial decision based on compassion raises the cost of medical malpractice insurance. These children are unseen.

This is such an important insight. But it is a difficult one to get across to people. Most people aren't attuned to looking towards the unintended consequences of government actions or judicial decisions. This is a particular emphasis in economics, but we know that the majority of reporters and the population aren't all that well trained in such economic thinking.

So politicians cater to the short term and the obvious rather than trying to make a coherent argument about the long-term consequences of policy choices. And as Hasnas points out, this can apply in judicial decisions also. When we discuss empathy in judging, the implication is that some litigants are more deserving of empathy than others. And who will care about those unseen victims of a bad decision?

The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.

Calling on judges to be compassionate or empathetic is in effect to ask them to undo this balance and favor the seen over the unseen. Paraphrasing Bastiat, if the difference between the bad judge and the good judge is that the bad judge focuses on the visible effects of his or her decisions while the good judge takes into account both the effects that can be seen and those that are unseen, then the compassionate, empathetic judge is very likely to be a bad judge. For this reason, let us hope that Judge Sotomayor proves to be a disappointment to her sponsor.

With both the seen and unseen being affected by judicial decisions, it's hard to balance out who is more deserving of empathy. That is why we want justice to be blind and to apply the law. Leave the politicians to decide the policy and make the laws. Let the judges apply that law and decide if the law violates the Constitution. That is how the division of labor is decided in our system.