Empathy Revisited: Who’s in Narrative Control?

Abstract

Part III deals with what Cardozo called “the perplexities of judges” that become “the scholar’s opportunity”. Chapter 11 revisits the topic of empathy by distinguishing between forms of empathy and the way in which they are triggered, in works of fiction as much as in our daily lives. It argues that all forms of empathy are connected to emotion(s), first-order emotion such as anger of grief, and second-order emotion as the reaction to another person’s first-order emotion. It then asks what the cognitive turn in narratology means for legal practice, i.e. who is in narrative control of the situation, in court or in other legal surroundings? The judge, the prosecutor or a party? The story of Ian McEwan’s fictional judge Fiona Maye in The Children Act exemplifies the pitfalls of a first-order empathy, triggered as it may be by parties in a case by means of deliberate narratological strategies aimed at influencing the judicial decision.