Andras Sajo (Central European University (CEU) - Department of Legal Studies) has posted Empathy and Human Rights: The Case of Slavery (Constitutional Sentiments, Yale University Press, 2011) on SSRN. Here is the abstract:
Constitutional Sentiments is a book that describes mental and historical processes where constitutional sentiments are formed by and shape constitutional institutions. Constitutional law tends to disregard emotions. The reason-emotion opposition that lies at the heart of the prevailing legal regulatory model is scientifically unsustainable; even to assume that this is the paradigm that guides law disregards a whole body of law that in fact handles emotions without repressing or neglecting them. In certain instances, law provides selective protection to emotions, as the case of freedom of religion clearly demonstrates. Reason systematically errs because of the intervention of emotions in decision-making; in many instances human decisions are emotion driven. There is a growing body of scholarship in economics, social sciences and certain areas of law that intends to ‘rehabilitate’ emotion and review human behaviour relying on models of cognition where emotions are at least equal partners in human judgment.
The chapter dealing with the role of empathy is a case study on the first hundred years of the abolition of slavery. This longer time horizon enables us to consider emotional influencing of constitutional law as an interactive process. Compassion played a crucial role in the emotional history of abolitionism, but only within the conditions of modern economy and specific needs of warfare. In this context a fundamental counterfactual problem emerges: why compassion with suffering did not achieve emancipation much earlier, and why only specific sufferings were singled out for human rights protection, when other, comparable sufferings, like that of the poor, and child workers in early capitalism were not?