Wait. I’ve got one—
“A lawyer walks into a bar”—oh, you’ve already heard it. “A one-legged lawyer walks into a bar”—no? That, too?
How about this one? I’m working on my timing. “What’s the difference between a good lawyer and a great lawyer?” Give up? “A good lawyer knows the law. A great lawyer knows the judge.” Is that funny?
n 1873, Robert Vischer coined the term Einfühlung in “On an Optical Sense of Form: A Contribution to Aesthetics” in order to designate a sort of personification—the projection of human feelings on the natural world. Vischer was concerned with our ability to feel ‘into’ nature and art, and Einfühlung picks up from the German Romantic tradition of Johann Gottfried Herder and Georg Philipp Friedrich Freiherr von Hardernberg (Novalis) as a process of poetic identification with the natural world and its underlying spiritual relationship with man. Part of Vischer’s interest laid in the fact his father Friedrich Theodor Vischer had, a generation earlier, written the monumental Aesthetik and attempted the use of Einfühlen in order to describe architectural form in congruence with German Idealist philosophy and the rebellions of 1848–49.
Vischer relegated empathy to the place between purely responsive and intellectual feeling, stating “like the immediate feeling, empathy leaves the self in a certain sense solitary. The outward appearance remains a source of unconscious enticement and subjection.” Part of the argument formed here is the processional nature of Einfühlung: it’s only through projection, exchange, and return that the distinctions between internal and external, outward appearance and inner emotion, can be resolved. The first relation of empathy is to one’s self. It’s between the rise of Vischer’s text in the late-nineteenth century and the construction of philosophical aesthetics as a dominant category of the discipline that psychologist Edward Titchener translates the term Einfühlung as empathy for the first time, in 1909—four years after Freud’s publication of The Joke and Its Relation to the Unconscious.
By this point, the concept of empathy had been transformed by Theodor Lipps, who altered the usage of the term from the domain of aesthetic appreciation to the social and human sciences—ultimately linking our aesthetic perception with our perception of another embodied person as a “minded creature.” The risk here is extrapolating empathy from a metaphoric engagement with optics, perception, and aesthetics and shifting it to our earliest understandings of motor mimicry (advanced already by Adam Smith, as early as 1853), anticipating work with imitation, mirror neurons, and physiological response by as much as 150 years. Though Lipps’ argument is grounded in facial expressions (if we see an angry face on another person, we have a tendency to “imitate” it), he extends this concern with empathy to all mental activities requiring “human effort,” including self-reflection.
It’s this sort of empathy-as-simulation that Freud will pick up on, opening The Joke and Its Relation to the Unconscious with a dedication to Lipps, whom he cites as stating a joke is “something comic which is entirely subjective, which we produce, which is attached to action of ours as such, to which we invariably stand in relation of subject and never of object, not even of voluntary object.” Though Freud will later address the nature of this comic relation and use the simulation model of empathy as a bridge for considering the analyst-patient relationship, he’s well aware at the time of the composition of Jokes that he and Lipps are treading similar paths, perhaps working with a separate set of metaphorics (aesthetics and psychoanalysis) and means (mimicry and imprinting). Leopold and Loeb. Bosom Buddies. Toto sang back-up first for Linda Ronstadt, after all—
So, why all of this good humor? And why so many jokes about lawyers? And why an academic treatise in a publicity blog?
Brian Z. Tamanaha wrote a book called Failing Law Schools. Maybe you’ve heard of it? In it, he takes to task our pedagogical-legal culture, from stories about law school deans tampering with test-scores and the average debt of law students (currently at $100,000) to the ways in which the legal-educational system has become unsustainable. Why do we make so many jokes about lawyers? Perhaps there’s something about their circumstances through which we see ourselves, our culture at large reflected in an oddly scaled dressing-room mirror.
For more on Failing Law Schools, read an excerpt entitled “The US News Ranking Effect: The Ranking Made Us Do It.”