Compassion and Law?
Compassion might seem an unusual topic to consider alongside law. Compassion is sometimes seen as a subjective, emotional, and capricious reaction to suffering that is incompatible with law’s objectivity, impartiality, reason, and public-oriented balancing of interests. Can compassion have any place in legislation, judging, and legal practice?
Until recently, legal scholars gave little sustained attention to compassion to help address this question. Yet, compassion has received considerable attention elsewhere. It features in the writings of numerous political and moral philosophers such as Rousseau, Schopenhauer, Nietzsche, and Arendt, and, more recently, Crisp. It also frequently appears in other disciplines, including health care, sociology, and psychology.
It might reasonably be asked, therefore, whether compassion and law together deserve attention. To answer that question requires at least a recognition of the object of compassion: suffering.
Suffering is an inherent feature of sentience. It can affect all of us at various times in life, including through bereavement, physical injury, loss of livelihood, and psychological trauma. Suffering can arrive in court, for example, in many ways: including explicitly as in the law on tortious compensation for pain and suffering, implicitly in approaches to injury generally, and occasionally in the best interests test for making welfare decisions for mentally incapacitated persons. But suffering may also be Law’s unwelcome presence, and therefore ignored, stifled, and suppressed.
Reflecting on compassion can help illuminate suffering. Such reflection can also assist in understanding law’s normative underpinnings and its practices. But compassion entails more than just illuminating suffering. On some accounts, it requires action to alleviate suffering. Is such action compatible with what are seen to be fundamental prerequisites of justice, including impartiality? And, if compatible, how should law seek to do so?
Much of the early writing on compassion and law came from second-wave feminist legal scholars and judges, largely in the US, who approved compassion in jurisprudence and as an attribute of the judge. In addition, Martha C. Nussbaum, Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago, has argued in favour of compassion as a political emotion suitable to shaping legal and political institutions. There are, however, opponents to compassion in law. Richard Epstein, Laurence A. Tisch Professor of Law at NYU School of Law, writes that compassion is ‘dangerous’, allowing ‘rational self-maximising recipients’ to ‘play the system for all it is worth’ (p. 27). Annalise Acorn, Professor in the Law Faculty, University of Alberta, objects to what she sees as the ‘compulsory compassion’ required in restorative justice. Whether compassion should have a place in law, is, if nothing else, contested. Much less literature surveys systematically the place of compassion in law.
There is surprisingly, perhaps, a wide range of reference to compassion in law worldwide. In the United Kingdom, for example, it appears most notably in laws on sentencing, prisoner release, and immigration. The Immigration Rules provide for a family reunion if a child over eighteen years of age is living alone outside the United Kingdom in the most exceptional compassionate circumstances. Compassion appears in other jurisdictions’ laws, too, including in California’s Compassionate Use Act of 1996, which exempts from prosecution patients or their primary caregivers who possess or cultivate marijuana for medical treatment recommended by a doctor. It features in the reference in India’s Constitution to ‘compassion for living creatures’.
Aside from a special issue on compassion and judging in the United States in 1990, there has been no scholarly collection of papers on compassion and law. The first collection on law and compassion generally appears in the International Journal of Law in Context published by Cambridge University Press. Comprising seven papers, and stimulated by the inaugural Symposium on Law and Compassion at the Institute of Advanced Legal Studies in 2015, the collection starts with an overarching exploration and discussion of the relationship between law and compassion, based on a broad review of law and associated literature. The issue includes further contributions: on relational and virtue-based justifications for compassion in law (Herring and Del Mar, respectively); a reflection on compassion with reference to due process and the rule of law (Bandes); and an analysis that uses the concept of oikonomia (Diamantides). In addition, Professor Hazel Biggs argues for use of compassion, when appropriate, in the best interests test for mentally incapacitated persons, while Dr. Iain Wilkinson offers a caution, based on his sociological research, about compassion because it can give rise to the most pronounced antinomies of our social being and existence.
While any collection of papers necessarily provides a bespoke range of approaches, this special issue on law and compassion demonstrates the growing importance of what was once a largely neglected topic in legal scholarship.
About the author: Dermot Feenan is Associate Research Fellow, Institute of Advanced Legal Studies, University of London, and Founder and Convenor of the Law and Compassion Research Network whose mission includes organising events on compassion and law. He guest-edited the special issue ‘Law and Compassion’ of the International Journal of Law in Context (2017) Vol. 13, No. 2.