Dermot Feenan, Associate Research Fellow, Institute of Advanced Legal Studies, London, and Founder and Convenor of the Law and Compassion Research Network, discusses compassion socio-legally.
When I told a delegate at a recent SLSA conference that I would be presenting on compassion and law, the response was ‘what compassion in law?’
To cut a long blog short: rare and sporadic.
But, it deserves further attention.
Compassion’s operation in law can affect home and livelihood, as illustrated in the Immigration Rules on compassionate leave to remain in the UK. Compassion also seems, at least in recent times, to be relied on often to justify diverse and often conflicting policies and political positions with potential to inform law (as illustrated, respectively, in parliamentary debate on assisted dying and in the UK General Election in 2015).
True, compassion sometimes seems like it can’t shake off an unfortunate touchy-feely, goody two-shoes association. Martha Nussbaum, however, sees it as the ‘basic social emotion’[i] and ‘an essential bridge to justice’.[ii] But some accounts of compassion ignore, gloss or downplay law’s violence, its indifference to (or complicity in) regimes of suffering, and its contradictions.
Annalise Acorn, moreover, regards compassion as ‘capricious’.[iii] Richard Epstein, says it’s ‘dangerous’: allowing ‘rational self-maximising recipients’ to ‘play the system for all it is worth’.[iv]
What theoretical and normative presuppositions inform these diverse views? Might empirical research throw light on those albeit infrequent references to compassion in law? Does reliance on compassion undermine rights, or can it complement positive obligations and enforceable entitlements? These are perhaps useful starting points for critical, rigorous socio-legal attention.
Compassion’s place in law
Certainly, compassion features across a range of laws worldwide. In the UK, it appears notably in sentencing, prisoner release, and, as noted above, in immigration law. It features most prominently in debates, policies, and litigation around assisted dying. But it also appears, perhaps more surprisingly, in a wider range of laws such as housing, employment, and tort. Elsewhere, it appears in laws on legalisation of marijuana for medical use (California) and in the environmental protections of India’s Constitution which refer to ‘compassion for living creatures’. Its exercise affects life, liberty, welfare, and aspirations.
Compassion is conventionally understood to be concerned with the alleviation of suffering, yet suffering – though a constant recurrence among sentient beings – receives little sustained attention in legal scholarship. Compassion features, however, in the writings of numerous political and moral philosophers such as Jean-Jacques Rousseau (1755), Adam Smith (1759), Arthur Schopenhauer (1840), Friedrich Nietzsche (1887), and Hannah Arendt (1963). It also frequently appears in other disciplines, including health care (de Zulueta, 2013), sociology (Wuthnow, 1991), and psychology (Gilbert, 2005).
It is worthwhile reflecting, therefore, on how compassion is understood in law, why it features rarely in law, and, when it does, in what circumstances it is applied (or not). This may help better understand law, its conceptual underpinnings, and its imbrication with political discourses. Can a focus on compassion also help better understand the economic forces, social histories and political interests that effect economies of suffering?
At a conceptual level, consideration of how compassion can draw attention to suffering may help reflect on traditional legal concerns such as harm, remedy, and responsibility.
Literature
There is some reference to compassion in the legal literature. Much of the early writing 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. A key development had been the expansion in theorizing about the ethic of care and relationality to further embrace compassion. Jonathan Herring, for instance, argues that law should seek to foster relational compassionate care.[v] Heather Keating and Jo Bridgeman rely on the ethic of care in advocating for the introduction of a partial defence to ‘compassionate killing’ which would reduce murder to manslaughter in recognition of certain types of killing as responsive, relational care.[vi]
Much of the legal literature on compassion is normative; approving, rejecting, or expressing ambivalence. There is little empirical, including anthropological, research; though some courtroom studies refer in passing to compassion.
Given the significance of compassion in law, a promising avenue for empirical research will be on how compassion is understood and applied by legal actors.
The existing literature would also benefit from research better-informed by sociology and cultural studies. Sandra Walklate observes, for example, that the individualist orientation in much compassion-related discussion plays into political discourses that avoid consideration of the social consequences of suffering.[vii] And Lauren Berlant emphasises that ‘being compassionate’ is socially constituted.[viii] There is much, too, to learn from the cultural history of emotions (Bourke, 2014), and the insights of media studies into the semiotics of suffering (Chouliaraki, 2006).
Scholarly developments
In recognition of the importance of compassion as an area worthy of socio-legal enquiry, the SLSA part-funded the Symposium on Law and Compassion at the Institute of Advanced Legal Studies in 2015, papers from which are published in a special issue of the International Journal of Law in Context, volume 13(2).
In order to further examine the relationship between law and compassion, three half-day symposia at the Institute of Advanced Legal Studies in 2017 will address specific areas of law. Organised by the Law and Compassion Research Network, each event comprises presentations and discussion, including speakers from academia, practice, and the judiciary: Law, Compassion, and Healthcare, 18 May; Compassion: Immigration & Asylum Law, 15 June; and Compassion: Child & Family Law, 13 July.
For those keen to question judges, Sir Mark Hedley – former High Court judge who ruled at first instance in Wyatt (2004, 2005) – will speak at the symposium on healthcare. Sir Alan Ward – former Lord Justice of Appeal who ruled in the conjoined twins case of Jodie and Mary[ix] – will speak at the symposium on child and family law. Dr Hugo Storey, Judge of the Upper Tribunal, and representatives from the UNHCR, the Independent Chief Inspector of Borders and Immigration, and the Refugee Council will speak at the symposium on immigration and asylum law.
The Law and Compassion Research Network is free to join, and welcomes scholars from across disciplines globally to share research information; host events, such as workshops, conference sections, symposia; and to support opportunities for further collaboration, including through publication. Those interested in membership are asked to provide details of their research interests (including publications) related to the theme ‘Law and Compassion’ in not more than 200 words to dermot.feenan@sas.ac.uk.
[i] Martha C Nussbaum, ‘Compassion: The Basic Social Emotion’ (1996) 13(1) Soc Phil & Policy 27-58.
[ii] Martha C Nussbaum, ‘Emotion in the Language of Judging’ (1996) 70(1) St John’s L Rev 23-30.
[iii] Annalise Acorn, Compulsory Compassion: A Critique of Restorative Justice (University of British Columbia Press 2004), 128.
[iv] Richard A Epstein, ‘Compassion and Compulsion’ (1990) 22 Ariz State LJ 25-30, 27.
[v] Jonathan Herring, ‘Compassion, Ethics of Care and Legal Rights’ (2017) 13(2) Int J Law in Context (in print).
[vi] Heather Keating and Jo Bridgeman, ‘Compassionate Killings: the Case for a Partial Defence’ (2012) 75(5) Mod L Rev 697-721.
[vii] Sandra Walklate, ‘Courting Compassion: Victims, Policy, and the Question of Justice’ (2012) 51(2) Howard J Crim Just 109-121.
[viii] Lauren Berlant (ed), Compassion: The Culture and Politics of an Emotion (Routledge 2004).
[ix] Re A (conjoined twins) [2001] 2 WLR 480.
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