2.1 Definitional challenges

This paper refrains from seeking to conclusively define compassion: as Crisp (Reference Crisp2008) notes, compassion has a ‘contingent evolutionary and cultural history’ (p. 245). Instead, the paper sets out and discusses prominent components of compassion from across the literature. There are a number of key reasons why any attempt at conclusive definition of compassion is suspect. First, some of these components were known at different times by different or equivalent terms, such as ‘pity’ in Rousseau's Discourse on Inequality (1755), but they may also have had their own distinct emic meanings. Additionally, terminology often elides other cognate concepts, where, for instance, compassion is conflated with other concepts such as ‘empathy’ (e.g. Madeira, Reference Madeira2006; Karlan, Reference Karlan1995) or ‘sympathy’ (Feigenson, Reference Feigenson1997), such that it may be impossible to fix on a pure and settled meaning. Moreover, there are instances where the recent literature does not mention compassion explicitly, but it is clear that the author means something that would on a number of such diverse accounts be regarded as implicating compassion (e.g. Schroeder, Reference Schroeder2002).

On some accounts, compassion is seen as an ‘impulse’ (Acorn, Reference Acorn2004), yet this is disputed by others (Nussbaum, Reference Nussbaum2001). Often, compassion is treated as an emotion (Bandes, Reference Bandes and Bandes1999; Reference Bandes2009) but, even here, approaches vary. Keating and Bridgeman (Reference Keating and Bridgeman2012) treat it ‘like fear and anger’ (p. 712; see also Horder, Reference Horder1992). Nussbaum (Reference Nussbaum1996a) calls it the ‘the basic social emotion’, but one of the emotions that are ‘not just mindless; they embody thoughts’ and cannot be dismissed from judicial reasoning (Reference Nussbaum1996b, p. 25). Nussbaum embraced Adam Smith's concept of sympathy in his Theory of Moral Sentiments to argue that such sympathetic emotion shows how emotion can enter into judicial thought and writing: emotion ‘tethered to the evidence … carefully filtered for bias … informed by legal reasoning’ (Nussbaum, Reference Nussbaum1996b, p. 29).

Conceptualising compassion as an emotion within the legal sphere carries risks, however. These are conceptual and political. Conceptually, emotion is notoriously vague and contested. Emotions tend to be perceived pejoratively in law, as illustrated in the designation of compassion (with other emotions) as ‘ephemeral’ (Law Commission, 2003) – that is, lacking permanence, solidity. Even though compassion is typically regarded as one of the ‘positive’ emotions, its emotional aspect can allow it to be grouped with the other, typically, devalued emotions – ‘anger, jealousy, temper, exasperation, feeling depressed’ (Law Commission, 2003).Footnote ² Notwithstanding attempts to reconcile emotion and law (Abrams and Keren, Reference Abrams and Keren2010; Bandes and Blumenthal, Reference Bandes and Blumenthal2012), emotion remains in the minds of many legal scholars and judges as irredeemably at odds with reason – as evidenced in Ronald Dworkin's statement that legal rights are a matter of principle and should not be affected by ‘mere emotional reaction’ (Reference Dworkin1977, p. 250). This idea that principle (associated with reason) is opposite to compassion (an emotion) is pervasive in adjudication.Footnote ³

As for the political danger of treating compassion as an emotion, this risks disadvantaging women legal actors given the historical and still prevalent association between emotion, women and unfitness to perform key tasks in law: for example, rationality and impartiality. Take the example of women's exclusion from apex courts: one observer of the fact that only one of the twenty-eight judges on the Supreme Court of India is female states:

While an approach within the law and emotion scholarship to date has been to argue that emotions have a valid place in law, including judging, such views tend to be politically naive, and insufficiently nuanced to the tactical and strategic risks of utilising concepts that have been used against disadvantaged groups. True, concepts can be reappropriated but, where an alternative is to modify the abjected concept so that it is less likely to remain abjected, this can often be both conceptually and politically productive.

Del Mar (Reference Del Mar2017) defines compassion as ‘cognitively-evaluative relational feeling’. He sees compassion as involving cognition because it involves an understanding of what the other person might be experiencing and the situation in which they are experiencing it. Evaluation is also a component in his definition of compassion, in so far as the observer both treats the other person as salient to, and a subject of concern for, the observer. These cognitive and evaluative elements move compassion away from its traditional locus in emotion, but ‘feeling’ draws compassion back into the affective domain. Del Mar is not alone in referring to ‘feeling’ as a component of compassion. Lazarus (Reference Lazarus1991) treats compassion as ‘feeling personal distress at the suffering of another and wanting to ameliorate it’ (p. 289). Other accounts of compassion view ‘fellow-feeling’ as a sufficient basis, but little attention has been given to what precisely this ‘feeling’ comprises and how, particularly, in the legal sphere, it might be evidenced.

On almost all accounts, compassion is concerned with suffering by any sentient being: human and/or animal. On some accounts, compassion requires action to alleviate suffering. Most accounts, however, settle on a desire, wish or intention to alleviate suffering (Blum, Reference Blum and Rorty1980). Del Mar (Reference Del Mar2017) makes it clear that no action is required. Many accounts treat compassion as a relation between an observer and an individual subject. Fewer accounts consider compassion as warranted socially, for the tribe, community or other social group, such as refugees – though on most accounts there seems no reason why compassion cannot also apply beyond the standard individual subject. Intriguingly, Del Mar (Reference Del Mar2017) advocates compassion for state institutions. But, while tribes, communities and other cognisable social groups can be injured – and, in that sense, experience a type of collective suffering – it is much harder to make this argument in relation to a state institution, where ‘membership’ of the institution is defined only by employment rather than affiliation, kinship or social bonding. There may be very many different personal needs, values and interests within an institution. Where Del Mar is correct is in recognising that institutions (and one might say the same about other organisations, such as companies) comprise people, and it is important to take cognisance of how legal decisions can affect livelihood, welfare, etc. However, this concern perhaps sits more appropriately in a broader welfarist approach or, say, a relational approach. A number of commentators agree, however, that compassion can assist law by illuminating suffering (Woodward, Reference Woodward2002; Avgoustinos, Reference Avgoustinos2007; Bandes, Reference Bandes2017).

If differences about the subject of suffering are evident in the literature, the same applies to the nature of suffering (though the two may interrelate). Generally, suffering is couched in terms of physical pain, but it extends to psychological and emotional suffering. Yet suffering, like pain, as Scarry noted (Reference Scarry1985), may be inexpressible: words run out, such that it may be communicated only in cries and moans, and, in some instances, it may be inflicted – as through torture – intentionally to destroy language. Suffering, and by extension compassion, can therefore pose irresolvable challenges for text-based law. Where recognised in law, the precise delineation of what suffering is recognised is clearly still to be fully developed. Burnton J. stated in R. (on the application of A.) v. The Governor of Huntercombe Young Offenders’ Institute [2006] EWHC 2544: ‘I do not think that compassion arises only in cases of death or illness. There are compassionate grounds whenever there is pain or suffering or distress or misfortune.’

But recognising, ignoring, inflicting, treating and ascribing suffering can also be a political act, as emphasised by Moon (Reference Moon2012). Moreover, some legal philosophers differentiate cognisable suffering that warrants compassion and that which does not. Nussbaum (Reference Nussbaum1996b), for instance, drawing from Aristotle, insists that a person responsible for his or her own harm deserves blame or reproach, rather than compassion. On this account, it is necessary to believe that the person's suffering did not come upon her entirely through her own fault. This approach is contested by others (including Keating and Bridgeman, Reference Keating and Bridgeman2012; Del Mar, Reference Del Mar2017). Such contestation reflects the various normative pre-suppositions underpinning compassion. Often, these are not made explicit. However, their articulation has significant implications for theorising the legal basis for compassion in law: some of which is captured in the following genealogical summary of the literature.

2.2 Scope of the literature

Much of the early literature on compassion and law emanated from feminist legal scholars and judges, largely in the US, who reacted during the period of second-wave feminism in the 1980s and 1990s against the prevailing gendered orthodoxies of Western law. Compassion had, according to this orthodoxy, been seen as an emotion – negatively associated with women, while contrasted with dispassion: positively associated with men. Feminist scholars approved compassion in jurisprudence (Colker, Reference Colker1989) and as an attribute of the judge (Resnik, Reference Resnik1988). Indeed, a number of feminist judges then prominently advocated for compassion in judging (Schroeder, Reference Schroeder1990; Kennard, Reference Kennard1997; L'Heureux Dubé, Reference L'Heureux Dubé1997). The further insistence in second-wave feminism that the personal is political sought in part to overcome the legal dichotomies such as public/private and objective/subjective that privileged men and disadvantaged women (Lutz, Reference Lutz and Mageo2002), making it easier to argue for compassion – traditionally cabined as a private and personal sentiment – in law. Additionally, Carol Gilligan's In a Different Voice (Reference Gilligan1982), which argued for an ethic of care in place of the model of justice and rights developed in moral psychology by Kohlberg (which model many feminists saw as redolent of law's masculinist bias generally), was influential – though it is sometimes forgotten that Gilligan included compassion within her ethic of care. The relationality encapsulated in the ethic of care has informed subsequent proposals for incorporating compassion into law (Keating and Bridgeman, Reference Keating and Bridgeman2012). Herring (Reference Herring2017), for instance, argues that the law must seek to foster compassionate relational care. He sees a strong correlation between compassion and care, and, building on his earlier thesis that caring should not be seen as an unequal relationship of carer and cared, but rather a meeting of the needs and interests of each person, he approves Dewar and others who see compassion as not so much as doing for others but choosing to do together with them.

Herring introduces an important element into the discussion of compassion: to equalise the relationship between persons. Indeed, more work could be done on the relationship between compassion and other legally recognised concepts such as equality or respect for autonomy, or additional ethical concepts such as empowerment. Herring's articulation of the relational component of compassionate care appears to centre on both the status of the parties and the process of the relationship. He talks of the person expressing compassion as recognising the ‘fellow humanity of the [other] individual’ and that compassion and care should ‘flow each way’ (p. 161). Herring sets out a number of points as to why compassionate relational caring relationships must be taken seriously by the law. First, compassionate caring relationships are essential to human well-being. Second, emotions are ethically and practically significant. Here, Herring sees compassion as an emotion. He argues that, notwithstanding the reasons for the rarity of compassion in law, law can be used to encourage people to act in a way that will promote compassionate relational care. It can, he concludes, send messages that can influence people's attitudes by ensuring that court interventions make emotional sense as well as rational sense, and by rethinking the concepts of rights and best interests in a more relational way. He refers to two family law cases which, he states, show judges exercising compassionate care and seeking to encourage compassionate care.

Alongside the explicitly feminist approval of compassion, key early contributions were Zipursky's (Reference Zipursky1990) approval of the dissenting judgment of US Supreme Court associate justice Harry Blackmun in which he wrote in 1989 that ‘compassion need not be exiled from the province of judging’ (DeShaney v. Winnebago County Dep't of Social Servs., 109 S. Ct., p. 1012). Around the same time, Martha Nussbaum started the first of many contributions that she has made over the years advocating for compassion in law, first as a component of judging and ‘an essential bridge to justice’ (Reference Nussbaum1996b) through to its place as a ‘political emotion’ suitable to shaping legal and political institutions (Reference Nussbaum2013).

Much of the literature on compassion and law has emanated from the US, but distinct developments elsewhere have generated their own body of writing. Key among these are developments around assisted dying – which has referenced compassion, often positively, in parliamentary reports, papers and books across the world, from the UK (Biggs, Reference Biggs2011; Grubb, Reference Grubb2001; Keating and Bridgeman, Reference Keating and Bridgeman2012; Mullock, Reference Mullock2010), across Canada (Chan and Somerville, Reference Chan and Somerville2016) to Australia (Plattner, Reference Plattner1997), touching on developments in many jurisdictions in between (e.g. in France: Lewis, Reference Lewis2006, or the Netherlands: Ost and Mullock, Reference Ost and Mullock2011), but compassion increasingly is also adopted in the literature worldwide on immigration law, particularly on asylum (Pinson et al., Reference Pinson, Arnot and Candappa2010). Moreover, compassion has been approved in the field of scholarship and practice known as therapeutic jurisprudence (Satin, Reference Satin2008; King, Reference King2003).

There exists also a small body of literature approving of compassion as an element of human rights. Its antecedents can be discerned in calls by Rousseau (Reference Rousseau and Cranston1755) and Weil for equality as a basis of rights (see Teuber, Reference Teuber1986; Bell, Reference Bell1998). Gearty (Reference Gearty2006) argues in favour of drawing from compassion to help human rights survive what he sees as its crisis of authority. Compassion is pertinent, according to Gearty, because it evinces ‘active concern for others’ and helps ‘frame and mobilise responses to suffering and atrocities’ (Reference Gearty2006, p. 43). A core task of the human-rights-oriented communications, he says, is giving voice to victims of cruelty and expression. ‘Compassion is the term upon which our modern human rights vocabulary can be most effectively built’ (Gearty, Reference Gearty2006, p. 43), he concludes. One of the challenges facing the application of such ‘concern’ is how to do so for those we do not know and who are constantly positioned as the proverbial other (Muraskin, Reference Muraskin2007). Herring (Reference Herring2017) argues that ‘the concepts of rights [and best interests] … may be useful for setting the boundaries for a space in which appropriate care and compassion can be exercised’ (p. 158). This may seem odd. Rights have, historically, protected the individual from state interference.Footnote ⁵ They operate, as Herring says, ‘to draw boundaries around ourselves and protect us from interference from others’ (Reference Herring2017, p. 162). Traditional rights seem infertile ground for demanding compassion – concerned as it is with positive action to alleviate suffering. Herring asserts that, within an ethics of care, however, ‘[r]ights and interests are not designed to protect individuals per se, so much as upholding and maintaining networks of caring relationships’ (Herring, Reference Herring2017, p. 162). How precisely, and specifically in practice, can an ethics of care achieve this design or determine that a right is an appropriate vehicle to secure this outcome? Herring attempts the groundwork:

Recognising the need to balance rights, he argues that a principled balancing of rights can be achieved by focusing on the values that underlie each right. Caring is a value that can be given greater weight in the balancing.

While much of the literature approves of compassion in law, a considerable literature opposes its role. Law and economics scholar Richard Epstein (Reference Epstein1990) sees compassion as ‘dangerous’, equating it with coercion and making someone else bear the cost. Compassion would, he argues, allow ‘rational, self-maximising recipients’ to ‘play the system for all it is worth’ (Epstein, Reference Epstein1990, p. 27). Such an approach incorrectly assumes, however, that human behaviour inherently involves ‘rational, self-maximising’. Extensive psychological research shows that human behaviour is much more complex. But, even if some people were ‘rational, self-maximisers’, it neither follows that law need be gulled by those who would seek to engage in exploitation for personal gain or that, even if this were attempted, an occasional exploitation should necessarily deny compassionate law for all. Equally critical are those, such as Markel (Reference Markel2004), who see compassion as a component of mercy, which has no place in the courthouse (cf. Ferguson, Reference Ferguson and Sarat2012; Staihar and Macedo, Reference Staihar, Macedo and Sarat2012; Murphy, Reference Murphy, Murphy and Hampton1988).

There are further critical perspectives on compassion. Acorn (Reference Acorn2004) objects to what she sees as the ‘compulsory compassion’ of restorative justice. She views compassion as ‘capricious’, where ‘[t]he process of seeking justice becomes a potentially humiliating endeavour, wherein one is expected to parade and exploit the seriousness of her suffering’ (p. 128). She adds that compassion can allow claims for substantive equality to be dismissed. A similar critique is made by Walklate (Reference Walklate2012), who argues that the individualist orientation in compassion discussion plays into political discourses that focus on the individual, avoiding consideration of the social causes of, and consequent responses to, suffering. Harris (Reference Harris2011) suggests instead that compassion requires a ‘transformation of social relations’ (p. 330). Arendt (Reference Arendt1963), by contrast, claimed, on the basis of the French Revolution, that compassion could never be a basis for political organisation. The inevitable consequence of making compassion (or pity) for the suffering of others the goal of revolution was the guillotine.

In addition to those who appear to be either largely or unequivocally opposed or supportive of compassion in law or specific laws are those who take an avowedly qualified approach, such as Bandes (Reference Bandes2017), who observes that ‘there are indeed reasons to be wary of compassion in the legal realm’ (p. 185). Diamantides (Reference Diamantides2017) is also cautious. Building on his earlier work (Diamantides, Reference Diamantides2003; Reference Diamantides2007), he argues that the world needs less rather than more of the compassion that has emerged within the Western model of governance. Diamantides focuses on the Greek-Roman-Christian tradition. His study is, therefore, concerned with the longue durée, of epochal trends, rather than with l'histoire de siècle or current, fleeting concerns. He asserts that modernity is characterised by crisis management, and that there is a ‘perennial anxiety’ regarding the relationship between law and compassion. He states that law and politics are subsumed within ‘oikonomia’ (which he defines as ‘administration/management’). He draws from Agamben's work to state that this model comprises an ‘anomic economy’ in which the world is cared for as if it were a ‘household’. Within the Agamben model, ‘beings are managed as things and some forms-of-life are abandoned’ while others are ‘anarchically promoted’. The relation between ‘law and compassion’ is typical of the binarism that is central to this Western tradition, and which requires to be managed by fantasised sovereign power (e.g. God, the People, Categorical Imperative). Diamantides states that he wishes to ‘de-economise’ the relation of law (and politics) to compassion. How? He relies on Levinas's ethical thesis that society is unthinkable without a pre-reflective sense of anarchic responsibility for ultimately meaningless suffering. This is, perhaps, not an easy argument to understand, and this may reflect the ambiguities and neologisms frequent in Levinas's writing. Levinas wrote famously of ‘useless suffering’. By this, he meant that pure suffering is ‘intrinsically senseless and condemned to itself with no way out’, ‘for nothing’, ‘meaningless’: a suffering before reason, before the use [fullness] associated with reason; hence the sense of ‘useless’ suffering (Levinas, Reference Levinas, Smith and Harshav2000/1991). According to Levinas, the other's ‘useless suffering’ requires succour. Diamantides is perhaps right to hedge on Levinas, when he says ‘if Levinas is right’, although Shepherd (Reference Shepherd2003) approves of Levinas's call for a ‘radical responsibility’ in place of what she deems the ‘dim impulse of compassion that sometimes softens’ the ‘traditional egocentric foundations of American law’ (p. 514).

A cautious approach to compassion and law is evident also in Wilkinson's (Reference Wilkinson2017) work on the sociology of suffering, where he notes that the use of compassion can give rise to the ‘most pronounced antinomies of our social being and existence’ (p. 213). Wilkinson's caution operates largely at the level of policy, by issuing sobering reminders of how social forces and trends operate on consciousness. He observes that

Indeed, Sontag observed that we may in fact be attracted to others’ suffering (Sontag, Reference Sontag2003). Fassin (Reference Fassin2011) asserts that, since the last decades of the twentieth century, humanitarian reason and governance have begun to supersede the language of rights as a response to suffering, with compassion mobilised at the expense of formal structures of rights and legal obligations. In a different vein, but equally sceptically, Saunders (Reference Saunders2008) argues that particular deployment of human rights language in the procedure of South Africa's Truth and Human Rights Commission disappeared the suffering of victims of apartheid-era violence.

Much of the literature is normative, approving, rejecting or expressing ambivalence about compassion. Much less empirical, including anthropological, research has been conducted on compassion and law. Pirie's (Reference Pirie2006) anthropological research in Amdo on the Tibetan Plateau records that, since the Chinese took control, two forms of law operate: Chinese and Tibetan, with compassion appearing not to inform resolution of conflict. Pirie observes that, while Tibetan pastoralists accept a role for state law in some matters, they insist that mediation by one of their own specialists, ultimately a Buddhist lama, is necessary before a conflict between them can be properly settled. Pirie notes, however:

Other studies provide little specific evidence for general claims about the influence of Buddhism on governance (see e.g. Ichikawa, Reference Ichikawa1979).

3.1 Prominent themes

A range of legislation, case-law and other forms of law worldwide refer to compassion. Compassion appears more frequently than might initially be expected, informing judgments in ways that would offer rebuttal to the oft-repeated statement that compassion is inimical to justice. Across jurisdictions, compassion is typically addressed most prominently in relation to laws on assisted dying, prisoner release and leave to remain – as seen especially in this section with reference to the law in England and Wales. Here, it features across a range of legislation, judicial review and a myriad of fields – including in charity law,Footnote ⁶ employment law,Footnote ⁷ tax law,Footnote ⁸ housing law,Footnote ⁹ planning lawFootnote ¹⁰ and criminal lawFootnote ¹¹ (particularly sentencing).Footnote ¹² It is also pleaded and/or rejected in cases spanning a further range of fields, including accident compensationFootnote ¹³ and grant of anonymity.Footnote ¹⁴ In legislation, compassion is most frequently found in release from detention,Footnote ¹⁵ leave to remain under immigration lawFootnote ¹⁶ and as a guiding principle of the NHS Constitution, which, following the Health and Social Care Act 2012, and section 1B of the National Health Service Act 2006, requires the Secretary of State to have regard to the Constitution.Footnote ¹⁷ There are also occasional references to compassion in English common law. For instance, it has been applied to reduce a homicide to manslaughter if done to aid another in danger. Lord Holt C.J. said in R v. Mawgridge:

The concept continued to be used as the partial defence of provocation to a charge of murder in Canada,Footnote ¹⁹ although, in English Law, it has now been replaced by loss of control.

Compassion is not incorporated more widely within common law, certainly in tort. There is no general legal duty to alleviate the suffering of another:

In many civil-law countries, such as France, the duty tends to be restricted to providing assistance to those in danger.

A range of legal guidelines in England and Wales refer specifically to compassion. Perhaps best known is the policy of the Director of Public Prosecutions (2014) on prosecution in cases of assisted suicide, which provides that a prosecution is less likely to be required if, inter alia, the suspect was wholly motivated by compassion. As with all such policies, these are subject to judicial review, but recent cases on the policy have rejected applications claiming that the law violates the claimant's rights to life or private life under the European Convention on Human Rights.Footnote ²¹ Moreover, the European Court of Human Rights has refused to find that a decision by a state not to legalise assisted dying amounts to violation of the right to be free from ‘inhuman or degrading treatment’ under Article 3 of the European Convention on Human Rights.Footnote ²²

Numerous attempts have been made in the UK to introduce legislation to legalise assisted dying, with compassion invoked by those opposing and supporting such legislation – even where the legislation itself makes no mention of compassion. A number of other jurisdictions incorporate compassion into their laws to reduce sentence in homicide. For instance, Article 114 of the Swiss Penal Code provides that a person who, for decent reasons, especially compassion, kills a person on the basis of his or her serious and insistent request will be sentenced to a term of imprisonment, with the minimum punishment being three days of imprisonment and the maximum being three years of imprisonment (see Schwarzenegger and Summers, Reference Schwarzenegger and Summers2005). Increasingly, litigation and legislation on physician-assisted dying relies upon the language of compassion – for instance, with Compassion & Choices, a US-based nonprofit organisation, both litigating key appellate cases and advocating for legislative change.

Though courts are often reluctant to justify rulings on the basis of compassion, compassion's object – suffering – becomes a vehicle by which compassion may be seen to be effectively exercised, even if not explicitly expressed, as a basis for judgment. One area in which this seems to be developing is in the case-law involving ‘suffering’ and the right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms. In Carter v. Canada, the Supreme Court of Canada ruled that federal legislation that prohibited assisted suicide violated section 7, as follows: first, ‘the prohibition on physician-assisted dying had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable’, thus violating their right to life.Footnote ²³ The case was taken on behalf of both Kay Carter, a woman suffering from degenerative spinal stenosis, and Gloria Taylor, a woman suffering from amythrophic lateral sclerosis. The court found a violation of liberty and security thus:

Here, both security and liberty are tied to the existing jurisprudence on autonomy, bodily integrity and dignity. While the Supreme Court of Canada nowhere refers to compassion in its judgment, the case was seen widely, and illustratively by the appellant's legal team, as a ‘victory for the protection of human rights and compassion at the end of life’.Footnote ²⁴

Biggs (Reference Biggs2017) develops an argument for compassion in health-care cases – particularly involving end-of-life decision-making for people who lack mental capacity, and with regard to assisted dying for those who are physically incapacitated – which draws both on respect for the autonomy and self-determination of the individual while also respecting the dignity of the person. She makes a remarkably simple yet profoundly important point: given that the best-interests test includes such factors as the person's beliefs, life experiences, values and any wishes expressed or alluded to, this must intuitively provoke a subject-oriented approach that pays heed not just to the person's perceived suffering, but also to his or her attitude to suffering. This is where compassion becomes relevant. Traditional approaches to best interests abjure consideration of suffering in terms of autonomy and yet, as Fisher and Appelbaum (Reference Fisher and Appelbaum2010) contend, patients at the end of life may refuse life-sustaining treatment out of a ‘desire not to suffer’ because ‘continued suffering without any means to express oneself might be a fate worse than death’ (p. 383).

Beyond the area of assisted dying, the European Court of Human Rights has held the UK government in violation of Article 3 of the European Convention on Human Rights in refusing a request for compassionate leave by a prisoner in the terminal stages of AIDS to remain in the UK, where he was receiving treatment, not to be returned to St Kitts because there was a ‘serious danger that the conditions of adversity which await him [would] further reduce his already limited life expectancy and subject him to acute mental and physical suffering’.Footnote ²⁵ It added:

Compassion is not itself required under Article 3 (or its equivalent in Article 7 of the International Covenant on Civil and Political Rights (ICCPR)). It is noteworthy that Article 3 uses the word ‘inhuman’ rather than ‘inhumane’. The latter means ‘[w]ithout compassion for misery or suffering’.Footnote ²⁶ The latter is, as Waldron (Reference Waldron2010) notes, a word of milder meaning than ‘inhuman’: a prohibition on ‘inhumane conduct’ is much more demanding, therefore, than a prohibition on ‘inhuman conduct’. It may seem odd, therefore, that the principle of ‘humane’ treatment under international humanitarian lawFootnote ²⁷ does not require ‘compassion’, but this presumably reflects the negative-rights tradition in law. As Waldron (Reference Waldron2010) states: ‘Article 7 of the ICCPR and Article 3 of the ECHR both aimed at broadly dignitarian values: the purpose of these provisions was to uphold human dignity against various forms of egregious attack’ (p. 274).

Also illustrative of UK government policy is Compassionate Care in the NHS, which provides that ‘[p]eople who use health care and care services have the right to be treated with respect, dignity and compassion by staff who have the skills and time to care for them’. In addition, recent public inquiries into ill-treatment of patients at hospitals have led to calls for an increased focus on a ‘culture of compassion’.Footnote ²⁸ It remains unclear, however, how such ‘culture’ would be achieved. Nor is it clear whether this should be the focus, rather than rectification of underlying neoliberal regulatory changes – with their instrumental approach to individuals and commodification of health care – which adversely affect the ability of staff to sustain compassion (de Zulueta, Reference de Zulueta2013a).

There is now perhaps enough recognition of the role of compassion in the best-interests test to inform an incipient jurisprudence. In addition to the comments of Eldergill (Reference Eldergill2015), Cobb J. ruled in A NHS Foundation Trust v. Ms X [2014] that it would be against the best interests of a mentally incapacitated women with anorexia to be treated, emphasising the distress that it would entail. He added:

3.2 Miscellaneous instances

In addition to the prominent areas of law in which compassion typically is addressed, compassion features in various other miscellaneous, and perhaps lesser-known, laws worldwide. The recent introduction of laws in the US legalising use of marijuana on medical grounds has often been couched in terms of compassion, with Californians approving in 1996 Proposition 215, also known as the Compassionate Use Act of 1996 – one of the first state initiatives of its kind. Under the law, patients or their primary caregivers who possess or cultivate marijuana for medical treatment recommended by a physician are exempted from criminal prosecution under state law. A similar exemption exists under EU law, whereby medicinal products that would ordinarily only be available if authorised or subject to an approved clinical-trial protocol may be made available through a ‘compassionate use programme’.Footnote ³⁰

Other legislation informed, in part, by compassion has included laws against cruelty towards animals (Kelch, Reference Kelch2013) –for instance, farmed animals, as in the successful campaign by Compassion in World Farming for a Veal Crate Ban in the UK, or in experimentation.Footnote ³¹ More significantly, the Constitution of India, provides that ‘[i]t shall be the duty of every citizen of India … to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures’ (Article 45).

The Constitutional Court of South Africa, early in its existence, introduced into its interpretation of that country's new Constitution reference to compassion. In S v. Makwanyane (1995) (3) SA 391 (CC), Mokgoro J. stated that the concept of ‘ubuntu’ ‘envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity’ (para. 308, emphasis added). He noted that ubuntu was not only specifically referred to in the epilogue of the Constitution, but was seen to be a ‘basis upon which to develop a South African human rights jurisprudence’ (para. 307). The concept was applied again in Port Elizabeth Municipality v. Various Occupiers (CCT 53/03) 2005 (1) SA 217, where Sachs J. said of The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), citing Mokgoro J. (emphasis added) in Makwanyane:

The concept has not since then been applied within the jurisprudence of the Constitutional Court. Notwithstanding, it is clear from the foregoing section that compassion features variously across a range of laws worldwide.

4.1 General

It is perhaps symptomatic both of the slender approval of compassion in judging and the expectation that the recently-deceased should be heaped with praise, and not defamed, that approval of judicial compassion features most frequently in obituaries of judges (see e.g. Gilmore, Reference Gilmore1987). There are numerous other approvals, however, of compassion in judging: by judges, lawyers and scholars (Zipursky, Reference Zipursky1990; Nussbaum, Reference Nussbaum1996b; Avgoustinos, Reference Avgoustinos2007; Feenan et al., Reference Feenan, Bedford and Herring2015). Sometimes, this approval applies clearly to compassion in substantive law, as will be seen below. More often, the approval applies to court management – which includes the law of procedure – but also covers how the judge behaves towards court staff and court users. Despite occasional approval of compassion in judging, there are those who oppose or have concerns about its application in adjudication, as shown in the subsequent part of this section. It is likely that, if judges refer to compassion in their judgments, it is in the context of asserting that, notwithstanding the circumstances of the case, compassion is incompatible with legal principle (as is evident in the opinion of Judge Pinto de Albuquerque, above, note 3).

4.2 Favouring compassion

Nonetheless, a number of judges have written ex cathedra in favour of compassion in judging (e.g. Kennard, Reference Kennard1997; Noonan, Reference Noonan1996). Mary Schroeder (Reference Schroeder1990), Judge of the US Court of Appeals for the Ninth Circuit, stated that ‘an appellate judge can help build compassion into the black letter … judges should look to the effect on human beings of any rule that they help to shape’ (p. 46). Schroeder also argued in favour of compassion in terms of interpretation: ‘statutes that do have a compassionate purpose should be interpreted accordingly’ (p. 48). Former Madam Justice L'Heureux Dubé (Reference L'Heureux Dubé1997) of the Supreme Court of Canada approved of compassionate justice. Joyce Kennard (Reference Kennard1997), former Justice of the California Supreme Court, argued that compassion ‘can create a space within which the voices of the persons affected by the decision can be heard, their humanity acknowledged, their sufferings understood and properly taken into account’ (p. 11).

Judicial pronouncements in favour of compassion tend to the general rather than particular, perhaps unsurprisingly in the case of sitting judges, given their need to appear not to prejudge. English Judge Anselm Eldergill (Reference Eldergill2015) also sees compassion as an instrument of justice, and explains this with particular, illustrative, reference to mental health law. Eldergill sits in the Court of Protection. Under the Mental Capacity Act 2005, the Court of Protection has power to make declarations as to incapacity, and to take decisions on behalf of mentally incapacitated persons in their best interests in relation to deprivations of liberty, personal finance, social care and medical treatment. Eldergill draws from both legislation and case-law to construct his argument. In Re MM (an adult) (2007), it was held that best interests entailed a ‘welfare appraisal in the widest sense, taking into account, where appropriate, a wide range of ethical, social, moral, emotional and welfare considerations’ (per Munby J., para. 99). Eldergill treats compassion as enabling a deeper appreciation of the feelings and beliefs of the suffering individual. Feenan et al. (Reference Feenan, Bedford and Herring2015) endorse qualified recognition of compassion in the jurisprudence and jurisdiction of both the Court of Protection and High Court. More broadly, Herring (Reference Herring2017) sees compassion as consistent with an ethic of care and relationality in judging, with Del Mar (Reference Del Mar2017) arguing that compassion improves what he calls ‘perspectival imagination’, which is necessary to legal reasoning.

In addition to the arguments in favour of compassion in substantive adjudication, there is evidence of support for compassion in managing the court: communicating with lawyers, parties to litigation and court staff. Schroeder has argued also in favour of compassion in the running of courts (Reference Schroeder2002). A survey by Roach Anleu and Mack (Reference Roach Anleu and Mack2014) in Australia found that 29 per cent of judges and 38 per cent of magistrates rated compassion as a quality or skill in the performance of their daily tasks. Similar findings have been replicated by Beier et al. (Reference Beier, Eib, Oehmann, Fiedler and Fiedler2014) in German courts. Yet, there are few judicial appointments processes that require compassion in the person specification of the holder of judicial office. The ‘Criteria for Evaluating Candidates’ produced by the Judicial Appointments Advisory Committee, Ontario, are among notable exceptions. And the Illinois Bench and Bar Council approved a report stating that an excellent judge should possess, inter alia, the attribute of ‘compassion’ as part of his/her ‘temperament’ (ISBA, 2002).

4.3 Opposing compassion

The opposition to compassion in judging is long-standing, extensive and varied in justification. Thomas Hobbes declared in Leviathan (Reference Hobbes and Missner1651/2016) that the ideal judge was one who was divested of ‘all fear, anger, hatred, love, and compassion’ (p. 195). Sir Matthew Hale eschewed compassion for the poor in one of his rules for judging. Rule 10 required that the administration of justice ‘be not biased with compassion for the poor, or favour to the rich, in point of justice’.Footnote ³² As noted early in this paper, the principal reason advanced for opposing compassion in law generally is that it is associated with emotion−inimical to law's reason, objectivity and impartiality. Acorn (Reference Acorn2004) describes compassion in judging as ‘arbitrary and irrational’ (p. 158). While these arguments are defeasible, more forceful are the arguments that compassion allows ‘similarity bias’, where compassion is felt only because of the similarity between the observer and sufferer (Feigenson, Reference Feigenson1997). One of the effects of this potential partiality is the discounting, devaluing and ignoring of people who are in need because they are not seen as ‘similar’ to the observer (Shepherd, Reference Shepherd2003, p. 514). These are forceful points, and resonate with insights elsewhere about the effects of aversive racism (Gaertner and Dovidio, Reference Gaertner, Dovidio, Dovidio and Gaertner1986), including in decisions to help others who are deemed racially different (Saucier et al., Reference Saucier, Miller and Doucet2005). Rousseau (Reference Rousseau and Cranston1755) acknowledged centuries ago that the rich could have no compassion for the poor, because the latter's lives were intentionally unknowable to them. In the post-Revolutionary era of equality, de Tocqueville noted, after observing the suffering inflicted by Americans on slaves, that ‘the same man who is full of humanity towards his fellow-creatures when they are at the time his equals, becomes insensible to their afflictions as soon as that equality ceases’ (Tocqueville, Reference Tocqueville and Frohnen1840, p. 156). But there is further reason to be cautious about unalloyed embrace of compassion within liberalism's avowal of equality. Law's treatment of those who are not recognised as having the basic component of humanity to warrant compassion has been the subject of much analysis, occasionally incorporated into legal analyses. Agamben's study of sovereign power, for instance, distinguishes political life (zoe) from ‘bare life’, which drew from the Roman concept of homo sacer−whose life could be taken by anybody (Agamben, Reference Agamben and Heller-Roazen1995)−a fortiori in states of exception (Agamben, Reference Agamben and Attell2003).

Bandes (Reference Bandes2017) is surely right, therefore, to conclude that whether compassion is a good thing in judging depends.