International Journal of Law in Context volume 13 issue 2 (2017 Forthcoming).
29 Pages Posted: 19 Dec 2016 Last revised: 23 Dec 2016
Date Written: December 19, 2016
This article, which will appear in the International Journal of Law in Context's Special Issue on Law and Compassion, considers the tensions between compassion and the rule of law. Compassion poses difficult challenges for the rule of law. The compassionate response is often cast as a deviation from settled law rather than a principled application of it. Compassion so understood is troubling, most obviously because it poses a challenge to overall fairness, notice, and consistency. The invocation of compassion to justify law reform is also troubling. It implies that solutions to inequality and other injustices are a matter of charity and mercy, rather than a matter of correcting wrongs and expanding rights.
I argue that compassion cannot serve as a reliable indicator of who should prevail in legal debates. I propose instead that compassion’s importance lies in its ability to illuminate for decision-makers what is at stake for the litigant. In this sense, compassion is closely tied to humility: both are reminders of human fallibility and of the limits of individual understanding. More fundamentally, compassion may serve as one of the core values informing the debate about the scope of individual rights and the proper role of government in protecting them.
Keywords: rule of law, affirmative rights, empathy, compassion, decision-making, judging, discretion, humility, legal reasoning, social change
Suggested Citation: Suggested Citation
Bandes, Susan A., Compassion and the Rule of Law (December 19, 2016). International Journal of Law in Context volume 13 issue 2 (2017 Forthcoming).. Available at SSRN: https://ssrn.com/abstract=2887374