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Does compassion have a place in the law?


The University of Louisville’s Brandeis School of Law has recently voted to “champion the cause of compassion.”

When I heard about this, my initial reaction was positive. I think there already is a lot of compassion and other emotions that can come into play behind the rhetoric of legal reasoning. Judge Richard Posner has been arguing that politics, intuition, and emotion, rather than sophisticated legal reasoning, are often the real motivators behind judicial decisions. Posner thinks, with considerable experience, that judicial deliberations “resemble those of ordinary people attempting to resolve disputes.” Compassion surely forms a large part of the way ordinary people solve conflicts. If championing the cause of compassion means that we are going to be a bit more honest about how we arrive at legal conclusions, then I’m all for it.

This decision echoes an episode – controversy to some, tempest in a teapot to others – from a few years back. In nominating Sonia Sotomayor to replace Supreme Court Justice David Souter, President Obama opined that justices ought to have “empathy” for the parties before them. To some, this was merely a call to consider the circumstances of the parties before them and the real-world consequences that a decision for or against either party might have. In certain situations, this is explicitly part of the legal analysis. Various torts and contract actions call for a “balance of the hardships” in arriving at a decision. But to others, bringing empathy into the mix is a veiled means of making decisions on the subjective moral worth of the parties rather than the facts and the legal merits of their arguments. Should it matter that a plaintiff is rich and the defendant is poor, or vice-versa? Does empathy extend to an analysis of the implications of a party’s race or religion or sexual orientation? Is a judge or a juror who doesn’t share these characteristics even capable of such empathy? Slippery slope or nothing to see here?

Obviously, this decision by one law school is far less fraught than the inclinations of the nine Supreme Court justices who have the power to radically alter the way the courts and the government, state and Federal alike, operate. And yet, the school’s declaration hasn’t been without its detractors. One professor at the law school makes a good point. How do we go from a commitment to compassion to actual decisions about some of today’s most controversial legal issues? He asks, “[W]hat’s the . . . ‘compassionate’ position on same-sex marriage, immigration, health care, affirmative action, gun control, securities regulation, equal protection, due process, Ruth Bader Ginsburg, Antonin Scalia, Bernie Sanders, Rand Paul?”

This makes sense to me. But it’s nothing new in legal reasoning that standards can be used to argue an issue both ways. That’s sort of the first lessons you learn in law school. And, sure, some standards can be more useful than others. But I think that compassion already plays a huge role in the law already. Just today I was watching The Staircase – a documentary about a husband accused of murdering his wife by making it seem that she fell down a staircase. The DA, in his opening statement, held up a large headshot of the deceased woman and asked the jury to look carefully at how happy she looked, how kind and warm her smile was, and how beautiful she was while she was alive. Then the DA showed the jury a photo of the same woman as she was found dead at the bottom of the staircase. To me, it seems that this DA was trying pretty hard to use compassion to win the jury over to his side.

Another concern is that compassion will be used to demonize and censor minority political views at the law school. I wouldn’t be worried about this. Adding a principle as broad as compassion to legal discourse won’t in itself be so powerful that it’ll inherently prejudice certain political positions. Instead, both sides will likely be able to couch their reasoning in some sort of story about compassion. In The Staircase, the defense also used compassion when it pointed out how the defendant had adopted and raised his deceased friend’s children since they were infants and how friends described the married couple as happy and idyllic.

Ultimately, I doubt that appeals to compassion will be very persuasive. Maybe emotional thinking should be kept out of legal deliberations, but that’s probably impossible. But if we’re stuck with emotional decision making, we might as well own up to it.

What do you think? Leave a comment below.