Compassion, Institutions and the Law

Reflections on the Law and Compassion Colloquium on Monday the 11th of June 2018

On Monday the 11th of June, Politics and Poetics organized a colloquium on the topic of Compassion and Law with sponsorship from the DLCC and other organisations. The colloquium started with a joint lecture from Jonathan Price and Louise Parker concerning compassion and the judiciary, focusing on the possibility and desirability of ‘institutional’ compassion. Afterwards Professor Boudewijn Sirks spoke on duty-based legal systems and he gave a historical overview of whether and how compassion played a role in past legal systems. The event ended with a discussion on whether compassion in a legal context could serve as a guideline for handling the refugee crisis, or whether it would fall short.

Price and Parker laid the groundwork for the colloquium by defining compassion as a human virtue that could be transposed to institutions like companies, the judiciary or other government agencies. They showed how we are quick to ascribe human-like vices to institutions, yet we often assume that only persons can be virtuous. This is particularly the case with the virtues compassion and empathy, where businesses and institutions as a whole can be reproached for lacking compassion or empathy, but these virtues are often ascribed only to individuals that act within these organisations. The speakers made a strong case for how precisely these virtues on an institutional level could serve to elevate the naked justice the judiciary provides, to true justice.

Professor Boudewijn Sirks speaks on the role of compassion in past legal systems

Whereas the previous speakers mainly focused on the desirability of a compassionate legal system, Professor Sirks showed us to what extent we have tried in the past to incorporate this virtue into our legal system: Compassion was virtually non-existent in the classical legal systems. In the Roman world, it was not until the emergence of Christianity that the notion of agape was introduced. Driven by the moral duty to forgive, compassion started playing a role in legal society. This legal system was largely duty-based and thus differed from our current rights-based system.

With the possibility of a compassionate legal system in mind, we reflected on the paper “The Bounds of Compassion and the Dissolution of Nations” by Richard Ekins. Father Bob Ombres opened the discussion by differentiating between fairness, justice and love. In his point of view, fairness means treating everyone equally, whereas justice meant giving someone what they deserve. Love, however, requires one to give someone more than they deserve. Compassion, caritas and agape are in essence this kind of love, which means they transcend justice. The question rose whether a state, or an institution of any kind, would be capable of either of these virtues. Some of the attendees argued that compassion could only be manifested by an individual. They perceived compassion as a strictly personal endeavour, viewing intention as essential to compassion. Their opponents, however, argued that an atmosphere of compassion could be created by upholding a habit of compassion at the level or an institution or society. This society could then be filled with unintentional virtue, which is reminiscent of the aims of Christian societies that preached brotherly love out of spiritual self-interest.

Participants discuss compassion and the refugee crisis

Most of the attendees seemed to agree that compassion is paradigmatically something individual, intentional and eminently personal. Perhaps what is lacking in a legal system is not compassion in itself, but the personal, individual and intentional approach only the people behind the institution can provide. Perhaps we are trying to compensate for the impersonal and procedural nature of law that cannot do justice to the individual case by reintroducing compassion into the system. But in that case it may be that this new notion of compassion will lack all the aspects of it that makes it worthwhile.

Marieke Mohaboe and Eva Brinkmann (students on the LL.M programme at the University of Leiden)