How compassion should figure in a discussion of legal reasoning can take many forms. Should compassion exculpate an act that would otherwise be criminal? For example, should compassion - as is sometimes suggested in the context of assisted suicide - join fear and anger as a defence to the wrongful taking of a life? Or should compassion play a role in judicial decision making and can it do so without undermining the rule of law? I would like to take up questions of this latter sort and ultimately suggest that legal reasoning informed by compassion is a way - perhaps the only way - to prevent particulars from being lost in a sea of universals.
When I talk of compassion, I am not thinking of anything more complicated than a dictionary definition: “sympathetic consciousness of others’ distress together with desire to alleviate it.” Thus conceived, the true exercise of compassion entails satisfaction of two requirements: sympathetic awareness and a desire to help. Put the other way around, the exercise of compassion can fail in two distinct ways. Two quick and familiar literary examples will illustrate the point.
Franz Kafka’s short story “Before the Law” is something of a parable of the antiseptic, unresponsive law of the early modern bureaucratic state. The story is very brief: a man from the country comes seeking entry to the Law, but a gatekeeper bars him entrance. After the gatekeeper tells him that “it is possible” that he will one day be admitted, the man decides to wait by the side of the gate, not wishing to challenge the fierce gatekeeper or the increasingly powerful gatekeepers to be found at subsequent steps inside. But he waits in vain: he grows weak with age and asks the gatekeeper one last question: “everyone strives to reach the Law,” says the man, “so how does it happen that for all these many years no one but myself has ever begged for admittance?” The gatekeeper sees that the man is already dying and, to reach his diminishing sense of hearing, he shouts at him, “no one else could ever be admitted here, since this gate was made only for you. I am now going to shut it”.