COMPASSION AND THE LAW: A JUDICIAL PERSPECTIVE

Author: 
Professor Anselm Eldergill, Judge in the Court of Protection
Publication date: 
25 July 2017

Abstract

There are many examples in the criminal and civil law where a judge is constrained by the law and is bound to reach a decision which he or she feels is unjust or lacking in compassion. Consequently, many judges would be more likely to say that the ideal judge is one who is ‘dispassionate’ rather than ‘compassionate’ and that their personal feelings must not be permitted to skew what the law requires of them. Areas of the law concerned with vulnerable people, such as mental health law, do tend to allow more leeway for compassion. As with all jurisdictions, a judge operating in this area needs to know the relevant law and procedure and to be a competent evaluator of evidence. However, other qualities are fundamental to the quality of the decision-making such as sympathy, empathy, compassion, experience, understanding and courage. The application of sympathy and intuitive understanding is a prerequisite for the objective observation of mental phenomena in others. Consequently, empathy and compassion are instruments of justice and the notion that objective decision-making is undermined or contaminated by them is impossible to support. Because proceedings involve a person’s personal welfare, an objective ‘rational’ decision is one based on the subjective (personal) feelings of the relevant people, including those which the judge believes are irrational or illogical. If the judge is uninterested in the person’s problems and the underlying causes, such a narrow field of view necessarily leads to a narrow understanding of the overall situation.