This paper provides the first overarching exploration and discussion of the relationship between law and compassion, based on a broad review of law and associated literature. The paper reviews the English-language literature worldwide, identifying and analysing key themes. It lays out a number of themes by which the relationship may be examined, including the problematic of defining compassion, addressing the concept of compassion, its components, to whom it is owed and under what conditions it is owed. The paper reviews how compassion is defined in formal law, including in case-law and legislation across a range of common-law and civil-law countries, and in international human rights and humanitarian law−revealing various judicial and legislative approaches to the place, meaning and application of compassion. The discussion of primary and secondary sources suggests a number of ways of thinking about the place or absence of compassion in law: how it helps theorise law, including its normative presuppositions and the conceptualisation of law. The paper concludes with consideration of possible pathways for future research on law and compassion.

This paper argues that feeling compassion (and other relational emotions) makes an important, beneficial difference in adjudication, as it improves the exercise of the perspectival imagination – that is, it helps a judge to better understand, and to better describe, a situation as another person experienced it. Even where a judge has a highly developed capacity for empathy and sympathy (these being cognitive and evaluative processes that are distinguishable from emotions), there is something to be gained by a judge actually feeling compassion. However, given the potential for the distortion of understanding as a consequence of feeling compassion, any such feeling has to be accompanied by the robust exercise of the perspectival imagination – that is, by imagining multiple perspectives (including sometimes constructing imaginary ones), so as to avoid privileging any one perspective over others. It is further argued that this ‘imagining by feeling’, as I call it in this paper, is not a threat to impartiality or the rule of law, but in fact a condition of it. It is part of the rule of law that people have a right to be heard, especially those whom we may otherwise find it difficult to understand. Imagining by feeling helps judges to better ‘hear’ a greater diversity of those who come before them, and thus helps the judiciary to improve the quality of the rule of law.

This paper will explore the difficulties facing law in promoting compassion and responding to caring relationships. These include the difficulties in determining whether a person has demonstrated compassion and in enforcing any legal requirement for compassion. The paper will use the ethics-of-care literature to critique two key legal tools: human rights and the concept of best interests. These concepts are typically designed to promote individualistic abstract understandings of the self, which are problematic when used in the setting of intimate relationships. However, this paper will suggest that it might not be necessary to abandon the concepts of rights and best interests. They may be useful for setting the boundaries for a space in which appropriate care and compassion can be exercised. It will also be suggested that both rights and best interests are not immune from a relational analysis and might, with appropriate modification, be used to promote the exercise of compassionate relational care.

Health-care law presents numerous challenges to the conception of the law as a dispassionate arbiter of disputes or protector of rights. Issues relating to end-of-life care, the assessment of mental capacity and decision-making for those who lack capacity, amongst others, epitomise the complex nature of health-care law. They also raise globally applicable questions about discrimination, or equal protection, as well as concerns for relief of suffering, the assessment of best interests and the exercise of individual autonomy. This paper will evaluate the extent to which law's traditional objectivity (dispassion) is undermined by the introduction of concerns about compassion into judicial and executive decisions. Focusing primarily on the law in England and Wales, but with reference to multi-jurisdictional case-law and international instruments, it will consider whether the law provides compassionate approaches and outcomes in end-of-life decision-making, and the implications of compassion for legal certainty.

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. Although compassion is usually approached as a factor influencing substantive outcomes, I argue to the contrary that compassion cannot serve as a reliable indicator of who should prevail in legal debates. Whether compassion should inform substance is a normative question that must be answered in light of the purposes of the tribunal and the principles it seeks to advance. I propose instead that compassion's importance lies in its ability to aid decision-makers in understanding 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.

This paper examines the relationship between law and compassion from the perspective of two diverse scholars. For philosopher Emmanuel Levinas, rejecting the idea homo homini lupus, there can simply be no organised society but for a primordial, unauthorised, human vocation for compassion (egoism and violence, for him, are nothing but attempts to repress this). Levinas, however, must be understood, as speaking of compassion not in the usual sense, that is as involving a human capacity for, and cultures of, empathy; he defines it, rather, in phenomenological terms, as an irreducible excess of affectivity for the ultimately meaningless suffering of another, beyond all theodicy and causality, whom one is ethically commanded to offer succour to as if s/he is a ‘higher’ and absolutely unique Other, prior to any comparison and judgment. General legal principles and rigorous rules, Natural Justice and positive law are equally ‘born’ of such an-archic, individuated, compassion for which one can only retroactively account. Justice is ‘born’ as one attempts to justify to third parties why one's care benefits some but not others; the paper argues that this perspective is preferable to prioritising empathic compassion over law for it binds compassion with responsibility. Turning to Giorgio Agamben, the role of compassion takes on a darker character; his historicised investigations of the ‘Western-Christian’ paradigm shows how the Greek and Roman legal principles of epieikeia and aequitas merged with the Christian postulates of God-dictated philanthropy and ‘divine economy’ (Gr: oikonomia), leading to – instead of ethical anarchy followed by with infinite responsibility (Levinas) – anomie, legal exceptionalism and social control via patronage and other biopolitical practices to spectacles of compassion. This suggests that what Levinas calls ‘ethical anarchy’ has been captured by economic rationality and endless processes of anomic management that are equally free of ethical constraints as they are from legal and political decision. With reference to contemporary examples from the ‘law and emotion’ debates, medical laws and humanitarianism, the paper asks the reader to ponder upon the importance, if any, of Levinas's thesis in a world where the expediency of managerial rationality, the secular heir of divine oikonomia, prevails over moral, legal and political principle.

The study of law and emotion is now established as a distinct field of study in its own right. In this respect, legal studies has shared in a wider ‘affective turn’ that has involved twenty-first-century social science in a new concern to explain the contribution of emotional feelings to human thought, motivation and behaviour. This development has been accompanied by a pronounced debate over how emotion should be rendered accountable within a rational frame of analysis. On the one hand, it is possible to portray this as being sustained by a movement to make us more emotionally literate and more sensitive to the ways people act and think through feeling. On the other hand, it might be interpreted as being rooted in a concern to make matters of emotion more amenable to rational discipline and the sanction of reason. In this paper, I contend that, where a focus is brought to the experience of ‘compassion’, the volume is raised on these conflicts of interpretation. I further argue that opposing and contested points of view on the experience and value of ‘compassion’ provide us with valuable insights into the wider dynamics of social and cultural change that have inspired the ‘affective turn’. These arguments are developed with reference to the social theories of Max Weber and Norbert Elias. Moreover, in taking note of Hannah Arendt's thinking on the cultural politics of compassion, I attend not so much to how the controversy of compassion might be resolved, but rather to its potential to awaken critical humanitarian concern. Compassion is hereby celebrated as an inherently ‘unstable emotion’ that brings debate to the condition and bounds of human care and social justice.