Compassionate counsel

Dermot Feenan explores the place of compassion in legal practice

The Family Law Bar Association obituary of Sir Nicholas Wall, formerly President of the Family Division, stated Sir Nicholas was a compassionate judge who ‘thought and cared deeply about the outcome of his cases’ – a reminder that justice and compassion are not seen to be necessarily incompatible. There are many reasons why compassion has a role to play in practice.

Compassion is often seen as an emotion, incompatible with law’s reason and objectivity; certainly in adjudication. It is also sometimes seen as irrelevant to practice. Yet, an increasing body of scholarship contends that cognition and emotion are often interlinked. Emotional intelligence has been regarded as an essential aspect of professionalism. Concepts which are sometimes treated as emotions – such as empathy – have been shown to involve deliberative thought, and can stand alongside other reasoned bases for decision-making. Scholars, such as Professor Paul Bloom, Yale University, in his book Against Empathy: The Case for Rational Compassion, approve of the concept of rational compassion. Professor Martha Nussbaum argues in an article in St John’s Law Review in favour of compassion in judging, ‘tethered to the evidence […] carefully filtered for bias […] informed by legal reasoning’.

Some judges argue for a role for compassion in judging. And, greater attention is being paid in practice to avoiding causing further suffering – for instance, in cross-examination of vulnerable witnesses.

Although compassion is not required in legal education or professional training, the Bar Standards Board’s (BSB) Professional Statement for Barristers (2015) requires that one of the competencies should be that barristers ‘will know how and where to demonstrate empathy, and act accordingly’. Arguably, professional competence, in terms of complying with procedure, and client care generally, may benefit also from compassion.

Compassion features in substantive law

Compassion appears most notably in immigration law, sentencing, and prisoner release, and is often associated with mercy, clemency or leniency. It features, too, as a guiding principle of the NHS Constitution, which, following the Health and Social Care Act 2012, and s 1B of the National Health Service Act 2006, requires the Secretary of State to have regard to the Constitution.

The current massive scale of refugee migration across Europe has raised heightened concerns about compassion in existing law and notably in the rules on leave to remain, which provide for a family reunion if a child over 18 years of age is ‘living alone outside the UK in the most exceptional compassionate circumstances’. Last year, the Independent Chief Inspector of Borders and Immigration stated in his report on family reunion applications that the Home Office needed to show that it ‘manages applications not just efficiently and effectively, but thoughtfully and with compassion’.

Reference to compassion also appears, perhaps more surprisingly, in a wider range of laws such as housing, employment, and tort.

Extending the boundaries of law

Experiential knowledge of compassion may be helpful in making sense of such references and in progressively extending the boundaries of law. Law Professor Hazel Biggs argues, for example, in a forthcoming article in the International Journal of Law in Context, for compassion in healthcare cases – particularly involving end-of-life decision-making for people who lack mental capacity. She submits that the best interests test, which includes such factors as the person’s beliefs, life experiences, values and any wishes expressed or alluded to, must intuitively provoke an approach that pays heed not just to the person’s perceived suffering, but also to his or her attitude to suffering. Similarly, Judge Anselm Eldergill, Court of Protection, refers in an article in the Elder Law Journal to compassion as an instrument of justice; enabling a deeper appreciation of the feelings and beliefs of the suffering individual.

Practical applications

If a principal objective of compassion is to alleviate suffering, the elimination or minimising of unnecessary suffering to witnesses is also implicit in prosecution guidelines in England and Wales to take ‘such steps as are possible’ to reduce to a minimum the stress experienced by a child witness during a trial. Concerns about inappropriate cross-examination of other vulnerable witnesses has rightly led to new guidelines and programme for a national roll-out of training.

Professor Kristin Gerdy argues in an article in the Nebraska Law Review that lawyers should develop compassion because clients often value it. She identifies a range of practical advantages: a client who feels compassion from her lawyer may be more responsive to her lawyer’s advice, and the client may experience enhanced ability to face a long, difficult legal battle.

Compassion is not, however, required in legal education or professional training. The report Setting Standards (2013), which recommended a new range of professional competencies for legal education and training in England and Wales – drew from the competencies in medicine identified by Epstein and Hundert (2002). However, while the latter included ‘compassion’, Setting Standards opted instead for ‘empathy’.

It should also be borne in mind that concern for the suffering of others applies equally to colleagues, and initiatives that help support their welfare may therefore be compassionate. The Bar Council’s Wellbeing at the Bar programme seeks to address and support the challenges to psychological health and wellbeing within the profession.

The concept of ‘resilience’ that underpins many attempts at promoting wellbeing has, however, been widely critiqued for tending to individualise responsibility for health. Important as self-care is, numerous surveys – including the BSB survey Women at the Bar (2016) – show that systemic working practices can cause significant harm. Compassion which seeks effectively to alleviate suffering also addresses underlying structural and material conditions.

Gender and compassion

It is sometimes claimed that compassion is a distinctively female attribute. The view is problematic for a range of reasons, not least because of the gender-political implications for legal practice. According to Dr Emma Seppälä, Stanford University, in an article in Psychology Today, scientific studies show that compassion is innate to humans (and other species): with no neuroscientific evidence that women are more compassionate than men. Differences between men and women in their expressions of compassion reflect processes of socialisation. Social norms vary over time and place.

Claims about innate distinctions between women and men can be associated with stereotyping. While overt stereotyping is less likely today, it may also result in discrimination. The survey Women at the Bar (conducted after the introduction of the BSB’s Equality Rules) revealed that 45% of women-barrister respondents had experienced discrimination at the Bar. One self-employed barrister said: ‘Rules are helpful but do not address subtle forms of stereotyping and discrimination that affect us all.’

Assumed social roles may play out in attitudes about advocacy that convey, or may be perceived to convey, gendered associations, as evidenced in the unsuccessful complaint by a male barrister that a judge’s ruling at a grounds rule hearing regarding questions of a child witness would ‘emasculate’ his cross-examination.

Moreover, research shows how certain emotions are ascribed in order to disempower one gender, while tending to privilege, and empower, their obverse in the opposing gender. Women have long experienced this type of disempowerment, but similar power dynamics operate elsewhere, for instance between races and classes. Emotion, and, still less, a reasoned compassion, cannot be calibrated to the purported dichotomy that is male/female (man/woman). That dichotomy itself is suspect, incapable of fixing gender fluidity.

Exploring compassion in practice

In order to further examine the relationship between law and compassion, three forthcoming half-day symposia at the Institute of Advanced Legal Studies in London will address specific areas of law. Organised by the Law and Compassion Research Network, each event comprises presentations and discussion, including speakers from academia, practice, and the judiciary: Law, Compassion, and Healthcare is on 18 May; Compassion: Immigration & Asylum Law on 15 June; and Compassion: Child & Family Law on 13 July.

Contributor Dermot Feenan is Associate Research Fellow at the Institute of Advanced Legal Studies, University of London

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Dermot Feenan

Dermot is an Associate Research Fellow, Institute of Advanced Legal Studies, University of London, and Founder and Convenor of the Law and Compassion Research Network.