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Compassion and the rule of law

Published online by Cambridge University Press:  12 May 2017

Susan A. Bandes*
Affiliation:
Centennial Distinguished Professor of Law, DePaul University College of Law, US. E-mail: sbandes@depaul.edu.

Abstract

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.

Type
Articles
Copyright
Copyright © Cambridge University Press 2017 

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Footnotes

The author thanks both Dermot Feenan and Jeffrie Murphy for invaluable comments on an earlier draft of this paper. She also thanks Dermot Feenan for lead organisation of the superb conference at which this essay was first presented.

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