Compassion and the rule of law. Issue 2 (12th May 2017) - Bandes, Susan A.
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.