The Need for Compassionate Law

As 2018 comes to an end and the world looks to an increasingly uncertain future, it is worthwhile to reflect on the importance of compassion in public life.  On the one hand, it seems it should not be necessary to remind ourselves of the need for compassion, while on the other hand, there has never been a time when it is more vital to think about it.

When I speak of compassion I consider it to be similar to the emotion of empathy, which means the ability to identify closely with the feelings of another.  However, empathy is an emotion, while compassion is emotion plus action.  Empathy is personal, individual, and private.  When one experiences empathy, it is not necessarily expressed.  Many of us feel empathy for the plight of refugees, but few of us take any action based on those feelings.  Compassion is both an expression and an action, something that is a unique responsibility of the powerful.  It is the world’s 1% who, due to their elite position, have the most ability to exercise compassion.  Consequently, the world’s 1% (and if you live in a relatively wealthy developed country, you are part of this elite) uniquely bear the moral responsibility to exercise compassion.  The exercise and practice of compassion as an action is much rarer than the feeling of empathy, partly because wealth and inequality suppress the expression of compassion.  As the world becomes wealthier and more unequal, generosity declines.

Even more unusual is the embedding of compassion into the practices of a society, in other words, through its laws and institutions.  Are institutions capable of compassion?  Indeed they must be, because if social structures can be violent and oppressive, then it stands to reason that the opposite must also be possible:  institutions and laws can be written in compassionate ways, with compassionate ends.  It is the public exercise of compassion with which I am most concerned with, because it raises the potential for people to write compassionate institutions and laws.  Compassionate laws are necessary because, as suggested, individual empathy can fail – it is temporary, personal, individual and private.

Compassionate laws make it possible for persons to express and act on their feelings of empathy, because they can see that those feelings are socially elevated.  The Dali Lama talks about something similar in the Education of the Heart. Compassionate law can help to educate and give permission for people to act on their empathy.  To say that law can be compassionate goes beyond a ‘minimalist’ vision of law – that law is only there to level the playing field and justice means equal treatment under the law.   Even if law were able to do this leveling, an element of compassion is also essential to the achievement of equal treatment, since law must be attentive to justice.  In this sense, human rights law is essentially compassionate in its purpose. Based on observation of the current state of law in the US, it is clearly not able to even achieve the minimal goal of equal treatment or fairness.  The gap between law and justice can be reduced with adequate attention to the need for compassionate law.

The kind of compassion I’m thinking about should also be distinguished from altruism, although compassion relies on altruism, they are not identical.  Altruism, which is a kind of selflessness, or non-self interested attitude of generosity and giving, is a vital component of compassion, because altruistic motives reduce the temptation to use demonstrations of compassion for self-promotion.  Compassionate law is one very effective way to express altruism.  Indeed, compassionate law resists self-interested motives by moving altruism from the private to the public sphere and thereby removing the personal motives that might affect compassionate and just outcomes.

The enactment of compassionate law recognizes the innate inequality of human relationships, and works to proactively overcome those inequalities.

Recently, some thinking on giving and charity has been diverted from these concepts of compassion by a concern with effectiveness.  Rather than asking how can giving be more compassionate, the question becomes: how can giving be most effective?   As one proponent argues: “Instead of doing charity in a way that makes people feel good, effective altruists rely on rigorous, evidence-based analysis to decide how to donate money, where to donate, and which careers are most ethical.” I would argue that this is a diversion.  Effective altruists argue using a utilitarian measure:  what is good for the most number of people must be the best and most effective form of giving.  Using this algorithm, how might one decide between funding one individual’s education and funding a food program for thousands?  Probably many more people can be helped with the food program, but over the course of a lifetime what effect might a highly educated individual have, especially if they were able to achieve a position in which they could institute more compassionate laws?  The effort to reduce giving to an algorithm sacrifices the element of compassion and arguably undermines the goal of achieving more effective giving.  It’s not that effective altruism is wrong, it just kind of misses the point.  What is really changed, even if a larger number of people are helped by a given action?  There is a risk in reinforcing the status quo and ensuring that giving will continue to be necessary far into the future, violating the goal of achieving truly altruistic giving.

Compassionate laws are necessary because individual empathy can fail – it is temporary, personal, individual and private.

The enactment of compassionate law can, over time and with much learning, come closer to achieving lasting and effective results because it builds-in the principle of altruism by removing self-promotion from the equation.  In addition, compassionate law recognizes the innate inequality of human relationships, and works to proactively overcome those inequalities.  The human tendency to self-aggrandizement and acquisitiveness is worsened by inequality.  Inequality erodes people’s ability to be altruistic and even their ability to empathize.  Compassion is needed in a highly unequal world because it is effective, and it is effective because it is authoritative and self-reflexive.  The exercise of compassion invites reflection upon one’s own position and relatively good fortune.  The proponents of effective altruism are right that relying on natural generosity and emotion is insufficient to make for effective giving, but they are wrong to abandon the idea of compassion, which is needed now more than at any other time of history.  This season of giving, consider ways that you might contribute to the establishment of compassionate law, or if this is too ambitious, think about how you can help others express and act on their feelings of empathy, working together with others.  For starters, you might consider sharing this post!