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4. January 2011

Law in the empathetic society

Must an increase in empathy signal a decrease in law?

Let us consider, for a moment, that someone has wronged you by stealing your car.  When the person is caught by police, you have the option to press charges, but then discover that your neighbor–whose wife is dying from cancer, after they both lost their jobs–stole your car out of desperation to rush to meet her in the hospital, since he thought she was about to die.  Begging your forgiveness with tears in his eyes, the man sinks to his knees in court, clasps his hands together, and looks at you directly.  At this moment, moved with compassion, in an act of mercy you allow the man to walk free.

Compassion, then, is our friend.  A placing of ourselves in the shoes of others, imagining their hardship and deciding–in some particular instance, to side with them, to recognize that had you been in their position, you would have been desperate as well.  And this empathy, in many cases, is noble.

But there are many other cases in which people ask us to be compassionate, in which we should not necessarily be.  Indeed, there are many cases in which someone has engaged in evil, in which we are asked to turn the victim’s cheek for them.  In the above story, perhaps the judge would have allowed the desperate car thief to walk free without considering the rights of the car owner.  Or perhaps people might ask us to be accepting when another has been engaging in something despicable, and we are being encouraged to protect the humanity-debasing acts, though the acts be merely expressive or consensual.  In these cases we are being asked to move beyond mercy and compassion, and into injustice and evil.

Are compassion and justice then forever at odds?  Does empathy necessarily demand a breakdown in social order, a dismantling of righteousness, of standards, of law, of justice?  There are an increasing number of people in our United States who claim that justice and compassion are mutually exclusive, that in order for us to be loving, we must abandon many forms of law and morality, that we must become radically permissive, that serious stances must not be made against serious offenses.  But we must remember that justice, like mercy, is also compassion; but it is a compassion which directs emotional and physical support toward the victim, instead of the offender.  Is justice then not also compassionate?

And this leads us to my next point.  There are those who say we should have compassion on pedophiles, and oftentimes that we should deal lightly with those on death row for committing rape or murder.  But forgiving or “going easy” on someone for wronging another is no more compassionate than voting to increase taxes on the rich is charitable.  Regardless of whether mercy and compassion are widely recognized as positive traits, without objective standards for the pursuit of justice and mercy, either can easily become injustice.

Without objective standards, law is reduced to a game of emotional manipulation, seeking compassion for whomever has the most depressing story, and seeking immoral laws to back that so-called justice, according only to whim.  In our postmodern and liberal society, sometimes our public supports the child who was shot after throwing large rocks as a police officer.  Other times we side with a black man in jail, not because of what he has done to someone else, but simply because of how we emotionally perceive the plight of blackness.  In a world devoid of objective legal standards, compassion for aggressors can very easily become the enemy, because suffering is everywhere, and everyone–both offenders and offended–have a story.  It seems, then, that anyone can be a victim.

So how do we, as a society, objectively determine with whom to place our empathy?  How do we know when the law should champion the cause of the suffering?  First, let us look to John Stuart Mill, the grandfather of the sexual revolution and one of the most influential philosophers of classical liberalism.  Mill proposed that the cause of freedom limit our legislative capacity to banning only that which harms others, an idea known as the Harm Principle (most clearly explained by philosopher Roger Scruton).

But this philosophy of harm isn’t as nearly as clean and simple as we might think, especially considering the unlimited number of instances which may be considered “harmful,” and the fact that many harmful behaviors do not necessarily inflict the prohibited harm 100% of the time (think, “hate speech” and drunk driving, respectively). In short, while the Harm Principle gives the initial appearance of governmental restraint, this restraint exists only as long as society remains culturally cohesive, as long as “harm” is a widely understood, clearly-defined concept.  Perhaps in Mill’s day, harm was.  Today, it is not.

But John Locke, one of the most influential natural rights philosophers, had an answer to the proposition of empathetic subjectivity.  In his philosophical masterpiece, Two Treatises on Government (section 136, including footnotes), he states that “The Law of Nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions must… be conformable to the Law of Nature, i.e., to the will of God.” And, in his quoting of Richard Hooker’s Ecclesiastical Polity, “Laws human must be made according to the general laws of Nature, and without contradiction to any positive law of Scripture, otherwise they are ill made.” Not such a popular statement these days, but Locke’s writings were revered by our founding fathers, and provided the essential philosophy of our very Declaration of Independence, and the understanding of unalienable rights.

My question to my readers is this: living in a secular, multicultural, postmodern world, there is an increasing cacophony within the world of compassion.  As a committed Christian, I know what the legal boundaries of compassion are.  With a Biblical system of rights, in which the offended has a right to retaliation for specific prohibited behaviors, and a specific and limited retribution, our compassion should necessarily defend specific people who suffer at the hands of others, should those objectively-defined circumstances allow us.    My question to you is, do you know where to draw the line between compassion and injustice?  And if we are to combat American liberalism, which oftentimes confuses offenders with victims, can we necessarily proceed under a utilitarian method like Mill’s?  Or does the necessity of adequate government and the protection of unalienable rights demand a far different, objective standard?

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