Compassion, ethics of care and legal rights

Abstract

This paper will explore the difficulties facing law in promoting compassion and responding to caring relationships. These include the difficulties in determining whether a person has demonstrated compassion and in enforcing any legal requirement for compassion. The paper will use the ethics-of-care literature to critique two key legal tools: human rights and the concept of best interests. These concepts are typically designed to promote individualistic abstract understandings of the self, which are problematic when used in the setting of intimate relationships. However, this paper will suggest that it might not be necessary to abandon the concepts of rights and best interests. They may be useful for setting the boundaries for a space in which appropriate care and compassion can be exercised. It will also be suggested that both rights and best interests are not immune from a relational analysis and might, with appropriate modification, be used to promote the exercise of compassionate relational care.

Law and compassion

“…The relationality encapsulated in the ethic of care has informed subsequent proposals for incorporating compassion into law (Keating and Bridgeman, 2012). Herring (2017), for instance, argues that the law must seek to foster compassionate relational care. He sees a strong correlation between compassion and care, and, building on his earlier thesis that caring should not be seen as an unequal relationship of carer and cared, but rather a meeting of the needs and interests of each person, he approves Dewar and others who see compassion as not so much as doing for others but choosing to do together with them.…”

“…Traditional rights seem infertile ground for demanding compassion – concerned as it is with positive action to alleviate suffering. Herring asserts that, within an ethics of care, however, ‘[r]ights and interests are not designed to protect individuals per se, so much as upholding and maintaining networks of caring relationships’ (Herring, 2017, p. 162). How precisely, and specifically in practice, can an ethics of care achieve this design or determine that a right is an appropriate vehicle to secure this outcome?…”

“…These generate responsibilities. Only then do rights come as tools to enable people to perform their responsibilities and enable relationships to be genuinely caring.’ (Herring, 2017, p. 166)…”

“…One of the challenges facing the application of such ‘concern’ is how to do so for those we do not know and who are constantly positioned as the proverbial other (Muraskin, 2007). Herring (2017) argues that ‘the concepts of rights [and best interests] … may be useful for setting the boundaries for a space in which appropriate care and compassion can be exercised’ (p. 158). This may seem odd.…”

“…Rights have, historically, protected the individual from state interference 5 . They operate, as Herring says, ‘to draw boundaries around ourselves and protect us from interference from others’ (2017, p. 162). Traditional rights seem infertile ground for demanding compassion – concerned as it is with positive action to alleviate suffering.…”