By now most of the world is aware that a Scottish judge has released Abdel Baset Ali al-Megrahi, the man convicted of killing 270 in the Lockerbie bombing. The basis of the release is ‘compassion’ because Abdel Baset has prostate cancer and doctors estimate he has less than 3 months to live. The man has been released so that he can die at home while receiving appropriate care.
Several issues come to mind in looking at this:
What is the definition of Compassion? The dictionary will tell you that compassion is both the awareness of and sympathy for the suffering of another. If I see someone in a hospital who is suffering I become both aware his suffering and I can sympathize with him. Doing so, I then do what I can to ease his suffering.
Can I feel compassion and not act with compassion? Certainly. The notion encapsulated in the term ‘tough love’ is based on just idea: I can be aware of the suffering of another, I can feel sympathy for that suffering (I may even have found myself in a similar position once), but I can also realize that to act on that sympathy would mean that the suffering individual would be rescued from a situation that he is responsible for and doing so would prevent him from accepting that responsibility.
And then there is the issue of the greater good of society: acting with compassion may well send a signal to others that they need not accept responsibility for suffering they caused themselves, that they can (and should) expect relief from others.
What is the proper role of ‘compassion’ in the law? Compassion makes for good theater and for excellent closing arguments by defense attorneys, but compassion is not something that is normally defined in law. Our own Constitution talks about a number of principles that are essential to the conduct of courts and judges and criminal punishment. There is no discussion about compassion. One obvious reason for this is that compassion is normally directed at an individual (though sometimes at a group that is suffering). Having compassion for an individual would automatically place the other party in the legal proceeding at a disadvantage. And the law is supposed to be fair (Justice is blind.) In short, there is no role for compassion in the law. The law is, instead, supposed to be dry, crisp, clean, and defined (though it sometimes doesn't quite get there.)
So, if that is the case, what is the proper role of compassion in the courts? Well, again we are back to theater. It is the purpose of the defense attorney to defend his client, with intellect, rhetoric and passion. It is the job of the prosecution to use all his skills to convict the defendant. Both may use whatever passions they can to bring to bear to affect the outcome. It is the role of the Jury to act as the representatives of the community as a whole. In that sense, the ‘jury of peers’ are, in fact, supposed to bring compassion, as well as all the other characteristics that make them human, and part of the community, into the court room in order to reach the best conclusion they can reach. And the judge’s role? The judge applies the law.
Both our Constitution and the constitution of Great Britain, from which we draw many of our notions of law, recognize that only the legislature can create law. Courts – Judges – apply the law. Any emotion brought into the legal decision is brought not by the judge but by the jury – the representatives of the people.
It is worth noting that because judges acted too often on their own feelings that US legislatures, responding to the anger of the people (the source of real power in a democracy), passed mandatory sentencing laws, the same that have so many commentators around the world up in arms about the number of prisoners in the US.
What is the lesson learned here? I’ll begin this by saying that I do not know how the laws of Scotland or the United Kingdom define ‘compassionate release,’ but I am reasonably certain that it has been defined not by legislatures but by judicial decisions which have, over time, given more and more latitude to judges. But is that really the purpose of the courts or the intent of the laws?
The fact is that these kind of decisions are exactly what judges should be constrained against. Judges are supposed to apply the law, not create it or interpret so that they feel good while the people – the real source of the law – are outraged.
This kind of decision is another straw on the back of a very tired camel, one that is trying hard to sustain the primacy of the legislature against both the negligence of legislators who are too lazy to put the judges in their place, and by activist judges who daily usurp the power of the legislatures and in so doing undermine the constitutions and very nature of government by the people.
The judge’s decision in respect to Abdel Baset is gross and disgusting, but it is to be expected as long as we allow the courts to rule as they feel rather than to apply the law as they are told, and as long as we elect legislators who wish to give away the sacred trust placed in their hands by the electorate.
Several issues come to mind in looking at this:
What is the definition of Compassion? The dictionary will tell you that compassion is both the awareness of and sympathy for the suffering of another. If I see someone in a hospital who is suffering I become both aware his suffering and I can sympathize with him. Doing so, I then do what I can to ease his suffering.
Can I feel compassion and not act with compassion? Certainly. The notion encapsulated in the term ‘tough love’ is based on just idea: I can be aware of the suffering of another, I can feel sympathy for that suffering (I may even have found myself in a similar position once), but I can also realize that to act on that sympathy would mean that the suffering individual would be rescued from a situation that he is responsible for and doing so would prevent him from accepting that responsibility.
And then there is the issue of the greater good of society: acting with compassion may well send a signal to others that they need not accept responsibility for suffering they caused themselves, that they can (and should) expect relief from others.
What is the proper role of ‘compassion’ in the law? Compassion makes for good theater and for excellent closing arguments by defense attorneys, but compassion is not something that is normally defined in law. Our own Constitution talks about a number of principles that are essential to the conduct of courts and judges and criminal punishment. There is no discussion about compassion. One obvious reason for this is that compassion is normally directed at an individual (though sometimes at a group that is suffering). Having compassion for an individual would automatically place the other party in the legal proceeding at a disadvantage. And the law is supposed to be fair (Justice is blind.) In short, there is no role for compassion in the law. The law is, instead, supposed to be dry, crisp, clean, and defined (though it sometimes doesn't quite get there.)
So, if that is the case, what is the proper role of compassion in the courts? Well, again we are back to theater. It is the purpose of the defense attorney to defend his client, with intellect, rhetoric and passion. It is the job of the prosecution to use all his skills to convict the defendant. Both may use whatever passions they can to bring to bear to affect the outcome. It is the role of the Jury to act as the representatives of the community as a whole. In that sense, the ‘jury of peers’ are, in fact, supposed to bring compassion, as well as all the other characteristics that make them human, and part of the community, into the court room in order to reach the best conclusion they can reach. And the judge’s role? The judge applies the law.
Both our Constitution and the constitution of Great Britain, from which we draw many of our notions of law, recognize that only the legislature can create law. Courts – Judges – apply the law. Any emotion brought into the legal decision is brought not by the judge but by the jury – the representatives of the people.
It is worth noting that because judges acted too often on their own feelings that US legislatures, responding to the anger of the people (the source of real power in a democracy), passed mandatory sentencing laws, the same that have so many commentators around the world up in arms about the number of prisoners in the US.
What is the lesson learned here? I’ll begin this by saying that I do not know how the laws of Scotland or the United Kingdom define ‘compassionate release,’ but I am reasonably certain that it has been defined not by legislatures but by judicial decisions which have, over time, given more and more latitude to judges. But is that really the purpose of the courts or the intent of the laws?
The fact is that these kind of decisions are exactly what judges should be constrained against. Judges are supposed to apply the law, not create it or interpret so that they feel good while the people – the real source of the law – are outraged.
This kind of decision is another straw on the back of a very tired camel, one that is trying hard to sustain the primacy of the legislature against both the negligence of legislators who are too lazy to put the judges in their place, and by activist judges who daily usurp the power of the legislatures and in so doing undermine the constitutions and very nature of government by the people.
The judge’s decision in respect to Abdel Baset is gross and disgusting, but it is to be expected as long as we allow the courts to rule as they feel rather than to apply the law as they are told, and as long as we elect legislators who wish to give away the sacred trust placed in their hands by the electorate.
No comments:
Post a Comment