I traditionally use my messages in Law Quadrangle Notes to examine a
quality that helps to define an outstanding attorney. In past years I have discussed how great lawyers pursue
intellectual growth and renewal, maintain integrity, teach others about the
law, serve as community citizens, bolster our profession’s image, exhibit
patience, sustain a form of optimism, and deploy their voice. In the coming year, I would like to
explore the related qualities of empathy, sympathy, and compassion.
The historian Gertrude Himmelfarb has
recently described the evolving discussions of sympathy and compassion over the
course of the British Enlightenment.
Earlier writers such as John Locke and Thomas Hobbes believed that
sentiments such as compassion had to be inculcated through rigorous
education. But later writers such
as David Hume and Adam Smith insisted that such feelings were innate, an
essential aspect of what it means to be human.
Of course, in modern times Adam Smith’s
name has become popularly associated with a rather callous and unfeeling vision
of the free market economy. It is
therefore interesting to see how much his economic program was grounded in a
vision of moral philosophy which assumed that people identify with and care about
one another. In the first chaper
of The Theory of Moral Sentiments, he offers the following observations:
“How selfish soever man may be supposed,
there are evidently some principles in his nature which interest him in the
fortune of others, and render their happiness to him, though he derives nothing
from it except the pleasure of seeing it.
Of this kind is pity or compassion, the emotion which we feel for the
misery of others, when we either see it, or are made to conceive it in a very
lively manner.
“[T]o feel much
for others and little for ourselves,… to retrain our selfish and to indulge our
benevolent affections, constitutes the perfection of human nature.”
Passages such as these help to frame the
assumptions about how people would behave in a free marketplace that Smith
brought to his later work, The Wealth of Nations. They help to explain why that book
passionately asserts that, “No society can surely be flourishing and happy, of
which the far greater part of the members are poor and miserable.” And they similarly help to explain why
so much of the work’s second volume is devoted to topics such as the need for
public works, universal education, and fair and adequate taxes.
One way to understand some of the
challenges that are presently posed to our economy and to our profession is to
wonder whether Smith was too much the optimist. The marketplace frauds perpetrated in our boardrooms, and
the daily incivilities practiced in our courtrooms, could all be seen to
suggest that many of today’s leaders lack even a minimum reserve of
fellow-feeling.
Sadly, our own profession is held at least partly responsible for the rising self-interest and declining compassion within our society. And so I think it especially appropriate to consider a more hopeful possibility. In particular, I would like to explore whether strong capacities for sympathy are an essential attribute of the good lawyer, whether effective representation necessarily entails a highly refined capacity to feel for the happiness and misery of others. If so, then regardless of whether Smith was correct that such a capacity is innate in our students when they first enrolled in law schools, we owe it to them to do all we can to nurture and cultivate it so that they have it in abundance by the time they graduate.
