Compulsory Compassion: A critique ofRestorative Justice

by Annalise Acorn

Vancouver: UBC Press, 2004. Pp. 207.

"Optimism is the faith that leads to achievement; nothing can be done without hope."

Helen Keller

I. INTRODUCTION AND OVERVIEW

Compulsory Compassion: A Critique of Restorative justice' is a well-written, com-prehensive, convincing, and well-researched book. Seldom do I have the chance toread legal scholarship that is as fluent and readable as the best fiction out there. Notsurprisingly than, the book takes us in a very organized, yet fascinating, mannerthrough the author's concerns about the basics of restorative justice. The bookengages with the most problematic aspect of the restorative justice movement; theimpression that at times the process of restorative justice is compulsory if not forcedand artificial. Acorn's main concern is that regret or remorse (on part of the culprit)and compassion (on part of the victim) cannot be cultivated. Acorn accuses restora-tive justice advocates of optimism and criticizes them for their "false understandingof utopia."2 She systemically breaks down what she believes are the foundations of thethought behind restorative justice and identifies the logical flaws in it.

What the book is missing, I believe, is a solution. In essence, the book is a crit-ical work but it does not provide any alternative to restorative justice and neitherdoes it provide any solutions to the problems that the restorative justice movement isout to answer. Even if we choose to accept Acorn's criticism of restorative justice wehave to acknowledge that flawed as they may be, restorative justice programs areextremely popular with both victims and criminals (convicted or accused) whichmainly indicates that they are answering a demand that needs to be addressed;3 Acorndoes not address that need in her book. Accordingly, this book review addressesAcorn's rejection of optimism; it mostly criticizes the negative (pessimist) tone of the

1. Annalise Acorn, Compulsory Compossion:A Critique of Restorative justice (Vancouver: UBC Press, 2004).2. Acorn, supra note 1, at 6.3. The very popular Victim-Offender Mediation programs are an excellent example of the demand I refer to.

See for example "Victim-Offender Mediation program," online: CSC (Correctional Services Canada)<http://www.csc-scc.gc.ca/text/portals/rj/brief-e.shtml> (last visited: I Feb. 2006).; also see the"Victim Offender Mediation/Dialogue (VOM/D)," online: Texas Department of Criminal Justice<http://www.tdcj.state.tx.us/victim/victim-vomd.htm> (last visited: 1 Feb. 2006).

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book rather than the argument itself. To do so I first briefly review the book in itsentirety. I then focus on one of the book's chapters, Chapter 6, where Acorn analyzesand rejects the introduction of compassion to adjudication. I analyze Chapter 6 as anexample of Acorn's rejection of optimism. I visit another perspective on this topic notas a critique of Acorn's argument but rather as an example of how a more optimisticapproach to the topic may be useful. Finally, I talk about the benefits of an optimisticapproach to legal scholarship.

First, Acorn addresses the points where the rhetoric of restorative justice andideals of universal love meet, and discusses the cultivation of an inner state of love asa requisite of justice. Acorn critiques the aspiration to reconcile love and justice, andquestions the possibility of producing fraternity between perpetrator and victim inthe context of a crime.

Subsequently, Acorn examines three internally related characteristics of theoptimism inherent to restorative justice. Acorn criticizes restorative justice's aspira-tion on the one hand, to create a notion of justice that is concerned with reciprocity,and on the other hand, rejects its aspiration to avoid a notion of justice that is achievedthrough punishment that enforces reciprocal harm. She questions the idea that theperpetrator's character will change for the better as a result of the restorativeprocess. She is equally skeptical of the possibility that the victim of the crime willmeaningfully recover, or even heal, as a result of the restorative process.

Next, Acorn considers restorative justice's aspiration to reconcile love and jus-tice as distasteful sentimentalism. She discusses whether or not sentimentality in atheory or practice of justice is wrong by definition. She argues that a sentimental the-ory of justice is indeed a bad thing. Later, Acorn looks at the relationship betweencompassion and justice. She critically examines some of the difficulties with givingcompassion a major role in adjudication. She then argues that the compassion that isrequired for restorative justice is predominantly different than that envisioned byadvocates of compassionate judicial decision making. She further argues that thenotion of compassion relied on by restorative justice must be deliberately cultivated,and questions the ability to cultivate compassion and the chances love and fraternitycould be cultivated. Finally, Acorn expresses her uneasiness with restorative justice,which is grounded in a utopian vision.

II. COMPASSION AND ADJUDICATION

Acorn criticizes restorative justice for being a sentimental theory of justice,and she goes on to criticize any sentimental theory of justice. In Chapter 6 she ques-tions the possibility of finding compassion and love in people, naturally or as a resultof cultivation, through a process of justice. In a nutshell, Acorn argues that compas-sion cannot be a part of adjudication because we cannot expect people to feel com-passion for people different than themselves. Acorn takes apart Martha Nussbaum's

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definition of what attracts compassion in other people. 4 In order to feel compassion,Nussbaum's definition submits that we must believe: (1) that the suffering is serious;(2) that the object of compassion is not at fault for suffering, or alternatively that thisperson cannot escape the suffering; and (3) that the object's condition is somethingthat can happen to the subject.'

First, Acorn examines the first condition of Nussbaum's test-that the suffer-ing must be regarded as serious in order to attract compassion. She argues that thereis a methodological problem with quantifying suffering. Acorn cites Rousseau, whoargues that suffering is measured not by the depth of misfortune but rather by thesentiment which one attributes to those who suffer it. 6 Compassion is thus unreliableas a normative guide, as the rich, for example, will have no pity for the poor forwhom they have no compassion.7 Accordingly, another problem with quantifying suf-fering is the risk of falling into a zero sum game. The judge will have to decide whichparty, or segment of society, is more likely to suffer more. Acorn warns us of thisresult. Judges, she argues, will naturally tend to attribute more suffering to the partythat they have more sentiment for. Again, she predicts, judges will accord more sym-pathy to people similar to themselves. For example, a white judge will identify withwhite litigants, rich with the rich etc.8

Acorn then examines Nussbaum's suggestion that we do not feel compassionfor those who bring about their own demise. What this really means, she submits, isthat judges will be required to imagine whether or not they would have acted differ-ently in a given situation.9 Again, she infers that a question of difference and equalityis relevant: could judges feel compassion toward people unlike themselves?' ° Finally,according to the third prong of Nussbaum's definition of compassion we feel com-passion only toward those who are our equals-those that we think we can end uplike." Regrettably, she argues, feelings of friendship and concern rarely extend acrosslines of class, race, and gender. Thus, again, she expresses skepticism with regard tothe ability of judges to overcome these differences."

4. Ibid. at 125.5. Ibid.6. Ibid. at 126.7. Ibid.at 127.8. Please note that judges are making this very same judgment call almost everyday when they apply the legal

test known to any law student: the balance of convenience test.9. Acorn, supra note I at 129.10. Intrinsic to this argument is the notion that people judge others only according to their life experience and

situation.11. Acorn, supra note 1 at 125.12. Ibid. at 132.

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III. CROSSING LINES OF DIFFERENCE

Jennifer Nedelsky also grappled with this seemingly odd mix of law and emo-tions. She took a slightly different approach to Acorn's concern in Chapter 6; cancompassion cross over lines of difference and inequality? Judgment, Nedelskyexplains, is a subjective but not entirely arbitrary human faculty. 3 There can be nojudgment without emotions. Emotions are an integral part of the process of judg-ment. Without emotions people cannot form decisions based on reasonable judg-ment.' 4Through a learning process we assign certain emotional responses to certainexperiences. Later in life when we have to make decisions-to use our judgment-we associate different emotional responses with different choices of action. A badoutcome of a certain action is associated with an unpleasant gut feeling or emotion.These associations or "somatic markers" help us decide between what could other-wise be an overwhelming choice of possible action paths. Somatic markers help bypointing to certain possibilities and away from others. ' 5 Reasoning cannot do with-out emotions; good judgment is a combination of emotional as well as cognitiveprocesses. 6

But what if, just as Acorn suggests in Chapter 6, judges do not have any emo-tions associated with certain experiences? The problem is that the make up of thejudiciary is usually homogeneous. Most judges are middle-aged white men, fromaffluent or middle class backgrounds, who often do not share the life experiences ofsome, if not most, of the litigants they hear in their courtrooms. Furthermore,Nedelsky explains, judges virtually live in a closed community. They consider theopinions of their peer judges, and more senior judges, on a routine and very frequentbasis. In their work they have to imagine what other judges would think in their sit-uation, and hence, even if they do not concur on specific issues, they share a certaincommon way of looking at things, a "common sense."Thus, the kind of stories theyhear does not necessarily attract the same emotional response, or gut feeling, that itwould in people who share similar experiences.17 Nedelsky explains:

There are several examples of shocking failures of judgment by judges that now seem tome to rest at least in part on an affective failure they seem to me to be examples ofundesirable somatic markers. These judges failed to assign the appropriate affect to theevents they confronted.' 8

13. Jennifer Nedelsky, "Judgment, Diversity, and Relational Autonomy" in Ronald Beiner and Jennifer Nedelsky.eds., judgment, Imagination, and Politics: Themes from Kant and Arendt (New York: Rowan and LittlefieldPublishers, 2001), 103 at 106.

14. Jennifer Nedelsky, "Embodied Diversity and the Challenges of Law" (1997) 42 McGill L.J. 91 at 101.15. Ibid. at 102.

16. Ibid.

17. Supra note 14 at 107.18. Ibid. at 103.

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It seems then that because judges do not share the same emotional and physi-cal experiences of some of the litigants that end up in their courtrooms, compassion,cannot cross over lines of difference and inequality. However, Acorn's conclusionabout compassion and adjudication doesn't necessarily follow from this problem.Since all judgment has an emotive element to it, as Nedelsky suggests, any judgment,not just compassionate judgment (contrary to what can be inferred from Acorn'sargument) is suspect of being impartial. In that case, should judges not be automati-cally suspected of impartiality? If, as it is suggested, we are compelled to use emo-tions in our judgments, then not only compassion, but any other emotional responsethat we naturally have taints our decisions with impartiality. Since emotions are partof this mix we call judgment, not because we cannot avoid them but because they arepart of a healthy process of judgment, should we try to avoid emotions or morespecifically compassion nonetheless, or should we instead try to find a way to makesure emotions are being applied to all litigants equally?

Suppose we do want our judges to be compassionate: how are we to make surethat judges will feel compassion for people different than they are? To address thisissue Nedelsky first explains the concept of an enlarged mentality. When we engagein judgment, she explains, we picture ourselves convincing others. We try to imaginewhat others may say.'9 This process is called "enlarged thought."20 We enlarge ourthoughts in order to account for the thoughts of others. We imagine, however, whatothers might think, not what they actually think. 21 We do not replace our thoughtswith the thoughts of others, instead we question ourselves; how would they judge inour position? "[I1t is the imagination 'that make[s] the others present' in the solitarymoments of judgment."22

Real judging, Nedelsky thus argues, requires diversity. To imagine what othersmay think or feel in a given situation, one has to know something about the life expe-rience of others. One thus has to conduct real conversation with others. 23 The nar-row, familiar, knowledge of the elite can be broadened by taking under considerationthe emotional knowledge of others who do not share the same background. Nedelskyagrees with Acorn24 that merely telling judges the stories of others is not enough.Only by exposing judges to other experiences and making sure that these experiencesbecome part of the judicial dialogue can we make sure that judges attach proper emo-tional responses to different situations. 25 By doing so not only do we benefit fromhaving judges who sit on the bench and "get it" because they themselves experienced

19. Supra note 13 at 107.20. Ibid.21. Ibid. at 108.22. Ibid.23. Ibid. at 110.24. Acorn, supra note I at 131.25. Supra note 13 at 114.

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different emotional responses, but additionally the internal judicial dialogue thatjudges conduct publicly and in their own enlarged mentalities, will be enriched, andgradually we will start seeing a shift in judicial common sense. Nedelsky summarizes:

I think that an education aimed at developing appropriate affective responses, along withexposure throughout one's education to people from diverse backgrounds, can make adifference to the somatic markers one develops" 26

. . ."I think it would be ideal to have apanel of judges with different backgrounds. Otherwise, one might end up with a panel ofjudges "who just don't get it."27

IV. PESSIMISM, OPTIMISM, AND THE LAW

If we step back and think of this literary conversation about compassion werealize Acorn and Nedelsky's arguments represent more than the immediate specificissues they grapple with. We extract something else from their arguments and howthey choose to make them. Jurists can be roughly broken into 3 groups according tothe level of optimism they attach to their views about the future of law2": (1)Pessimists-people I file in this metaphoric drawer are critical about what the law isand pessimistic about what it can be. They recognize problems within the law butoffer no solution; (2) cautious optimists too have a critical view of the law. Like pes-simists, they recognize systemic problems and they point them out to us with heavyhearts. They do, however, believe that the law can be improved. People that believein restorative justice are part of this group; and (3) optimists-people in this groupare confident that the law serves all people equally as long as all members of societyhave a free access to justice; they recognize local problems and strive to overcomethem. Liberals are such optimists in my view, and while I have a lot to say about thislast group, I will refrain from doing so in the interest of this article and say a fewwords about pessimists and cautious optimists.

Throughout her book Acorn criticizes the optimistic basic stance of therestorative justice movement. Chapter 6, which I reviewed more thoroughly thanothers, criticized the optimistic idea that compassion can cross boundaries of differ-ence. On the basis of this pessimist approach Acorn rejects compassion as somethingthat should be taken into consideration by adjudicators as they think about cases andlitigants. While Nedelsky recognizes a similar problem, she nonetheless remains opti-mistic about the chance that judges may be taught to enlarge their minds and feelcompassion toward people whose life experience they do not share. Both scholarsrecognize an inherent problem with compassion. However, one rejects it as a legiti-mate part of the judicial process and the other embraces it as a goal to be reached

26. Supra note 14 at 108.27. Ibid. at 110.28. Of course we can categorize ourselves and others in more than one group depending on the issue at hand.

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through considerable changes to the judiciary. Pointing out that Acorn rejects restora-tive justice's optimism is not enough to deem her a pessimist. However, her rejectionof a theory of justice its daring to imagine that love and compassion can be found orcultivated in people puts her very close to pessimism.

Optimism and pessimism have, of course, to do with a lot more than compas-sion or even restorative justice. An optimistic or pessimistic approach to the study ofthe law, in my view, is related to the overarching debate about the relationshipbetween law and justice. In Judging the Judges, David Dyzenhaus addresses this debate.He refers to the "age old" debate in the philosophy of law between legal positivismand natural law theory.29 Positivists, he explains, believe that the relationship betweenlaw and true justice is purely contingent on political circumstances. According to thisapproach, since positivists encourage lawyers to enforce the law at its face value,lawyers are bound to follow the prevailing political power at all costs. Naturallawyers, on the other hand, argue that there is an intrinsic relationship between lawand justice. Natural lawyers expect lawyers and judges to look beyond what the lawis and imagine what the law could be. 0

Dyzenhaus argues that the relationship between law and justice has to beintrinsic if law is to provide a place where those subject to it can contest it when it isused as an instrument of the powerful.The duty of judges is thus not simply to admin-ister the law but rather to administer justice; it is not merely to carry out the techni-cal requirements of a role, but to be morally upstanding occupants of that role."' Todo that, he explains, judges should apply moral and political imagination.32

Accordingly, I argue that being an optimist means having the ability to imagine whatthe law could be. It means that there is, or that we should seek an intrinsic connec-tion between law and love, law and compassion and law and justice. If we dare notthink of the law optimistically-in terms like love, compassion and their like-howcan we expect the law to change? In consequence, if we expect our judges to admin-ister justice we should better be optimistic about our and their ability to change thelaw for the better. If we imagine an intrinsic connection between law and justice, wehave to believe that love, compassion and their like can be cultivated in people, be itjudges, lay people and even criminals. InJudging the Judges, which discusses the roleof the South African judiciary during the Apartheid years, Dyzenhaus clarifies theimportance of this point. He draws a vivid picture of what may happen if we refuseto imagine and strive toward a utopian version of the law.

29. David Dyzenhaus, Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order(Oxford: Hart Publishing, 1998) at 34-35.

30. Ibid.31. Ibid. at 41.32. Ibid. at 48-49.

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Providing that law and justice are intrinsically connected, what is it that con-nects them? Lorne Sossin's "The 'supremacy of God"' calls for a "leap of faith."3"Sossin sees human dignity as a bridge between reason and faith. Like Dyzenhaus,Sossin implies that there is an intrinsic connection between law and justice. Humandignity represents, for him, what compassion or love represents for others-a bridgebetween law and its subjects as well as a bridge between law and justice. To make thisleap of faith possible one has to be optimistic about the possibility that law mayimprove, or that love could be cultivated in people, or even that compassion can even-tually transcend mental borders of class, race, gender, etc.

V. CONCLUSION

Acorn suffers from the very same problem of which she accuses restorativejustice-optimism. Only, while it, as she claims, has too much of it, she has too lit-tle; while it is openly optimistic, she is clearly a skeptic. Acorn rejects a sentimentaltheory of justice, and questions the possibility of finding naturally compassion andlove in people, or even the possibility of cultivating love or compassion through aprocess of justice.

In this review of Compulsory Compassion I have argued that Acorn's rejection ofcompassion and love as instruments, if not integral parts of, the law is related to heroverall rejection of optimism as an acceptable tool of lawyers and legal scholars. Ihave argued that if we hope to change the law, we have to believe that people can betaught love and compassion.

Eyal KimelPh.D. candidate, Osgoode Hall Law School,York University.Dedicated to AK the eternal optimist.

33. Lorne Sossin, "The 'supremacy of God,' Human Dignity and the Charter of Rights and Freedoms" (2003) 52U.N.B.L.J. 227 at 240.