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George Pell – and when justice and compassion collide

13 April 2020

5:29 PM

13 April 2020

5:29 PM

Cardinal George Pell’s acquittal by the High Court of Australia of all criminal charges raises questions which demand serious answers. What led the jury into error? What led the President of the Court of Appeal and the Chief Justice of the Victorian Supreme Court to compound that error when reviewing the jury’s verdict? Is there an underlying fundamental flaw in our judicial system? If so, can it be addressed so that a similar injustice is less likely to occur in the future?

I believe there is, indeed, a critical factor which has progressively eroded in recent decades but which is absolutely fundamental to how the law should be taught and administered.

That factor, which I doubt is addressed in any legal text or university law faculty curriculum, is the distinction between the concepts of justice and compassion. A failure to appreciate that distinction, particularly by judges, can easily lead to injustice and a failure of the judicial system.

Most of us, including most lawyers, believe that justice and compassion, if not exactly synonymous, should dovetail so that our legal system is no less compassionate than it is just. But a close analysis of those two concepts will show that, contrary to popular belief, they are almost polar opposites.

Compassion is relative whereas justice is absolute. If you are compassionate to one litigant, then it follows that you must be less compassionate to the other. It is impossible to be equally compassionate to everyone. It is possible, however, to be equally just to both litigants, so long as the law is administered without favour, applying accepted legal principles.

We are living in a compassionate age where “social justice” for the poor, the elderly, the infirm or for anyone perceived to be less fortunate, is seen as laudable. However, if the subjectivity inherent in favouring one person over another enters the legal landscape, social justice, ironically, can easily lead to injustice.

So, for example, in a tragic case where paedophilia is alleged, compassion usually means believing the complainant, regardless of how many years have passed since the events in question. We have a natural inclination to explain away or ignore factual inconsistencies in the victim’s account and to overlook the requisite standard of proof “beyond reasonable doubt.” Recent social media posts by some of our most senior politicians in the wake of the High Court’s judgment, illustrate this.

Of course, there is plenty of scope for us to be compassionate. We should always be aware that there are less fortunate members of society who are in genuine need and who we should assist where we can. But justice must trump compassion in how the law is administered if our judicial system is to operate satisfactorily.

Over many years practising law as a barrister I have witnessed a progressively frequent phenomenon. Where a case is not determined solely by reviewing a documentary trail but where oral evidence is adduced, it is not uncommon for a judge to wear his heart on his sleeve. In such cases, it often becomes obvious that the judge has taken a view as to which of the litigants is more deserving (as distinct from credible) and ought for that reason to succeed. The judge then, whether consciously or sub-consciously, reverse-engineers his or her judgment by making unlikely findings of fact, to fit the judgment within accepted legal principles.

The problem stems from the fact that, to a greater or lesser extent, most of us do have an inclination to act compassionately. This problem is not new. To the contrary, it has been known for thousands of years. The Hebrew Bible, on four separate occasions, specifically warns judges not to confuse the concepts of justice and compassion.

This is not a call for society to embrace religion. It is, however, appropriate that we draw on the wisdom of the ages and recognise that the decline in legal standards I have witnessed and the progressive secularisation of society over my lifetime, may not be merely coincidental.

In our university law faculties and in our courtrooms, we would do well to explain both the benefits and pitfalls inherent in our inclination to act compassionately, so that the stark distinction between the concepts of justice and compassion are properly understood.

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