9-minute read

Dermot Feenan

LLB MA LLM Barrister-at-Law FRSA

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The large golden Buddha sits where the judge once presided over criminal trials. The court in Kennington, London, tried a range of offences. It served as a maximum-security court for special remands, including suspected IRA terrorists. Now, the courthouse is Jamyang Buddhist Centre. It is a centre in the Gelug tradition of Tibetan Buddhism, following the Dalai Lama, and is affiliated to the Federation for the Preservation of the Mahayana Tradition (FPMT).

It is late October 2015. I am attending an FPMT one-day workshop on ‘Compassion & Wisdom’. It is led by the inimitable Geshe Tashi, the Centre’s resident teacher.

My research at a university law school on the south coast of England has included exploration of the relationship between law and compassion. It’s an interest generated in part by my exposure over twenty years to the fundamentally important role of compassion and wisdom in Mahayana Buddhism: one of the three main branches of Buddhism.

Having visited numerous Buddhist centres worldwide, I was intrigued that Jamyang not only occupied a former courthouse – the whole shebang: courtroom, cells, and rooms for lawyers – but had a great, gilded Buddha right where a judge once sat.

As a trained barrister-turned-academic drawn to Buddhism, who has seen the inside of many courtrooms, this was, intellectually, very intriguing. I wondered: how would a court presided over by the Buddha differ from English courts?

Would he bring compassion to judging? If so, what would this entail? How would the court be managed?  Would lawyers be reined-in on cross-examination – often an opportunity to undermine a witness? Would there be differences in judicial interpretation of procedural and substantive law?

There was sufficient evidence over recent years of judicial behaviour, procedure, and law generally operating in ways egregiously inimical to compassion. There were accounts of judges who sadistically humiliated those before the bench; of barristers who re-traumatised vulnerable witnesses; and of legal doctrines that turned a blind eye to suffering.

And, the relationship between law and compassion had, I knew, exercised many thinkers over the years. Shakespeare had Portia say to Shylock in his suit against Antonio for a ‘pound of flesh’ in The Merchant of Venice that ‘mercy seasons justice’. Judith Resnik, Professor at Yale Law School asks whether compassion should be an attribute of judges. Indeed, I’d sought to address some of these issues in co-organising a symposium on law and compassion at the Institute of Advanced Legal Studies, London, in July 2015, which led to my guest-editing of a special issue of papers on the topic for an international journal.

I wanted to ask Geshe Tashi, who I’d not met before, a few questions about compassion and judging. But, I’d other personal reasons for attending. I’d encountered some recent problems in a working relationship with a colleague, perhaps ironically in the ongoing research on compassion and law.

My role as a Research Fellow on a fixed-term three-year contract required me to work with colleagues. I had invited this much younger scholar, who had come straight out of graduate studies and had been working on dignity and human rights, to join me on some projects. He seemed knowledgeable and analytical. I involved him in co-authored publications, a grant application, conference organising, research groups, and prospective research plans. I also believed we had developed a friendship, inviting him to join me and others in social activities. He had also supported a complaint that I made about bullying and harassment by management, which included a concern about management’s discriminatory treatment of colleagues.

Some way into that collaboration it became clear, however, that my colleague’s approach to punctuality, accountability, and quality were not only different to my own standards as a barrister but could jeopardise working relations with other people with whom we could reasonably expect to work. When I pointed out to him that it was important to address punctuality, accountability and quality for those reasons, he took the observations very personally – which had not been my intent. He was a sensitive person, who had experienced serious mental health issues, so I was keen to ensure that when I saw him next it was on a better footing.

The course might help to gain insight into that interpersonal conflict. The conjunction of ‘wisdom’ with compassion might also offer a corrective to my own risk of an intellectualised approach to compassion in my own research, which, can simply be an extension from one’s personal practice of compassion generally.

Three-and-a-half years on from my first visit to Jamyang, when I was practising for a brief time as a therapist (which helped integrate compassion into my work), and almost four months after my symposium on law and compassion, there are thirty of us in the former courtroom, arranged mostly in neat rows on meditation cushions on the floor. Others sit in chairs along the sides.

The room is the largest in the former court complex, built in 1869 in Gothic Revival style.

The room is almost square in shape. Its smooth white walls rise to a dark, wooden vaulted ceiling. High mullioned windows admit light on three sides. Raised on a dais where the judge would once have sat is the large gilded Buddha. On either side are neat, colourful rows of Tibetan prayer booklets. A large Tibetan Buddhist thangka and a photo of one of the teachers of the lineage hangs on each side of the Buddha. The other three walls of the room carry more thangkas and large reliefs of scenes from the Buddha’s life, carved in Portland stone.

While the bench where the judge sat has been replaced by the Buddha statue, the original wooden canopy which covered the judge remains. The building carries further reminders of the building’s former use: including signage indicating a room for counsel and an entrance for the public.

I sit within feet of the former site of the dock. The floorboards there are deeply worn, rubbed down by the nervous feet of numerous defendants.

The course begins, not as one might expect in a university lecture with a definition of compassion or wisdom. Instead, we are advised to think about the importance of setting a positive intention and concluding with a positive dedication. What is ‘positive’ is not explained. This is not unusual in the Tibetan Buddhist courses I’ve attended. But ‘positive’ is counterposed, however, to getting “carried away by the day’s activities” or “not being very sure of our intention”.

We are told that positive intention is related to compassion because both are mental activities. In his halting English, Geshe Tashi explains that while compassion “may occur very naturally…to maintain…to have consistency…we need to train the mind.” We are then enjoined to consider the dedication; a brief review of whether we have met our intention. We are told that meditation can calm the mind. “Another mental state to help cultivate compassion: meditation”, adds Geshe Tashi. So far, so Buddhist. But no definition of compassion, or wisdom. We break for mid-morning refreshments.

Fortified by some strong coffee we embark on the second session before lunch. But to put words into action, we start first with a short silent meditation and invitation to reflect on our intention. The talk then resumes, titled ‘Enhancing compassion’. Geshe Tashi informs us that “it will be helpful to know how we relate to others, in our emotional world”. There is still no definition of compassion. Instead, the approach so far may be a preparing of the mental soil before any seed can be gestated. Were we to receive a definition first, we might think we’ve nailed compassion, understood, got it. We are required to consider first our own intention, then our own way of relating to others.

The talk skips to distinct observations: “If no concentration, focus, it’s very difficult to have awareness…we ignore, suppress, brush aside…This is really helpful to enhance compassion…to relate to others.”

When it comes to the actual practice of compassion, “it is one-to-one”, Geshe Tashi adds. “If I’m going to practice…to all living beings, it will be abstract. There will be no empathy”, he says. It returns us to the importance of understanding self in relation to an observable other.

As I sat there, I also realised that I was also irritated with my colleague because his communication about compassion (and concepts that he wished to link to discussion of compassion, such as vulnerability and dignity) often seemed to lose any sense of how it related to another human being. Instead, it seemed abstract, operating only in an intellectual realm. At times, I wondered whether his interest reflected, among other things, deeper personal unresolved issues.

My colleague seemed to suffer from anxieties which affected his behaviour towards others. On one occasion, he arrived very late for pre-arranged work on the day of the symposium – causing significant inconvenience and offering no apology.

The other-regarding aspect of Buddhist teachings on compassion is so deeply engrained in the literature that my colleague’s communication sounded a discordant note; apparently inconsistent with what we were about in the research on compassion and law.

Geshe Tashi goes on to talk of the importance of motivation to sustaining compassion. It is a point generally ignored in much western analysis of compassion, which treats compassion as an instant event, immediately accessible: like a sparkplug started by the ignition switch of our will. However, compassion may require a continuous flame of engagement – which can be supported by an underpinning motivation. This might seem less obvious in a one-off court encounter, but some cases may require lengthy trials or involve laws, such as those pertaining to access to children or wardship proceedings, where judges return again and again to matters affecting the parties. It is easy to anticipate that sustaining compassion, too, may require a preserving of self-resource to avoid ‘burning out’.

But our observation, too, can be trained according to Buddhism. “Cultivation of equanimity” will be a very important step, Geshi Tashi says. Researchers on the related concepts of empathy, sympathy and compassion acknowledge the risk for judges in similarity bias: identifying with those like us. It is one reason, as Professor Neal Feigenson suggests in relation to sympathy (a near-relative of compassion), to seek to avoid similarity bias disrupting justice. Yet, Geshe Tashi’s lesson on the need to train against this tendency offers a useful corrective. Being aware of our biases and acting fairly by keeping them in view and in check is foundational to any professional behaviour towards people from different walks of life.

It is not until the end of the day’s teaching, leavened with several short meditations that I have the opportunity to ask Geshe Tashi whether and if so how, from a Buddhist perspective, compassion might be brought to the role of judging. I had found nothing specifically on this topic in the literature on Buddhism. Many texts and commentaries on Buddhism located compassion within the field of ethics.

Geshe Tashi’s initial response is perhaps apt: asking what I mean by judging. “Resolving a dispute between two parties”, I reply. Perhaps given the fundamental role of compassion in Mahayana Buddhism, his reply was predictable: “Compassion must be involved in judging.” He prefaces his remark by saying that judging always involves ethics, and that without compassion ethics is difficult.

And then, looking squarely at me he says that there is a “nice statement” in the Dhammapada – the collection of the teachings of the Buddha – along the lines: “one is one’s own refuge or saviour; one is one’s own enemy”.

I’d encountered another senior lama years before who used a similar direct gaze. When I asked him what was the most important lesson he’d learned from his years of meditation, he turned to me and looked me straight in the eye: “To see reality as it really is, without projection”. Those communications – direct, simple, and ego-excoriating – have been amongst the most profound lessons I’ve learned.

To recognise that one can be one’s own refuge or enemy brings us back to examining ourselves, and our capacity to self-sabotage or improve. In a sense, we are all our own judges. But if we lack such judicious insight, we may be deficient judges of others. Wisdom, Geshe Tashi added, will grow through contemplation, allowing us – in borrowing from the Tibetan word for wisdom ‘sherab’ – to “crack our mistake(s)”.

This course on compassion and wisdom underscored the risk of treating compassion only as an intellectual concept, whose definition alone might provide a passport to being able to understand and alleviate the suffering of others. It brought it back to the self, and one’s own situatedness and capacity; where compassion can be cultivated through mind-training. The course also threw light on the potential place of compassion in judging.

Certainly, a system of laws needs to do more than simply be compassionate. It needs to remind people that they will also be held accountable if they act outside social norms, particularly where they have a choice and their choice harms another or others.

There are many views of compassion. Perhaps its greatest risk lies in being appropriated by the self-righteous, by those who would take the high moral ground like Dickens’ Mrs. Jellyby in Bleak House, whose grandiose, all-consuming philanthropic plans abroad blind her to the needs of those closest to her. Such claimed-compassion lacks nuance, lacks wisdom of the social context in which humans must attend to the suffering of themselves and others amidst the myriad of other matters that enrich, disrupt or destroy lives. Such a view insists on compassion for all, at all times; irrespective. It lacks wisdom.

I also came from the course realising that the conflict I’d been involved in at work was complex. I’d contributed to a reaction from a colleague which later upset me. That colleague escalated the conflict in subsequent days, in an apparent attempt to vindicate his position in the eyes of other colleagues while also insinuating poor judgement on my part. It prompted me to issue a terse concern about the tone, content and manner of the communication, which ultimately led to his rupturing of our working relationship.

With hindsight… wisdom, I might have acted differently. But equally, my colleague might have reacted less out of intellectualised self-righteous grandstanding. I may not have granted him sufficient understanding of his situation, nor considered the merit and power of forgiveness and reconciliation. A quick response, made under pressure, stalked by ego defence, and its handmaiden fear, prevented me from a 20-20 vision response to that colleague. And, I suspect that such mental obstacles also interfere with the personal exercise of compassion.

But the course also brought home that compassion requires wisdom with reference to the social. Judging can involve compassion, but with an ethical underpinning. It is necessary to distinguish what is cognizable suffering and what is not. It requires wisdom: not misdirected, mawkish compassion to every distress, universally, without consideration of what is practicable. And, to talk of compassion with any personal investment in understanding that concept requires both an honest examination of oneself and awareness of the emotions of others.

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Afterword

Shortly after my return from the course, it transpired that management at the University exploited the rupture in the relationship between my colleague and myself to make a counter-complaint to my complaint of bullying and harassment. This was of little surprise to me and the union which had been representing me in my initial complaint: it’s a common tactic by employers when facing such complaints and was also consistent with the bullying behaviour of management. I subsequently initiated legal proceedings against the employer for unfair dismissal, discrimination and victimisation which I brought to a satisfactory conclusion. I was later appointed to one of the leading national centres for legal research in the United Kingdom. I also enjoyed a part-time return to law teaching at another university. With the help of the Law and Compassion Research Network, I organised several further symposia on law and compassion with judges, lawyers, and academics. I gave papers at conferences, published several more articles, and edited a special issue of an international journal on law and compassion. In 2018, Geshe Tashi left Jamyang, at the invitation of the Dalai Lama, to take up a position as Abbot at Sera Mey Monastery in India. The Centre appointed a new teacher. I wrote to my colleague while still at the university to re-connect but he did not respond. I haven’t heard from him again. I miss the positive connections we had together. Notwithstanding the evident rupture in our relationship, I hope that someday it might be repaired. I continue to visit Jamyang regularly, to meditate and write, and to try to replenish the cultivation of wisdom and compassion.

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Acknowledgements

Thanks to Gareth Tweedie, Steve Wale, Ani Marta Maria Bellini, and, as ever, Karen Bensusan, for comments on drafts of the article.

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© Dermot Feenan 2019