Between passion and senses? Emotional dimensions of legal cultures in historical perspective (original) (raw)
InterDisciplines, 2015
Law and emotions share a complex, reciprocal relationship: Does passion influence law making? Are senses part of the juridical process? Do emotions have anything at all to do with law?1 Law regulates emotional behavior and legal procedures often arouse emotions. But are passions and emotions innately woven into the texture of law? This special issue argues that understanding the debates on, and concepts and perceptions of, emotions is essential to comprehending law in a fundamental and multifaceted manner.
Emotional dimensions of legal cultures in historical perspective
2015
Does passion influence law making? Are senses part of the juridical process? Do emotions have anything at all to do with law? Law regulates emotional behavior and legal procedures often arouse emotions (Posner 1999). But are passions and emotions innately woven into the texture of law? This special issue argues that understanding the debates on, and concepts and perceptions of, emotions is essential to comprehending law in a fundamental and multifaceted manner.
Feelings about Law/Justice. Rechtsgefühle, 2023
Rechtsgefühle (feelings about law and justice) influence legal processes, politics as well as attitudes towards law, and have centrally impacted legal history. Using Rudolph von Jhering’s The Struggle for Law (1872) as a point of departure, the essays explore ‘legal feelings’ as a sensus juridicus – a judge’s effort to make legal norms fit the facts at hand –, as the emotions evoked by laws and legal processes, and as catalysts for legal reforms. Rechtsgefühle prove themselves pertinent with regard to the history of emotions, in respect to neuroscientific approaches to law and calls for computational law, and in terms of the ever thorny topic of how law should differ from politics. The authors argue for a plurality of Rechtsgefühle.
The Wrath of Reason and The Grace of Sentiment: Vindicating Emotion in Law
Law, Reason, and Emotion
Why require Justice to be blind to passions? The standard model of jurisprudence offers two lines of answers: (1) Justice is about formal rationality and judging is essentially reason-giving, while emotions are irrational feelings, so justice is thus blind to passions; (2) Justice ought to be predictable to live up to the rule of law and judges should strive towards impartiality, while passions obscures judgment and instigates prejudice and partiality, so justice should thus be blind to passions, lest it decays into its very opposite. Mainstream jurisprudence also incorporates two major lines of attack against these claims: (3) Detractors argue against (1) that law suffers from indeterminacy and judges from breakfast biases; (4) detractors argue against (2) that equity requires practical reasoning when not empathy, mitigating the rigour of the law. These opinions are all grounded on specific, but often uncritically assumed, accounts of emotion. While (1), (2) and (3) are rooted in an irrationalist approach to emotion; (4) stems from a cognitivist approach to emotion. Both of these approaches are problematic. This paper attempts to shed light on the underlying accounts of emotion and highlights some problematic aspects of them. No matter if you defend (1)-(4), jurisprudents today need a better grasp on emotion in law.
What does anger achieve in law reform that targets discrimination? How does fear limit the scope of migration or refugee law? Should we use disgust to determine what is criminal? Is love the solution in disputes about relationships? Do human rights bring us hope for a better future? In popular consciousness, law is often conceived of as an autonomous system of rules, norms, regulations, and principles. Such a disembodied concept of law tends to divorce sensations or passions from abstract reason. Divorcing law from emotion, however, is futile. From grieving citizens seeking reform to a particular social injustice to heated litigation in courtrooms to calculated judicial decisions, emotion animates the legal system. Emotion is not an unfortunate consequence or effect of an otherwise rational system of law; it is a core feature in how law manifests across times, jurisdictions, institutions, and cultures. Rather than organise this the study of emotion within specific areas of law, this module invites students to think about emotions – both “good” and “bad” ones – as a way to navigate legal debates across disciplines and jurisdictions.
Law, Reason, and Emotion
The emerging interdisciplinary field of "Law and Emotions" brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law's various relations to our emotions and to emotional life: they share a passion for law's passions. 1 They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the generation, the interpretation, and the reception of law. 2 Their scholarship is in part offered as a collective corrective to what they perceive as the legal academy's dominant and ill-conceived bias toward reason and rationalism, when explaining legal phenomena. At least sometimes and to some degree, and sometimes for better while often for worse, according to this body of scholarship, all sorts of legal actors-legislators, judges, jurors, litigants, private contractors, city council members, drafters of constitutions, the authors of universal declarations of rights, and of course lawyers and legal scholars as well-are moved toward our legalistic decisions or our artful legal arguments by the force of our passions, rather than by the moral force of either shared or neutral principles, deductions from the natural law, inferences from past precedent, or a toting of societal costs and benefits. 3
Negotiating Justice and Passion in European Legal Cultures, ca. 1500–1800
Rechtsgeschichte - Legal History, 2017
This article explores two interrelated facets of early modern law and emotions. It first examines the emotional dynamics of negotiated justice in early modern Europe, tackling one of the clearest characteristics of European legal culture in this period. In so doing, it underscores how the complex emotional worlds connected with justice practices that were transactional, negotiable and often explicitly based on the reproduction of society's hierarchies and relationships through settlements and arbitration. Secondly, it moves to consider such changes in legal thought that occurred as critiques of practices of Old Regime justice. Reconsideration of the relations between emotion and law in the Enlightenment occurred as part of a twinned project of the critique of existing practices of law and speculative imaginings of the potential of legislation to influence behaviour and feelings. Innovative accounts of the relation between passions and law were the product of this reconsideration of the status quo. Laws were reconsidered as tools to channel human passions in certain directions. This article explores the place of emotions in legal change in the seventeenth and eighteenth centuries by looking both at the defining practices of early modern justice and how they were the spur for new conceptions of the relationship between legislation and the passions.
Annual Review of Law and Social Science, 2012
The field of law and emotion draws from a range of disciplines in the sciences, social sciences, and humanities to shed light on the emotions that pervade the legal system. It utilizes insights from these disciplines to illuminate and assess the implicit and explicit assumptions about emotion that animate legal reasoning, legal doctrine, the behavior of legal actors, and the structure of legal institutions. In light of law's focus on influencing social norms and on structuring effective and just institutions, one development that holds enormous promise is the growing interdisciplinary interest in collective decision making and in the emotional dynamics of groups. Work in the affective sciences on how emotion and cognition interact is another rich vein for legal scholars interested in the assessment of responsibility and blame, the role of morality in law, and a host of other areas. Another important frontier is exploration of concrete solutions to the problems identified by law and emotion scholars.
What is so ‘Special’ about Law and Emotions?
We are grateful to the editors of the Northern Ireland Legal Quarterly for allowing us to put together this special edition on ‘Law and Emotions’. But what is so special about it? The very existence of such a field of study may appear at first sight to be counterintuitive; as has been so often pointed out, law and emotion have traditionally been seen as polar opposites, the former being based on ‘reason’ and the latter on ‘feeling’. However, this has been shown to be a false dichotomy in a number of respects, being an accurate reflection neither of the way the law is structured and administered, nor of the way emotion works, nor indeed of the way humans live. Indeed, such is the influence of emotion on human behaviour that the relevance of emotion to law has been said to be ‘a point so obvious as to make its articulation seem almost banal’. Be that as it may, the study of law and emotions, though now reasonably well established in America, is less familiar to students and practition...
Emotion and Judicial Management in Civil Law countries, the French example
HAL (Le Centre pour la Communication Scientifique Directe), 2020
How can one reconcile law and emotion and how can one reconcile judges and emotions? It seems to have been admitted, notably following the discoveries of neurosciences, that Descartes was mistaken in distinguishing between body and mind, reason and emotion 1. Reason without emotion leads to bad decisions, pent-up emotions lead to bad intuitions. The Law and Emotion movement has developed in the United States to deepen the importance of emotions in the legal and judicial reasoning 2. In Germany, in the 19th century, the doctrine of legal feeling was introduced by Savigny 3 as well as part of the free law movement 4 ., It was nevertheless severely criticized because it risked leading to arbitrariness 5. However, basing a rule of law on reason alone does not seem satisfactory either. How should we consider the relationship between law, judges and emotion in Descartes', countries 6 ? Without entering into a philosophical debate on Descartes' famous mistake, which is perhaps not a mistake at all (see below), it is important to articulate law and emotion in a civil law judicial reasoning. It is about not succumbing to the "emotional turn" without saving the rational approach through the formal application of a legal rule. This research based
This article focuses on the most recent debates in a certain area of the 'law and emotion' field, namely the literature on the role of affect in the criminal law. Following the dominance of cognitivism in the philosophy of emotions, authors moved away from seeing emotions as contaminations on reason and examined how affective reactions could be accommodated within penal proceedings. The review is structured into two main components. I look first at contributions about the multi-dimensional presence of emotions within ordinary criminal proceedings. Second, I examine work done on the use of criminal trials under the emotionally stressful circumstances of post-conflict societies. In the conclusion I sketch a theoretical proposal for moving the discussion forward.
2017
“Cork up your feelings!” investigates the function of emotion in jurisprudential decision-making. Emotions have always been a puzzling problem in both philosophy and law. In a culture which emphasizes rational agency, emotion seems to be a constant threat to reason and justified beliefs. This seems to be the case especially in Western law where emotion apparently does not play a legitimate role: not for the judge, not for the litigants, nor for any other judicial officer. The thesis addresses the problems posed by emotion in judicial decision-making. It examines what emotions actually are and how they influence processes of decision-making in both productive and problematic ways. Such an examination ultimately reveals that there is an asymmetry between judicial demands for apathy and the actual influence emotions have in decision-making. It shows this by developing and defending an adequate theory of emotion, the so-called perceptual theory, which emphasizes and makes intelligible the positive epistemological import that emotion can have (and often do have) on decision-making. By realizing how emotions work it will be easier to map out realistic demands for emotion-regulation in the courtroom: demands which are both possible and normatively warranted. Thus, the thesis mainly aims at showing how judicial doctrines of apathy are neither possible nor normatively warranted. Thus, it indicates that a change in our understanding of emotion’s epistemological properties should be promoted and institutionalized. The thesis opts for a revised understanding of the nature of emotion that can in effect indicate to what extent emotions influence judgment, to what degree we can control them, and, ultimately, in what respects we should regulate them in judicial practices. The thesis will therefore both examine the present ideals, the tradition it builds on, and possible alternatives, ultimately presenting some pragmatic advice on how the Western justice system could be reformed in order to comply with human emotionality.
Beyond Dispassion: Emotions and Judicial Decision-Making in Modern Europe
Rechtsgeschichte - Legal History, 2017
The conventional image of a judge as a dispassionate person continues to prevail in both popular culture and academic scholarship, despite influential recent research that has clearly demonstrated the inevitable impact of emotions on judicial decision-making. This article provides a historical perspective on what Terry Maroney has called »the persistent cultural script of judicial dispassion« and extends the discussion to modern continental legal systems. By looking at the legal debates that took place on the pages of professional periodicals and academic monographs across Europe, I show that the role of emotions was in fact an important topic in these discussions, with many participants advancing a very positive view of emotions as something that can help the judge arrive at correct decisions. I further argue that there was a specific historical period around the turn of the 20th century when the discussions about the importance of emotions for legal judgment intensified greatly. I associate this trend with the emergence of the German free law movement and examine the influence of their radical ideas on legal scholars across Europe. In particular, I consider the experimental legal model of »revolutionary justice« that was introduced in Soviet Russia following the Russian Revolution of 1917 as an attempt to put the ideas of the free law movement into practice by placing a particularly strong emphasis on emotions in legal judgment. By bringing in the wider social and cultural context, the article provides new explanations for the rise and demise of the »emotional judge« between ca. 1880 and 1930 and the persistence of the »dispassionate« stereotype in the modern era.