Between passion and senses? Emotional dimensions of legal cultures in historical perspective (original) (raw)
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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