Understanding Law and Emotion

Abstract

Understanding the contributions and the implications of law and emotion scholarship requires an acknowledgement of the different approaches within it. A significant part of law and emotion scholarship is focused on arguing for the relevance of emotion and on identifying emotion in legal processes and actors. Other parts of it venture further to ask how law can affect the expression and content of emotions themselves. This scholarship challenges legal positivist foundations (law as rational and objective), as well as some other established divisions in thinking, both in law, and more generally in the history of ideas (reason vs. emotion, the private vs. the public). The other important factor, which this article explores, is the methodology employed by law and emotion scholarship.

Keywords

emotion law methodology

Introduction

To understand law’s relationship with emotion is no easy task. While law names emotions it deals with them only obliquely (Moran, 2000, p. 783). Emotions are not considered fit for the study of law. Considering why this is so can be interesting for all scholars of emotion.

To some extent law is not alone in its scorn of emotions. Indeed the history of ideas has been dominated by a seemingly impenetrable distinction between reason and emotion, which not only sharply distinguishes between the two, but values the former over the latter. Defining the relationship between reason and emotion has a long tradition dating back to the ancient Greek philosophers. While Plato saw emotions as obstructions to the attainment of our true rational selves, Aristotle believed that a true understanding of the world around us could not be achieved without reference to our emotions. The debate, on both sides, has remained prominent in the history of ideas ever since. At the heart of the debate lies the question of how we understand emotions themselves. The dominant view has been that emotion should be relegated away from the important sphere of public discourse on the grounds that it is chaotic, unpredictable, and can therefore too easily lead us into error. However in reality a diverse number of conclusions have been reached about emotions. On the one hand, emotions have been seen as mere bodily physical sensations, and on the other, as expressions of our knowledge, ethics, and value systems. Emotions are on the one hand seen as phenomena that distract our purposes and lead us astray, or, on the other hand, instruments that fine- tune our thinking and help us to make “rational” choices. If we see our emotions as devoid of meaning, as physical urges that can lead us into overreactions, as blind passions, then one is more readily attracted to a view that emotions should be exorcized from any role in public life. On the other hand, if we accept a more “cognitive” view of emotions, as purposeful aids to making ethical and rational choices, then we are not threatened by an idea that emotions are, and should be an integral part of public decision making (see Barbalet 1998; Calhoun & Solomon, 1984; Evans, 2001; French & Wettstein, 1998; Oatley & Jenkins, 1996).

Law and emotion scholarship makes a contribution to these important conversations. Its importance lies in asserting not only that emotions are an important part of human action and thinking (a cognitive approach), but also that they do, and should, occupy an important and legitimate role in public life. Furthermore via these assertions law and emotion scholarship also contributes to the critical project of challenging the positivist rhetoric of law. The implications of the scholarship therefore are not insignificant. However to truly evaluate it, the scholarship needs to be broken down much more than it has previously been, and in particular, we must acknowledge the importance of disciplines and methodology to the analysis.

This article is intended as an overview of the law and emotion scholarship, and of its analysis. The article will begin by outlining the ways in which law (theory) thinks about emotion. While positivism (with its rejection of common law and natural law theory) bars emotion from law, critical jurisprudence¹ (with its rejection of unifying narratives, its focus on identity, and, its rejection of objectivity) makes room for it. The article will also show the ways in which legal practice has moved in directions that focus emotion much more than traditional adversarial dispute resolution (comprehensive law movement). This discussion will be followed by a general outline of law and emotion scholarship, its different contexts (legal doctrines and legal actors) and its different effects (descriptive, reforming, normative). Finally the article will consider how we are to understand this scholarship. What are its problems and its merits, how does it contribute to the aims it seeks (both practical and theoretical). To answer this question I consider not only the area of law (criminal vs. civil), and its effects, but also its methodology (social science vs. humanities).

How Law Thinks About Emotions

Early positivists such as Jeremy Bentham and John Austin aimed to develop an intellectual framework in which law could be seen as rational, modern, and scientific. To achieve this they disputed that law should be linked to morality and rights (natural law) and challenged the claim that law could consist in unwritten and immemorial custom found in communities by the judge (common law theory). Instead, they wanted law to be associated with objectivity, certainty, and neutrality (Davies, 2002; Lee, 1989). Modern positivism continues to operate inside this paradigm, unified under two central assertions: that law is law as long as it is created in the approved political way, and that law and morality are and ought to be separate from one another.² One of the many consequences of this framework is the exclusion of emotion from law.

Critical jurisprudence has challenged this view of law and has contributed to an emotional discourse both generally and specifically. To begin with, the general, critical jurisprudence, as part of the postmodern tradition, challenges “metanarratives”.³ In so doing, it aims to liberate “suppressed narratives” and “subvert dominant paradigm[s]” (Cook, 1992, p. 754), and in this process make room for alternative ways to understand law. Such an approach necessarily includes emotion. Furthermore, a central argument common to all strands of critical jurisprudence is its challenge to the idea of objectivity. For positivists, the claim that law can be objective (no matter how that is understood [Coleman, 1995]) is central to the legitimacy of law. Critical jurisprudence challenges this claim from four distinct perspectives: critical legal studies (CLS) asserts that law is political; feminism that it is gendered; critical race theory (CRT) that it is racial; and queer theory, that it is heteronormative. In mounting these challenges, critical jurisprudence also undermines positivist claims that the law is value-neutral, objective and purely rational.

As well as these general arguments, critical jurisprudence has developed a body of scholarship that has explicitly demanded an emotional engagement. This scholarship centralizes the subject of law and the importance of identity based on sex, gender, race, and sexuality (Balkin, 1993; Barbalet, 1998, pp. 11–12). Related to this, is the use of the methodology of storytelling,⁴ a method that demands that law engages with the way its processes impact upon real individuals rather than abstract entities or categories. It demands that law (in practice as well as in theory) take into account “existing social and legal arrangements and actual human behavior” (Massaro, 1989, p. 2125). Furthermore feminism’s general project of making women’s experiences central, rather than marginal, to the way law thinks and acts has been central to the development of an emotional point of view in law, if nothing else by the long association of women with emotion (Mendus, 2000). This has been further assisted by the feminist project of bringing the private sphere, laden with emotional content, into public focus.

The previous discussion shows the ways in which theoretically traditional jurisprudence, as dominated by positivism, excludes emotion, and in opposition, all of the ways that critical jurisprudence makes room for it. Let me now turn to more specific ways that emotion has become part of legal theory and practice.

Law and Emotion Scholarship – Overview

The legitimacy of emotion in law has received its greatest boost from the development of a specific law and emotion scholarship. During the last two decades, a small group of legal scholars has begun to probe the scope of emotions in law. This scholarship has made substantial contributions to the way we think about the law. First and foremost the scholarship has challenged the exclusion of emotions from law, arguing that law must recognize and include the rich normative depth of emotions (Goodrich, 1996; Peterson, 1996, 1998). The scholarship has developed to include more detailed work which has illuminated the effect of emotions on different legal actors such as judges (Feigenson, 1997; Little, 2002; Nussbaum, 1996), juries (Douglas, Lyon, & Ogloff, 1997; Myers, Lynn, & Arbuthnot, 2002), lawyers (Bandes, 2006), and on witnesses and victims (Bandes, 1996). It has also explored emotions in different legal contexts such as in criminal law (Nussbaum & Kahan, 1996), in family law (Huntington, 2008), in contract law (Keren, 2010), in domestic violence law (Becker, 2002; Seuffert, 1999), and sexual harassment law (Goodrich, 1998). The scholarship has also isolated the existence of specific emotions in law, for example: fear (Bandes, 2004), disgust (Kahan, 1999; Nussbaum, 1999), shaming (Massaro, 1991), empathy (Henderson, 1987), mercy (Murphy & Hampton, 1998; Nussbaum, 1993), love (Goodrich, 1996, 1998, 2002, 2006; Peterson, 1996, 1998; Seuffert, 1999) and hope (Abrams & Keren, 2007).

Alongside, and in partnership with this scholarship, practical approaches have developed in different jurisdictions which have accepted the important role that emotions play in the thinking and practices of law (comprehensive law movement). Practices such as problem-solving courts and circle sentencing encompass therapeutic and restorative justice theories and practices (Strang & Braithwaite, 2001), and these consider “extra-legal” factors like emotions as essential to their operation and effectiveness (Daicoff, 2005).

Law and emotion scholarship has developed to an extent where we can discern a variety of approaches within it. Terry Maroney (2006) identifies six commonly combined approaches: the emotion-centred approach (how an emotion is and should be reflected in law); the emotional phenomenon approach (how an emotion has been and should be experienced in law); the emotion theory approach (how emotion and theories of emotion are reflected in law); the legal doctrine approach (how emotions are reflected or should be reflected in legal doctrines); the theory of law approach (how emotions and their theories are reflected in theories of law); and the legal actor approach (how legal actors are influenced by emotions).

Kathryn Abrams has characterized the scholarship as embodying three different but not necessarily exclusive phases which she has labelled: recognition, reconnaissance, and regulation (Abrams, 2009). The recognition work is the general critical scholarship’s challenge to the objectivity of law discussed earlier, but also includes the scholarship which acknowledges the role that emotions have on the work of legal actors. Reconnaissance scholarship involves the importation of emotion scholarship from other disciplines into legal processes in an attempt to illuminate aspects of law which were not previously visible. The third phase, regulation, involves using the “emotional” intelligence gained in law and emotion scholarship to influence the direction of law. As Abrams puts it, law and emotion scholarship has developed so that the question is not so much “should or shouldn’t a particular emotion be recognized through law but how, when, and—perhaps, most importantly—through what kinds of legal interventions” (Abrams, 2009, p. 304), can the law affect emotions (express, reflect, channel, script, cultivate, or destroy them).

Understanding Law and Emotion Scholarship

Law and emotion work is either seen as marginal and irrelevant to the “real” task of law, or alternatively, is received with suspicion and caution. For example, in relation to storytelling, both Paul Gewirtz (1996) and Tony Massaro (1989) have warned against “excessive emotion” and “unguided emotion.” In relation to judging, Martha Nussbaum has stated that to be useful, emotion must be tethered to evidence (Nussbaum, 1996, p. 30). Restorative justice has been criticized for demanding “compulsory compassion” in cases where it is not only inappropriate, but downright harmful (Acorn, 2004). In relation to the scholarship as a whole, Carol Sanger has described “legislating with affect” (2013) as a cheap crowd pleaser with the potential to be misused. She has warned that it constitutes a general tendency in society of an “increasing socialization into having or at least displaying appropriate emotional responses in situations once unconnected to emotional involvement” (Sanger, 2001, p. 109). Sanger has called for more caution and deliberation when we consider the legitimacy of law’s role as a means of “cultivating specific emotions” (Sanger, 2013, pp. 62–63).

These criticisms have been taken up by Kathryn Abrams and Hila Keren in their important article “Who’s Afraid of Law and Emotions” (2010). Returning to the earlier categorization of the aforementioned scholarship by Abrams, here the authors speak of three moments in the scholarship. The first of these moments, they claim, was aimed at challenging the assumptions of legal rationality and argued instead that emotions not only already existed in legal processes but were a means by which legal processes could be improved. The next moment involved an engagement with other disciplines to further understand not only how and where the emotions existed but to also try to understand the emotions more deeply. The next moment, which is the “problematic stage” is when the scholarship began to investigate how law could affect, shape, and script emotions; for example, how law can create forgiveness and reconciliation (Minow, 1998), and how it can “cultivate hope” (Abrams & Keren, 2007). They describe this scholarship as taking a normative turn and thus challenging some fundamental principles of law.

As the authors note, the poor reception of the scholarship should not be taken for granted. For example it is not the case that all interdisciplinary scholarship in law is relegated to the margins. For example legal scholarship such as behavioural law and economics, and law and neuroscience, are received as legitimate, and this is telling. The reception of the law and emotion scholarship therefore needs explaining. At the heart of the explanation is the binary of reason and emotion discussed earlier. It is exactly because the scholarship legitimates emotion, challenges the dominance of reason, and with it challenges the private and public divide (and the dominance of positivism), that it has not been altogether welcomed.

The first hurdle therefore is the study of emotion itself. Despite the acceptance of its cognitive importance, emotions are still predominantly seen as “ephemeral and deeply internal” (Crawford, 2000, p. 118), and therefore difficult to measure and understand. This then has a number of reverberations. One is that accepting the importance of emotions automatically leads to a fear that reason is abandoned, and in law this will mean that decisions will degenerate into a series of political compromises and undemocratic opinions. Another is that acknowledging emotions will lead to an unwelcome intrusion into the private sector. This is particularly evident as a problem in some areas of the law. For example in family law, Abrams argues there is a tendency to want to keep the emotions at play as private (Abrams, 2009, p. 308). And in contract law, where the presumption against the legality of promises made in the domestic sphere persists because of a fear that acknowledging emotionally motivated promises will change the nature of domestic relationships and the “world of gift and exchange forever” (Eisenberg, 1997; Keren, 2010). A further reverberation goes to the desire of law to be seen as a scientific discipline rooted in reason and objectivity. A focus on emotion and its association with the uncertain, unmeasurable, unquantifiable, as well as its association with the private world of women, children, family, altruism, and similar, contradicts the vision of rational/objective law which Jeremey Bentham and John Austin established. However, as important as these explanations are, they are not complete; after all, emotions have been legitimately studied for a long time in other disciplines such as psychology and philosophy.

The answer may lie therefore in how we study emotions. Abrams and Keren argue that it is not just the subject matter, but the methodology of the scholarship that serves to constrict its acceptance. Exploring this a little further we can see that law and emotion scholars are asking questions about emotions which are taking them away from accepted social scientific methodology and towards the humanities.⁵ Hanne Peterson has argued that the shift in our understanding of law must include some of the language of emotion traditionally excluded which can be found in cultural forms (Peterson, 1998, p. 22). Lawyers are not alone in this. In the discipline of politics and international relations for example, Bleiker and Hutchison (2008) argue that a true understanding of the role of emotions needs to go beyond social scientific approaches and embrace analysis that occurs in the humanities. This means accepting as legitimate sources such as art, music, and literature, and it means accepting knowledge which is neither objective nor measurable.

The issues this raises come to the fore by considering the work of Peter Goodrich on the relationship between law and love (1996, 1998, 2002, 2006). In keeping with early law and emotion scholarship, a key element of Goodrich’s work is a call to reject the exclusion of emotion in legal thought for the sake of both. The exclusion of emotion from law, he argues, reinforces the private and public distinction, and the male foundations of the legal system. Moreover the prohibition of Eros from law leads to either a repressed or a deviant sexuality. Goodrich’s work goes one step further; he attempts to extract from predominately literary sources the actual rules that govern, or should govern, love. Thus he argues not only for the inclusion of love but also the inclusion of fiction in law. Speaking of the courts of love reported in Andreas Capellanus’s Tractatus et de Amoris Remedio (Walsh, 1982), he argues that:

[W]hether real or imagined, [they] produced judgments as jurisprudentially relevant, and useful, as more traditional legal fictions. The same lessons emerge from the jurisdiction and substantive rules of the courts of love regardless of their ontological status. (Goodrich, 1996, p. 636)

In this project then Goodrich not only seeks to unite law with emotion, but also, to unite law, seen predominantly as a social-scientific discourse, with literature, a humanities-based discourse. Literature for Goodrich forms part of what he refers to as a minor jurisprudence, thus attributing it with at least some force of law (1996).

Breaking down the law and emotion scholarship into the methodology used helps to understand its reception. Goodrich’s work is much more disruptive than law and emotion work where emotion is already an established part of the legal doctrine (criminal law), and which uses established social scientific methodology, such as, for example, measuring emotions among different legal actors. This work is much more acceptable because it mimics established social science methodology of “measurable indices and replaceable methods that confer the epistemological benefits of ‘hard’ science” (Abrams & Keren, 2010, p. 2025). Goodrich’s work, on the other hand, is much more unsettling. Not only because he is asserting that love is meaningful to law, but also because he is asserting the centrality of literature in establishing legal meaning.

Conclusion

Law and emotion scholarship has described the ways in which emotions have impacted on legal actors and legal processes by engaging with theories of emotion and theories of law. It has designed methods to integrate emotions in legal processes, and much more. One of the consequences of this is that law and emotion scholarship argues for a different view of law itself.

In relation to our understanding of law, accepting a dialectic between law and emotion inevitably leads to a questioning of the positivist rhetoric of law. This rhetoric is persistent. It permeates society’s understanding of law. Critical jurisprudence as a whole, has gained much ground in wearing this away. However, the resistance to emotion – keeping in mind the warnings that have been sounded – must be further overcome as its inclusion has the potential to achieve a more realistic and legitimate legal system.

The way in which law and emotion scholarship has played out so far also has the potential to generate some interesting insights into our understanding of emotion and how we study it. Using law as a lens for understanding emotions provides an insight into emotions as a public rather than just a private phenomenon. Furthermore keeping in mind Goodrich’s work, law and emotion scholarship has the potential to breach the gap between some deeply entrenched divisions in the way emotion is considered by the different disciplines of science, social science, and humanities. However I speak here only of future possibilities as the relationship between law and emotion remains under-theorized, with much more work needing to be done before its many and varied impacts can be felt.

Footnotes

Notes

References

Abrams

(2009). Barriers and boundaries: Exploring emotion in the law of the family. Virginia Journal of Social Policy and the Law, 16, 301–321.

Abrams

Keren

(2007). Law in the cultivation of hope. California Law Review, 95, 319–382.

Abrams

Keren

(2010). Who’s afraid of law and the emotions? Minnesota Law Review, 94, 1997–2074.

Acorn

(2004). Compulsory compassion: A critique of restorative justice. Vancouver, Canada: University of British Columbia Press.

Balkin

J. M.

(1993). Understanding legal understanding: The legal subject and the problem of legal coherence. Yale Law Journal, 103, 105–176.

Bandes

(1996). Empathy, narrative and victim impact statements. University of Chicago Law Review, 63, 361–412.

Bandes

(2004). Fear factor: The role of media in covering and shaping the death penalty. Ohio State Journal of Criminal Law, 1, 585–598.

Bandes

(2006). Repression and denial in criminal lawyering. Buffalo Criminal Law Review, 9, 339–390.

Barbalet

J. M.

(1998). Emotion social theory and social structure: A macrosociological approach. Cambridge, UK: Cambridge University Press.

10.

Becker

(2002). The passions of battered women: Cognitive links between passion empathy and power. William & Mary Journal of Women & Law, 8, 1–72.

11.

Bleiker

Hutchison

(2008). Fear no more: Emotions and world politics. Review of International Studies, 34, 115–135.

12.

Calhoun

Solomon

(1984). What is an emotion? Classical readings in philosophical psychology. New York, NY: Oxford University Press.

13.

Coleman

J. L.

(1995). Truth and objectivity in law. Legal Theory, 1, 33–68.

14.

Cook

A. E.

(1992). Reflections on postmodernism. New England Law Review, 26, 751–782.

15.

Cotterrell

(2003). The politics of jurisprudence: A critical introduction to legal philosophy (2nd ed.). Wiltshire, UK: Lexis Nexis.

16.

Crawford

N. C.

(2000). The passion of world politics: Propositions on emotion and emotional relationships. International Security, 24, 116–156.

17.

Daicoff

(2005). Law as healing profession: The “Comprehensive Law Movement.” New York Law School Clinical Research Institute Research Paper Series 05/06#12. Retrieved from http://cdn.law.ucla.edu/SiteCollectionDocuments/workshops%20and%20colloquia/clinical%20programs/susan%20daicoff.pdf

18.

Davis

(2002). Asking the law question: The dissolution of legal theory (2nd ed.). New South Wales, Australia: Lawbook.

19.

Douglas

K. S.

Lyon

D. R.

Ogloff

J. R.

(1997). The impact of graphic photographic evidence on mock jurors’ decisions in a murder trial: Probative or prejudicial? Law and Human Behaviour, 21, 489–509.

20.

Eisenberg

M. A.

(1997). The world of contract and the world of gift. California Law Review, 85, 821–866.

21.

Evans

(2001). Emotions the science of sentiment. Oxford, UK: Oxford University Press.

22.

Feigenson

N. R.

(1997). Sympathy and legal judgement: A psychological analysis. Tennessee Law Review, 65, 1–78.

23.

French

Wettstein

H. K.

(Eds.). (1998). Midwest studies in philosophy, XXII (1998) the philosophy of emotion. Notre Dame, Indiana: University of Notre Dame Press.

24.

Fuller

L. L.

(1957). Positivism and Fidelity to Law – A Reply to Professor Hart. Harvard Law Review, 71, 630–672.

25.

Gewirtz

(1996). On “I know it when I see it.” Yale Law Journal, 105, 1023–1047.

26.

Goodrich

(1996). Law in the courts of love: Literature and other minor jurisprudences. London, UK: Routledge.

27.

Goodrich

(1998). The laws of love: Literature, history and the governance of kissing. New York University Review of Law & Social Change, 24, 183–234.

28.

Goodrich

(2002). Erotic melancholia: Law literature, and love. Law & Literature, 14, 103–129.

29.

Goodrich

(2006). The laws of love: A brief historical and practical manual. London, UK: Palgrave Macmillan.

30.

Hart

H. L. A.

(1957). Positivism and the Separation of Laws and Morals. Harvard Law Review, 71, 593–629.

31.

Henderson

(1987). Legality and empathy. Michigan Law Review, 85, 1574–1654.

32.

Huntington

(2008). Repairing family law. Duke Law Journal, 57, 1244–1319.

33.

Kahan

D. M.

(1999). The progressive appropriation of disgust. In Bandes

(Ed.), The passions of law (pp. 63–79). New York, NY: New York University Press.

34.

Keren

(2010). Considering affective consideration. Golden Gate University Law Review, 40, 165–234.

35.

Lee

(1989). The positivist science of law. Aldershot, UK: Avebury.

36.

Little

(2002). Adjudication and emotion. Florida Coastal Law Journal, 3, 205–218.

37.

Maroney

(2006). Law and human emotion: A proposed taxonomy of an emerging field. Law and Human Behaviour, 30, 125–133.

38.

Massaro

T. M.

(1989). Empathy, legal storytelling, and the rule of law: New words old wounds. Michigan Law Review, 87, 2099–2127.

39.

Massaro

T. M.

(1991). Shame culture and American criminal law. Michigan Law Review, 89, 1880–1944.

40.

Mendus

(2000). Feminism and emotion: Readings in moral and political philosophy. New York, NY: St Martin’s Press.

41.

Moran

R. F.

(2000). Legal recognition of gay and lesbian relationships. Australasian Gay and Lesbian Law Journal, 3, 57–66.

42.

Minow

, (1998). Between vengeance and forgiveness: Facing history after genocide and mass violence. Boston, MA: Beacon Press.

43.

Myers

B. S.

Lynn

Arbuthnot

(2002). Victim impact testimony and juror judgements: The effects of harm information and witness demeanour. Journal of Applied Social Psychology, 32, 2393–2412.

44.

Murphy

J. G.

Hampton

(1998). Forgiveness and mercy. Cambridge, UK: Cambridge University Press.

45.

Nussbaum

(1993). Equity and mercy. Philosophy and Public Affairs, 22, 83–125.

46.

Nussbaum

(1996). Emotion in the language of judging. St John’s Law Review, 70, 23–30.

47.

Nussbaum

(1999). “Secret sewers of vice”: Disgust, bodies and the law. In Bandes

(Ed.), The passions of law (pp. 19–62). New York, NY: New York University Press.

48.

Nussbaum

Kahan

(1996). Two conceptions of emotion in criminal law. Columbia Law Review, 96, 269–374.

49.

Oatley

Jenkins

J. M.

(1996). Understanding emotions. Oxford, UK: Blackwell.

50.

Peterson

(1996). Informal law and/of love in the European community. In Peterson

(Ed.), Home knitted law norms and values in gendered rule making (pp. 114–155). Ashgate, UK: Dartmouth Publishing Co Ltd

51.

Peterson

(1998). The language of emotions in the language of law. In Peterson

(Ed.), Love and law in Europe (pp. 12–26). Ashgate, UK: Dartmouth Publishing Co Ltd

52.

Sanger

(2001). The role and reality of emotions in law. William & Mary Journal of Women & Law, 8, 111–112.

53.

Sanger

(2013). Legislating with affect: Emotion and legislative law making. In Fleming

J. M.

(Ed.), Passions and emotions (pp. 38–76). New York, NY: New York University Press.

54.

Seuffert

(1999). Domestic violence, discourses of romantic love, and complex personhood in the law. Melbourne University Law Review, 23, 211–240.

55.

Strang

Braithwaite

(Eds.). (2001). Restorative justice and civil society. New York, NY: Cambridge University Press.

56.

Walsh

P. G.

(1982). Andreas Capellanus on love. London, UK: Duckworth.