One of the most famous stories in the Bible is the judgement of Solomon.1 King Solomon, a man renowned for his wisdom, is faced by two women both claiming to be the mother of a certain child. The King announces his verdict—the child should be cut in two and half given to each claimant. One claimant agrees to this; the other says she would rather let her opponent have the child than see him die. Solomon then awards the child to the second claimant, as she is obviously the real mother. A classic illustration of emotionally intelligent judging—yet the traditional approach is to exclude such matters entirely from the legal sphere!
The present collection has thrown up numerous illustrations of the destructive potential of what might be termed ‘emotional stupidity’ in the legal context. Some of these involve the malign effect of inappropriate emotions, such as sibling rivalry in the context of inheritance disputes, or disintegrative shaming in relation to sex offenders, or the use of dehumanising narratives in end-of-life discourses. Others involve the misunderstandings that may occur when key actors in the legal process, such as lawyers, arbitrators and judges, fail to take proper account of the emotional dynamics of situations with which they are faced. In other situations the problem is not so much the total disregard of emotion as a failure to appreciate its nuances and subtleties, as in the context of the affective family, or the attachments that give rise to complaints of undue influence, or the appropriate response to victims. As against this, we have also seen the positive advantages of an emotionally informed approach, as in relation to the movement for immigrant justice in the United States. All of this suggests that nobody involved with the administration and practice of the law can afford to ignore the need for emotional intelligence. As we shall see, this is an enormous field of study in itself, and there is much work that needs to be done in applying its insights to the realm of law and legal discourse. However, what we can do in this final chapter is to draw on some of the themes identified in previous pages and see if they can provide any pointers as to how this might be achieved. In doing so, we shall begin by looking more closely at the concept of emotional intelligence itself, before seeing how its insights can be applied in the legal context.
The concept of emotional intelligence is a relatively recent construct.2 Its first appearance in the field of psychology seems to have been during the 1960s,3 and it was another 25 years until it made its major impact. A groundbreaking article in 1990 by Peter Salovey and Jack Mayer in the journal Imagination, Cognition and Personality4 was closely followed by Daniel Goleman’s book on the subject,5 and brought the concept of emotional intelligence to the forefront of popular psychology. Since then, the subject has been discussed extensively both at the academic and the popular levels, which in many ways has been both a help and a hindrance to understanding what it is all about.6
Emotional intelligence has been defined in terms of ‘the capacity to reason about emotions, and of emotions [and] to enhance thinking’, and to include ‘the abilities to accurately perceive emotions, to access and generate emotions so as to assist thought, to understand emotions and emotional knowledge, and to reflectively regulate emotions so as to promote emotional and intellectual growth’.7 Though as stated above the topic has spawned a vast amount of academic literature,8 it is by no means an uncontroversial one in scientific terms; in particular, there have been problems in identifying its theoretical basis, in devising ways in which it may be measured, and in mapping it onto existing psychological constructs.9 Nevertheless, it is at least a useful lens through which to view the field of law and legal discourse, and the rest of the chapter will attempt to sketch out ways in which this might be done.
Though there are a number of competing models of emotional intelligence in the field, one of the most influential is that proposed by Jack Mayer, Peter Salovey and David Caruso,10 which identifies four key elements.11 The first of these is the perception of emotion, both in oneself and others; this is said to be the most basic aspect, as it makes all other processing of emotional information possible. The second is the understanding of emotion, in particular the ability to understand the complex dynamics of emotion and the way emotions evolve over time. The third is the use of emotion, in which emotions are harnessed in order to facilitate various cognitive activities to achieve various goals. Finally, there is the management of emotion both in oneself and in others. Whatever one’s views may be as to the usefulness of emotional intelligence as a scientific construct, it will be obvious that all of these factors are of great relevance in the field of law and legal discourse; but how can they best be applied? It is to this question that we must now turn.
How, then, can the law and the practice of the law be made more emotionally intelligent? Two problems come to mind in trying to answer this question. The first is that of applying a human characteristic such as emotional intelligence to non-human abstractions. This can only be countered by the realisation that this can only be done by analogy; when one speaks of ‘law and the practice of the law’ in this context one is thinking in particular of legal actors, in Maroney’s taxonomy,12 including not only judges and professional lawyers but the whole range of actors in the legal drama, including legislators, policymakers, pressure groups and those who seek to influence the development of the law. Second, when we speak of ‘emotional intelligence’ here we are thinking not in terms of an inherent characteristic such as IQ, which one is born with, but as a set of skills that can be honed and developed; were it otherwise, there would be no point in asking the question in the first place.
Bearing this in mind, we can now ask what lessons can be learned from the issues discussed in this collection. In doing so, we shall follow the model of emotional intelligence discussed in the previous section, by considering the four aspects proposed by Mayer and others, namely the perception of emotion, the understanding of emotion, the use of emotion and the regulation of emotion. After this, we shall consider the ways in which these lessons can be applied before asking whether any broader conclusions can be drawn.
It goes without saying that before one can exercise emotional intelligence one has to recognise that there is an emotional dimension to the issue in the first place. In some branches of the law, as we have seen, the existence of that dimension is plain to see, for instance in relation to family law,13 or victims of crime,14 or the practice of mediation,15 or public responses to sexual offences against children.16 In others it is less obvious, for instance in relation to the law of property or the law of succession.17 However, even where it is clear that emotion has some role to play, various problems arise.
The first is the need for those involved to recognise that their own emotions may be a relevant factor in the equation. Someone confronted with a highly emotionally charged situation, such as a family breakdown, may see the problem solely in terms of the emotions of others, without realising that they too may be part of the same problem. Thus, as we have seen decision-makers in these situations may have to navigate between the Scylla and Charybdis of emotional ‘flooding’ (in which too much account is given to the emotional factors)18 and the opposing danger of vicarious traumatisation (in which a thick skin is cultivated in order to keep them at bay).19 Another issue that we have identified is what might be called the emotional wolf in the clothing of the rational sheep. Thus, for instance we have seen how judges in succession disputes may seek to take refuge from the need to confront tricky emotional issues by using established legal doctrines to clothe their decisions in a false veneer of objectivity,20 and how the assessment of risk in the case of sexual offenders may be coloured by emotional factors as much as by actuarial ones.21 The very fact that those involved in these situations may deny the existence of these problems makes them all the more dangerous in the legal context.