Contextualising Law and Emotion: Past Narratives and Future Directions


Contextualising Law and Emotion: Past Narratives and Future Directions



In his seminal work, Emotional Intelligence, the psychologist Daniel Goleman suggests that the common view of human intelligence is far too narrow, and that emotions play a far greater and more positive role in thought, decision-making and individual success than is commonly acknowledged.1 But what has emotion got to do with the law? Very little, according to the traditional view of the matter which decrees that law is, first and foremost, the province of reason. As Maroney pointed out in 2006, the law has tended to operate on the assumption that there is a world of difference between reason and emotion; that the sphere of law admits only of reason; and that, in this sphere, it is essential to keep emotional factors out of the picture.2 Though the law has always had to take account of human emotion,3 the conventional explanation has given it a very restricted scope;4 and, while judges and lawyers may have emotions, one of the key skills that they are expected to exercise is setting those emotions aside, to ensure that emotion does not intrude on reason as the true preserve of law.5

II.The Philosophical Tradition

The perception of law and emotion as essentially mutually exclusive realms has its roots in a broader philosophical tradition whereby, in the words of Robert Solomon, reason and emotion stand in what is essentially a master–slave relationship, the implications being that reason and emotion are essentially distinct; emotion is inferior to reason; and it is the function of reason to keep emotion under control.6 For the Greek philosopher Democritus, one of the functions of wisdom was to free the soul from emotions;7 for the Epicureans and Stoics, the extirpation of emotion was the key to the rational life.8 As late as the seventeenth century, philosophers such as Descartes still held to a rigid distinction between passion and reason,9 their goal being a model of philosophy based on the deductive method developed by Euclid.10 However, others have questioned both the existence of a rigid distinction between emotion and reason, and the subordination of the former to the latter. For Aristotle emotions were not, in the words of Martha Nussbaum,11 blind animal forces, but intelligent and discriminating parts of the personality, closely related to beliefs of a certain sort and therefore responsive to cognitive modification.12 More recently, Oatley, Keltner and Jenkins have argued that emotions are rational in a number of respects; in particular, they are generally grounded in real events, they help individuals to function in a social world, and they inform and guide cognitive processes.13 This ‘cognitive’ theory of emotion—picked up and developed throughout the second half of the twentieth century by a number of scholars14—has now spawned an extensive field of literature in its own right.15 No longer are emotions seen as a hindrance to human behaviour and interaction; on the contrary, a person without emotion is now reviled in popular culture as a psychopath16 rather than revered as a philosopher.

III.Emotion in Law

As in the realm of philosophy, the traditional neglect of emotion in law has not been consistent. In certain contexts, most notably that of criminal law, engaging with questions of emotion is unavoidable, and the same is true for other branches of the law. Emotions play a key role in family law disputes, for instance, and one of the main functions of the law of evidence is to avoid the risk of juries drawing conclusions which might be based on emotional prejudice. Meanwhile, practices such as restorative justice and therapeutic jurisprudence are designed to point the way towards the resolution of disputes in a manner so as to avoid leaving those concerned with a sense of grievance and injustice. Nor has emotion necessarily been regarded as something alien to the practice of law; the famous biblical account of the judgment of Solomon in the First Book of Kings17 is a perfect example, and challenges the assertion that the exercise of emotional empathy has no place in the judicial function.18

Despite this, the actual relationship between law and emotion is one that has largely been ignored until recent years. There have always been those who have argued for a more nuanced view of the subject, ranging from members of the American realist movement, such as Jerome Frank, in the early part of the twentieth century,19 to the advocates of therapeutic jurisprudence in the 1990s.20 However, the last two decades have witnessed a growing interest in the relationship between law and emotion at a more general level. The agenda was set in 1999 with the publication of The Passions of Law,21 an anthology of original essays looking at the role that emotions play, do not play and ought to play in the practice and conception of law and justice. Edited by Susan Bandes, the collection opened with the same author’s ringing declaration that ‘emotion pervades the law’.22 Since then, the relationship between the two has been developed further, and systematic attempts have been made to map out the role of emotion in the law and legal decision-making.23 The relevant literature has also expanded in a variety of directions, with special journal collections24 and other discrete publications, covering a range of diverse fields such as criminal law;25 emotion in judging;26 victims’ rights;27 refugee law;28 hate crimes;29 family law (most notably, divorce and child custody proceedings);30 and aspects of property law.31

Yet, as Maroney herself pointed out a decade ago32 there is still some way to go before law and emotion becomes established as a discipline in its own right,33 and the current edited collection addresses some of the main gaps in the existing scholarship. A number of issues can be identified, the first of which is the somewhat disjointed nature of the work in this field, with different groups approaching the topic from different angles instead of taking a more holistic approach. Mention has already been made of the American realist and therapeutic jurisprudence movements; other groups are also interested in law and emotion from a range of perspectives such as multisensory law, the restorative justice movement, community justice and collaborative law, all operating independently and largely in ignorance of each other.34 Second, though attempts have recently been made to look at the topic from a wider perspective, much of the earlier work on law and emotion tended to focus on criminal justice aspects,35 as well as being somewhat speculative in nature.36 Third, the study of law and emotion has historically been very much a North American phenomenon, and though there is now a growing interest amongst scholars elsewhere, few concerted efforts have been made to raise its profile to a wider audience. Last but not least, a lot more needs to be known about law and emotion in the context of legal discourse. Some work has been done in this area,37 but this is still one of the major gaps in law and emotion scholarship, and an area which needs to be explored.

IV.The Current Collection

The Emotional Dynamics of Law and Legal Discourse addresses these issues in a number of ways, building on a colloquium hosted by the School of Law at Queen’s University Belfast in March 2013 and attended by a number of international scholars who are also contributing here. The aim is to raise the profile of law and emotion outside North America, with a theoretically grounded collection of essays which draws on a range of scholarship and takes the discipline to a wider audience. The collection looks at law and emotion in a much broader legal context, focusing on a range of discrete areas of law across the spectrum of private law, public law, criminal justice and dispute resolution, to show how emotion infuses all areas of legal thought while arguing for a more positive view of the role of emotion in the context of legal discourse. Emotions tend to be noticed in law when they are creating a problem—for example, in the context of crimes of passion, family disputes over the dead and damages for emotional distress.38

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