Lay conceptions of emotion in law

Law and Human Behavior, 2006

2008

In Gonzales v. Carhart the Supreme Court invoked postabortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical legal determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about emotions. A species of common sense, it seems obvious and universal to its holder-but this appearance is misleading. This Article articulates and evaluates the Court's reliance on emotional common sense in constitutional law. It demonstrates that emotional common sense sometimes imports inaccurate accounts of the world into the law. Justices of every ideological orientation invoke it in a manner that comports with their desired ends. Emotional common sense colors interpretation of evidence, manifests in selective perspective-taking, and shapes jurisprudential choices. Common-sense evaluation of emotions also necessarily embodies underlying beliefs and values; enforcing them on others under the guise of simple truth silently forces a false consensus. Emotional common sense has a limited place in constitutional law. It may be cautiously embraced where an emotional phenomenon is relatively basic and universal. In all other cases, the embrace should be withheld. Evaluating isolated instances in which the Court has looked beyond emotional common sense, this Article shows that a superior path exists.

Law and Human Behavior, 2006

How should psychological scientists think about emotion in the law? Although the study of affect and motivation in information processing models has captured the attention of many who think about social cognition, judgment, and decision making (see Brewer & Hewstone (2004) for a review of current ideas), the impact of this thinking has only begun to make its way into research and theory in legal psychology. The special edition of Law and Human Behavior on this topic showcases some of the more recent attempts to apply emotion to legal analysis and psycholegal research , but even these articles leave open the more general problem of how psychological researchers can and should infuse observer affect into their studies of legal decision making. Here, we offer an approach that mixes theories of emotion into standard models of judgment and decision making and then show how our approach can offer new insights into understanding some traditional areas of legal psychology. The paper begins by tracing some distinctions that social cognitive researchers make about emotion and then proceeds to use them to modify two existing models of judgment and decision making. We show how infusing affect into the rational actor and lens models of decision making can offer new and interesting Abstract: This paper draws on research in social and cognitive psychology to show how theories of judgment and decision making that incorporate decision makers' affective responses apply to legal contexts. It takes 2 widely used models of decision making, the rational actor and lens models, and illustrates their utility for understanding legal judgments by using them to interpret research fi ndings on juror decision making, people's obedience to the law (e.g., paying taxes), and eyewitness memory. The paper concludes with a discussion of the advantages of modifying existing approaches to information processing to include the infl uence of affect on how legal actors reach judgments about law and legal process.

Wake Forest Law Review, 2019

The law has had an uneasy relationship with emotion, and we are trained to think that the best decisions are those made based on reason alone. The primacy of reason can be traced at least as far back as Plato, who believed that emotion interferes with reason and diverts us from truth. This Article begins by exploring our ancient mistrust of emotion, particularly in the law, and more recent theories in cognitive psychology and behavioral neuroscience positing that reason and motion work together in all forms of decision-making to help us make better decisions. Because “thinking like a lawyer” may more aptly be described as “feelthinking like a lawyer,” this Article then identifies several points in the legal reasoning process where the influence of emotion may be most significant and noticeably “felt.” It concludes that because feelthinking occurs on behalf of clients within specific ethical constraints, understanding the role of emotion in legal decision-making is useful both to the...

Critical Review of International Social and Political Philosophy

Reason and emotion are often cast as opposites. Yet emotion comes in a wide array of manifestations and has a variety of relations with its supposed opposite. Understanding emotion better is key to grasping how jurisprudence casts the relation between psychology and judicial decision making. Jurisprudents disagree on whether and when (lack of) emotion is a problem for decision makers in the justice system. The aim of this paper is to shed light on unarticulated assumptions in mainstream legal theory concerning this disagreement. The paper plots the different positions jurisprudents hold concerning the role of emotion in judicial decision making, regardless of where they stand on matters such the nature of law. The paper substantiates the claim that legal theorists often take an irrationalist approach to emotion but occasionally develop an alternative account that is closer to a cognitivist approach, the prime example of which is the claim that equity requires practical reasoning. Emotions are then cast as skills to be appreciated. The paper concludes that jurisprudence adopts a simplistic view of emotion. The study of the role of emotion has been hampered by the tendency to view emotions reductively. My classificatory effort warrants the conclusion that lack of emotion-understood as a skill in cognitivist terms-constitutes a problem for justice.

In: Law and interdisciplinarity, ed. by P. Hellwege, M. Soniewicka, 2024

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...

Brooks, Thom & Diana Sankey (2017). "Beyond Reason: The Legal Importance of Emotions" in Patrick Capps and Shaun D. Pattinson (eds), Ethical Rationalism and the Law (Oxford: Hart): 131—148. Deryck Beyleveld has forged a theory of ethical rationalism that has made an important impact on legal and moral philosophy—that this collection of essays makes clear. He has not only refined and improved the original account developed by Alan Gewirth, but provides us with ethical rationalism’s most prolific defender today. One area of particular insight is Beyleveld’s many applications of ethical rationalism to practice and, most especially, to medical law and ethics which has been especially influential. This work has set the bar for all proponents and critics alike. We focus narrowly on a specific concern that we have with ethical rationalism: its primacy of rationality over other characteristics, such as our emotions. This is not to deny the importance of reason in our thinking about law and ethical concerns. But we have concerns with any view that holds that reason is the only key to how any tensions should be resolved. Such a position claims for reason a privileged status it does not have or merit. One problem for us is that, in our view, ethical rationalism does not appear to adequately consider the importance of emotions and so it does not provide a satisfactory account of law and morality as a result. We examine this concern in the first part of our chapter. This chapter’s second part raises concerns with the application of ethical rationalism as a model for understanding sexual offences. We highlight both the need to foreground emotion in order to understand the current law, as well as the dangers from a normative perspective of appearing to marginalise the role of emotion in sexual offences. Not only would a prioritisation of rationality fail to reflect the role emotion can play in current rape law, but we would argue, is particularly problematic in this area of law in terms of promoting justice. In summary, Beyleveld’s ethical rationalism exercises an important impact on legal theory and legal practices. Nonetheless, we raise some reservations about its connection to these impacts that lead us to support revisions to this approach.

Social Science Research Network, 2021

Generations of lawyers have been taught that thinking like a lawyer requires putting emotion aside. They are warned, for example, that anger will blind them to the facts as they really are. Yet cognitive science rejects the notion that emotion and reason are autonomous, warring spheres. Recently there has been increasing recognition of the harmful consequences of the narrow conception of "thinking like a lawyer" for lawyers' well-being, but these consequences are generally portrayed as a necessary trade-off between the well-being of lawyers and the preservation of analytical rigor. This Essay will argue that the harm the narrow conception of "thinking like a lawyer" poses to lawyers' well-being is not simply an ancillary issue or an unfortunate but necessary collateral consequence of engaging in rigorous, logical thinking. A conception of law that attempts to cordon off emotion is poorly suited to the complexities of legal practice and is inconsistent with modern knowledge about how legal, ethical, and moral reasoning-and indeed, legal change and reform-actually occur. This Essay will focus in particular on the emotion of anger and the consequences of attempting to banish it from the realm of legal reasoning.

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.