The Logic of Excuses and the Rationality of Emotions

Journal of Indian Law Institute, 2020

While law and emotions have traditionally been understood as mutually repugnant ideas, closer inspection reveals that emotions are not entirely absent from the positivist legal framework; and our legal system stresses upon shoring up against its influence thereby skewing response to emotions in the administration of justice. The focus of this paper is to examine where, when, how, and why that most animating psychological concept-emotion-influences culpability. The primary interest is on the emotions of the accused, with particular focus on Indian criminal law and its theories of culpability, which are embedded in statutes, in the reasons and dicta judges give for their decisions, and in the works of legal theorists. This paper asks why, for example, emotions sometimes aggravate a murder,making it so vile and heinous that it warrants the death penalty, whereas atother times emotions mitigate a murder to culpable homicide, or excuse a killing (e.g., unsoundness of mind or insanity 1) or even justify it (e.g., right of private defense 2).This paper also briefly illustrates some of the inconsistencies, contradictions, and incoherence among modern criminal law's theories of emotion, as seen through different crimes, defences, and doctrines before concluding that restructuring of the administration of justice to make it more emotionally coherent and accommodative to enable thoughtful response to emotions shall not only be more fulfilling but also serve the ends of justice and equity better.

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.

This paper challenges recent influential arguments which would encourage legislators and courts to give weight to an assessment of the " evaluative judgements " expressed by the emotions which motivate crimes. While accepting the claim of Kahan and Nussbaum and others that emotions, other than moods, have intentional objects (" the cognitive conception "), and are not mere impulses which bypass cognition (" the mechanistic conception "), it suggests the following criticisms of their analysis. First, the concept of an emotional " evaluative judgement " tends to elide the distinction between (misleadingly named) " judgements " that are merely the sense of an emotion, and do not have the character of acts, and deliberative emotional judgements that do resemble acts and so properly fall within the corrective scope of the law. Second, intentional emotions are empowered by pre-intentional psychological resources which are less amenable than intentional states to the agent's conscious supervision: The traditional recognition of " infirmity " in mitigation of crimes uncharacteristic of the criminal's overall conduct towards others is justified by the unpredictable action of these pre-intentional elements and can survive the abandonment of the mechanistic conception of emotion.

Law and Human Behavior, 2006

Journal of Philosophy of Emotion

A tension between acting morally and acting rationally is apparent in analyses of moral emotions that ascribe an inherent subjectivity to ethical thinking, leading thence to irresolvable differences between rational agents. This paper offers an account of emotional worthiness that shows how, even if moral reasons fall short of philosophical criteria of rationality, we can still accord reasonableness to them and recognize that the deliberative weight of social norms is sufficient to address the moral limitations of strategic rationality.

This article focuses on the most recent debates in a certain area of the 'law and emotion' field, namely the literature on the role of affect in the criminal law. Following the dominance of cognitivism in the philosophy of emotions, authors moved away from seeing emotions as contaminations on reason and examined how affective reactions could be accommodated within penal proceedings. The review is structured into two main components. I look first at contributions about the multi-dimensional presence of emotions within ordinary criminal proceedings. Second, I examine work done on the use of criminal trials under the emotionally stressful circumstances of post-conflict societies. In the conclusion I sketch a theoretical proposal for moving the discussion forward.

In this paper I look at the role of appeals to the emotions in criminal law defences. A position commonly held is that appeals to the emotions can excuse but cannot justify. However, we should be careful that this view does not rest on too simple and non-cognitive a view of the emotions. I contrast a simple picture, according to which action from emotion involves loss of rational control, with the more Aristotelian picture recently offered by R. A. Duff. I then look at John Gardner's theory of excuses, which seeks to avoid the non-cognitive account of action from emotion as loss of rational control, but nevertheless denies that reference to the emotions can even partially justify. I argue that what is at issue between Gardner and Duff is what Gardner calls the "no-difference" thesis, namely that the reasons that count in favour of an emotion count also in favour of action done from that emotion. I conclude that Gardner has not yet explained why we should reject the no-difference thesis.

Cognition & Emotion, 2013

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.

Inquiry, 2022

Although it is now commonplace to take emotions to be the sort of phenomena for which there are reasons, the question of how to cash out the reason-responsiveness of emotions remains to a large extent unanswered. I highlight two main ways of thinking about reason-responsiveness, one that takes agential capacities to engage in norm-guided deliberation to underlie reason-responsiveness, and another which instead takes there to be a basic reason-relation between facts and attitudes. I argue that the latter approach should be preferred. Not only does a reasons-basic approach promise to fare better in accounting for cases that its opponent struggles to accommodate, but it promises also to uncover a sui generis relation between emotions and their reasons which is at best obscured and at worst denied by its opponent.