Law and Emotions

One of Hasidism's most striking features is its centralization and intensification of emotional experiences within devotional life. The unruly ecstasy and enthusiasm characteristic of such a revivalist mystical movement, which often is coupled with a spiritualizing and even oppositional relationship to formalized, external obligations, has evinced conflicting understandings of Hasidism's relationship to Halakhah (Jewish law). Hasidism has concurrently been described as being slavishly obedient to Halakhah as well as harboring the aforementioned antinomian tendencies. This paper poses the question: how did the emotional intensity evoked by Hasidic religiosity affect one's obligation under the law?  In this paper, I will attempt to explore the seams where emotion and law intersect through the case of the writings of Rebbe Nachman of Bratslav (1772-1810). In particular, this paper will examine texts in which Rebbe Nachman responded to the possibility of being unable to muster up a sufficient amount of kavvanah (intentionality) to perform one's required worship in fitting fashion. I will argue that Rebbe Nachman, in the counsel he offered in response, was able to navigate a complex relationship between law and emotion by maintaining commitment to the formalized obligation to pray while, at the same time, making space for and even endorsing the feelings (specifically, frustration and desire) experienced by the individual. This nuanced approach evidences a moderate and complex relation to law, which I deem “therapeutic.”  By this, I mean an approach to law in which the juridical authority (Rebbe Nachman) utilizes judicial discretion to read the law in question expansively, not to overturn the ruling but rather to provide a more wide-ranging space within the bounds of the law that include the plaintiff's concerns. In his simultaneous prioritization of the emotional aspect of religious life and advocacy for a normative legal practice, we can find in Rebbe Nachman's writings a subtle middle position between legal realism and legal formalism. This paper will thus contribute to a more robust understanding of the particular nature of Jewish mysticism within the strongly normative framework of halakhic observance.

Affective witnessing in the courtroom does not denote a specific mode of giving testimony. I rather argue that courtroom witnessing is always affective. The use of emotional displays plays an important role in processes of witnessing, but their absence does not indicate the absence of affective dynamics. The performance of emotion is rather one mode among others to shape the affective arrangement of the courtroom. Witnesses, be they human or non-human bodies, have performative power not by the ‘credibility points’ they accumulate as individual entities, but with respect to the relational position they occupy inside an affective arrangement. Actors in the courtroom compete with each other by attempting to introduce bodies as witnesses and to relate and position them in specific ways. The degree to which they are able to manipulate the affective arrangement to their advantage determines their chances to successfully establish a version of the past they desire.

Esta nota crítica analiza la perspectiva que Martha Nussbaum presenta sobre la emoción de la ira en su último libro Anger and Forgiveness. Resentment, Generosity, Justice (2016). Para ello sitúo esta obra en el contexto del proyecto filosófico de la autora y señalo algunos cambios y continuidades en su análisis de la ira; después reviso a la luz de este nuevo libro algunas de las críticas que, centradas en la reivindicación de la ira, ha recibido su propuesta de una cultura política centrada en las emociones “humanizadoras”.

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.

This book draws on the analytic and political dimensions of queer, alongside the analytic and political usefulness of emotion, to navigate legal interventions aimed at progressing the rights of LGBT people.

Scholars, activists, lawyers, and judges concerned with eliminating violence and discrimination against LGBT people have generated passionate conversations about pursuing law reform to make LGBT injuries, intimacies, and identities visible, while some challenge the ways legal systems marginalise queer minorities. Senthorun Sunil Raj powerfully contributes to these ongoing conversations by using emotion as an analytic frame to reflect on the ways case law seeks to "progress" the intimacies and identities of LGBT people from positions of injury. This book catalogues a range of cases from Australia, the United States, and the United Kingdom to unpack how emotion shapes the decriminalisation of homosexuality, hate crime interventions, anti-discrimination measures, refugee protection, and marriage equality. While emotional enactments in pro-LGBT jurisprudence enable new forms of recognition and visibility, they can also work, paradoxically, to cover over queer intimacies and identities. Raj innovatively shows that reading jurisprudence through emotions can make space in law to affirm, rather than disavow, intimacies and identities that queer conventional ideas about "LGBT progress", without having to abandon legal pursuits to protect LGBT people.

This book will be of interest to students and scholars of human rights law, gender and sexuality studies, and socio-legal theory.

This paper explores the dynamics of emotion in law and legal classrooms by showing: (1) why foregrounding how law is shaped by emotion better equips students to learn about how law advances and/or inhibits various pursuits of social justice and (2) how emotion functions as a useful pedagogical strategy in the classroom to make students receptive enough to empathetically and critically engage with pressing legal questions about social justice. This paper fleshes out the importance of foregrounding emotions in legal classrooms through an autoethnographic account of designing and teaching an undergraduate elective law module called Law and Emotion. By synthesising critical legal studies, law and emotion scholarship, and social theories of teaching/learning with observations from module design, delivery, assessment, and evaluation, this paper illuminates the pedagogical importance of making law, law teachers, and law students engage critically with their feelings.

Jewish observance of a set of legal practices constituted the most obvious distinction between Jew and Gentile in antiquity. Yet Jewish ritual practice did not only affect the ways in which Jews acted but also how they felt about their Jewishness and their connection to the wider culture. Law and emotion play mutually reinforcing roles in both shaping and reflecting a society's values, an observation that invites the following questions: how did observance of Jewish dietary laws make Jews feel, and which emotional norms were involved in the production of law? The emotions of those who observed the kosher food laws were variously characterized in ancient Jewish texts as hate, a self-controlled repudiation of negative emotion, or disgust. The various opinions about how to understand the emotions that animate the dietary laws were all attempts to define the power relations between Jews and the surrounding world and address the following question: did Jews enjoy the power to integrate into their Greco-Roman surroundings?

The present paper is concerned with the role emotions play with respect to evaluative legal concepts, a class of concepts that require judges to interpret values in their application of the law. The paper focuses on the legal concept of human dignity, a central concept in international human rights law and in the constitutional practice of many states. Nearly every article or book written on the concept of human dignity begins by noting its resonance and the power of its promise. The affective dimension of the concept is, however, soon set aside by most scholars and legal practitioners in order to work out the term’s content. Against this trend, the paper explores the affective dimensions of the legal concept of human dignity.Situated in the field of comparative human rights, the paper examines the various roles emotions play in judicial interpretations of the concept of human dignity in human rights and constitutional law. The paper begins by offering a working definition of emotion before setting out the challenge to legal theory and practice posed by evaluative legal concepts. It then sketches out the landscape of dignity jurisprudence and various key sites for the study of emotion. The paper then develops a typology of roles that emotions play in judicial interpretations of the legal concept of human dignity. The three roles that emotions play, orientation, tracker, and service, draw upon the unique features of emotions to enliven and direct judicial understandings of the concept. Emotions fulfill orientation roles when they imbue a concept with their own meaning, tracker roles when they react to the subject matter of the concept, and service roles when they guide the use of the concept. Each role contributes an additional layer of meaning to the concept by lending structure, and often a sense of importance and clarity, to judicial interpretations of human dignity.

The Council of Trent established the requirements that a marriage be celebrated by the parish priest and two or more witnesses be present at the marriage (1563), but neglected to specify who the parish priest was. The decrees provoked confusion among both laymen and churchmen. Traces thereof can be found in the hitherto essentially unexplored documentation of The Congregation of the Council. This institution was founded in 1564 specifically to resolve the questions that arose all over the catholic world by the application of the decrees promulgated at Trent. The related records are held in the Vatican Secret Archive. Through an examination of this documentation, complemented by files of the Holy Office the author analyzes how the new rules were understood, experienced, used, circumvented, and manipulated both by laymen and churchmen in order to end an unwanted marriage, to facilitate a union that was socially transgressive, opposed by family, or even heterodox, and to respond to pastoral concerns.

In most common-law jurisdictions world-wide, an offender’s remorse is a well-settled mitigating factor in sentencing, with judges obliged to take it into account when formulating an offender’s sentence. However, the importance of remorse in sentencing is matched by its mystery. Given remorse’s central role in the moral drama of the criminal justice process, it is crucial to investigate how remorse is evaluated, and also to understand the limitations of those evaluations. The present article seeks to contribute to that effort by exploring what is involved in judges coming to know — and claiming to know — that ‘this offender is remorseful’. Drawing on in-depth original interviews with 20 magistrates and judges in New South Wales, Australia, we explore how judges themselves understand their own ways of knowing about remorse. We then look at two basic scenes of offender remorse: remorse in the courtroom and remorse outside the courtroom. Many judges want to see remorse in the courtroom, and are often confident that they know it when they see it. But, at the same time, as we shall see, many judges also want evidence of the offender’s remorse outside the courtroom.

The present article discusses the biblical commandment to return lost property (hashavat aveda) and the manner by which it is treated by the early rabbinic tradition. I argue that it is possible to read the two passages in the Torah in which the commandment is mentioned (Ex. 23:4–5; Deut. 23:1–5) as an attempt at constructing an ethical stance of unselfishness, in which the other and the other’s loss are given priority over one’s selfish instincts. To this end, the Torah uses the rhetoric of brotherhood, intended to stimulate feelings of solidarity and to encourage members of the community to treat each other with empathy, care, and compassion. However, most of the legal discussions of the commandment in early rabbinic literature favored a legalistic interpretation of the Torah rhetoric, according to which the use of the word “brother” was meant to delineate the scope of the commandment, that is, to specify whose lost property a Jew is commanded to return and whose not, rather than to induce sentiments of compassion and solidarity. I suggest that although this line of interpretation stems from a deep rabbinic refusal to accept the interpretive possibility that the commandment to return lost property includes non-Jews, it also reflects a broader rabbinic tendency to deny a role in halakhic discourse to emotions.

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.

This article argues that judicial compassion is descriptively and analytically useful in thinking about the relationship between courts and disability rights in India. Against the tendency to dismiss judicial compassion as either opposed to the rule of law, or demeaning of the disabled, the article suggests, that we assess it more favourably, for two reasons. First, compassion, on some philosophical and legal theoretical accounts, improves the quality of legal reasoning. Second, compassion allows judges to address gaps in the statutory framework for disability rights. These interventions are executed through the category of colour blindness, which is both a metaphor for the law's presumed dispassionate objectivity and an embodied state capable of evoking emotions in legal actors.

In the NSW justice system, people convicted of offences sometimes show remorse. Remorse is a mitigating factor in sentencing, and authorities are reluctant to grant parole unless a prisoner shows remorse for his/her crime. And yet how judicial agents evaluate such expressions is unclear.
Using frameworks from performance studies and socio-legal studies, this paper explores the fraught status of the speaking body in offenders’ demonstrations of remorse. The judiciary is sympathetic to offenders who get into the witness box (‘who have the courage of their convictions’, as one judge said), and yet offenders are reluctant to do just that as it opens them up to cross-examination (their so-called remorse could be revealed as insincere). Drawing on in-depth interviews with NSW judges and magistrates, with lawyers, parole authorities, and with offenders themselves, as well as observations of court proceedings and parole hearings, this article tease out what it is for offenders to ‘show’ remorse, the risks involved, and what precisely is at stake.

The concept of closure, almost unknown two decades ago, has had a meteoric rise. It has been enthusiastically embraced by the legal system not only as a legitimate psychological state, but as one that the criminal justice system ought to help victims and murder survivors to attain. In the death penalty context, the concept of closure has changed the way we talk about the rationale for capital punishment, it has changed the shape of the legal process, and it has even changed what both survivors and jurors in capital cases expect to feel. Yet, as I will illustrate, the term closure in fact connotes several different and poorly differentiated concepts, each with separate and quite serious implications for the conduct of the capital trial. For example, depending on how closure is understood, it might require a chance to give public testimony, an opportunity to meet with the accused, a more expeditious trial, a sentence of death, or an execution. Yet there is inadequate evidence on wheth...

Menschen berechnen Gerechtigkeit in rational-ökonomischer Weise, aber sie fühlen sie auch. Ein Ansatz zur Beantwortung der Frage, wie Menschen die Legitimität normativer Ordnungen bewerten, der nur auf zweckrationale Entscheidungen, auf das „reine Denken“, abhebt, wird dabei in der Lage sein, Vieles von dem zu erklären, was sich abspielt. Aber ein solcher Ansatz muss die einfache Tatsache kleinreden, dass die Rechtsbetroffenen, die solche Legitimitätsbewertungen vornehmen, Menschen sind. Was Menschen denken, und was sie fühlen, ist nicht immer in Übereinstimmung. Es wird sich als fruchtbar erweisen, diese einfache Tatsache bei der Untersuchung von Legitimität zu berücksichtigen.

Over the last three decades, an increasing number of Anglophone courts have recognised asylum claims on the basis of sexual orientation and gender identity. Such jurisprudence has been heralded for “progressing” LGBTI rights. Yet, the progressive promise of these “pro-LGBTI cases" leaves much more to be desired. Often formulated under the rubric of a “particular social group,” the extent to which queer refugees have been granted protection has been contingent on whether they subscribe to normative ideas of intimacy, identity, and injury. Specifically, queer refugees must demonstrate they have a “well-founded fear of persecution” by subscribing to ethnocentric assumptions about sexual citizenship, gender expression, erotic relationships, and state violence. While the concept of fear has been central to the grant of asylum under international law, it has also been mobilised in legal, political, and academic responses to the adjudication of such claims. Specifically, the fear about having a refugee jurisprudence that is too queer has led to states attempting to curb opening the proverbial “floodgates.” This anxious attempt at control has been painfully fleshed out in the way courts navigate the nexus between “authenticating” immutable sexual or gender identities and “counting” what amounts to sustained state persecution. Drawing on appellate case law from Australia, the UK, and the EU, my paper will disturb how fear stifles the recognition of queer injury, intimacy, and identity.  By queering judicial enactments, I will consider how “asylum anxieties” continue to undermine queer claims for protection.

The current framework for sorting the probative from the prejudicial considers “emotion” to be the hallmark of unfair prejudice. Emotions elicited by evidence are thought to “inflame” the jury and “cause them to abandon their mental processes.” This inaccurate view of emotion as the enemy of rationality is problematic for evidence law. We argue for a more sophisticated and nuanced view of emotion’s role in evaluating proof and prejudice. We use two types of evidence to illustrate our argument: gruesome photos and victim impact statements.

As some scholars have noted, emotional responses to evidence are not necessarily prejudicial responses. But this observation captures only a small part of the problem with the current evidentiary framework. Emotions do not always lead to prejudice, but they can lead to prejudice in more complex and subtle ways than previously recognized. The emotions elicited by evidence affect not only the decision maker’s appraisal of the evidence, but also the process of deliberation. For example, anger toward the defendant elicited by victim impact statements may result in an inability to remain open to evidence favoring the defense, to greater certainty about the verdict, and to a desire to punish. Other emotions, such as sadness or sympathy, have other effects on the deliberative process.

Conversely, emotional responses to evidence play a role in assessing probative value, and this function of emotion receives little or no recognition in evidentiary discourse. For example, to determine whether a gruesome photo is unduly prejudicial, it is also necessary to consider whether the photo contributes any additional value to the deliberative process beyond the medical examiner’s testimony. Without accounting for the role of emotion in the reasoning process, it is difficult to examine how the medium affects the message. The value added lies in the photo’s additional persuasive power, which is closely tied to its emotional impact.

Whether the emotions evoked by evidence interfere with deliberation depends on what emotions the evidence evokes, how they affect the deliberative process, and what the deliberative process is meant to accomplish. We argue that the cognitive sciences, including psychology and neuroscience, can shed substantial light on the first and second of these questions. The third is a legal question, but one that should be informed by a more informed and realistic understanding of decisional dynamics.

Resumen. Este trabajo presenta una lectura de lo que Nussbaum llamó su «proyecto filosófico-litera-rio» que permite vislumbrar cuál es su aporte y mirada distintiva a la discusión sobre las relacio-nes entre el derecho y la literatura. En base a esta lectura, se plantean una serie de «usos» que de esta pueden hacerse en el campo jurídico, o una serie de puntos donde el diálogo puede ser productivo. Palabras clave: derecho y literatura, filosofía angloamericana y literatura, Nussbaum.

AbstRAct. This paper offers a reading of what Nussbaum called her «literary-philosophical project» that aims to show the contribution and the distinctive perspective that the author brings to the field of «law and literature». Based on this reading, it proposes three «uses» of literature in the world of the law, or three points in which the dialogue between law and literature can be productive.

This article explores the intellectual history of the concept of “feeling of justice” and related concepts and the attempts to make them central to legal practice in the context of early 20th century Russia. It starts by tracing the emergence of new modes of thinking about judicial emotion in fin-de-siècle Russian Empire and accounts for both international and local influences on these ideas. It further examines the development of these theories after the 1917 Russian Revolution and notes both continuities and ruptures across this revolutionary divide. Finally, the article explores the attempts to put these radical ideas into practice by focusing on the experimental legal model of “revolutionary justice” that was employed in Soviet Russia between 1917 and 1922 which highlights the discrepancies between bold utopian projects and harsh material realities of the revolutionary period.

The conventional image of a judge as a dispassionate person continues to prevail in both popular culture and academic scholarship, despite influential recent research that has clearly demonstrated the inevitable impact of emotions on judicial decision-making. This article provides a historical perspective on what Terry Maroney has called »the persistent cultural script of judicial dispassion« and extends the discussion to modern continental legal systems. By looking at the legal debates that took place on the pages of professional periodicals and academic monographs across Europe, I show that the role of emotions was in fact an important topic in these discussions, with many participants advancing a very positive view of emotions as something that can help the judge arrive at correct decisions.

I further argue that there was a specific historical period around the turn of the 20th century when the discussions about the importance of emotions for legal judgment intensified greatly. I associate this trend with the emergence of the German free law movement and examine the influence of their radical ideas on legal scholars across Europe. In particular, I consider the experimental legal model of »revolutionary justice« that was introduced in Soviet Russia following the Russian Revolution of 1917 as an attempt to put the ideas of the free law movement into practice by placing a particularly strong emphasis on emotions in legal judgment. By bringing in the wider social and cultural context, the article provides new explanations for the rise and demise of the »emotional judge« between ca. 1880 and 1930 and the persistence of the »dispassionate« stereotype in the modern era.

During the last two decades, the number of studies and researches on the role
of emotion in judicial decision making has been steadily increasing. Using the discoveries
of the cognitive sciences about the function of emotion in performing good reasoning
and deliberative processes, scholars from different fields have raised a challenging issue.
It is about whether it should not only be accepted but even required that emotions
should play a role in the judge’s decisions. In addition, the kind of emotions and how
they could be managed has been tackled. After focusing on the conceptual premises of
this debate, the essay aims to analyze Terry Maroney’s claim about the role of anger as
well as shed light on the underlying assumptions about law and judicial decision and to
outline an alternative model pivoted on the litigation.

In The Prosecutor v. Ahmad Al Faqi Al Mahdi, the International Criminal Court tried the destruction of UNESCO World Heritage sites as a war crime for the first time. In this case, the value of things in relation to the value of persons became the central issue. Based on courtroom ethnography conducted during the proceedings and informed by affect and emotion research, this article identifies the rhetorical practice of sentimentalizing persons and things as an important process of legal meaning-making. Through sentimentalizing, all parties rhetorically produce normative arrangements of bodies by way of emotionally differentiating the relevant persons, things, and other entities from and affectively relating them to each other. Sentimentalizing provides an affective-emotional frame in which to determine the degree of guilt and innocence, justice and injustice.

In this article, I explore the role that the purification rites attested in some of the sectarian Dead Sea Scrolls played in identity construction. Ritual ablutions communicated " canonical " messages to initiates about some of the group's foundational beliefs, including the worthlessness of humanity, the gift of divine election, and the sharp boundary between insiders and outsiders. These messages were channeled through the emotions that the sect associated with ritual ablutions: shame, disgust, and grief with the ritual actor's former state of impurity, joy and honor upon receiving the undeserved divine gift of purity, love for other pure insiders, and hate for all impure outsiders. By evoking emotions— " embodied thoughts " —that reflect core sectarian values, the embodied ritual became a vehicle through which the sectarian " emotional regime " transformed the ritual actor into the embodiment of the sectarian worldview.

This reflection explores how emotion shapes lesbian, gay, bisexual, transgender and intersex (LGBTI) rights and law reforms. Drawing on case studies from Australia, the United Kingdom, and the United States, the author maps how disgust regulates sexuality, hate manifests in hate crime penalties, anger arises in anti-discrimination measures, fear polices refugee law, anxiety shapes trans children’s access to medical transition, pity and compassion inhibit intersex autonomy, and love enables marriage equality. Legal scholars, activists, lawyers, and judges need to take emotion seriously to better address the pressing challenges facing LGBTI people.

In The Prosecutor v. Ahmad Al Faqi Al Mahdi, the International Criminal Court (ICC) tried the destruction of UNESCO World Heritage sites as a war crime for the first time. In this case, the value of things in relation to the value of persons became the central issue. Based on courtroom ethnography conducted during the proceedings and informed by affect and emotion research, this article identifies the rhetorical practice of sentimentalising persons and things as an important process of legal meaning making. Through sentimentalising, all parties rhetorically produce normative arrangements of bodies by way of emotionally differentiating the relevant persons, things and other entities from and affectively relating them to each other. Sentimentalising provides an affective-emotional frame in which to determine the degree of guilt and innocence, justice and injustice.