Law and Emotions

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.

This article is an ‘emotional’ intervention in the field of early Soviet legal history: it provides a theoretical background on the role of emotions in early Soviet legal thought and practice. After sketching the wider context necessary for an understanding of emotions in the specific setting of the courtroom, it charts three possible directions for applying the history of emotions framework to early Soviet criminal law and gives examples for each of them. It shows the influence of emotions on the administration of justice as well as discrepancies between the writings of legal scholars and the actual implementation of the new legal model. Finally, it discusses these findings in the context of early Soviet ideas about the malleability and perfectibility of human nature, the emergence of the new Soviet person, and the transformation of the deviant and the social order.

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.

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.

This paper aims to shed light on the putative functions of placing images in judicial opinions from the judges’ perspective. Thus far, commentators have overlooked the functions that images play for judges when used in judicial opinions and consequently have failed to provide a thorough understanding of the process. To help fill this gap, Jerome Frank’s ideas on judging will be presented. The argument goes that using images in judicial opinions can be interpreted as a way to enable the decision-making process to be, as far as possible, devoid of hypocrisy, closer to judicial candor and more open to scrutiny. This notion can be excavated from Frank’s works in light of the existential features of both passing judgments and articulating decision-making processes by and for judges themselves. As will be shown, Frank’s views on judicial decision-making are more original and enlightening than critics might suggest and they are particularly relevant when examining the use of images in judicial opinions from a judge’s perspective.

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.

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.

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.

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.

Emotion theory poses a challenge to several of the central verities of democratic theory. Most centrally, it challenges the dominant assumption that the passions play no beneficial role in the process of deliberative democracy. In challenging that assumption, emotion theory raises subsidiary questions about the valorization of autonomous thought and action, the low regard for rhetoric and persuasion, the dismissal of the role of intuition, and the focus on universalizable principles, that permeate much of political discourse. In Reason, Passion and Democratic Politics, George Marcus describes these standard premises, explores the current cognitive psychological and neuroscientific evidence that poses a challenge to them, and closes with some questions about the implications of that evidence for reassessment of the standard verities. This comment is largely in sympathy with Marcus's approach. However I will raise concerns about Marcus's conception of the interplay between emotion and cognition, which sometimes comes too close to the conventional folk notion of a sharp, uni-directional divide between untamable, inaccessible feeling and mature, deliberative knowing. This notion of an opposition influences Marcus's description of political thought, his description of the uses of rhetoric and persuasion, and his description of the dynamics of social change. I will also argue for shifting and widening the focus on individual decision-making which has prevailed both in political discourse and more generally across disciplines. Scholarly discussion of the political process commonly takes the individual as its unit and individual autonomy as the unquestioned goal. However, political and moral decision-making is best understood not as a solitary activity but as a process  that takes place in a social milieu.

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.

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.

As a way of »performing the law«, courtroom
speeches have been a fundamental component of
the legal ritual and a basic component of lawyers’
identities in many countries with civil law traditions:
lawyers have presented themselves and have
been culturally perceived as legal experts who
make use of emotional strategies in order to
achieve their aims in court. Within the courtroom,
emotions have been both rhetorical tools and
goals, especially in criminal trials where forensic
eloquence aimed to create an emotional environment
that was favourable to the client. In France, a
rich literature on the art of forensic rhetoric was
both the result and the basis of a (re-)construction
of a tradition that was extremely self-conscious,
self-reflective and fundamentally emotional. The
present work analyses the role of emotions in
lawyers’ courtroom performances in the French
legal culture from the beginning of the nineteenth
century to the present. Its purpose is to identify the
main themes related to the use of emotions in the
pleading that legal professionals themselves have
considered important – albeit with differing opinions
– in the past three centuries. More broadly,
this study explores reason / dispassion and emotion
in legal practice beyond their longstanding dichotomy.
Investigating the courtroom speech as a
prototypical forensic performance through the perspective
of the legal professionals themselves shows
how reason and emotion have been continually
intertwined and how legal professionals have consciously
strategized approaches to the complex
interplay between them in the judicial processes.
[p. 286–295]
lawyers, courtroom, emotions, rhetoric,
eloquence

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.

The paper focuses on the effects of recent psychological findings on the theory of adjudication-putting emphasis on the role played by emotions in the decisionmaking process. Two different philosophical claims will be analysed, starting from the very famous topos of digestive justice: the idea that the decision-making process is completely predictable (determinism) versus the irrationality of the decision claimed by the realists. In the conclusion a non-naturalistic perspective will be sketched, aiming at including the novel knowledge arising from psychology-i.e. emotions are part of physiological process of decision-making.

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.

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.

Though the notion of reasonableness dominates Anglo-American law, its meaning has been clouded by traditional conceptual analysis. This Essay argues that greater clarity can be gained by taking a scientific approach to the subject, exposing the natural foundations beneath the concept's varied interpretations.

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”.

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.

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.

One pervasive challenge for law is the difficulty of bridging em-pathic divides. The ability to understand the motivations, intentions, and goals of others is a prerequisite to fair and accurate legal decision-making. It is also essential to the ability to structure fair and effective legal institutions. Yet empathic accuracy for those from different backgrounds does not come easily—it requires self-knowledge, humility, openness to other perspectives, and the will to understand. Tax (Andrew Taslitz) exemplified these attributes in both his scholarship and his approach to life. This essay will discuss the elusive concept of empathy, the notion of empathic divides (a term usefully coined by Craig Haney and Mona Lynch), and the challenges of empathic accuracy, and will discuss Taz's scholarship as an ongoing project of bridging empathic divides.

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.

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.