SLR Editorial Board
The institution of law operates predominantly on the assumption of an Enlightenment-style, rational, self-interested individual. The tyranny of reason, as it were, eclipses the complex and multifaceted relationship that emotion has with many aspects of law in practice. Criminal law considers the crime of murder committed out of provocation to be a less serious crime. Both in advocacy as well as judicial decision-making, emotional appeals and claims are regularly used and employed, such as, for example, in death penalty sentencing. Furthermore, even legal reform is not independent of emotional considerations. The behaviour of legal actors is shaped by their considerations of ‘morality’ – which too is shaped, at the very least, by emotional reactions.
Nevertheless, legal theory is often evasive, if not altogether neglectful, in acknowledging the emotional aspect, despite it animating so much of law-in-action. The predominant side of legal theory has instead focussed on seemingly ‘objective’ ways of looking at the law – as seen in the doctrinal, philosophical, and more recently even economic lenses. This SLR Forum series on ‘law and emotion’ aims to bridge this gap by interrogating how emotion undergirds and informs the seemingly rational presentation of law - in theory and action. This series also aims to advance the question of where and how we may then normatively situate the role of emotion in our understanding of law and society. To this end, we are delighted to present three essays that examine these and related questions from different perspectives.
In the first essay, entitled “Looking for Emotion in Western Legal Theory,” Renata Grossi presents an ambitious reading of western legal theory as including concerns of emotion. Traversing through the traditions of common law, natural law, positivism, and critical jurisprudence - especially feminist thought - she argues that emotion is very much present in the concepts of community, morality, and even objectivity that characterise the western tradition. She therefore calls upon us to look closely beneath the surface of traditional legal theory to find resonances of emotion.
In the second essay, entitled “The Death Penalty and the Politics of Defining Emotion,” Susan Bandes takes a step back and asks “why and when a definition (of emotion) is important.” Using the case study of the death penalty in the context of the United States, she argues that the category “emotion” is not a fixed “thing in the world”; rather, it is strategically deployed in different contexts by the law and the legal system to achieve different purposes. Therefore, she concludes, that “insistence on a definitive definition is at odds with the evolving nature of emotion theory” and the more important thing is to investigate the underlying assumptions of the law about emotion.
In the final essay, entitled “Civic Virtue and Social Hurt: Why Emotions Matter for the Politics of the Oppressed?” Ganesh Gaigouria considers the role of emotion not inside the law or legal institutions but outside them. In the backdrop of several protest movements against atrocities towards marginalised communities in India, he argues that when there is a breakdown of civic virtue in a society, emotions such as anger becomes a resource for oppressed communities to weave relations of solidarity. This politics of emotion allows the possibility to create an alternative idea of “we-ness” and sustain the underlying values of a republican democracy.
Thus, while Grossi challenges us to excavate emotion in traditional legal theory, Bandes and Gaigouria use the contexts of the death penalty and protest movements respectively to show how emotion is differently deployed by the state, legal institutions, and society for different ends. Together, these three essays place the category of “emotion” front and centre in socio-legal study, reminding us that the gap between “law in books” and “law in action” cannot be bridged by reason alone.
Feature Image: Saul Leiter