Renata Grossi
While the editors of this forum say that when it comes to the relationship between law and emotion, legal theory is evasive at best, and neglectful at worse, I want to suggest here that an alternative reading is possible, that emotion is present, and at times very present in the way we theorise law in the Western jurisprudential tradition. But first let me say something about emotions themselves.
In the newly released French film La Bête humans are portrayed as useless creatures because of their inability to control their emotions. Those who can free themselves using a DNA purification technology become “perfectly optimized” and can live better more fulfilling lives. This view of emotions underlies much of our Western history of ideas. But in fact, there is plenty of evidence in many disciplines from biology to sociology to suggest that emotions, reveal and enable reasons, motivate action, and are educable. As such emotion is not only part of our reason but arguably enhances our cognitive functions. This is the view that underlies law and emotion scholarship. This scholarship is broad, but is unified by the overall epistemological claim that emotion matters as much as reason, that it is significant to knowledge, including legal knowledge. This matters also politically because if we accept it, then knowledge becomes inclusive of much which has previously been excluded as soft, flimsy, female, black, brown, queer, primitive, savage, private, childish, sick, disabled …. just to mention the most obvious. To accept emotion as knowledge corrects the historical biases that exist and allows new insights in our laws and legal system. To understand that emotion is knowledge opens a wider door to the study of law. And because of this, law and emotion has produced knowledge on the role of the judge: the behaviors of lawyers and juries, plaintiffs and defendants, the understanding of legal doctrines, the importance of individual emotions to different legal processes, and much more. The question then emerges, where is legal theory in all of these projects?
Legal theory in the Western tradition can be understood through the lens of common law, positivism, natural law, realism and then the critical tradition which includes the critical legal studies school, feminism, race, queer, post-colonial, postmodernism and others. While in the past I have argued that traditional legal theory makes little to no room for emotion and that critical legal theory makes it central, in this piece, I want to suggest that even in the traditional theories, emotion is a significant frame for understanding law.
Critical Jurisprudence
First let me begin with the more obvious and less controversial, the existence of emotion in the critical theory schools, and here feminism merits particular discussion. As Susan Mendus says in the first page of her book Feminism and Emotion, it is “commonplace that the ‘great dead’ philosophers associated men with reason and women with emotion.” While of course this has its own problems it has served a positive function for law and emotion scholarship. The very act of demanding a woman’s voice in law has meant that the law has had to accept and engage with emotions. Then, the project of knocking down the wall between the public and the private domain has further forced the law to engage with the private and therefore the emotional.
A more specific conversation on the connection between feminism and law and emotion has been made by Kathryn Abrams who has identified “moments” in feminism which resonate with the development of law and emotion. One such moment she labels as the “identarian moment” which is associated with second wave feminism and consciousness rising. It expressly focused on emotion as a “crucial vehicle” for creating one’s identity as a woman. Abrams says that in legal terms this highlighted the features of women’s lives and experiences and then pressured the law to accommodate those experiences. Another “moment” was epistemological. This turned the analysis into a “larger critique of legal knowing and argumentation.”
At this point feminists, and this was also true of critical jurisprudence as a whole, turned to a general critique of law as objective knowledge. The importance of this lies in the fact that this work, as Abrams says, challenged the very reason and emotion divide and made space for the epistemological claims which I stated above - that emotion matters; that emotion is knowledge. And to finish Abrams’s point, feminist scholarship also turned to question how emotion is constructed according to identities and contexts, “the constructionist moment”, and this too resonates with broader developments in the school of law and emotion.
Law and emotion scholarship owes a debt to the whole critical tradition. If we begin with the idea that the critical school of jurisprudence represents a rejection of meta narratives and an opening up of law’s boundaries to hitherto unwelcome ideas and created what Peter Goodrich described as “other jurisprudences”, then clearly emotion is as welcome into the conversation as anything else.
An even more specific contribution to an emotional discourse in law has been critical theory’s insistence that a true understanding of law requires the centralising of the subject. Jack Balkin describes this as shifting the focus from the system to the subject. This has paved the way for previously unheard voices to become visible, stories to be told, violence and degradation to be uncovered, agitation for the past to be corrected, for law to be accountable and for laws to be changed. This has been a deliberately emotional intellectual exercise. For some obvious examples from feminism we can turn to Susan Estrich’s account of her own rape which used emotion to illustrate her experience and to law’s need to change so as to take into account the emotional harm caused to victims of sexual violence. And in the context of critical race theory we can consider Patricia Williams’ book The Alchemy of Race and Rights which weaves in and out of her personal experience of race and law and emotionally engages the reader in the historical and present-day injustices suffered by African Americans.
What we have seen above therefore, is that the critical schools have truly opened up the gates of law which has not only allowed emotion to be a possible conversation within law, it has made it inevitable. Now let me turn to the traditional schools of legal theory and see if we can find some emotion there.
Emotion in Traditional Legal Theory
A closer look at common law theory and natural law theory can produce a connection between those theories and emotion primarily because they both tether law to the community. Community is understood not only as a geographical area, but also as a mental construct formed by imagined boundaries between groups, with normative force and where emotions are essential and highly visible.
Common law describes a system of law where legal decisions are made by the courts with reference to precedent, and where laws are expressions of tradition and custom. From this, three central ideas emerge, first, that the community is an important source of law. Second, that the judge is the expression of that community’s laws, and third, that a judge arrives at these laws through a process of interpretation. None of this is possible without emotion.
Turning to natural law. All natural law theorists connect law to morality. Whether this is understood as Christian (as per John Finnis) or as secular (as per Jonathon Crowe), law’s role is to foster human flourishing and it is here that the connection between it and emotion exists. As Martha Nussbaum has shown, emotions such as anger, fear, grief, envy, compassion, love and jealousy have a close connection to morality in both negative and positive ways. She follows a long list of philosophers from Plato and Aristotle who have grappled with the details of the connection. Which emotions, in what context and to what extent? But the connection between morality and emotion is undeniable and with it we can build the connection between natural law theory and emotion.
In making this argument I am conscious of the fact that both common law and natural law theory may be considered as marginal to contemporary legal thinking. In practice, modern Western legal systems are dominated by legislation which curtails the role of the judge and limits the operation of the common law as I have described above. And in relation to natural law, while for many the development of natural law into natural human rights is seen as a triumph, for others such as Costas Douzinas, natural law is seen as a failed project. In reality, they claim that the adoption of a human rights agenda no matter how noble, has little to do with the spirit and soul of natural law because it has turned the idea of rights into “hard-nosed” positive rights and is now indistinguishable from positivism. But why is this a bad thing?
In relation to emotion positivism is “the big bad wolf”. The idea that positivism has written emotion out of law can probably be attributed primarily to positivism’s aspirational relationship with the ideology of science which leads to an understanding of law as objective knowledge and legal decision making as nothing more than interpretation of legal texts.
Positivism’s relationship with science is on the one hand very obvious. The very word itself means science, but the relationship is evident in other ways. First, as we have seen, positivism rejects legal knowledge that it does not regard as certain. Early positivists had little time for common law, wishing instead all laws to be written as codes (Jeremy Bentham and John Austin). The rejection of custom law which resided in the community can be seen as a rejection of laws which are uncertain and therefore unscientific. Second, positivism’s tenacious hold on the idea of law as being separate from morality (Herbert Hart) is also within the scientific paradigm. It asks law to be clinical in its functions, precise in its methodology and unemotional about its outcomes. With the rejection of law as existing in custom so too came the rejection of the judge’s role as being the interpreter of this legal knowledge: the judicial method therefore simply became a method of applying the law to the facts of the case.
Under positivism the judge is a true scientist - the embodiment of objectivity. But while objectivity is conventionally understood as being the opposite of emotion, in fact, I have argued elsewhere that it is not. I have shown that the theories of objectivity that we usually rely upon in law are not separate from our politics, beliefs, values, norms, or above all, from emotion. In fact, emotions are considered integral to the “creation” of objectivity. When we consider major writers on objectivity in law they have all left room for emotion. For example, Jules Coleman and Brian Leiter’s concept of modest objectivity, which is what they argue is appropriate for law, requires a judge who is maximally empathetic and imaginative, and who is aware of social and cultural knowledge. For Heidi Li Feldman, achieving objectivity requires an evaluation of social facts, mores, cultural ideas, values, and customs. It is beyond question that these cannot be achieved without emotion. For Gerald Postema, objectivity requires a fully rational public deliberative process, but in order for this to succeed the participants must be committed to the process and be “mature” about difference and disagreement. This too, I suggest, requires emotion. And then we can add that objectivity itself is an emotion. To use Jack Barbalet’s expression, it is a “background emotion” in our legal institutions, and to draw from Stina Bergman Blix and Asa Wettergren empirical studies, we can say that a commitment to objectivity is itself an emotional project.
All this is to say that then that when we take a closer look, law and emotion is not as much of a stranger to legal theory as we have been thinking it is. It is front and centre of all the critical theories, and while it may be a little opaque when it comes to the traditional theories it is nevertheless there.
Renata Grossi is an interdisciplinary scholar in the Faculty of Law at University of Technology Sydney. She is interested in the relationship between law and emotion. Some of her most recent and relevant publications are: ‘What can contract law learn from # MeToo?’ (2022) 49(2) Journal of Law and Society 263; ‘Law, emotion and the objectivity debate’ (2019) 28(1) Griffith Law Review 23, and ‘Love as a Disadvantage in Law’ (2018) 45(2) Journal of Law and Society 205. She is also the author of Looking for Love in the Legal Discourse of Marriage (ANU Press 2014), and co-author of The Radicalism of Romantic Love: Critical Perspectives (Routledge 2017).
Feature Image: Jurisprudence by Daniel Chester French, 1912, Cleveland, Ohio, USA; Wikimedia Commons.
This post is part of a series on 'Law and Emotion'. Read the other posts here.