Susan Bandes
Defining “emotion” is a persistent challenge for those who study the role of emotion in the legal system. It is worth considering why and when a definition is important. Framing the question this way allows us to step back and evaluate the assumption that a definitive definition of “emotion” is an essential precondition to studying the role of emotion in law. I will argue that this assumption is flawed for two reasons. First, there can be no definitive definition of emotion. Emotion is not a fixed, acontextual “thing in the world”. It is a broad, abstract term that is deployed to organise a vast array of phenomena and processes. The best we can do is specify what we mean by “emotion” when we choose to use the term. Second, the law and emotion project is focused largely on how legal regimes, theorists and institutions deploy the category “emotion”. This essential project does not depend on what emotion “is”. It depends on what the law assumes emotion “is,” and on what consequences flow from this assumption. I will illustrate this point with reference to the debate about the death penalty in the United States—a debate that has several resonances in India.
Demystifying the Category “Emotion”
In the last several decades, scientists and social scientists have made enormous strides in demystifying the category of “emotion”. If emotion once referred to a fuzzy, ephemeral set of feelings that could not be studied or defined, researchers in psychology, neuroscience, sociology, anthropology and other fields have in the past several decades revealed that emotions can indeed be studied. One consensus emerging from these studies is that emotions are not things in the world. They are not natural kinds, like rocks or chairs, with fixed and visible attributes. As the sociologist Arlie Hochschild argued several decades ago, emotions are not inborn or hardwired; they are culturally and socially shaped. More broadly, the very concept of “emotion” is culturally shaped, as Batja Mesquita and others have demonstrated.
Neuroscientists using powerful imagining tools have demonstrated that emotion does not reside in a single part of the brain; it is a set of processes distributed throughout the brain, implicating what we remember, what memories are most vivid, how we categorise information, and what motivates us to act or refrain from action. In other words, emotion is not opposed to cognition; it is part of cognition.
The more we learn about cognitive processes, the less useful the category of “emotion” is likely to become. Perhaps one day the affective sciences will conclude that it is more descriptively accurate to talk in terms of individual processes like memory and salience and simply abandon the broad, abstract category altogether. The relevant point is that even if this day comes and affective scientists determine that emotion is an outmoded category, the field of Law and Emotion will still need to contend with the ways in which that category is deployed by legal systems.
How Misconceptions about Emotion Cloud the Death Penalty Debate
Let me illustrate this point with a couple of specific examples of how evolving knowledge on emotion reveals flaws in the U.S. system of capital punishment. First, the legal system in the United States, like all common law systems, places great stock in demeanor as a window into intention, motivation, and even character. It places great weight on the evaluation of remorse in the courtroom. In the U.S., juries decide the appropriate sentence in capital cases. The Capital Jury Project’s extensive interviews with capital jurors reveal that the defendant’s perceived remorse is one of the three most important factors—and often the most important factor—in their decision whether to impose a death sentence. In the vast majority of U.S. death penalty cases, the defendant does not testify. The jury assumes, based on its own flawed understanding of “remorse” and “emotion,” that it is capable of determining whether the defendant is remorseful, often based solely on his facial expression and body language as he sits silently at the witness table. The jury receives no instruction about remorse. It is on its own, deciding between life and death based on erroneous folk knowledge. Although it is tempting to assume that judges know better, studies reveal that judges share the same misconceptions about remorse, facial expression and body language. In short, decisions about life and liberty rest on a misconception about emotion: that remorse is a thing in the world with fixed attributes. As I discuss here, here and here, this is not the case. Remorse has no fixed outward attributes, and to complicate matters, evaluation of remorse is made even more unreliable across racial, ethnic, cultural and class divides, or when the defendant is a juvenile or has emotional or developmental disabilities.
Second, the flawed notion that emotions are hardwired and acultural insulates the legal system from responsibility for its own role in shaping emotional expectations. In the U.S., for example, the death penalty was until recently defended on two traditional grounds: that it deters crime, and that it is an appropriate means of retribution for the worst murders. The deterrence rationale has fallen by the wayside: it is an empirical claim that could never be proved. The retributive rationale is often presented as a bloodless and almost mathematical concept—the defendant receives the amount of punishment he deserves. It is portrayed as a way to avoid or civilize emotional reactions to crime, rather than give in to the anger and vengefulness of a community traumatized by a horrific crime. Yet, without attending to the emotions evoked by crime and punishment, the notion of retributive justice is empty and explains very little. Retributive theory can’t answer why so few civilized nations consider the death penalty a just punishment, and it can’t explain why some sentencers and not others are willing to impose the death penalty. The answers to these questions inevitably rest on assumptions about whether people can be redeemed, and also about which people are capable of redemption. This latter question leads queasily into the problem of racial, ethnic and class prejudice.
The Role of Institutions in Shaping Emotional Expectations: The Myth of “Closure”
More recently, in the U.S., the retributive rationale has fallen on hard times. For all its claim to civilize raw emotion, it has come to be perceived as too close to vengeance. As Frank Zimring astutely observed, retribution has a public relations problem. In the early 1980’s, the dangerously misleading notion of “closure” was deployed to rescue the death penalty from its brush with abolition. “Closure” burst on the scene, sounding exactly like a long-established and authoritative psychological concept. It is, instead, a newly minted legal concept, with only the most tenuous relationship to any psychological notion (there is a psychological term called the “need for closure,” which refers to a need for certainty and an aversion to ambiguity and is not necessarily something to strive for). Nevertheless, as I’ve argued here and here, closure seized the legal and popular imagination, and has led to significant changes in both the predominant philosophy and the administration of the US death penalty. Legislators seek to close off avenues of appeal to give the bereaved closure. Prosecutors bring charges and exhort juries to impose the death penalty to bring closure. Emotion theory not only reveals closure’s tenuous claim to authority; it also reveals the role governmental institutions can play in shaping emotional expectations. In the U.S., the death penalty is now billed as soft and empathetic: a way to help victims’ family members heal. At least one recent study suggests that murder victims’ families in states with no death penalty actually have better emotional outcomes than those in death penalty states. Yet the legal system, our legislatures, and other institutions have succeeded in creating and selling a new emotion; one that permits us to view execution as a gift that will help ameliorate the suffering of grieving families.
The meteoric rise of closure over the past several decades brings me back to my initial point. The dynamic that bears watching here has little to do with what emotion “is”. Has “closure” become a genuine emotion now that so many people believe it is real? This is a fascinating question in its own right – one that could be profitably studied by history of emotion scholars, among others. But for law and emotion scholars, the question is not whether “closure” is an emotion. The focus, instead, is on how the term is deployed, and with what legal consequences.
Defining Emotion: The Politics of Categorization
To state the matter more broadly, the question for law is often “who gets to define emotion?” The stakes of this question can be plainly seen in U.S. death penalty discourse. For example, bereaved family members are permitted to give victim impact statements, but they are not permitted to share their opinion on whether the defendant should be sentenced to death. In practice, this has meant that family members who want to argue for mercy or forgiveness are blocked from doing so on the ground that they are offering an opinion on the proper sentence. Family members who call for a sentence that brings to bear the full weight of the law, or even a sentence that amounts to “an eye for an eye,” are treated as simply stating the law. Mercy and compassion are placed in the category “emotional” and therefore out of bounds; vengeance and retribution are placed in the category of “law:” and thus normalized (see here). This dynamic can be identified throughout death penalty discourse in US courtrooms. Prosecutors ask jurors if they are strong and courageous enough to follow the law and impose a death sentence. Judges instruct juries to put sympathy and passion aside but say nothing about anger or disgust. Moreover, their instruction is designed to warn against sympathy for the defendant. Sympathy for the murder victim is so natural it is not viewed as emotional.
In short, it is always helpful to be clear about what definition we’re using, with the caveat that when the topic is emotion, all definitions are necessarily provisional. As an example, my coauthors and I posit that a helpful working definition of emotions is:
A set of evaluative and motivational processes, distributed throughout the brain, that assist us in appraising and reacting to stimuli, and that are formed, interpreted, and communicated in social and cultural context. Emotions influence the way we screen, categorize, and interpret information, influence our evaluations of the intentions or credibility of others, and help us decide what is important or valuable. Perhaps most important, they drive us to care about the outcome of our decision-making and motivate us to take action, or refrain from taking action, in the situations we evaluate.
This definition has the advantage of incorporating current understandings of emotion across several disciplines. In addition, it makes my own assumptions clear, permits others to place my argument in context, and encourages debate and critique. Most important is the caveat that the definition is provisional. As the psychologist Jerome Kagan reminds us in his valuable book on the category of emotion, “no meaning lasts forever”. Categories should last only as long as they serve a purpose. The insistence on a definitive definition is at odds with the evolving nature of emotion theory. For law and emotion scholars, a definitive definition of emotion is also quite often beside the point. The point is to drive law’s underground assumptions about emotion to the surface, where they can be evaluated in light of the considered goals of the justice system.
Susan A. Bandes is a scholar in the areas of criminal procedure, federal courts, and civil rights, and a pioneer in the interdisciplinary study of the role of emotion in law. Bandes has written more than 70 articles, which appear in the Yale, Stanford, University of Chicago, Michigan and Southern California law reviews, as well as interdisciplinary journals like Law and Social Inquiry, the Annual Review of Law and Social Science, and the Law and Society Review. Her previous books include The Passions of Law (NYU Press 2000) and a co-edited volume Edward Elgar Research Handbook on Law and Emotion (2020). She is currently writing a monograph on the role of emotion in the criminal justice system.
This post is part of a series on 'Law and Emotion'. Read the other posts here.