Constitutional Sentiments

Constitutional Sentiments

András Sajó
Copyright Date: 2011
Published by: Yale University Press
Pages: 352
https://www.jstor.org/stable/j.ctt5vkwbn
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  • Book Info
    Constitutional Sentiments
    Book Description:

    The Constitution was written to shape human behavior and affairs, and it does so by appealing to people's hearts, not only their minds. An interdisciplinary analysis sheds new light on the emotions that underlie constitutional law, with many cogent examples.

    eISBN: 978-0-300-16861-7
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. I-IV)
  2. Table of Contents
    (pp. V-VI)
  3. FOREWORD
    (pp. VII-X)
    Matthias Mahlmann

    Theoretical and historical reflection about the reality and the concept of law suffers from no shortage of unsolved problems. One of the most intriguing questions concerns the foundations of the modern edifice of constitutionalism and human rights, a core part of what strives to be a new civilized architecture of right. A classical answer to this question asserts that the base of constitutionalized legal orders can only be carved out of the enduring material of rational thought: The book of constitutionalism and human rights is written by the swift hand of reason as modernity overcomes the obscure and irrational emotionalism...

  4. ACKNOWLEDGMENTS
    (pp. XI-XI)
  5. List of Abbreviations
    (pp. XII-XII)
  6. INTRODUCTION
    (pp. 1-10)

    “Reason, cold, calculating, unimpassioned reason, must furnish all the materials for our future support and defence.” Reason is detached, perhaps cold and unemotional. It is believed that thanks to these features reason is uniquely capable of finding truth and right. The calculating coldness enables reason to know our world and to navigate in it successfully. Emotions might be nice and warm, but they are detrimental to reason exactly for these reasons. Modernity believes that it has to stand up for “the wisdom of reason against the treachery and temptations of the passions.”¹ Therefore, emotions were relegated to second-class citizenship in...

  7. 1 FROM EMOTIONS TO CONSTITUTIONAL INSTITUTIONS
    (pp. 11-86)

    This book offers a partial descriptive theory of the making and operation of the institutions of liberal constitutionalism; it puts the emphasis on the role of emotions, but it does not claim that emotions alone generate social and legal institutions. Emotions participate in building the constitution and a culture of constitutionalism, and then these creatures of constitutional sentiment patrol emotion display. This position contradicts the myth of law as reason, where law is presented as the result of conscious deliberation, or perhaps a horse trading of different plans and interests, but even so a purposive and rational venture. In the...

  8. 2 A SENTIMENTAL DÉCLARATION OF THE RIGHTS OF MAN
    (pp. 87-113)

    Human thought cannot be described without emotions. Social institutions like a constitution—and constitutionalism—are emotionally determined. To justify this assertion, we have to look at the role of the emotions in the creation of fundamental constitutional institutions. From the standpoint of modern constitutionalism, the defining documents are the American Constitution and the Declaration of the Rights of Man and of the Citizen from 1789 (henceforth “Declaration”). Anyone discussing constitutionalism or human rights on the continent in the last two hundred years will have used the grammar of the Declaration, the French Constitution of 1791, or the American Constitution of...

  9. 3 “THE GREATEST OF ALL REFLECTIONS ON HUMAN NATURE”: THE CONSTITUTION OF FEAR
    (pp. 114-150)

    My claim is that constitutions reflect a selection of the emotional experiences of a given community. What is seen in constitutional law to be the expression of rational considerations, and is legitimized as such, is to a considerable extent the interplay of emotions reflected in public sentiments, and in particular fear. The rationality of a constitutional solution¹ originates partly in its capacity to handle constitutional sentiments—passions in particular. It is a means/ends rationality although the solutions offered may serve, among other ends, emotional satisfaction. Moreover, constitutions are not only reflections upon public sentiments: constitutional institutions offer emotion management by...

  10. 4 EMPATHY AND HUMAN RIGHTS: THE CASE OF SLAVERY
    (pp. 151-194)

    Strong emotions and moral judgments have considerable impact on the selection of fundamental rights. Human rights reflect considerations that reach beyond personal emotional concerns; they reflect needs of well-being of fellow humans. The taking into consideration of the needs of fellow humans is enabled by empathy-based mechanisms. But emotions alone cannot make a difference in society; the successful spreading of compassions presupposes favorable changes in economy and culture.

    This chapter is a case study of the first hundred years of the abolition of slavery. This longer time horizon enables us to consider emotional influencing of constitutional law as an interactive...

  11. 5 FREEDOM TO EXPRESS WHAT?
    (pp. 195-245)

    The protections granted to speech look, prima facie, like guarantees granted to rational actors (hereinafter: the rationality paradigm). “ Much of our current free speech jurisprudence is based on the assumption that . . . people will be perfectly capable of responding rationally to speech.” This understanding is reinforced in a prevailing deliberative understanding of democracy. “From Kant to Rawls, intellectuals have unabashedly placed a high premium on deliberative, rational thought and by implication, rejected emotions and feelings as legitimate (although unavoidable) elements of politics.”¹ Deliberation is about providing reasons, assuming that the force of the better argument prevails. In...

  12. 6 THE CONTAINMENT OF PASSION: ASSEMBLY, RELIGION, AND POPULAR SOVEREIGNTY
    (pp. 246-268)

    Public gatherings are important opportunities for often-passionate collective emotion display and important venues of collective identity formation.

    Freedom of assembly grants concessions to irresistible emotions which are, in exchange for recognition and protection, domesticated in the very process of recognition. Or so it is hoped. Freedom of assembly enables and regulates the display of “destructive” passions in gatherings. Nevertheless, any celebration of an unconditional legal endorsement of collective sentiments in recognition of the right to assemble would amount to the merest simple-minded naturalism. Assemblies are protected thanks to a number of happy historical accidents. Good theoretical justifications underlie this historical...

  13. 7 SHAME: ON HIDDEN CONSTITUTIONAL SENTIMENTS
    (pp. 269-306)

    Shame, like other moral emotions, enables humans to accept moral arguments, and it generates moral judgments. Further, it creates a predisposition for the social generation of social norms, and as such it contributes to the generation of constitutional institutions. The judicial attitude to shame is one of indifference, mistrust, and reluctance.¹

    Nevertheless, I claim that constitutional law responds to actual social and personal experiences of shame. Any attempt at such showing has to specify what is meant by “shame,” as this is a particularly contested notion in psychology. In line with culturally influenced shame research I argue that shame is...

  14. NOTES
    (pp. 307-372)
  15. INDEX
    (pp. 373-382)