The Passions of Law

The Passions of Law

EDITED BY SUSAN A. BANDES
Copyright Date: 1999
Published by: NYU Press
Pages: 368
https://www.jstor.org/stable/j.ctt9qfxvj
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  • Book Info
    The Passions of Law
    Book Description:

    The Passions of Law is the first anthology to treat the role that emotions play, don't play, and ought to play in the practice and conception of law and justice. Lying at the intersection of law, psychology, and philosophy, this emergent field of law scholarship raises some of the most profound and interesting questions at the heart of jurisprudence. For example, what role do emotions ranging from disgust to compassion play in the decision-making processes of judges, lawyers, juries, and clients? What emotions belong in which legal contexts? Is there a hierarchy of emotions, and, if so, through what sources do we identify it? To what extent are emotions subject to change or tutelage? How can we evaluate the role of emotion in such disparate contexts as death sentencing, laws about same sex marriage, hate crime legislation, punitive damages or shaming penalties? Consisting of original essays by leading scholars of law, theology, political science, and philosophy, The Passions of Law contributes to ongoing efforts to humanize law and reveals how this previously unacknowledged aspect of decision-making exerts a much greater impact on justice and the practice of law than most tend, or like, to think. Learn more about

    eISBN: 978-0-8147-3929-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. Acknowledgments
    (pp. xi-xii)
  4. Contributors
    (pp. xiii-xvi)
  5. Introduction
    (pp. 1-16)
    Susan Bandes

    Emotion pervades the law. This isn’t an entirely surprising notion. We know that witnesses bring emotion into the courtroom, and that courtroom drama can be powerfully evocative. We’ve had many opportunities recently to watch the raw emotion of witnesses, barely suppressed by the legal filters designed to mute its force. We’ve heard the heartbreaking testimony of the victims, or families of victims, of the Oklahoma City bombing, which evoked widely shared sorrow and compassion. Louise Woodward’s trial for killing a baby in her charge raised questions about Woodward’s state of mind when baby Matthew was hurt, about whether his mother...

  6. PART I: Disgust and Shame
    • Chapter One “Secret Sewers of Vice”: Disgust, Bodies, and the Law
      (pp. 19-62)
      Martha C. Nussbaum

      Disgust is a powerful emotion in the lives of most human beings.² It shapes our intimacies and provides much of the structure of our daily routine, as we wash our bodies, seek privacy for urination and defecation, cleanse ourselves of offending odors with toothbrush and mouthwash, sniff our armpits when nobody is looking, check in the mirror to make sure that no conspicuous snot is caught in our nose-hairs. In many ways our social relations, too, are structured by the disgusting and our multifarious attempts to ward it off. Ways of dealing with repulsive animal substances such as feces, corpses,...

    • Chapter Two The Progressive Appropriation of Disgust
      (pp. 63-79)
      Dan M. Kahan

      Disgust is regarded as a paradigmaticallyilliberalsentiment. Mercy, because of its perception of individuals’ vulnerability to forces outside their control, is unambiguously congenial to liberal values such as dignity and autonomy. Indignation and fear are at least potentially redeemable in liberal terms because they take as their objects external harms or threats to the person. Even guilt (if not shame) is thought to have a place in a liberal jurisprudence to the extent that individuals are educated to experience it when they interfere (or contemplate interfering) with the rights of others. But disgust, which embodies only our aversions to...

    • Chapter Three Show (Some) Emotions
      (pp. 80-120)
      Toni M. Massaro

      Social norm theory is a strand of behavioral economics that analyzes social norms, status competition, and social meaning, and the ways in which all three influence individual behavior.¹ This literature complements (or offers a “friendly amendment” to)² neoclassical, rational-choice models of individual behavior, by adding social context and human emotions that help explain individual conduct that otherwise might appear inexplicable and irrational.³ The aim is to beef up economists’ unrealistically thin account of human behavior, while still preserving the relative simplicity and predictive power of the economics model.

      The esteem of others, some of this literature suggests, is a powerful...

  7. PART II: Remorse and the Desire for Revenge
    • Chapter Four Justice v. Vengeance: On Law and the Satisfaction of Emotion
      (pp. 123-148)
      Robert C. Solomon

      In this essay, I am concerned with the expression and, more important, the satisfaction of emotion in law. In particular, I am interested in the desire for vengeance as expressed and satisfied by law or, more accurately, by the justice system. It is not an attempt tojustifyvengeance, nor do I intend toreducepunishment according to law to the expression of such emotions as hatred, vengeance, and resentment. Picasso’sGuernicais an expression of outrage, indignation, and despair, and it would be a poorer painting (like a talented art student’s rendition) if it were not for those emotions....

    • Chapter Five Moral Epistemology, the Retributive Emotions, and the “Clumsy Moral Philosophy” of Jesus Christ
      (pp. 149-167)
      Jeffrie G. Murphy

      Nietzsche’s writings have a remarkable capacity to trouble the soul, and I have recently found my own soul troubled by reflection on his remarks on retribution as a theory of punishment, a theory that I have long endorsed and defended.¹

      Nietzsche does not, of course, give intellectual arguments against the claims of retributivism—arguments that could perhaps be met by counter-arguments. Rather, he offers a diagnosis of those who favor punishment on such grounds—speculating that, for all their high talk about justice and desert, they are actually driven by a variety of base and irrational passions—malice, spite, envy—...

    • Chapter Six Remorse, Responsibility, and Criminal Punishment: An Analysis of Popular Culture
      (pp. 168-190)
      Austin Sarat

      Until relatively recently it might have been said with considerable confidence that at least one emotion is universally welcomed within, and by, the legal system, namely remorse in the face of wrongdoing.¹ The remorseful wrongdoer, it was generally thought, vindicated law’s effort not only to control wrongdoing but to establish legal rules as norms that, as H. L. A. Hart noted, create moral obligations.² “Few ideas,” Scott Sundby claims,

      reverberate at the core of the human psyche as strongly as that of atonement. Both as individuals and as a society, we expect those who commit wrongful acts to seek expiation....

    • Chapter Seven Democratic Dis-ease: Of Anger and the Troubling Nature of Punishment
      (pp. 191-214)
      Danielle S. Allen

      Perhaps the most characteristic feature of twentieth century theories of punishment is a certain unease amongst theorists about how to answer the question “Why do we punish?” In the 1955 “Two Concepts of Rules”¹ John Rawls wrote:

      The subject of punishment has always been atroublingmoral question. Thetroubleabout it has not been that people disagree as to whether or not punishment is justifiable … only a few have rejected punishment entirely…. The difficulty is with the justification of punishment: various arguments for it have been given by moral philosophers but so far none of them has won...

  8. PART III: Love, Forgiveness, and Cowardice
    • Chapter Eight Making Up Emotional People: The Case of Romantic Love
      (pp. 217-240)
      Cheshire Calhoun

      The most common judicial argument for retaining the bar against same-sex marriage is that marriage, by definition, requires one man and one woman. Proponents of same-sex marriage find this definitional argument unsatisfying since it appears to beg the question “Why define marriage this way?” If the answer is that centuries of tradition support restricting marriage to heterosexuals, proponents can point to Loving’s rejection of that same tradition as sufficient reason for preventing two people from marrying.² If the answer is that homosexuality is deeply immoral, proponents can point out that moral abhorrence is not sufficient justification either for depriving individuals...

    • Chapter Nine Fear, Weak Legs, and Running Away: A Soldier’s Story
      (pp. 241-264)
      William Ian Miller

      Statutes make for appallingly tedious reading unless primitively short and to the point as, for example, this provision in the early Kentish laws of Æthelberht (c. 600): “He who smashes a chin bone [of another] shall pay 20 shillings” or this one from King Alfred (c. 890): “If anyone utters a public slander, and it is proved against him, he shall make no lighter amends than the carving out of his tongue.”¹ Yet on very rare occasion a modern statute can rivet our attention and when it does, it seems to do so by mimicking some of the look and...

    • Chapter Ten Institutions and Emotions: Redressing Mass Violence
      (pp. 265-282)
      Martha Minow

      If someone kills your child, tortures your lover, or brutalizes you, it is entirely understandable if you then feel a desire for revenge.¹ It is understandable if you wish that the same fate that person inflicted would befall him. The institution of criminal justice in liberal societies tries to tame or channel these understandable feelings. It transfers the authority and power to respond to private violence from the victim and the victim’s loved ones to the state, and in so doing, cools the likely desire for inflicting comparable harm into a more general commitment to prosecute, and should sufficient evidence...

  9. PART IV: The Passion for Justice
    • Chapter Eleven Emotion and the Authority of Law: Variation on Themes in Bentham and Austin
      (pp. 285-308)
      John Deigh

      Thinking about the authority of law can lead one to dizzying heights of wonder, like those reached in Ronald Dworkin’s Law’s Empire.¹ It can also lead to oppressive depths of despair, like those depicted in Franz Kafka’s The Trial.² The stark contrast between the views of law found in these two works—one of fiction, the other of, well, legal fiction—illuminates old disputes over the nature of law and the grounds of its authority. Is law essentially anything more than a miscellany of imperatives and instructions issued by individuals or groups within a society who are specially designated to...

    • Chapter Twelve Emotion versus Emotionalism in Law
      (pp. 309-329)
      Richard A. Posner

      Much of the behavior that law regulates is emotional—think of the murder of an adulterous spouse, the kidnapping of a child by a parent denied custody, or the daubing of paint on a fur coat by an animal-rights activist. Or it is shockingly devoid of emotion (the “cold-blooded” murder). Or it arouses the emotions—often sympathy for the victim of a crime or a tort and indignation at the injurer, but sometimes sympathy for the injurer, as in killings by “battered wives”—of people who hear or read about the incident. The law itself is conventionally regarded as a...

    • Chapter Thirteen Harlan, Holmes, and the Passions of Justice
      (pp. 330-362)
      Samuel H. Pillsbury

      Unlike politics, religion, or the arts—other fields that regulate, critique, or analyze human behavior—the law is uncomfortable with feelings. Anglo-American legal culture has long held that law is good to the extent that it comes from detached, principled—and dispassionate—decision makers. Thus that quintessential figure of American justice, the judge, dresses in a somber black robe, sits at a high bench, and employs universal principles of reason to surmount the self-interested passions of the litigants. Legal culture demands that judges of all kinds and in nearly all legal settings display “judicial temperament,” meaning that they remain above...

  10. Index
    (pp. 363-367)