Research question: Law and Emotion

Paul Scholten’s General Method of Private law still is one of the most cited sources for Dutch legal theorists, who want to pay attention to the cooperation between reason and emotion in the decision of the judge. The role of emotions in law seems to be a returning issue and in this research question the focus will be on how the present attention for the theme is similar or different from the way it played a role in the Ancient Philosophy and in the nineteenth and twentieth century in the philosophy of the common and civil law tradition.

Articles submitted on this research question


 

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Content

Terry Maroney: The article was on the website since 2015. Until publication in 2020 it had 4543 views and 835 downloads.

Maroney briefly describes the contours of the recent law and emotion movement of interdisciplinary scholarship, which began in the United States and has spread through Europe, the United Kingdom and Australia. A major part of the task of law and emotion scholars has been to find a language with which to persuade traditional legal theorists to understand emotions as something other than irrational. To find this language, Nussbaum, as one of the first, turned to Aristotle who in her view understood the cognitive nature of emotions. So, e.g., the emotion of fear reflects the perception of an immediate and overwhelming physical danger, which sets the body in motion. In hindsight it is possible to appreciate emotions as correct or incorrect. Maroney is interested in teaching anger-management to judges, to teach them to become aware of their anger and to show it at the right time in an appropriate way.

 

Christof Rapp: The article was on the website since 2015. Until publication in 2020 it had 3753 views and 771 downloads.
Rapp argues that the idea that Aristotle would favor an angry judge rests on an extreme and implausible, anti-intellectualist reading of Aristotle. Living in a well-ordered city, being well-educated by parents and teachers, will according to Aristotle help make people virtuous. Virtuous people will be more able to rely on the appropriateness of their emotions. In this sense there is some interaction between emotions and reason. The idea of anger management suggests a form of direct control over emotions, as if Aristotle’s virtue theory aims to provide tips for how to deal with inappropriate emotions. Aristotle’s paradigm case is a moral agent who makes decisions concerning his own life and then acts on them. Rapp argues that in reality a judge does not make decisions concerning his or her own life and happiness, nor does a judge act. Therefore, a judge does not qualify as a paradigmatic moral agent in an Aristotelian sense. This is even more so if you take into account that in ancient Greece it was common to have not a single judge but some hundred jurors of the Assembly.

 

Marco Gardini: The article was on the website since 2015. Until publication in 2020 it had 3334 views and 1195 downloads.
Gardini recognizes a close relationship with Roman law in Scholten’s General Method, which he exemplifies in the footnotes. The Romans (between 200 BC and 250 AD) introduced a two-stage procedure for civil law disputes. The first phase of the judicial process was held before a magistrate (praetor) and was devoted to reaching mutual agreement by the parties about the choice of the facts and the formula in the Edict of the praetor by which the dispute would be addressed. Formulas were different from commands or prescriptions. Only two possible outcomes of the case could be formulated: ‘if it appears that…, condemn’ and ‘if it does not appear that…., absolve.’ In this way the judge and the law were protected from the impact of emotions. The second phase was held in front of a private citizen who assessed and evaluated the facts as a judge. Any external circumstances, such as misconduct of the judge or mendacity of witnesses, were dealt with in separate proceedings. The sons of Constantine I permanently abolished the formula procedure, declaring that cases should be decided by applying rules directly and without the mediation of formulas which had begun to be perceived as insidious traps.

 

Nuno Coelho: The article was on the website since 2015. Until publication in 2020 it had 2561 views and 631 downloads.
Coelho compares Kelsen and Scholten and the role they ascribe to emotions in legal decision making. Both thinkers recognize an inescapable non-rational ingredient – will and/or emotion – in legal decision making. Kelsen recognizes two phases in the process of judging: 1) establishing a set of possible interpretations, and 2) making a choice between these possible meanings. According to Kelsen, rationality can only play a legitimate role in the first phase. The second phase could be decided by any method, including ideology, emotions or simply throwing dice. Scholten, however, makes no demarcation in phases and argues that rationality and emotions are mixed into all dimensions of the proceedings used to arrive at a legal decision. In Coelho’s view Scholten concurs with Kelsen that, objectively speaking, one can see arbitrariness at work in the judicial decision. Yet Scholten emphasizes that legal theory should be transparent about the judge’s task and how this task is founded on the judge’s human responsibility for the act of judging.

 

Luciano Penteado: The article was on the website since 2015. Until publication in 2020 it had 2365 views and 677 downloads.
Penteado explains that an interpreter of a legal rule has to accept that things we call similar are similar in many respects, but not in all. While positivist legal theory envisages the interpreter in a world of necessary laws and absolute similarities, Penteado sees the interpreter as confronted with a world of trembling necessity. The context of legal reasoning is much larger than only the perceived similarities between a concrete case and a general rule to be applied, as it also encompasses foundations, consequences, similarities to other cases and so on. Penteado refers in this respect to von Savigny, who argued that the interpretation of law is not learned by theory but through practice, i.e., by studying previous interpretations, comparable to a painter learning how to paint by studying pictures. Interpretation has much more to do with craftsmanship (techné) than with knowledge (episteme). Jurists must guide their affection to be aware of the diversity of their senses and of the multiplicity of applicable rules. This task can be optimized if the person who decides gets accustomed to it in the sense that he or she develops the ability to decide well, a kind of inclination, which is related to emotion. This can be observed in other fields of human experience as well, such as in music, literature and painting, where organization in styles, tendencies and schools is provided by resemblance of attitude, and not by strict intellectual standards.

 

Possible themes for new article submissions to Law and Emotion

- The theme Law and Emotion deliberately places Scholten’s theory in the wider context of Aristotle’s theory. The question of whether this is a good fit is paramount. Especially relevant in this respect are contributions about the differences between Aristotelianism and Christianity and the implications of these differences for legal theory.

- Another important theme is the difference between two possible interpretations of Aristotle’s view of moral agency. Rapp argues that Aristotle’s moral agent makes decisions concerning his own life. Another interpretation, referring to Nicomachean Ethics,1 is that of the father in the household and of the statesman as two paradigmatic examples of moral agent, which would mean that central to the idea of a moral agent is ‘to take responsibility – authority – over others.’
- It would be relevant for DPSP research when – as a follow-up on the article of Marco Gardini – the Aristotelian philosophy of life would be used as a research perspective for a comparison between the ancient law of Athens, the law of Rome and the conception of formal law of the Historical School.
- There is clearly confusion about Aristotle’s concept of rationality which needs further elaboration. Aristotle distinguishes2 between 1) the scientific rationality of demonstration and deduction with respect to invariable things, 2) the calculative or deliberative intellect concerning variable things and 3) desire, which is irrational. Although in practice it is often not possible to distinguish these three types, it is important to keep the analytical distinction between them in mind when trying to understand the characteristics of intuition. When Maroney shows interest in anger management by judges, she is referring to the first type of rationality: knowledge of rules like medicine, i.e., ‘this treatment will have that effect.’ Penteado does not refer to emotions but to type 2 rationality. He explains that imagination founds the conceptualization of decisions. This is what Aristotle calls intuition. Like Aristotle, Penteado refers to art for this imaginative power to conceptualize.3
- Emotion concerns sensations which cause movement in the body. Often sensations cause movements in opposite directions. It is desire which determines the way emotions are enacted. Humans are gregarious animals, and this seems to make it adequate to understand desire in terms of a drive for love and leadership. According to Aristotle desire is spirit i.e., the capacity of the soul to love and hate, to command, to be affectionate, indomitable and independent.4 To Aristotle desire is the irrational side in people, which gives them a free spirit but keeps them illiterate and unorganized. The rational side of people makes them literate and skillful but brings them at the same time into a state of continuous subjugation and slavery. Greek political organization should aim to achieve a midpoint between these two opposites.5
Coelho astutely observes that the element of desire is missing in Kelsen. It is typical for the Neo-Kantian sociological philosophy of life to ignore authority and judgment. In Athens legal judgment was organized as a public contest between the two possible, equally legitimate positions in a conflict, which were carefully elaborated in the proceedings of the Council. Especially relevant in reference to Scholten’s view on the judicial decision as an act is a comparison between the ancient concept of desire and the Christian concept of love.

 

1. Aristotle. Nicomachean Ethics., 1140a24-b12.

2. EN, 1138b36-1139b2.

3. EN, 1141a9-34 and 1142a25-30.

4. Scholten speaks of the rebel in human nature. “15. De Structuur Der Rechtswetenschap.”, 469, (paulscholten.eu block 64.) Compare also Camus, The Rebel.

5. Aristotle, Politics., 1327b20-1328a19.

 

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