In the criminal law context, the Fourth Amendment to the U. Constitution prohibits unreasonable searches and seizures. In determining what is unreasonable, courts often need to evaluate the emotions of either the police officer or other government agent conducting the search or seizure, or of the person complaining about it. For example courts may need to assess whether a police officer was in reasonable fear for his safety, and whether the amount of force he used was commensurate with what he feared. Assumptions about emotion pervade every aspect of law—even less obvious areas such as real estate law.
For example legal scholar Brent White pointed out that courts view individuals who default on their mortgages very differently from corporations or government agencies who do so. At the same time, he argued, courts tend to treat governmental or corporate decisions to default on massive housing projects as purely economic decisions—and therefore no cause for shame White And in the medical realm, the Supreme Court in Gonzales v. For example, judges and jurors widely believe that defendants ought to feel remorse, and that this remorse will be outwardly visible.
When a defendant does not look appropriately remorseful, his sentence is likely to be harsher.
Emotion - Wikipedia
In jury deliberations, jurors may gain or lose credibility with the group depending on the emotions expressed. As one study found, the rules for emotional expression may be gendered. An angry male juror is regarded as persuasive; an angry female juror as shrill, emotional and therefore unpersuasive Salerno and Peter-Hagene Rape law is a fertile area for the study of implicit emotion norms. For example, investigators often believe a rape victim ought to act hysterical rather than calm shortly after the crime. See, for example, the harrowing account of a rape victim whose account was disbelieved and who was charged with perjury for reporting the rape, based largely on her flat affect Miller and Armstrong Once rape victims appear in the courtroom, however, one troubling study found that judges in Minnesota adjudged these victims most credible when they expressed compassion or forgiveness for their assailant, rather than anger Schuster and Propen It is important to emphasize that not every use of emotion in law is based on unsupported assumptions.
For example, there is a growing body of research showing that apologies by doctors decrease the likelihood they will be sued for malpractice Korobkin and Guthrie Law and emotion scholars aim to subject these beliefs to scrutiny, identifying misconceptions and gaps in understanding. In addition, some assumptions are not empirical in nature at all: they rest on normative views about how people ought to act. These assumptions, too, must be debated and evaluated, but they cannot be definitely proved or disproved. Let us turn first to some explicit empirical assumptions.
The psychological literature shows this assumption to be false: rather than reforming offenders, shaming punishments often have the opposite effect— stigmatizing offenders in ways that discourage them from improving their behavior and instead make them feel worthless and hopeless Massaro I have also discussed how laws governing the workplace prohibit certain types of behavior, such as sexual harassment or creating a hostile environment, in part on the grounds that these behaviors are humiliating.
Catherine Fisk argues that courts have no firm grasp on the concept of humiliation. She draws on psychological literature that views humiliation as an interpersonal emotion involving at least a triad: a humiliator, a victim, and a witness whose good opinion matters to the victim. The victim may experience a range of emotions, including shame, embarrassment, rage and despression. She argues that courts too often underestimate the harms humiliation inflicts upon the victims, do not understand the toxic effects of humiliation on the workplace culture as a whole, unrealistically demand evidence that the humiliating behavior had physically measurable effects on the victim, and do not understand the range of emotions an episode or a culture of humiliation might evoke.
In her view, this inaccurate understanding of humiliation protects behaviors that ought to violate laws against workplace harassment. Carhart v. Gonzales, the late-term abortion case, stands as one of the clearest examples of decision-making based on assumptions that are not only unsupported, but contradicted by the available evidence. Chris Guthrie was one of several scholars who argued that the Court misunderstood the dynamics of regret and ignored the available evidence that most women who choose abortion manage their feelings of regret and use them in constructive ways.
Their primary feelings are positive emotions like relief Guthrie The empirical assumptions that go unstated are particularly hard to evaluate. Such subconscious scripts also permeate the courtroom, and many of them are quite harmful. These widespread assumptions often lead investigators to disbelieve claims of rape unless the victim appears highly emotional. For example shock, denial and other common responses may lead rape victims to display outwardly unemotional affects McKimmie, Masser and Bongiorno It is worth noting that since jury deliberations occur in secret and U.
Now that the role of perceived remorse has been documented, the U. Another implicit assumption about remorse that drives both juries and judges is that a remorseful offender is unlikely to offend again see e. Beserra This too is an empirical assumption with little evidence to support it Proeve and Tudor Here is a rich set of research questions, and until these issues are explored, defendants will continue to be sentenced to death and long prison terms based on unexamined assumptions about remorse.
The case I introduced earlier about the strip search of the middle school student demonstrates that at times the legal system can examine and correct its own assumptions—at least if it is open to a multiplicity of viewpoints. At the oral argument in the case, it became clear that many of the judges did not understand how degrading such a search would be to a thirteen year old girl. They assumed it would be similar to the experience—with which they were quite familiar— of male student athletes suiting up in a school locker room. The ultimate decision in the case reflects that the Court came to view the strip search as unduly intrusive and degrading.
Safford v. Redding The examples above focus on assumptions about how particular emotions work, or what emotions people display in particular situations. These are empirical questions that can be investigated by pyschologists, criminologists, and others who study human behavior. Some have normative dimensions that may be illuminated by philosophy. For example, jurors believe that criminal defendants who feel remorse are less culpable.
In part this is an unsupported empirical assumption that such defendants are less dangerous, more empathetic, or less likely to repeat their bad conduct. In Carhart v. To Justice Kennedy, this may have seemed an accurate description about what pregnant women feel, but it also happens to track what he believes pregnant women ought to feel.
Notions of romantic love raise similar issues. As Cheshire Calhoun wrote, many of the opponents of same sex marriage simply could not conceive of the bond between two same sex partners as a bond of romantic love, because to them romantic love and intimacy were possible only for a man and a woman, and only for those who could engender biological offspring. Some questions about what role emotions should play in the law are more purely normative.
This is a question that philosophy can illuminate see e. Murphy , though it is ultimately for the legal system to decide. In a similar vein, the criminal law treats some homicides as more culpable than others. As mentioned earlier, a homicide committed in the heat of passion is considered less serious than a calculated homicide accompanied by no discernible emotion at all.
Psychology can inform us about the emotional states that accompany homicides; it cannot determine whether passion or cool calculation should be more serious in the eyes of the law. One of the early, influential philosophical debates about law and emotion centered on the role of disgust in the law.
Legal philosopher Martha Nussbaum argued that disgust ought to play no role in law she makes the same case for shame, and, in her most recent work, for most forms of anger as well. As a result, disgust can lead to discrimination against women and other marginalized groups based on bodily aversions. Dan Kahan responded that disgust has a useful moral dimension—it helps us identify conduct that the law ought to condemn. It is important to emphasize that even when law rests on demonstrably wrong assumptions, it does not necessarily follow that the law must change.
Whether reform is necessary is ultimately a legal question. And as a normative matter, the question of what counts as a mental illness that makes an accused murderer less culpable or excused from criminal liability entirely is ultimately a legal question, not a psychological one.
Morality and the Emotions
Nevertheless, the disconnect between folk knowledge and actual knowledge about emotions often matters greatly, and when it does, a variety of corrective actions may be possible. Shaming punishments are a case in point. In other cases, corrective actions are less straightforward. Consider the remorse example once again. Juries are sentencing men and women to death based in part on their misguided faith in their own ability to read remorse from facial expression and body language.
The solution in this case is a bit more complicated. The problem with remorse is part of a larger problem with courtroom decision-making.
The U. This assumption is highly questionable Wellborn , but it persists. And as long as juries are encouraged to observe the demeanor of the accused, they will tend to look for evidence of remorse, and judge harshly when their expectations go unmet. Some possible solutions to this problem include having judges instruct juries not to take remorse into account, or providing expert witnesses to testify to the problems with evaluating remorse generally and in specific situations such as cases involving juveniles.
Whether expert testimony and jury instructions are effective in guiding juries is yet another important research topic. One barrier to understanding emotion, as Arlie Hochschild pointed out long ago Hochschild , is the misconception that emotions are private and internal. Studies of the emotions of individuals in labs have yielded many important insights, but they cannot capture the complex dynamics of emotions unfolding in real-life contexts.
Mock jury studies that focus on individual jurors cannot capture the interplay of emotions during jury deliberations. There are promising new studies focusing on the collective dynamics of the jury room, such as work by psychologist Sam Sommers on how the racial composition of the jury affects deliberation Sommers There is some work on how the collective setting affects juror emotions, such as the study of angry jurors and gender discussed above.
Sociologists see e. Turner and Stets and criminologists see e. Karstedt et al are increasingly focusing on the role of emotions in group and institutional settings, and this focus ought to be more fully incorporated into Law and Emotion studies as well. Legal institutions can be improved in light of current knowledge of emotional dynamics. Here is another example. There is a disturbing pattern of prosecutors refusing to revisit wrongful convictions, even of those on death row.
The emotional dynamics of the office help explain this phenomenon.
Prosecutors feel loyalty to victims and their families, and gain satisfaction from helping victims. They may feel reluctant to deliver distressing news or to reopen old wounds. Moreover, prosecutors who question convictions may be perceived as disloyal to their colleagues and their office, and may be shunned.
The emotional impact of shunning—or of belonging—can be a powerful incentive Bandes b. The focus of the essay thus far has been on the emotions that influence legal decision-making and that shape legal institutions. Just as important, the legal system and legal rules can shape or guide emotions and emotion norms Bandes and Blumenthal The interplay among public opinion, social norms, and the development of law is complex and bi-directional.
Consider the example of same-sex marriage discussed earlier. This decision evoked outrage which led to a powerful political movement Gould Texas and in , the Court held that there is a constitutionally protected right to same-sex marriage Obergefell v. To take another example, law helps shape norms about appropriate punishment. It can encourage, discourage or channel the emotions that underly the urge to punish Darley Or, as in the example about mortgage defaults above, it adopts and communicates norms by framing acts as not merely illegal but shameful.
More generally, legal decisions, rules and institutions can help shape norms about empathy, tolerance and other values.
Debates about how to structure legal institutions must focus on what goals those institutions ought to achieve. They must also be informed by accurate knowledge about human behavior and human emotion, by a realistic appraisal of how much there is still to learn, and by a determination to fill in those gaps in knowledge.
Abrams, K. Ahmed, E. Shame, pride and workplace bullying, in Karstedt, S. Oxford, UK: Hart. Bandes, S. Bell, D. New York: Basic Books. Bowers, W. University of Pennsylvania Journal of Constitutional Law 3, Darley, JM Sci 5: Duncan, M. Columbia Law Review, , Gould, D. Passionate Politics: Emotions and Social Movements. Chicago: University of Chicago Press. Guthrie, C. Carhart, Constitutional Rights, and the Psychology of Regret.
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Emotions, Values, and the Law. Description Emotions, Values, and the Law brings together ten of John Deigh's essays written over the past fifteen years. In the first five essays, Deigh ask questions about the nature of emotions and the relation of evaluative judgment to the intentionality of emotions, and critically examines the cognitivist theories of emotion that have dominated philosophy and psychology over the past thirty years.
A central criticism of these theories is that they do not satisfactorily account for the emotions of babies or animals other than human beings. Drawing on this criticism, Deigh develops an alternative theory of the intentionality of emotions on which the education of emotions explains how human emotions, which innately contain no evaluative thought, come to have evaluative judgments as their principal cognitive component.
The second group of five essays challenge the idea of the voluntary as essential to understanding moral responsibility, moral commitment, political obligation, and other moral and political phenomena that have traditionally been thought to depend on people's will. Each of these studies focuses on a different aspect of our common moral and political life and shows, contrary to conventional opinion, that it does not depend on voluntary action or the exercise of a will constituted solely by rational thought.
Together, the essays in this collection represent an effort to shift our understanding of the phenomena traditionally studied in moral and political philosophy from that of their being products of reason and will, operating independently of feeling and sentiment to that of their being manifestations of the work of emotion.
No one writes better or thinks more productively on that area of thought where the theory of the emotions, psychoanalysis, value theory, and the theory of law intersect.