As co-convenor of the new law and emotion stream about to be launched at the SLSA’s 2017 conference, this seems an apt moment for me to pause and reflect on where law and emotion scholarship stands today. Its origins as a field of scholarship can be traced to a conference at the University of Chicago, following which, in 1999, came the ground-breaking anthology The Passions of Law, edited by Susan Bandes. This was one of the first books to explore the relationship between law and emotion, and its opening sentence reads “Emotion pervades the law”. This seemingly simple statement not only forms the basis of research in this area but, in doing so, also offers a significant challenge to more traditional legal scholarship. By siting emotion as intertwined with, interacting with and even part of the law, it dismisses the conventional dichotomy that views emotion as a series of irrational impulses which must be suppressed and disregarded by the rationality of law. Instead, it requires emotion to be acknowledged and explored as an inescapable and valuable part of every facet of legal life, law and justice. As Terry Maroney argues at the beginning of her 2006 taxonomy of law and emotion literature:
“The notion that reason and emotion are cleanly separable – and that law admits only of the former – is deeply engrained, though it recently has come under attack. Law and emotion scholarship proceeds from the beliefs that emotion may be specifically studied, that it is relevant to law, and that its legal relevance is deserving of close scrutiny.”
To consider how law and emotion scholarship has developed since 1999, it is useful to use the stages identified by Abrams and Keren in their 2010 paper “Who’s Afraid of Law and the Emotions”. In this, they argue that there are three useful dimensions involved in such work – illumination, investigation and integration.
The first of these, illumination, refers to work which highlights how emotion is a part of a variety of legal settings. There are a plethora of articles exploring this, from discussions of the role of emotion in property law, through to its presence in the courtroom and its influence within legal education. This body of work challenges traditional assumptions both about and within the law. It questions the characterisation of legal actors as objective and emotionless in their work, and the narrow conceptions of “thinking like a lawyer” which focus on abstract analysis and debate. It also highlights the emotions of those who become enmeshed within the legal system – clients, property owners, defendants, victims and students to name but a few. In doing so, it draws on feminist epistemologies by challenging the objectification of legal actors and drawing on narratives and personal experiences.
The second dimension identified by Abrams and Keren is that of investigation. This draws on insights into emotion from psychology, neuro-science and other disciplines to unpack the emotional content in more depth. In other words, it does not just highlight that emotion is, in fact, present but also seeks to deconstruct the how, what and when. In doing so, it uses inter-disciplinary expertise to provide the specifics in a way which may in the past have been alien to more doctrinal legal scholars. It is arguable that much of the body of work referenced above moves into this realm. Perhaps the most prominent example of this is in relation to work on how emotion impacts on the role of juries and on its inter-relationship with memory with regard to witnesses, as in Bornstein and Wiener’s 2010 anthology Emotion and the Law. Psychological Perspectives.
The third, and arguably hardest to reach, dimension discussed by Abrams and Keren is that of integration. This involves applying the analysis involved in the previous two dimensions in a way which generates normative proposals to address specific legal issues and problems. This may be a case of trying to improve the law by highlighting a previously hidden or obscured emotional dimension. However, Abrams and Keren also suggest that of particular interest in this context is the question of to what extent law can and should itself produce particular effects on the emotions. In this connection they use the illustration of truth commissions and tribunals seeking to foster forgiveness and reconciliation between former enemies. It is arguable that another example of this arises in a different setting when considering current work on the legal profession. In recent years, there has been a significant focus on the role emotion plays in the work of legal professionals. Thus in the US context, academics such as Marjorie Silver and Susan Daicoff have argued strongly and compellingly that law can and should be characterised as a “healing profession”. This raises fascinating questions about how emotional competence in legal professionals can and should be developed and used. If it is seen as a “soft skill”, is there a danger it can be cultivated for commercial ends – to retain clients and enhance profitability? If so, is this an appropriate use or a form of manipulation? There are no answers to this, but many questions which remain to be investigated further.
Thinking about how Abrams and Keren’s dimensions of law and emotion scholarship apply today, it is clear that much illumination and investigation has been and continues to be done in relation to a wide variety of legal topics and settings. However, it is more questionable to what extent this body of work has begun to fully explore the integration of emotion within the law. The example of the legal profession referred to in the last paragraph demonstrates how complex and challenging such issues can be. However, for law and emotion work to continue to evolve, it is necessary to challenge the status quo of the law and to ensure that normative proposals are generated and analysed and such difficult questions addressed. Only then will emotion become a fully acknowledged and utilised part of the legal landscape. As law and emotion scholarship becomes an ever more established part of the legal academy, it seems increasingly likely that this will occur, making this field particularly exciting for those with an interest in the human side of the law.
The SLSA’s new law and emotion stream will have sessions running on Thursday, 6th and Friday, 7th April, including a diverse and fascinating range of scholarship. The co-convenors (Emma Jones and John Stannard) also hope to develop a network of law and emotion scholars. To be on the mailing list for this, please contact email@example.com)