Carlton J. Patrick
The business of the law is to influence human behavior. To do this effectively, lawmakers must make assumptions about human psychology and how people think. While the behavioral sciences dedicate their entire enterprises to investigating these questions, the law, even at its best, incorporates knowledge from those disciplines in a fragmentary and unsystematic fashion. At its worst, the legal system overlooks or ignores advances in other fields and instead relies on inherited intuitions of behavior that can be both naïve and difficult to enumerate with precision.
Nowhere is this phenomenon more evident than in the law’s longstanding struggle with emotions. Frequently relying on outdated folk psychology, the legal system’s attempts to codify, incorporate, explain, and otherwise reckon with emotions have produced many of the law’s most nebulous and imprecise concepts. Juries, for example, must decide whether a provoked killer acts “in [the] heat of blood” and “from passion, rather than judgment.” Speech is offensive when it “appeals to the prurient interest.” Partial-birth abortions are banned based in part on the conclusion that “severe depression and loss of esteem can follow” even when the court finds “no reliable data to measure the phenomenon.” To recover for intentional infliction of emotional distress, the conduct must be “regarded as atrocious, and utterly intolerable in a civilized community.” And whether punishment is deemed cruel and unusual turns on “evolving standards of decency that mark the progress of a maturing society.”
The ambiguity that typifies the law’s approach to emotion is especially troubling given the ubiquity of emotions in law. Emotions permeate the legal system: explicitly in statutes, legal opinions, contracts and jury instructions, and implicitly in the minds of offenders, victims, judges, juries, lawyers and legislators. Over the past several decades, the legal academy has amplified its interest, producing a wide array of scholarship seeking to clarify and deepen our understanding of emotions. Admirably, legal scholars have pursued a diverse, interdisciplinary approach, incorporating knowledge from psychology, philosophy, sociology, political science, anthropology, economics and cognitive neuroscience in their quest to understand. The contributions from these fields have been invaluable, yet significant disagreement persists and important questions remain unanswered. What role does emotion play in the course of judging? Where does “emotion” stop and “thinking” start? Is one able to reason when in an emotional state? What is the relationship between emotions and rationality?