A glance through the daily news demonstrates that the law—in contrast to the common image of dry reason and objectivity—deals with the full range of human feelings. If the legal system is to act as a force for wellbeing and social justice instead of violence and retribution, this dichotomy must be removed.
Recent events on both sides of the Atlantic illustrate the passions that roil under the surface of the law. On April 26 2016, for example, the families of 96 football fans who were crushed to death inside the UK’s Hillsborough Stadium in 1989 shed tears and shared their elation when a coroner’s inquest recorded verdicts of unlawful killing—but only after a 27-year campaign to exonerate their loved ones from blame.
Or take the anger and recriminations that followed UK retail chain BHS’s move into administration in the same month which put 11,000 jobs at risk. In the US, similar examples include the controversy that erupted around Donald Trump’s recent comments on abortion law and the outraged response of some states to the Obama administration’s new policy on school bathrooms for transgender students.
These stories demonstrate the fact that strong feelings are involved in all legal matters, whether they are experienced by judges, lawyers, juries, defendants or police. It’s not only large-scale, newsworthy events that underline this point but also the smaller ‘bread-and-butter’ of the law. Even a straightforward dispute over payment under a contract can cause worry, sadness, frustration and anger on all sides.
Despite these observations, the law has traditionally stood in counterpoint to emotion by seeing itself as the preserve of reason and rationality. Feelings have been characterised as irrational and dangerous—things that need to be contained or suppressed. But this leads the law to be seen as little more than a series of rules designed to uphold rationality and prevent emotion from encroaching into the smooth regulation of society—which often means the status quo.
In court rooms across England and Wales, the judicial oath requires judges to hear disputes “without affection or favour.” Members of the jury in criminal trials are expected to set aside their emotions, regardless of the subject-matter of the case. ‘When emotion comes in, sense moves out’ as the old saying puts it.
There are two problems with this approach. First, it’s completely unrealistic, since emotions are ever present under the surface of human objectivity—far better to declare and confront them if hidden biases are to be avoided. Secondly, it makes the law rigid and inflexible, something that’s applied mechanistically regardless of the context but is always embedded in certain sets of power relations and assumptions. That means that the legal system’s deeper role and purpose are less likely to be questioned. If the justice system becomes a form of judicial assembly line, then social justice may become irrelevant to the law.
In recent years however, there has been some movement away from the dominant perception of emotion as irrational and dangerous. For example, research by neurologist António Damásio for his book “Descartes’ Error: Emotion, Reason and the Human Brain,” demonstrates that emotion actually has a positive role to play in reasoning. Rather than something that needs to be suppressed, emotion is intertwined with cognition in ways that mean it cannot be ignored, so attempts to suppress it are futile and, in some cases, damaging. Without emotion, decision-making can be shallow, brittle and lacking in a necessary sense of shared humanity.
By integrating these ideas into the work of judges, courts and legal decision-making, a different approach to law and emotion is gradually emerging. Take the case of problem-solving courts in the US and Australia, for example—tribunals which specialize in dealing with criminal cases involving individuals with drug or alcohol addictions, mental health problems, or who are embroiled in family disputes and domestic violence.
These cases are usually heard by a judge who works with a community support team. The focus is on rehabilitation, with the tribunal taking a holistic approach by looking at the wider circumstances leading to the crime and the position of the offender. “Fathering courts” in the US follow similar principles—in this case by offering alternatives to imprisonment in order to encourage employment and the payment of child maintenance, with a focus on improving parent-child relationships.
The value of this approach is also being recognised in England and Wales. In Blackburn for example, young people aged between 10 and 17 and their families are supported by a range of agencies which offer a wide range of resources that are not part of the traditional sentencing process. In these environments, each person’s emotional needs can be acknowledged and addressed, but doing so requires a similar degree of emotional intelligence and empathy from the legal authorities involved.
A particularly interesting development is the therapeutic jurisprudence movement, which originated in the US as a new approach to mental health law when considering a person’s competence to stand trial, or in the process of “involuntary or civil commitments” (a legal process in which individuals are ordered to seek treatment for mental illness). Its co-founder David Wexler describes it as the “study of law as a therapeutic agent,” a “social force” which can have therapeutic or anti-therapeutic consequences in terms of its effect on people’s psychological and emotional wellbeing.
Therapeutic jurisprudence and problem-solving courts have been described as two vectors of a wider movement in the US called “comprehensive law,” which focuses on fairness and wellbeing as goals instead of punishment alone, and on the law as more than a collection of written rules. Instead, the emphasis is on collaboration and social connectedness, aiming to strengthen whatever transformative potential the legal system has.
As part of this movement, “creative problem-solving” encourages legal professionals to draw on other disciplines and perspectives to resolve the challenges they face, an approach that acknowledges that litigation over, say, a property dispute, may not achieve the best resolution. Instead, it considers how the law can facilitate social relationships and achieve substantive justice—rather than simply imposing order. At a practical level, this also enables a wider range of individuals to access the justice system without paying the cost of lengthy legal proceedings.
Although the comprehensive law movement hasn’t had much impact in the UK to date, other interesting work is already being done there on these issues. The Centre for Law and Emotion, for example, is investigating the links between these two sets of forces in relation to refugee law by exploring the ways in which the emotions of decision-makers and the experiences of claimants can influence the asylum-seeking process—whether in terms of perceptions of the claimant’s credibility or through other factors.
All these experiments have one common thread: they aim to change the justice system and transform the legal culture in ways that open them up to new initiatives and innovations that recognise the role of the emotions. In the process, the law begins to acknowledge and respond much more effectively to issues of diversity, empathy, participation, collaboration, problem solving and social justice.
However, though there’s much that’s worthwhile in these experiments, the overall relationship between emotion and the law hasn’t changed much in Western societies in the last 50 years. Mainstream law still rejects the relevance and potential of people’s feelings, and much of the day to day application of the law in solicitors’ offices, legal training, mediation sessions, and negotiations between different parties remains untouched.
My own research aims to fill one part of this gap by focusing on legal education: how might acknowledging emotion improve learning, promote the development of effective legal skills, deepen people’s insights into professional ethics, and promote the wellbeing of law students and their future clients? Is it possible that developing the emotional intelligence of future lawyers would encourage them to practice their profession in a more ethical manner by promoting greater respect for people, expanding access to justice, and promoting non-custodial solutions?
To argue for an acknowledgment of emotion is not to suggest that it should supplant existing legal notions of reason and rationality, or that it should be the overriding influence in every situation. But feelings should definitely feature as a larger element of the discourse surrounding law and legal frameworks. Combining reason and emotion in new ways could prove to be transformative, both for the law itself and for society as a whole—by opening up the justice system, acknowledging the importance of power and social relationships, and fostering notions of individual and societal wellbeing.
This is extremely challenging because it questions Western conceptions of the place of emotion that have been embedded in the law and other institutions since Plato and Descartes, both of whom viewed feelings as separate from rationality and subordinate to reason. However, it could also help to produce a more holistic, effective and inclusive justice system in which the law becomes a more powerful tool in the search for social justice.