Editor’s Column – Emotions and Law Issue


Andrea Scarantino, Department of Philosophy & Neuroscience Institute, Georgia State University

October 2016 – In a poignant passage of To Kill a Mockingbird, Harper Lee makes the following remarks: “in our courts, when it’s a white man’s word against a black man’s, the white man always wins…The one place where a man ought to get a square deal is a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box”. As it turns out, it is not only resentments that jurors carry into the jury box, but a panoply of other emotions, including among others empathy, anger, hatred, loathing, fear, anxiety, sadness, grief, compassion, mercy, disgust, and pity.

This is true whether the jurors are black, white or any other color of the rainbow, even though Harper Lee was certainly right to emphasize that racial discrimination, beginning long before cases are tried by juries, is pervasive in the American justice system. Furthermore, jurors are not the only legal actors who are deeply affected by their emotions. Judges, prosecutors, defendants, attorneys, clerks, witnesses, experts, family members, spectators, policemen, prison administrators, probation officers, and legislators are all swayed in complicated ways both by their own emotions and by their understanding of what emotions other actors are feeling.

Does the murderer feel remorse for what he did? Is the rape victim deeply distraught? Was the policeman genuinely in fear for his life? Was the aggravated battery committed in the heat of passion? Is the sexual abuser ashamed enough not to repeat the offense?

Until very recently, we had no systematic understanding of how emotions affect the law. This is because the law largely embraced an age-old fiction, namely that legal actors are, or at least ought to be, passionless practitioners of pure reason. The emergence of Law and Emotion as a field of investigation, ushered in partly by the downfall of the reason-passion dichotomy in the sciences of mind, is finally starting to dispel this fiction, shedding much needed light on how the emotions of legal actors affect the legal system.

As Susan Bandes points out in this issue’s opening article, the guiding principle of Law and Emotion is that the law should make its assumptions about emotions explicit, and evaluate them in light of the best available scientific evidence. In many cases, the assumptions are not only implicit, but also based on non-existent or faulty evidence. For example, it is commonly assumed that whether a defendant is truly remorseful is easily perceivable, or that “shaming” punishments can function as deterrents. Both assumptions have a major impact on how defendants are sentenced, but they are highly questionable in light of psychological evidence: remorse is not reliably expressed in facial expressions or body language and “shaming” punishments often discourage offenders from improving their behavior rather than work as deterrents. After exploring a variety of other examples of implicit and/or problematic assumptions about emotions in the law, Bandes proceeds to discuss some possible ways in which better knowledge about how emotions work could lead to legal reform.

Terry Maroney focuses her attention specifically on the emotions of jurors and judges. With respect to jurors, she points out that current studies rely largely on mock jury experiments, which have significant heuristic limitations. Bracketing those, Maroney explores how emotion-congruency mechanisms and affect-as-information mechanisms may explain some of the empirical data on how anger and sympathy in particular affect juror’s judgments of blameworthiness and deserved punishment. With respect to judges, Maroney explores the detrimental effects of holding judges accountable to an unrealistic standard of “dispassion”. The ideal of dispassion in effect forces judges to hide their emotions, and ultimately stands in the way of distinguishing legitimate from illegitimate influences of emotions on the decision-making of judges.

Sam Pillsbury’s article explores the relation between emotions and theories of punishment. Pillsbury reminds us that there are two main theories of just punishment. According to the theory of punishment as retribution, punishment is just if it is deserved according to the nature of the wrong done.  According to the theory of punishment as deterrence, punishment is just if it deters future wrongs by the offender and by society at large.  In either case, it is assumed that sentencers will make decisions about punishments largely unencumbered by emotions. Pillsbury points out that in real life things work quite differently, because the application of both retributivist and deterrentist principles is far from emotion-less. The article then proceeds to explore whether emotional expressions by victims and defendants at sentencing provide information that is relevant to determine either offender culpability (for retribution) or offender’s future dangerousness (for deterrence).

Eyal Aharoni and Nicole Vincent introduce the emerging field of neurolaw, which focuses on how neuroscientific knowledge can inform legal decisions, by using psychopathy as a case study. One of their main points is that we have to be careful in applying neuroscientific results to legal settings. First, the notion of emotion implicitly held in legal doctrine differs in various ways from the notion of emotion used in neuroscience. Second, the scientific determination that an agent’s capacities are impaired, as they appear to be in the case of psychopathy, is not the same as the legal determination that an agent’s capacities are impaired. As they note, a diagnosis of psychopathy is almost never legally excusing. In the later part of their paper, they explore some possible reasons why neuroscientific and legal criteria of impairment may differ.

In his customary ISRE Matters column, Arvid Kappas, ISRE’s President, writes on the theme of emotions and the law, focusing on how different theories of emotions may influence the way we think of responsibility in the commission of a crime. Kappas argues that our assessments of legal guilt will be fundamentally different depending on whether we think of emotional responses as being reflex-like, and consequently not the result of choice, or whether we think of emotions as biasing, in ways we may or may not be aware of, our decision-making.

The Young Researcher Spotlight is on Eva Krumhuber, who works on emotional expressions, studying in particular their dynamic change over time. In her research, Krumhuber has explored how the speed at which a smile unfolds affects the degree to which it is perceived as authentic (roughly, the shorter the onset and offset of the smile, the less the smile is perceived as authentic). Generalizing from this research, Krumhuber has argued that we should move beyond the static pictures of facial expressions traditionally used by basic emotion theorists, and include in our exploration of the affective meaning of expressions contextual information about their temporal dynamics.

Last but not least, the interviewee of this issue is Jim Russell, one of the world’s leading and most cited affective scientists (44,744 citations as of today!). In his interview, Russell tells us about how he became interested in emotions, and how early in his career he came to develop the influential concept of the circumplex. Russell also clarifies what underlies his trademark skepticism about traditional emotion theories, which is grounded both in the realization that emotion concepts have a prototype structure and in evidence about their cross-cultural variability. Russell also reminisces about his editorship of Emotion Review and outlines his current attempts to integrate psychological constructionism with other research programs in affective science.

To whet your appetite, let me also say that a new issue of ER on Emotions and Politics is in the works. It will be published a little after the US Presidential elections, and it will all help us make sense of the wild, unexpected, scary, entertaining, silly, and momentous campaign we are all witnessing. As usual, be in touch with comments, suggestions, ideas for future issues, feedback on the website, and anything else that strikes your fancy. And enjoy this issue!


Previous Editor’s Columns

Editor’s Column – Understanding Guilt Issue

Editor’s Column – Understanding Love Issue

Editor’s Column – Facial Expressions Issue

Editor’s Column – Emotional Intelligence Issue

Editor’s Column – Musical Emotions Issue

Editor’s Column – Emotions and Social Engagement Issue

Editor’s Column – Understanding Disgust Issue

Editor’s Column – Emotional Brain Issue

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