ISRE Matters – Emotions and Law Issue


Dr. Love

Arvid Kappas, Psychology, Jacobs University Bremen, ISRE’s President

Why Did the Shark Do That?

October 2016 – Many years ago (>20 years), during an ISRE dinner, I was seated next to Phoebe Ellsworth, who, of course, holds the Frank Murphy Distinguished University Professor of Law and Psychology at University of Michigan. We had exchanged some lawyer jokes over the course of the evening (I still remember one about people stranded on an island and it involved sharks – ask me to tell you the joke the next time you see me), and I felt that our conversation (including the jokes) was one of highlights of the evening. However, it was only in the days following that I thought more seriously about the connection between emotion research and the law. Something I hadn’t done before. And then, it disappeared again in some stack of my memory.

Do you do emotions* or do they make you do stuff?

Fast forward, perhaps two decades, and a very persuasive student convinced me to give her an independent studies course on criminology. I knew immediately that my impulse to accept her request was probably a mistake and that it would cost me dearly in time that I did not have. But a promise is a promise. We agreed on an introbook to provide the structure of the course and then I went off to learn a bit about criminology. To my amazement and possibly shock there appeared to be a dominance of rational choice theory in the text. Basically, according to this view, people did bad things, because they decided to do bad things. Those of you who know me, know that I am not a friend of rational choice theory. Actually, come to think of it, few emotion researchers are friends of rational choice theory, regardless of their disciplinary background. And that time, a few years ago, was when I started to think a bit more seriously about Emotions and the Law, the topic of this issue of the Emotion Researcher. While the contributions in this issue deal primarily with the emotions of humans in the legal system, such as judges or jury members, I will address briefly the issue of how we conceive of emotions as playing a role in committing crimes. This has important implications for the assessment of legal responsibility.

* The section title refers to Averill’s notion that we perceive emotions as passions – things that happen to us, but that they are essentially actions – transitory roles that we might choose to enact. In this sense we may do emotions.

What kind of relationship do we believe emotions and criminal actions to have?

One of the fascinating aspects of emotion research is that there is a large variety of theories on whether emotional states are discrete or continuous, how many emotions there are, how they are expressed, and how the different emotional components relate to each other. Some even use the term “emotion” as being synonymous with “feeling”, while others think of emotions as syndromes that encompass responses to external or internal events that are explicitly or implicitly processed (appraised) and that cause changes in central and peripheral physiological activity, expressive behavior, subjective experience, and action-tendencies or -readiness. Whether emotions are mere feelings or complex syndromes, the question is: Do they make us DO anything? To develop the point a bit, is the relation between emotions and actions reflexive and standardized, or do emotions just change the probability of the occurrence of certain behaviors? If the latter, does the individual have a genuine choice to follow the action tendency suggested by the emotion?

Scherer, for example, has proposed that emotions decouple stimuli and fixed reactions, as would be the case in reflexes. In this case, the individual would have a choice to act in a particular way. Other theories inspired by James have been interpreted to mean that emotions do not really make you do anything, because they would come too late in the causal order. You do not strike because you are angry, but rather are angry because you strike. However, this is mainly because James talks about feelings and is a bit vague on the elicitation of what most people today think of as emotion (see also Ellsworth). The way we settle the question of emotion-action causation is very important with regard to the relationship between emotions, free will, and actions.

When deciding how guilty we consider an individual in certain circumstances to be or what punishment would be appropriate, it is intuitively crucial to establish whether their actions were freely chosen.

Consider the following three possibilities:

1) Emotions are  crucial part of a conscious analog information-processing system that gives us a short-hand summary, coached in terms of feelings and perhaps felt action tendencies (consider the Feelings-as-Information Theory). Example of a hypothetical internal monologue:

There is person X who did something to me, and I feel like I want to pour my glass of beer right over his head. Now! But maybe I won’t – it would not change the cause of my problem with him and besides, he’d probably do something rather unpleasant to me – so I just won’t do any such thing. (perceptions are neutral, I am aware of my feelings and they help me to decide what to do – this is somewhat of a straw man position for the sake of my argument, as few humans will feel this neutral and detached while being aware of emotional tendencies).

2) Emotions bias my perceptions, judgements, and behaviors in ways I don’t even know and realize. Example of internal monologue:

This guy is an idiot, I never liked him in the first place, I won’t support his bid for the promotion. (Here there seems to be freedom of action, I am not aware that my perception of the situation is already very much affected by the emotional processes triggered by the events at hand).

3) Emotions hijack our behavior and make us act.

Yes, I told him he was an idiot. To his face. I know that was stupid, but at the time I was so upset, I just said it out loud, spontaneously, whether it was a good idea or not. (Here the individual is driven by passion – or perceives it this way).

It is clear that, on the one hand, these scenarios relate to how we conceive of emotions from the layperson point of view. As Jim Averill has pointed out – lay-folk tend to perceive emotions as passions – things that happen to us, rather than as actions – things we do. If we do emotions, in the sense that there is a free will to enact the roles that the emotions would suggest, then indeed punishment might be swift. If I know that I have been insulted, and my culture knows the role of the male in a particular position that has the right to physically attack another male under such circumstances, then I can simply let go, punch someone, and do what was proper in that situation. People would understand. They would say that what happened was simply what had to happen, given that anger was righteous, the behavior was accordingly appropriate.

So how is a judge, or a jury to think of emotions? Are we slaves to our emotions? Do they rob us of personal responsibility? Are they something like drugs, or alcohol? The consequences of the way we think about these questions are enormous. By affecting how legally guilty we take agents are in emotional situations, they can make a difference between whether someone spends life in prison, a few years, or is acquitted. And who can provide the judge with scientific evidence on the matter? We, emotion researchers? Apparently. So, if I say “Emotions last between 500ms and 4000ms”, as some of us think, then it is plausible that I punch someone who pours a glass of beer over my head because the emotion made me do it. It’s all within the super-brief time window of four seconds. But what about that nasty thing I did to that nasty person who said the nasty thing about me yesterday? Is that still the same emotion driving my behavior today? Can I be debilitated by the “mysterious powers” of my anger for a day, or weeks, or years? Or is revenge a dish best served cold?

These types of thoughts also occur when looking at so-called honor crimes. Someone might kill his sister because she was seen with another man, bringing shame to the family. Is that shame an emotionally cool cultural concept that implies a change in the meaning structure of the value of my family’s worth in my social network? Or is that shame a hot emotional spear through my heart that constantly makes me tremble and sweat? In other words – is it cold or hot? These issues of how emotions relate to behavior are crucial to how we interpret whether a particular behavior is acceptable or not, and to what degree laws should sanction it.

Perhaps you get intrigued if you did not yet think about emotions and choice, or emotions and actions in that way and how your own research relates to emotions and law. Arnold and Frijda for example thought of emotions as changing action tendencies, or changes in action readiness – a bias of response hierarchies if you will that reorganizes the probability of certain behaviors to occur.

A short side note for my appraisal friends – why is the intensity of emotions so high in certain territorial contexts, such as someone cutting in a queue at a supermarket, or sneaking into our parking space? In both cases people may literally rage, even if the relevance of the goal violation (in appraisal terms) is not so high. Or are there biologically prepared goal violations that involve territory, partner fidelity, and a couple of other ones – oh, I smell a nice topic for a debate here …

The Emotion Issues that Call the Emotion Researchers’ Bluff

These days, I spend much time in the context of affective computing and I enjoy it very much, because trying to build emotional systems means that one has to be explicit regarding one’s assumptions of what emotions are – or, as Nico Frijda would put it, about “The Laws of Emotion”. There is no hiding behind “no comment”, “we do not know”,we are not sure” or “come back in 5 years”. Artificial emotion systems are beingimplemented as we speak, so we, as emotion researchers, must take position on all thorny questions relevant to building systems such as emotional robots.  In practical contexts there is a necessity to be explicit with regard to what emotions actually do, how long they last, and to what degree (successful) regulation of them could or could not occur. This is particularly the case in a legal or crime contexts. And just like the robot implementer must make a decision, so must the judge.

So we better think hard about these questions – how long do emotions last? Are there affective behaviors that could not be regulated? Or are there even situations or events that have to be appraised in a particular way that behaviors are unconditional. To complicate matters – apart from these issues somehow related to free choice, there is the issue of what stance to take from the outside. Guilt and punishment are never independent of a societal consensus. Many countries, for example, will argue that someone who is a child, someone who is mentally not an adult, someone who is intoxicated or is suffering from some psychopathology might not be as responsible as a healthy adult of the same society. Hence, they should not receive the same type of punishment. Here, emotion researchers might give advice, but when it comes to issues of responsibility of action, emotion researchers probably do not step up to the plate. It really matters how we think about emotions, it really matters to what degree there are empirical data that support our point of view. The ubiquity of autonomous machines also triggers much thought regarding responsibility and guilt in machines – but I will leave this for another occasion.

Are You Planning Already?

picture1One more thing before I close – we are getting more concrete regarding the planning of our next conference. As posted on the list-serve, our Facebook page, and our twitter stream – the next ISRE meeting will take place in St. Louis, MO, July 26-29, 2017 at the Chase Park Plaza Hotel. Check out the time-line for submissions in the Call for Papers posted on the front page of Emotion Researcher.

By the way, at the ISRE2017 meeting my term as president of ISRE will end, unless we change the bylaws so that I can remain for eternity and beyond. I assume this to be an unlikely event, so we will need someone to take over. If you want to propose someone, please send a mail to Self-nominations are possible.

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