The issue of emotions and the law has been subject to a fair amount of analysis, and there are two aspects to this I will address in two blogs. First, we need to acknowledge the role of emotions in the law, which then leads on the need to reflect this in legal education. This blog deals with emotions in the law.
I will argue that emotions are an important aspect of a responsive legal system. My interest in this issue comes partly from the biomedical perspective of emotions and moral decision-making. Looking at the neurological basis for the human capacity for moral judgement, there are clear links to emotion. Time after time, legal and ethical decisions pay at least some deference to our moral instincts. The main deficit that psychopaths have is a lack of emotional understanding of the suffering of others (empathy).[1] Whilst this could be a useful characteristic for certain areas of practice such as corporate law, it would not be desirable in other areas nor in the judiciary.[2]
Jones in her monograph refers to the Cartesian division between mind and body, and compares it to the divide between rationality and emotion.[3] Modern scientific thinking rejects Cartesian dualism, with the role of emotion in moral decision making firmly established.[4] The principle of mercy rests on an appeal to emotion. Portia appeals to Shylock for mercy in The Merchant of Venice (before saving Antonio by the use of hard-headed law). One of the overt themes of the play is the contrast between justice and mercy.[5]
The Chancery courts are focussed on justice and flexible thinking over hard and fast rules. This approach lends itself far more to heuristic reasoning, which is the form of thinking that relies on emotional cognition the most.[6] Equity would make short shrift of the legal issue faced by Antonio, as the remedy would be unconscionable. Determining whether or not something is unconscionable is arguably in the realm of fast heuristic judgement rather than slow deliberative reasoning.[7] As I explain it to my students, the “sniff test”, or more formally, our moral intuitions.
Lord Denning notably used equitable principles throughout his judgments, and he is often categorized as an equity judge. Some would argue that his main source of jurisprudence was actually his Christian faith. which encompasses the equitable principles and remedies which Lord Denning embraced so fully (although others argue Lord Denning’s rulings were more based on the interrelated principle of natural law).[8]
However, the general rowing back or at least judicial disapproval of many Denning judgments perhaps reinforces the point that the justice system continues to resist these principles. His sobriquet of the “people’s judge” was a testament to general attitudes about what approach the courts ought to take, even if this caused difficulties for his peers.[9] Lord Denning championed an approach that Menkel-Meadow describes as feminine – looking at people and relationships rather than abstract generalisable principles.[10] Likewise, the decision of Pearce LJ on mistake of identity in Ingram v Little [1961] 1 QB 31 rested on the characteristics of the people involved rather than trying to create any generalisable principles.
The feelings of those who currently are not served by the law are a vital ingredient in improving the law, and we should nurture this. The perspectives of ordinary people should not be considered irrelevant to legal reasoning.[11] For example, we can contrast two approaches to contract law as described by Adams and Brownsword – formalism and consumer-welfarism.[12] Most undergraduate law students prefer formalism in my limited experience. It is more predictable, and it privileges legal knowledge to a greater extent. It favours the party that constructs the contract. The public are likely to prefer consumer-welfarism, which takes a rather different approach. Another example where the feelings are paramount is when a patient lacks capacity. Understanding their emotions is key to understanding their best interests.
I believe judges need to have an appreciation of what seems like justice to the public, although this does need to be tempered by considerations of consistency and wider policy. Given the enduring popularity of figures like Lord Denning, I believe this approach might lead to fewer people thinking that the law is an ass. I would submit therefore that it is important that our teaching of the law preserves the ability of our students to connect with their feelings about the law and justice.
[1] Essi Viding, Eamon McCrory, and Ana Seara-Cardoso, ‘Psychopathy’ (2014) 24 Current Biology R871
[2] Ian B. Lee, ‘Is there a cure for corporate psychopathy’ (2005) 42 Am. Bus. LJ 65; Kevin B. Riech, ‘Psycho lawyer, qu’est-ce que c’est: the high incidence of psychopaths in the legal profession and why they thrive’ (2005) 39 Law & Psychol. Rev. 87
[3] Emma Jones, Emotions in the Law School: Transforming Legal Education Through the Passions (Routledge 2019)
[4] Antonio Damasio, Descartes’ Error (Random House 2006)
[5] Carrie Menkel-Meadow, ‘Portia in a different voice: Speculations on a women’s lawyering process’ (1985) 1 Berkeley Women’s LJ 39
[6] Caroline Maharg ‘Why Study Emotion?’ in Caroline Maughan and Paul Maharg, (eds), Affect and legal education: Emotion in learning and teaching the law. (Routledge 2016)
[7] Daniel Kahneman, Thinking, Fast and Slow (MacMillan 2011)
[8] Andrew Phang, ‘The Natural Law Foundations of Lord Denning’s Thought and Work’ 14 Denning Law Journal 159
[9] Ibid; Clare Dyer, ‘Lord Denning; controversial peoples’ judge dies aged 100’ (Manchester, Mar 6th 1999) The Guardian 9; Edmund Heward, Lord Denning: A Biography (Weidenfeld & Nicolson, 1991); we should acknowledge that Lord Denning had a mixed record on supporting the rights of women and ethnic minorities.
[10] Menkel-Meadow (n5)
[11] Jesper Roberts, and Julian Ryberg (eds.) Popular Punishment: On the Normative Significance of Public Opinion (OUP 2014); Lucas Noyon, Jan W. de Keijser, and Jan H. Crijns, ‘Legitimacy and public opinion: a five-step model’ (2020) 16 International Journal of Law in Context 390
[12] John N. Adams and Roger Brownsword, ‘The Ideologies of Contract’ (1987) 7 Legal Studies 205