Law and the Passions: Why Emotion Matters for Justice

207 Pages·2019·4.917 MB·English

by  Julia J.A. Shaw

Law and the Passions
Engagingwiththeunderlyingsocial contextinwhich emotionsarea motivational
force, Law and the Passions provides a uniquely inclusive commentary on the sig-
nificance and influence of emotions in the history and continuing development of
legal judgment, policy formation, legal practice and legal dogma.
Although the emotionality of the law and the use of emotional tropes in legal
discourse has become an established focus in recent scholarship, the extent to
which emotion and the passions have informed decision-making, decision-avoid-
ance and legal reasoning – rather than as simply an adjunct – is still a matter for
critical analysis. As evidenced in a range of illustrative legal cases, emotions have
beeninstrumentalintheevolutionofkeylegalprinciplesandhaveproducedmany
controversial judgments. Addressing the latent influence of fear, hate, love and
compassion,thebook exploresthe mutabilityoflaw andits transformative power,
especially when faced with fluctuating social mores. The textual nature of law and
the impact of literary forms on legal actors are also critically examined to further
elucidate the idea of law-making as both rational and emotional, and significantly
as an essential activity of the empathic imagination. To this end, it is suggested
that critical scholarship on law, the passions and emotions not only advances our
understanding of the inner workings of law, it constitutes a fundamental part of
our moral reasoning, and has the capacity to articulate the conditions for a more
dynamic, adaptable, ethical and effective legal institution.
This interdisciplinary book will be of interest to scholars and students in the
fields of law and literature, legal theory, legal philosophy, law and the humanities,
legal aesthetics, sociology of law, politics, law and policy, human rights, general
jurisprudence and social justice, as well as cultural studies.
JuliaJ.A.ShawisProfessorofLawatDeMontfortUniversity,Leicester,UK.Her
interdisciplinary scholarship spans legal theory, law and the humanities, critical and
cultural legal studies, and human rights. Recent publications include ‘Law and the
Literary Imagination: the contribution of literature to modern legal scholarship’ in
The Palgrave Handbook of Philosophy and Literature (2018); ‘From Beethoven to
Bowie: identity framing, social justice and the sound of law’ in International Jour-
nal for the Semioticsof Law31(2) 2018;Jurisprudence(3rdedition,Pearson 2018)
and Corporate Social Responsibility, Social Justice and the Global Food Supply Chain
(Routledge,2019).

Law and the Passions
Why Emotion Matters for Justice
Julia J.A. Shaw
Firstpublished2020
byRoutledge
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©2020JuliaJ.A.Shaw
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BritishLibraryCataloguinginPublicationData
AcataloguerecordforthisbookisavailablefromtheBritishLibrary
LibraryofCongressCataloging-in-PublicationData
Names:Shaw,JuliaJ.A.,author.
Title:Lawandthepassions:whyemotionmattersforjustice/JuliaShaw.
Description:Abingdon,Oxon[UK];NewYork,NY:Routledge,2019.|
Includesbibliographicalreferences.
Identifiers:LCCN2019016903(print)|LCCN2019018263(ebook)|
ISBN9780203797709(ebk)|ISBN9780415631594(hbk)
Subjects:LCSH:Law–Psychologicalaspects.|Lawandethics.|
Emotions(Philosophy)|Compassion–Psychologicalaspects.
Classification:LCCK346(ebook)|
LCCK346.S532019(print)|DDC340/.19–dc23
LCrecordavailableathttps://lccn.loc.gov/2019016903
ISBN:978-0-415-63159-4(hbk)
ISBN:978-0-203-79770-9(ebk)
TypesetinGalliard
byTaylor&FrancisBooks
For Piggy
Although future days may amaze,
today
the sun extends her gaze.
And I sit here,
lazy, in the shade
thinking …
I am all things
I am nothing –
without you.
Each day would mean less than
a sparrow’s fart;
and so …
I hold your kisses in my little black heart,
which (happily) rhymes with –
Hey! ‘let’s never part’.
(Just hope I’m forgiven for this rhyme;
it could’ve been better, but I ran out of time).

Contents
Preface and acknowledgements ix
Introduction 1
1 No slave to reason: The significance of the passions in mapping the
legal landscape 4
The impossibility of reason without passion: I feel, therefore I am 7
Robes and lobes: the convergence of law and neuroscience 9
The logos of law and moral judgment as an emotional lexis 12
Turtles (and the normativity of law) all the way down 15
Intersubjectivity, law’s unconscious and the ethical authority of the
human face 18
The life of law as the life of reason and the passions 22
2 Law, emotions and aesthetic justice 28
The aesthetic influence on legal sensibilities 29
Narrative creativity as the life of law and the law of life 32
From expressivist aesthetics to expressivist ethics 36
Poetry in (e)motion: expressing the inexpressible 40
Through the looking-glass or the mirror crack’d 45
3 Law as fear 52
Fear and evaluative judgments 55
Fear-mongering and the media: implications for justice 57
Where judges fear to tread: law and the politics of fear 62
Fear, fetish, fantasy and legal framing strategies 69
Legal truths and truisms, moral metaphors and moral panic 75
Reimagining the foundations for justice: overcoming the new politics of
fear 81
viii Contents
4 Law as hate 86
Law’s symbolic violence: use of linguistic coercion in the constitution of
the legal order 88
Law’s truth and the Tinkerbell Effect 92
The (in-)visibility of law: ‘secret’ justice is justice denied 97
Law as hate: killing in the name of the law 103
On ideology and language in the classification of legal subjects: ‘them’
and ‘us’ 105
Reimagining the Other as self: the promise of justice fulfilled 111
5 Law as compassion 116
From vengeance to compassion: the two faces of ‘justice’ 118
Compassionate justice and the ethical significance of vulnerability 123
‘Truth waits for eyes unclouded by longing’: ‘enlarged’ (empathic)
perception motivates compassionate judgment 127
Compassion and the criminal justice system 133
Compassion without justice is mere sentimentality: justice without
compassion is but tyranny 140
6 Law as love 144
Determining the ‘right kind of love’: love as a moral emotion 146
Love enriches and extends the scope of the lawyer’s question ‘who is my
neighbour?’ 152
Law and love: against the entitlement of wealth and the obstruction of
justice 158
The heart as law’s attorney: there can be no justice without love 167
The imperative of a sentimental education: in recognition of law as an
activity of the heart, soul and intellect 171
Bibliography 175
Index 192
Preface and acknowledgements
The relationship between law and society, legal practice and principle, reason and
feeling, those ‘inside’ the law and ‘outside’ has never been more significant than
inourfracturedpost-9/11world.Thisbookwaswritteninthecourseofsixyears,
in the context of the global economic downturn, austerity, the UK’s Brexit,
increasing prevalence of ‘hate crimes’, rise of social media and ‘fake news’; along-
sideaseriesofpersonalchallengesduringwhichIexperiencedfirst-handtheretreat
fromcompassionandempathybya broadrangeofonce-caringpublicinstitutions.
In an era of growing disenchantment, self-interest and dispassion, it seemed perti-
nent to investigate what effect the emotions have had, not only on social life but
also on ‘social institutions’ such as law. Throughout my academic career, it has
beenimportanttounderstandthecomplexconnectionbetweenlawandhumanity,
and indeed to explore the underlying influence of the humanities on law and in
shaping the legal imagination. To be able to extend this area of research to the
impact of emotions and the cognitive capacities on the legal institution has been a
pleasure – and now hereis themost important bit.
In struggling to juggle time-bound academic duties with full-time caring
responsibilities it has been necessary to arrange a couple of extended deadlines; so
Iwouldfirstliketothankmylovelyandveryunderstandingcommissioningeditor
at Routledge, Colin Perrin. For their insight, sage advice and tireless patience in
the reading of interminable drafts of this manuscript, I would also like to express
my wholehearted appreciation to Hillary Shaw and Jeffery Shaw. Many people
havegiventheirsupportandencouragement,includingWilliamMacNeil,Thomas
Giddens, Jeffrie Murphy, Les Moran, David Gurnham, Hilary Sommerlad, Mas-
simoLeone,AnneWagner, StevenGriggs,Patricia BlancoandJonathan Davies.I
am also eternally grateful to my ex-Lancaster University lecturers Peter Goodrich
and Costas Douzinas for inspiring me to pursue an academic career, thereby
avoiding the necessity to get a ‘real job’ or at least a job in the ‘real world’. On
that note, a final mention goes to my Head of Department Kevin Bampton who,
for the purposes of a recent university research review, classified my writing under
theheading,‘Law, CultureandtheMeaningof Life’. Manylegalscholarsworking
within law and the humanities might agree that unlocking the answer to this per-
sistent question is the ultimate objective of our fearless, even reckless, forays into
the often murky nether reaches of the law of law.