by Aryeh Amihay
Whenever I hear someone mentioning Apples and Oranges as incommensurable, I smile: After all, they are both fruit, and this fact strikes me as a fairly sound basis for comparison. Instead of “Apples and Oranges,” I prefer to talk about “Shoes and Unicorns.” I rest assured that someone will rise to the challenge of finding some common denominator between those two as well, but at least the connection is not as obvious as Apples and Oranges. To begin with, shoes are real and mundane; we see them and use them almost every day. Unicorns belong to a world of fantasy; if we were to see a unicorn, it would not only be more extraordinary than seeing a pair of shoes, it would most likely shake the foundations of our knowledge of this world. And even if one should refuse to accept that unicorns are not “real,” because we are able to think of them, they are still very distinct from shoes, since they are a “living thing” as much as they are real, whereas shoes are inanimate objects, even in a world of unicorns.
I began with an elaborate example of how to compare different or similar things, because it is the issue that concerns me the most when thinking of the concept and sub-discipline of law and emotion. Specifically, I want to ask whether “Law and Emotion” is more like “Apples and Oranges” or more like “Shoes and Unicorns.” In other words, whether the two categories have anything a priori
Ever since Aristotle's Categories
, and in growing intensity with the postmodern turn towards interdisciplinarity, we are faced with the problem of the relation of disparate studies. On the one hand, if there are separate categories, then they are not one and the same. On the other, as we well know from our experience, the fact that two things are separate and independent does not annul any sort of relation between them.
Law and emotion, some might argue, are such two independent terms, which exist in very separate and distinct spheres of human experience. And since they both belong to the realm of human experience, and especially human civilizations and cultures, there are ways to show they relate to one another. But this, the argument would continue, is mere happenstance, just as two strangers walking in the street are sharing the same space and a very similar experience, but still do not belong to one another. This argument would then conclude that the whole enterprise of law and emotion is imposing false notions of connections on two distinct phenomena, which happen to overlap in some instances.
A very different approach would claim that law and emotion are closely tied, as human emotions substantiate law and mythically are one of the main forces to push towards the making of law. Examples of this can be seen not only in the mental state of a defendant or plaintiff (Posner), but also in the strong feelings we experience when facing injustice (Rosenblum), or the toll of guilt that accompanies our wrongdoings (Garvey, but see Rodogno). In addition to the primordial claim of associating law and emotion, one could further advance an investigation as to ways by which law aims to regulate, dominate, censure and approve certain feelings (Sanger and Pinto). Other studies have shown the role emotions assume in the judicial process itself (see special issue of Law and Human Behavior, edited by Bornstein and Wiener).
I assume that my own inclination to consider law and emotion as a worthy scholarly endeavor is apparent from the brief description in the previous paragraph. But I do try and sustain some skepticism, keeping in mind that someone can rightly claim that emotions are involved in practically any human activity, and law should not be any different in this respect than eating, teaching or singing. In other words, if the fact that emotions rise in a legislative or judicial process is not in itself any surprise, there is still room to question the helpfulness of examining this unavoidable but not necessarily causal occurrence.
I stated that this is the main question that lingers every time I read, discuss, or consider law and emotion as a discipline. It was therefore quite expectable that I gave it attention in the readings and discussions of a recent meeting of the Legal Theory Reading Group
, on disgust (we read selections from Kahan, Nussbaum and Miller, see below for details). Again, the readings made a compelling case for the fact that disgust is inarguably present in many legal cases; at the same time, the disagreements on the specific role of disgust, and its partially-shared, partially-distinct nature from moral indignation also gave ammunition to the skeptics, as to whether this feeling had a role in law, or whether it merely accompanied legal dealings, without playing a leading role in law.
The questions that remain open, at least for me, are whether disgust can be fully dissociated from moral indignation, and respectively, whether the disgust of bodily, animal-like functions, can be fully dissociated from rational and mental processes, so as to confine it to the strict sense of emotion. Furthermore, putting aside the role disgust plays in legislating certain norms of human conduct, can it work the other way around? Does law have implications for disgust, and can it, through legislation and jurisprudence, make something more or less objectionable, censure or advance human disgust of a certain conduct?
Acknowledging that law can at best enforce manifest behaviors, but can never curb internal feelings, implies that attempts of legal regulation of disgust may result in a closed circle, whereby the legal definition of disgust is subject only to its manifested forms. Minow has written on the dilemma of legal regulation of hate crimes in a similar manner:
When people have been badly treated because of group membership, ignoring their group membership and recognizing it can both hold risks for perpetuating group-based harm. I argue elsewhere that the only way out of this dilemma embraces both kinds of responses: there must be group-conscious legal claims for dealing with past bad treatment on the basis of group membership, and there must be vigourous expansions of the freedoms of individuals to define themselves rather than be categorized as members of groups. (42)
Aryeh Amihay is a PhD candidate at Princeton University working on a dissertation entitled Law and Society in the Dead Sea Scrolls.
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. Translated by H. P. Cooke and Hugh Tredennick. Loeb Classical Library 325. Cambridge, Mass. and London: Harvard University Press, 1938.
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(Law and Human Behavior 30.2). New York: Springer, 2006.
Garvey, Stephen P. "The Moral Emotions of the Criminal Law." Quinnipiac Law Review
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Kahan, Dan M. “The Progressive Appropriation of Disgust.” In The Passions of Law
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–––. “'Sewers of Vice': Disgust, Bodies, and the Law.” In The Passions of Law
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