Center for Jewish Law and Contemporary Civilization | ABOUT

The Law & Emotion of Shoes and Unicorns

March 15th, 2011

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 in common. 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. Works Cited Aristotle. Categories. On Interpretation. Prior Analytics. Translated by H. P. Cooke and Hugh Tredennick. Loeb Classical Library 325. Cambridge, Mass. and London: Harvard University Press, 1938. Bornstein, Brian H. and Richard L. Wiener. Special Issue: Emotion in Legal Judgment and Decision Making (Law and Human Behavior 30.2). New York: Springer, 2006. Garvey, Stephen P. "The Moral Emotions of the Criminal Law." Quinnipiac Law Review 22 (2003): 89-108. Kahan, Dan M. “The Progressive Appropriation of Disgust.” In The Passions of Law, edited by Susan A. Bandes.  New York and London: New York University Press, 1999. 63-79. Miller, William Ian. The Anatomy of Disgust. Cambridge, Mass.: Harvard University Press, 1997. Minow, Martha. “Regulating Hatred: Whose Speech, Whose Crimes, Whose Power?”  In Breaking the Cycles of Hatred. Memory, Law and Repair, edited by Martha Minow and Nancy L. Rosenblum. Princeton, N.J.: Princeton University Press, 2002. 31-56. Nussbaum, Martha C. Hiding from Humanity: Disgust, Shame, and the Law. Princeton, N.J.: Princeton University Press, 2004. –––. “'Sewers of Vice': Disgust, Bodies, and the Law.” In The Passions of Law, edited by Susan A. Bandes.  New York and London: New York University Press, 1999. 19-62. Pinto, Meital. "What Are Offences to Feelings Really About? A New Regulative Principle for the Multicultural Era." Oxford Journal of Legal Studies 30.4 (2010): 695-723. Posner, Eric A. . "Law and the Emotions." Georgetown Law Journal 89 (2001): 1977-2012. Rodogno, Raffaele. "Guilt, Anger, and Retribution." Legal Theory 16, no. 1 (2010): 59-76. Rosenblum, Nancy L. "Justice and the Experience of Injustice." In Breaking the Cycles of Hatred. Memory, Law and Repair, edited by Martha Minow and Nancy L. Rosenblum. Princeton, N.J.: Princeton University Press, 2002. 77-106. Sanger, Carol. "The Role and Reality of Emotions in Law." William and Mary Journal of Women and the Law 8 (2001): 107-13.

Internet: Reshut ha-rabbim or reshut ha-yahid?

December 16th, 2010

by Aryeh Amihay

The tannaitic preoccupation with distinctions of reshut ha-rabbim and reshut ha-yahidpresents a straightforward example of the rabbinic enterprise of expansion of Jewish law that innovates and transcends the limits of its legal origins. The distinction between the public and the private spheres is evidently not consequential for the biblical legislator, despite the indubitable existence of such distinctions at the time.

This is perhaps another result of the meeting of cultures and the influence of Roman law on rabbinic thought and categories. Thus, for example, Salo Baron asserts in his classic A Social and Religious History of the Jews that “[…] the rabbis succeeded in circumventing the extremes of unrestrained private control. By developing, in particular, the doc-trines of hefqer (derelict property) and reshut ha-rabbim (public property), both going far beyond the Roman categories of res-nullius and res omnium communes, they established the definite supremacy of public interest” (2:252). Indeed, Baron's statement can be applied to Roman law and biblical law equally, as we recognize the debt the rabbis owe these corpora, but also the extent of liberty they allowed themselves in expanding, interpreting and deviating from their received traditions and restraining norms. An interesting example of this distinction appears in m. Taharot 6.1, where the reversibility of the categories is discussed: A place which was an individual's authority (reshut ha-yahid) and became a public authority (reshut ha-yahid) [and then] returned and became an individual's authority: when it is an individual's authority it is doubtfully impure; when it is the public's authority it is doubtfully pure. The notion of a sphere changing its status back and forth is intriguing. It is easier to imagine a single shift: for example, an empty field that was regarded public, until someone claims it as its own; or a private property that has become subject of “right of way.” But once this status has been changed, it is hard to imagine it reverting to its previous status, at least in a timeframe so short to allow memory of its original status. In his seminal study on The Production of Space, Henri Lefebvre claims that “[the] nexus of problems relating to space and its production extends beyond the field of classical architecture, beyond monuments and public buildings, to take in the 'private' sphere, the sphere of ‘residence’ and ‘housing’. Indeed the relationship between private and public is now fundamental: today the global picture includes both these aspects, along with their relationship, and partial analyses, whether formal, functional or structural, must take this into account” (159). When Lefebvre published this study in 1974, the “global picture” was starkly different from the one we know today.  Now, of course, technological advances have radically changed communication of personal and business relations across the world. It is precisely these technologies that further complicate and change the nature of private and public spaces in a sense that might make the rabbinic notion of a reshut ha-yahid that turns into reshut ha-rabbim and back again useful and applicable to situations the rabbis could not envision. As Elliot Dorff has written in an essay on Judaism and privacy: “[I]n our day, we cannot apply Jewish texts mechanically from their time period to ours. We must instead take into account the ways in which contemporary business is done and then seek to apply the principles which emerge from Jewish law to contemporary business conditions” (35). Performatively, many people use and experience their Internet ventures as an intensely personal experience. We write personal e-mails, we conduct our independent research, and we construct our Internet surroundings based on our tastes. Just as our library or music collection can reveal to visitors our tastes and intellectual background, so can a glimpse of my “Favorites” toolbar disclose preferences and Internet habits. When someone is sitting in the privacy of his home, surfing the Internet, it is easy to forget that that person is, in many senses, on the street. Should we consider a search-phrase entered on Google to be a private action, as someone going through an archive, with no observer being able to know what exactly is being sought?  Or is this scenario more similar to someone shouting a name on the street, with anyone who happens to pass by (and in this case, Google itself) able to hear and collect that information? Some of these issues are beginning to be formalized and standardized in legislative and judicial decisions. Law can help decide which of our Internet behaviors are public, which are private, and how to guard this privacy. As these distinctions grow and the barriers between two kinds of Internet usages become stronger, they will also generate a need to inform users that they are crossing a boundary from a private usage to a publicly-monitored usage. One significant step we should take as responsible Internet-users regards not our own privacy, but the privacy of others. We can independently choose what we watch, what we look for, and what we don't click and “check out.” By respecting the privacy of others on the Internet, we can forge a space that is private for our own use, open to be publicized when necessary, but in an advised manner. Aryeh Amihay is a PhD candidate at Princeton University working on a dissertation entitled Law and Society in the Dead Sea Scrolls. Works Cited Baron, Salo W. A Social and Religious History of the Jews. New York : Columbia University Press, 1952. Dorff, Elliot N. "Judaism, Business and Privacy." Business Ethics Quarterly 7.2 (1997): 31-44. Lefebvre, Henri. The Production of Space. Trans. Donald Nicholson Smith. Oxford: Blackwell, 1991.