Who's Afraid of Law and the Emotions?

Abstract

Mainstream scholars may have inferred that law and emotions analysis is more distant from recognizable modes of legal thought, less suited to recognizable forms of legal normativity, and therefore has less pragmatic value. In this Article we respond to these doubts: law and emotions is a vital field whose distinctive insights and plural methodologies are essential, not simply to the full understanding of the role of emotions in many domains of human activity, but to their intelligent and responsible engagement by law. Our main goal in this Article is therefore to explain the pragmatic value of this school of thought, and enable broader application of law and emotions analysis to pressing legal problems. Some legal analysts may never be persuaded that emotions should become a focal concern of the law. They may prefer to view law as an arena that answers to the standards of rationality, drawing on analyses such as behavioral law and economics to respond to rationality’s limits. But for those who are prepared to understand emotion not simply as a departure from rationality, but as an affirmative mode of apprehension and response, the law and emotions perspective offers a way by which legal actors and institutions can both accommodate and influence crucial dimensions of human experience.

Keywords: Law and the Emotions, Law and Economics, Rationality, Behavioral Law and Economics, Neurosciences