Virtue, Emotion and Imagination in Law and Legal Reasoning

Amalia Amaya, Maksymilian Del Mar, Amalia Amaya, Maksymilian Del Mar

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509925148
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

What is the role and value of virtue, emotion and imagination in law and legal reasoning? These new essays, by leading scholars of both law and philosophy, offer striking and exploratory answers to this neglected question. The collection takes a holistic approach, inquiring as to the connections and relations between virtue, emotion and imagination. In addition to the principal focus on adjudication, essays in the collection also engage with a variety of different legal, political and moral contexts: eg criminal law sentencing, the Black Lives Matter movement and professional ethics. A number of different areas of the law are addressed (eg criminal law, constitutional law and tort law) and the issues explored include: the benefits and limits of empathy in legal reasoning; the role of attention and perception in judicial reasoning;, the identification of judicial virtues (such as compassion and humility) and judicial vices (such as callousness and partiality); the values and dangers of certain imaginative devices (eg personification); and the interactive and social dimensions of virtue, emotion and imagination.

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New Horizons for the Study of the Legal Mind: Relating Virtue, Emotion and Imagination

AMALIA AMAYA AND MAKSYMILIAN DEL MAR*

I.Introduction

This collection aims to examine the relevance of virtue, emotion and imagination to legal reasoning and, more generally, to legal theory. The twelve chapters collected here bring to light the various ways in which these elements contribute to legal argument and explore the connections that there exist among them. The study of the interlocking roles that virtue, emotion and imagination play in law and legal reasoning is critical to developing a complex and nuanced account of the kinds of patterns of inquiry and deliberation that are involved in reasoning and decision-making in legal contexts. This book seeks to contribute to current work on virtue, emotion and imagination in legal contexts. It does so by foregrounding the relations between virtue, emotion and imagination, and thus treating them not in isolation, but as elements that jointly contribute to the development of a theory of legal reasoning that results in sound legal judgement. Before giving an account of the structure and content of the book, we shall place the present volume in the context of existing legal scholarship on virtue, emotion and imagination. We do so in four sections, exploring: (1) virtue, (2) emotion, (3) imagination, and (4), briefly commenting on relations between them. Following these sections, we then present an overview of the chapters in this collection and finish the introduction with suggestions for future research.

II.Virtue, Legal Reasoning and Legal Theory

An exciting development in legal scholarship in recent years has been the development of virtue jurisprudence.¹ Virtue jurisprudence places the notion of virtue at the centre of legal analysis. The turn to virtue is not idiosyncratic of legal studies; rather, a vindication of virtue has taken place across different disciplines, most prominently, ethics, epistemology and political theory.² Virtue jurisprudence draws upon and feeds into a broader transdisciplinary movement that aims to recognise and study the different ways in which matters of character are key to a broad range of normative issues. A central feature of virtue theory – as much in law as everywhere else – is an inversion of the direction of analysis. Virtue theorists seek to explain the normative properties of beliefs, decisions, plans or actions in terms of the virtues (or their lack thereof) of agents, rather than the other way around. From this point of view, the question of which kind of agents we are and want to be becomes most important, for it provides the ground upon which one may begin to develop an account of which beliefs, decisions, plans or actions are to be positively assessed.

In recent decades, virtue theory has begun to establish itself as a main normative framework, alongside traditional deontological and consequentialist accounts. It has also progressively diversified as virtue theorists have begun to explore different views on virtue – in addition to the vastly influential Aristotelian theory – and have applied a number of virtue-based tools to address an increasing variety of problems. Similarly, virtue jurisprudence has gained both in relevance and visibility within legal scholarship; it has enlarged its scope of application as a growing number of fields of substantive law have been subjected to virtue analysis, and a great diversity of perspectives on virtue have begun to be employed in legal studies. The relevance of character to sound judicial reasoning has been one of the issues that has benefited the most from a virtue-based analysis. Judicial reasoning is also the main focus of the essays in this volume that primarily discuss virtue – as well as its connections with the judge’s emotional dispositions and imaginative capacities.

The book makes a number of distinctive contributions to virtue jurisprudence, and especially to virtue-oriented work on judicial reasoning. First, the time has come for virtue jurisprudence to move from designing its general architecture to developing in detail specific aspects of the theory. An important way in which this may be done is by examining individual juridical virtues and vices. The chapters by Zipursky, Amaya and Elgin contribute to this aspect of theory development by analysing compassion, impartiality, humility, magnanimity and austerity. The analysis of individual virtues and vices is not only an important (and necessary) step towards developing a more thorough virtue-based theory of law and adjudication; it may also have a significant impact on virtue theory in domains other than law, where the investigation of individual virtues and vices is a growing area of research.

Second, a central topic for investigation in virtue jurisprudence (and virtue theory, more broadly) is the structure of virtue. How could virtue be more plausibly conceived? A number of competing models of virtue have been advanced in the literature. Prominent among those is the perceptual account of virtue, according to which virtue is first and foremost a highly refined perceptual capacity.³ Regardless of the merits and drawbacks that this model might have in ethics, where it has been more forcefully defended, it faces severe objections as an account of judicial virtue, given the constraints of publicity and accessibility of reasons that have to be satisfied in the public domain. However, even if a thoroughgoing perceptual model may be in conflict with important legal commitments, perceptual abilities are still a core element of a virtuous judicial character. Chapters by Elgin, van Domselaar and White examine the perceptual dimensions of judicial virtue as well as some of the worries that may be raised against giving perception a broad role in legal argument.

Third, (neo-)Aristotelian virtue theory is the most influential approach in contemporary virtue theory across disciplines. However, in recent years, increasing attention has been paid to other varieties of virtue theory within Western philosophy as well as to Eastern perspectives on virtue. Likewise, in virtue jurisprudence, the resources of traditions of virtue theories other than Aristotelian ethics have been recently explored, most prominently, Plato’s theory of virtue, Confucian views on virtue, sentimentalist virtue theory, as well as natural law approaches.⁴ The chapters by van Domselaar and Amaya contribute to this trend towards enlarging the philosophical landscape of virtue jurisprudence by examining the relevance of Murdoch’s ethics and exemplarist virtue ethics, respectively, to judicial decision-making.

Fourth, a thriving area of research in contemporary virtue theory is virtue education. An attractive feature of this body of work is that it is highly interdisciplinary, as it engages philosophers, psychologists and scholars working in education theory. Law, however, has not yet fully joined this movement towards virtue education. The training of character is a topic that has received far too little attention in both virtue jurisprudence and legal education scholarship.⁵ Kind’s, van Domselaar’s and Amaya’s chapters emphasise the importance of the cultivation of virtue and contribute to the examination of the developmental aspects of judicial virtue as well as the different educational strategies that might be employed to inculcate virtuous traits of character within the judiciary. The literature on virtue education intersects with work on professional role ethics. Thus, a focus on virtue acquisition in legal scholarship may also open up a productive collaboration among scholars working in virtue jurisprudence and legal education, as well as in legal ethics.

Finally, virtue jurisprudence has some features that seem problematic such as its focus on agents – and their inner psychology – rather than on (external) actions; the blurring of the distinction between the private and the public realm; the centrality of the notion of virtue, which, in some views, is highly dependent on culture; its reliance (in the dominant Aristotelian version) on a concept of the good life; the fuzziness of the guidelines for action it provides; and its emphasis on a fine-tuned situational appreciation as a critical element for good judgment. These characteristics give rise to doubts as to whether virtue jurisprudence is a framework that is compatible with current liberal legal orders – which are committed not to trespass into the private realm, to responsiveness to the facts of value pluralism, to neutrality among conceptions of the good, and to respectfulness of the rule of law and principle-of-legality virtues, like certainty, publicity and generality. Several chapters in the volume (see the chapters by Elgin, Zipursky, van Domselaar and Kind) discuss the tensions between virtue jurisprudence and the main tenets of liberal legal orders, thereby contributing to addressing the foregoing concerns.

III.Law, Emotion and the Affective Sciences

An important body of literature aims to explore the impact on law of the affective sciences, which have experienced spectacular growth in the last decades.⁶ Within contemporary legal theory, law and emotion scholarship began to form as a distinct field of inquiry in the mid-1990s.⁷ The aim, at first, was to challenge deep-rooted assumptions about emotions being forces that are contrary to reason and ought not to play a role in law and legal reasoning. The next phase of inquiry moved from examining the legitimacy of emotions in law, to the analysis of which kinds of emotions operate in legal contexts and what roles they play. Later work has engaged in a more normative type of analysis, exploring the dynamics of the relationship between law and emotion – how the emotions bestow law with value, as well as the ways in which the law may channel, shape and transform the emotions of individuals and groups. In very recent years, the literature has expanded rapidly to cover a wider range of areas of substantive law and including a rich number of perspectives in the affective sciences. It is also a very active area of scholarship within legal history.

Despite the theoretical work already done in legal scholarship, the dichotomised picture of reason and emotion, together with the view of law and legal reasoning as a purely cognitive enterprise that should be divested from any emotional influence, still has a strong hold among legal practitioners and scholars.⁸ This attitude is out of keeping with findings in psychology, neuroscience, sociology and other relevant disciplines, which show the pivotal contribution of the emotions to reasoning and rationality. The project that law and emotion scholars have ahead is, as Abrams and Keren have argued, threefold.⁹ First, it seeks to illuminate the assumptions about emotions upon which law relies. Second, it aims to determine the accuracy of these assumptions in light of relevant empirical findings. And, finally, an important objective of law and emotion scholarship is to advance a number of normative goals: the proposal of doctrinal revisions, the development of institutional design, and the advancement of policies that are responsive to the best available knowledge we have about the nature and role of emotions.

This volume aims to contribute to challenge what has proved to be a highly sticky conception of legal rationality as impervious to emotion, and to show that emotions are not only ineliminable but also a vital component of a sound theory of law and legal reasoning. On Maroney’s useful taxonomy, law and emotion scholarship falls under six main categories: an emotion-centred approach, which seeks to analyse specific emotions and their impact in law; an emotional phenomenon approach, which centres on analysing particular emotion-driven phenomena, such as empathy or affective forecasting, in the law; an emotion-theory approach, which focuses on a given theory of emotion and its potential applicability to the legal domain; a legal doctrine approach, which seeks to analyse how an area of law incorporates the emotions; a theory-of-law approach, which examines the relationship between theories of emotion and different theories of law; and a legal-actor approach, which explores how emotions influence or should inform assigned legal functions.¹⁰ This volume advances law and emotion scholarship by making a number of contributions to these different theoretical approaches.

The emotion-centred approach has mostly focused on analysing ‘negative’ emotions, such as shame, disgust, fear and anger, but it is important to explore the role that a wider range of emotions play in law. White’s and van Domselaar’s chapters emphasise the relevance of positive emotions, such as wonder, curiosity and awe, to judicial decision-making and Amaya’s chapter discusses in detail the relevance of the positive emotion of admiration to the development of judicial virtue.

Empathy has been a key topic in the emotional phenomenon approach, and it is also a central theme in this volume. The book contributes to the understanding of empathy and its relevance to law by examining the connections between empathy and attention (in White’s chapter), empathy and intimacy (in Hansberg’s chapter), empathy, sympathy and compassion (in Hansberg and Zipursky’s chapters), and empathy and imagination (in Kind’s chapter) as well as by analysing the role of empathy in a number of constitutional law cases (Zipursky’s chapter). In addition to empathy, the book also advances the emotional phenomenon approach by discussing (in Morton’s chapter) the legal implications of the difficulties associated with the attribution of mental states, such as affective states and motives.

While there is no attempt in this volume to articulate and/or defend a particular theory of emotion for the law, the volume advances the theory of emotion approach insofar as it discusses a range of ways in which emotions may be evaluated, communicated and nurtured, which are only plausible under the view that emotions include an important cognitive component.

Brady’s chapter on the role of emotions in the justification of punishment, as well as Morton’s chapter on the ascriptions of states of mind, including emotions, contribute to a core research field in the legal doctrine approach, namely, criminal law, and it also expands the scope of this area of study by discussing emotion-related problems that are relevant to constitutional law (in Zipursky’s and Kind’s chapters) as well as family law and medical law (in Hansberg’s chapter).

The theory-of-law approach is advanced in this volume by exploring the connect...

Table of contents

• Cover
• Title Page
• Contents
• List of Contributors
• 1. New Horizons for the Study of the Legal Mind: Relating Virtue, Emotion and Imagination
• PART I: VIRTUE – AND EMOTION, IMAGINATION
• PART II: EMOTION – AND VIRTUE, IMAGINATION
• PART III: IMAGINATION – AND EMOTION, VIRTUE
• Index
• Copyright Page