Jan 20, 2011

emotion, reason, and the law

David Arkush, in "Situating Emotion: A Critical Realist View of Emotion and Nonconscious Cognitive Processes for Law and Legal Theory," explodes the dichotomy between rationality and emotion in legal decision-making. The implications:
This Article has attempted to say much, but it can be reduced to a single point--law and legal theory treat emotion primarily as an object of reasoned decisions and policy making and as a source of interference in decisions, but empirical evidence suggests that emotion is a behavioral process that is critical to decisions. This shift in viewpoint has widespread implications for law, legal theory, and policy. As a descriptive matter, it suggests that we should reevaluate legal doctrines that rely on the assumption that humans are mostly emotionless actors and reexamine areas of law that concern consent, states of mind, and the causes of behavior. As a normative matter, emotional realism suggests that we have no empirical or even internally consistent definition of welfare on which to base policy. Welfarists should seek a new definition, and they are more likely to find it in processes than in objects. There is much work to be done.
Use this as a launching pad toward...
* Blocks against consequentialism / utilitarianism (which are welfarist, and, as Arkush argues, empirically and internally slippery)
* A way to defend treating juveniles and adults equally--it could be fallacious to presume that juveniles are "more emotional" when making decisions
* A kritik of the legal system

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