Law and the Passions Why Emotion Matters for Justice

Engaging with the underlying social context in which emotions are a motivational

force, Law and the Passions provides a uniquely inclusive commentary on the significance

and influence of emotions in the history and continuing development of

legal judgment, policy formation, legal practice and legal dogma.

Although the emotionality of the law and the use of emotional tropes in legal

discourse has become an established focus in recent scholarship, the extent to

which emotion and the passions have informed decision-making, decision-avoidance

and legal reasoning ? rather than as simply an adjunct ? is still a matter for

critical analysis. As evidenced in a range of illustrative legal cases, emotions have

been instrumental in the evolution of key legal principles and have produced many

controversial judgments. Addressing the latent influence of fear, hate, love and

compassion, the book explores the mutability of law and its transformative power,

especially when faced with fluctuating social mores. The textual nature of law and

the impact of literary forms on legal actors are also critically examined to further

elucidate the idea of law-making as both rational and emotional, and significantly

as an essential activity of the empathic imagination. To this end, it is suggested

that critical scholarship on law, the passions and emotions not only advances our

understanding of the inner workings of law, it constitutes a fundamental part of

our moral reasoning, and has the capacity to articulate the conditions for a more

dynamic, adaptable, ethical and effective legal institution.

This interdisciplinary book will be of interest to scholars and students in the

fields of law and literature, legal theory, legal philosophy, law and the humanities,

legal aesthetics, sociology of law, politics, law and policy, human rights, general jurisprudence

and social justice, as well as cultural studies.

Table of Contents

Preface

Introduction

Chapter 1

No slave to reason: the significance of the passions in mapping the legal landscape

The impossibility of reason without passion: I feel, therefore I am

Robes and lobes: the convergence of law and neuroscience

The logos of law and moral judgment as an emotional lexis

Turtles (and the normativity of law) all the way down

Intersubjectivity, law’s unconscious, and the ethical authority of the human face

The life of law as the life of reason and the passions

Chapter 2

Law, emotions and aesthetic justice

The aesthetic influence on legal sensibilities

Narrative creativity as the ‘life of law’ and the ‘law of life’

From expressivist aesthetics to expressivist ethics

Poetry in (e)motion: expressing the inexpressible

Through the looking-glass or the mirror crack’d

Chapter 3

Law as Fear

Fear and evaluative judgments

Fear-mongering and the media: implications for justice

Where Judges fear to tread: law and the politics of fear

Fear, fetish, fantasy and legal framing strategies

Legal truths and truisms, moral metaphors and moral panic

Reimagining the foundations for justice: overcoming the new politics of fear

Chapter 4

Law as Hate

Law’s symbolic violence: use of linguistic coercion in the constitution of the legal order

Law’s truth and the Tinkerbell Effect

The (in-)visibility of law: ‘secret’ justice is justice denied

Law as hate: killing in the name of the law

On ideology and language in the classification of legal subjects: ‘them’ and ‘us’

Reimagining the Other as self: the promise of justice fulfilled

Chapter 5

Law as Compassion

From vengeance to compassion: the two faces of ‘justice’

Compassionate justice and the ethical significance of vulnerability

‘Truth waits for eyes unclouded by longing’: ‘enlarged’ (empathic) perception motivates compassionate judgment

Compassion and the criminal justice system

Compassion without justice is mere sentimentality however justice without compassion is but tyranny

Chapter 6

Law as Love

Determining the ‘right kind of love’: love as a moral emotion

Love enriches and extends the scope of the lawyer’s question ‘who is my neighbour?’

Law and love: against the entitlement of wealth and the obstruction of justice

The heart as law’s attorney: there can be no justice without love

The imperative of a sentimental education: in recognition of law as an activity of the heart, soul and intellect

Bibliography

Julia J.A. Shaw is Professor of Law at De Montfort University, Leicester, UK. Her

interdisciplinary scholarship spans legal theory, law and the humanities, critical and

cultural legal studies, and human rights. Recent publications include ‘Law and the

Literary Imagination: the contribution of literature to modern legal scholarship’ in

The Palgrave Handbook of Philosophy and Literature (2018); ‘From Beethoven to

Bowie: identity framing, social justice and the sound of law’ in International Journal

for the Semiotics of Law 31(2) 2018; Jurisprudence (3rd edition, Pearson 2018)

and Corporate Social Responsibility, Social Justice and the Global Food Supply Chain

(Routledge, 2019).