Emotions in the Law School

Transforming Legal Education Through the Passions

Emma Jones

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781032240510
• eBook ISBN: 9781351370691
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Law schools are failing both their staff and students by requiring them to prize reason and rationality and to suppress or ignore emotions. Despite innovations in terms of both content and teaching techniques, there is little evidence that emotions are effectively acknowledged or utilised within legal education. Instead law schools are clinging to an out-dated and erroneous perception of emotions as at best, irrational, and at worst dangerous. In contrast to this, educational and scientific developments have demonstrated that emotions are a fundamental, inescapable part of learning, teaching and skills development. Harnessing these emotions will therefore have a transformative effect on legal education and enable it to adapt to the needs and demands of the twenty-first century.

This book provides a theoretical overview of the role played by emotions in all aspects of the life of the law school. It explores the relationship emotions have with key traditional and contemporary approaches to legal education, the ways in which emotions can be conceptualised, their interaction with the politics and policies of legal education and their role within teaching and learning. The book also considers the importance of emotional wellbeing for both law students and legal academics

Overall, this book argues for a more holistic form of legal education in which emotions play a valuable (and valued) role. This requires a new vision for law schools, in which emotions are acknowledged and embedded at all levels, institutional and personal.

1 Enmity and exclusion within legal education

Introduction: emotion and reason dichotomised

The law largely views emotions as the enemy of reason and thus it seeks to disregard or suppress them. In doing so, the law is following well-trodden societal conventions and drawing on the dominant Western philosophical tradition of Cartesianism (Descartes, 1989; Williams, 1993). As such, it applies forms of Cartesian dualism which distinguish between reason and emotions, mind and body, objective and subjective, and male and female, separating and dichotomising these concepts. For law, it is reason that becomes its supreme driving force, representing rationality and enlightenment. Emotions become portrayed as irrational, messy and embodied, representing the antithesis of legal aspirations.

The initial focus of this chapter is on illustrating the disregard for, and suppression of, emotions which characterises much of legal history (for a more detailed exploration see Bailey and Knight, 2017). The emphasis of the historically dominant philosophical traditions in legal thought on containing and devaluing emotions has helped to construct the dominant paradigms within which legal education has traditionally operated – the doctrinal and liberal traditions. The practical applications of the law and the stance of legal actors has further perpetuated this approach to emotions and thus reinforced these paradigms. Providing this form of broad-brush overview situates the chapter’s subsequent discussion of legal education within the wider context of law as a discipline. The way in which the doctrinal and liberal paradigms approach emotions, and the extent to which these paradigms are still dominant, will arguably play a significant role in determining the potential future role of emotions within legal education. Their influence can be discerned in both the view of emotions, and the perception of how they interact with law, that is held by key stakeholders within the law school.

Philosophical paradigms and practical applications

A key argument of this book is that a disregard for, and suppression of, emotions characterises much of legal history and that this is reflected within the dominant paradigms of legal education. This approach to the emotions is illustrated by the two key philosophical traditions in legal thought – natural law theory and legal positivism.

Natural law theory has its origins within a certain scientific conception of the world (science being a theme which is also writ large within the doctrinal tradition of legal education even today). The theory posits the idea of enduring and stable principles which both underlie legal doctrine and which can be discerned by a careful study of it. As such, classical legal thinkers treated their studies as a branch of the natural sciences (chemistry, biology, physics) and focused on constructing taxonomic categories based on previous legal precedents to identify and perpetuate these foundational principles (Feldman, 2009). In previous centuries, these principles were often shaped around religious belief. In its modern form, natural law is usually secular in approach, but it retains the focus on a higher form of morality and/or ethics which laws must be derived from and appertain to (Bix, 2010).

In characterising this moral and ethical framework as an objective, discoverable reality, there are clear overlaps with the Cartesian conception of knowledge. There has been little discussion which suggests that emotions have a role to play within the discovery of such a legal framework. Indeed, attitudes, values and emotions were traditionally not viewed as part of such a voyage of scientific discovery (Feldman, 2000). A tentative connection to emotions can be made when considering some of the bases of these frameworks, for example, the Aristotelian concept of Eudaimonia, linked to appraisal theories of emotion, embraces concepts such as flourishing which have a significant emotional resonance (Nussbaum, 2001). However, such potential links appear to have been left largely disregarded and unexplored when set against the quest for scientific reason.

In more recent iterations of natural law, theorists tend to assume a more relativistic, less dualistic approach, and accept there is no longer one single set of absolute morals or ethics which the law is to be tested against (although each theorist may perceive their own adopted set to be absolute). It can be argued that emotions will play (and always have played) a part in the formation of each individual’s ethical or moral principles and framework. However, there is nothing to suggest that any role for emotions has been explicitly acknowledged within the development of such frameworks, or their underlying values (Marske et al., 2017).

The second key philosophical tradition in law is legal positivism. Coleman and Leiter (2008) suggest that there are two fundamental premises underlying different theories of legal positivism. Firstly, the belief that what constitutes law is determined by the conventions and demands of society; secondly, the belief that morality and law can be considered separately, without being interconnected. Conaghan argues that a key component of the positivists’ approach is the distinction between descriptive and normative analysis. In other words, between describing what the law is and what the law ought to be. She suggests that legal positivism sees it as possible to identify what the law actually is as a “neutral, non-evaluative exercise” (Conaghan, 2013, p. 161). These concepts of objectivity and neutrality, together with the focus on law as a science, have a strong resonance within the historical development of both the doctrinal and liberal traditions of legal education. Overall, the positivistic outlook has played a key role in the development of a modern academic framework in which law is associated with particular notions of objectivity, rationality and science at the expense of the emotions.

Although natural legal theory and legal positivism are generally perceived as opposing philosophical traditions, there is arguably a common theme when relating them to the law and emotions. Neither demonstrates any significant engagement with emotions and both appear to largely disregard them. Indeed, Bandes and Blumenthal, discussing the term “emotion”, suggest that:

In the legal realm, the term has long functioned as a catchall category for much of what law aspires to avoid or counteract: that which is subjective, irrational, prejudicial, intangible, partial, and impervious to reason.

(Bandes and Blumenthal, 2012, p. 161)

Perhaps unsurprisingly, therefore, the law in its practical application has only acknowledged emotions in a marginal and limited manner. On occasion, the law has been required to recognise that emotions are present in a real-life situation. However, the relationship is a difficult one. The master and slave metaphor referred to in this book’s Introduction once again applies, with law viewing emotions as a separate sphere which requires stringent control to ensure it does not infringe on the rationality of the legal realm (Solomon, 2000, p. 3; Maroney, 2006).

Within practical applications of the law, it is easiest to identify instances of where law has acknowledged the existence or strength of a particular emotion in relation to the criminal law. In the example of the loss of control defence under section 54 of the Coroners and Justice Act 2009 it applies where “the killing resulted from D’s lack of self control” (provided there was a qualifying trigger). Such a concept of “loss of control” arguably implies an emotion such as anger or fear. However, the instances where such an acknowledgement of emotion occurs in the criminal law generally are still relatively narrow. As an illustration, Stannard (2010) refers to the principle that the English criminal law will only take account of emotional harm if accompanied by a diagnosis of psychiatric injury. Based on this, he argues that the law fails to acknowledge the seriousness of emotional harm. The overall lack of recognition of emotions in criminal law has also been emphasised. Spain argues that emotions such as disgust, anger and repulsion have helped shape the criminal law and underpin theories of punishment. However, despite this “the law has consistently attempted to remove emotion from consideration” (2011, p. 6).

It has also been suggested that those attempts which have been made to find a place for emotions in the criminal law have not always been positive. Sanger (2001) points to the use of victim impact statements (in a USA context, but they are also used in the UK) and asks whether their use to help families achieve closure actually furthers the interests of justice. She suggests that there are significant difficulties when the law is able to select which emotions it chooses to acknowledge and integrate into its decisions. Her argument is that, where an emotion begins to be required by law, the danger is it will lose the very authenticity which made it worthy of note in the first place and instead become scripted. This is a salutary warning that, although the incorporation of emotions is an important first step, it is neither sufficient nor wholly positive without a sound theoretical and philosophical basis.

In relation to civil law, there is a lack of literature explicitly engaging with the role (or potential role) of emotions. The lack of acknowledgement of emotional harm referred to in the criminal context is mirrored in tort cases, where only certain categories of pure psychiatric harm are recognised, which must involve medically-recognised conditions (Mulheron, 2012). There are occasional (and perhaps unexpected) glimpses of the relevance of emotions to other areas of substantive civil law, for example, in the use of unrequited love to evoke the equitable doctrine of unconscionability in Australia (Grossi, 2018). Areas such as asylum and family law have also garnered an increasing body of research both relating to the emotional impact on legal actors involved in their practice (Baillot et al., 2013; Melville and Laing, 2007) and discussing the influence on emotions and wellbeing which applications of these laws can or could have on those involved (see, for example, Huntington (2008) in relation to family law). However, despite these instances of emotions being acknowledged, the overall examples available to discuss are pretty sparse, therefore indicating that the civil law, as a body of legal rules and doctrines, has relatively little explicit engagement with emotions.

While the preceding examples are not an exhaustive survey of instances where emotions are present or acknowledged within the law, they are representative of the overall approach the law takes to emotions. Indeed, it appears that on most of the occasions when the law does specifically acknowledge emotions, the intention is to suppress or exclude them by doing so. For example, Posner (2001) refers to the exclusion of gruesome crime scene photographs where they are likely to provoke extreme outrage or disgust in the USA. He uses this as a demonstration of the significant role emotions play within law. However, the intended consequence of this would appear to be to prevent a jury from becoming emotionally involved in a case in a way which once again separates the perceived irrationality of emotions from the reason and rationality of the law. There is little to disturb the view of the law as imposing normative order and reason on the messy emotions of human life, although it does demonstrate the law acknowledging (at least in part) that the subject matter it must deal with is emotive.

Legal actors and emotions

Those who are involved within the practical application of the law, legal actors, similarly tend to disregard or ignore emotions. With regard to the judiciary, the judicial oath itself in the UK appears to reflect the perceived separation between reason and emotions, requiring the judiciary to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will” (HM Courts and Tribunals Judiciary, 2015, n.p.). While it is understandable that objectivity and impartiality are required, the difficulty arises because of the underlying assumption that a judge can simply choose to effectively shut off their emotions and remove them from the courtroom. This is captured well by Anleu et al. (2015) when discussing their research into the role of emotions in the Australian and Swedish courtrooms. They identify the paradox that emotions are viewed as inappropriate within the courtroom, but at the same time the judicial role requires involvement with emotions to a significant degree, whether displaying, managing or experiencing them.

A number of explanations have been provided for the judicial lack of regard for emotions. Perhaps the most obvious, and compelling, is that it follows the form of dualism that is riven deep within law itself drawing on its wellspring of disregard and the Cartesian notions that have shaped so much of Western philosophy and science. A striking UK example of how this Cartesian dualism translates in practice is given in the case of R v Konzani [2005] 2 Cr App R 198 in which the judge, in summing up for the jury, states “Make sure that emotion does not enter into your judgment in this exercise that you must embark upon. There is an old saying that, ‘When emotion comes in, sense moves out’. Emotion has its place, of course, but it can mislead judgment” (Konzani cited in Weait, 2012, p. 175).

Abrams and Keren argue that the conventional view is that:

Emotion floods careful, stagewise reasoning in a tidal wave of affect; its association with particulars sweeps decisionmakers from their impersonal, Archimedean pedestal.

(Abrams and Keren, 2010, p. 2004)

They suggest that this need for detachment and rationality has also been historically emphasised to deflect political pressures and undue sympathy with any of the parties involved. However, it is equally arguable that assuming emotions are, and can be, excluded, obscures and devalues the emotional experience of the courtroom.

With regard to the legal profession more generally, there is a lack of literature identifying the role of emotions in the work of solicitors and barristers in the UK. There has been a small amount of work done on emotional labour in these professions, but generally those studies which do touch upon emotions tend to focus solely on a relatively limited, specific group, such as asylum or family law practitioners (as discussed previously). There is little sense from this literature of the wider ways in which emotions interact with all aspects of legal practice, in all fields, across all stages of involvement. In the USA context, there appears to be more interest in issues relating to emotions, stemming (at least partly) from movements such as preventative law and comprehensive law and growing concerns over lawyer wellbeing (see, for example, Silver, 2017; Wright, 2016). These will be considered in more detail in Chapter 2, but suffice to say here, their key thrust is to both identify and critique conventional approaches to legal practice which still focus on disregarding or suppressing emotions. However, despite the valuable role these movements play, they do not (yet) represent mainstream legal practice. It is very easy to understand why a lack of acknowledgement or respect for emotions remains the status quo for so many legal practitioners when considering the dominant paradigms in legal education in which so many of them have been immersed and socialised, in particular the doctrinal and liberal traditions.

The doctrinal tradition

The conception of legal education that still dominates the legal academy today is a conception borrowed from the sciences

(Nussbaum, 1993, p. 1629)

The focus on law as a form of scholarly science seeking to categorise, order and dissect legal principles is an enduring one whose origins can be traced most clearly back to the development of the doctrinal tradition in the law school (Sugarman, 1986). This is the tradition which held sway during the twentieth century and which still holds a central, if evo...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Introduction: passions and prejudices in the law school
• 1 Enmity and exclusion within legal education
• 2 A broadening scope, or reason revisited?
• 3 Emotions as a transformative force
• 4 Situating emotions within the politics and policies of academia
• 5 Embracing emotions within learning
• 6 Healthy, wealthy and wise? Law student wellbeing
• 7 Creating an emotionally engaged legal academy
• Conclusion: feeling our way towards transformation
• Index