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The Passions of Law

Susan Bandes

Publication Year: 2001

The Passions of Law is the first anthology to treat the role that emotions play, don't play, and ought to play in the practice and conception of law and justice. Lying at the intersection of law, psychology, and philosophy, this emergent field of law scholarship raises some of the most profound and interesting questions at the heart of jurisprudence. For example, what role do emotions ranging from disgust to compassion play in the decision-making processes of judges, lawyers, juries, and clients? What emotions belong in which legal contexts? Is there a hierarchy of emotions, and, if so, through what sources do we identify it? To what extent are emotions subject to change or tutelage? How can we evaluate the role of emotion in such disparate contexts as death sentencing, laws about same sex marriage, hate crime legislation, punitive damages or shaming penalties?

Consisting of original essays by leading scholars of law, theology, political science, and philosophy, The Passions of Law contributes to ongoing efforts to humanize law and reveals how this previously unacknowledged aspect of decision-making exerts a much greater impact on justice and the practice of law than most tend, or like, to think.

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Published by: NYU Press

Title Page, Copyright, Dedication

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Acknowledgments

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pp. xi-xii

I want to thank Richard Delgado and Jean Stefancic first of all. It was Richard and Jean who, upon reading my earlier work in law and emotion, conceived the idea for this anthology. I then had the great fortune to work with a group of scholars whose creativity and insight are well known,and whose collegiality and warmth made them a delight to work with.Thanks ...

Contributors

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pp. xiii-xvi

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Introduction

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pp. 1-16

Emotion pervades the law. This isn't an entirely surprising notion. We know that witnesses bring emotion into the courtroom, and that court-room drama can be powerfully evocative. We've had many opportunities recently to watch the raw emotion of witnesses, barely suppressed by the legal filters designed to mute its force. We've heard the heartbreaking testimony ...

Part I. Disgust and Shame

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pp. 17-18

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Chapter One. "Secret Sewers of Vice": Disgust, Bodies, and the Law

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pp. 62-79

Disgust is a powerful emotion in the lives of most human beings.2 It shapes our intimacies and provides much of the structure of our daily routine, as we wash our bodies, seek privacy for urination and defecation, cleanse our selves of offending odors with toothbrush and mouthwash, sniff our armpits when nobody is looking, check in the mirror to make sure that no conspicuous snot ...

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Chapter Two. The Progressive Appropriation of Disgust

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pp. 63-79

Disgust is regarded as a paradigmatically illiberal sentiment. Mercy, because of its perception of individuals' vulnerability to forces outside their control, is unambiguously congenial to liberal values such as dignity and autonomy. Indignation and fear are at least potentially redeemable in liberal terms because they take as their objects external harms or threats to the person. Even ...

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Chapter Three. Show (Some) Emotions

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pp. 80-120

Social norm theory is a strand of behavioral economics that analyzes social norms, status competition, and social meaning, and the ways in which all three influence individual behavior.1 This literature complements (or offers a "friendly amendment" to)2 neoclassical, rational-choice models of individual behavior, by adding social context and human emotions that help ...

Part II. Remorse and the Desire for Revenge

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pp. 121-122

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Chapter Four. Justice v. Vengeance: On Law and the Satisfaction of Emotion

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pp. 123-148

In this essay, I am concerned with the expression and, more important, the satisfaction of emotion in law. In particular, I am interested in the desire for vengeance as expressed and satisfied by law or, more accurately, by the justice system. It is not an attempt to justify vengeance, nor do I intend to reduce punishment according to law to the expression of such emotions as ...

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Chapter Five. Moral Epistemology, the Retributive Emotions, and the "Clumsy Moral Philosophy" of Jesus Christ

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pp. 149-167

Nietzsche's writings have a remarkable capacity to trouble the soul, and I have recently found my own soul troubled by reflection on his remarks on retribution as a theory of punishment, a theory that I have long endorsed and defended.1 Nietzsche does not, of course, give intellectual arguments against the claims of retributivism - arguments that could perhaps be met by ...

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Chapter Six. Remorse, Responsibility, and Criminal Punishment: An Analysis of Popular Culture

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pp. 168-190

Until relatively recently it might have been said with considerable confidence that at least one emotion is universally welcomed within, and by, the legal system, namely remorse in the face of wrongdoing.1 The remorseful wrongdoer, it was generally thought, vindicated law's effort not only to control wrongdoing but to establish legal rules as norms that, as H.L.A. ...

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Chapter Seven. Democratic Disease: Of Anger and the Troubling Nature of Punishment

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pp. 191-214

Perhaps the most characteristic feature of twentieth century theories of punishment is a certain unease amongst theorists about how to answer the question "Why do we punish?" In the 1955 "Two Concepts of Rules"1 John Rawls wrote: ... The subject of punishment has always been a troubling moral question. The ...

Part III. Love, Forgiveness, and Cowardice

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pp. 215-216

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Chapter Eight. Making Up Emotional People: The Case of Romantic Love

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pp. 217-240

The most common judicial argument for retaining the bar against same-sex marriage is that marriage, by definition, requires one man and one woman. Proponents of same-sex marriage find this definitional argument unsatisfying since it appears to beg the question "Why define marriage this way?" If the answer is that centuries of tradition support restricting marriage ...

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Chapter Nine. Fear, Weak Legs, and Running Away: A Soldier's Story

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pp. 241-264

Statutes make for appallingly tedious reading unless primitively short and to the point as, for example, this provision in the early Kentish laws of Æthelberht (c. 600): "He who smashes a chin bone [of another] shall pay 20 shillings" or this one from King Alfred (c. 890): "If anyone utters a public slander, and it is proved against him, he shall make no lighter amends ...

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Chapter Ten. Institutions and Emotions: Redressing Mass Violence

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pp. 265-282

If someone kills your child, tortures your lover, or brutalizes you, it is entirely understandable if you then feel a desire for revenge.1 It is understandable if you wish that the same fate that person inflicted would befall him. The institution of criminal justice in liberal societies tries to tame or channel these understandable feelings. It transfers the authority and power ...

Part IV. The Passion for Justice

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pp. 283-284

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Chapter Eleven. Emotion and the Authority of Law: Variation on Themes in Bentham and Austin

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pp. 285-308

Thinking about the authority of law can lead one to dizzying heights of wonder, like those reached in Ronald Dworkin's Law's Empire.1 It can also lead to oppressive depths of despair, like those depicted in Franz Kafka's The Trial.2 The stark contrast between the views of law found in these two works - one of fiction, the other of, well, legal fiction - illuminates old disputes ...

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Chapter Twelve. Emotion versus Emotionalism in Law

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pp. 309-329

Much of the behavior that law regulates is emotional - think of the murder of an adulterous spouse, the kidnapping of a child by a parent denied custody, or the daubing of paint on a fur coat by an animal-rights activist. Or it is shockingly devoid of emotion (the "cold-blooded" murder). Or it arouses the emotions - often sympathy for the victim of a crime or a tort ...

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Chapter Thirteen. Harlan, Holmes, and the Passions of Justice

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pp. 330-362

Unlike politics, religion, or the arts - other fields that regulate, critique, or analyze human behavior - the law is uncomfortable with feelings. Anglo-American legal culture has long held that law is good to the extent that it comes from detached, principled - and dispassionate - decision makers. Thus that quintessential figure of American justice, the judge, dresses in a ...

Index

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pp. 363-367


E-ISBN-13: 9780814739297
E-ISBN-10: 0814739296
Print-ISBN-13: 9780814713068
Print-ISBN-10: 0814713068

Page Count: 368
Publication Year: 2001

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