Law and the Emotions: A Conference Report

What do witness and gender have to do with law and the emotions? Obvious associations include the fundamentality of witnessing in the procedures and paradigms of law; legal rules that alternately and discriminatorily banish or cherish certain witnesses’ emotions as relevant legal facts; the binary gendering of raging, caring, and other emotions; laws’ production and policing of gender and genders; and the opposed gendering of law and emotion as such.

However, there is a more fundamental and formal operation performed by witness, gender, law, and emotion: individually and in concert, these terms signify practices under, through, and against which humans’ encounters with our world of appearances may be ordered, in any or all the meanings of that word. At a minimum, “order” is to command, categorize, or rank; and is a state of peace or community of faith.

Sexual harassment law in the United States reveals the work of witness, gender, law, and emotion in ordering our experiences of appearances. The movement to establish sexual harassment law was crucial in making women’s labor livable. It forced judicial recognition of sexual coercion, degradation, and hazing as employment discrimination. This movement facilitated redress for individual women and acculturated various publics to a particular feminist account of gender, sexuality, and inequality. These endeavors depended entirely upon bearings of witness, on testimonies of feeling by women who were often left or kept literally silent about gendered and sexualizing exploitation, humiliation, and violence that was previously deemed legally unspeakable and socially invisible in hegemonies of heteropatriarchy and hierarchical capitalism.

However, the mere admission of women’s witnessing could not secure individual, let alone systemic, redress. Such witnesses had to be judged reasonable. Courts asked whether a hypothetical reasonable person would have found what these witnesses witnessed to be discriminatory. Was she right to read gendered harm into what might have been just good fun? Had her emotions got the best of her reason? Was she lying? What was she wearing? Are we sure she didn’t like it? Kathryn Abrams (a coeditor of this special issue of WSQ and a key figure in sexual harassment jurisprudence) persuasively argued that the “reasonable person” standard was gender biased because it was gender blind. The reasonableness of subjects’ feelings of discrimination depends wholly upon their sex assignment and gendered experience in our heteropatriarchal culture of sexually exploitative male domination. Hence Abrams successfully suggested that courts ask whether a “reasonable woman” would find discriminatory the scenes to which sexual harassment plaintiffs bear witness.

However, Abrams noted too that legislatures’ and courts’ sexual harassment regimes—taken over by commercial interests, corporate doublespeak, and cottage industries—may proliferate unnuanced or obstructionist narratives about gender, sexuality, and inequality that conscript women’s understanding of their experience in scripts as essentializing and disempowering as those enacted by sexual harassers.

The trajectory of sexual harassment law suggests the vexed hermeneutical function of witness, gender, law, and emotion. Rendering sexual harassment employment discrimination was in part a struggle to force legal institutions and the culture at large to witness women’s emotions. Yet legal and other institutions may exploitatively or otherwise discipline women’s emotions and experience as witnesses.

A recent conference richly engaged such conjunctions of witness, gender, law, and emotion. “Law and the Emotions: New Directions in Scholarship” took place in Berkeley, California, on February 8 and 9, 2007, with participants from throughout the United States, Canada, Switzerland, Japan, and Australia. The conference was organized by Kathryn Abrams (University of California, Berkeley, law), Susan Bandes (DePaul University, law), Hila Keren (Hebrew University of Jerusalem, law), and Terry Maroney (Vanderbilt University, law) and sponsored by the Gruter Institute for Law and Behavioral Research, Boalt Hall School of Law (University of California, Berkeley), the Center for the Study of Law and Society (University of California, Berkeley), Vanderbilt University Law School, and DePaul University College of Law.

“Law and the Emotions” represented diverse substantive and methodological investments from the fields of neuroscience, analytical philosophy, film and television criticism, political theory, public law, evolutionary biology, sociology, and psychology. Such disciplinary variance led Rachel Moran (University of California, Berkeley, law) and...