Abstract
The traditional perspective on emotions, anchored in the Western philosophical tradition, assumes an irretrievable dualism between emotions and reason. Emotions are assumed as forces, which can blind a person’s view and lead them to do terrible things. For this reason, emotions must be put aside during rational deliberation. For common sense, including legal common sense, emotions are dangerous and are unrelated to rational decision-making. Nevertheless, Aristotelian’s perspective on the relationship between emotions, reason and practical deliberation is enlightening. Emotions are not blind forces completely divorced from reason. Aristotle did not develop a complete theory of emotions but recognized a strong covariance between emotions/passions/sentiments and thoughts. This research is based on three theoretical pillars: Aristotle’s perspective on the relationship between reason and emotions drawn on Nicomachean Ethics and Rethoric, the jurisprudencialism, a jurisphilosophical approach elaborated by António Castanheira Neves, and Terry Maroney’s model for judicial emotion regulation. The power of judgement is assumed mainly as a practical task, which involves the excellence of phronesis, virtues and emotions/sentiments/passions.
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Notes
“Na verdade, este elemento não é somente uma parte da emoção: ele é seu elemento decisivo” [16: 152].
“O agente tem então uma opinião e a emoção é sentida conforme a esta opinião”.
For the contributions of the analysis of emotions to Aristotle's poetics, politics and ethics. See [6].
“Todo o problema radica exatamente na relação entre o desejar e o pensar no momento concreto da decisão. A virtude moral é uma disposição relativa à escolha/eleição (…) logo o pensamento tem que ser correto e o desejo reto para que a proairesis seja boa. Tem que haver coincidência entre o que a razão diz e o desejo persegue para que a proairesis seja séria”. [4: 97].
“No agir, dá-se a mobilização de toda a alma. As diferentes dimensões da alma (seja a racional, seja a irracional, cada qual também com suas diferentes dimensões) mobilizam-se no agir do homem sério até porque apenas assim é que ele, enquanto sério, constitui o seu próprio caráter” [4: 97–98].
“Isto porque a experiência problemática, enquanto também experiência histórica, vem sempre a alargar-se e a aprofundar-se, em termos de exigir novas perguntas (problemas) e outro sentido para as respostas” [13: 157].
“A intencionalidade da pergunta já influencia a intencionalidade da resposta, ao mesmo tempo em que a intencionalidade da resposta já influencia a própria intencionalidade da pergunta” [15: 443].
According to Castanheira Neves, “um problema é sempre a expressão de um obstáculo, de uma perplexidade, de uma dúvida nascida na relação entre uma intencional pressuposição, com as suas exigências específicas de cumprimento, e uma situação real que resiste ou é opaca a esse cumprimento” [13: 159–160].
When we talk about the “legal system”, we are not talking about a closed system of normativity, but an open one which is largely being constituted through the questioning of legal cases. Certainly the legal system begins by enclosing and predetermining the field and the type of problems. Nevertheless, this statement does not necessarily lead us to the conclusion that "legal issues" are just the problems and facts previously assumed by the legal system as legal problems. The stabilized normativity reflects the intentional assimilation of a given concrete, unique and unrepeatable legal experience. See [13: 158].
The meaning of the legal system is not constituted in advance. The normative dimension of the legal system is immediately intertwined with the dimension of the concrete legal problem. Between the legal system and the legal problem a dialectical relationship is established. You could say that normativity is provisionally stabilized due to the questions or queries addressed by the concrete problem to the legal system. However, new problems that have arisen in the world of life can pose new questions or reveal the inadequacy of old ones. New problems can bring new intentions (valuations, principles) that may require the relativization of the previously established intentions of the legal system. See [13: 158].
“O direito (…) é uma validade a assumir e a problematizar na sua realização” [12: 396].
Aroso Linhares clarifies the distinction between a decision and judicative decision. The latter should be assumed, in jurisprudential terms, as “an adequate treatment-assimilation of a concrete controversy which is also and inseparably a unique realization of systemic intentions and claims, whose experience is permanently renewed” [9: 27].
When the legal problem interrogates the legal system unanswered, the relationship between the legal system and the legal case turns into an aporetic one. The legal system ceases to be the expression of an available hypothetical solution to reveal itself as an uncomplete task. By the questioning of a situated legal case, as an aporetic experience—because the practical queries and problems posed by the concrete legal case have not yet been absorbed by a fundamental systematic-dogmatic exercise. [13: 158].
The judicial emotional regulation model proposed by Terry Maroney is explicitly related to the Aristotle’s advice on the emotions, although the author does not explicitly affirm that the judicial emotion regulation model aims to make judges more judicially virtuous.
“In determining the relative merits of emotion regulation strategies, context is paramount” [10: 1528].
“A viable model of judicial emotion regulation (…) must be achievable (…) It must be accessible to ordinary judges in the ordinary course of their work, and it must, at its core, be compatible with the essence of the judicial function” [10: 1509].
“Perhaps the most effective and permissible avoidance strategy would be to avoid situations the judge routinely finds most challenging by thoughtfully choosing the court in which she works (…) Judges certainly are free to make such choices, and they should do so if they find themselves better suited to certain types of assignments. But this is only a marginal strategy. Many judges work in courts of general jurisdiction and have virtually no control over what types of cases land in their courtrooms. Even those who work in specialized courts hear a wide range of cases that will provoke an equally wide range of emotions” [10: 1529–1530].
“While distraction is effective in blocking out emotional stimuli, and thus interrupting the progression of the associated emotion, it is equally effective in blocking out much else that is going on. Not surprisingly, distracted persons reliably demonstrate “impoverished recall” of the situations from which they are distracting themselves” [10: 1529].
“Each of these strategies is individually costly, and collectively they are undesirable, even dangerous” [10: 1532].
“Antecedent reappraisal involves pre-commitment to a set of beliefs or attitudes designed to channel one’s reaction to an anticipated emotional stimulus in the desired direction. For example, the woman consistently angered by her father-in-law might consider whether there is another way to frame his behavior. She may conclude that her father-in-law “talks only about himself because he doesn’t have many friends,” meaning that when he starts talking about himself his behavior will elicit sympathy rather than anger (…) Emotions also may be cognitively reframed once they are underway. Such reactive reappraisal “involves attending to the emotional situation but changing its emotional meaning,” by changing either one’s relationship to it— “I am the adult here”—or one’s beliefs about it—“my son is not trying to make me crazy, he is just being a typical teenager” [10: 1505].
“Introspection involves recognition of the emotion and focused attention to its particulars (…) the Honorable Alex Kozinski (…) provide an example of how judicial introspection might function. When Chief Judge Kozinski learned that the prosecutor had lied, he did not just notice that he was angry; he sought to determine why he was angry and to decide whether those reasons justified or even compelled some judicial response. Three reasons emerged. First, Chief Judge Kozinski was angry on behalf of the public, whose trust the prosecutor had violated. Second, he was angry on behalf of the defendant, whose life had been affected. Finally, he was angry on his own behalf, because the prosecutor had disrespected him, his authority, and the rules of his courtroom. Upon further reflection, he determined that his feelings of being personally affronted were relevant, for a judge must be able to rely on the good faith of litigants. But he also assessed that this reason to be angry was relatively less important to other people. He decided to base his response primarily on vindicating the interests of the public and the defendant and to use his anger as to all three reasons as a metric for the outrageousness of the conduct. The level of self- interrogation modeled by Chief Judge Kozinski in this instance allows a judge to distinguish between cases in which an emotion rightly informs the legal determination and those in which it might instead lead to an intemperate or inaccurate reaction” [10: 1522–1523].
“Disclosure “entails a description, in a socially shared language, of an emotional episode to some addressee by the person who experienced it. “This often takes the form of talking about the experience, but can include writing, singing, producing artwork, or any other form of expressive activity. Disclosure may be designed to engage others in the process of cognitive reappraisal, as when others help pick apart the experience and find ways to reframe it” [10: 1505].
“Behavioral suppression sometimes—but only sometimes—is so necessary as to justify its costs” [10: 1528].
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ABC News “I Hope You Die in Prison!” https://youtu.be/l8EMCiDqC1o.
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de Faria Silvestre, A.C. Emotions and Sentiments in Judicial Deliberation. Int J Semiot Law 33, 121–132 (2020). https://doi.org/10.1007/s11196-019-09667-8
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DOI: https://doi.org/10.1007/s11196-019-09667-8