Unit 2: Emotions and Adjudication

Traditional legal research has been for a long time somewhat reserved in acknowledging the role human emotions play in the shaping of, applying and studying the law. The literature devoted to these topics is therefore scarce and haphazard. Only in recent times, has there been a more sustained effort to address the plethora of topics stemming from the interplay between law and emotions.

The presented bibliography is divided in two sections. The first comprises of a selection of some general readings on the emotions in general (Ekman and Davidson; Barrett, Lewis, and Haviland-Jones; Barrett) and some introductory overviews of the law and emotions field (Abrams and Hila; Roach Anleu and Mack; Bandes). The selected works aim to provide a general framework for students and scholars embarking on the study of this field.

The second section provides a tentative overview of those books and scholarly articles that are more narrowly focused on the role emotions play in adjudication. Whereas the role of emotions has been grudgingly admitted in the legislative domain, the realm of judicial decision-making has been for a long time consistently depicted as a (predominantly) logical, deductive or at least dispassionate activity (for a critical assessment see: Maroney; Maroney and Gross). This understanding of judicial decision-making is coming under renewed criticism from several quarters. Some authors have enlisted the help of neuroscience to challenge this myth (Casebeer and Churchland; Friedland; Greene et al.), others offer critique from a more philosophically informed point of view (Nussbaum). Different authors argue that the emotional component is fundamental to very processes that inform our decision-making (Feigenson and Park) and emphasise the role empathy (Deigh), legal and moral emotions (Brozek) and intuition (Haidt; Haidt, and Craig) play in moral and judicial reasoning. Finally, the problem of objectivity of emotions is brought to the fore, with some authors arguing that the mere reliance on emotional thinking and decision-making does not necessarily lead to an abandonment of objectivity (Grossi) and others casting some doubt on the accuracy with which assess emotions (Blumenthal).


Emotions and Adjudication