Document Type

Book Chapter

Publication Date

1-2020

Source Publication

Virtue, Emotion and Imagination in Law and Legal Reasoning. Ed. Amalia Amaya and Maksymilian Del Mar. Oxford: Hart Publishing, 2020. 101–120.

Abstract

Legal doctrine regularly requires judges to both understand and use emotions in different ways. This chapter explores the role of emotions in fixing and sustaining judicial attention on the impact of a law on the constitutional rights of an individual or group. That certain forms of wrong or harm, including forms of political and social exclusion, are difficult to detect in the absence of focused attention is, I think, what Elizabeth Bishop’s poem ‘Man-Moth’, excerpted here in epigraph, intends to express. This chapter explores the role of emotions in setting up the serious, sustained inquiry into the impact of a law on the constitutionally guaranteed rights of an individual or group that is required under various legal regimes. When named, this emotional aspect of legal reasoning is often relayed as a call for judicial empathy, but, as this chapter aims to show, this is neither a sufficient nor apt description of the emotionally-laden, political practice of fixing one’s attention on a subject. Drawing on the philosophy of emotion, we can sketch, for example, various ways in which judicial attempts to pay attention to the claimant might go awry such that they prove anathema to core legal values, or fail to comport with the professional demands on the practicing judge in the adjudication of a constitutional rights case. This chapter aims to bring this aspect of legal reasoning more clearly into focus by delineating a series of ill versions of judicial attention, and so too by recognising some persistent problems with the related concept of judicial empathy, which can be roughly defined as the attempt to enter either the mind or situation of the person before the court.

Iris Murdoch called the process of imagining a ‘moral discipline of the mind’, an effort comparable to that ‘of “composing” and “holding” a difficult work of art in one’s attention’. The focus of this chapter is on precisely these kinds of efforts of attention that are involved in legal reasoning, and its principal task is to explore how emotions motivate and facilitate the kind of attention necessary to ascertain whether a legal commitment to a right has been violated. Emotions play an integral role in the form of attention that judges must, as a matter of law, pay to the claimant in a rights case. For, as the chapter concludes, certain forms of constitutional reasoning require from judges a certain politics of attention (meaning here the conscientious and effortful attempt to both pay attention and effectuate a principled distribution of attention) in which emotions play indispensable roles.

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