The Emotional Dimension in Legal Regulation

This article argues that the study of legal regulation can be further developed through an analysis of emotions because it can bring into sharper focus the social nature of regulation. The article illustrates this point by discussing the notion of regulatory law as an emotional process. It then suggests various ways in which an analysis of emotions can promote understanding of a key issue in legal regulation, the role of structure and agency. The article concludes with a brief discussion of how existing social science research methods can be adapted to the study of emotions.     

Political Emotion

Emotions played a key role in the mass rallies that tookplace in Moscow and other major Russian cities in 2011–13. A comparison between the emotions expressed in anti-government and pro-government rallies shows that participants shared similar views on social order and social justice. However, similar emotions articulated in different locations were imbued with different tonalities and rhetoric. The grassroots horizontal cooperation at the civil society rallies opened up space for crisscrossing communication and interaction among demonstrators, which created vivid, self-organized emotions. The vertical structure of mobilization at the progovernment rallies, which was based on coercion, impeded free communication among its participants, closing off communication in the space of labor collectives, which hindered the production of emotions “from below” and prevented the communication of emotional spontaneity: the protesters could only adopt the emotions broadcast from the stage.     

Legal Emotions: An Ethnography of Distrust and Fear in the Arab Districts of an Israeli City

Recent sociolegal scholarship has explored the role of emotions in lawmaking and policymaking on security and crime issues. This article extends this approach to the relationship between law enforcement and affect by addressing the role of policing and security agencies in the (re)production of long‐term emotions, which bind a collective and fuel ethnonational division. An ethnography of the distinct emotional climate within the Arab districts of Lod, an Israeli city, shows that this climate is structured by two emotions: rampant distrust toward friends and neighbors, and intense fear of the Israeli authorities. This emotional climate is the product of the subterranean ties of Lod Palestinians with the Israeli security agencies as well as their experiences of the blurred line between state security and crime control enforcement. I embed the initial creation and relative stability of this emotional climate in the broader relationship between the Israeli state and its Palestinian citizens from 1948 to the present. The article concludes with a discussion of how the law enforcement's affective production has consequences for the salience and scope of citizenship and by arguing for a greater focus on the link between law enforcement, collective emotions, and processes of inclusion and exclusion.     

Moore��s Moral Facts and the Gap in the Retributive Theory

The purely retributive moral justification of punishment has a gap at its centre. It fails to explain why the offender should not be protected from punishment by the intuitively powerful moral idea that afflicting another person (other than to avoid a greater harm) is always wrong. Attempts to close the gap have taken several different forms, and only one is discussed in this paper. This is the attempt to push aside the ‘protecting’ intuition, using some more powerful intuition specially invoked by the situations to which criminal justice is addressed. In one aspect of his complex defence of pure retributivism, Michael S. Moore attempts to show that the emotions of well-adjusted persons provide evidence of moral facts which justify the affliction of culpable wrongdoers in retribution for their wrongdoing. In particular, he appeals to the evidential significance of emotions aroused by especially heinous crimes, including the punishment-seeking guilt of the offender who truly confronts the reality of his immoral act. The paper argues that Moore fails to vindicate this appeal to moral realism, and thus to show that intrinsic personal moral desert (as distinct from ‘desert’ in a more restricted sense, relative to morally justified institutions) is a necessary and sufficient basis for punishment. Other theories of the role of emotions in morality are as defensible as Moore’s, while the compelling emotions to which he appeals to clinch his argument can be convincingly situated within a non-retributivist framework, especially when the distinction between the intuitions of the lawless world, and those of the world of law, is recognised.     

Empathy and objectivity in the legal procedure: the case of Swedish prosecutors

The role of empathy, the capacity to read someone else’s emotions, in the legal context has previously been studied in relation to primarily judges’ decision-making, often with a concern for objectivity. Our purpose is to study professional emotion management in the legal process through an analysis of Swedish prosecutors’ use of empathy. An ethnographic data collection took place between 2012 and 2015, including shadowing, observations and interviews with 36 prosecutors from 3 prosecution offices. The analysis shows that during the investigation, empathy helps identify the prerequisites of a crime and deciding if and how to prosecute. When preparing for trial, empathy is used to anticipate the situation in court. During the trial, the empathic process includes management of the emotions of others in order to stage credible testimonies, convince the judge and calm victims. The empathic process is oriented and restricted by the emotive–cognitive judicial frame through which prosecutors are rewarded by emotions of comfort and pride in demonstrating expertise of legal coding. We conclude that empathy is integral to prosecutors’ professional performance, including the requirement to be objective. The study points to the problems with silencing emotions and maintaining a positivist notion of objectivity in the legal system.     

Shame, Guilt and Remorse: Implications for Offender Populations

The emotions shame and guilt may represent a critical stepping stone in the rehabilitation process. Often referred to as "moral" emotions owing to their presumed role in promoting altruistic behavior and inhibiting antisocial behaviors, shame and guilt provide potentially exciting points of intervention with offenders. In this article, we describe current psychological theory and research that underscores important differences between shame and guilt. We note parallels between psychologists' conceptions of guilt and shame, and criminologists' conceptions of reintegrative and disintegrative shaming. We summarize recent research investigating the implications of these moral emotions for criminal and risky behavior, with special emphasis on the handful of studies conducted with actual offenders. We conclude with a discussion of implications for treatment in criminal justice settings.     

The relationship of perceptions and emotions to behavior in the face of collective inequality

The present experiment investigated the role of emotions and perceptions in determining the overt behavior of disadvantaged group members. Three limitations to the existing psychological research are presented as a possible reason for the present inability to describe a consistent relationship between the emotions and perceptions of those faced with intergroup inequalities and their subsequent actions. The present experiment attempted to address these limitations by employing a laboratory paradigm in which subjects actually engage in overt behavior. As well, a broader array of emotions and perceptions were assessed and subjects were offered a variety of behaviors from which to choose. The findings point to a relatively strong relationship between emotions and perceptions on the one hand, and overt action on the other. Feelings of frustration and anger, the perception of one's personal treatment as satisfactory and just, and hope of future improvement of one's position combined to discriminate between subjects who accepted their disadvantaged position, those who took normative forms of action, those who reacted in an individual nonnormative way, and those who chose collective nonnormative behavior.     

“No Remorse,No Repent”: Linking Lack of Remorse to Criminal Offending in a Sample of Serious Adolescent Offenders

Linking emotions to offender decision-making has only recently become of theoretical interest to criminologists, but empirical work in this area has not kept pace nor has such research examined the role of emotions to offending in offender-based samples. Recently, Warr outlined regret as one such emotion that may be useful in thinking about offending. Specifically, he argued that regret may be related to discontinuity in offending, or conversely that a lack of remorse may be related to continuity in offending. This paper uses data from a sample of serious adolescent offenders followed for seven years to investigate this hypothesis. Results provide support for Warr’s hypothesis that remorse-resistant adolescents incur a higher number of re-arrests, while remorse-prone adolescents incur fewer re-arrests, even after controlling for other relevant risk factors.     

Empirical evidence for AMBER alert as crime control theater: a comparison of student and community samples

While the AMBER Alert system is intended to facilitate the rescue of abducted children, it has practical and psychological limitations. Participants indicated their emotions and perceptions about Alerts before and after reading a vignette that manipulated details about a child abduction. Results indicate that the Alert system fits some criteria of Crime Control Theater (CCT). CCT polices are emotion-based legal actions that appear to address crime but fail to do so and have unintended consequences. Participants experienced panic about child abduction and believed the system is an effective tool which should be used no matter the unintended consequences. Emotions and panic positively related to perceptions of the system. Still, perceptions were not particularly positive, indicating that some participants recognize the system's limitations. Female and community participants generally had more positive perceptions than males and students, especially when experiencing high emotions or panic. Reading about an abduction reduced emotions overall and led to more positive perceptions (but only in the ‘AMBER Alert success’ condition). Reading about an ‘Alert failure’ did not affect perceptions. Results highlight the role of emotion in shaping perceptions of the system. As with other CCT policies, lawmakers should rely less on community sentiment and more on science when adopting legislation.     

Credibility of the emotional witness: A study of ratings by police investigators

Abstract

Credibility judgments by police investigators were examined. Sixty-nine investigators viewed one of three video-recorded versions of a rape victim's statement where the role was played by a professional actress. The statements were given in a free recall manner with identical wording, but differing in the emotions displayed, termed congruent, neutral and incongruent emotional expressions. Results showed that emotions displayed by the rape victim affected police officers’ judgments of credibility. The victim was judged as most credible when crying and showing despair, and less credible when being neutral or expressing more positive emotions. This result indicates stereotypic beliefs about rape victim behavior among police officers, similar to those found for lay persons. Results are discussed in terms of professional expertise.     

Credibility of the Emotional Witness: A Study of Ratings by Court Judges

Previous studies have shown that the emotional behavior displayed during testimony may affect the perceived credibility of the witness. The present study compares credibility ratings by Norwegian court judges with those made by lay people. The participants viewed one of three video-recorded versions of a rape victim's statement, role played by a professional actress. The statement was given in a free-recall manner with one of three kinds of emotions displayed, termed congruent, neutral, and incongruent emotional expression. The results show that, in contrast to lay people, the credibility ratings of court judges and their votes for a guilty verdict were not influenced by the emotions displayed by the witness. Results are discussed in terms of professional expertise.     

Evolutionary psychology and the origins of justice

Justice defines our discipline in both name and substance; yet its origin is a neglected topic. I explore the origins of the human “sense of justice” from the perspective of evolutionary psychology. My thesis is that the human sense of justice is a biological adaptation in the fullest sense of the word: That is, an evolved solution to problems faced by our distant ancestors. I explore the role of reciprocal altruism and of “cheating” and cheater detection as exerting pressure for the selection of moral outrage in our species. Moral outrage leads to the desire to punish, which serves an expiatory role. This punishment can be tempered with mercy by tapping into the evolved emotions of empathy and sympathy as cultural ideas defining all human beings as intrinsically valuable. Reconciliation and reintegration as contained in restorative justice are also examined from this naturalistic perspective. I conclude by exploring how cultural variability can be accommodated.     

Shoemaker on Sentiments and Quality of Will

In this comment, I raise a number of concerns about David Shoemaker’s adoption of the quality of will approach in his recent book, Responsibility from the Margins. I am not sure that the quality of will approach is given an adequate grounding that defends it against alternative models of moral responsibility; and it is unclear what the argument is for Shoemaker’s tripartite version of the quality of will approach. One possibility that might fit with Shoemaker’s text is that the tripartite model is meant to be grounded in empirical claims about the structure of encapsulated emotions; but I argue that those empirical claims are not made out, and that regardless it is doubtful whether this is the most helpful model of the emotions to deploy in this context. In contrast, I propose that the quality of will approach is better defended in ethical terms, by reference to the vision of the value of living together as equals (in some sense) that is embodied in P.F. Strawson’s picture of the engaged attitude, and the emotions involved in it.     

Embracing Emotionality: Clothing My “Naked Truths”

There is increasing awareness and recognition that researchers’ emotions will contribute to a richer and deeper understanding of what they are studying. Researchers’ emotions as analytic tools are particularly relevant when working with marginalized or oppressed groups because of the emotional aspect generally associated with human suffering. This paper discusses how adopting a reflexive practice can help researchers embrace and use their emotions as a part of the research process, enabling a more humanistic approach to studying crime and those whose marginalization and oppression are intricately tied to their crime. More specifically, this paper examines my own experiences of doing research with Aboriginal female offenders in a federal prison. I problematize the process of embracing emotionality by reflecting on the paralysis that evolved in my research with these women as I experienced an overwhelming sense of despair and hopelessness. I contend that social science in the academic arena, not unlike many other institutions in society, has adopted a method of surveillance thereby instilling a sense of fear and judgment upon those working in academic arenas. After describing my reflexive process throughout this emotional paralysis, I describe my discovery of safe spaces as a way of dealing with my emotions and how engaging in creative analytic practice enabled me to clothe my nakedness and vulnerability as I represented, and ultimately re-created my self in the research process. As part of that evolution, embracing emotionality ultimately enabled me to engage in knowledge building as well as advocacy with and for Aboriginal women in prison.     

Justice and Feelings: Toward a New Era in Justice Research

In this special issue, the relationship between feelings and justice and its consequences are highlighted. Five articles discuss the role that affect, feelings, and emotions play in justice processes across a variety of social settings. In the present introductory article, the position of past and present justice research in relationship to these topics is briefly reviewed. In addition, reasons are outlined to show why a focus on these issues may be pivotal for a better understanding of social justice and how this may pave the way for a new, more process-oriented era in social justice research, focusing more on “hot” cognitive aspects as they pertain to social justice concerns.     

The Significance of Shame in the Lives of Women Who Experience Male Violence

Recently there has been recognition of the cultural politics of emotion, that is, the ways in which emotions impact upon individual life experiences. Significantly, it has been shown how emotions can produce effects of power on and through the bodies of individuals. Despite this knowledge, the law and legal responses tend to minimise, obscure and deny the ways in which emotions, and in particular shame, impacts upon individuals. This article therefore argues that the lives of women who experience male violence cannot be fully understood without reference to the ways in which shame affects those experiences. It explores how shame operates as a gendered set of self-regulatory practices, which are also practices of male power in individual womens’ lives. In order to do this findings from a small scale qualitative study which used semi-structured interviews with women who have experienced violence are utilised, together with a Foucauldian theoretical framework. The article contends that an awareness and understanding of how shame affects the lives of women experience male violence can improve law and social policy responses to male violence against women.     

Gendered Responses to Serious Strain: The Argument for a General Strain Theory of Deviance

This paper expands and builds on newer avenues in research on gender and general strain theory (GST). I accomplish this by focusing on serious strains that are relevant for males and females, including externalizing and internalizing forms of negative emotions, and including multiple gendered deviant outcomes. Using the Add Health dataset, I find strong support for the impact of serious strains on both types of negative emotions and different forms of deviance for males and females. However, the experience of serious strain, emotionally and behaviorally, is gendered. Depressive symptoms are particularly important for all types of deviance by females. Including multiple types of deviant outcomes offers a fuller understanding of both similarities and differences by gender. These results support the utility of GST as a theory of deviance in general and support greater connections between GST, feminist theorizing, and the sociology of mental health.     

Magistrates' Everyday Work and Emotional Labour

The concept of emotional labour describes the management of emotions as part of everyday work performance. Much of the research in this field has been in relation to jobs in the service sector where (mostly female) employees are required to shape their own feelings in order to make customers or clients feel at ease, comfortable or happy. There has been relatively little attention paid to the importance of emotional labour in professional occupations. This paper examines the emotional labour of magistrates in court. Magistrates must often regulate their own emotions and those of some court users, many of whom are not legally represented and who express a variety of emotions, including anger and distress, and experience social problems that may elicit emotions or emotional responses from the magistrate. The paper reports findings from interviews with over 40 magistrates throughout Australia and begins to address the significance of emotional labour for this branch of the judiciary.     

Epistemic emotions in prosecutorial decision making

The article examines epistemic emotions as part of the emotive-cognitive processes of prosecutors’ knowledge seeking and decision making in preliminary investigation and court proceedings. Drawing on ethnographic fieldwork, interviews, and shadowing of prosecutors in Sweden, we show how emotions motivate and orient prosecutors’ inquiries and the fundamental role of the ‘certainty–doubt spiral’ for ‘doing objectivity’. In conclusion, we discuss the centrality of emotions for conscientious and well-considered decisions in legal work. The study contributes to the field of law and emotion by exploring the epistemic quality of emotions, notably the certainty–doubt spiral, in legal work.