The Law is not a place for emotions. It is the place of reason and rationality. In the legal community, feelings are considered irrational or dangerous and, as such, have to be contained or suppressed. This approach is nonetheless flawed and completely unrealistic. Emotions form an inevitable part of our life, ever present under the surface; they cannot be avoided. They are what makes life worth living.
Moreover, a soulless and cold approach would make the Law rigid and inflexible, through a mechanical application ignoring the context. By closing out emotions, we fail to completely perceive the reality around us. Without emotion, decision making can be shallow, fragile and lacking a sense of common humanity. If the legal system becomes a kind of judicial assembly line, then social justice may become irrelevant to the Law.
Truth is, in contrast to the common image of dry reason and objectivity, the Law has always taken account of emotions and deals with the full range of human feelings. Courts take into consideration feelings of anger and jealousy to determine whether a killing is manslaughter or murder. Criminal Law also regards theories of fear, grief and remorse. Tort Law awards compensation on the basis of emotional sufferings.
Strong feelings are involved in all legal matters, whether they are experienced by judges, juries or lawyers. Any barely relevant legal matter, even a dispute over a pending payment, may cause worry, sadness, frustration and anger on all sides.
In the Common Law’s courts, the judicial oath requires judges to hear disputes “without affection or favour”. Members of the jury in criminal trials are expected to set aside their emotions, regardless of the case’s subject matter. These expectations serve as a foundation for a fair and just legal system.
However, it seems we fail to understand the relation between emotion-driven information processing and decision making. Emotions can prompt us to take action, if we perceive that the action will either reduce or sustain the unpleasant sensations associated with the emotion. Sometimes, an emotion can create a powerful desire to express ourselves, such that failing to express the emotion will itself create a feeling of discomfort.
Judges are believed to be the incarnation of rational and reasonable ruling. They are not biased and we expect them to be significantly less inclined to let their emotions affect the outcome of a case. It is their responsibility to put their personal feelings aside and only look at the facts of the case. But they are human beings. There are many factors that affect the judgment of the courts during a trial. It is reasonable to believe that criminal cases of violence towards women would better heard by female judges, due to an emotional inclination and sympathy towards the victim and it is very much possible that injustice would not be done.
We rarely enjoy learning that we have been deceived. To the contrary, the discovery that we have been lied to usually provokes an emotional mix of anger, resentment and surprise. Along comes a feeling of uneasiness and wariness if someone is being dishonest with us on a particular occasion, sensations that warn us that if we trust the person, we might regret it.
Therefore, when jurors find themselves instinctively feeling that a witness is lying, that feeling alerts them that indicators of deception are present. Something does not feel right. The law places great confidence in these mechanisms, giving jurors the liberty of making whatever assumption they reasonably deem appropriate. Here, in the domain of one of the jury’s most closely protected functions, emotions are playing a central role.
Studies suggest that while sadness does not seem to affect jurors’ decisions, anger and disgust do. Showing gruesome photographs of a murder victim’s body can usefully counteract the emotions that jurors feel when they are facing a nice-looking, well-dressed criminal defendant. If jurors are exceedingly outraged by the pictures, they immediately consider the defendant a monster.
Generations of lawyers have been taught that thinking like a lawyer requires putting emotion aside. They are warned that anger will blind them to the facts as they really are. In exchange for putting feelings aside, law students are promised the gift of rigorous thinking. It takes work to create the appearance of disinterestedness and objectivity. It takes work to project a tough exterior and a sense of unwavering certitude. Let us not forget the old saying; “A person who represents himself has a fool for a client”.
