Emotions, Values, and the Law brings together ten of John Deigh's essays written over the past fifteen years. In the first five essays, Deigh ask questions about the nature of emotions and the relation of evaluative judgment to the intentionality of emotions, and critically examines the cognitivist theories of emotion that have dominated philosophy and psychology over the past thirty years. A central criticism of these theories is that they do not satisfactorily account for the emotions (...) of babies or animals other than human beings. Drawing on this criticism, Deigh develops an alternative theory of the intentionality of emotions on which the education of emotions explains how human emotions, which innately contain no evaluative thought, come to have evaluative judgments as their principal cognitive component. The second group of five essays challenge the idea of the voluntary as essential to understanding moral responsibility, moral commitment, political obligation, and other moral and political phenomena that have traditionally been thought to depend on people's will. Each of these studies focuses on a different aspect of our common moral and political life and shows, contrary to conventional opinion, that it does not depend on voluntary action or the exercise of a will constituted solely by rational thought. Together, the essays in this collection represent an effort to shift our understanding of the phenomena traditionally studied in moral and political philosophy from that of their being products of reason and will, operating independently of feeling and sentiment to that of their being manifestations of the work of emotion. (shrink)

Understanding the contributions and the implications of law and emotion scholarship requires an acknowledgement of the different approaches within it. A significant part of law and emotion scholarship is focused on arguing for the relevance of emotion and on identifying emotion in legal processes and actors. Other parts of it venture further to ask how law can affect the expression and content of emotions themselves. This scholarship challenges legal positivist foundations (law as rational and objective), as well as some (...) other established divisions in thinking, both in law, and more generally in the history of ideas (reason vs. emotion, the private vs. the public). The other important factor, which this article explores, is the methodology employed by law and emotion scholarship. (shrink)

Darwin’s (1871/1981) observation that evolution has produced in us certain emotions responding to right and wrong conduct that lack any obvious basis in individual utility is a useful springboard from which to clarify the role of emotion in moral judgment. The problem is whether a certain class of moral judgment is “constituted” or “driven by” emotion (Greene, 2008, p. 108) or merely correlated with emotion while being generated by unconscious computations (e.g., Huebner, Dwyer, & Hauser, 2008). With one exception, (...) all of the “personal” vignettes devised by Greene and colleagues (2001, 2004) and subsequently used by other researchers (e.g., Koenigs et al., 2007), in their fMRI and behavioral studies of emotional engagement in moral judgment, involve violent crimes or torts. These studies thus do much more than highlight the role of emotion in moral judgment; they also support the classical rationalist thesis that moral rules are engraved in the mind. (shrink)

In his seminal work, Emotional Intelligence, Daniel Goleman suggests that the common view of human intelligence is far too narrow and that emotions play a much greater role in thought, decision-making and individual success than is commonly acknowledged. The importance of emotion to human experience cannot be denied, yet the relationship between law and emotion is one that has largely been ignored until recent years. However, the last two decades have seen a rapidly expanding interest among scholars of all (...) disciplines into the way in which law and the emotions interact, including the law's response to emotion and the extent to which emotions pervade the practice of the law. In The Emotional Dynamics of Law and Legal Discourse a group of leading scholars from both sides of the Atlantic explore these issues across key areas of private law, public law, criminal justice and dispute resolution, illustrating how emotion infuses all areas of legal thought. The collection argues for a more positive view of the role of emotion in the context of legal discourse and demonstrates ways in which the law could, in the words of Goleman, become more emotionally intelligent. (shrink)

A new theory of how the brain constructs emotions that could revolutionize psychology, health care, law enforcement, and our understanding of the human mind Emotions feel automatic, like uncontrollable reactions to things we think and experience. Scientists have long supported this assumption by claiming that emotions are hardwired in the body or the brain. Today, however, the science of emotion is in the midst of a revolution on par with the discovery of relativity in physics and natural (...) selection in biology--and this paradigm shift has far-reaching implications for us all. Leading the charge is psychologist and neuroscientist Lisa Feldman Barrett, whose theory of emotion is driving a deeper understanding of the mind and brain, and shedding new light on what it means to be human. Her research overturns the widely held belief that emotions are housed in different parts of the brain and are universally expressed and recognized. Instead, she has shown that emotion is constructed in the moment, by core systems that interact across the whole brain, aided by a lifetime of learning. This new theory means that you play a much greater role in your emotional life than you ever thought. Its repercussions are already shaking the foundations not only of psychology but also of medicine, the legal system, child-rearing, meditation, and even airport security. Why do emotions feel automatic? Does rational thought really control emotion? How does emotion affect disease? How can you make your children more emotionally intelligent? How Emotions Are Made answers these questions and many more, revealing the latest research and intriguing practical applications of the new science of emotion, mind, and brain. (shrink)

This book examines the role and importance of reason and emotion in justice and the law. Eight lawyers and philosophers of law consider law's basis in the universal human need for society, our innate sense of justice, and many other powerful inclinations and emotions, including the desire for fairness and even for law itself. Human beings are deeply social creatures, inspired by social and other emotions, which can ennoble, support, or undermine the law. Law gains legitimacy and effectiveness (...) when reason recognizes and embraces human emotions for the benefit of society as a whole. This volume explores the power and purposes of reason and emotion in the law. (shrink)

This book pursues the argument that an attention to emotions produces a more nuanced, and more adequate, feminist account of legal subjectivity. Although the relationship between law and feminism has resulted in a vast body of work, the issue of emotions has not been foregrounded in feminist legal scholarship. Indeed, many feminists have argued that reason and not emotion must provide the foundational basis for all laws and legal reforms; an argument that has led to a division of (...) the legal and the psychic or the emotional into separate and distinct zones. Challenging this separation, the book engages a range of recent criminal law cases and legislation in India in order to advocate a 'feminisation' of law. Drawing on psychoanalytic theory, the book takes up a range of issues surrounding sexual violence in order to propose a shift from viewing law as reason to seeing law as the terrain of messy and contradictory emotional continuums; where legal subjects are viewed in their psychic dimensions, and where law itself is opened up to its own unconscious desires. Foregrounding emotions in this way, the book argues, can offer new insights into the operation of criminal law, and new orientations for feminist ways of responding to, and engaging with, it. This book will be of interest to scholars and students working in the areas of criminal law, legal feminism, and gender studies. (shrink)

This article focuses on the most recent debates in a certain area of the ‘law and emotion’ field, namely the literature on the role of affect in the criminal law. Following the dominance of cognitivism in the philosophy of emotions, authors moved away from seeing emotions as contaminations on reason and examined how affective reactions could be accommodated within penal proceedings. The review is structured into two main components. I look first at contributions about the multi-dimensional presence of (...) emotions within ordinary criminal proceedings. Second, I examine work done on the use of criminal trials under the emotionally stressful circumstances of post-conflict societies. In the conclusion I sketch a theoretical proposal for moving the discussion forward. (shrink)

Respect, as Kant describes it, has a duality of nature that seems to embody a contradiction – i.e., it is both a moral motive and a feeling, where these are thought to be mutually exclusive. Most solutions involve eliminating one of the two natures, but unfortunately, this also destroys what is unique about respect. So instead, I question the non-cognitive theory of emotion giving rise to the contradiction. In its place, I develop the cognitive theory implicit in Kant's work, one (...) in which emotions take the form of evaluative judgments that determine the will. I then show that, as a purely rational emotion, respect is perfectly suited to be a moral motive. (shrink)

The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and (...) the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the generation, the interpretation, and the reception of law. Their scholarship is in part offered as a collective corrective to what they perceive as the legal academy’s dominant and ill-conceived bias toward reason and rationalism, when explaining legal phenomena. In my comments this morning, however, I want to pose a question that I believe has been neglected by law and emotions scholars, and I will urge that we center it. To summarize my criticism: Law and Emotions scholars have looked at emotion’s impact on law and on our understanding of justice, and at law’s impact on emotional life, and have done so to great effect. What they, or we, haven’t much to date investigated, however, are the emotions law produces, or authors, or sires, or births, or fathers – the emotions that law itself generates, rather than the emotions that affect law or the emotions that law affects. (shrink)

This illuminating Research Handbook analyses the role that emotions play and ought to play in legal reasoning and practice, rejecting the simplistic distinction between reason and emotion. International expert contributors take multidisciplinary approaches, drawing on neuroscience, philosophy, literary theory, psychology, history, and sociology to examine the role of a wide range of emotions across a variety of legal contexts. Chapters consider how the rich tapestry of human emotion impacts legal actors, influences legal doctrine, and shapes the dynamics of (...) legal institutions. Moving beyond legal contexts traditionally considered rife with emotion such as the criminal law and jury trials, the Handbook explores how emotion relates to contracts, property, bankruptcy, international law, and truth and reconciliation commissions. It also reflects on the importance of research methodologies, theories, and techniques for assessing the role of emotion in the legal arena. Surveying the depth and complexity of law and emotion across a panoply of legal actions, institutional contexts, and legal doctrines, this Research Handbook will be critical reading for academics and students of legal theory and legal philosophy. Its detailed examination of emotions in the practice of private, public, international, and criminal law will also be beneficial for lawyers, judges, and policymakers. (shrink)

Deliberative democracy, it is claimed, is essential for the legitimisation of public policy and law. It is built upon an assumption that citizens will be capable of constructing and defending reasons for their moral and political beliefs. However, critics of deliberative democracy suggest that citizens’ emotions are not properly considered in this process and, if left unconsidered, present a serious problem for this political framework. In response to this, deliberative theorists have increasingly begun to incorporate the emotions into (...) their accounts. However, these accounts have tended to focus only upon the inclusion of emotions in the external-collective exchange of reason between citizens. Little work has been done on how the individual will actually cope with emotions internally within their own minds. There has been no consideration of the capacities that citizens will need to perceive, understand and regulate emotions as they formulate reasons both by themselves and with others. Moreover, there has been little consideration of how these capacities might be educated in children so that emotionally competent deliberative citizens can be created. In this paper, emotional intelligence is presented as an essential capacity that can fulfil this role for the deliberative citizen and deliberative democracy more generally. The ‘deliberative school’ is suggested as a potential site for this transformation that can progress from generation to generation, cultivating citizens that are increasingly better equipped to handle emotionally-laden deliberative engagement. (shrink)

Applying Fineman’s vulnerability theory, this paper will explore the role of emotions within the legal profession and the specific vulnerabilities that arise from their traditional and contemporary treatment within law. It will consider how the notion of professionalism in law has traditionally disregarded or excluded emotions as irrelevant or even dangerous in a manner which is philosophically and psychologically flawed as well as damaging to mental health and wellbeing. This approach has created longstanding unacknowledged vulnerabilities for the profession (...) as a whole and individual practitioners. It will then explore how the shifting legal services landscape, and the resultant evolution of the profession, has led to a growing contemporary interest in the use of emotional competencies (often characterised as ‘soft skills’ or ‘emotional intelligence’). These are now increasingly exploited as tools to enhance profitability. However, this leads to a dichotomy as, despite their increasing utilisation, emotions are still not fully acknowledged or incorporated within law’s core professional values. This generates further individual and institutional vulnerabilities around mental health and wellbeing which require urgent attention to ensure the health of the contemporary profession. The paper concludes with suggestions for reforms to alleviate these vulnerabilities and promote greater future resilience within law. (shrink)

Applying Fineman’s vulnerability theory, this paper will explore the role of emotions within the legal profession and the specific vulnerabilities that arise from their traditional and contemporary treatment within law. It will consider how the notion of professionalism in law has traditionally disregarded or excluded emotions as irrelevant or even dangerous in a manner which is philosophically and psychologically flawed as well as damaging to mental health and wellbeing. This approach has created longstanding unacknowledged vulnerabilities for the profession (...) as a whole and individual practitioners. It will then explore how the shifting legal services landscape, and the resultant evolution of the profession, has led to a growing contemporary interest in the use of emotional competencies (often characterised as ‘soft skills’ or ‘emotional intelligence’). These are now increasingly exploited as tools to enhance profitability. However, this leads to a dichotomy as, despite their increasing utilisation, emotions are still not fully acknowledged or incorporated within law’s core professional values. This generates further individual and institutional vulnerabilities around mental health and wellbeing which require urgent attention to ensure the health of the contemporary profession. The paper concludes with suggestions for reforms to alleviate these vulnerabilities and promote greater future resilience within law. (shrink)

Relatively little has been written on the connection between property and emotions from a legal perspective, despite the centrality of property in everyday life and the complex relationships that exist between owners and their property. Scholars working in other disciplines have analyzed these links, identifying “proprietary” emotions and corresponding emotional traits. However, little has been mapped onto the field of law. This article looks at key emotions surrounding property as identified in psychological and, to a lesser extent, (...) sociological literature. After mapping these onto selected areas of property law, it posits the need for a deeper and more collective field of inquiry. (shrink)

The article explains the emotional significance of punishment in the law and in common life.

This paper challenges recent influential arguments which would encourage legislators and courts to give weight to an assessment of the “evaluative judgements” expressed by the emotions which motivate crimes. While accepting the claim of Kahan and Nussbaum and others that emotions, other than moods, have intentional objects , and are not mere impulses which bypass cognition, it suggests the following criticisms of their analysis. First, the concept of an emotional “evaluative judgement” tends to elide the distinction between “judgements” (...) that are merely the sense of an emotion, and do not have the character of acts, and deliberative emotional judgements that do resemble acts and so properly fall within the corrective scope of the law. Second, intentional emotions are empowered by pre–intentional psychological resources which are less amenable than intentional states to the agent's conscious supervision: The traditional recognition of “infirmity” in mitigation of crimes uncharacteristic of the criminal's overall conduct towards others is justified by the unpredictable action of these pre–intentional elements and can survive the abandonment of the mechanistic conception of emotion. (shrink)

Law and emotion has evolved into a vibrant and diverse field, drawing in legal scholars and interdisciplinary partners from across the social sciences, hard sciences, and humanities. This introduction to the special section on law and emotion traces the history and theoretical underpinnings of this movement and situates the special section within it. The insights of emotion research can help legal scholars and practitioners to better calibrate law to human realities and to foster a desired set of emotional experiences among (...) law’s subjects. Law, in turn, offers to researchers a forum within which to explore emotion in a dynamic and influential real-world setting. The introduction ends with a call to disciplined interdisciplinarity. (shrink)

Reason and emotion are often cast as opposites. Yet emotion comes in a wide array of manifestations and has a variety of relations with its supposed opposite. Understanding emotion better is key to grasping how jurisprudence casts the relation between psychology and judicial decision making. Jurisprudents disagree on whether and when (lack of) emotion is a problem for decision makers in the justice system. The aim of this paper is to shed light on unarticulated assumptions in mainstream legal theory concerning (...) this disagreement. The paper plots the different positions jurisprudents hold concerning the role of emotion in judicial decision making, regardless of where they stand on matters such the nature of law. The paper substantiates the claim that legal theorists often take an irrationalist approach to emotion but occasionally develop an alternative account that is closer to a cognitivist approach, the prime example of which is the claim that equity requires practical reasoning. Emotions are then cast as skills to be appreciated. The paper concludes that jurisprudence adopts a simplistic view of emotion. The study of the role of emotion has been hampered by the tendency to view emotions reductively. My classificatory effort warrants the conclusion that lack of emotion – understood as a skill in cognitivist terms – constitutes a problem for justice. (shrink)

It has been argued recently that some basic emotions should be considered natural kinds. This is different from the question whether as a class emotions form a natural kind; that is, whether emotion is a natural kind. The consensus on that issue appears to be negative. I argue that this pessimism is unwarranted and that there are in fact good reasons for entertaining the hypothesis that emotion is a natural kind. I interpret this to mean that there exists (...) a distinct natural class of organisms whose behavior and development are governed by emotion. These are emoters. Two arguments for the natural kind status of emotion are considered. Both converge on the existence of emotion as a distinct natural domain governed by its own laws and regularities. There are then some reasons for being optimistic about the prospects for consilience in emotion theory. 1 The mantra 2 Griffiths on emotions as natural kinds 3 Panksepp on emotions as natural kinds 4 Emotion as a neurobiological kind 5 Emotion as a psychological kind 6 Response to the mantra 7 Unification or fragmentation? 8 Concluding remarks. (shrink)

Although science and law employ different methods to gather and weigh evidence, their conclusions are remarkably convergent with regard to the effect that workplace stress has on the health of employees. Science, using the language of probability, affirms that certain stressors predict adverse health outcomes such as disabling anxiety and depression, cardiovascular disease, certain types of injury, and a variety of immune system disorders. Law, using the language of reasonable foreseeability, affirms that these adverse outcomes are predictable under certain conditions, (...) typically defined in relation to what a reasonable person should know. Society is arguably in a position to establish standards for the abatement of certain types of workplace stress. As part of this process, we need to conceptualize an ideal form of conduct that exemplifies the standards to which both law and science urge us to aspire. For this purpose, the concept of the neighbor at work is proposed. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Ought We to Require Emotional Capacity as Part of Decisional Competence?Paul S. Appelbaum* (bio)AbstractThe preceding commentary by Louis Charland suggests that traditional cognitive views of decision-making competence err in not taking into account patients’ emotional capacities. Examined closely, however, Charland’s argument fails to escape the cognitive bias that he condemns. However, there may be stronger arguments for broadening the focus of competence assessment to include emotional capacities, centering on (...) the ways in which emotions aid humans in processing information. Before emotional capacities are added to the list of functions essential for decisional competence, though, the feasibility and utility of such a reorientation must be demonstrated.To what extent ought persons’ capacities to experience emotion be taken into account when determining whether they should be deemed competent to make their own decisions? In the previous article, Louis Charland (1998) argues that traditional models of decision-making competence—of which the MacArthur Competence Treatment Study is a typical example—are mistaken in focusing narrowly on persons’ cognitive abilities to the neglect of emotional factors. In contrast, he suggests, constructs of competence ought explicitly to require a capacity to experience emotions, which he believes is central to meaningful decision making, before deeming persons competent.Charland, as he acknowledges, is not the first to suggest that the presence of some degree of emotional capacity is a necessary element of competence, but his argument is among the most elaborate to date and is certainly worth closer examination. Looked at carefully, however, Charland’s argument does not make quite the case for the determination of emotional capacity in competence assessment that he claims for it. Indeed, as I demonstrate below, Charland may share the same “pernicious [End Page 377] cognitive bias” that he ascribes to more traditional approaches. However, despite what I identify as the problems in Charland’s argument, others have raised more disturbing questions about the lack of attention to emotional issues in competence assessment. Thus, I am not ready to reject entirely the possibility that determinations of decisional competence ought to consider emotional factors. I conclude by outlining the questions that remain to be answered to identify more clearly the potential benefits of such an approach.The Construct of Decision-Making CompetenceSome preliminary comments about the nature of the dominant construct of decision-making competence may provide a useful frame for my response to Charland’s paper. Contemporary ideas of competence are tied inextricably to the ideal of self-determination in modern Western societies. Such societies are committed to respect for individual choice, both as a good in its own right and on the grounds that each person knows best what choices will maximize his or her own welfare. In general, therefore, states will not intervene to prevent persons from acting on their decisions, even when the choices they make—like the decision to smoke or to refuse potentially life-saving medical care—may objectively be thought to be detrimental to them.In some cases, however, the presumption that people will act in their own interests, as well as the notion that there is something intrinsically valuable in respecting their choices, fails (Buchanan and Brock 1989). When people’s minds are so disordered that they cannot be said to be making meaningful choices, other values come into play. Such people are called “incompetent.” When persons reach that point, the state’s interest in protecting its citizens becomes primary and someone else must make decisions on their behalf. Note that the size of this group must be sharply limited, lest a liberal society’s commitment to self-determination be undermined: There is no more profound infringement of the rights of citizens than the determination that they are incompetent. Thus, the criteria for incompetence must be selected in a deliberately narrow fashion—alternately, one might say that the standards for competence are made intentionally broad—so that all but a tiny percentage of citizens will be permitted to make decisions on their own.In the Anglo-American world, the process of formulating criteria of competence by and large has been left to the common law courts. Over the course of centuries they have identified the capacities that are, in... (shrink)

With the rapid development of Internet technology and the reform of the education model, online education has been widely recognized and applied. In the process of online learning, various types of browsing behavior characteristic data such as learning engagement and attitude will be generated. These learning behaviors are closely related to academic performance. In-depth exploration of the laws contained in the data can provide teaching assistance for education administrators. In this paper, the random forest algorithm is used to determine the (...) importance of factors for the relationship between 11 learning behavior data and students' psychological quality test data, a total of 12-dimensional feature data and grades, and extracts six factors that have a greater impact on grades. Through the research of this paper, the method of random forest is innovatively used, and it is found that the psychological factor is one of the six important factors. This paper innovatively uses BP neural network as the prediction model, takes six important factors as input, and establishes a complete method of online learning performance prediction. The research in this paper can help teachers monitor students' learning status, detect abnormal learning behaviors and problems in time, and make timely and effective teaching interventions and adjustments in advance according to the abnormal status of students found. (shrink)

The article offers an Aristotelian analysis of emotion-based defences in criminal law: someone who commits an offence is entitled to an excuse if she was motivated by a justifiably aroused and strongly felt emotion that gave her good reason to commit the offence and that might have destabilised the practical rationality even of a ‘reasonable’ person. This analysis captures the logical structure of duress and provocation as excuses—and also shows why provocation is controversial as even a partial defence. This pattern (...) of analysis is then applied to compassion as a motivation for assisting another’s death, in the light of some recent developments in English criminal law’s treatment of assisting suicide: even if we accept that such assistance cannot be justified, we can see how compassion can ground an excuse, and make sense of the Director of Public Prosecution’s recently published Policy for dealing with cases of assistin.. (shrink)

Just war thinking serves a social and psychological role that international law cannot fill. Law is dispassionate and objective, while just war thinking accounts for emotions and the situatedness of individuals. While law works on us externally, making us accountable to certain people and institutions, just war thinking affects us internally, making us accountable to ourselves. Psychologically, an external focus leads to feelings of shame, while an inward focus generates feelings of guilt. Philosophers have long recognized the importance of (...) these two moral emotions. Recently, psychologists have found that feelings of guilt are linked to positive social outcomes, such as the desire for reconciliation and reparation, while shame generates anger and hostility. Just war thinking, as an inward-looking tradition, has a special relationship with guilt. By focusing on moral emotions, just war thinking can move beyond the law in four ways, by developing an ethic of accountability, by providing a foundation for addressing moral injury, by providing a common language for discussing the costs of war, and for identifying ethical problems in radically new contexts. (shrink)

This paper provides a discussion of the role that emotions may play in the justification of punishment. On the expressivist account of punishment, punishment has the purpose of expressing appropriate emotional reactions to wrongdoing, such as indignation, resentment or guilt. I will argue that this expressivist approach fails as these emotions can be expressed other than through the infliction of punishment. Another argument for hard treatment put forward by expressivists states that punitive sanctions are necessary in order for (...) the law to be valid. But this justification of punishment, too, is unconvincing. There are no good reasons to assume that we have to resort to punitive measures in order to vindicate the law. I will then raise the more general worry whether there is any intelligible link at all between moral emotions such as indignation, resentment or guilt and retributive behaviour. I will finally conclude with some sceptical remarks on the moral worth of retribution. (shrink)

Smedslund's view that my laws are non-empirical and tautological is based upon two arguments that I do not share. First, the content of the definition of emotion from which he starts is for me an empirically verifiable theory. Secondly, elements in that definition or theory, and in its derivations, are tautological only when these elements (like “want”) are merely understood as states of awareness, and not as constructs referring to observables outside the awareness of the subject of emotion: antecedents, conditions. (...) processes, and overt responses. In short, I think that my laws could be proven wrong or, more plausibly, unproductive, and thus not necessarily true.In addition, contrary to Smedslund, I hold that the laws of emotion can in part be contradictory precisely because they do not represent logical, but empirical, facts. Humans have contradictory interests and may well have provisions to Serve these interests. (shrink)

The paper explores Burke’s twofold solution to the paradox of negative emotions. His Philosophical Enquiry (1757/59) employs two models that stand on different anthropological principles: the Exercise Argument borrowed from authors like the Abbé Du Bos, guided by the principle of self-preservation, and the Sympathy Argument, propageted by notable men of lettres such as Lord Kames, ruled by the principle of sociability. Burke interlocks these two arguments through a teleologically-ordered physiology, in which the natural laws of the human body (...) and mind, secretly working in the depth of the nerve fibres, ensure both self-preservation and sociability. Utilizing both efficient and final causes throughout his Enquiry, Burke argues that the experiences of pain and terror – under certain conditions – are made agreeable (delight) by providence,so that the physiological mechanisms underlying these experiences could ensure the health and strenuousness of the nerve fibres amidst the corrupting pleasures of commercial society (Exercise Argument). Furthermore, due to the ambiguous character of this delight annexed to such experiences, they also function as exercises for our social passions (Sympathy Argument). Te 'egoistic' anthropological drive to remove the visceral uneasiness that dominates these experiences facilitates moral action when it is needed the most: when others in pain need our help. In accordance with the anthropocentric providentialism of the moderate Enlightenment, it is the design of the human frame that ensures the activities essential to our health (self-preservation) and moral conduct (sociability), a design that not only guarantees that pleasure, if exclusive and excessive, is 'inconvenient', and pain, if mitigated and harmless, is aesthetically agreeable, but also that our 'egoistic' drive to self-preservation ultimately improves sociability. (shrink)

Emotions play a significant role in human relations, decision-making, and the motivation to act on those decisions. There are ongoing attempts to use artificial intelligence (AI) to read human emotions, and to predict human behavior or actions that may follow those emotions. However, a person’s emotions cannot be easily identified, measured, and evaluated by others, including automated machines and algorithms run by AI. The ethics of emotional AI is under research and this study has examined the (...) emotional variables as well as the perception of emotional AI in two large random groups of college students in an international university in Japan, with a heavy representation of Japanese, Indonesian, Korean, Chinese, Thai, Vietnamese, and other Asian nationalities. Surveys with multiple close-ended questions and an open-ended essay question regarding emotional AI were administered for quantitative and qualitative analysis, respectively. The results demonstrate how ethically questionable results may be obtained through affective computing and by searching for correlations in a variety of factors in collected data to classify individuals into certain categories and thus aggravate bias and discrimination. Nevertheless, the qualitative study of students’ essays shows a rather optimistic view over the use of emotional AI, which helps underscore the need to increase awareness about the ethical pitfalls of AI technologies in the complex field of human emotions. (shrink)

The traditional perspective on emotions assumes an unassailable dualism between emotions and reason. For common sense, including legal common sense, emotions are always dangerous and have nothing to do with rational decision-making. Nonetheless, the Aristotelian perspective regarding the relationship between emotions and reason is extremely enlightening. The relationship between emotions and law has been studied by a large range of scholars from different legal movements and with diverse objectives. This chapter is based on three theoretical (...) pillars: Aristotle’s theory of emotions as elaborated in Rhetoric and Nicomachean Ethics, Aristotle’s view on the close relationship between reason, emotions and phronesis as elaborated in the Nicomachean Ethics, and a specific contemporary view: Jurisprudentialism. We assert that through a Jurisprudentialist analysis of Law as an open task and through Aristotle’s account of emotions, the challenges of legal education could be more realistically reassessed. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Thomas G. Pavel INCOMPLETE WORLDS, RITUAL EMOTIONS' IN recent years, the notion of "fictional world" has enjoyed a considerable rise in fortune. The expression, however, is not entirely new. To refer to the world of a literary work, of a novel or of a play, has always been a favorite way of speaking for literary critics and aestheticians. In most cases, these were informal worlds. A discussion of (...) the world of Balzac, Dostoyevsky, HenryJames, or Proust often amounts to a description of each author's preferences in die selection and rearrangement of his material. Such discussion primarily fits authors who purposefully attempt to build comprehensive representational artifacts. One speaks quite naturally about l'univers balzacien, or about the universe of Musil. But is one entitled to refer with equal ease to the world ofBenjamin Constant, meagerly perceptible in his Adolphe, a short novel built in the spirit of economy, displaying just a few characters and a minimum of worldly information? Perhaps density and comprehensiveness are not indispensable characteristics of literary worlds. Aestheticians and narratologists using the "fictional worlds" terminology seem to believe mat any kind of artistic text projects a world, be it rich or poor. Such worlds are imagined in the fashion of modern philosophy of logic as states of affairs, more or less comprehensive. Some writers believe that the states of affairs comprised in fictional worlds must be fairly sizable, since diey should include "not only what the author indicates, but also whatever is required (entailed) by that which he indicates." 1 The laws of nature which are not specifically contradicted by the text would belong to its world. Thus, a few notorious cases aside, there is no reason to doubt that every child born in fiction has been engendered by a human fadier as long as the text does not report an exception. And if it does? Then, assuming that the laws of logic still govern if not fiction itself at least our understanding of it, we may appeal to what "possible world" philosophers have called "small miracles." * Editor's note: This article, as well as the contributions by Gerald Prince, Peter van Inwagen, and Kendall Walton which follow it, grew out ofa symposium on "Styles ofFictionality," organized by Professor Pavel and held at Harvard University in 1981. The Fall, 1983 issue of PHILOSOPHY AND LITERATURE will contain additional papers presented at the symposium. 48 Thomas G. Pavel49 Imagine, for instance, the world in which Notre Dame de Paris would be covered with blue paint. While everything else would preserve the properties it possesses in the actual world, with the laws of nature and the caused chains maintained, a small local change, somewhat miraculous, would modify only the color of the venerable building. Similarly, the world of Balzac may be understood as the world of early and mid-nineteenth-century France, slightly modified by the addition of a few hundred imagined characters. That diese conform surprisingly well to the general laws of French society of the time is so much the goal of Balzac's successful project, that for the sociologically-minded reader die' actual nonexistence of Rastignac, Rubempré, Vautrin, or Birotteau may appear a mere accident. These characters, one may surmise, display every trait that actual counterparts of theirs would possess, except existence. Hence, why would Rastignac's or Vautrin's emergence in a world omerwise identical to nineteenth-century France amount to anydiing more than a "small miracle"? On the other hand, Balzac's world being blessed wim hundreds of such miracles, the very magnitude of the project vindicates the attribute of "visionary," ascribed to Balzac by Béguin, or, if metaphorically undercut, mat of"God the Father" given him by Thibaudet. For, would not such magnitude entail more than just local changes in an otherwise faithful representation of the "actual" nineteenthcentury France? Similarly, would we interpret a fictional world in which a child has been engendered not by a human father, but by a divinity, as identical in all respects to the actual world, except for the limited modification attributed to a small miracle? 2 If we grant for a moment the improbable assumption that nineteenth-century France was a given and that Balzac... (shrink)

Based on the dispute between Protagoras and Socrates on the origin of ethics, one can ask the question of whether the principle of ethics is reason orfeeling/emotion, or whether ethics is grounded on reason or feeling/emotion. The development of Kant’s thoughts on ethics shows the tension between reason and feeling/emotion. In Kant’s final critical ethics, he held to a principle of “rational a priori.” On the one hand, this is presented as the rational a priori principle being the binding principle (...) of judgment. On the other hand, it is presented as the doctrine of “rational fact” as the ultimate argument of his ethics. Husserl believed that Kant’s doctrine of a rational a priori totally disregarded the a priori essential laws of feeling. Like Husserl, Scheler criticized Kant’s doctrine of a rational a priori, and therefore developed his own theory of an “emotional a priori”. Both of them focused their critiques on the grounding level of ethics. Scheler, however, did not follow Husserl all the way, but criticized him and reflected on his thoughts. At last, he revealed the primary status of a phenomenological material ethics of value. (shrink)

Contrary to standard assumptions, reasoning is often an emotional process. Emotions can have good effects, as when a scientist gets excited about a line of research and pursues it successfully despite criticism. But emotions can also distort reasoning, as when a juror ignores evidence of guilt just because the accused seems like a nice guy. In _Hot Thought_, Paul Thagard describes the mental mechanisms -- cognitive, neural, molecular, and social -- that interact to produce different kinds of human (...) thinking, from everyday decision making to legal reasoning, scientific discovery, and religious belief, and he discusses when and how thinking and reasoning should be emotional. Thagard argues that an understanding of emotional thinking needs to integrate the cognitive, neural, molecular, and social levels. Many of the chapters employ computational models of various levels of thinking, including HOTCO models and the more neurologically realistic GAGE model. Thagard uses these models to illuminate thinking in the domains of law, science, and religion, discussing such topics as the role of doubt and reasonable doubt in legal and other contexts, valuable emotional habits for successful scientists, and the emotional content of religious beliefs. Identifying and assessing the impact of emotion, Thagard argues, can suggest ways to improve the process of reasoning. (shrink)

Ira Brevis furor, said the Latins: anger is a brief bout of madness. There is a long tradition that views all emotions as threats to rationality. The crime passionnel belongs to that tradition: in law it is a kind of “brief-insanity defence.” We still say that “passion blinds us;” and in common parlance to be philosophical about life's trials is to be decently unemotional about them. Indeed many philosophers have espoused this view, demanding that Reason conquer Passion. Others — (...) from Hume to the Emotivists — have appeared to reverse this hierarchy.” But those philosophers who refuse to join in the general denigration of emotion as irrational usually share the presupposition that the role of rationality is limited to the calculation of means. In so far as emotions are concerned with the determination of ends, they remain, on this view, beyond the pale of rationality. Modern decision theorists have worked out schemes to assess the rationality of desires, as well as actions, against the background of beliefs and other desires.1 But these schemes leave no room at all for emotions, except, by implication, as disrupters of the rational process. (shrink)

Sometimes emotions excuse. Fear and anger, for example, sometimes excuse under the headings of (respectively) duress and provocation. Although most legal systems draw the line at this point, the list of potentially excusatory emotions outside the law seems to be longer. One can readily imagine cases in which, for example, grief or despair could be cited as part of a case for relaxing or even eliminating our negative verdicts on those who performed admittedly unjustified wrongs. To be sure, (...) the availability of such excuses depends on what wrong one is trying to excuse. No excuse is available in respect of all wrongs. Some wrongs, indeed, are inexcusable. This throws up the interesting question of what makes a particular emotion apt to excuse a particular wrong. Why is fear, for example, more apt to excuse more serious wrongs than, say, pride or shame? This question leads naturally to another. Why are some emotions, such as lust, greed, and envy, apparently not apt to furnish any excuses at all? Can one not be overcome by them? Can they not drive one to wrongdoing as readily as fear and grief? Or is that not the point? (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Anorexia and the MacCAT-T Test for Mental Competence:Validity, Value, and EmotionLouis C. Charland (bio)Keywordsmental competence, decisional capacity, anorexia, value, emotionValidity of the MacCAT-THow does one scientifically verify a psychometric instrument designed to assess the mental competence of medical patients who are asked to consent to medical treatment? Aside from satisfying technical requirements like statistical reliability, results yielded by such a test must conform to at least some accepted pretheoretical (...) desiderata; for example, determinations of competence, as measured by the test, must capture a minimal core of accepted basic intuitions about what competence means and what a theory of competence is supposed to do. The concepts of "face validity" and "content validity" are both important here. Face validity "indicates that an instrument appears to test what it is supposed to and that it is a plausible method for doing so" (Portney and Watkins 2000, 82). Content validity "means that the test contains all the elements that reflect the variable being studied" (Portney and Watkins 2000, 83). An adequate instrument for measuring mental competence must at minimum satisfy both of these requirements.What Tan and her colleagues (2006) have shown is that the MacArthur Competence Assessment Tool—Treatment (MacCAT-T) test for mental competence may not be an empirically valid measure of mental competence for some cases of anorexia. The data they report show that "competence," as measured by the MacCAT-T, does not conform sufficiently well with what is wanted of a clinical medical theory of competence. More specifically, the MacCAT-T is deficient in both face and content validity. This result is extremely significant; previous challenges to the validity of the MacCAT-T have often been largely theoretical in nature. My own objection that the MacCAT is inadequate because it omits the influence of emotion is based on a combination of empirical theory (Charland 1998a) and philosophical argument (Charland 1998b). However, it is entirely theoretical in nature. So is my argument that in ignoring emotion the MacCAT misses a crucial contributing ingredient in competence, namely, value (Charland 2001, see especially 136 note 2). Tan's study provides valuable empirical evidence for the second of these challenges, which deals more specifically with value. On the one hand, the study clearly demonstrates that patients sometimes do [End Page 283] base their treatment decisions on reasons derived from values. And on the other hand, it also nicely illustrates the centrality of values—"utilities" or "preferences"—in the decision-making process generally; a basic assumption of standard decision theory for which, paradoxically, there appears to be no satisfactory counterpart in the MacCAT-T model of reasoning and decision making.Thus, values figure among the reasons that patients actually use in reasoning when they weigh the risks and benefits of proposed treatment options. The MacCAT-T must be amended to incorporate this fact if it is to be a satisfactory clinical medical tool. Without such a correction, the concept of mental competence it measures is empirically invalid. At the root of the problem is a clash of intuitions. Tan's data provide convincing evidence that some of the patients who are deemed to be mentally competent by MacCAT-T standards should not in fact be considered competent. Note that the language in which this clash is expressed—"should not in fact"—involves a combination of descriptive and prescriptive elements, reminding us that the concept of competence is dual in nature: it is both prescriptive and descriptive (Freedman 1981). These problems underscore the need for greater clarity about what pretheoretically we want a clinical theory and test of competence to capture. It is of course reasonable to say that such a test must be consistent with major tenets of the relevant case law (Appelbaum 1998). But a legally valid concept of competence of this sort is too thin and arbitrary a foundation on which to build a clinical medical theory of competence. An empirically valid theory and test of the latter sort must incorporate the role of values if it is be truly helpful in medical practice.Value and the MacCAT-TI agree with Tan and her colleagues that some notion of "pathological value" needs to be... (shrink)

Deryck Beyleveld has forged a theory of ethical rationalism that has made an important impact on legal and moral philosophy—that this collection of essays makes clear. He has not only refined and improved the original account developed by Alan Gewirth, but provides us with ethical rationalism’s most prolific defender today. One area of particular insight is Beyleveld’s many applications of ethical rationalism to practice and, most especially, to medical law and ethics which has been especially influential. This work has set (...) the bar for all proponents and critics alike. -/- We focus narrowly on a specific concern that we have with ethical rationalism: its primacy of rationality over other characteristics, such as our emotions. This is not to deny the importance of reason in our thinking about law and ethical concerns. But we have concerns with any view that holds that reason is the only key to how any tensions should be resolved. Such a position claims for reason a privileged status it does not have or merit. One problem for us is that, in our view, ethical rationalism does not appear to adequately consider the importance of emotions and so it does not provide a satisfactory account of law and morality as a result. We examine this concern in the first part of our chapter. -/- This chapter’s second part raises concerns with the application of ethical rationalism as a model for understanding sexual offences. We highlight both the need to foreground emotion in order to understand the current law, as well as the dangers from a normative perspective of appearing to marginalise the role of emotion in sexual offences. Not only would a prioritisation of rationality fail to reflect the role emotion can play in current rape law, but we would argue, is particularly problematic in this area of law in terms of promoting justice. In summary, Beyleveld’s ethical rationalism exercises an important impact on legal theory and legal practices. Nonetheless, we raise some reservations about its connection to these impacts that lead us to support revisions to this approach. (shrink)

This article considers the question of whether corporate entities can benefit from the criminal-law defence of duress. The excuse of duress is accorded in recognition of the defendant’s extreme fear of a threatened consequence, and it is unclear whether corporate entities—as distinct from their members—can experience fear. Many proponents of corporate rationality deny that corporations can have emotional states. I argue that corporations can experience the fear that is necessary to ground a claim of duress, but that the law should (...) only allow fear to excuse coerced corporate action in a narrow set of circumstances. (shrink)

Gopal Sreenivasan’s new book, Emotion and Virtue, is an incredibly rich and impressive achievement. It is required reading for anyone working on issues related to character. In the spirit of book discussions in this journal, I will focus less on raising objections and more on exploring how the discussion could be extended in new directions or connected with related topics. The plan is to focus on four topics: (i) the scope of Sreenivasan’s project, (ii) his response to the situationist challenge, (...) (iii) some implications of his view for practical wisdom, and (iv) his account of virtue conflicts. (shrink)

La thérapie rationnelle des émotions est basée sur l’hypothèse qu’un trouble de la pensée conduit à des troubles du sentiment qui eux-mêmes conduisent à des troubles de comportement. Du point de vue thérapeutique, la stratégie consiste à corriger les sentiments et le comportement en modifiant le trouble de raisonnement. Cette forme très en vogue de psychothérapie des troubles émotionnels fournit une illustration intéressante des relations nomologiques intriquées qui peuvent exister entre les patrons relativement fixes d’états émotionnels, d’états comportementaux et d’états (...) sensoriels physiologiques. En tant que telle, elle fournit une source d’évidences plausible en faveur de l’hypothèse que les émotions sont une forme spécialisée de système nomologique ou une « espèce ». Le succès de la théorie rationnelle des émotions jette le doute sur le mantra philosophique actuel qui refuse aux émotions le statut d’espèce naturelle, car elle suggère précisément l’inverse, c’est-à-dire que les émotions sont bel et bien une forme d’« espèce naturelle ». Cet appui n’a pas été pris en considération dans le débat en cours au sujet du statut d’espèce naturelle de l’émotion. Il est particulièrement intéressant de noter la façon dont il nous force à repenser la notion d’espèce naturelle telle qu’elle est employée dans les débats philosophiques sur la question. D’autres formulations qui correspondent mieux aux pratiques des sciences concernées pourraient être nécessaires. -/- [English abstrast] Rational Emotive Therapy is based on the hypothesis that disordered thinking leads to disordered feeling, which then leads to disordered behavior. Therapeutically, the strategy it is to correct disordered feeling and behavior by changing the disordered thinking. This immensely popular form of psychotherapy for emotional disorders provides an interesting illustration of the intricate law-like relationships that can exist between relatively fixed patterns of emotional, behavioral, and physiological sensory states. As such, it provides a plausible source of evidence for the hypothesis that emotions form a specialized law-like system or ‘kind’. Evidence of the success of Rational Emotive Therapy casts doubt on the contemporary philosophical mantra that emotions do not form a natural kind. It suggests precisely the opposite, namely, that emotions do form a ‘natural kind’ of some sort. This evidence has not been considered in the ongoing debate over the natural kind status of emotion. Especially interesting is how it forces us to rethink the way in which the notion of a natural kind is usually deployed in philosophical debates in this area. Alternative formulations more in line with the practices of the relevant sciences may be needed. (shrink)

Inspired in part by a renewed attention to Aristotle's moral philosophy, philosophers have acknowledged the important role of the emotions in morality. Nonetheless, precisely how emotions matter to morality has remained contentious. Aristotelians claim that moral virtue is constituted by correct action and correct emotion. But Kantians seem to require solely that agents do morally correct actions out of respect for the moral law. There is a crucial philosophical disagreement between the Aristotelian and Kantian moral outlooks: namely, is (...) feeling the correct emotions necessary to virtue or is it an optional extra, which is permitted but not required. I argue that there are good reasons for siding with the Aristotelians: virtuous agents must experience the emotions appropriate to their situations. Moral virtue requires a change of heart. (shrink)

In Responsible Brains, Hirstein, Sifferd and Fagan apply the language of cognitive neuroscience to dominant understandings of criminal responsibility in criminal law theory. The Authors make a compelling case that, under such dominant understandings, criminal responsibility eventually ‘translates’ into a minimal working set of executive functions that are primarily mediated by the frontal lobes of the brain. In so arguing, the Authors seem to unquestioningly accept the law’s view of the “responsible person” as a mixture of cognitive capacities and mechanisms—thereby (...) leaving aside other fundamental aspects of individuals’ human agency. This commentary article offers a critique of the Authors’ rationalist and individualist approach. The critique can be summarized through the following claim: We humans, as responsible beings, are more than our executive functions. This claim articulates through four main points of discussion: role of emotions in moral judgments and behavior; executive functions and normative criteria for legal insanity; impact of adverse situational factors on executive functions; Authors’ account of punishment and, especially, rehabilitation. (shrink)

Emotional intelligence was linked to sport participation. We report two studies in which we tested the link between exercise volume, defined as weekly hours of exercise, and EQ. Volunteers completed the Wong and Law Emotional Intelligence Scale. In Study I, significant correlations between exercise volume and use- and regulation-of-emotions prompted us to use a posteriori grouping into high- and low exercise-volume groups. The former exhibited better use-of-emotions than the latter. In Study II, using a priori grouping, we replicated (...) the finding from Study I, and the groups also differed in “self-emotions appraisal” and total EQ. Since the items measuring the use-of-emotions involve motivational aspects of the EQ, we posit that this dimension is “naturally” linked to exercise volume. Our findings also suggest that self-emotions appraisal and the overall EQ are linked to greater volumes of exercise. These results should provide an incentive for longitudinal studies in this area. (shrink)

Jesse Prinz develops a naturalistic metaethical theory with which he purports to sidestep ‘Hume's law’ by demonstrating how, on his theory, in describing what our moral beliefs commit us to we can determine what our moral obligations are. I aim to show that Prinz does not deliver on his prescriptive promise – he does not bridge the is–ought gap in any meaningful way. Given that Prinz goes on to argue that (1) his moral psychology highlights fundamental shortcomings in ‘traditional’ normative (...) ethical theories, (2) that moral progress is possible, despite the relativistic implications of his own position, and (3) that this undermining of the is–ought gap should hold true on any naturalistic metaethical theory, the extent to which his project succeeds becomes significant. (shrink)