The Persistent Cultural Script of Judicial Dispassion

Abstract

In contemporary Western jurisprudence it is never appropriate for emotion - anger, love, hatred, sadness, disgust, fear, joy - to affect judicial decision-making. A good judge should feel no emotion; if she does, she puts it aside. To call a judge emotional is a stinging insult, signifying a failure of discipline, impartiality, and reason. Insistence on judicial dispassion is a cultural script of unusual longevity and potency. But not only is the script wrong as a matter of human nature - emotion does not, in fact, invariably tend toward sloppiness, bias, and irrationality - but it is not quite so monolithic as it appears. Legal theorists (and judges themselves) sometimes have asserted that judicial emotion is inevitable and, perhaps, to be welcomed. But these dissents have neither eroded the script’s power nor blossomed into a robust theory of how emotion might co-exist with, or even contribute to, judicial decision-making. Close examination of this hidden intellectual history reveals why. Scholars and judges consistently have stumbled over foundational questions of emotion’s nature and value. Fortunately, the history reveals cures as well as causes. We can move forward by way of disciplined, sustained recourse to a newly vibrant emotional epistemology, a project that will create a distinct space for the story of judicial emotion.