Law, Emotion, and Terra Nova: Neal Feigenson as Both Radical and Reformer
Maroney, Terry A.
Law and emotion scholarship can engage with law on its own terms. It can seek to expose moments where the law already incorporates some kind of emotional component, and it can show how a richer understanding of emotion could inform or refine how the law treats that component. With crimes of passion, for example, we might ask people to notice how that aspect of criminal law doctrine privileges some emotions over others. For example, anger is more valued than contempt. We might also ask them to notice how the law reflects lay theories of how those emotions operate. For example, what makes people angry? How does anger make a person act? How long do those effects persist? Scholars studying law and emotion might then bring in insights from other disciplines-often psychology, sometimes anthropology or philosophy. (We are an eclectic, catholic bunch; if it helps us figure out a question about emotion, we bring it in.) We will bring in those disciplines to help us evaluate if those lay theories are accurate. Do they ignore factors of which the law might want to take notice-for example, individual variation? This first level of law and emotion scholarship has located many targets in law just waiting to be explored. Think about emotional distress damages, or the excited utterance exception to the hearsay rule. These are moments in which the law incorporates an emotional component, and we can help the law think about that component in a more intelligent way. But the law and emotion project can operate on a second, and deeper, level as well. Law and emotion scholarship questions a core assumption on which so much of Western jurisprudence depends. It questions the idea that there are two things, called reason and emotion, and that they are different; that law is supposed to be about reason, not emotion; and, therefore, that these scattered emotional outposts in law, such as the ones that I just nodded to, should be treated just like that--as outposts, necessary concessions to human frailty. In this view, we have to police the borders of these outposts so that emotion does not somehow creep out and start infecting the territory of legal reason.