Until a few years ago, it was widely believed concept that emotions had no role to play in the creation, understanding, implementation or practice of the law. It was Aristotle who first recognized and enlightened his peers about the special potential power that emotions had to modify the judgement, thus, affecting the trustworthiness of the legal proceedings and undermining the standardized assumptions about what equity resembled (History Of Emotions. n.d.) Slowly and steadily, more and more scholars started researching on the relationship between law and emotions. But it was only in the later years of the 20th century that the field of law expanded its horizons by taking into its account emotion, which played a vital role in each part of legal theory. This development in the field of law has been due to advancements in numerous other fields, particularly neuroscience, sociology and psychology. But the question that needs to be answered is whether the pendulum of emotions has managed to swing far enough into the actual courtrooms and legal practices?
law, in turn, in influences emotion (West, 2014).
Emotions have an integral underlying role in not just the role of jury in criminal cases but also the Judiciary and the Legislature, the entire framework of the legal institutions and more importantly, the role of the lawyers. Law and Emotions scholars have found instances of the explicit role of emotions in the day-to-day functioning of the legal sphere of the society.).
" EMOTION OF SHAME: Shaming punishments, for example, explicitly seek to invoke the emotion of shame (Massaro 2000). The sole purpose of inflicting such punishments is to generate the feeling of humiliation due to which they are considered as deterrent punishments to discourage to-be criminals from committing such atrocities in the near and distant future.
" EMOTION OF REMORSE: Sentencing judges, jurors and parole boards emphasize the importance of a defendant's display of remorse (Haney et al. 1994, p.163). The defendant's display of remorse for the crime which he/she committed is considered relevant because it has a great effect on the sentence to be meted out to him. A convicted 'strategic' defendant might put up a false show of remorse and be accordingly rewarded with a lesser sentence. This practice, however, is based on the assumption that the criminal defendant's remorse can easily be detected and identified. Some of the capital jurors can be regarded as being at fault as they implicitly assume that it is possible to evaluate remorse just by observing the criminal defendant's facial expression/body language in the court. Defendants who don't seem to be adequately sorry for the crime that they committed are likely to be sentenced to death
" EMOTION OF SYMPATHY: Anti-sympathy instructions command juries to put the emotion of sympathy aside (California v. Brown 1986). Such instructions are given to the jurors of a capital penalty phase jury to not get swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or feeling during the penalty phase of a capital murder trial. (Louis 2001)
" EMPTIONAL DISTRESS: Tort law seems to measure emotional distress (Madeira 2006). Even though emotions cannot be measured, tort law requires the estimation of the amount of distress inflicted upon the plaintiff in order to ascertain the damages that are to be awarded to him/her.
" EMOTION OF PASSION: Criminal law regards homicides committed in the heat of passion as less culpable than cold blooded murders (Lee 2003, Finkel & Parrott 2006). The criminals who commit the crimes in the heat of passion are sentenced for lesser time of imprisonment or are meted out to not as harsh forms of punishment as are inflicted upon cold-blooded killers.
" SEXUAL EMOTIONS: Calhoun argues that objections to same-sex marriage rest upon implicit assumptions about who is capable of romantic love. It has been argued by Calhoun that protests to same-sex marriages that are based upon unspoken assumptions about who is fit and desirable for romantic love. Almost three decades ago, the Supreme Court of U.S.A. in the case of Bowers v. Hardwick held that sexual acts between same sex partners (referred to as 'homosexual sodomy') were a crime. This verdict started an upheaval against the Supreme Court judgement which later turned into a very powerful political movement. It took the Judges of the Supreme Court 17 years to overrule this judgement in the case of Lawrence v. Texas and to grant a constitutional right to same-sex marriage. This shows the complex interplay of the legal decisions and the social norms.
The interplay among public opinion, social norms, and the development of law is complex and bi-directional.
" Abortion laws for minors in U.S.A are supposed to be very strict as they need to sanctioned by a Judge and mostly most of the cases require parental consent of atleast one of the parents. However, if the judge is convinced that the minor in question has attained the maturity required to make such an important decision, the Judge might not feel the need to involve the parent(s) of the minor in the ongoing case. To convince the judge that the minor has the maturity required to make an informed decision after weighting the pros and cons, the minor has to open up to a stranger about her most intimate moments of her life which is difficult for almost anyone. However, from looking at the verdicts given by the Judges, it is safe to assume that not only the maturity level of the minor is assessed, but an indication or display of remorse is also sought. I personally feel that this can lead to abuse of emotions in law as, currently, we live in a highly manipulative world. The minor being advised by an attorney can script her presentation before the Judge to achieve her desired goal of getting the judicial permission to get the abortion done.
" It has been observed in various studies that the mock juror's negative emotional state increases drastically when they are shown gruesome photographic evidences which, in turn, leads to increased conviction rates. This results in the juries reaching a guilty verdict or meting longer sentences of imprisonment in more cases.
" There have been instances where even sympathy has not been considered as 'emotional' and hence, rational, if it was directed at a particular person, say the defendant. A juror was berated by her fellow jurors for being sympathetic to the defendant even when he was found guilty. The other jurors told her that she should instead direct her sympathy to the victim and his family (Sundby 2005) . They further went on to dismiss the juror's sympathy towards the defendant and framed that particular juror's viewpoint as illegitimate.
" Legal actors often have firm beliefs about what a "true" rape victim will feel and how she will express those feelings. For example, investigators often believe a rape victim ought to act hysterical rather than calm shortly after the crime. See, for example, the harrowing account of a rape victim whose account was disbelieved and who was charged with perjury for reporting the rape, based largely on her flat affect (Miller and Armstrong 2015). Once rape victims appear in the courtroom, however, one troubling study found that judges in Minnesota adjudged these victims most credible when they expressed compassion or forgiveness for their assailant, rather than anger (Schuster and Propen 2011).
Consider the assumptions discussed above about the feelings that "real" victims of rape are expected to express. These widespread assumptions often lead investigators to disbelieve claims of rape unless the victim appears highly emotional. Yet rape victims react in a variety of ways; there is no one response that marks a "true" rape victim. For example shock, denial and other common responses may lead rape victims to display outwardly unemotional affects (McKimmie, Masser and Bongiorno 2014).
" Based on a number of studies, it can be said that every use of emotion in law is not based on assumptions which are unsupported. For e.g.: A study has proved that apologetic doctors have a lesser chance of being sued for malpractice than those doctors who appear to be smug. In view of this finding, various jurisdictions have started encouraging apologies to establish better doctor-patient relations, by enacting laws to establish that a doctor's apology, which is an admission of guilt, cannot be used in a malpractice suit as an evidence of doctor error.
" One of the few defences to a charge of murder is sudden and grave provocation. If it has been established properly that the crime was committed after a grave and sudden provocation, the sentencing gets drastically reduced. The basic underlying principle under this defence is the loss of self control of the accused due to the sudden and grave provocation. The act committed by the accused is then, in a hypothetical sense, compared to the actions of a reasonable man under the exact same circumstances. This acts as a test for this defence. Scholars have discovered that the sudden and grave provocation is a result of the emotion of anger, where the victim of sudden and grave provocation is said to 'snap' or 'crack' due to the provocation. This leads to the conclusion that such an outrage undermine the self control of an agent. It has been observed that in most of such cases, the victims of provocation seem to come back to their senses only after they have committed a crime. K.M. Nanavati vs. State of Maharashtra, upon which the Bollywood movie Rustom starring Akshay Kumar has been based, serves to be one of the best examples where emotions invoked by the plight of Nanavati changed his status from guilty to aquitted. Interestingly enough, this was the case which put a stop to trials by jury in India. Trials by Jury were declared unconstitutional after this series of events.
" "Is justice advanced when the families of victims are entitled to confront a defendant in the courtroom and damn him to hell and indignities of prison life as part of their achieving 'closure'?" (Sanger. 2001, 110) The mere existence of a system to deliver victim impact statements to the accused is aimed at inciting emotions in the accused and making them aware of emotions embroiling in the near and dear ones of the victim or the victim himself/herself. Victim Impact Statements are admissible in various legal systems around the globe, which includes the legal systems of U.S.A and Australia.
This may be the right to confront the defendant personally, for whatever emotional relief that provides, or to publicize his name, in what we might understand as a modern form of branding in order to humiliate. (Sanger. 2001, 110)
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The aim of this essay thus far has been to show how emotions explicitly influence legal decision-making and also shape the legal institutions. However, this is just the tip of the iceberg. The role of emotions is more deep rooted in the legal sphere of the society as emotion and emotion norms continue to implicitly shape the legal system and legal rules, constantly affecting its various actors.
If we were to think about these specific facts keeping in mind that passion is just an emotion and cannot be measured we would surely come to the conclusion that the above mentioned observations are testimony to the fact that emotion and law have an interplaying relationship.
Though law might seem to be only rational at the first sight, in the real world, it does have a great deal of effect on emotions in every case. The decision of the U.S. Supreme Court to legalize same-sex marriages after years of fighting the battle in the courtrooms made the citizens of the country extremely proud and elated. In another instance, the people of U.S.A. were made dreadful, sad and hopeless when the Supreme Court struck down President Obama's executive order to provide temporary relief packages to millions of immigrants. This undeniable power of the law makes it imperative to find out a way to deal with the consequences of both legitimate acts and lawful refusals to act. This, in simpler words, means that law faces an urgent need to refrain from ignoring that emotions interplay with law.