THE PASSIONS OF LAW. Edited by Susan A. Bandes. New York: New York University Press. 1999. Pp. xv, 367. Cloth, $45; paper, $22.50.
Like an abandoned fortress, the dichotomy between reason and the passions casts a long shadow over the domain of legal thought. Beset by forces from legal realism to feminist epistemology, this dichotomy no longer holds sovereign sway. Yet its structure helps to articulate the boundaries of the legal field; efforts to move in and around it infuse present thinking with the echoes of a conceptually distinct past. Early critics of the dichotomy may unwittingly have prolonged its influence through the frontal character of their attacks. By challenging a strong distinction between emotion and reason, critics kept it, paradoxically, before legal audiences. Moreover, within the context of this approach, refusing the challenge posed by critics remained an intelligible response. Glimpsing, perhaps, the limits of this approach, an emerging generation of critics has embraced a new strategy. By assuming the interpenetration of reason and emotion in law, and turning a keen, evaluative eye to their complex relations, these scholars have introduced new lines of inquiry. They have also often disarmed their opponents: when one is assessing the competing claims of disgust and indignation to direct the criminal law, (1) for example, it becomes more difficult for audiences to assert that emotions have no role in these legal processes.
Susan Bandes's (2) collection, The Passions of Law, is a triumphant example of this new genre of critique. "Emotion," Bandes declares in opening the book, "pervades the law" (p. 1)--her collection takes its shape from this transformative assumption. The question raised by the thirteen provocative essays that comprise this volume is almost never, "Can emotion co-exist with the demands of reason in law?" It is, as we learn in Bandes's illuminating introduction, "which emotions deserve the most weight in legal decision making, and which emotions belong in which legal contexts?" (p. 7) It is how to assess the varying functions that law can perform in relation to the emotions--whether expressing, identifying, channeling, elevating, or satisfying individual or collective passions. It is how both law and the emotions that inflect it are shaped by elements of the broader culture in which both subsist. The great contribution of this volume is to shift the debate away from familiar dichotomies and toward the vast terrain that can be reconstructed by exploring the pervasive influences of the emotions in law. The gaps and inchoate elements in the collection remind us of just how large a task this may prove to be.
THE PASSIONS OF LAW
The Passions of Law is presented in four parts: this framework nominally takes its bearings from the character of the passion to be explored, but other organizing principles come rapidly into view. The first section, "Disgust and Shame," features essays by Martha Nussbaum, Dan Kahan, and Toni Massaro debating the role of disgust, and secondarily shame, in the criminal law. The anchor for this debate is Kahan's brief yet pointed essay, "The Progressive Appropriation of Disgust," in which Kahan continues a sustained scholarly effort to use the force of shared (community) norms to enhance compliance with the criminal law. While Kahan's earlier works focused on the ways that law could enlist the emotion of shame in inducing compliance, (3) this essay turns its attention to disgust: an expression of collective disapproval that might animate the criminal law, and one of the emotions of judgment capable of eliciting shame. Kahan argues that the hierarchical judgments entailed by legal expressions of disgust are not only appropriate condemnations for certain kinds of offenders, but should be appealing to progressives who often resist their inegalitarian character. The kind of comparative judgment reflected in a public expression of disgust is not only inevitable but also valuable: it represents a potent species of expressive capital that should not be ceded to offenders alone. Moreover, competing public expressions of disgust provide occasions for glimpsing and comparing important hierarchies of value.
Nussbaum contests this conclusion by reconstructing disgust. She describes it not as expressing a hierarchy of value, but as reflecting human discomfort with our ineliminable animality, which we seek uneasily to escape by projecting it onto a specific person or group. This projection of animality onto a particular group has often been the predicate for cruel and dehumanizing treatment, in examples from Nazi Germany to the trial of Oscar Wilde. The viscerality of disgust also renders it publicly inarticulate, which causes it to compare poorly to the competing emotion of indignation. Indignation, which reflects the anger triggered by unfitting treatment, can animate statements of public reason, making it a more suitable emotion for directing criminal legal enforcement.
Massaro, in a far-ranging essay, looks both at the public imposition of shame and at the evaluative emotions, such as disgust, that might animate it. Debates within both emotion theory and the norm theory on which Kahan draws, Massaro claims, raise questions about the use of law to induce shame in broad categories of offenders. Evidence of a broad-based human concern with status, for example, says little about whether the government might deploy that concern, through the imposition of shaming penalties, to induce compliance with law. Scholarship about the emotions suggests that there is too much uncertainty about how they are triggered, and in what combinations, and with what variation across different populations, to support the kind of simplified incentivizing system that Kahan advocates. Massaro also highlights tendencies that could be introduced into criminal justice, if the law were understood as a means of expressing disgust at offenders. Expressions of disgust entail no metric that could assess or limit the extent of punishment, making cruel or disproportionate punishments an ominous possibility. Such expressions might also be rendered banal when articulated in more widespread or ritualized form.
Part II focuses on "Remorse and the Desire for Revenge." The first of these emotions is explored by Austin Sarat, whose nuanced examination of Tim Robbins's film Dead Man Walking probes our society's ambivalence about the degree to which we can either demand or recognize genuine remorse in the criminal offender.
The "desire for revenge" is explored in essays by Robert Solomon, Jeffrie Murphy, and Danielle Allen that examine three different variants of this emotion. Solomon's essay invites us to consider how the often-maligned emotion of vengeance might be embodied in the law. He defends a conception of vengeance as an intense yet "cool" emotion with an element of instrumental rationality that points toward talionic notions of suitability or proportionality. This view permits him to argue that vengeance might not only be expressed, but channeled, elevated, and satisfied through its incorporation in the law. Indeed, the dominant metaphors we use even now to talk about vengeance--metaphors of debt, balance, or pollution--suggest limiting notions that might make vengeance through law containable and might foster a sense of relationship among victims, offenders, and the (legal) avenger.
Murphy, writing about retribution, reconsiders his longstanding support for a retributive theory of punishment. Building on arguments offered by Nietzsche, he questions whether either of the emotions ostensibly underlying the retributive urge, guilt or ressentiment, is epistemically reliable enough to provide the impetus for retributive action. More generally, he calls into question the goal of character retribution--that the state should mete out punishments that respond not simply to the acts but to the "inner wickedness" of the offender. Using insights from Kant and Jesus Christ, he argues that we are neither so perspicacious in assessing the character of the offender, nor so free from our own failings, that we should depart as starkly as this strategy requires from a posture of moral humility.
The final essay, by Danielle Allen, is concerned with anger. Allen examines the use of retribution in ancient Athens to reflect on our contemporary discomfort with retributive justifications for punishment. In Athens, both the public and lawmakers recognized that "wrongdoing and punishment had to do with relations between people" (p. 193). Retributive sanctions thus responded to anger in the community, to an imbalance that had been created through the wrongdoer's act. It was only, after Plato, when punishment came to reflect a defect in the offender--the "disease" to be cured was baseness in the offender rather than anger in the community--that retributive action took on the problematic character it retains to this day.
Part III of the book treats the most eclectic and far-reaching group of emotions. Cheshire Calhoun explains how laws and legal rhetoric restricting the institution of marriage to "one man and one woman" (p. 237) are based not only on an emotion, but on a socially-constructed emotion: a carefully-scripted notion of romantic love that "exceptionlessly cast[s] heterosexuals in the leading roles" (p. 222). Noting that emotions are often constructed to reinforce social hierarchies, Calhoun argues that denying certain groups the capacity to experience can be a means of subordination. Particular emotions may be "outlaw[ed]" because they presuppose, as philosophers Allison Jaggar and Elizabeth Spelman have argued, (4) "the beginning of a critical social theory." (5) The argument that gays and lesbians lack the capacity to experience romantic love--a proposition fostered not only by cultural imagery but by the psychoanalytic communities of the 1950s and 60s--thus perpetuates sexual hierarchy. It should be...