The controversy of Emotion in law

The topic of emotions role in law runs through the core of Nussbaum's book Hiding from Humanity: Disgust, Shame, and the law. However, this topic has also been at the center of many philosophical arguments.

To analyze the situation very simply, the two primary sides in this debate are those who believe emotion must be included in our interpretation and execution of the law and those who believe law should be exercised "objectively" and without any emotional interference.

The secondary argument doesn't sit well with me due to that one troubling word: "objectively". The idea behind this type of jurisprudence is that you can examine factors considered "neutral" and use those in order to evaluate a situation, as well as the proper response to it. By this measure, one would say "John Doe committed murder, ergo John Doe is sentenced to death." However, this ideology fails on many accounts.

First and foremost is the underlying bias and motivation. A person will make unconscious and subconscious assumptions concerning a case before they are aware of all of the facts. People involved in cases are pre-judged based on gender, sex, race, sexuality, religion, occupation, socio-economic status, and a plethora of other features. Once this pre-judgement is made, those judging the case will consciously search for evidence to confirm this presupposition without consciously being aware of the motivating factors behind this pursuit.

Secondly, the "objectivity" of jurisprudence fails due to the subjectivity of law's foundation. As Nussbaum and the introductory quote by Rousseau point out, our social ethics and axiology have their foundation in emotions and psychological states. Nietzsche outlines in The Will To Power how language grew out of our need to survive, and one can further argue that emotions grew out of similar survival needs. We are social animals because of evolution and we have emotions in order to prompt ourselves of our situation and how it affects us. We don't believe that life, love, happiness, knowledge, and autonomy have any intrinsic value, we give them value due to the relevance they have to ourselves. We value love because we know the pain of the absence of it and the happiness that its presence brings.

Finally, the role of the jury further misconstrues the ability to judge objectively due to the unfamiliarity a common person has with the law. Even though a Chief Justice may be fully aware of Mill, Dworkin, and Hart, the shoe salesperson, accountant, and weatherman might not be. Instead, the common person can only base their decision on the grounds of pop morality and personal emotions regarding the case. Thus, our courts fail to live up to the objective standard they wish they could attain.