Law and Emotion: A Proposed Taxonomy of an Emerging Field

Abstract:     
Many scholars - from fields as diverse as psychology, law, philosophy, and neuroscience - have begun to study the intersection of emotion and law. I describe that scholarship's development; propose that it is organized along six interrelated but theoretically distinct foci; and suggest directions for future research.

The notion that reason and emotion are cleanly separable - and that law admits only of the former - is deeply engrained, though it recently has come under attack. Law and emotion scholarship proceeds from the beliefs that emotion may be specifically studied, that it is relevant to law, and that its legal relevance is deserving of close scrutiny. It is organized around the following six approaches:

Emotion-centered: Analyze how a particular emotion is, could be, or should be reflected in law.

Emotional phenomenon: Describe a mechanism by which emotion is experienced, processed, or expressed, and analyze how that phenomenon is, could be, or should be reflected in law.

Emotion theory: Adopt a particular theory (or theories) of the emotions and analyze how that theory is, could be, or should be reflected in law.

Legal doctrine: Analyze how emotion is, could be, or should be reflected in a particular area of legal doctrine.

Theory of law: Analyze the theories of emotion embedded or reflected within a theoretical approach to the law.

Legal actor: Examine how a legal actor's performance of her function is, could be, or should be influenced by emotion.

Any given study within the law-and-emotion rubric will have its primary grounding in at least one of these approaches, but should strive to attend to each. Thus, it should identify which emotion(s) it takes as its focus; distinguish between those emotions and implicated emotion-driven phenomena; explore relevant and competing theories of those emotions' origin, purpose, or functioning; limit itself to a particular type of legal doctrine or legal determination; expose any underlying theories of law; and make clear which legal actors are implicated. Directions for future research include greater attention to: non-criminal law; positive emotions; a wider variety of emotion theories and theories of law; and a broader range of legal actors. Cross-disciplinary collaboration will be particularly useful in this endeavor.

Keywords: Emotion, cognitive neuroscience, psychology, behavioral economics, empirical, affect, mood, cognition

JEL Classifications: C91, K14, K19, K40

Accepted Paper Series