Two Conceptions of Two Conceptions of Emotion in Criminal Law: An Essay Inspired by Bill Stuntz
prepublication draft of Kahan, D. M. (2011). Two Conceptions of Two Conceptions of Emotion in Criminal Law: An Essay Inspired by Bill Stuntz. In The Political Heart of Criminal ProcedureD. S. Michael Klarman & C. Steiker (Eds.), (pp. 163-176): Cambridge University Press.
13 Pages Posted: 23 Jul 2015
Date Written: June 11, 2011
This essay examines alternative explanatory theories of the treatment of emotion in criminal law. In fact, it re-examines a previous exposition on this same topic. In Two Conceptions of Emotion in Criminal Law (Kahan & Nussbaum 1996), I argued that the law, despite a surface profession of fidelity to a mechanistic conception of emotion, in fact reflects an evaluative one: rather than thoughtless surges of affect that impair an actor’s volition, emotions, on this account, embody a moral evaluation of the actor that is in turn subject to moral evaluation by legal decisionmakers as “right” or “wrong,” “virtuous” or “vicious,” and not merely as “strong” or “weak” in relation to the actor’s volition. I now qualify this claim — and indeed reject certain parts of it. I do so on the basis of an alternative conception of the evaluative conception of emotion: whereas the position in Kahan & Nussbaum (1996) treats the evaluative conception as implementing a conscious moral appraisal on the part of decisionmakers, the alternative sees it, at least sometimes, as a product of decisoinmakers’ unconscious vulnerability to appraisals they themselves would view as subversive of the law’s moral principles, which might well invest volitional impairment with normative significance. I examine the empirical evidence, amassed by various researchers including (without giving this point much thought) by me, for this third view, which I label the “cognitive conception” as opposed to the earlier (Kahan & Nussbaum 1996) “moral conception” of the “evaluative” view of emotions in criminal law.
Keywords: emotions, criminal law, psychology and law, motivated reasoning
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