Emotions and Precedent

Osgoode Legal Studies Research Paper

Forthcoming in T Endicott, S Lewis, and H Kristjansson (eds) Philosophical Foundations of Precedent (Oxford University Press).

22 Pages Posted: 2 May 2022 Last revised: 10 May 2022

See all articles by Emily Kidd White

Emily Kidd White

Osgoode Hall Law School; New York University School of Law

Date Written: May 2, 2022


The philosophy of emotion raises complications for theories of precedent. This chapter argues that it is productive to think of the effect of some precedents as facets of legal reasoning that are related to the use and understanding of legal concepts as thick concepts. In legal reasoning, precedents are routinely invoked to explicate, and/or clarify the content of legal concepts that are at issue in a case. This chapter develops an argument by Bernard Williams, i.e., that one must avoid the risk of over-generalizing the relationship of emotions to thick concepts, by placing it in the context of legal reasoning. It argues that the several distinctive ways that emotions might interact with thick legal concepts pose challenges for any general theoretical account of precedent in legal reasoning. A focus on these different roles that emotions can play in judicial uses of precedent illuminates some of the more subtle ways in which these uses reveal held values, ways of seeing, and political commitments. The chapter finds that in at least some cases where a precedent is invoked to thicken the understanding of a legal concept at issue in a case, variations in the emotional architecture associated with that invocation will come in direct tension with the legal concept under examination, or with other legal values and principles that pertain to equality, and equal treatment under law.

Suggested Citation

White, Emily Kidd, Emotions and Precedent (May 2, 2022). Osgoode Legal Studies Research Paper, Forthcoming in T Endicott, S Lewis, and H Kristjansson (eds) Philosophical Foundations of Precedent (Oxford University Press)., Available at SSRN: https://ssrn.com/abstract=4098653 or http://dx.doi.org/10.2139/ssrn.4098653

Emily Kidd White (Contact Author)

Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3

New York University School of Law ( email )

New York, NY
United States

HOME PAGE: http://https://nyu.academia.edu/EmilyKiddWhite

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