Vol. 10 No. 3 (March 2000) pp. 200-202.

THE PASSIONS OF LAW by Susan Bandes (Editor). New York: New York University

Press, 1999. 367 pp.

Reviewed by Scott Barclay, Department of Political Science, University at Albany, State University of New York.


THE PASSIONS OF LAW sounds like the title of a new John Grisham novel involving a forbidden romance between a prosecuting attorney and a juror in a complicated murder case. It is, in fact, an edited volume containing an excellent collection of original essays that recognize the emotional aspects inherent in legal decision making and the legal system in general.

Traditionally, the emotional content inherent in the law has been ignored as part of the popular myth that legal decision making embodies only rationality, impartiality and certainty. Worse still, the presence of emotions in the courtroom has been denigrated by its association with those participants in the legal system that lack legal training, such as jurors, witnesses and members of the general public (p. 2). Thus, emotions have the

ignominy of being identified as laying outside of the province of the legal decision making process. Instead, they are defined as the province of lay people that lack the necessary legal skills to frame social arguments that do not rely on notions of revenge, disgust, shame, fear and romantic love. Because of such associations, emotions are defined as antithetical to the law and become "that which the law wishes to marginalize" (p. 11).

Susan Bandes, the editor of THE PASSIONS OF LAW, rejects, as do most of the authors in the volume, the role currently assigned by the legal system to the emotional aspects of the law. Instead, she assumes that emotions are an unavoidable component of any legal system. She draws together a diverse group of lawyers and philosophers (with the occasional political scientist, classics professor, famous judge, and theological scholar thrown in for good measure) to discuss the questions of "[h]ow do we determine which emotions deserve the most weight in legal decision making and which emotions belong in

which legal contexts?" (p. 7) To explore these questions, the book considers three related sets of emotions at play in the legal arena: (1) disgust and shame, (2) revenge and remorse, and (3) love, forgiveness and cowardice. The final section attempts to reconceptualize the role of emotions in general in the legal system in terms of justice or related abstract notions of the meaning of the law.

This book is worth the time it takes to wade through the thirteen essays it contains. It was at its best when the individual contributions played off one another as the interplay between two former co-authors, Matha Nussbaum and Dan Kahan, on the impact of disgust on legal reasoning (and reasoning in general). This interplay is complemented nicely by Toni Massaro's discussion of the nature of shame as it relates to social norm

theory which she ties neatly back in to the earlier discussion

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of disgust. Such interplays are strong because they address counterparts in the volume as well as allude to a common set of premises. However, they are made even stronger by the willingness of the authors to maintain the dialectic between the specific example at hand and the abstract ideas inherent in putting emotions in a proper context in relation to the legal system. The section on revenge and remorse is a delight as it weaves between

Nietzsche, Kant, the recently released movie, DEAD MAN WALKING, and ends with

a visit to Plato. Solomon, Murphy, Sarat, and Allen are each addressing an aspect of revenge and remorse; yet, they manage to intertwine theory and their individual paradigmatic examples in a way that talks across each of the authors.

Not all such related sets of emotions in the book come together as well. The section of the book on love, forgiveness and cowardice was an uneasy fit and some of the essays in that section should have been placed elsewhere. For example, Minow's idea that the society creates legal alternatives, such as the Truth and Reconciliation Commission in South Africa, to respond to the mind-numbing emotions generated by mass violence in

a society would have made a nice practical addition to the theoretical discussion in the section on revenge and remorse. However, each of the individual pieces are of such quality that they effectively stand alone as worthy of note, independent of their subsequent fit with the book.

One would assume that a book on emotions and the law would be required to have a section on revenge and remorse. However, it is much more interesting when one takes on the deep emotional baggage that accompanies a discussion of romantic love and its role in shaping the law as does Cheshire Calhoun. She examines the "link between same-sex marriage bars and the cultural construction of romantic love" (p. 218). Like Calhoun, several other authors consider the role that emotions, such as love or disgust, have

in shaping the application of laws to gay and lesbian citizens. And, in fact, the true context of emotions in the law emerged more when authors, such as Calhoun or Nussbaum, used such examples than the more traditional discussion of the place in the law for revenge and remorse. It was the application to a number of interesting scenarios, either in terms of the emotion considered or the supposed effect upon the law that made the ideas work in such discussions.

Overall, it is a good book with a few obvious limitations for the social scientist. Although each of the pieces tells an interesting story, I am not sure what is the overarching theme of book as a whole. When the book is simply a plea that emotions impact upon legal decision making and must be considered in future research, it achieves its goal by making a plausible theoretical argument that some emotions appear to shape legal decision making. However, from this point on, I would like to see some empirical

research (which is how emotions theory began its life) so that we might judge what is the effect of various emotions on specific settings in the legal system. When the book attempts to go beyond proposing that emotions are worthy of consideration in the study of the law and instead makes normative assessments about how emotions should be applied, it is definitely in more difficult territory. Several of the essays were less about introducing theories of emotions into the study of the law and more about normative

assessments of when emotions are good and bad in their application to the law. Although we should not criticize philosophers, lawyers, judges,

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and theologians for deciding what is good and bad (as it is after all a part of their job), it does become a little more problematic for the social scientist. The book straddles these two positions - of introducing the theories to legal settings and the normative values of such emotions - and it appeared unsure whether it was an advocate of emotion theory, a theorist exploring possible applications, a judge of the value of emotions in particular situations or an uncomfortable mix of all three prior activities.

Just as troubling was the fact that emotions are a large and amorphous category that defies definition. Bandes acknowledges this fact, but she then proceeds to argue that this large and amorphous category is really an important explanatory factor as demonstrated by one or two very particular and well-defined examples, such as revenge, disgust or love. Individual emotions were often explained and differentiated but with the caveat that there is a great deal of overlap in various emotions. Hard and fast definitions were absent, and I craved a little more clarity on such issues. Instead, Bandes seemed to simply reverse the traditional dichotomy and make emotions all that was not traditionally treated as reasoned thought. Although this fits with the traditional understanding in law, I had hoped that a book about emotional theories would be able to break out of these definitions and offer better insight into this dichotomy. To give them due credit, Bandes and several of the authors struggle with these definitions, but nothing satisfactory emerges from their struggle.

The main contribution of the book was not to demonstrate that emotions are worthy of further study in relation to their impact upon the legal system. Instead, it was to bring together in one volume a series of authors who have been working separately on a common theme. Many of these authors are currently publishing or have recently published expanded versions of the work available in the Bandes' volume, but the current volume shines by being able to introduce these disparate approaches on emotions into a shared discourse. Hopefully, such packaging will facilitate in bringing the discussion of emotions to the attention of other socio-legal scholars.

Copyright 2000 by the author, Scott Barclay.