Judging, Emotion and Emotion Work

In common law and civil law traditions, legal rules are understood as impersonal, and judges embody impartial legal authority. Emotions are viewed as inherently irrational, disorderly, impulsive and personal, and therefore inconsistent with the rationality necessary for impartial, legitimate exercise of judicial authority. Whether a judge is assessing evidence, applying law, making a final decision or an interim order, or engaging with others in the courtroom, personal views, biases, values and emotions should be set aside. From this perspective, outward displays of emotion or reliance on emotion in decision-making are inconsistent with legal reasoning and the rational application of law. The “cultural script of judicial dispassion” (Maroney 2011) embedded in this tradition sharply limits an accepted role for judicial emotion. These limitations may be expressed in unwritten norms, more formally in judicial ethical codes and guidelines, in the judicial oath of office, or in legal determinations of the apprehension or appearance of judicial bias.

Growing research in several disciplines challenges this dichotomy between reason and emotions and the claim that emotion necessarily detracts from reason. Reason depends on and is linked to emotion in many ways. In addition to presenting difficulties, emotion can play an important and positive role in rational decisionmaking.

This workshop will address emotion in judging in several ways, drawing on a range of socio-legal insights and methods from disciplines such as psychology, neuroscience, rhetoric, social work, health, and criminology. It aims to identify and understand the place[s] of emotion in judicial work with particular attention to explicit and implicit feeling and display rules, as well as legal norms, that shape the relation between emotion and judging. It will situate this inquiry in the concrete emotional realities of everyday judicial work. It will challenge the traditional construction of emotion as a detriment to legitimate judging and propose ways to reposition emotion work as central to judicial experience and to recognise emotion itself as a positive judicial resource.

There are several major theoretical and empirical directions of the workshop.

First, subjective judicial emotions and emotional capacities are inevitably part of judging, inside and outside the courtroom. Judges are human beings and, in the course of their work, experience a wide range of emotions such as anger, sorrow, hope, fear, pride and disgust. They also deploy emotional capacities such as empathy or compassion and are affected by phenomena such as emotional contagion. Complying with the ‘cultural script’ in an unavoidably emotional setting demands internal emotion management and imposes external behavioral obligations.

Second, all judicial work entails face-to-face interaction with others in court, though some more than others. Judicial work requires managing one’s own emotions and conduct and can demand management of others’ emotions and behaviours, whether litigants, lawyers, the public or others. The judge must effectively anticipate and respond to others’ emotional reactions including when framing and communicating decisions. These aspects of a judge’s emotional labour can be most demanding in lower trial courts where many parties may lack legal representation and must interact directly with the judicial officer.

Third, the experience, display and management of emotion are deeply bound up with generally applicable cultural scripts or expectations about what emotions are expected, required or prohibited. For example, while judges in different countries may all be expected to be ‘dispassionate’, there may be considerable differences in how judges enact that quality. Cultural scripts may also affect judicial decisions entailing factual assessments requiring understanding and evaluating the emotions and emotional display of others, such as a defendant’s remorse, a witness’s demeanour, or a victim’s distress. The diversity of workshop participants will allow for exploration of varied cultural scripts about emotion and about judging across a range of national, disciplinary and generational boundaries. It will also enable the identification, interpretation and comparison of formal rules regulating judicial performance and emotion.

Fourth, the workshop will consider the relation of emotion and rationality more broadly, with specific application to judicial reasoning and decisionmaking in many contexts, ranging from immediate, ex tempore face-to-face decisions in open court to judgments communicated in written judgements, developed after lengthy argument, reading and reflection. These differing decisional parameters allow for, and may require, a different relation between emotion and rationality and different sorts of emotional labour.

Finally, investigating these many emotion-related phenomena raises questions of research design and methodology. The workshop will canvass a variety of methodologies which have been or could be used to research emotion, emotion work and judging, again drawing on the varied disciplines represented by the range of participants.

This workshop investigates significant conceptual questions about the nature of judicial work, especially the interplay between emotion and impartiality. It will illuminate previously underexplored aspects of the central judicial task of making decisions as well as generating a broader socio-legal understanding of judges’ everyday work.

The workshop engages directly with questions of broad theoretical interest, particularly the relation between reason and emotion in a specific organizational context. Understanding this relation lies at the heart of much socio-legal, psychological, and sociological theory, including Max Weber and other social theorists who examine legal institutions. Given the legal, social and political significance of courts and the judiciary, theoretical and empirical exploration of emotion within this context will contribute to a grounded and contemporary understanding of law in action.

The interaction among these many themes and perspectives promises to inspire new scholarly work on judging and emotion across conceptual, social and national boundaries, as well as informing empirical socio-legal scholarship more broadly. It also lends itself to significant policy and practical outcomes in a range of areas such as judicial selection, training, professional development, performance evaluation and discipline.