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Emotional Legal Design: A Proposal

Link to original publication: http://blogs.law.harvard.edu/ugasser/
After an incredible 22 hours trip from St. Gallen to Squaw Valley I finally made it to the Gruter Institute ’s 2006 conference on Law, Behavior & the Brain. A fantasti...
Views: 1.782 Created 12/13/2006

After an incredible 22 hours trip from St. Gallen to Squaw Valley I finally made it to the Gruter Institute’s 2006 conference on Law, Behavior & the Brain. A fantastic group of roughly 40 leading researchers, scholars, and practitioners working in different fields – including biology, behavioral economics, neuroscience, and law – has gathered up here to explore a series of fascinating questions at the intersection of law, behavioral biology, and neuroscience. Among the panel topics: Law & Biology: The State of Play; Behavioral Biology Today; Law & Emotion; Property, IP, and the Brain; Evolution vs. Intelligent Design; Biology and the Elements of Reconciliation: Vengeance and Forgiveness; Cutting Edge of Law and Science.

Thanks to Monika Gruter Cheney and Oliver Goodenough, I had the pleasure to talk to the audience about large-scale copyright infringements on the Internet on the one hand and about emotional legal design (if you’re not familiar with the law & emotion movement, find here a terrific overview) on the other hand. Here’s the rough summary of my presentation entitled “The Quest for Principles of Emotional Legal Design”:

I’m fascinated by principles as a source from which things proceed. As a legal scholar, I’m particularly interested in legal principles (e.g. principle of equality); however, since doing research on Cyberlaw, I’m more and more fascinated by the emergence and effects of a different kind of principles, that is, by design principles (such as the end-to-end principle), which guide the building of complex systems, including (at least potentially) the legal system. I will refer to this type of principles also as “constructive principles.” In this context, I’m increasingly interested in identifying and discussing both analytical and constructive principles that might be derived from various bodies of knowledge, including knowledge accumulated in the 10+ schools of thoughts starting with “law & …” – ranging from law & economics, law & literature, law & technology, … to law & emotion. So, the question I’d like to explore today is: What can we learn from the law & emotion discourse as far as either analytical and/or design principles are concerned?

Before we start exploring this issue, however, let me briefly address the question why, at all, it seems important to crystallize such principles. In essence, I would like to suggest that a “principled” approach to law and legal processes has a series of distinct advantages. I would like to mention only two:

  • Analytical principles can help us to gain a deeper understanding of social processes that are of legal relevance. In other words, they help us to better understand social phenomena related to the law in action as well as the law in the books. As such, analytical principles might help us dealing with the relevant phenomena. In an epistemological sense, they assist us to construct the world – our shared worldviews – based on a common set of insights, beliefs, rationales, and the like.
  • Design principles or constructive principles, in turn, set the social engineers’ default standards, thus enabling us to build complex, decentralized and multi-actor systems in a more or less coherent manner – far beyond ad-hoc and case-by-case design choices. Furthermore, such principles encourage us to disclose and discuss particular design choices that are in tension with the guiding principles.
    In this light and turning back to the first question: What are tentative analytical principles that we may derive from the law & emotion discourse as it stands today? I would like to propose two principles.
    • Principle of implication: Arguably, the law & emotion research informs us that emotions are constitutive and important elements of almost any processes with legal relevance, including decision-making processes in courts (judges, juries), agencies, law-making bodies, and so forth. Indeed, the legal system involves human beings, and for them it is impossible not to have emotions. To better understand law and legal processes therefore also means to know more about emotional phenomena.
    • Principle of interdependence: Emotional and rational phenomena are interacting with each other – they are inseparable. The relationship (among other things) can be neutral, re-enforcing, or contradictory. In any event, human beings depend on both “modes” of information processing and on the interaction between them. The principle of interdependence also applies to situations (what in German is nicely called Lebenssachverhalte) that make their way into the legal system. From the legal system’s viewpoint, it is important to understand these interactions and differentiate between the two modes.

    Let me now turn to the second aspect: the quest for design principles. Frankly, the task to identify constructive principles is a much more difficult one. A review – although incomplete – of the law & emotion literature doesn’t seem to suggest a well-defined, overarching consensus regarding the normative implications of the findings for the building of legal systems at large. In some instance, for instance, it is debated as to what extent emotions shall make their way into the legal system at all. In others it is disputed what types of emotions and emotional mechanisms shall be taken into account by the law. Despite these difficulties, let me suggest two potential design principles that might serve as the starting point for a discussion about the possibilities (promises) and limitations (challenges) of such principles.

    • Principle of inclusion: According to this principle, the legal system should aim to understand and take into account emotions and emotional mechanisms as empirical phenomena in a systematic and deliberative manner. If the legal system decides to exclude (or reduce the effects of) certain types of emotions or emotional mechanisms, or to ignore emotional phenomena in the context of certain areas of law, procedures, or the like, these design choices and the underlying arguments should be made transparent and opened up for debate.
    • Principle of integration: The legal system (based on the insights by law & emotion research) should provide and further develop appropriate mechanisms and adequate fora that enable the system’s actors (including the parties of a dispute, lawyers, witnesses, jurors, judges, etc.) to express, display, channel, synchronize, balance, or align to the extent possible and desirable both the emotional and rational elements of reasoning in a structured and discursive way.

    The relevance of such principles – both at the analytical and constructive level – can be illustrated by the Muhammad Cartoon controversy. The Muhammad cartoons controversy began after publication of 12 editorial cartoons in a Danish newspaper, most of which pictured the Islamic prophet Muhammad, which the newspaper said it was doing as part of a debate regarding criticism of Islam and self-censorship in Denmark. Critics of the cartoons have described them as islamophobic and argue that they are blasphemous, while supporters claim that they illustrate an important issue in an age of Islamic extremist terrorism and their publication exercises the right of free speech.

    Now, emotions rooted in religious beliefs are often protected by laws in European jurisdictions – including by provisions of criminal law. My colleague Daniel Haeusermann at the Univ. of St. Gallen discusses in a recent paper in great detail how the relevant provision of the Swiss Penal Code, among others, struggles to deal with an issue such as the Muhammad cartoon controversy. Haeusermann shows on the one hand that the legal system lacks a basic (analytical) understanding of the emotions and emotional mechanisms involved in this particular controversy. On the other hand, he suggests that the law could respond in a more sophisticated way by establishing discourse-oriented mechanisms and loosely mediated public fora outside the court system in order to enable the channeling of emotions among the parties involved.

    In that sense, the cartoon controversy might serve as a case study to apply, test and further develop the design principles sketched in this presentation – both from an analytical and normative perspective.

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