Why should comparative lawyers be interested in virtue, emotion and imagination? Is not the domain of law one structured by rules, governed by reason, with little, if any, room for anything as subjective and mysterious as emotion and imagination? Despite considerable research – philosophical and historical – in recent decades on emotion and imagination (and virtue too), there is still a great deal of scepticism amongst legal scholars, as well as legal philosophers, as to the importance of virtue, emotion and imagination for law and legal reasoning. Why this is so is an interesting question in itself, but a lot has to do, surely, with the stronghold of certain orthodox assumptions about legal reasoning, and reason more generally, e.g. that it is structured by the divide between justification and discovery, and that the psychological processes characterising discovery (such as emotion and imagination) are not of much philosophical interest. Philosophers, on this account, are interested only in practices of justification: in reason-giving practices, and thus also the normative dimension of legal reasoning. In a recent collection, we have tried to challenge this scepticism, and equally also this marginalisation of virtue, emotion and imagination. We do so by illustrating – across a range of areas of the law, and a range of issues related to law – why this scepticism is misplaced and what is to be gained by paying attention to the importance of virtue, emotion and imagination in law and legal reasoning. Let us take each of these three in turn.
First, a central tenet of virtue jurisprudence is that sound legal decision-making requires that judges, as well as other legal agents, possess and exercise virtuous traits of character. It is both useful and important to ask: what kinds of virtues ought a judge to have, or a panel of judges? Some plausible candidates for a catalogue of judicial virtues, which are discussed in the book, include humility (in Amalia Amaya’s paper), compassion (in Benjamin Zipursky’s contribution), and impartiality (in Catherine Elgin’s chapter). More generally, what is the structure of judicial virtue? A central component of virtue, as many have argued, is a highly refined perceptual capacity, which is analysed in detail in Iris van Domselaar’s paper. In addition to inquiring into the nature of virtue and the kind of virtuous dispositions that are most needed in the context of the legal professions, we might also be interested in learning about how the virtues of legal decision-makers may be fostered (a question that is addressed in Amaya’s paper). Finally, insofar as virtues are subjective dispositions, doubts may be raised as to whether giving a prominent role to virtue in legal decision-making is feasible and legitimate in liberal legal orders. Does virtue conflict with central legal principles, such as consistency and publicity (as Elgin argues) or does it, to the contrary, enable better compliance with the rule of law (as Zipursky claims)? To what extent is a virtue approach to legal reasoning compatible (as discussed in van Domselaar’s contribution) with core liberal values?
Second, emotions are valuable to processes of legal reasoning, as well as to law more generally. For instance, certain emotions might be argued to facilitate the kind of quality of attention that is required of judges (as Emily Kidd-White does). Indeed, certain emotions might be precisely the mark of the quality of judgment: think of compassion, humility, and concern. Might certain emotions (e.g. epistemic emotions, such as surprise, the feeling of uncertainty and doubt, curiosity, courage) also be necessary to discerning what is at stake in a case? Further, as Lawrence Blum’s contribution shows, a deficiency of emotion rather than a deficiency of rationality (or some unconscious bias or cultural stereotyping), is what often characterises moral deficiency, for instance in police killings of black males. Similar questions about the value of emotions can be asked, for example, in the context of criminal law: is the experience of certain emotions crucial to the experience of punishment (as argued for by Michael Brady)? We sometimes speak in this context of remorse, guilt and regret, but these are just some of the emotions relevant to criminal law, and there is much that can be done to relate them to affective theory.
Third, imagination, too, is an important dimension of law and legal reasoning, and a greatly under-studied one. One of the themes of the collection is, for instance, a debate over the meaning and value of empathy, including its relation to other nearby emotions, such as sympathy and compassion. Is empathy what judges – or persons in intimate relations (on which see Olbeth Hansberg) – need, or is it something else, e.g. something more like ‘imaginative projection’, which may or may not be accompanied by emotion (see Amy Kind’s essay)? Are persons – not only judges, but also lay persons, such as jurors – good at imagining, e.g. the motives of others? We know little, as Adam Morton discusses in the collection, about how jurors (or judges for that matter) really process inferences about the motives of others, and what it means to be better or worse at that task. In many ways, of course, these questions are not new: for instance, the practice of inventing imaginary figures (such as the Reasonable Person), whose actions are imagined as part of the application of certain legal tests (e.g. in the attribution of responsibility in negligence law) is an old one, operating especially intensively since the nineteenth century, and often travelling from one area to another area of the law (as shown by Simon Stern). These questions, asked mainly at the level of the individual, are important, but equally important is the issue of how imagination is valuable at the level of interaction between individuals as well as for communities over time (as investigated by Maksymilian Del Mar).
We think there is a case to be made for the importance of these questions – and hence the importance of virtue, emotion and imagination – for law and legal reasoning. But might these questions be especially important for comparative lawyers? And, relatedly, might it be important for theorists of virtue, emotion and imagination to approach these questions comparatively?
We do think comparative lawyers might have good reasons to explore these issues. Virtue, for instance, can offer a different kind of ground of comparison – one that might go beyond the usual problems with comparing black-letter law. One can thus imagine comparing the virtues of judges in different legal traditions as a way of delving more deeply into both the differences and similarities in those traditions: are, for instance, judges in common law systems expected to express their own distinctive temperament in ways that is discouraged or not enabled in civil law traditions? Why might the common law favour this honesty and candour about one’s emotional attitudes to, e.g. rules or principles? Or, with respect to emotion, one might envisage a project comparing the affective cultures of different regimes of punishment across different traditions. Further, one might say that some of the differences between, say, constitutional law in different countries is caused by them being infused with different emotions. The imagination, it seems to us, offers great opportunities for comparison: are there differences, and if so why, between how many metaphors are employed in one legal tradition (or one area of the law across traditions) at certain times? Why is it that certain devices of imagination (e.g. imaginary figures) are employed in one tradition more frequently than in others? Can some of the differences between judicial cultures be explained on the basis of how much imagination by judges is encouraged, e.g. by reference to constructing and communicating hypothetical scenarios?
But perhaps even more importantly: although we do not explore this angle in our collection, we do think that much can be gained by approaching the above questions comparatively. Surely many significant questions about virtue, emotion and imagination can only be discerned, let alone addressed, by thinking comparatively. There may be differences, for instance, that we spot between emotions – including which are relevant and valuable to judging – only by comparing different judicial cultures. Some practices we take for granted – including practices of imagination – might only come into view when we compare: e.g. we might only come to see just how much of the common law (or a particular domain of the common law, such as constitutional law) is full of metaphor when we compare it to another legal tradition. It would be fascinating to consider just how methodological debates in comparative law might be relevant and important for theorising virtue, emotion and imagination, e.g. how would an approach like Rodolfo Sacco’s speak to philosophers of those topics (for instance, could we speak of ‘affective formants’?). And surely many of the insights generated by comparative legal linguistics, and work on translation and legal language generally, is crucial to theorising the role and value of emotion and imagination in law and legal reasoning.
There might be one more set of questions that will link comparative lawyers with virtue, emotion and imagination – and that is to ask: what are the virtues of comparative lawyers, or of this method and style of approaching legal study? Are there certain emotional attitudes that are needed to be a comparative lawyer? Does comparative law generate its own kinds of imaginative devices – its own practices of ‘imaginative projection’? Of course, we would not wish to place all traditions of comparison into one basket: comparative law has many histories, and many distinctive approaches. Nevertheless, it may still be useful and important to ask: how does the affective and imaginative culture of comparative lawyers differ from other approaches in legal scholarship? And might some of the differences between different methods of comparison themselves be explicable on the basis of differences of emotional attitude, or the degree of willingness to imagine the lives of others? These are speculative questions, certainly, but they might offer some interesting ways for further reflection on the value of comparison and the rich history of comparative law.
Amalia Amaya is British Academy Global Professor at the School of Law, University of Edinburgh and Research Professor of Philosophy at the National Autonomous University of Mexico.
Maksymilian Del Mar is Professor of Legal Theory at Queen Mary University of London.