Revising Reason: Creating an Emotionally Engaged Legal Academia

AuthorPragya Mishra
Published date01 June 2020
Date01 June 2020
Subject MatterArticles
Revising Reason: Creating
an Emotionally Engaged
Legal Academia
Pragya Mishra1
In this article, my focus is to examine where, when, how, and why that most
animating psychological concept—emotion—influences law and legal academia. In
particular, this article will consider how law considers reason its supreme driving
force, representing rationality and enlightenment and prizes the rigid, analytical,
unemotional ability to ‘think like a lawyer’ whilst modern neuroscientific and
philosophical findings no longer consider emotions as an antithesis of reason but
rather deeply intertwined with cognition. Thus, briefly illustrating some of the
inconsistencies, contradictions, and incoherence among legal education’s theories
of emotion, as seen through law and emotions scholarship, this article argues that
emotions can and should be the driver for a more holistic form of legal education,
one in which emotions and well-being are integral within the curriculum itself,
rather than occasional adjuncts.
Law, critical reasoning, emotions, legal education
‘The Law is Reason Free from Passion.’
Orthodox legal scholarship understands emotions as dangling, disembodied
psychic entities, unrelated to intentions in the interior psyche or provocations in
1 W.D. Ross, The WoRks of ARisToTle TRAnslATeD inTo english (1928).
Journal of National
Law University Delhi
7(1–2) 31–52, 2020
© 2022 National Law
University Delhi
Reprints and permissions:
DOI: 10.1177/22774017221095313
1 National Law University, Delhi, India.
Corresponding author:
Pragya Mishra, National Law University, Dwarka, New Delhi, Delhi 110078, India.
32 Journal of National Law University Delhi 7(1–2)
the objective reality.2 Though Law’s lifeblood are crimes of passion, the rage
fuelled homicides, grave and sudden provocations, and bitter fallings-out,3 yet the
above statement by Aristotle shows how deep and pervasive4 is law’s discomfort
with emotions. Barring a few examples,5 law mainly seeks to discard emotions as
irrelevant and irreverent, or it attempts to suppress them as difficult, damaging
and even dangerous. Despite law’s provisions being embedded with the full
spectrum of emotions from anger, disgust, shame, suspicion, and hate to love,
lust, happiness and joy,6 such a disregard of emotions from law’s end is as shocking
as questionable is the fact of law’s existence or form if it were not for the need to
regulate the reality of humanity’s emotional range.
This results in a puzzling quagmire of paradox arising from law’s implicit
engrained7 assumptions that reason and emotion can be dichotomised in strict
watertight compartments; which ends up in law quashing, disregarding and even
denigrating8 any presence of emotions on which is dependent law’s own existence.
As noted, British legal philosopher, Emma Jones says, ‘For the law, emotions
represent the messy, the subjective, the irrational and the dangerous’.9 In contrast,
the law imposes order, objectivity, rationality and reason10 (or so it says). It seeks
to disregard emotions and, when it cannot do so, it works hard to suppress them.11
Where emotions have to be admitted into the legal arena (for example, with the
grave and sudden provocation defence under Indian Penal Code, 1860, they are
regularised, contained and—as far as possible—sanitised).
On occasion, the contemporary neo-liberal society may even encourage a
circumscribed display of so-called emotions. Take, for example, the case of the
convicted defendant in a criminal matter who during sentencing must show
remorse12 or be labelled a ‘hardened criminal’, even if it is later discovered they
had the integrity to continue correctly maintaining their innocence. The particular
2 noRmAn J. finkle & W.g. PARRoTT, emoTions AnD CulPAbiliTy: hoW The lAW is AT oDDs WiTh
PsyChology, JuRoRs AnD iTself 36 (2006)
3 R. Grossi, Understanding Law and Emotion, 7 emoT. Rev., 55 (2015).
4 The terminology used within discourse on emotions can be both challenging and contested. In this
article, the term ‘emotions’ has been used to encapsulate the whole range of emotions that may be
experienced within legal education (or elsewhere), in accordance with one of its common usages in
relevant literature (see, for example, P. golDie, The emoTions. A PhilosoPhiCAl exPloRATion (2002)).
The term ‘emotion’ will be used to denote a particular ‘emotional episode’ (for example, sadness or
love) appropriate to the context of its usage (k. oATley, D. kelTneR & J. m. Jenkins, unDeRsTAnDing
emoTions (2d ed. 2006)). The term ‘emotional’ will be used to refer to the presence or application of
emotion within a specific situation or experience.
5 M.L. Bailey & K.J. Knight, Writing Histories of Law and Emotion, 38 J. legAl. hisT. 117 (2017).
6 T.A. Maroney, A Field Evolves: Introduction to the Special Section on Law and Emotion, 8 emoT.
Rev. 3 (2016).
7 T.A. Maroney, Law and Emotion: A Proposed Taxonomy of an Emerging Field, 13 lAW. hum. behAv.
119 (2006).
8 S.A. Bandes & J.A. Blumenthal, Emotion and the Law, 8 Annu. Rev. lAW soC. sCi. 161 (2012).
9 emmA Jones, emoTions in lAW sChool: TRAnsfoRming legAl eDuCATion, 23, Routledge Publications,
(August 2019).
10 P. sChlAg, The enChAnTmenT of ReAson (1998).
11 S.A. Bandes, Centennial Address: Emotion, Reason, and the Progress of Law, 62 DePAul. l. Rev.
921 (2013).
12 R. WeismAn, shoWing RemoRse. lAW AnD The soCiAl ConTRol of emoTion (2014).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT