Okay, here's part 3 of the n-part series on my continuing perplexity over the criminal law's understanding of emotions.
I started off with the fundamental question: what's really going on?
This is what one asks when one has to swim through the current of dissonant idioms on emotions that flow through judicial opinions: of “highly respected” men of “good moral character,” possessing “ high conceptions of the sanctity of the home and the virtue of women,” in whom the “shock” of spousal infidelity would thus naturally trigger “temporary insanity” and a resulting “loss of control” over their “mental processes”; versus the “rounders and libertines,” whose own lack of virtue would surely inure them to the same “mind-unbalancing” effect of discovering immorality on the part of others.
It's also what one asks when one encounters the sort of selectivity courts display toward impassioned offenders: excusing the "true man" who resorts to lethal violence to protect the "sacredness of his person" rather than beat a cowardly retreat when "wrongfully assailed" in a place he has "every right to be" -- b/c after all, who thinks "rationally in the presence of an uplifted knife"?—while condemning the chronically battered woman who shoots her sleeping husband, because she was motivated not by the "primal impulse" of "self-preservation" but only by her perception that the alternative was a "life of the worst kind of torture and . . . degradation . . . ."
Wha?...
In the last part I offered an explanation, one advanced in a 1996 article I wrote w/ Martha Nussbaum, that I called the "two conceptions thesis" or TCT.
TCT identifies two positions on what emotions are and why they matter: the "mechanistic conception," which treats emotions as unreasoning forces or impulses that acquit an actor of moral responsibility in whole or in part because of their destructive effect on volition; and the "evaluative" conception, which sees actors' emotions as moral evaluations that can in turn can be evaluated in light of social norms that define who is entitled to what.
From voluntary manslaughter to duress, from self-defense to insanity--doctrines of criminal law all appear on casual inspection to reflect the "mechanistic conception."
But on reflection their legal elements create space for and thus demand the exercise of moral judgment, which decisionmakers inevitably exercise in the manner the evaluative conception envisions—by measuring the quality of the impassioned actor’s character, as revealed by his or her anger or fear or disgust.
That’s the account that in the 2011 essay “Two conceptions of two conceptions of emotion” I declared I no longer found satisfactory. The source of my doubts about it was the work I had done in the intervening time, mainly in collaboration with others, on cultural cognition, which to me suggested an alternative and likely more compelling answer to the “what is going on question”: not conscious moral evaluation of the evaluations embodied in impassioned actors’ emotional motivations but rather the unconscious subversion of a genuine commitment to the normative theory (however cogent) that informs the rival mechanistic conception of emotion.
Below I reproduce form the 2011 essay the explanation for this shift in my understanding.
“Tomorrow” I’ll tell you why I now no longer have confidence in that view either.
Because that’s what this whole series is about: repeatedly changing one’s mind. I don't think there's anything wrong with that; on the contrary, I thnk something is wrong when this doesn't to someone who is doing what one is supposed to as an empiricist: using valid methods of observation, measurement and inference to incrementally enlarge the stock of evidence available to adjudicate between competing plausible explanations for a matter of genuine complexity....
4.
So what’s wrong with TCT? Despite its considerable explanatory power, TCT still leaves one obvious mystery unresolved: why is the mechanistic conception so conspicuous in the law? If it is merely a veneer, why are the decisionmakers covering things up? Why don’t they just say, in unmistakably clear terms, that they are evaluating the moral evaluations that that offenders’ (and sometimes’ victims') emotions embody?
My answer is that they aren’t covering up anything. I see this response as not so much an alternative to TCT, however, as an alternative to the version I have just described. I will call this alternative the cognitive conception of TCT (or C-TCT) and distinguish it from the standard one, which I will call the moral evaluation conception (ME-TCT).
To sharpen the relevant distinctions, consider three models of the role of emotions in criminal law (Figure 1). The first contemplates that decisionmakers’ perceptions of the impact of offenders’ emotions should (and does when decisionmakers aren’t being dishonest) determine outcomes wholly independent of any moral evaluations of the quality of those emotions. This the naïve mechanistic view that TCT seeks to discredit and that it aggressively critiques when articulated by conservative opponents of reforming traditional doctrines. In its place, ME-TCT asserts that outcomes in fact flow from decisionmakers’ evaluations of the moral quality of emotions independently of their perceptions of the impact of emotions on offenders’ volition. This is what I’m calling ME-TCT. C-TCT, in contrast, accepts that decisionmakers are honestly (at least in most cases) reaching outcomes based on their view of the volitional impact of emotions. However, in assessing the intensity of emotions, they are unconsciously conforming what they see—actually, their perception of something that they can’t literally see—to outcomes that reflect culturally congenial social meanings.
One reason that I find C-TCT more compelling than ME-TCT is that I can’t bring myself to take seriously any understanding of TCT that implies decisionmakers are being systematically disingenuous when they appeal to the mechanistic conception of emotion to explain their legal determinations. The idea that they might be secretly invoking it en masse in order to conceal their commitments to politically contestable evaluative norms is preposterous; there’s no way the ever-expanding number of insiders could maintain—or even be expected uniformly to want to maintain—such a conspiracy! The idea that they are being openly disingenuous—that they are winking and grinning as they turn loose the cuckold, the homophobe, or the battered woman—also doesn’t ring true. People just aren’t that cynical; on the contrary, anyone who has taught substantive criminal law to thoughtful people will see that they are as intensely earnest as they are divided about the mental lives of cuckolds, battered women, beleaguered subway car commuters, and all the others, a point that Mark Kelman has brilliantly explored.
Even more important, though, I find myself compelled to accept C-TCT by what I’ve learned about the phenomenon of motivated reasoning during the years since I co-authored Two Conceptions of Emotion in Criminal Law. Motivated reasoning refers to a complex of unconscious cognitive processes that converge to promote formation of factual beliefs that suit some end or need extrinsic to the actual truth of those beliefs. One such end is the stake individuals have in protecting their association with and status within groups united by their commitment to shared understandings of the best life and the ideal society.
In the course of an ongoing research project that I have had the good fortune to be a part of, my collaborators and I have studied on how this dynamic shapes perceptions of risk. People unconsciously search out and selectively credit information that supports beliefs that predominate in their cultural affinity groups; they turn to those who share their values, and whom they therefore trust, to certify what sorts of empirical claims they should believe; they even construe their first-hand experiences, including what they see and hear, to fit expectations that cohere with their defining group commitments. As a result, even when they agree on ends—safe streets, a clean environment, a prosperous economy—they end up culturally divided on the means of how to secure them.
Our research group has recently begun to use these methods to explain disagreement about legally consequential facts. We’ve found, for example, that people of diverse cultural outlooks form systematically different impressions when they view videotape evidence bearing on the degree of risk associated with a high-speed police car chase or on the intent of political demonstrators to intimidate passersby.
Much like the work I did earlier on emotions in criminal law, moreover, this work is part of a multi-faceted and dynamic scholarly conversation. Our work on cultural cognition and law builds on that of social psychologists such as Mark Alicke. More recently, too, other scholars, including Janice Nadler, and John Darley and Avani Sood have completed important studies supporting the likely impact of motivated reasoning on perceptions of legally consequential facts.
C-TCT flows naturally out of this work. The most plausible reason that the mechanistic conception is so conspicuous in the criminal law, on this view, is that ordinary people, including the ones who become judges, juries, and legislators, believe it. They believe (not without reason, including personal experience!) that volition-constraining affect is a signature element of emotion; they also accept that the intensity of such affective responses should have moral consequence akin to what doctrines informed by the mechanistic view seem to say they should. But in assessing one or another form of evidence that bears on offenders’ emotions, culturally diverse individuals unconsciously gravitate toward perceptions that connect them to and otherwise are congenial to persons who share their defining commitments.
There are two studies, in particular, that are supportive of this conclusion. One is a study that Donald Braman and I did, in which we found that mock jurors of opposing cultural outlooks formed opposing pro-defendant or pro-prosecution fact perceptions in a self-defense case involving a battered woman who killed her sleeping husband—and then flipped positions in one involving a beleaguered subway commuter who killed an African-American panhandler. Another study, by Nadler, found that extrinsic facts bearing on the moral quality of parties’ characters, influenced mock jurors’ perceptions of various facts, including intent and causation.
I certainly would not say that the verdict is in on the relative strength of C-TCT and SE-TCT. But I’m convinced the case can and should be decided by empirical proof, and that the weight of the evidence to date supports C-TCT.