Emotion and the Law

This post continues Barrett's discussion of the implications of our new understanding of how emotions work, passing on just a few chunks from Chapter 11 "Emotion and the Law" of her book "How Emotions are Made: The Secret Life of the Brain." The previous installment covered chapters 9 and 10, on emotional well-being.

Societies have different rules for which emotions are acceptable, and when…Laws are shaped by classical view of emotions, steeped in essentialist view of human nature: Emotions vs. reason, hijacking by emotions, rational worse than irrational (heat of passion) killing,…emotion considered to be the primitive part of human nature, to be controlled by the more advanced and uniquely human rational parts…the “triune brain” myth

…the law is out of sync with science, thanks to the classical view of human nature. The law defines deliberate choice—free will—as whether you feel in control of your thoughts and actions. It fails to distinguish between your ability to choose—the workings of your control network—and your subjective experience of choice. The two are not the same in the brain.

Scientists are still trying to figure out how the brain creates the experience of having control. But one thing is certain: there is no scientific justification for labeling a “moment without awareness of control” as emotion.

What does all this mean for the law? Remember that the legal system decides guilt or innocence based on intent—whether someone meant to commit harm. The law should continue to punish based on how intentional harm is, not on whether emotion is involved or whether a person experiences himself as an agent with volition.

Overall, there is no scientific justification for the law’s view of men’s and women’s emotions…or of emotion stereotypes of ethnic groups, for example, who face similar struggles in and out of court. As long as the law codifies emotion stereotypes, people will continue to be the target of inconsistent rulings.

Mental inference is so pervasive and automatic, at least in cultures of the West, that we’re usually unaware of doing it. We believe that our senses provide an accurate and objective representation of the world, as if we had X-ray vision for deciphering another person’s behavior to discover his intent (“I can see right through you”). In these moments, we experience our perceptions of other people as an obvious property of them—a phenomenon I’ve called affective realism—rather than a combination of their actions and the concepts in our own brain….

Affective realism decimates the ideal of the impartial juror…The very history of stand your ground laws is, ironically, potent evidence against their value. It’s impossible to determine reasonable fear for one’s life in a society where racist stereotypes abound and affective realism literally transforms how people see each other. The whole line of reasoning for stand your ground is gutted by affective realism.

The science of emotion is a convenient flashlight for illuminating some of the law’s long-held assumptions about human nature—assumptions that we now know are not respected by the architecture of the human brain. People don’t have a rational side and an emotional side, with the former regulating the latter. Judges can’t set aside affect to issue rulings by pure reason. Jurors can’t detect emotion in defendants. The most objective-looking evidence is tainted by affective realism. Criminal behavior can’t be isolated to a blob in the brain. Emotional harm is not mere discomfort but can shorten a life. In short, every perception and experience within the courtroom—or anywhere else—is a culturally infused, highly personalized belief, corrected by sensory inputs from the world, rather than the result of an unbiased process.