Emotions in Legal Practices: Historical and Modern Attitudes Compared
Holme Building Refectory, Science Rd, The University of Sydney
26-28 September, 2016

Enquiries: Pam Bond (pam.bond@uwa.edu.au)

This two-day conference at The University of Sydney, under the auspices of the ARC Centre of Excellence for the History of Emotions, will gather academics and legal practitioners to debate their findings on emotions in legal practices and engage critically with each other about their perspectives on whether the law can recognise, acknowledge and encompass emotional responses. This conference aims to generate stimulating discussions between historians, legal scholars and legal practitioners who are working in the area of emotions in legal proceedings.

In addition to hearing from invited speakers, we are issuing a call for papers for a more novel session in which we ask for poster presentations of research accompanied by a 3-4 minute speed-bite presentation. The aim is to showcase, national, international and interdisciplinary research in a dynamic format. In addition to the speed-bite presentations, there will be plenty of time for presenters to answer questions on their research.

We therefore invite postgraduates, early career researchers and senior researchers working in the fields of history, legal studies, or who are legal practitioners, to submit a 200-300 abstract and brief biography for consideration to Merridee Bailey (Merridee.bailey@adelaide.edu.au) and Kimberley-Joy Knight (Kimberley.knight@sydney.edu.au) by 1 July, 2016.

Confirmed keynote speakers are:

• Prof. Hila Keren, Southwestern Law School, Los Angeles
• Magistrate Hugh Dillon, Deputy State Coroner, NSW
• Prof. Payam Akhavan (via Skype), McGill University, Montreal, Canada

In 2015, Justice Peter Openshaw urged the jury of a murder case in the United Kingdom to judge the case ‘coldly, calmly and dispassionately’ while, in that same year, Mr Justice Dingemans advised the jury of another young woman’s murder to arrive at their decision ‘without emotion’. In both cases the judges referred to the presence of emotion and drew a clear distinction between decisions arrived at emotionally and those arrived at dispassionately. Given the high profile nature of both of these cases, and the media interest that surrounded them, the judges’ instructions publically set out an image of the courtroom as a space where heightened emotions are present but also as a space where emotions should be set aside.

Today many assume that Western legal practice was historically embedded in the perception that upholding the law required dispassion and that undisciplined emotions could dangerously undercut the ability for judges and juries to make rational decisions. Emotion had no role in the creation, interpretation, reception, or practice of the law. However, in the last two decades there has been an ever-increasing volume of academic work by legal historians, philosophers, social scientists and legal practitioners that paints a very different picture of the role of emotions in the law. This work both questions whether this picture was true historically by investigating historical legal systems but it also looks to modern courtrooms and the role that emotion does and should – or should not – play there today. At the same time, there has been a much wider movement in the social sciences, humanities and cognitive sciences to acknowledge the importance of human experience and to understand emotion not simply as a departure from rationality. Legal scholarship has taken note of this and is increasingly arguing that emotions should be accepted as proper tools in legal processes and decision-making. Indeed, scholars of both law and emotion have shown that emotions do influence law (Bandes, 1996; Kahan and Nussbaum, 1996) and that law, in turn, influences emotion (West, 2014).

However, the case is not so clear-cut that legal practitioners and all scholars have increasingly accepted the legitimate place of emotions in legal disputes. Many historians and legal scholars may now recognise that emotions permeate and enhance legal decision-making but is there still a disjuncture between academic theory and the practice of the law? Has the pendulum managed to swing far enough into actual courtrooms and legal spaces? In 2010, Abrams and Keren noted how the study of law and emotions is often treated as a ‘novel pastime’ rather than an instrument for addressing practical problems. Why do those in the legal sphere often struggle to relinquish their rationalist premises? What is at stake in upholding one stance over another? Given the ‘emotional turn’ in scholarship, are we in danger of according emotions too great a place in legal practice? Are we dangerously privileging emotions as ‘right’ or sincere because they are ‘human’?

While the courtroom has been the focus of much of the work on emotional practices this conference will extend the investigation of emotions across legal practices to include the sentencing of convicted criminals and the parole process. The conference aims to stimulate genuine debate and encourage serious reflection on the enduring ‘problem’ of rationality and emotions. Our aim is for scholars and legal practitioners to bring their different disciplinary expertise to reconsider collectively the role of emotions in legal practices both historically and today and, potentially, to inform new legal policies.

Posters accompanied by a 3-4 minute speed-bite are invited to consider the following topics:

• how emotions have been seen and/or continue to be seen to complement or distort logic and decision making by judges, juries, legislators or citizens
• historical and contemporary perspectives on how people should behave in courtrooms, including evaluations about emotions and body language
• the empathy debate: empathy and anti-empathy
• the role of victim impact statements, past and present
• reflections on the role of the judge as a ‘rational actor’
• the gendering of emotion in legal theory
• ‘proper’ emotions in legal processes
• the role of specific emotions in legal practices including, but not limited to, anger, wrath, guilt and remorse
• disciplined versus un-disciplined emotions
• (how) can the law take account of emotions and remain consistent and fair?
• how far are we able to accurately judge and evaluate emotions and what bearing should this have on accepting emotions as part of legal rulings?
• should lawyers and judges receive training in approaches to emotions?
• non-Western perspectives on emotions in the law.