Glenna Goldis

26 March 2007

In Support of Emotionalism

“Where neither love nor hatred is in the game, a woman’s game is mediocre.”

Friedrich Nietzsche (Beyond Good and Evil)

“How much she wanted it—that people should look pleased as she came in, Clarissa thought and turned and walked back towards Bond Street, annoyed, because it was silly to have other reasons for doing things. Much rather would she have been one of those people like Richard who did things for themselves, whereas, she thought, waiting to cross, half the time she did things not simply, not for themselves”

Virginia Woolf (Mrs. Dalloway)

Don’t be too pissed off at Nietzsche. He just forgot to mention that a man’s game suffers, too, when he doesn’t have any emotions at stake. An unemotional game is boring, or as Woolf would say, simple. Any truly ambitious person should be an emotionalist.

Yet you recoil from emotionalism. That is because hundreds of movies and philosophers have told you that emotionalism is feminine. Like Clarissa Dalloway, you’re ashamed of your true motivations because they are not those of an ideal human. You wish that you were more rational because you wish you were manlier.

You know how when you read actual cases instead of a commercial outline, you sense that law is a joke? That’s because judges wish they were manlier, too. So they stuff socks in their rational arguments. They wrap emotional arguments in skin-toned ace bandages. They write flaccid opinions that force themselves on younger generations only by virtue of that purple pill, stare decisis.

Law is not naturally masculine or feminine. It’s both rational and emotional. But the legal profession has oppressed emotionalism because she’s a girl. Let’s rescue her.

1. Terms

I use “emotionalism” and “rationalism” in the following way, adapted from the American Heritage Dictionary’s definition of rationalism.

emotionalism: reliance on emotion as the best guide for belief and action

rationalism: reliance on reason as the best guide for belief and action

The distinction between rationalism and emotionalism is cultural, not natural. It’s not true that every argument appeals either to your emotions or to your reason. For example, rational arguments may depend on an emotional preference for facts and numbers; emotional arguments may build step by step in a rational sequence. So when I use the term rationalism, it’s shorthand for “what is conventionally thought of as ‘rationalism,’” or “‘“‘rationalism.’”’”

I’m reassessing the value of rational arguments and destigmatizing emotional ones. Hallmarks of rational arguments include emphasis on procedure instead of substance; numbers; and reliance on authority. Emotional arguments appeal to extra-legal values (such as dignity, compassion, and efficiency); focus on individual personalities; and employ literary devices.

As a judicial philosophy emotionalism refers to a mode of interpretation, like originalism or textualism. An emotionalist judge decides cases based on how she feels and writes opinions that persuade the reader to feel the same way.

2. General Arguments for Promoting Emotionalism

Emotionalism, as a descriptive theory (“emotions do guide behavior”), has sturdy philosophical credentials. As a normative theory (“emotions should guide behavior”) it does not, but wait for it. Emotions guide action and we should celebrate that.

1. Emotion as motive

Growing up during the Enlightenment, David Hume read all the arguments about ethics that he could find and found them to be “little more than endless Disputes.”¹ None of the arguments about moral choices took into account how people actually make moral choices. Hume argued in his theory of sentimentalism that reason is completely impotent; we can use it to get what we want, but it doesn’t motivate us. “Reason is, and ought only to be, the slave of the passions.”²

Although Hume is a prominent philosopher, sentimentalism hasn’t been popularly absorbed. Consider this winter’s media coverage of Lisa Novak, the astronaut charged with attempted murder of a romantic rival. People seemed shocked to discover that being good at science is not the opposite of wanting to kill people. The New York Times noted the “stark contrast to the ideal of astronauts as disciplined scientists trained to keep their emotions intact and function with precision in challenging environments.”³

In a Humean worldview, the problem isn’t that Novak followed emotions instead of reason, but that she had bad emotions. Bad emotions have nothing to do with whether someone’s rational or irrational. Passions enslave everyone, even astronauts.

2. An example of when emotionalism should have trumped rationalism

Beginning in 2002, an obviously sketchy administration presented a rational argument that the United States should invade Iraq. Many people who were not inclined to trust the president supported his war, including 29 Senate democrats. Within years it became clear that the administration had fabricated the premises of its argument. Hillary Clinton is still defending her initial support on the ground that “the Senate Iraq resolution was based on false intelligence and never should’ve come to a vote.”⁴

But didn’t she know Bush was an asshole? Based on dislike of the administration, people could have resisted its arguments either because they didn’t trust the intelligence or because they didn’t trust its ability to fight a war. But few politicians spoke in these terms. They probably feared sounding irrational because they were basing their opinion on personality instead of scientific-looking evidence.

Consider two statements from February of 2003 about invading Iraq⁵:

“[There is] a 25 percent chance of fiasco. A 25 percent chance of inconclusive result... A 25 percent chance of a better world… A 25 percent chance of a magnificent result. That's two positive prospects, one neutral, and one negative, so I think we should try.”

(Gregg Easterbrook, senior editor at the New Republic)

“Not in favor of war on Iraq. Bush is hoodwinking and bamboozling the American public.”

(Spike Lee, movie director)

The numerical argument was wrong and the ad hominem one was right. And to a lot of people who swallowed their doubts at the time, it felt right. If more people had followed their consciences, and if our government consisted of three branches which checked and balanced one another, the U.S. might not be in Iraq now.

3. Emotionalism and the Law

Medicine should be a primarily rational enterprise, within ethical boundaries informed by emotion. You should choose your friends on an emotional basis, within rational boundaries so that you don’t end up falling in with a bad crowd.

Law should be a mix. Judges/juries are always choosing between people (the parties to a case) and between theories (about how to interpret a rule). Both emotionality and rationality are necessary to synthesize all these duties. In some cases, not much human is at stake, in which case rationality takes over. In some cases the human element overwhelms. Then emotion should dictate the outcome, and judges should explain their positions as plainly and persuasively as their clerks are able. Of course, emotions already drive a lot of decisions; they’re just not cited. When judges let emotionalism out of the closet, law will be more progressive and more stable.

1. Law is already emotionalist

All areas of the law blush with estrogen. For example, trials require juries to decide witnesses’ credibility. In contract theory, study guides claim there are six factors for analyzing whether a deal is unconscionable. My contracts professor summarized the issue as whether or not “this contract makes me throw up.” (Saying “this contract makes me throw up” is a weak emotional argument, but actually persuading the judge to throw up is a strong one.) But emotionalism is most flamboyant in equal protection and substantive due process cases.

The most famous example is Brown v. Board, the 1954 school desegregation case. The court reversed the doctrine of “separate but equal” on the basis of “psychological knowledge.”⁶ Conservatives at the time and arch-conservatives of today criticize the decision for relying on social science data—and, arguably, flawed data at that. It has also become fashionable for liberals to put down the decision because its practical effects (there weren’t any⁷) weren’t worth the legal “stretching.” But it’s only considered a stretch because the legal community is ashamed of its emotions.

A truly emotionalist decision wouldn’t have worn the chest toupe of “scientific studies” instead of simply explaining why the law made them throw up. Nevertheless, the decision is bold because it overturns precedent and departs from the beaten rationalist path. Brown, now the most honored decision in American history, is also its most emotionalist.

2. Emotionalism is better for liberals

Emotionalism is better for liberals because liberals have better emotions than conservatives.

If the legal community recognized the validity of emotional reasoning, then Brown would not be a controversial decision. In 1954, the effect would have been the same: angry racists, happy everyone-else. But a generation later the effects would have become awesome. Nobody who argued against it could have a career, such as William Rehnquist or that guy in my con law class last year—because they would have had the option of voting based on emotion, and rejected it. Only a racist would choose stare decisis over little children.

Emotionalism would make it more difficult to argue unsavory positions. Expressing sympathy for the other side in order to defeat them is a gross rhetorical device, useful in many areas of law such as torts (“my heart goes out to the victims but …”) and civil rights (“I have nothing against homosexuals but …”). If emotionalism were as legitimate as originalism, then those “I like the other side but” arguments would self-refute. (Also, the sentence “I have nothing against homosexuals” should be considered self-refuting. Who still uses the term ‘homosexuals’ unironically?) It would be like a gay rights lawyer stating “the Fourteenth Amendment was only intended to protect straight people.” Why mention it?

Some judges would demand emotional arguments from lawyers. That would be fun to watch. “Do you oppose gay rights because you were once molested by a homosexual priest?” “Why do you want fewer black teenagers to get into college?”

Anti-choice activists would like emotionalism because then they could bring their bloody fetus signs into court with them. But pro-choice legal teams could retaliate with bloody woman-in-labor signs, so they’d cancel out.

3. Emotionalism produces at least as much predictability as rationalism

“People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence [law] becomes a business to find out when this danger is to be feared.”⁸

Law is a better business when lawyers can predict how judges will rule.⁹ Rationalism does not yield predictability. Emotionalism might.

Karl N. Llewellyn compiled 28 pairs of contradictory canons of statutory interpretation and concluded that “since there is always more than one available correct answer, the court always has to select.” It’s not a lost cause to predict which a judge will choose, but you have to figure out subjective things such as the judge’s “temper” and “sense of the situation.”¹⁰ In other words, emotionalism necessarily drives rational decisionmaking in the first place. Rationalism, on its own, produces something less than instability—it produces nothing. It’s a wheel spinning two inches above the ground. Emotions add rubber.

Cases usually involve more than one issue—at least, there is the substantive issue and the issue of whether precedent should be followed. So even if you think you know a judge’s position on the substantive issue, you might be surprised by their use of precedent. Consider the 2005 medical marijuana case Gonzalez v. Raich.¹¹ The substantive issue was about the scope of the interstate commerce clause; the two most recent precedents had declared it somewhat narrow.¹² There was also the issue of pot.

Raich was basically another front in the states’ rights war. Seven of the justices voted according to their positions on that issue. To reach their conclusions, the dissenters compared it to Lopez and Morrison; the majority distinguished it.

The anomalies were Justices Kennedy and Scalia, usually federalists. Kennedy did not explain himself, but Scalia did in a concurrence anchored in many precedents that was “if not inconsistent with that of the Court, at least more nuanced.”¹³ In other words, pot is a more important issue to him than states’ rights.

As an emotionalist, I don’t fault Scalia for voting his conscience. I only regret that his conscience didn’t write an opinion. The point is that there was no way to predict ahead of time how any of the justices would vote—whether they cared more about states’ rights or pot; how they would stir fry the centuries of precedents at their disposal.

Emotionalism adds predictability because opinions with emotional elements are more persuasive than, say, “more nuanced” ones riddled with citations. So while they won’t technically bind any stronger, judges will follow them because they want to. Right now, dissents tend to be more emotional than majority opinions; because they wield no responsibility dissenters are more freewheeling which means, in the legal world, more eloquent. Yet it’s common for the logic of great dissents to be adopted by future generations, simply because they’re good. Rational opinions spin in place; emotional ones roll through history.

It’s doubtful that Raich is going to influence anyone, because the justices involved didn’t even convince themselves about anything. Stevens has publically lamented the policy implication of his majority opinion¹⁴; O’Connor’s dissent insulted the state law while endorsing its right to exist; and Scalia’s concurrence is sludge. Future justices will vote on similar issues according to their feelings about states’ rights or marijuana, throwing Raich into the rational mix however it suits them. But if the Court had written an emotional defense of congressional power, then it might have changed people’s minds; future justices’ minds. For them, precedent and personal inclinations would be the same thing, and one fewer variable would confuse predictions about them.

And if Scalia had written a heartfelt concurrence instead of a nuanced one, maybe we’d all stop doing drugs!

(But emotionalism has its limits.)

4. Objections and Defenses

   1. Moral Critique

Immanual Kant is one of history’s most prominent anti-emotionalists. A lot of people think Kant is really smart because he mechanized Christianity, translating the golden rule into rationalistic jargon. Along the way Kant argued that reason—in a very basic form, not so much our ability to synthesize experiences but to synthesize numbers—is the only moral guide to action. In contrast to reason is everything else that can motivate a person, referred to as instinct or inclination. Following these things is at best amoral. Following reason, on the other hand, is inherently good.¹⁵

Kant appealed to a mind/body distinction to construe reason (mind) as separate from and opposed to all those other things (body). Let’s assume this paradigm. What’s so great about the mind? Kant said he liked it because it separated us from animals, which he thought were only bodies with no rationality. But modern technology has shown us that animals have brains, and they engage in rational processes like finding food.

What’s really bothering Kant is that he thinks non-rational thought is too easy (and easiness is probably immoral because the universe is fair like that). It’s another tradition of the mind/body metaphors to equate rationalism with hardness and emotions with easiness. In one of the three times in his writing when he employed a literary device Kant betrayed his submission to that old prejudice. He condemned “the lax or even base manner of thought which seeks principles among empirical motives and laws, for human reason in its weariness is glad to rest on this pillow.”¹⁶

For a contemporary example take Richard Posner, a wizard of anti-emotionalism. Recently he noted in a blog entry about choosing a college that “[i]t is easy enough to determine whether the school has nice facilities and a charming location, but difficult to determine what contribution attending it will make to one's human capital, which is the principal product of education.”¹⁷

Actually, less than one minute of research told me that NYU Law would increase my human capital by one hundred thousand dollars. But I had to move into D’Agostino Hall before I realized how trashy NYU’s location is. Subjective concerns are often a lot harder to sort out than numerical ones.

Figuring out how you feel is hard. Communicating how you feel is hard. Applying and talking about statutory canons is easy. If it’s good to do hard things, then emotionalism is the most moral kind of jurisprudence.

All that being said, it’s possible that my difference from Kant is semantic. If reason is such a pure faculty that it “does not need so much to be taught as only to be brought to light”¹⁸ then can’t we just as easily refer to it as “emotion”? Maybe the translators’ prejudices are to blame. Instead of figuring out how we want to be treated in order to treat others that way, it’s more logical to say we feel how we want to be treated.

2. Post-modern Feminist Critique

Throughout this argument I have analogized the law to an intersex body dressing in drag as a man. Judith Butler is pro-dressing in drag because it’s subversive. She might consider me a philistine. How cliché of me to tell the law, “be yourself. Be your beautiful, essentially intersex self.” To accuse the law—and every other western discourse—of intellectual dishonesty is to imply that there is such thing as honesty, which is to imply that there is such thing as truth, and that’s just straight.

At least emotionalism is more subversive than wearing a tie.

3. Logical Critique

At first glance, the good thing about rational arguments is that they’re falsifiable. If someone’s messing with you, you can tell by analyzing their argument structure. All freshmen know, for example, that circular arguments are fallacies.

But they’re wrong. During junior year philosophy majors learn that circles can be just fine. Some of the best rationalists ever, from Aristotle to Rawls, beaded their ideas into necklaces. Rawls’ theory of reflective equilibrium, for example, holds that we apply our instinctive ethical principles to real world cases, then circle back and revise our principles based on how we feel after the experience, and apply those… ad nauseum. This circular process is actually how we discover ethical rules. So logic is trickier than it first appears, and not a reliable friend in separating truths from falsehoods.

Logic also isn’t that helpful to lawyers because other lawyers—people who survived the LSAT—do not make illogical arguments. Legal arguments tend to turn on murkier types of reasoning: analogies, theories of interpretation and question-framing. You’re usually not going to discover that an argument is bad because it doesn’t add up. But you will if reading it forces you to roll your eyes. For example, there’s nothing logically wrong with framing a case about gay sex as a question of whether the constitution grants a right to homosexual sodomy (as in Bowers v. Hardwick). But come on.

5. Emotionalism and Feminism

Unfortunately, most feminists of the older generation are not emotionalists.

1. Carol Gilligan

Gilligan’s “In a Different Voice” project was paradigmatically rationalist. Women tried to explain their motivations, and then Gilligan ranked them on a scale that had numbers on it (1, 2, and 3). The numbers correlated with morality and also with verbosity. A teenager who wanted to abort her fetus because “I didn’t want it, I wasn’t ready for it, and next year will be my last year and I want to go to school” earned a 1.¹⁹ Here is what a 3 sounds like: “always in my mind is that the world is full of real and recognizable trouble, and is it heading for some kind of doom and is it right to bring children into this world when we currently have an overpopulation problem, and is it right to spend money on a pair of shoes when I have a pair of shoes and other people are shoeless…”²⁰

Only a rationalist would screen morality by collecting verbal samples. Impulsive, accurate replies don’t stand a chance against trains of buzzwords (responsibility, care, “usual subconscious perception of myself”²¹). Are the threes better than the ones, better at expressing themselves, or just better citizens of a word-crazy Foucauldian dystopia?

2. Linda Hirshman

Recently Linda Hirshman wrote an op-ed about Hillary Clinton’s chances with female voters.²² It really freaks her out that women are “not rational political actors -- they don't make firm policy commitments.” As “much as it pains a feminist like me to say it,” she concludes without explaining why she refers to women in the third person, “a lot of her campaign will have to involve putting her on the couch and analyzing her character and motivation.”

As noted in the Iraq example, evaluating character is important to evaluating an argument. Character is even more important in evaluating a political candidate. First of all, it’s easier to lie about the future than about the past, so most candidates do (Bush Sr.’s “no new taxes” promise; Bush Jr.’s moderate posturing in 2000). Second, character doesn’t change but policy issues do; in 2000 neither presidential candidate touted his plan for if terrorists killed thousands of people on U.S. soil.

Hirshman is into a lot of masculine values such as money, self-aggrandizement, and short hair.²³ This would be fine, except that she also sees gender as a zero-sum game. If a masculine value is good, then its feminine opposite is bad. This leads her to condemn femininity and to essentialize women. For example, she totally freaks out about statistics saying women don’t follow national news as much as men do. For Hirshman, it’s not because they’re busy or follow local news instead or because lately national news is just a soap opera about unattractive people anyway, but simply because women are emotionalists. And, because Hirshman buys into the rationalist-emotionalist dichotomy, if one is emotionalist then she is also irrational.

Too many feminists are on the defensive. Gilligan scientifically proved that we are just as “moral” as men; Hirshman holds herself up as a model woman while referring to women as “them.” This is a waste of time because many facets of morality and all facets of presidential campaigns are stupid. Our experiences and educations as feminists prepare us to improve institutions, not just our standing inside them. In the law, that means we should wreck the wall between rational and emotional argument.

6. Conclusion

Helen was too beautiful. After she left her husband in Sparta for a Trojan, the two civilizations had to fight about it for ten years. Hers was the “face that launched a thousand ships.”

The American legal system thinks beauty is a menace, too. Describing the rationale behind limiting speech, Justice Oliver Wendell Holmes said that “eloquence may set fire to reason.”²⁴ Beauty makes people irrational, and—just like three milennia ago—violent.

It’s true that beauty and eloquence are powerful. Your instincts respond to them. Because you don’t like feeling vulnerable, sometimes you whip out your reason at inappropriate times and say to powerful, feminine things, “I am not afraid of you. I defy you. I have a penis.”²⁵

Don’t be such a wimp. Letting emotions out of the closet and into the courtroom is a risk, but it’s a worthwhile one. The worst that can happen is that good storytellers and attractive victims take over the world. More likely, people will respect the legal system more because “technicalities” will matter less, because judges will emotionally persuade people to respect them, and because it will actually be better. As Gregg Easterbrook would say, that’s a fifty percent chance of a neutral outcome and a fifty percent chance of an excellent one, so we should give emotionalism a try. Expose your heart, not your penis.