In response to Dean Martha Minow's 2014 Brennan Center Jorde Symposium Lecture, Forgiveness, Law, and Justice, 103 Calif. L. Rev. 1615 (2015), available here.
Can we use legal institutions to cultivate forgiveness after mass violence, genocide, or pervasive group-based injustice? This is the question Dean Martha Minow asks in her provocative and pathbreaking Jorde Lecture. Yet she also poses a question that is simpler and broader in its reach: Should we attempt to use law in a purposive way to shape or foster human feeling? Both questions, as Minow acknowledges, evoke skepticism from those who see law as a field of objectivity and reason, or those who view law as ineluctably and exclusively bound to norms such as consistency, predictability, and the resolution of discrete controversies. However, as I argue in this Essay, these questions also elicit doubts from a less probable group of critics: scholars who have come to view law and emotions as deeply intertwined. Although Minow is less focused on this group of critics, their concerns merit close attention; they frame an important set of questions facing this emerging field of scholarship. Most law and emotions scholars agree that we can use a rich, interdisciplinary understanding of human emotions to assess, critique, or revise legal rules and institutions. But there is more ambivalence about whether we can or should use the instrumentalities of the law to encourage or shape emotions in socially ameliorative ways. Although Minow's primary focus is on probing the instrumentalities of repair following mass violence, her essay provides a clear model of how we might pursue this second possibility as well, using the law's potential to support, foster, or cultivate pro-social emotions.
In Part I, I offer a brief outline of the scholarship on law and emotions, which distinguishes two facets of its effort. The predominant strand of analysis, described in Part I.A, examines emotion's effects on law, defined as legal doctrine or the work of legal actors. A second body of work, explored in Part I.B, investigates law's effects on emotions, contemplating purposeful efforts to probe, incentivize, or cultivate emotions through law. This second strand of analysis has proved more controversial among law and emotions scholars, particularly where it envisions using law to mobilize or promote moral or other pro-social emotions. To illuminate this controversy, I examine several works by law and emotions scholars that reflect such skepticism. Though the work is varied, and for the most part focuses only on specific efforts to encourage or cultivate particular emotions, it reflects several common concerns or assumptions. First, it views purposive efforts to cultivate specific emotions as a novel undertaking: a departure in the deployment of legal institutions, if not indeed a risky turn in law and emotions scholarship. Second, this work does not necessarily interrogate the term law; it focuses—as do most of the proposals it considers—on conventional legal settings like criminal trials, hearings, or appellate decision making. Third, this work evinces two distinctive concerns about the larger project of fostering emotion: that it may impinge in a coercive way on litigants or other affected parties, or that it may lead to the performance of sham emotions. Fourth, because this work frequently offers a critique without pursuing a normative alternative, it creates ambiguity about whether critics reject the larger project, or simply specific iterations of it, and how they view the larger ends of legal institutions.
In Part II, I examine Minow's treatment of law and forgiveness. Although Minow shares many of the concerns surveyed in Part I.B, her analysis departs in several ways from these efforts to analyze the legal cultivation of emotions, and provides a model for those who might embrace this goal. In contrast to scholars who view the use of law to foster emotion as a departure, she sees emotion as already subject to construction and influence by law, making purposeful cultivation not anomalous but self-aware and responsible. But Minow also conceives of law more broadly as a plural set of institutions and processes that work in concert with efforts by private individuals and groups. Law, in this view, often works in a subtle or stagewise fashion to shape a variety of perceptions and attitudes that fuel forgiveness and contribute to repair. These varied and often indirect legal influences also impinge less dramatically on their participants. Finally, unlike many law and emotions scholars, who reflect uncertainty or ambivalence about whether their inquiry into emotions should affect the traditional goals of legal institutions, Minow frankly declares law to be a means, which can serve the ends of harmony, compassion, and human growth. This loosening of the tether between legal instrumentalities and traditional rule of law objectives frees efforts to engender emotions from presumptions of illegitimacy. It also makes room for institutional experimentation and empirical appraisal, two features of Minow's approach that reduce the risk of taking law beyond its traditional domain.