Periodic Reporting for period 5 - JUSTEMOTIONS (The construction of objectivity - An international perspective on the emotive-cognitive process of judicial decision-making)
Période du rapport: 2024-09-01 au 2025-02-28
While research from several disciplines show that rational decision-making includes cognitive as well as emotional processes, and that emotion management is part of legal practice generally, empirical studies in real life situations showing how emotions impact the decision-making process still remain scarce. The JUSTEMOTIONS project fills this gap by studying and comparing the emotive-cognitive components of legal decision-making in criminal cases in different legal systems.
For people to comply with the law they must trust the judicial system to uphold rational and objective justice; trust that the courts make unbiased and impartial decisions. Objective decision-making is important both for the individuals affected by the decision, and for the public reproduction of trust in our courts. Therefore, objectivity can be seen as a foundation for the rule of law.
However, research has shown that the conventional legal understanding of objectivity as “pure reason”, without body and emotion, is problematic and builds on a false dichotomy between rationality and emotion. Rational decision-making requires facilitating emotions, for instance interest in the task and motivating emotions, such as professional pride in correct procedures and distaste for waste of time, as well as the ability to ‘feel’ the consequences of alternative actions. For legal professionals this means that objective decision-making relies on emotional information and that own emotional experiences influence for example how a person attributes blame.
Through a comparative and multi-method qualitative design, including court observations, interviews, and shadowing of legal professionals, the JUSTEMOTIONS project study the decision-making process from prosecution, lower court, to the court of appeal in three countries: Sweden, USA and Italy. These countries represent different legal systems (common and civil criminal law) and vary in emotional expressiveness (e.g. the Swedish subtle emotional regime versus the more expressive Italian). By contrasting decisions of three crime types – fraud, domestic abuse, and homicide – in different legal instances and in different countries, we can identify and describe common features of the decision-making process based on actual practice.
This JUSTEMOTIONS project disentangles how emotions come into play in a rational process that we have previously understood to be exclusively cognitive. We secure important theoretical clues into the subtle emotions, such as curiosity, doubt and certainty, which undergird knowledge seeking and evaluation, and disclose how the cultural context influences emotions in settings that all share the ideal of un-emotional objectivity. The project furthermore develops a powerful and stringent methodology that lead to concise and rich descriptions of decision-making in real life practice. The broad social relevance of the JUSTEMOTIONS project lies in its clarification of the tensions between common sense justice and legal justice, a tension that in some cases has brought to question the legitimacy of the legal system.
For people to comply with the law they must trust the judicial system to uphold rational and objective justice; trust that the courts make unbiased and impartial decisions. Objective decision-making is important both for the individuals affected by the decision, and for the public reproduction of trust in our courts. Therefore, objectivity can be seen as a foundation for the rule of law.
However, research has shown that the conventional legal understanding of objectivity as “pure reason”, without body and emotion, is problematic and builds on a false dichotomy between rationality and emotion. Rational decision-making requires facilitating emotions, for instance interest in the task and motivating emotions, such as professional pride in correct procedures and distaste for waste of time, as well as the ability to ‘feel’ the consequences of alternative actions. For legal professionals this means that objective decision-making relies on emotional information and that own emotional experiences influence for example how a person attributes blame.
Through a comparative and multi-method qualitative design, including court observations, interviews, and shadowing of legal professionals, the JUSTEMOTIONS project study the decision-making process from prosecution, lower court, to the court of appeal in three countries: Sweden, USA and Italy. These countries represent different legal systems (common and civil criminal law) and vary in emotional expressiveness (e.g. the Swedish subtle emotional regime versus the more expressive Italian). By contrasting decisions of three crime types – fraud, domestic abuse, and homicide – in different legal instances and in different countries, we can identify and describe common features of the decision-making process based on actual practice.
This JUSTEMOTIONS project disentangles how emotions come into play in a rational process that we have previously understood to be exclusively cognitive. We secure important theoretical clues into the subtle emotions, such as curiosity, doubt and certainty, which undergird knowledge seeking and evaluation, and disclose how the cultural context influences emotions in settings that all share the ideal of un-emotional objectivity. The project furthermore develops a powerful and stringent methodology that lead to concise and rich descriptions of decision-making in real life practice. The broad social relevance of the JUSTEMOTIONS project lies in its clarification of the tensions between common sense justice and legal justice, a tension that in some cases has brought to question the legitimacy of the legal system.
First, we have developed a theoretical toolkit for comparative data analyses. We have published a chapter on “Comparing Culturally Embedded Frames of Judicial Dispassion” where we argue that the Western legal systems share an ideal of emotionless law, but that the differences in how emotions nevertheless seep into the legal sphere depend on how emotions are understood and allowed in the larger national contexts. In another conceptual article “Making Independent Decisions Together: Rational emotions in legal adjudication”, we show that the regulated procedure of rational decision-making in court influences how emotions come into play. Different emotional processes are actualized at different stages and the legal professionals need to balance demands for independence and collaboration. A third conceptual article “(Dis)passionate law stories: the emotional processes of encoding narratives in court” focuses how the transformation of evidence into legal codes regulates emotional attunement with the narratives told and evaluated in court. A forth article develops the concept of emotional capital to understand how status and authority can be both reproduced and challenged in the production and evaluation of evidence in court.
Second, our empirical analyses encompass both individual emotions/professions/countries and comparisons between countries/legal systems. In the book “Rational anger” we analyse systematic ways in which legal professionals use anger in legal assessments and problem-solving and identify differences linked to legal system and country specific general values. In several articles and a book in prep. we trace the unfolding and regulation of epistemic emotions, such as interest, doubt, surprise, and certainty, in legal deliberation. The articles analyse discrete emotional processes, such as sympathy, uncertainty, trust, and doubt. The books unveil differences in how morality enters into legal deliberation, and how different forms of truths (legal vs historical/substantive) can carry different weight and enter at different points in the legal process depending on cultural values and legal traditions.
Second, our empirical analyses encompass both individual emotions/professions/countries and comparisons between countries/legal systems. In the book “Rational anger” we analyse systematic ways in which legal professionals use anger in legal assessments and problem-solving and identify differences linked to legal system and country specific general values. In several articles and a book in prep. we trace the unfolding and regulation of epistemic emotions, such as interest, doubt, surprise, and certainty, in legal deliberation. The articles analyse discrete emotional processes, such as sympathy, uncertainty, trust, and doubt. The books unveil differences in how morality enters into legal deliberation, and how different forms of truths (legal vs historical/substantive) can carry different weight and enter at different points in the legal process depending on cultural values and legal traditions.
The JUSTEMOTIONS project is the first to compare how emotion and cognition are intertwined in real legal decision-making in different countries and legal systems. The project has produced in-depth analyses of each country as well as comparisons across countries. The ethnographic approach with fieldwork in several countries allow for fine-tuned comparisons of cases and interactions in courts as well as analyses of how differences and similarities across countries are embedded in cultural and relational structures. This means that we identify and characterize the influence of discrete epistemic emotional processes as well as relational and cultural practices of the larger society in which the decision-making take place. We show that features such as truth, morality, and independence can have different weight and enter at different points in the legal process across different countries or systems.
A major achievement in the JUSTEMOTIONS project is the unique data set that we have acquired. In particular, we have managed to gather empirical data from real life deliberations in both first and second instance courts. By being able to combine observational data from hearings and deliberations with interviews with the legal professionals on these observations, as well as their written judgments and opinions, we gain an exceptional in-depth understanding of how legal decision-making actually occur. Previous research on court deliberations to a large extent build on data from experiments and mock jurors and our first-hand knowledge of the reality of deliberations by legal professionals render unique contributions to this field of research.
A major achievement in the JUSTEMOTIONS project is the unique data set that we have acquired. In particular, we have managed to gather empirical data from real life deliberations in both first and second instance courts. By being able to combine observational data from hearings and deliberations with interviews with the legal professionals on these observations, as well as their written judgments and opinions, we gain an exceptional in-depth understanding of how legal decision-making actually occur. Previous research on court deliberations to a large extent build on data from experiments and mock jurors and our first-hand knowledge of the reality of deliberations by legal professionals render unique contributions to this field of research.