Emotions and Judicial Discretion

Nicola Muffato

1. Introduction

Emotionally driven behaviors are pervasive in every domain of human

life, including legal practices. Indeed, in the last forty years (at least)
this platitude has become the starting point for a more rigorous
consideration: researchers from different disciplinary fields –
personal/individual and social psychology, legal sociology and
anthropology, behavioral economics, neurosciences – have tried to
describe, explain, analyze, and measure the impact of positive and
negative affections (feelings, emotions, agitations/affections, moods,
and sentiments) on legal decisions. In legal philosophy and
jurisprudence, the increasing attention to these empirical researches –
particularly to the great amount of neuroscientific discoveries in the
last decades – has recently flown into a larger scholarship labeled
“law and emotions” (henceforth: L&E)1.
Such studies focus on different legal “players” – framers and
legislators, professional judges2, prosecutors and police officials,
bureaucrats, advocates and academic lawyers, (“real” and “mock”)
jurors, lay citizens – and “settings” – e.g., the debates and negotiations
that lead to specific choices and policies implemented by
constitutional and legislative law making and drafting3, the
investigations and examinations of the police, the strategies and
appreciations of the prosecutor before a legal proceeding, the different
phases of a trial or appeal judgment, the professional relations
between the advocate and her client, etc. Legal theory is called to
draw a general lesson from this new piece of empirical knowledge and
analyze its impact on the pattern of general legal concepts (norm,
justification, rule of law, responsibility, mens rea, defense, subjective
mitigating circumstance, etc.) which articulates our legal practices.
The main objectives are, broadly speaking, deconstructive and
reconstructive: to debunk the formalist and hyper-rationalist myth of a
(possible) dispassionate legal decision-maker4 and to show how the
various affections of the legal players impact on their judgments at
every stage of the deliberative reasoning, with different strength and
effects5. But a related purpose is openly evaluative: to assess which
effects of these affections are positive and should be promoted and

1
For an introduction and a reasoned map of topics, see Maroney 2006; 2011a;
Abrams and Keren 2009; Bornstein and Wiener 2010.
2
Cf. Guthrie, Rachlinski, Wistrich 2007.
3
Cf. West 2017 (2016), focusing on the emotions “produced” by the law. A
symmetric field of research, which has produced a voluminous literature in political
theory and cognitive psychology, concerns the emotions and heuristics that lead to
legislative decisions: cf. Gigerenzer and Engel (eds.) 2006.
4
Cf. Maroney 2011a; Mindus 2017.
5
The relevant literature derives from the studies in cognitive psychology and
behavioral economics, particularly from the seminal researches of Paul Slovic on the
so called “affect heuristic”: cf. Slovic, Finucane, Peters and MacGregor 2002;
Gigerenzer and Engel (eds.) 2006.
which ones are negative and ought to be avoided in the light of
specific epistemic goals and moral values6.
Legal realism, in his three (Scandinavian, American, and Italian)
flavors, traditionally pursued both tasks and, after the “naturalistic
turn” that has gained a progressive credit in the social sciences, it
seems in a better position to claim a methodological vantage point
over the still dominant conceptual jurisprudence in recruiting the L&E
scholarship. In this paper, I’ll take this claim seriously and try to
identify some philosophical checkpoints it needs to pass. More
precisely, I will deal with the combination of two naturalization
strands, in emotion theory and jurisprudence respectively, and its
implications on the quite vexed question of judicial discretion.
In §2 I’ll sketch the general lines of some broad conceptions of
emotions and explore their main philosophical commitments. §3 will
be devoted to the central topic of the rationality of emotions. In §4 I’ll
present the central claims of legal realism and their conceptual
relations with (a) the main tenets of a “naturalizing” approach to
jurisprudence and (b) the different conceptions of emotions. In §5 I’ll
try to reconstruct some methodological challenges a naturalistic
account of the role of emotions in law has to face, and to expose its
structural limitations.

2. Conceptions of emotions

2.0. Emotion studies are still waiting for a generally accepted

methodological and theoretical framework. As a consequence, there’s
no agreement in the definition of “emotion”. Indeed, as Andrea
Scarantino and Ronald de Sousa7 aptly observed, the very definitional
enterprise is subject to two different, potentially conflicting,
requirements:
(1) compatibility with linguistic usage and ordinary psychological
concepts;
(2) theoretical fruitfulness and predictive success.
Philosophical definitions are normally descriptive and tend to
privilege (1), even if this may seem to lead (and sometimes leads) to
conservativism and quietism; scientific definitions, on the other hand,
are totally or partly stipulative, point to an explanation rather than a
description, and tend to privilege (2), even when this runs against
some central nodes in the conceptual articulation of ordinary language
– a replacement option8 which can lead to either eliminativism9 or a
gradually softer revisionism. The above mentioned opposition
probably reflects the traditional distinction between two competing
views about the relations between philosophy (conceived as
conceptual analysis) and science, one aiming at sharpening the
understanding of human practices and preventing or disentangling
conceptual confusions, the other defending a continuity between the

6
Cf. Maroney 2011b.
7
Cf. Scarantino and de Sousa 2018.
8
Cf. Russell 2003; Barrett 2017.
9
Cf. Griffith 1997.
construction of empirical theories and the philosophical elucidation of
their logical and ontological commitments.
Scarantino and de Sousa also identify a set of challenges a conception
(or a theory) of emotion has to meet:
(a) to explain and/or offer a perspicuous classification of the
differences between the emotions;
(b) to account for the intentionality (aboutness or directedness) of
emotions;
(c) to elucidate the action tendency and motivational force of
emotions;
(d) to account for the phenomenology of emotions (and, I shall add,
for the possibility that non-human animals experience emotions10).
The combinations of the solutions to these different problems can be
arranged within two axes whose poles are
(i) radical cognitivism vs. radical non-cognitivism and
(ii) naturalistic (materialist-physicalist-mechanistic or functionalist-
neurobiological) reductionism vs. anti-reductionism.

2.1. Defenders of radical cognitivism hold that emotions are

cognitions (constitution view)11 or felt tendencies which are caused
by cognitions (causal view), that is by dynamic appraisals and
reappraisals of the presence, relevance and consequences of some
eliciting external circumstances and stimuli12. Even though this
cognitive aspect distinguishes emotions from appetites (e.g., hunger,
thirst, lust) and other sensations (e.g., pain, itch, tickle, overall
weariness), different authors come to conceive it in different ways13,
as in the following antithetic characterizations: conceptually
articulated propositions vs. pre-linguistic non-conceptually articulated
mental representations; conscious and slow vs. unconscious and fast
thoughts; reflective and deliberate vs. intuitive and automatic
judgments; perceptual and inferential beliefs vs. evaluative judgments.
The cognitivist describes the arousal of an emotion as the following
chain of events:
(I) external event or object
(II) cognition of (perception of/judgment or belief about) the
external event or object
(III) feeling and outward behavioral manifestation (emotional
utterances express and are conceptually tied to emotions)14.
However, while all agreeing that emotions are outward-facing and
representational, cognitivists can side with either reductive naturalists
or anti-reductivists.
In the first case, cognitivists coming from affective science studies
claim that the evolutionary cognitive functions of the neurobiological
hardwired mechanisms and processes which elaborate the brute
sensory inputs produce adaptative responses in the form of mental
representations, action tendencies and physiological changes which

10
Cf. Deigh 2004.
11
Cf. Solomon 1976; 1980; Nussbaum 1990: ch. 12.
12
Cf. Arnold 1960.
13
Cf. Deigh 1994; Moors 2007; Reisenzein 2006: pp. 944-948.
14
Cf. Hutchinson 2008: 63.
are subjectively experienced as feelings: these outputs are the
emotions15. Such a version responds to challenges (a), (c) and (d) in
naturalistic terms; however, since it aims at a causal explanation, it is
generally weak against challenge (b), which asks for a reason-based
explanation. In the second case, cognitivists (mostly analytic
philosophers) give pride of place to the conceptual structure, social
significance, constructive character, rationality, and intentionality of
emotions16. Since the social meaning and the intentional content of
emotions allow their identification (according to the scholastic dictum
obiectum specificat actum) and differentiation, and their assessment as
correct (reasonable) or incorrect given a complex narrative17 relative
to certain background circumstances of elicitation, this variety of
cognitivism fares well with challenges (a) and (b), but faces some
serious difficulties with challenges (c) and (d)18.
Defenders of radical non-cognitivism deny the thesis that cognition is
essential to emotion, both in the sense that emotions are cognitions
and in the sense that emotions are caused by cognitions: cognitivism
rests on an over-intellectualization of the physiology and
phenomenology of emotion arousal. Emotions are embodied: they
consist in peculiar feelings constituted by sensations/perceptions (or
subceptions19) of physiological changes in the autonomic nervous and
motor systems, as they occur20. They are a-rational brute facts that
pre-empt conceptualization and cause human behaviors, even though
they can be sometimes accompanied or followed by conscious
thoughts and reflective judgments.
Non-cognitivist theories are mostly reductionist, since they tend to
equate emotions to physical events (causes or signals) enacting
reactions and to assimilate their intentional objects to complex neural
configurations or somatic markers, relying heavily on neuroscience
and evolutionary biology. They offer sophisticated answers to the
explanatory challenges (a), (c) and (d), but – just like naturalist
cognitivists – are not interested (or in trouble with) challenge (b). The
non-cognitivist describes the arousal of an emotion as the following
chain of events:
(I) external event or object
(II) bodily reaction and physiological changes
(III) sensation/perception of the physiological changes21.
The non-cognitivist camp is divided when it comes to the
representational character of emotions: some authors claim that
emotions lack representational properties22, while others argue that the
latter may be instantiated by the non-cognitive processes of affective
systems.

15
Cf. Lazarus 1991.
16
Cf. Kenny 1963; Foot 2002 (1963); Taylor 1975; Harré 1986; Nussbaum 1990;
2001.
17
Cf. Wollheim 1999: ch. 1.
18
There are also authors who merge intentional and causal properties of emotions to
cope with challenges (b) and (c). Cf. Nussbaum 2001.
19
Cf. Robinson 2004.
20
Cf. James 1884; Lange 1885; Porges 2011 (especially part 3).
21
Cf. Hutchinson 2008: 63.
22
Cf. Hutto 2012.
2.2. Nonetheless, cognitivism and non-cognitivism need not be
radical. Some non-cognitivist authors23 openly recognize that
emotions are evaluative and have an intentional component, but they
deny that this features make them cognitive – i.e. conceptually
articulated, propositionally structured and harbored by some higher
cortical function systems. Jesse Prinz, for example, held24 that
emotional appraisals are “embodied”: they consist in inner physical
responses to the perception of bodily changes which are elicited in
particular circumstances by a reliable somato-sensory subsystem,
shaped by evolution, with the distinctive function of representing
innate concerns – that is, of tracking specific kinds of intentional
objects (“core relational themes”25) – and are associated to valence
markers evaluating them positively or negatively and motivating the
subject to act26. One can have an emotion without mastering certain
concepts and without a prefrontal cortical activation: it is sufficient
that the amygdale “evaluates” the vagal tone of the parasympathetic
system causing certain sensations and that it triggers a bodily change
which psycho- and teleo-semantically represents a core relational
theme. The relations between
(i) the external impinging events and the emotion and
(ii) the emotion and its object
are both causal.
On the other hand, moderate cognitivists accept that a central role in
the phenomenology of many emotions is played by “gut reactions”,
but affirm that this doesn’t prevent an equally important role for
cognition. On the contrary, the two are deeply and inextricably
intertwined: feelings may have intentional objects and a mind-to-
world direction of fit27, if they are evaluative. Some authors
understand cognitions as non-conceptually articulated higher functions
of our brain associated to particular bodily changes and behavioral
tendencies28 or assume that appraisals are felt29 and action-requiring –
a moderate cognitivism that appears quite akin to its moderate non-
cognitivist rivals: the difference lies in the explanation of the
empirical data and experiments about the involvement of the
subsystems performing higher cognitive functions (e.g., specific areas
of pre-frontal cortex or of the amygdala30).
Other authors, such as de Sousa31, suggest that emotions are patterns
of salience which make possible to economize the perceptive and
cognitive efforts by selecting those aspects of the situation which are
associated with probable or recurrent behavioral responses and

23
Cf. Roberts 2003; Prinz 2004; 2007; Robinson 2005.
24
He recently changed his mind opting for a more radical non-cognitivist view: see
Schargel and Prinz 2018.
25
Cf. Lazarus 1991.
26
Cf. Prinz 2004: ch. 3; 2007: §§ 2.1.3-2.1.5.
27
Cf. Goldie 2000: ch. 2.
28
Cf. LeDoux 2017.
29
Cf. Greenspan 2004; Goldie 2004.
30
Recent studies offer evidence that typical appraisals and somatic emotional
responses are neuroanatomically and neurophysiologically integrated: cf. Sander,
Grafman and Zalla 2003.
31
Cf. de Sousa 1990.
deliberate actions. This salience, however, may be directly linked with
the utility (adaptivity) of emotions in solving a frame-problem in those
cases in which their very arousal suspends or substitutes the rational
faculties, for example those that govern the application of a rule of
thumb32.
The above depicted scenario is complicated by a distinction between
basic and complex emotions, which is not generally accepted among
emotion theorists33. A basic emotion (such as fear or anger) can be
traced back, with a certain degree of precision, to stable and robust
patterns of measurable bodily changes which are accompanied by
(mostly localized) felt sensations. A complex emotion (such as proud
or gratitude), on the other hand, is not easily amenable to such a
somatic mapping and seems to require (instead or in addition) a more
sophisticated appraisal. Moreover, the object of a complex emotion
can be another emotion or the lack of another emotion (e.g., a person
may feel ashamed of having feared a certain object or guilt of not
having felt regret).
At first sight, non-cognitivism is better equipped to account for the
phenomenology of basic emotions, while the social-constructionist
versions of cognitivism seem to offer a more complete account of
complex emotions. Cognitivists hold that the evaluative ingredient in
complex emotions is a conceptually articulated judgment or a higher
function of our brain and autonomous nervous system. A non-
cognitivist such as Prinz claims instead that complex emotions are
either blends of basic emotions or basic emotions whose eliciting
conditions have been recalibrated by the somato-sensory subsystem.

2.3. As we have seen, both cognitivist and non-cognitivists can adopt

a naturalistic stance and reduce all emotions (or at least basic
emotions) to bodily sensations elicited by the changes in the
autonomous nervous system. This move implies that emotions are
seen as natural kinds34 and that the corresponding concept is
prescriptively re-defined and kept separate from the ordinary one. The
latter conclusion is rejected by anti-reductionists, who maintain that
emotions are more than neural firings: they involve social and/or
psychological constructions35 and a central meaning dimension36.
According this second point of view, we learn to use emotion words
as names of felt emotions or character traits with public
manifestations, not of (often hidden) biological processes or functions.
Emotions tend to manifest in typical expressive behaviors and
voluntary, involuntary, or partly involuntary actions and reactions.
However, these expressions are not merely caused “symptoms”, but
part of the socially constructed criteria of identity for the various
emotions. These have both natural and conventional traits, but a

32
Cf. Elster 1999: 291. One may object to this remark that epistemic emotions (e.g.,
curiosity, astonishment, interest, intellectual courage) seem to promote – rather than
impair, suspend or substitute – the rational faculties. However, the emotional nature
of epistemic “emotions” is controversial.
33
For a criticism, see Clark 2010; Lindqvist et al. 2012.; Colombetti 2014: ch. 2.
34
Cf. Ekman 1992; Prinz 2004: ch. 4.
35
Cf. Rorty 1980.
36
Cf. Hacker 2008 (2004).
cognitivist assumes that the relevance of the former is not independent
from the pragmatic function of the latter. Jon Elster37 lists the
following seven characterizing features of emotions: qualitative feel,
cognitive antecedents, intentional object, physiological arousal,
physiological expression, valence on the pleasure-pain dimension,
characteristic action tendencies.
The naturalistic reductions of emotion assume that the concept of
emotion has necessary and sufficient conditions referring to brute
facts38. The anti-reductionist conceptions hold that brute facts may be
referred to as necessary or typical, but not sufficient, conditions for
the possession of the concept of emotion. Indeed, they often admit that
a unifying classification according to necessary and sufficient
condition could be impossible at all: different emotions do not share
common or prototypical properties, not even full blown evaluations,
but alternative clusters of characteristics. Moreover, it is very dubious
that it is always possible to specify the features of an emotion-type
which are relevant for individuating a token independently from the
features of particular persons and contexts39.
Anti-reductive cognitivism employs the mentalist vocabulary (of
beliefs, desires, judgments, etc.) and state that each emotion has a
distinct formal object40 – the object under that description which must
apply to it if it is to be possible to having an emotion about it (e.g., the
object of fear is what is feared because it is described as dangerous or
harmful) – with which it entertains an internal relation, and a material
specific object, that is an instantiation of the represented formal object
relative to a situation41. Emotions have then a conceptual structure
which can be analyzed paying attention to the language games
involving emotive expressions, the social conventions and the
normative aspects of the contexts in which they are played.
Peter M.S. Hacker, for example, distinguishes the emotions from
agitations and moods by examining their conceptual grammar42.
While emotions may motivate actions, agitations are modes of
reaction, short-term affective disturbances or states (e.g., being or
feeling surprised, horrified, delighted) caused by perceived or
otherwise learned unexpected events that temporarily inhibit
motivated action (e.g., a subject can be paralyzed with shock, but
doesn’t act out of shock). Moods (such as melancholia or
cheerfulness) are states of mind which may be fleeting or persistent
(and dispositional): their main characteristic consists in being linked
not to specific actions, but to manners of behavior; they color
thoughts, evaluations and imagination and are thus only indirectly tied

37
Cf. Elster 1999: p. 246.
38
Cf. Damasio 1994: 177. Note that reductionists need not assume that emotions are
innate: they may accept causal explanations that make our body’s aptness to elicit
emotional somatic responses depend on social processes of habituation, conditioning
and education. However, they cannot accept that these processes involve higher
cognitive functions or the understanding of the social significance of expressive
behaviors.
39
Cf. Pugmire 2006: pp. 21-22.
40
Cf. Kenny 1963: ch. 9.
41
This aspect distinguishes emotions from appetites, which lack specific objects.
42
Cf. Hacker 2008 (2004): pp. 46-47. Cf. also Frijda 1994.
to intentional objects and actions, and to reasons and motives43.
Emotions can be long-standing and attitudinal too: but they always
have formal and specific objects and are directly linked to actions.
However, this distinctions are only gradual, since some occurrently
felt emotions resemble to agitations, while others (attitudinal or not)
can fade into moods.
When asked to account for the motivational force of an emotion, anti-
reductive cognitivists usually adopt two different strategies. The first
consists in separating the essential cognitive dimension of emotion –
the evaluative judgment conceived as a perception of values (events or
states of affairs intrinsically important for the well-being of the
subject) and concerns44 – from the motivating dimension, often
couched in the causal terms of behavioral tendencies and impulses.
The second consists in taking an emotion to be the interlocking
combination of a factual belief (or a judgment), a pro-attitude, such as
a desire, and, according to many authors, a feeling or affect45. The
emotion arises when the subject believes that something relevant for
the satisfaction or frustration of a desire is the case. The belief
provides the emotion with a representational property, the desire
supplies the emotion with its directedness: their combination instills
formal and specific objects in the emotion. The desire and the feeling
give to the emotion a characteristic action-requiring motivational
force. However, emotions also generate desires and beliefs as
consequences. For example, if a person P fears x (the object of her
fear), she believes that x is dangerous and desires to avoid it; if P
believes that doing y is a way to avoid x, then she will desire to do y.
P’s desire to do y is implied by the emotion and the belief that doing y
is a way to avoid x. I shall return on the emotional generation of
desires and beliefs in the next section.

3. Emotions and rationality

3.1. Can emotions be rational? Treating such a problem as a yes-or-no

question would mean to trivialize it. In fact, as we have seen in the
previous section, emotions can be considered and studied either as
episodes in a causal chain or as intentional phenomena. As a first
approximation, it may be said that intentional explanations, but not
causal explanations, involve attributions of rationality – indeed, this is
part and parcel of the “principle of charity” that governs human
communication. However, in the context of the explanation of human
action, things are a bit more complex.
Let us start by highlighting some basic differences between language
games involving either reasons or causes.

43
Some moods (e.g., depression) do not even indirectly motivate action: they are not
action-requiring.
44
Cf. Nussbaum 2001: 1-5, 23-25; Roberts 2003: 72-80, 317.
45
Cf. Searle 1983: pp. 29-36; Gordon 1987; Green 1992: ch. VI; Goldie 2000: ch. 5.
For a criticism, see Döring 2003. The belief-desire strategy has a naturalist version
too: cf. Reisenzein 2009.
(i) We say that a person “has a reason” to do x (or believe that y), not
that she “has a cause” to do x (or believe that y).
(ii) We say that the reasons to do x (or believe that y), but not the
causes of a certain effect, are as such good or bad, strong or weak.
(iii) A person can act in the light of (understanding and accepting) a
reason, but not of a cause.
(iv) A person can give another person a reason for doing x (or
believing that y), thereby making it explicit how such an action (or
belief) can be understood and so offering the possibility of evaluating
and eventually accepting it. In this sense, a reason can be shared with
someone because it is meaningful and meaning has a public
dimension. A cause can be reconstructed and recognized as effective,
but explaining a cause is not sharing it, it doesn’t rely on its
meaningfulness; nor does it make it evaluable (as good or bad) or
acceptable by another person. The primary function of giving a reason
is that of justifying intentional actions.
(v) A person can give a reason to justify her conduct; on the other
hand, whenever she alleges a cause for her action, she provides an
excuse. If, asked for a reason of her conduct, a person answers
indicating a cause (for example, an emotional trait of her character
such as being passive-aggressive or the sudden arousal of a basic
emotion such as fear), we can conclude that she rejects – completely
or partially – her accountability for that conduct, appealing to the
communicative partner’s knowledge of how a person can be
conditioned, influenced, dominated by external events and
circumstances.
(vi) A chain of causal explanations is open; a chain of justifications
and rational explanations is closed when it reaches a “bedrock” of
shared ways of behavior.
(vii) In a causal explanation, the relation between the cause and its
effect is empirical (external); in a rational explanation, the relations
between the action and its intention, and the intention and its practical
reason are conceptual (internal). However, it is not the kind of
phenomena (to be explained) but the structure of the explanation that
defines a rational explanation. The same event may be regarded both
as a cause and as a reason.
(viii) A central feature of human nature is that we (are caused to)
regard ourselves as normally acting for reasons, that is as agents.
The previous assumptions suggest that I shall adopt neither a causal
(nomological or statistical) model of explanation of human action nor
the anomalous monism à la Donald Davidson, which states (or, rather,
postulates) that reasons are themselves causes. I submit that emotions,
understood as a blend of beliefs, desires (and feelings) can figure in a
rational explanation of action: this option involves a rejection of
radical non-cognitivism, according to which the proper account of
emotions and emotional behavior is causal. However, following
Elster, I shall take into consideration the causal dimension of emotions
too, to the extent that it interferes with the practice of justifying and
giving reasons for actions and beliefs.
In fact, since this practice depends on the human ability to reason;
since this reasoning ability can be studied focusing on the causal
processes it involves; and since emotions affect reasoning, then a
causal explanation can be offered for the impact of emotions on
reason-giving. When the subject offers a reason for her conduct
despite the fact she’s aware that she didn’t act on a reason, her
justification can be considered an ex post facto rationalization.
On the other hand, emotions can be adduced as practical reasons. Here
the emotions are indirectly related to the actions through the derivative
desires and intentions they generate and the beliefs in instrumental
relations (of the kind “doing x is the best way of achieving y”).
Moreover, a person may intend to act in order to experience an
emotion with a positive valence or to avoid experiencing an emotion
with a negative valence. Often, a subject intentionally acts to reinforce
a positive emotional valence or to reduce a negative emotional
valence.

3.2. According to Elster46, there are at least three different kinds of

issues concerning the relations between rationality and emotions. The
first refers to the rationality of the emotions themselves (cognitive
rationality); the second to the impact of emotions on the rationality of
belief formation, information acquisition and decision making; the
third on the possibility of a rational deliberation about which short-
term (occurrent) or long-term (attitudinal) emotions to induce in
oneself or in other persons.
Scarantino and de Sousa claim that the cognitive rationality of an
emotion can in turn be assessed along three dimensions: fittingness,
warrant and coherence47. An emotion is fitting if its formal object is in
fact instantiated: e.g., anger is cognitive rational whenever the angry
subject has effectively been offended. An emotion is warranted if the
subject experiences it on the basis of relevant and sufficient
evidence48: for example, fear of a shark is rationally warranted when a
subject immersed in the water perceives a big object with a triangular
fin swimming alongside her, even if that big object is actually just a
realistic fake shark). An emotion is rational whenever it is coherent
with the other attitudes of the subject, otherwise it is recalcitrant: for
example, it would be irrational for a subject to fear crows if she
believed that crows are not dangerous – her emotion would be
recalcitrant, that is incompatible with her belief; similarly, it would be
irrational for a subject to be jealous of a person she desires to avoid. A
radical non-cognitivist approach to emotions runs into troubles when
asked to account these rational dimensions of emotions.
One may want to add to these three features of cognitive rationality a
fourth aspect, at least partially depending on enculturation, related
with the intensity of the emotion experienced. An emotion is thus
rational when the intensity of its constitutive feeling (in the case there
is one) is proportional to the belief and pro-attitude that give it an
intentional structure.

46
Cf. Elster 1999: pp. 283-284. Cf. also D’Arms, Jacobson 2000.
47
Cf. Scarantino, de Sousa 2018: §10.1.
48
Or at least part of the available evidence: cf. Greenspan 1988: 76-77.
3.3. When it comes to strategic rationality49, emotions have been
traditionally understood as impairing rational decision – that is a
decision which is taken, given a certain pro-attitude, on a correct
process of belief formation based on the available information
acquired in an optimal way. This can happen when they
(1) cause a tendency to drive attention away from a certain task and/or
to act impulsively and/or to shortening the time perspective, without a
concern for acquiring more relevant information about the situation
and the consequences of one’s action;
(2) work as motivational biases subverting the processes of belief
formation, as in the case of cognitive dissonance and wishful thinking,
and distorting the processes of information acquisition, preventing
open-mindedness, as in the case of over-confidence in one’s ability of
estimating the probability of an event or the credibility of a piece of
information;
(3) push to an action which is not instrumental to the satisfaction of a
desire (as in the case of weakness of the will);
(4) shape the structure of a trade-off between their satisfaction and the
self-interest of the subjects who are experiencing them, at least in the
case of short-term emotions. Often, long-standing emotions exclude
considerations of self-interest from practical deliberations in which the
satisfaction of an emotion is involved (as in the cases of love and
revenge). In this kind of cases, emotions often instill partiality of
judgment.
In all these situations, emotions are seen as intervening causal factors
in decision-making, that is as processes or mechanisms affecting
reasoning, not as reasons. However, it has been forcefully argued that
emotions do also causally play a fundamental positive role in
deliberation: as we saw in §§2.2. and 2.3, they make relevant some
aspects of the situation and propel action providing the subjects with
motivations (for example, they can function as tie-breakers in
situations of indeterminacy, helping the subject to decide). As Elster
nicely remarks, without emotions there would be nothing to be
rational about50. In this sense, the biologic processes or mechanisms
that constitute emotions can surely be deemed adaptive. But adaptivity
seems quite different from rationality: the former, but not the latter, is
independent from the social practice of asking and giving reasons.
Emotions play a positive role also in revealing to the experiencing
subject and to others the pro-attitudes and beliefs she has, facilitating
self-knowledge, empathy and sympathy, three important ingredients in
personal realization and social cohesion.

3.4. At this point one might ask if emotions can be voluntarily

controlled in view of some goal, if not directly – because (a) emotions
are not actions, (b) a subject cannot decide what to desire, and (c) can
decide to believe that x without a supporting epistemic reason for x
only by resorting to some mechanisms that make one forget that

49
Cf. Elster 1999: pp. 285-286; 303-306.
50
Cf. Elster 1999: p. 301.
decision and renounce to the critical faculties of rationality51 – at least
indirectly, by planning the modification of the situations in which they
could arise, be magnified, or inhibited.
An affirmative answer seems quite implausible in the case of those
emotional perturbations which arise suddenly and spontaneously as
effects of an unpredictable external stimulus. Here, the best the subject
can do is try to limit their effects adopting minimization strategies –
for example, suppressing their overt expression in view of superseding
ends (e.g., impression management by compliance of social rules),
disengaging in considering the impact of the emotion (e.g., pretending
that it has extinguished) or repressing it52. On the other hand, the
subject can decide to avoid those situations in which it is probable that
she will be exposed to stimuli that will probably induce emotional
reactions which present costs in terms of the maximization of her
preferences. Similarly, she can put herself in situations in which the
expected arousal of certain emotions is seen as pleasant, useful or
appropriate. A related option consists in deploying conscious attention
to certain aspects of the environment, ignoring others. In all these
cases, the complication lies in the fact that contexts are generally
shifting and can be evaluated along different – sometimes conflicting
– dimensions.
It is important to note, moreover, that not all emotional perturbations
and attitudes can be induced or reinforced following a specific plan53
because
(i) more often than not the subject may do not know what to plan
for,
(ii) more often than not the emotions arise as by-products of a
context it is not within the powers of the agent to control,
(iii) planning can have emotional costs one desires to avoid.
An alternative strategy of emotional regulation consists in critically
reappraise the beliefs one has in the light of the available evidence,
assuming that a change in belief will lead to an emotional change. The
subject can engage54 in the reflective task of searching/making emerge
her implicit beliefs and check them against the evidence: if she
believes in the latter and in the fact that the evidence does not warrant
her now explicit beliefs, then, other things being equal, she will (be
caused to) cease to believe what the evidence does not warrant. The
problem is that it is often quite difficult to identify one’s implicit
beliefs and the background of evidence against which evaluate them.
Moreover, a change in belief does not a guarantee a change in the
correlative feeling.
The situation is even worst in the case of desires. It is rarely clear how
to suppress a desire without satisfying it and the fact that the subject

51
Cf. Elster 2013 (1984): pp. 49-51. Moreover, as Terry Maroney aptly remarked
(Maroney 2011b: p. 1512), were the emotion entirely controllable, it wouldn’t have
an informational and motivational value.
52
Cf. Maroney 2011b: 1506-1507.
53
Cf. Elster 1999: pp. 317-321.
54
The emoter can also disclose her emotions to engage other subjects in the
reappraisal: cf. Maroney 2011b: 1509.
decides not to act on its base is not sufficient to block the arousal of
the correlative feeling.

4. Judicial discretion: legal realism, naturalization, and emotions

4.1. The importance of emotions in law was stressed, long before

L&E, by legal realists. Axel Hägerström55 and Alf N.C. Ross56, for
instance, maintained an emotivist meta-ethical and semantic thesis:
normative and evaluative discourses do not describe peculiar objective
properties or entities of the world, but, in central cases, express (on the
side of their author) and/or call for (on the side of their recipient)
emotions and conative dispositions. Legal provisions are not
uttered/promulgated by a natural person, so their expressive function
can be contested57: but they surely call for the appropriate attitudinal
and practical reactions of their recipients – acceptance, prudential
concern, compliance. Ross relies on this assumption when he asserts
that a legal norm is valid whenever it is felt as binding by the judges.
American legal realists, such as Theodor Schroeder58 and Jerome
Frank59 (but also the more moderate Karl N. Llewellyn60) stressed the
role of emotions in the narrative reconstruction of the facts of the case
and their normative qualification. More precisely, they stated that
emotions61 influence the judicial view about the relevance of certain
facts of the case which are then brought back to a legal rule or
principle.
Indeed, as Brian Leiter has argued62, legal realists defend two main
theses regarding the process of judicial decision-making. The first
consists in the following anti-foundationalist claim: the battery of
“legal reasons”, that is the rules extrapolated through statutory
construction from the legal provisions (i.e., the “paper rules” of the
“law in books”) or the rationes decidendi reached by interpreting the
precedents – provisions and precedents identified by a theory of the
legal sources –, do not justify a unique authoritative solution to a legal
dispute. There are two versions of this thesis: the strong version
asserts that the indeterminacy of legal reasons is general and applies to
all cases, so that a judge always enjoys discretion in sentencing; the
soft version states instead that legal indeterminacy and judicial
discretion are limited to some classes of cases (“hard” cases).

55
Cf. Hägerström 1953: ch. III. An accurate reconstruction of Hägerström’s thought
can be found in Mindus 2009.
56
Cf. Ross 1945; 1959: §§ 2; 63-64; 85-86. See also Guastini 1982.
57
Cf. Olivecrona 1971: pp. 122-130; in this essay the author characterizes legal
norms in a non-voluntarist fashion as “independent imperatives”.
58
Cf. Schroeder 1918.
59
Cf. Frank 1930: pp. 137-138; 1949: p. 130.
60
Cf. Llewellyn 1960: p. 20; 2011 (1940): pp. 46, 51-62.
61
Nonetheless, legal realists generally treated emotions in a quite undifferentiated
way, as personal proclivities, grouping them with many other factors conditioning
the judicial decision. See Maroney 2011a: p. 666.
62
Cf. Leiter 2007: pp. 21-30.
By the word “discretion”, as Ronald Dworkin précised63, legal
theorists often mean three different aspects of decision-making: 1) the
non-mechanical application of a rule by argumentation; 2) the
unconstrained choice among various options; 3) the finality/non-
revisability of the solution reached in the above mentioned ways.
When arguing for the indeterminacy of legal systems, realists refer
mostly to the second sense of the term “discretion”: but a choice
unconstrained by legal standards may well be bound by other factors,
for example by emotions caused by legally irrelevant inputs or
judgments.
The second characteristic claim of legal realists is that the judges
respond primarily to their understanding and evaluation of the facts of
the case and only secondarily to the legal rules and reasons formulated
in provisions and precedents64. Since judges are asked to settle issues
despite the indeterminacy of legal reasons, a complete theory of
adjudication must take into account the extra-legal factors which lead
them to concrete and specific decisions.
According to Leiter, the most fruitful way to tackle this task consists
in abandoning the sterile task of analyzing the conditions under which
a judicial decision would be legally justified and replacing it – in a
Quinean vein – with a naturalistic methodology which prescribes to
employ the best available science to offer causal explanations of the
judicial behavior65. Such causal explanations – based on psycho-social
hypothesis about the behavior of the judges, about what they do more
than what they merely say or think they do – would allow lawyers and
legal scientist to predict legal “outcomes” with a reasonable degree of
success.
Recall the potentially competing requirements presented in §2.1: here
the recommended option for social psychology (and, plausibly, for
cognitive science) is accompanied by a disqualification of “armchair”
conceptual jurisprudence (but also of armchair sociology or
anthropology), accused of relying on epistemologically useless
intuitions. Leiter, for his part, asserts that the analysis of legal
concepts deserves credit only if it facilitates successful a posteriori
research programs and theories about adjudication. Indeed, accepting
a naturalistic program in this field means that the very philosophical
enterprise has to rely on empirical observations and theories – quite
along the lines of what happens in experimental philosophy. However,
he admits that these theories can also be cashed out in the mentalist
language of a folk psychology, such as that embraced by many
professional lawyers.
More interestingly, the rejection of rational explanations in favor of
the causal (nomological and statistical) approach is based on another
indeterminacy thesis, this time concerning the “extra-legal reasons” of
the judicial decision, which can be seen as part of an anti-objectivistic
meta-ethical stance.

63
Cf. Dworkin 1977: 31-33.
64
Cf. Leiter 2007: pp. 21-22. Leiter labels this thesis the “Central Claim” of legal
realism.
65
Cf. Leiter 2007: pp. 31-46; 273-275.
4.2. It is at this point that emotivism and emotion studies enter the
field. In fact, a naturalized theory of adjudication fits well – at least in
principle – with the naturalistic versions of cognitivism and non-
cognitivism about emotions. The empirical researches that support
these views could perhaps provide valuable instruments to the legal
theorist, showing how, even in the field of legal adjudication,
apparently governed by “slow” thinking/reasoning and by rules or
normative assumptions that prescribe dispassion, the behavior of the
decision-maker is subject to affect biases and emotional drives66 –
positive and negative: e.g., sympathy, anger, disgust, frustration,
compassion, indignation – connected with factual beliefs and moral or
political preferences (or ideologies).
L&E studies offer indeed a growing amount of interesting data, hints
and conclusions – mostly in the fields of fact-finding and sentence-
rendering – to the attention of legal theorists67. Here I shall linger on
three main topics. First, it seems reasonable to assume that emotions
imbue the judgment about the legal qualification of a fact even when
the relevance and admissibility of the available evidence is precisely
regulated by the law, while the personal sense of justice, the trust in
(or fidelity to) the legislator and the fear of guilt or shame, were the
sentence criticized or overturned, contribute to shape the extension of
judicial discretion in the interpretation of statutes and precedents.
The influence of the judge’s moral emotions is especially important
and deserves a specific – albeit brief – comment. We’ve seen in §§ 2.2
and 3.3 that emotions make practically (axiologically, normatively)
salient certain properties of the particular situation. Now, these
properties may well differ from those identified and articulated by
legal provisions and precedents. Even though the decision-maker has
been probably instilled with emotions – feelings plus legal endoxa:
factual beliefs, pro-attitudes, normative judgments – by her legal
culture and professional training, it is plausible to suppose that she
feels an inclination to act according to other beliefs and pro-attitudes,
which can conflict with the former. It is an open question – even if it
is dubious that it is an empirical question – whether the personal
“situation-sense” of a judge responds primarily to the emotions
inculcated by the her legal education or to other values she happened
to internalize. It is also debatable that the emotional identification of
the salient properties of a case depends on stable hard-wired bodily
patterns without any intervention of normative considerations and
rationalizations. A solution of this problem is related to the conception
of emotion one prefers.
Second, in promulgating normative provisions, legislators and framers
frequently employ (a) words and phrases infused with emotive
meaning (e.g., “thick ethical terms”) or (b) descriptions which

66
However, Frederick Schauer (cf. Schauer 2010: pp. 103-106) has rightly warned
emotion theorists against the tendency to move from researches on non-judges and
non-lawyers to conclusion about professional judges – a composition fallacy
facilitated by the ethical and logistical impediments in interviewing and making
experiments on the latter.
67
Cf. Anleu and Mack 2005; 2013; Anleu, Bergman Blix and Mack 2015; Guthrie,
Rachlinski and Wistrich 2015; Maroney 2015; Bergman Blix and Wettergren 2015.
presuppose the arousal of an emotion – often, a moral emotion – in a
certain class of circumstances: the construction of these provisions
asks for the understanding of the complex nature of each emotion-type
and its behavioral expressions, and that can in turn activate the
interpreter’s emotions.
Third, as we have seen in §3.4, there are many strategies and
techniques to regulate emotions and emotion behavior that a judge can
be trained to adopt. However, as a sociological fact, law schools and
faculties generally do not seek to teach them, and in the legal practice
they are engaged only episodically68. Now, the question is whether the
distinctive features of legal thinking – manifested in the legal
argumentation of possible interpretations of constitutions, statutes,
precedents and customs, in the judicial selection of the relevant law, in
judicial law-making and gap-filling, but also in the repetitious
craftwork of problem-solving – which constitute the core of their
expertise lend some resistance to the influence of emotions69.

5. Some methodological challenges

5.1. In this section I would like to put on the table some

methodological issues concerning the blend of naturalized
jurisprudence and naturalistic reductive conceptions of emotions. The
first point I would like to address is relative to a couple of dichotomies
– between philosophical foundationalism and naturalization, intuitions
about concepts use and scientific method – which lie at the basis of
Leiter proposal of methodological reform in jurisprudence, or at least
in the theory of adjudication.
I guess that everybody would grant a difference between the members
of each pair of postures, but presenting them as jointly exhaustive
amounts to a false dilemma. One can accept anti-foundationalism and
reject the thesis that philosophy is continuous with sciences, arguing
in favor of a functional difference between empirical propositions and
propositions describing conceptual relations (a difference that cannot
be equated to the analytic-synthetic distinction). It has still to be
demonstrated that Quine’s naturalized epistemology is superior, say,
to Strawson’s descriptive metaphysics. However, in the space of this
subsection I cannot defend the contrary opinion (I shall instead turn
later on some naturalist-reductionist thesis).
On the other hand, reducing conceptual analysis to intuition
mongering or armchair sociolinguistics strikes me as uncharitable, to
say the least. In fact, conceptual analysis has to do with public rules
governing the relations of compatibility, presupposition,
implication/inclusion between concepts (and between concepts and
contexts of use). The fact that making these rules explicit is in many
cases very difficult and cannot lead to a definitive result doesn’t mean
that the whole enterprise relies on unreliable intuitions or that there is
no implicit agreement in the social practices these concepts articulate.

68
Cf. Maroney 2011b: pp. 1519-1520.
69
This problem is clearly identified in Schauer 2010.
Moreover, it is far from being pacific that the extraordinary success of
the scientific method (in a certain field of enquiry) can count as a
measure of its own “absolute” adequacy. Every method is designed to
solve a kind of problem, but cannot be used to reveal what it is not
designed to account for70. Note also that the (conceptual) controversial
arguments against the analytic-synthetic distinction are insufficient to
establish the validity of the replacement naturalism.
Finally, a theory of adjudication is not trapped between the Scylla of
the Dworkinian normative task of justifying unique solutions to legal
disputes and the Charybdis of social psychology. A judicial decision is
justified whenever it is grounded on at least one legal norm that
prescribes or allows it: a theory of adjudication can describe the legal
normative context that admits a plurality of competing justifications.
And this analysis can be expanded to take into consideration extra-
legal reasons.

5.2. In §3 I presented the relations between emotions and reason

adopting the mentalist vocabulary of beliefs and pro-attitudes. I also
assumed that using such vocabulary makes sense on the background
of a rational explanation of human conduct. It is time to say something
more about this assumption. It is a central feature of the concept of
cause that a cause is empirically related with its effect: it must be
possible to identify the cause independently from its effect. In the case
this is not possible, it does not make any sense to look for a cause
following experimental methods and empirical observations. This is
what happens in the case of pro-attitudes such as desires and
intentions, which are conceptually related to their object, an action.
Whenever the pro-attitude is considered as the cause of an action,
what is happening is merely a re-qualification of the latter in view of
an attribution of responsibility to a subject. The observable context of
the conduct is evaluated in the light of the criteria for the ascription of
the conduct to a subject.
Coming to the emotions, their reduction to inner physical responses to
the perception of bodily changes which are elicited in particular
circumstances by a reliable somato-sensory subsystem seems the
product of a stipulation about the meaning of the word “emotion”
rather than an explanation of what emotions “really” are. It is not a
case that a neuroscientist such as Joseph LeDoux affirms: «It is
common these days to argue that folk psychological ideas will be
replaced with more accurate scientific constructs as the field matures.
Indeed, for non-subjective brain functions, subjective state labels
should be eliminated. This is what I had in mind when I proposed
calling the amygdale circuit a defensive survival circuit instead of a
fear circuit. However, the language of folk psychology describes
conscious experiences, such as fear, just fine»71.
The point here is that some scientific re-definitions of certain terms
interact with the ordinary understanding of the very same terms,
generating confusions. Nothing prevents a scientist to use the
expressions he deems more convenient, but it should be clear that the

70
Pugmire 2006: p. 21.
71
LeDoux 2017: p. 304.
new uses she introduces are not automatically better and need not
replace ordinary uses. In our case, insisting on the causal explanation
of emotions is insufficient to legislate on the understanding of the
phenomenon: one may well consider equally important those cases in
which the bodily reaction is followed by a conscious evaluation,
conceptually articulated and educated through socialization.
When in our legal practices we focus on the causal dimension of
emotion arousal we use empirical observation to re-qualify the action
it promotes in the light of a responsibility judgment. This does not
exclude the relevance of other considerations about the history of the
emoter and the context of the emotion behavior.

5.3. Can a naturalized theory of adjudication provide a way of

predicting judicial decisions with a reasonable degree of success? It is
a fact that we still haven’t a reliable predictive theory of judicial
behavior, but this doesn’t mean that it is impossible to elaborate one.
However, there is a firm stumbling stone naturalized jurisprudence is
called to remove. The problem is that an individual judicial decision in
a particular lawsuit is the effect of a huge variety of factors – many of
which concern the psychology of the judge – which escape the
traditional methods of quantitative analysis (jurimetrics), such as the
aggregate sentencing analysis based on statistically relevant factors
that link independent input variables (related to the judge – gender,
ethnicity, age, etc. – the courtroom context and the external
conditions) to dependent outcome variables (judicial sentences and
decrees). In fact, it is simply wrong to use the frequentist probability
of an event to derive conclusions about the probability of an
individual event. I doubt that this problem can be overcome enriching
the multivariate model with qualitative analysis obtained through
focus groups, simulations, interviews and questionnaires
(administered to judges, officials, lawyers and courtroom participants)
aimed at making decisional principles explicit. It is likely that the only
way to reliably predict the decision of a specific judge in a specific
case consists in collecting a great amount of data about that judge to
elaborate an “individual” covering law. Of course such a method is
very costly and it would be extremely difficult to generalize in a
uniform way.
Now, coming at the deliverances of L&E studies, one may ask
whether the complex techniques aimed at identifying and classifying
emotion-types in simplified stereotypical situations tell us enough
about the occurrence of emotion-tokens in specific contexts. David
Pugmire contends that «the features that individuate an emotional
response cannot be exhaustively specified in advance of a given case
and may not be uniform from case to case»72. Not that such features
are idiosyncratic or private: they just stand in need of a
contextualization, a reconstruction of the personal history of the
emoter, its social relations, and the distinctive properties of the
material object of the emotion. So the very understanding of an

72
Pugmire 2006: p. 22.
emotion-token takes place only considering the particular situation in
which it arises.

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