Constitutional sentiments

The principal claim of the essay is that sentiments and assumptions about senti-
ments
– have an important role in setting up constitutional designs and interpretation (“evolving
standards of decency”);
– constitutional arrangements do have impacts on social emotions;
– the disregard of the interrelation of emotions and other forms of cognition condemns
legal theory to one-sidedness and the efforts of behavioral economics seem not to undo this
one-sidedness.
For example, fear is present in the making of many constitutions. Constitutions are
designed to give assurances against fear that stems from, among others, pre-constitutional
oppression, mob rule and factional passions. Constitutional rights are also structured by
emotions: Compassion and indignation serve as emotional grounds to accept and claim
human rights.
A simplified vision of modernity claims that law and constitutional design is all about
rationality. Brain imaging studies indicate that moral emotions guide many moral judgments or
are in competition with reasoning processes. Of course, moral emotions contribute to the
shaping of law through moral judgments. To the extent law intends to shape behavior, it will
rely on its legal folk psychology. A theory of constitutional sentiments shall reconstruct
the assumptions on human nature as emotional nature that shape the constitution and its
interpretation.
Historically, constitutional path dependence presupposes emotional choices and emotional
action tendencies that are institutionalized and ‘imposed’ on law and society. Paradigmatic
changes in constitutional law cannot be explained without considering the path-breaking rule
of emotions. For example, the commitment to abolish slavery cannot be explained without the
emotional condemnation (based on disgust and resulting in indignation) of the institution. The
ban on torture is also rooted in sentiments of disgust. Concepts of cruel and unusual punish-
ment are rooted in emotions of disgust. Law is both trying to script emotions (in order to
prevent challenges to the status quo) and accommodates prevailing (or preferred) emotions
(hence the difficulty of a non-revenge based criminal policy)