The constitutional domestication of emotions

András Sajó

Research output: Contribution to Book/Report typesChapterpeer-review

Abstract (may include machine translation)

Introduction A descriptive theory of law must take into consideration the role of emotions in regulatory institutions, including constitutions. While there can be little doubt about the social regulatory function of emotions, an explanation is needed to better understand how emotions, typically personal psychological or neural processes, result in human interaction that leads to political and legal institutions. Emotions participate in the formation of collective moral judgments, but it remains to be explained how they contribute to constitutional institution-building, since institution-building is a matter of collective action and collective intent. A proper consideration of the emotional components of law is important for a descriptive theory of law, but this does not presuppose or demonstrate that moral emotions and hence moral precepts determine legal rights, only that there is some correspondence between some rights and other binding institutional regimes. A weak correspondence is enough to give emotional and social credibility to the rights-and-duties-based system that we call modern law. One cannot claim that specific moral emotions dictate specific constitutional solutions, nor that constitutional rules or institutions correspond to emotions, nor is it because of the support of moral emotions that the constitutional system is sustained. The correspondence between emotions and constitutional institutions is weak. To say more would be an exaggeration. The central thesis of this chapter is that the commonality of certain emotions in interactive and self-reinforcing emotional processes (the “constitutional sentiment” of the day) had a formative impact on the making of modern constitutional institutions. Emotional interaction with and a collective reflection on these emotions enables (or undermines) the sustainability of existing constitutional arrangements. This study will describe the relationship between emotion and legal institution and specifically the formation of the fundamental institutions of modern constitutionalism during the eighteenth century. The resulting hypothesis is that core elements of constitutionalism, and human rights in particular, find inspiration and echo in fundamental moral sentiments. Constitutions, especially the constitutional recognition of specific claims as fundamental rights, are a matter of emotion-driven social choice. The cognitive processes that shape constitutional law and its application are deeply and intrinsically emotional. Constitutions as cultural phenomena are the products and reflections of emotions – moral emotions in particular.

Original languageEnglish
Title of host publicationLaw, Reason, and Emotion
PublisherCambridge University Press
Pages55-79
Number of pages25
ISBN (Electronic)9781108355223
ISBN (Print)9781108420761
DOIs
StatePublished - 1 Jan 2017

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