SW39
Authority, Emotions, and the Law
CONVENORS: Marta Soniewicka, Bart van Klink, Oliver W. Lembcke
As Joseph Raz puts it, since “the law claims our allegiance and obedience” one may say that every legal system claims to have authority over its legal subjects. Yet “it is part of the ideal of law that it should have such authority, though it often fails to live up to that ideal” (Raz 2009). Authority should not be confused with force – it precludes the use of external means of coercion since “it implies an obedience in which men retain their freedom” (Arendt 1954). Authority presupposes hierarchy and precludes the force of arguments. Thus, it must be distinguished from persuasion, which requires reasoning and assumes equality. Plato discovered the authority of the self-evident truth which “compels the mind, and that this coercion, though it needs no violence to be effective, is stronger than persuasion and argument” (ibid.). To have authority means to have normative power (Raz 1979) therefore the notion of authority plays such a significant role in both the political and legal realm. Since Plato found violence inappropriate and persuasion insufficient to guide people, philosophers have searched for authority in the rule of law, not men.
Within the positivist approach, the rule of law has been considered mainly as an instituted rationality based on deliberation and reasoning. We are interested in exploring the rule of law paradigm from a different angle, pondering the notion of the authority of the law. Since authority by contrast to persuasion is not based on reasoning and argumentation, we would like to discuss the role of emotions in the acknowledgment of the authority of the law, posing the question whether there is another paradigm of the rule of law which addresses the relationship between law and emotions in a more comprehensive way. For instance, discussing jurisprudence may suggest invoking the neo-Aristotelian paradigm of virtues in the legal realm (Solum 2003) as a theoretical framework which may be useful in exploring the notion of the authority of the law. Another approach which may be fruitful in this context is offered by the law and emotions scholarship (Bandes 2001), interdisciplinary research drawing on the humanities, social sciences, and life science, which has argued for the inclusion of emotions into law by recognizing and incorporating the normative and evaluative aspects of emotions (Goodrich 1996; Peterson 1996, 1998, Kahan & Nussbaum 1996), challenging the merely expressive nature of emotions.
The interaction between emotions and the authority of law is dynamic. On one hand, some social emotions seem necessary for acknowledgment of the effective and legitimate authority of the law (cf. Nonet & Selznick 2000), and on the other hand, the authority of the law may encourage the emergence of socially valuable emotions. Emotions like fear, anger, resentment, hope, admiration, trust, solidarity, respect, fidelity, loyalty, mercy, empathy play a crucial role in the functioning of a society and legal order and may either support authorities or undermine them. Thus, in our workshop we would like to explore the relationship between emotions and the authority of the law further.
Papers presented in our workshop may focus on the following dimensions of the topic:
• What are the limits of rational institutionalization of law? In what sense do emotions affect the legal institutions and the Rule of Law? How do emotions shape our understanding of the Rule of Law and the authority of the law?
• What are the conditions for the acknowledgment of the authority of the law? What makes the law authoritative, how the authority of the law may be restored and what is the role of emotions in this process?
• What is the impact of different legal, social, and political narratives on the perception, understanding, and adherence of norms? What is the role of emotions in public discourse and in the conceptualization of issues which play the key role in establishing and interpreting legal principles?
• Should the law be treated merely as an instrument to achieve political and social aims, or should we rather acknowledge its role as a symbol that unites people? How do these two ways of understating the role of law affect the understanding of the authority of law?
All interested applicants are invited to send abstracts of 500-800 words in English to marta.soniewicka@uj.edu.pl, b.van.klink@vu.nl and mail@oliver-lembcke.de until April 30, 2022 at the latest. Information concerning institutional affiliation and a very brief biography of the applicants (of max. 100 words) are requested. We will inform the selected speakers about the final program of the workshop until May 31.
Convenors: Marta Soniewicka (Jagiellonian University), Bart van Klink (Vrije Universiteit Amsterdam) & Oliver W. Lembcke (Ruhr University Bochum)