Abstract
It has traditionally been assumed that a judge should pass judgement in a rather dispassionate state of mind. More recently, this traditional assumption has been challenged by authors who claim that emotions such as compassion, indignation or anger are not only indispensable, but can even play a beneficial and important role in judicial decision-making. Thus the old ideal of the impassionate judge is challenged by the new ideal of the rightly compassionate, rightly indignant or even rightly angry judge. Some supporters of this new ideal of an emotionally engaged judge invoke Aristotle for the idea that a judge should feel the right emotions in the right way. This paper argues that although there are passages in Aristotle that might be understood as implying such views, Aristotle’s account of the right emotions of a virtuous person does not lend support to an ideal of passionate judges. On the contrary, the author points to contexts in which Aristotle seems to be rather concerned about the possibility of judges who pass their judgement in an emotional state. It is entirely justified to regard Aristotle as an ally in the promotion of the idea that emotions, rather than being blind, obstructive impulses, are intrinsically connected with our thoughts, judgements and wishes. The impact of these ideas, however, must be assessed against the background of Aristotle’s account of character virtues.
This chapter has before been published in open access for the Digital Paul Scholten Project. Rapp, Christof. 2016. Dispassionate Judges Encountering Hotheaded Aristotelians. Amsterdam: Digital Paul Scholten Project. http://www.paulscholten.eu/research/article/dispassionate-judges-encountering-hotheaded-aristotelians-2/.
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Notes
- 1.
In the United States of America, I take it, the support of ‘emphatic’ or otherwise emotion-guided decision-making of judges is sometimes (misleadingly) associated with a certain political position; this became obvious during the Judiciary Committee hearings on the nomination of Sonia Sotomayor for the Supreme Court in July 2009. The political debate may have intensified the corresponding scholarly debate. The author of this paper does not connect his position with any political affiliation. ‘Empathic politics’, if one likes this expression or the corresponding denotatum, can be implemented by both detached and emotionally engaged decisions-makers.
- 2.
- 3.
For a state-of-the-art article on this subject see Bandes and Blumenthal (2012).
- 4.
I include jurors to accommodate different legal systems. At any rate, my interest is in those participants of a trial that are supposed to make judgements and verdicts.
- 5.
- 6.
This overview is inspired by ideas that Maroney put forward in this volume Maroney (2018).
- 7.
I use this formula of the “impassionate judge” with reference to Maroney (2011).
- 8.
Need a reference? See Maroney (2012), p. 1210: “One of the most enduring lessons of the early-twentieth-century legal realists, though, is that judges are human first.”
- 9.
The following discussion is mainly based on Maroney (2012). Although the main purpose of my current paper is a critical discussion of some of her views (insofar as they make use of the alleged evidence from Aristotle), I hasten to acknowledge that my paper is also parasitic on her work, as it is the primary source for my knowledge of the pertinent legal debate.
- 10.
See Maroney (2012), p. 1213.
- 11.
See Ibid., p. 1215.
- 12.
Ibid., p. 1284.
- 13.
Ibid., p. 1223.
- 14.
Ibid., p. 1216.
- 15.
Ibid., p. 1279.
- 16.
Ibid., p. 1214.
- 17.
Ibid., p. 1277.
- 18.
Ibid., p. 1277.
- 19.
Ibid., pp. 1262 and 1272.
- 20.
Ibid., pp. 1262 and 1272.
- 21.
Ibid., p. 1264.
- 22.
Ibid., p. 1262.
- 23.
Ibid., p. 1209.
- 24.
Ibid., p. 1263.
- 25.
Ibid., p. 1272.
- 26.
Ibid., p. 1216.
- 27.
Ibid., p. 1264.
- 28.
- 29.
- 30.
Maroney (2012).
- 31.
See Ibid., p. 1250.
- 32.
See Ibid., e.g. p. 1210.
- 33.
See in this volume Maroney (2018).
- 34.
See Maroney (2012), e.g. pp. 1221 and 1284. The source of this idea remains obscure to me. She quotes Potegal and Novaco (2010) for the claim that “the idea of justified anger becomes commingled with, if not equivalent to, justice itself.” The mentioned authors make such a claim in a section that is dedicated to “Aristotle and afterward”, but they do not claim to quote or to interpret Aristotle by saying this. Rather they refer to a rhetorical trope that is used in “classical Athens”. And not even the reference to this trope in question rests on an examination of ancient texts, but is taken from an author by the name of D. S. Allen.
- 35.
Nicomachean Ethics (Ethica Nicomachea), edition used: Aristotle (1984b).
- 36.
On the soul (De Anima), edition used: Aristotle (1984c).
- 37.
Rhetoric, edition used: Aristoteles (2002).
- 38.
Solomon (1990), p. 253.
- 39.
See Maroney (2012), p. 1219, footnote 64.
- 40.
This is why I would also resist the temptation to turn Aristotelian indignation into a general “sense of injustice”, as Nussbaum (2001), does at p. 312.
- 41.
The following account of Aristotelian virtues is based on Rapp (2006).
- 42.
Incidentally, all these parameters together define the appropriateness of an emotional response. Maroney uses this formula in order to distinguish between factors that make an episode of anger legitimate and other factors that only concern the right manifestations of that emotion.
- 43.
In fact, what Maroney describes as the regulation of judicial emotions is far more reminiscent of the techniques suggested by post-Aristotelian thinkers, like the Stoics and the Epicureans.
- 44.
See the references to Martha C. Nussbaum’s work above.
- 45.
Martha C. Nussbaum made the same important distinction, but preferred to speak of ‘rational in a normative’ (what we called ‘rational’) and ‘rational in a descriptive sense’ (what we called ‘cognitive’). See Nussbaum (1996), p. 320, footnote 4.
- 46.
Politics, edition used: Aristotle (1984a).
- 47.
- 48.
See for example Barnes (1995), p. 263.
- 49.
Solomon (1990).
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Rapp, C. (2018). Dispassionate Judges Encountering Hotheaded Aristotelians. In: Huppes-Cluysenaer, L., Coelho, N. (eds) Aristotle on Emotions in Law and Politics. Law and Philosophy Library, vol 121. Springer, Cham. https://doi.org/10.1007/978-3-319-66703-4_3
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