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Two Conceptions of Emotion in Criminal Law
Kahan, Dan Nussbaum, Martha
Kahan, Dan
Nussbaum, Martha
Abstract
Emotions are ubiquitous in criminal law, as they are in life. But how do they, and how should they, affect legal assessment? Should the law be more sympathetic to defendants who are taken over by passions such as anger and fear, or should it view such defendants as especially dangerous? Or should the response of the law depend on an appraisal of the emotion itself-whether it is appropriate or inappropriate, "reasonable" or "unreasonable"? What does it mean for an emotion to be reasonable? Aren't emotions, after all,just disturbances of the personality that can be more or less strong but that are always hostile to reason? Or do they embody judgments, ways of seeing the world? If they do, should we hold people morally accountable for those judgments?