The Progress of Passion

Authors

Kathryn Abrams, University of California at Berkeley School of LawFollow

Abstract

Like an abandoned fortress, the dichotomy between reason and the passions casts a long shadow over the domain of legal thought. Beset by forces from legal realism to feminist epistemology, this dichotomy no longer holds sovereign sway. Yet its structure helps to articulate the boundaries of the legal field; efforts to move in and around it infuse present thinking with the echoes of a conceptually distinct past. Early critics of the dichotomy may unwittingly have prolonged its influence through the frontal character of their attacks. By challenging a strong distinction between emotion and reason, critics kept it, paradoxically, before legal audiences. Moreover, within the context of this approach, refusing the challenge posed by critics remained an intelligible response. Glimpsing, perhaps, the limits of this approach, an emerging generation of critics has embraced a new strategy. By assuming the interpenetration of reason and emotion in law, and turning a keen, evaluative eye to their complex relations, these scholars have introduced new lines of inquiry. They have also often disarmed their opponents: when one is assessing the competing claims of disgust and indignation to direct the criminal law, for example, it becomes more difficult for audiences to assert that emotions have no role in these legal processes. Susan Bandes's collection, The Passions of Law, is a triumphant example of this new genre of critique. "Emotion," Bandes declares in opening the book, "pervades the law" (p. 1) - her collection takes its shape from this transformative assumption. The question raised by the thirteen provocative essays that comprise this volume is almost never, "Can emotion co-exist with the demands of reason in law?" It is, as we learn in Bandes's illuminating introduction, "which emotions deserve the most weight in legal decision making, and which emotions belong in which legal contexts?" (p. 7). It is how to assess the varying functions that law can perform in relation to the emotions - whether expressing, identifying, channeling, elevating, or satisfying individual or collective passions. It is how both law and the emotions that inflect it are shaped by elements of the broader culture in which both subsist. The great contribution of this volume is to shift the debate away from familiar dichotomies and toward the vast terrain that can be reconstructed by exploring the pervasive influences of the emotions in law. The gaps and inchoate elements in the collection remind us of just how large a task this may prove to be.

Recommended Citation

Kathryn Abrams, The Progress of Passion, 100 Mich. L. Rev. 1602 (2002).
Available at: https://repository.law.umich.edu/mlr/vol100/iss6/21