Reason-emotion in legal practices

The field of law and emotion is an emerging and exciting field of legal theory and multi-disciplinary research. However, in 2006, Terry Maroney observed that this field lacked a common language of emotion to enable dynamic collaboration – a gap that persists today.
This thesis aims to provide such a common language for research. It aims to find a way of understanding, studying, and incorporating emotion – or reason-emotion, as the term this thesis proposes – in legal practice. It develops a theory of reason-emotion in law drawn from Karen Barad’s agential realism with a diffractive reading of multiple theories in the field of philosophy and legal theory. The theory employs agential realism’s key concepts, including phenomena, agential cuts, iterative effects, nonlinear causality, apparatuses, and mutual enactment. It emphasises the particularity in emotional experiences and proposes a clear methodology of understanding, studying, and incorporating it in legal practices.
To provide a foundation for this conceptual work, the thesis first explores the historical development of the ordinary dichotomy of reason and emotion. It proposes that the proper term for referring to the object of a study in law and emotion should be a term that encompasses the superposition of reason and emotion. This thesis chooses the term ‘reason-emotion’ to represent the superposition. This superposition of reason and emotion entails the nonlinear causality, where the reason-emotion in a legal practice is mutual enacted with specific apparatuses, which include inter alia cultural contexts, social norms, laws, and personalities. To understand, study, and incorporate the reason-emotion is to understand how it is mutually enacted with those specific apparatuses, and examine the appropriateness of decision-makers’ reason-emotions by focusing on their mutual enactments with the specific social and cultural contexts.
This theory of reason-emotion in law, drawn from agential realism, is not developed via an application of agential realism in the field of law and emotion. Rather, it emerges through multiple case studies, including criminal and marital laws and cases in England, Wales, and Scotland. However, its potential is not limited to those jurisdictions. As long as reason-emotion is the basic human experience, this theory can be helpful in further research in other legal fields and jurisdictions with different legal traditions.