The Law is a cold monster: it disrupts social bonds, erodes emotional attachments, and imposes an abstract utilitarian rationality (Hart, Scott). But what if such critiques are completely misleading? What if the continuous production of faith and attachment are crucial to the dynamics of the legal system? (Fuller) This essay will argue that patterns of attraction and attachment give our legal system a binding force. In uncovering the emotional logic of law, we move one step closer to understanding the sources of cohesion and legitimacy that the legal system commands.
When law is equated with a cold, rational and utilitarian monster, what is often meant is that law is a tool that is used by a state or a sovereign in the practice of politics (Weber); it is understood instrumentally (Thompson). In that a state, which cannot help but ‘think like a state’, narrows its vision in reaction to a complex and unwieldy reality, and engages in a process of legibility, Law too, as a serviceable tool (Thompson), undergoes a process of codification (Scott); the same measures, the same rules, the same code of law, often in the service of a national market and rational economic action (Scott, Constable). It is easy to see how this may disrupt social bonds.
Inevitably, social bonds are disrupted when a legal system is imposed (Constable), destabilizing a people as once constituted by their traditional practices. Where the state sees local practices as illegible, there is an attempt to transform a people for administrative convenience (Scott). Propositional rules, assumed to be writable, are promulgated by officials through processes deemed legitimate and controllable (Constable).
Over time, a narrowing of vision may lead the state to believe that the ruled submit because they experience rules as obligations and believe them to be legitimate and justified for the maintenance of social life (Hart, Weber); in other words, the ruled, for the most part, have adopted an internal aspect to law (Hart). Note that this is an impoverished view of social life, one that has undergone a process normalization, standardization and unification; the unruly and illegible ‘primitive’ has been or is in the process of being transformed into a citizen governed by rational and rule based habits and predispositions that are tied to a recognized system of authority (Scott, Hart).
It is naïve to believe that the state seeks destruction of the social fabric; rather, it relies on and is actively engaged in nurturing social bonds that support its political endeavours (Weber). Foundational to this process is that reason and its logical requirement of consistency – treating like cases alike – ought to be the bond that binds citizens together in a “kingdom of ends” (Meyer, 13). The state must believe that reasonable citizens will be faithful/bonded to laws that are reasonable and are reasonably understood as critical to forming lasting ethical communities (Meyer, Hart). Even morality as a source of fidelity to law is best mobilized if driven by reason, is coherent (ie. legible) and has an inner logic (Fuller, Hart).
Only reason is truly completely within the state’s power and serves its desire for legibility and unification (Meyer, Scott). Therefore, the will of the people, a people who have the capacity to destroy the state, must be isolated from “every impulse which could arise to it from obedience to any law [of nature]” (Meyer, 10). Where citizens act without reason, they are reminded that emotional impulsivity is one step away from chaos; a state fears the demagogue who appeals to popular desires, hopes, fears and prejudices rather than by using rational argument (Weber).
Law must thus be more than instrumental; it must become ideology (Thompson) and the citizen must be made to start thinking like or along lines conducive to the state. One may productively introduce the emotional logic of law in two ways. First, a ruling class seeking to legitimize its rule by means of legal regimes that ought to be devotedly followed by the ruled is inherently afraid that the superstructure it builds will be torn apart by popular forces void of reason and full of impulsive emotion (Thompson, Weber). Exploring this fear may reveal an entire affective world that drives the impetus for control, legibility, unification, and the narrative of law, morality and reason (Scott). Without such a psychological approach, one may miss that which resides beneath the facade of reason. A hopeful view is that mercy resides in the deep and drives human interactions (Meyer). A state, in its disavowal of mercy, may not believe this to be true and suspect something more menacing to emerge if the reins of reason are loosened. Aware of its own emotional logic, the citizenry is thus seen from this light.
One can speak of the emotional logic of law with respect to the citizen, the ruled, the one who submits. While reason ought to drive fidelity to law, the ever-present menace of impulsivity, potentially harnessed by a prophet or a demagogue, must be countered. Even an arguably benign concept such as mercy, as an emotional response, as compassion, is categorically marginalized and cannot be accepted as a/the foundation for justice/law. Mercy does not follow “the rules of reason and cannot be universalized” (Meyer, 3) and hence is presented as threatening to “destabilize our reason-mediated community relations” (Meyer, 3). The message: any relationship not based on reason is potentially threatening; fear is instilled as the citizen is asked to envision the narrative of a once stable community falling apart.
Revenge is afforded the same treatment (Miller). Revenge appears as illegitimate, irrational, emotional and is said to exist only where a vulgar and repressed margin of society fantasies about ‘getting even’; one is asked to envision a sad and petty bunch. Revenge is viewed as “inimical to a just legal order” (Miller, 72) and is treated as a perversity. When the citizen points to capital punishment and ask, ‘but isn’t this revenge?’, they are spoon-fed the concept of retribution – measured, rational, impersonal and universalized (Miller).
While revenge is said to be outdated and obsolete, state actors know it to be alive within their own circles and therefore, as dangerously percolating within society (Miller). What is maintained is then an illusion and the following narrative is strategically circulated. If revenge can be shown to be symbolic for a crazed, unruled and a rule-less emotional response/affect that may precipitate a destructive anarchy if harnessed by a demagogue, then not only are the activities of the state shielded from being confused for revenge, but the citizens are also frightened into resisting anarchy at all costs. They must be made to believe that they have much, if not more to lose from anarchy than the state.
The emotional logic of (state-driven) law appears twofold. Emotion is a driver for a type of law and set of legal principles that appear as devoid of emotion. Emotion also becomes a tool to be used to fend of attacks by an impulsive and emotional populous; the irony is striking. Given this perspective, imagining law as a cold monster is unproductive.
Law is presented metaphorically as that which rational people must maintain and follow to avoid anarchy, which is set up as frightening. Emotional bonds of attachment and attraction are strategically facilitated. These function ideologically: citizens come to identify themselves as rational rule followers in a world that cannot survive but for this practice. Numerous affects and emotions support this attachment and are nurtured. From this state-centric perspective, sources of cohesion and legitimacy follow a calculating logic of emotion.
What about when the state perspective is abandoned? This warrants a deeper exploration and I turn to it only briefly to suggest that I have not exhausted the topic. What happens when we ‘think like a person’ or a small community? Perhaps the dichotomy of reason v. emotion breaks down or is destabilized and what emerges is a culture where emotion is richly embedded in a complex normative structure that respects and regulates it (Miller). Perhaps law is experienced as something that is lived daily and is alive and operating through intimate emotion-saturated relationships between people and their land (Borrows). Perhaps law is creative only in so far as we harness our capacity to reason as much as our capacity to feel (White). Perhaps the complexity of reality is met not by attempts to render the world ‘legible’ but by giving into the sublime – “a feeling that the world is beyond our power to comprehend” (Meyer, 23) – and attempting to breach the distances between one another by practicing mercy.
When law becomes an undeserved gift, a kind of mercy, and flows out of and into intimate interrelationships, then the emotional logic of law is something else entirely. An entirely different affective language is being spoken and practiced and arguably gives rise to an entirely different world(view) (Fanon).