Posted by The Situationist Staff on October 15, 2007
Up and comng situationist legal scholar David Arkush has written a thoughtful paper, “Situating Emotion: A Critical Realist View of Emotion and Nonconscious Cognitive Processes for the Law,” in which he, as the title indicates, situates emotion. More specifically, Arkush describes the typical view of emotion in the legal literature, introduces a more realistic, situationist view, then reviews the legal literature in light of that new view. Larry Solum recently highly recommended the article, describing it as “deeply interesting and . . . important.” We provide a brief overview of the paper below.
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The conventional view of emotion in the legal literature is that emotion serves as the object or goal of decisions–we call this emotion “preferences” and “welfare.” But emotions otherwise do not, and should not, play a role in the decision-making process. In other words, emotion act as as the internal rewards and cost of pursuing our preferences, but our emotions should not determine our behavior. The conventional model assumes that choices increase a chooser’s welfare and reveals a chooser’s preferences. Reason, not emotion, is the internal decider. When emotion gets involved directly in decision making, choices become irrational and regrettable. (In that sense, emotions are understood, as suggested in the 1950 video excerpt pasted below, as the something to be carefully controlled, like “a fire.”) Fortunately, for most people most of the time, do control their emotion, and defer instead to the independent process of reason. That is rational-choice theory’s descriptive view of emotion. (Economic behavioralists retain that same structure but recognizes flaws in rationality and acknowledges more instances of emotional interference.)
That model of human behavior has been significantly challenged by situationists in other work — including most broadly in “The Situational Character” by Situationist contributors Jon Hanson and David Yosifon. Preferences are often mistaken (meaning we often want things that fail to please us) and are deeply contextual. Even when we know what pleases us, we often have self-control problems and fail to act according to what we want. And even when we succeed in getting what pleases us, the resulting increase in happiness is surprisingly brief. This evidence strains the view that emotions are mostly objects of our reason, pursuit, and accumulation instead of something a bit more fluid.
Against this backdrop, Arkush’s paper reviews evidence from social psychology and neuroscience supporting a situationist understanding, and one that helps explain the problems identified. As Arkush summarizes, we humans are awash in emotion, which helps us navigate our environments in ways that would be impossible using only logic or rational calculation. In fact, emotional processes are not just central, they are probably necessary, to making decisions. At their most basic, emotional or affective processes mediate between the environment and our bodies by acting as “go/no go” cues to what is attractive or aversive. But they also operate in much more complex ways, for example by mediating the construction and activation of knowledge structures, which organize information about the world and our roles in it. In addition, emotions, as Situationist contributor John Bargh has demonstrated, help to automate complex behaviors.
In contrast to the normative economic view that choices are preference-satisfying, the situationist view of emotion recognizes that preferences are choice-satisfying: Instead of behaving in ways that satisfy emotional needs, we emote in ways that satisfy behavioral needs. Each moment, the world presents countless stimuli that demand behavioral responses, and our emotional processes meet the task of guiding us through them. Emotions are the key source of our “go” and our “no go.” As important as they are to influencing our behavior, there is little reason to be confident that emotional processes serve our well-being effectively. As Situationist contributor Tim Wilson and Situationist friend Daniel Gilbert have detailed, our “wanting” and “liking” can be misaligned for many reasons, foremost because our behavioral processes have evolved primarily to help us survive, not to make us happy. Moreover, if emotions are behavioral processes, it makes little sense to think of accumulating them in any ordinary sense.
After reviewing evidence that emotions should be viewed as behavioral processes rather than mere objects of decisions, Arkush discusses implications of his situationist view of emotions for law and legal theory. The paper also reviews work by, among others, rational-choice theorists and behavioral economists, arguing that each is takes an inconsistent or mistaken view of emotion.
Arkush terms behavioral economics “emotional irrationalism” to reflect the behavioralist view that emotion is mostly an irrational force in decisions. It argues that behavioralists are correct that emotions can mislead people but are mistaken to view unemotional decision making as ideal or even possible. Attempts to insulate decision making from emotion (such as Cass Sunstein’s recent work on risk regulation) are flawed because policy making cannot be divorced from emotional judgments. This work reflects a common behavioral-economic tendency to forget that, in contrast to the analysis of facts, judgments about what is good for individuals or the general public can never be rationalized fully.
According to Arkush, behavioral economics also lacks a means of discerning welfare-enhancing decisions from bad ones, which he finds surprising for a field so preoccupied with paternalism. Normative rational choice theory asserted that people’s decisions are welfare enhancing, which allowed us to infer what was good for people simply by looking at their choices. But as behavioral economics undermines the view that people make good choices, it undermines this means of discerning what is welfare-enhancing. It therefore suffers from a tension: Legal behavioralists identify decision making flaws and recommend remedial legal rules, but they have inadequate theory for explaining why their proposed rules would be welfare-enhancing. It is for that reason, Arkush argues, that behavioralists tend to tackle problems for which we have a strong intuitive sense of what is good for people (increasing retirement savings is one example) and where intuitively appealing solutions come to mind.
Cultural cognition theory, which Situationist contributors Dan Kahan and Paul Slovic have been integral in developing, posits that people’s cultural worldviews constrain their information processing and decisions, a highly situationist view. Cultural cognition theorists have made a compelling case that much political conflict is rooted in people’s cultural worldviews rather than the facts about which people actually argue in politics. (For example, the gun control debate focuses intensively on the relative safety of various legal regimes, but the real source of conflict is people’s differing values. For Situationist posts providing illustrations of the effect of cultural cognitions, see Nuclear Power Makes Individualists See Green” and “Emotions, Values, and Information: The Future of Nanotechnology.”) Arkush’s paper asks whether cultural cognition theorists may have taken a hard-to-defend position regarding emotions — a sort of uneasy three-legged straddle of the conceptions taken by rational choice theory, behavioral economics, and situationism. Some of their work, according to Arkush, tracks behavioralism by treating culture as another bias that impairs decisions and requires a paternalist response. Other work asserts that emotions are critical to decisions and that emotional decision making is “rational.” That cultural cognition conception, which is new in the legal literature and a significant improvement over conventional accounts, Arkush calls “emotional rationalism.”
Emotional rationalism holds that emotions are “expressively rational” in that they reflect, and help people perceive, their core values. Without emotions, we would be unable to perceive those values and thus unable to make rational decisions. In that sense, this new view of emotion may also be a kind of restatemtn of rational choice theory, with emotion more explicitly playing the role of preferences. (Arkush explains that just as the rational actor makes rational calculations about “preferences,” the “cultural evaluator” makes rational calculations about emotions or core values.) As a result, emotional rationalism is subject to some of the same the objections that apply to rational choice theory. According to Arkush, the better view may be the situationist view outlined above: Emotions are crucial to decision making as part of the process, not mere objects, and that they are often helpful but sometimes harmful. The situationist view is otherwise wholly compatible with cultural cognition.
Arkush correctly underscores that cultural cognition’s central thesis–that culture (an emotion-laden phenomenon) strongly influences information-processing and decision making–constitutes one of the most promising and realistic positive theories on human judgment in the legal literature. In his view, however, some clarification on the question of “emotion” would strengthen the theory’s normative significance.
Having discussed the views of risk regulation in behavioralism and cultural cognition theory, Arkush then weighs in briefly on that subject. He urges a well-functioning republicanism, instead of regulation through experts insulated from public emotion or increased direct democracy. He claims that such an approach would mediate between the competing needs for others to make decisions for us (both because our emotions can mislead us and because we lack the capacity to make countless important regulatory decisions) and the need to ensure that experts base policy judgments on public emotions rather than their own.
Finally, Arkush outlines some general approaches to taking emotion more seriously in law and legal theory, then highlights particular areas of law in which to begin that work. He also urges a reevaluation of the concept of “welfare,” which purportedly forms the basis of much policy making although it lacks a coherent meaning. Paralleling the argument that emotions are processes rather than objects, the paper argues that we may have the greatest success by approaching well-being in terms of processes.
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To review previous Situationist posts on the topic of emotions, click here.
This entry was posted on October 15, 2007 at 12:01 am and is filed under Choice Myth, Emotions, Legal Theory, Social Psychology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.