Emotion, we are told, has no place in law, lawsuits, or legal analysis. Soft, fuzzy, imprecise––emotion is not only valueless, it’s detrimental, destructive. Just imagine the consequences if emotion were to assume even a small role. There are distinct advantages, we’re assured, to emotionless, analytical thinking: it promotes accuracy; it cuts through the irrelevant, the extraneous; it’s precise, incisive; it’s logical, reliable. Hard-headed thinking assigns correct values, enabling accurate conclusions to be drawn. Etc.
The simple truth is that emotions play a larger role than we’d care to admit. Quite aside from the six basic emotions often discussed––happiness, sadness, disgust, fear, surprise, anger––emotions encompass far more than these specific areas. “Feelings,” “sensations,” “impressions,” “intuitions,” “reactions”––these are often emotion based, not reason/intellect based. (Cf. Michel Foucault, The Order of Things, Pg. 52, (Vintage 1973)(“In consequence, if one makes an exception of the intuition one may have of a single thing, one can say that all knowledge ‘is obtained by the comparison of two or more things with each other.’ But in fact there can be no true knowledge except by intuition, that is, by a singular act of pure and attentive intelligence, and by deduction, which links the observed evidence together.”)
Chief Justice Hughes once remarked to Justice William O. Douglas, “You must remember one thing. At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.” Douglas, William O. The Court Years, 1939-1975 : The Autobiography of William O. Douglas., Pg. 8, New York: Random House, 1980.
We need an analytics of emotion. Ask: what’s at stake? What’s driving this? Were we to be brutally honest, what raw, exposed nerve in fact underlies the thought process? Look carefully, the emotions involved may not be what’s typically to be expected. “One ought to hold on to one’s heart; for if one lets it go, one soon loses control of the head too.” ― Friedrich Nietzsche
Combine fear, happiness, and enthusiasm you have exhilaration, elation. Combine sadness, upset, and shock you have grief, despondency. Combine pleasure, interest, and enlightenment you have perception, insight. Combine joy, passion, and a sense of wonder you have love. Layers and levels, gradations and nuances––emotions come in all shades and colors, from transparent to opaque, and we must develop a more refined sense of when, and how, to utilize the colors of the emotional palette in our work.
Recent research has focused on the inseparability of emotion and cognition. “A second aim of our paper is to develop an account of embodied cognition based on the inseparability of cognitive and emotional processing in the brain. We argue that emotions are best understood in terms of action readiness (Frijda, 1986, 2007) in the context of the organism’s ongoing skillful engagement with the environment (Rietveld, 2008; Bruineberg and Rietveld, 2014; Kiverstein and Rietveld, 2015, forthcoming). States of action readiness involve the whole living body of the organism, and are elicited by possibilities for action in the environment that matter to the organism. Since emotion and cognition are inseparable processes in the brain it follows that what is true of emotion is also true of cognition. Cognitive processes are likewise processes taking place in the whole living body of an organism as it engages with relevant possibilities for action.”
Past experience plays a vital role. The authors continue: “Emotion is responsible for giving an organism a meaningful experience of the environment just as we argue, but it does so only with the mediation of processes of situated conceptualization. We’ve suggested by contrast that affect in the form of action readiness orients the organism to the possibilities for action that matter most to the organism at the time. The organism finds itself ready to deal adequately with the affordances of the environment, but it does so in large part because of its past experience. Particularly important are the skills and abilities built up over long period of repeatedly encountering and dealing with the same or similar situations…We therefore agree with constructionists that past experience plays an important role in creating a meaningful moment of emotional experience. We disagree however about the form this meaningful moment of experience takes. We argue it takes the form of the whole organism being ready to deal adequately with the relevant affordances of its environment. This in turn suggests a different interpretation of the constructionist finding that the grouping of areas that makes up the DMN [default mode network] are consistently active for a range of different emotional experiences. We speculate that the spontaneous activity found in this population of neurons gives the organism the ability to accurately and precisely anticipate the outcome of its interactions with the environment.”
In many instances, emotion serves only as an unspoken subtext to what’s being described. Premise liability case, hazardous condition on the premises, serious fall-down injury––what’s at stake? It’s a broken promise: customers can, and should, expect store premises to be safe and free from hazards. Tap (quietly, discreetly, then explicitly, visibly) into those feelings that arise when someone places trust in another only to find that trust has been betrayed.
“We therefore agree with constructionists that past experience plays an important role in creating a meaningful moment of emotional experience”––it should not be a surprise that “past experience” plays a vital role. Perhaps one way of thinking about those whom one must persuade is simply to ask: “What past life experiences have likely shaped this person’s outlook?” Successful arguments implicate both the rational as well as the emotional––and the best arguments are those which satisfy both dynamic contrasts. Ignore emotion at your peril; it plays a larger role than commonly assumed. “Since emotion and cognition are inseparable processes in the brain it follows that what is true of emotion is also true of cognition.” Rather than leaving this area to chance, perhaps it’s best to study and conceptualize an analytics of emotion––the rational/logical being a way to justify and explain that which the emotions have already decided.
It’s probably a safe generalization to assert that arguments can be enhanced if they silently embody their own internal, emotional logic. The paradox, of course, is to keep in mind that genuine emotion is not in any way artificial, fake, or exaggerated. It springs from the most truthful, matter-of-fact, literal region of one’s body––the human heart.
All quotations from Julian Kiverstein, Mark Miller, The Embodied Brain: Towards a Radical Embodied Cognitive Neuroscience, Front. Hum. Neurosci. 06 May 2015 https://www.frontiersin.org/articles/10.3389/fnhum.2015.00237/full
