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School of Law

LAW-20048
Law and Emotion

Semester One 2018/19

Module Guide

Module Leader: Dr Senthorun Raj


Class Details
This course is taught across 10 seminars (Weeks 2-11) on Tuesday from 10am-12pm in
DH0.63.

Contact Details
Please direct questions and feedback about the module to the module leader.

Dr Senthorun Raj
s.raj@keele.ac.uk
CBC1.011

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Introduction
What does anger achieve in law reform that targets discrimination? How does fear
limit the scope of migration or refugee law? Should we use disgust to determine what is
criminal? Is love the solution in disputes about relationships? Do human rights bring us
hope for a better future?

In popular consciousness, law is often conceived of as an autonomous system of rules,


norms, regulations, and principles. Such a disembodied concept of law tends to
divorce sensations or passions from abstract reason. Divorcing law from emotion,
however, is futile. From grieving citizens seeking reform to a particular social injustice
to heated litigation in courtrooms to calculated judicial decisions, emotion animates
the legal system. Emotion is not an unfortunate consequence or effect of an otherwise
rational system of law; it is a core feature in how law manifests across times,
jurisdictions, institutions, and cultures.

Rather than organise this the study of emotion within specific areas of law, this
module invites students to think about emotions – both “good” and “bad” ones – as a
way to navigate legal debates across disciplines and jurisdictions.

Module Aims
This module aims to build on the critical legal thinking undertaken in core modules by
introducing students to the study of emotion in law. In particular, it invites students to
think critically about legal problems, not simply in terms of “facts” but, also, in terms
of “feelings” (and how the two mutually constitute each other).

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Independent Learning Outcomes
Drawing from interdisciplinary scholarship and various sub-disciplines of law, students
who complete this module will be able to:
• Articulate current debates in the field of Law and Emotion.
• Differentiate between conceptual approaches when analysing the relationship
between law and emotion.
• Critically reflect on the role of emotion in various legal issues/problems
(including by reflecting on core modules previously studied) and how to
contextualise legal issues/problems by using emotion.
• Evaluate the function and effect of emotions in addressing legal
issues/problems.

This module cultivates graduate attributes by encouraging students to think critically


and creatively about framing, analysing, and addressing current legal issues or
problems.

Assessment
Research Proposal (20%)
This assessment requires students to write a 1000-word plan for their final research
essay where they will use emotion(s) to analyse a particular legal issue or problem.
This task requires students to create an essay topic; provide a brief literature review;
and outline how their essay will be structured.

The research proposal must be submitted on KLE by 3pm Monday 26th November.

Research Essay (80%)


This assessment builds on the research proposal. Students will use their proposal to
write up a 3000-word research essay where they will explore how emotion animates
and addresses a particular legal issue or problem.

The research essay must be submitted on KLE by 3pm Monday 7th January.

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Key Readings
Law and Emotion is a diverse and interdisciplinary field of scholarship. While we
cannot hope to cover the breadth of research undertaken on this topic throughout this
course, you will find a brief list of “key texts” below to help you think about how we
can approach the study of emotion in/through/with/as law.

Ahmed, Sara, The Cultural Politics of Emotion (Edinburgh University Press, 2004).
Arkush, David J, “Situating Emotion: A Critical Realist View of Emotion and
Nonconscious Cognitive Processes for Law and Legal Theory” (2008)
2008(5) Brigham Young University Law Review 1275.
Bandes, Susan (ed), The Passions of Law (NYU Press, 1999).
Hunter, Shona, Power, Politics, and the Emotions: Impossible Governance? (Routledge,
2015).
Maroney, Terry A, “Emotional Regulation and Judicial Behaviour” (2011) 99
California Law Review 1485.
Maroney, Terry A, “Law and Emotion: A Proposed Taxonomy of an Emerging Field”
(2006) 30 Law and Human Behaviour 119.
Posner, Eric A, “Law and the Emotions” (2001) 89(6) Georgetown Law Journal 1977.
Sedgwick, Eve S. Touching Feeling: Affect, Pedagogy, Performativity (Duke University
Press, 2003).
Shouse, Eric, “Feeling, Emotion, Affect” (2004) 8(6) M/C Journal 1.
Wiener, Richard L, Brian H. Bornstein, and Amy Voss, “Emotion and the Law: A
Framework for Inquiry” (2006) 30 Law and Human Behaviour 231.

The required and recommending readings for the seminars are accessible through the
library or KLE. The required listening is available on YouTube.

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Seminar Schedule

Week Seminar Presenter

1 NO CLASSES N/A

2 (1) Feeling Law: Introducing Law and Emotion SR

3 (2) Disgust, Sex, and Criminality SR

4 (3) Hate and Violence SR

5 (4) Shame and Punishment FE

6 (5) Anger and Inequality SR

7 (6) Trauma, Forgiveness, and Justice SR

8 (7) Fear, Compassion, and Transition SR

9 (8) Suspicion and Psychiatric Injury MF

10 (9) Love, Respect, and Marriage SR

11 (10) Hope and Human Rights SR

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Seminar One: Feeling Law (Week 2)

In the first seminar, we will look at some current theoretical debates in the field of Law
and Emotion scholarship.

Required Reading
Abrahams, Kathryn, and Hila Keren, “Who’s Afraid of Law and the Emotions?”
(2010) 94 Minnesota Law Review 1997.
Barrett, Lisa F, “The Law’s Emotion Problem” (11th March 2017) The New York Times,
available at: https://www.nytimes.com/2017/03/11/opinion/sunday/the-
laws-emotion-problem.html (accessed 6th September 2017).

Required Listening
Sang, Samantha. “Emotion.” By Barry Gibb and Robin Gibb. Emotion. Private Stock,
1977.

Recommended Reading
Lange, Bettina, “The Emotional Dimension in Legal Regulation” (2002) 29(1) Journal
of Law and Society 197.
Maroney, Terry A, “The Persistent Script of Judicial Dispassion” (2011) 99 California
Law Review 629.
Nussbaum, Martha C, Political Emotions: Why Love Matters for Justice (Harvard
University, Press 2013).
West, Robin, “Communities, Texts and Law: Reflections on the Law and Literature
Movement” (1988) 1 Yale Journal of Law & the Humanities 129.
White, James B, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (Wisconsin
University Press, 1985).

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Seminar Two: Disgust, Sex, and Criminality (Week 3)

This week we will look at the criminal law to see how we use disgust to
regulate/prohibit certain forms of sex and sexuality (such as homosexuality, BDSM,
and sex work).

Required Reading
Raj, Senthorun, “Disturbing Disgust: Gesturing to the Abject in Queer Cases” in M. Ball,
T. Crofts and A. Dwyer (eds) Queering Criminology (Palgrave, 2015), pp 83-101.
Raj, Senthorun, “On Sexuality, The Law Still Caters to the Norms of Public Disgust”
(28th July 2017) Slate, available at:
http://www.slate.com/blogs/outward/2017/07/28/on_sexuality_the_law_still_
takes_public_disgust_into_account.html (accessed 6th September 2017).

Required Listening
Rihanna. “S&M.” By Mikkel S Eriksen, Tor Erik Hermansen, Sandy Wilhelm and
Esther Dean. Loud. Def Jam, 2011.

Recommended Reading
Gurham, David, “Legal Authority and Savagery in Judicial Rhetoric: Sexual Violence
and the Criminal Courts” (2011) 7(2) International Journal of Law in Context
117.
Hauskeller, Michael, “Moral Disgust” (2006) 4 Ethical Perspectives: Journal of the
European Ethics Network 571.
Miller, William I, The Anatomy of Disgust (Harvard University Press, 1997).
Moran, Leslie, “Violence and the Law: The Case of Sadomasochism” (1995) 4 Social &
Legal Studies 225.
Nussbaum, Martha C, Hiding from Humanity: Disgust, Shame and the Law (Princeton
University Press, 2004).

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Seminar Three: Hate and Violence (Week 4)

This week we look at the articulation of hate, how it makes possible certain forms of
violence, and how the law responds to it (through legislation, policing, and
prosecution).

Required Reading
Mason, Gail, “Being Hated: Strange or Familiar?” (2005) 14(4) Social & Legal Studies
585.
Paul, Pamela, “Why You Should Read Books You Hate” (15th April 2017) The New
York Times, available at:
https://www.nytimes.com/2017/04/15/opinion/sunday/the-joy-of-hate-
reading.html (accessed 6th September 2017).

Required Listening
Menzel, Idina and Kristin Chenoweth. “What is this Feeling?.” By Stephen Schwartz.
Wicked. Decca Broadway, 2003.

Recommended Reading
Lee, Cynthia, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom
(NYU Press, 2003).
Maroney, Terry A, “The Struggle against Hate Crime: Movement at a Crossroads”
(1998) 73 New York University Law Review 564.
Mason, Gail, The Spectacle of Violence: Homophobia, Gender and Knowledge (Routledge,
2002).
Moran, Leslie, “The Emotional Dimensions of Lesbian and Gay Demands for Hate
Crime Reform” (2004) 49 McGill Law Journal 925.
Zylan, Yvonne, States of Passion: Law, Identity and the Social Construction of Desire
(Oxford University Press, 2011).

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Seminar Four: Shame and Punishment (Week 5)

This week we look at shame in the context of imprisonment and the ways it continues to
underpin the punishment of prisoners no matter how the aims of imprisonment are
reconfigured.

Required Reading
O'Donnell, Ian, “The aims of imprisonment” in Y. Jewkes, J. Bennet and B. Crewe
(eds), Handbook on Prisons (Routledge, 2016), pp 39-54.

Required Listening
Cash, Jonny. “Folsom Prison Blues.” By Jonny Cash. With His Hot and Blue Guitar.
Sun, 1955.
Spektor, Regina. “You’ve Got Time.” By Regina Spektor. Orange Is the New Black. Sire
Records, 2013.

Recommended Reading
Bennett, Peter, “Prisons and Human Rights” in Y. Jewkes, J. Bennet and B. Crewe
(eds), Handbook on Prisons (Routledge, 2016), pp 324-39.
Christie, Nils, “Prisons in Society, or Society as a Prison – A Conceptual Analysis” in
Freeman, J.C. (ed), Prisons Past and Future (Heinemann, 1978), pp 179-188.
Lazarus, Liora, “Conceptions of Liberty Deprivation” (2006) 69(5) Modern Law Review
738.
Hudson, Barbara, Understanding Justice (Open University Press, 2003).
Ugelvik, Thomas, “Prisons as welfare institutions? Punishment and the Nordic
Model” in Y. Jewkes, J. Bennet and B. Crewe (eds), Handbook on Prisons
(Routledge, 2016), 388-402.

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Seminar Five: Anger and Inequality (Week 6)

This week we look at how anger exposes the fraught relationship between privilege
and inequality while it also animates calls for the eradication of both (such as through
anti-discrimination laws and policies).

Required Reading
Belleau, Marie-Claire, Rebecca Johnson, and Valerie Bouchard, “Faces of Judicial
Anger: Answering the Call” (2007) 1(2) European Journal of Legal Studies 1.
Bond, Chelsea, “The audacity of anger” (31st January 2018) The Guardian, available at
https://www.theguardian.com/commentisfree/2018/jan/31/the-audacity-of-
anger (accessed 17th June 2018).

Required Listening
Simone, Nina. “Mississippi Goddam.” By Nina Simone. Nina Simone in Concert.
Philips Records, 1964.

Recommended Reading
Brown, Wendy, Regulating Aversion: Tolerance in the Age of Identity and Empire (Duke
University Press, 2006).
Lorde, Audre, Sister Outsider (Crossing Press, 1984).
Matsuda, Mari, “Looking to the Bottom: Critical Legal Studies and Reparations”
(1987) 22 Harvard Civil Rights-Civil Liberties Law Review 323.
Nussbaum, Martha C, Anger and Forgiveness: Resentment, Generosity, Justice (Oxford
University Press, 2016).
Yoshino, Kenji, “Covering” (2002) 111(4) Yale Law Journal 769.

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Seminar Six: Trauma, Justice, and Forgiveness (Week 7)

This week we consider how the law responds to experiences of trauma and how laws
encourage/expect victims to “forgive” people who have harmed them (such as in cases
of rape, colonisation, war crimes, and crimes against humanity).

Required Reading
Hamad, Ruby “Forgiveness is not justice. And trauma survivors don’t need to forgive
to heal” (13th March 2017) SBS News, available at:
http://www.sbs.com.au/topics/life/culture/article/2017/03/13/comment-
forgiveness-not-justice-and-trauma-survivors-dont-need-forgive-heal (accessed
6th September 2017).
Minow, Martha, “Forgiveness, Law, and Justice” (2015) 103 California Law Review
1615.

Required Listening
Lennox, Annie. “Walking on Broken Glass.” By Annie Lennox. Diva. BMG, 1992.

Recommended Reading
Berlant, Lauren, “The Subject of True Feeling: Pain, Privacy and Politics” in A Sarat
and T Kearns (eds), Cultural Pluralism, Identity Politics and the Law (Amherst
University Press, 1999), pp 49-84.
Brown, Wendy, States of Injury: Power and Freedom in Late Modernity (Princeton
University Press, 1995).
Cvetkovich, Ann, An Archive of Feelings: Trauma, Sexuality, and Lesbian Public Cultures
(Duke University Press, 2003).
Scarry, Elaine, The Body in Pain: The Unmaking and Making of the World (Oxford
University Press, 1985).
Williams, Patricia J, “On Being the Object of Property” (1988) 14(1) Signs: Journal of
Women in Culture and Society 5.

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Seminar Seven: Fear, Compassion, and Transition (Week 8)

This week we contrast the ways in which fear/anxiety and care/compassion are
contradictorily entangled in attempts to regulate transitioning subjects ranging from
individuals bodies (such as trans and intersex people making claims for recognition) to
state borders (such as refugees making claims for asylum).

Required Reading
Fassin, Didier, “The Precarious Truth of Asylum” (2013) 25(1) Public Culture 39.
Feenon, Dermont, “Compassion in Law. What?!” (14th April 2017) SLSA Blog,
available at: http://slsablog.co.uk/blog/blog-posts/compassion-in-law-what/
(accessed 6th September 2017).

Required Listening
Jackson, Michael. “You Are Not Alone.” By Robert Kelly. HIStory: Past, Present and
Future, Book I. Epic, 1995.

Recommended Reading
Acorn, Annalise E, Compulsory Compassion: A Critique of Restorative Justice (UBC Press,
2004).
Ahmed, Sara, “Collective Feelings: Or, the Impressions Left by Others” (2004) 21(2)
Theory, Culture & Society 25.
Raj, Senthorun, ‘Queering Fears: Pro-LGBTI Refugee Cases’ in C Ashford, A Reed and
N Wake (eds) Consent and Control: Legal Perspectives on State Power (Cambridge
Scholars Press, 2016), pp 124-151.
Salecl, Renata, On Anxiety (Routledge, 2004).
Sharpe, Alex, Transgender Jurisprudence: Dysphoric Bodies of Law (Cavendish, 2002).

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Seminar Eight: Suspicion and Psychiatric Injury (Week 9)

This week we will look at the way tort law treats those claimants who suffer psychiatric
injury and will also think about defendants with mental illnesses. Negligently inflicted
mental harm is treated with suspicion; why? What makes mental harm occupy a lesser
position to physical injury? Ultimately, we're going to ask: “why so suspicious?”

Required Reading
Ahuja, Jyoti, “Liability for Psychological and Psychiatric Harm: The Road to
Recovery” (2015) 23(1) Medical Law Review 27.
Foster, Charles, “Depression and Civil Liability” in C Foster and J Herring (eds)
Depression: Law and Ethics (Oxford University Press, 2017), pp 246-250.

Required Listening
Pressley, Elvis. “Suspicious Minds.” By Mark James. You’ll Think of Me. RCA
Records, 1969.

Recommended Reading
Teff, Harvey, Causing Psychiatric and Emotional Harm (Hart, 2009), Chapters 1 and 5.
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
Liverpool Women's Hospital v Ronayne [2015] EWCA Civ 588.
RE (A minor by her litigation friend LE) & others v Calderdale and Huddersfield NHS
Foundation Trust [2017] EWHC 824 (QB).
Werb v Solent NHS Trust (15th March 2017).

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Seminar Nine: Love, Respect, and Marriage (Week 10)

This week we look at how love, dignity, and respect animate constitutional or legal
debates for relationship recognition (such as marriage equality).

Required Reading
Bailey, Sarah, “‘There’s power in love’: Read the fiery sermon at the royal wedding by
the Episcopal Church’s Michael Curry” (19th May 2018) The Washington Post,
available at:
https://www.washingtonpost.com/news/acts-of-faith/wp/2018/05/19/theres-
power-in-love-read-the-fiery-sermon-by-the-episcopal-churchs-michael-
curry/?noredirect=on&utm_term=.01de15d451fa (accessed 17th June 2018).
Joshi, Yuvraj, “The Respectable Dignity of Obergefell v. Hodges” (2015) 6 California Law
Review 117.

Required Listening
Franklin, Aretha. “Respect.” By Otis Redding. I Never Loved a Man the Way I Love You.

Atlantic, 1967.

Recommended Reading
Berlant, Lauren, The Queen of America Goes to Washington City: Essays on Sex and
Citizenship (Duke University Press, 1997).
Goodrich, Peter, Law in the Courts of Love: Literature and Other Minor Jurisprudences
(Routledge, 2002).
Huntington, Clare, “Familial Norms and Normality” (2010) 59(5) Emory Law Journal
1103.
Liao, S. Matthew, The Right to Be Loved (Oxford University Press, 2015).
Povinelli, Elizabeth, The Empire of Love: Toward a Theory of Intimacy, Genealogy, and
Carnality (Duke University Press, 2006).

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Seminar Ten: Hope, Pride, and Human Rights (Week 11)

This week we look at how hope shapes international human rights law and the way
states derive pride from subscribing to human rights norms.

Required Reading
Jensen, Derrick, “Beyond Hope” (2nd May 2006) Orion Magazine, available at:
https://orionmagazine.org/article/beyond-hope/ (accessed 6th September
2017).
Rorty, Richard, “Human Rights, Rationality and Sentimentality” in S Shute and S
Hurley (eds) On Human Rights: The Oxford Amnesty Lectures 1993 (Basic Books,
1990), pp 112-134.

Required Listening
Small, Heather. “Proud.” By Heather Small. Proud. Arista, 2000.

Recommended Reading
Berlant, Lauren. Cruel Optimism (Duke University Press, 2011).
Bersani, Leo, “Is the Rectum a Grave?” (1987) 43 AIDS: Cultural Analysis/Cultural
Activism 197.
Duggan, Lisa, “Queering the State” (1994) 39 Social Text 1.
Edelman, Lee, No Future: Queer Theory and the Death Drive (Duke University Press,
2004).
Mogul, Joey, Andrea Ritchie, and Kay Whitlock, Queer (In)Justice: The Criminalization
of LGBT People in the United States (Beacon Press, 2011).

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