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« Perplexed--once more--by "emotions in criminal law," Part 2: The "evaluative conception" | Main | Changing my mind on "emotions in criminal law" »

Perplexed--once more--by "emotions in criminal law": Part 1

So to try to terminate my obsession with the " 'hot hand' fallacy" fallacy, I have resorted to intellectual methadone, finding a new puzzle that I can substitute to quench my cravings but that I'm sure I'll be able to drop once those subside....

Actually, it is the issue that was in the background of yesterday's post on "changing my mind." I offered up the topic of "emotions in criminal law"--the question how the law conceives of their nature and their normative significance--as a matter on which I had acknowledged, in a published paper (Kahan 2011)-- that the position I had taken in an article written yrs earlier (Kahan & Nussbaum 1996) had come to seem wrong to me based on things I had learned in the interim.

But in the course of reminding myself what position I had adopted in the later paper, it occurred to me that there were certain things about it that now seemed hard to reconcile with what I'd learned in the 4 yrs since I wrote that paper....

So I'm going to try work out what my new for-now position should be based on the current state of how I understand various not directly observable things in the world to work.  

In the course of doing that, moreover, I want to advance a claim about being in exactly this situation -- of finding that what one offered as a well-considered account of some phenomenon has to be qualified or simply replcaed with a different position based on new things one has learned.

The claim is that this should be a normal, even common-place thing.  Or at least it should be if one, first, chooses to devote one's attention to matters of genuine complexity, phenomena the workings of which are not demonstrable on the basis of direct inspection but rather only indirectly inferrable on the basis of evidence, i.e., additional phenomena that can be observed and that one has reason to believe are caused by those nonobservable complex matters; and, second, recognizes that anything pertinent one discovers under these conditions necessarily doesn't settle the issue but rather supplies one only with more or less reason to credit one plausible account, rather than another, about what's really going on.

For in that situation, whatever one's current best undertanding is will be in the nature of an estimate of a very fine quantity, and ones' work in the nature of progressively more precise measurements, which can be expected to jump from one side of some critical value to the other and back again as one's knowledge continues to expland . . . .

This is actually how things look, more or less, within a "progressive research program" that engages the collaborative, conversational attention of a group of researchers engaged in scholarly conversation.

So shouldn't it in be the way the work of any particular researcher working within such a program looks, too, if he or she is genuinely trying to figure out the truth about some complex thing, the operations of which cannot be directly see but rather only indirectly inferred on the basis of disciplined observation & measurement?....

Well, anyway, this post is the first of what I anticipate will be between 3 and 600 on the evolution of my understanding on "emotions in criminal law," which has been marked by a series of shifting positions animated by a constant state of perplexity.

In this first part, I reproduce an excerpt from Two Conceptions of Two Conceptions of Emotion, the essay I mentioned in yesterday's post, which is designed to conjure apprehension of the unobservable phenomenon apprehension of which is the goal of the inquiry.

* * *


To introduce (or re-introduce) the puzzle I am concerned with, I will start with a pair of old decisions, both by the Oklahoma Court of Criminal Appeals. The issue in each was the same: whether the trial court erred by foreclosing the effective presentation of an insanity defense by a man charged with murder for killing his wife’s paramour.

In the first case, the court reversed the defendant’s conviction.[1] “Two doctors,” the court noted, “testified that the defendant . . . temporarily lost control of his mental processes” as a result of the “provocation” of his wife’s seduction.[2] “[W]e can perceive,” the court continued, that

a man of good moral character such as that possessed by the defendant, highly respected in his community, having regard for his duties as a husband and the virtue of women, upon learning of the immorality of his wife, might be shocked, or such knowledge might prey upon his mind and cause temporary insanity. In fact it would appear that such would be the most likely consequence of obtaining such information.[3]

In the second case, however, the court affirmed the conviction.[4] In that case, the court noted, “the state, over the objections of the defendant,” introduced evidence of “specific conduct tending to show . . . the defendant [to be] . . . a rounder and a libertine”:[5]

Facts were shown indicating that defendant's ideals of the sanctity of the home and the virtue of women were not so exalted, and that therefore the shock to his mind and finer sensibilities could not be so very great--at least not so great as to unbalance his mind. . . .

We think, in reason, that the shock would not be so great as it would to a man of refined sensibilities, having high conceptions of the sanctity of the home and the virtue of women.[6]

Thus, any trial rulings that prevented him from presenting a temporary insanity defense, the court held, were at most harmless error.

What’s really going on here? That is the question that any thoughtful reader who sets these two opinions out next to each other will feel compelled to ask. The court’s conclusion is straightforward: discovery of a wife’s infidelity is likely to deprive a sexually faithful man of his ability to comprehend or control his actions; such a discovery is not likely to have that effect, however, on an unfaithful man. But what’s not so straightforward is how to integrate the mélange of psychological and moral concepts that inform the court’s reasoning—“intensity of mental shock,” “unbalan[cing of] mind,” “loss of control,” on the one hand; “good moral character,” “regard for . . . the virtue of women,” “rounder and libertine,” on the other—into a coherent whole. How exactly does the court conceive of the nature of the emotional state of the “mentally insane” offender? What is it, precisely, about that condition that entitles someone to a defense?

These questions try to make sense of the decisions in philosophical or jurisprudential terms; but we might also feel impelled to ask “what is going on here” from a psychological or even political point of view. Do the judges really believe their own explanation of the distinction between two cases? Or are they deliberately concealing part of what they think from view? If concealing, are they trying to fool us, or are they just being coy? Do we imagine them straight-faced and earnest, or winking and slyly grinning, as they pronounce their judgments?

What’s likely to strike thoughtful readers as puzzling about these two decisions, it turns out, is the puzzle of emotions in criminal law. The discordant pictures that the decisions paint—of “highly respected” men of “good moral character” who are “shocked” to the point of mindless “loss of control,” on the one hand; of “rounders and libertines,” whose own lack of virtue insulates them from “mind-unbalancing” assaults on their reason, on the other—pervades basic doctrines and their application.

“Detached reflection cannot be demanded in the presence of an uplifted knife,” we are told.[7] Hence we cannot blame the “true man” who refuses to flee “an assailant, who by violence or surprise maliciously seeks to” drive him from a public place “where [he] has the right to be.”[8] But the woman who “ ‘believed herself . . . doomed . . .  to a life of the worst kind of torture and . . . degradation” cannot on that basis be excused for killing her abusive husband in his sleep: because she had the option of leaving their home and striking out on her own, her will was not overcome by the “primal impulse” of “self-preservation.”[9]

A man who “discovered his wife in flagrante delicto with a man who was a total stranger to him, and at a time when [he] was trying to save his marriage and was deeply concerned about both his wife and his young child,” will necessarily experience the form of “ungovernable passion” that mitigates first-degree murder to manslaughter.[10] The same volitional impairment cannot be imputed to the man who kills the lover of his mistress, however, for he “has no such right to control the woman as a husband has to control his wife.”[11]

The deep “shame” of being subjected to rape is one of the “physical and mental injuries, the natural and probable result of which would render the [an unmarried woman] mentally irresponsible,” making her subsequent commission of suicide an act attributable to her rapist, who could therefore be convicted of murder.[12] But a man could not be deemed to have “caused” the death of his (8-months pregnant) wife—“a high tempered woman” who was “hard to get along with” and who on previous “occasions ran off and left her husband” alone with the couple’s infant—because her decision to expose herself to the nighttime cold of winter in fleeing their farmhouse was her own choice following a fight.[13]

Again and again, we are confronted with a kaleidoscope of dissonant reports of virtuous offenders too mentally enfeebled to obey the law and impassioned ones too vicious not to be deemed to have “voluntarily” chosen to transgress. So what is really going on?


[1] Hamilton v. State, 244 P.2d 328 (Okla. Crim. App. 1952).

[2] Id. at 335.

[3] Id.

[4] Coffeen v. State, 210 P. 288 (Okla. Crim. App. 1922).

[5] Id. at 290.

[6] Id. at 290-91

[7] Brown v. United States, 256 U.S. 335, 343 (1921) (Holmes, J.).

[8] State v. Bartlett, 71 S.W. 148, 152 (Mo. 1902).

[9] State v. Norman, 378 S.E.2d 8, 11, 12-13 (N.C. 1989).

[10] State v. Thornton, 730 S.W.2d 309, 312, 315 (Tenn. 1987).

[11] Rex v. Greening, 3 KB. 846, 849 (1913).

[12] Stephenson v. State, 179 N.E. 633, 635, 649 (Ind. 1932).

[13] Hendrickson v. Commonwealth, 3 S.W. 166, 167 (Ky. Ct. App. 1887).


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