Between Nomos and Pathos: Emotions in Aristotelian Theory of Adjudication and the Dual Process Theory

Abstract

Emotions play an important role in the Aristotelian theory of action since emotions can trigger action, including the actions of the judge. Aristotle concentrates on training habits of action to reach a state of mind conducive to coping with passions in a virtuous way. At the same time Aristotle observes that it is important that the law should rule rather than people. This requires that the judicial process be based on rational evaluation of the merits of a given case and optimal understanding of laws. The focus of this paper is on the antinomy, which arises from this double role of decisions—the choice between action (emotion) and deliberation (practical reason). The authors first discuss the virtue-centered approach. They concentrate on potential threats to impartiality and rational justification posed by individually fair decisions in complex cases. This problem cannot be resolved and is unavoidable in a virtue-centered approach. The second point of criticism of this approach is that it pays no attention to the interaction of reason and emotion in the judicial process. The authors then proceed to give an overview of the dual process theory, which does pay attention to this interconnectedness.