Distancing Devices and Their Challenge to Judicial Emotion Realists – So Far, Yet so Near

Abstract

This chapter has two interrelated objectives. The first is to critique the developing concept of a ‘distancing device’. This is said to be a legal tool that creates ‘artificial reasoning’ that judges may use to prevent themselves from deciding cases based on personal preferences, such as emotions. This chapter will demonstrate that contemporary neuroscience consistently reveals the integrated nature of emotion, cognition, motivation, and reasoning. Therefore, it is a false metaphor to suggest that judges can be distanced from their emotions merely through the process of reasoning using distancing devices. Consequently, the argument is that they pose no real threat to the emotional realist insight. Given that distancing devices occur in the language of written judgments, my second objective is to outline a linguistic methodology that may be helpful to researchers exploring judicial displays of emotion in written language. No claim is made that this methodology is totalising and comprehensive, but it will nevertheless assist researchers to identify and analyse judicial emotion displays in written discourse.