Emotion Experiments in Legal Thought

Abstract

This essay argues that the simulation of emotion, which also results in multiple shifts of moral perspective, can generate insight into matters of value, and thereby also assist in making potential justificatory resources in legal reasoning. The essay examines two practices that both, though in different ways, enable the simulation of emotion and the multiple shifting of moral perspective: first, the practice of inventing and exchanging colores in the ancient Roman pedagogical practice of declamations; and second, the practice of using hypothetical narratives in common law reasoning. In the case of the declamations, emotion is simulated, and moral perspective is shifted, by an intensively interactive process of inventing, critiquing and improving upon possible and alternative motivations and intentions of characters in the declamatory themata. Similarly, in common law reasoning, emotion is simulated, and moral perspective shifted, by the construction of hypothetical narratives, offering alternative or counter-hypothetical narratives, amplifying existing ones, and distinguishing hypothetical narratives from the facts of the instant case. Ultimately, the essay argues that one of the most effective ways of reasoning about matters of value is through the affectively-laden multiple shifting of moral perspective.