Emotions and Sentiments in Judicial Deliberation

Abstract

The traditional perspective on emotions, anchored in the Western philosophical tradition, assumes an irretrievable dualism between emotions and reason. Emotions are assumed as forces, which can blind a person’s view and lead them to do terrible things. For this reason, emotions must be put aside during rational deliberation. For common sense, including legal common sense, emotions are dangerous and are unrelated to rational decision-making. Nevertheless, Aristotelian’s perspective on the relationship between emotions, reason and practical deliberation is enlightening. Emotions are not blind forces completely divorced from reason. Aristotle did not develop a complete theory of emotions but recognized a strong covariance between emotions/passions/sentiments and thoughts. This research is based on three theoretical pillars: Aristotle’s perspective on the relationship between reason and emotions drawn on Nicomachean Ethics and Rethoric, the jurisprudencialism, a jurisphilosophical approach elaborated by Antonio Castanheira Neves, and Terry Maroney’s model for judicial emotion regulation. The power of judgement is assumed mainly as a practical task, which involves the excellence of phronesis, virtues and emotions/sentiments/passions.