Emotions in constitutional design

Abstract

This paper offers a partial descriptive theory of the making and operation of the institu- tions of liberal constitutionalism. It puts the emphasis on the role of emotions, though it does not claim that emotions alone generate social and legal institutions. This essay intends only to show the one-sidedness of a rationalism that projects law as reason. In this approach law is presented as the result of conscious deliberation, perhaps horse trading of different plans and interests but, even so, as a purposive and rational ven- ture. For rationalism, emotions are separate from reason; the passions' interference in reasoning, even if irresistible, is only a troubling external nuisance. Law is described as a mechanism to counter such interference, institutionally rein- forcing reason's shelter. This isolationist position, based on the reason-emotion divide, is unsustainable. Emotions participate in building a constitution and a culture of con- stitutionalism, and then these creatures of constitutional sentiment patrol emotion display. The scientific evidence indicates that reason and emotion operate interactively in human decision making as well as in the actual process of legal institution building. Emotions are not momentary personal feelings, headaches to be forgotten as soon as the pain goes away. The scholarship regarding emotions has demonstrated that emo- tions contain social information, contribute to social coordination, and are culturally regulated. Emotions are social, because they pertain to a species that is obligatorily gregarious. 1 I offer only a brief outline of these features of emotions, summarizing what is relevant in the social interaction of emotions for social institution building. These socially interacting emotions become patterns, and the relatively stable social clusters of these emotional patterns become the facts of social life, taking the form of public sentiments. Moral judgments and moral sentiments lend to public sentiment the emotional power that enables these sentiments to shape constitutions. The legal myth is that law embodies natural moral sentiments. In fact, moral sentiments are in * Judge, The European Court of Human Rights. An earlier version of this paper was presented at the 2010 Colloquium on Global and Comparative Public Law Theory hosted at the Cardozo School of Law in cooperation with the NYU School of Law and I·CON. The issues discussed in this article are elaborated in