Emotions in court

Thesis

This doctoral thesis aims to provide an answer to the question of why the criminal law should be concerned with the emotional response of the offender. Emotions have important instrumental aptness, such as the capacity to reveal a person's values to himself. Emotional obligations can exist within friendship, and even between strangers when the basic duty of respect has been breached. Emotions therefore have important roles to play in connection to wrongful acts between fellow citizens.

The emotions that are the most relevant to the committing of a wrong are guilt and shame. The thought content of guilt is responsibility for a wrong, while the thought content of shame focuses on a weakness of the self. In response to a wrong, guilt feelings distance the wrongdoer from the moral falsehood that was implicit in the offence, restoring relations with society. Shame might have similar beneficial effects, but it might also tie the wrongdoer closer to a personal weakness (which is only indirectly related to the wrong) and might therefore weaken the relationship with himself and society.

Preventing undesirable behavior is an aim of criminal law. Good criminal law should aim to persuade offenders to endorse the legal rule that was flouted by the offence. The law is not a suitable basis for citizen's emotional obligations, but emotions are particularly capable of allowing an offender to properly recognise certain reasons for obeying the law, such as moral reasons and reasons of respect for law. Guilt feelings in a setting of victim-offender mediation are very promising in this respect, while shame and humiliation run the risk of distancing the offender from his regard of himself as a moral person and society at large.

Authors: Luth, M; Margreet Luth-Morgan

• Alternative title: Should the criminal justice process be concerned with the offender's inner feelings?
• Publication date: 2014
• DOI: 10.5287/ora-pvkvdz8jq
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: alternative dispute resolution; restorative justice; Criminal justice process; victim; emotions; offender; guilt; shame
• Subjects: Law; Criminal Law; Criminal Law ? Jurisprudence; Philosophy of law; Legal philosophy