JUSTEMOTIONS: The Construction of Objectivity: An international perspective on the emotive-cognitive process of judicial decision-making

The project JUSTEMOTIONS investigates how objectivity is constructed in different legal systems by comparing legal decision-making in criminal cases in four countries. From prosecution to lower court and the court of appeal, we study the emotive-cognitive components of assessments leading to a decision to prosecute, to appeal, and the judgments of the courts.

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For people to comply with the law they must trust the judicial system to uphold rational and objective justice; trust that the courts make unbiased and impartial decisions. Objective decision-making is important both for the individuals affected by the decision, and for the public reproduction of trust in our courts. Therefore, objectivity can be seen as a foundation for the rule of law.

However, research has shown that the conventional legal understanding of objectivity as “pure reason”, without body and emotion, is problematic and builds on a false dichotomy between rationality and emotion. Rational decision-making requires facilitating emotions, for instance interest in the task and motivating emotions, such as professional pride in correct procedures and distaste for waste of time, as well as the ability to ‘feel’ the consequences of alternative actions. For legal professionals this means that objective decision-making relies on emotional information and that own emotional experiences influence for example how a person attributes blame.

Through a comparative and multi-method qualitative design, including court observations, interviews, and shadowing of legal professionals, we will study the decision-making process from prosecution, lower court, to the court of appeal in four countries, Sweden, Scotland, USA and Italy. These countries represent different legal systems (common and civil criminal law) and vary in emotional expressiveness (e.g. the Swedish subtle emotional regime versus the more expressive Italian). By contrasting decisions of three crime types – fraud, domestic abuse, and homicide – in different legal instances and in different countries, we will be able to identify and describe common features of the decision-making process based on actual practice. 

In the project, we investigate how judges and prosecutors motivate their decisions. What parts of the narratives of an event are considered legally significant or insignificant? When and how are emotions considered appropriate or inappropriate? Are there differences in how emotions come into play in the different countries and how these interact with different legal traditions? When decisions are altered between the different instances (prosecution, the lower court judgment, and the court of appeal judgment), what has changed in the evaluation or circumstances of the case?

While research from several disciplines show that emotions do influence legal decision-making and that emotion management is part of legal practice generally, empirical studies in real life situations showing how emotions impact the decision-making process still remain to be done. This unique project fills this gap and is path-breaking with respect to the civil criminal law system and in comparing different legal systems. The broad social relevance of the project lies in its clarification of the tensions between common sense justice and legal justice, a tension that in some cases has brought to question the legitimacy of the legal system.

This project is funded by the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme.  ERC Starting Grant (No 757625).

TermSeptember 2018 - August 2023.