Not Interaction but Melding—The "Russian Dressing" Theory of Emotions: An Explanation of the Phenomenology of Emotions and Rationality with Suggested Related Maxims for Judges and Other Legal Decision Makers
Even after centuries of contrary philosophy and psychology, many commentators, jurisprudes, and law makers insist that emotions have no legitimate place in most legal decision making. This recalcitrance, of course, is misplaced in light of the powerful body of theory explaining that without emotions, decisions, including matters of law and policy, simply cannot be made. Judges, along with all societal actors, must disabuse themselves of the fallacious belief that emotions obstruct or obscure reason in all endeavors, particularly morality, law, and justice.
The project of truly apprehending emotions, however, requires more than appreciating that they play a crucial role in decision making. Additionally, we must shun the heuristic and faulty premise that an individual's ascription of meaning regarding a particular situation involves the weighing or parsing of emotions and rational contemplation as though one was analyzing a financial statement by simultaneously contrasting two columns of data. Rather, the human capacity to discern meaning arises not simply from the consideration of emotions with reason nor even from their intertwining like vines of ivy around a pole. Emotions and rationality do not simply work together; they meld into a new, unique entity that we designate as "meaning." It is the systemic fusing of emotions and reason that comprises "meaning," thus underscoring the indispensability of emotions in projects such as law making and legal analysis.
This Article first briefly recounts the psychology and philosophy of emotions within a framework of modern systems theory to explain the dynamic of how people and groups must use emotions to ascribe meaning and significance to their lives. Second, and more importantly, this Article explains that the most progressive theorists still heuristically separate emotions and rationality. That is, even some of the best minds writing on emotions have trouble conceptualizing a systemic thought process of coalescing emotion and reason yielding modes of behavior, a matrix of moral values and other indices of meaning.
Bayer, Peter Brandon
"Not Interaction but Melding—The "Russian Dressing" Theory of Emotions: An Explanation of the Phenomenology of Emotions and Rationality with Suggested Related Maxims for Judges and Other Legal Decision Makers,"
Mercer Law Review: Vol. 52
, Article 11.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol52/iss3/11