The Emotional Dimension in Legal Regulation
| Author | Bettina Lange |
| DOI | http://doi.org/10.1111/1467-6478.00216 |
| Date | 01 March 2002 |
| Published date | 01 March 2002 |
JOURNAL OF LAW AND SOCIETY
VOLUME 29, NUMBER 1, MARCH 2002
ISSN: 0263-323X, pp. 197–225
The Emotional Dimension in Legal Regulation
Bettina Lange*
This article argues that the study of legal regulation can be further
developed through an analysis of emotions because it can bring into
sharper focus the social nature of regulation. The article illustrates this
point by discussing the notion of regulatory law as an emotional
process. It then suggests various ways in which an analysis of emotions
can promote understanding of a key issue in legal regulation, the role
of structure and agency. The article concludes with a brief discussion
of how existing social science research methods can be adapted to the
study of emotions.
INTRODUCTION
This article suggests that emotional processes are one aspect of legal
regulation. Sociological analysis has made important contributions to the
understanding of regulatory processes. It has shown the significance of a
range of contextual factors, beyond formal law, in shaping the design and
implementation of legal regulation. It has, however, been limited by focusing
on cognitive aspects and by neglecting emotional dynamics of social action.
Hence, this article aims to open up a sociological analysis by suggesting that
regulating also involves the generation, expression, and management of
emotions. In order to make a contribution to regulatory theory, however, an
analysis of emotions has to be more than simply the addition of another
dependent variable or the introduction of new terminology, such as
relabelling attitudes or values of regulators and regulated as emotional
dispositions.
1
An analysis of emotions should open up new analytical terrain.
Hence the ‘opening up’ of the sociological analysis of legal regulation has to
be accompanied by a ‘narrowing down’ which brings into sharper focus a
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*Law Department, Keele University, Staffordshire ST5 5BG, England
1 A. Hochschild, ‘Ideology and Emotion Management: A Perspective and Path for
Future Research’ in Research Agendas in the Sociology of Emotions, ed. T. Kemper
(1990) 117.
key issue in legal regulation. These are law and society interrelationships
and, in particular, the possibility of constructing close links between a social
and a legal realm on the basis of an analysis of emotions. Section one of the
article further strengthens the case for analysing emotions as part of legal
regulatory processes by presenting a range of reasons for the relevance of
emotions. Section two argues that an analysis of emotions and, in particular,
the notion of regulatory law as an emotional process, enables us to perceive
strong links between a social and a legal realm. Section three illustrates how
an analysis of emotions might further develop a key area of debate, the role
of structure and agency in legal regulation. Section four concludes the article
with a discussion of methodological issues raised by integrating an analysis
of emotions into research designs on legal regulation. First of all, however,
the question what are emotions has to be addressed.
WHAT ARE EMOTIONS?
2
1. Emotion as linked to body and cognition
How to define emotions has been a matter of debate. A range of social
scientists, however, agree that emotions involve both cognitive and
physiological processes. Hence feeling is inextricably linked with thinking
and physical arousal. The definitions of emotions of two sociologists who
work within different theoretical traditions illustrate this point. Arlie
Hochschild, a social constructionist defines emotions as:
an awareness of four elements that we usually experience at the same time: a)
appraisals of a situation, b) changes in bodily sensations, c) the free or
inhibited display of expressive gestures and d) a cultural label applied to
specific constellations of the first three elements.
3
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2 Some sociologists use the terms emotion, feeling, sentiment, and affect
interchangeably (see, for example, M.L. Lyon and J.M. Barbalet, ‘Society’s Body:
Emotion and the ‘‘Somatization’’ of Social Theory’ in Embodiment and Experience:
The Existential Ground of Culture and Self, ed. T. Csordas (1994) 48. Others
distinguish, for instance, between feeling and sentiment. According to Homan
(referred to in T. Kemper, A Social Interactional Theory of Emotions (1978) 23),
feelings are actual feelings, while sentiments are the ‘activities that the members of a
particular verbal or symbolic community say are the signs of the attitudes and
feelings’ that social actors develop in interaction. Kemper (id., p. 48) uses the terms
affects or sentiments for the more enduring emotions, such as hostility or love. Levy
distinguishes emotion and feeling because they involve different relationships
between the self and the body (R. Levy, ‘The Emotions in Comparative Perspective’
in Approaches to Emotion, eds. K.R. Scherer and P. Ekman (1984) 401–3).
3 Hochschild, op. cit., n. 1, pp. 118–19.
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