RN11_03b: Emotions and the Law
To Master the Stone Face: Learning and Habituating Judicial Emotions in Court
1Uppsala University, Sweden; 2University of Gothenburg, Sweden
This paper examines the learning and habituation of tacit emotion management necessary to sustain professional feeling norms and behavioural boundaries and techniques; the ‘emotive-cognitive frame’ of judges. The analysis is based on data from Sweden, building on a civil law system where judge is a career profession with specific training after law school. 43 judges at different stages of their career were interviewed and shadowed during their workday, including observations of court hearings. We find that the overarching demand for autonomy requires continuous self-evaluation, developed through several phases linked to increasing experience. During clerk training, the seemingly contradictory expectations of independence and emotional astuteness towards those of higher rank become consolidated and internalized. During judge training, autonomy develops through continuous self-evaluation to ensure conformity with standard judicial performance, epitomized by the stone face. Experienced judges may question the relevance of the stone-face norm, but to a large extent remain loyal to this ideal. For the more senior judges, the stone face can become solidified as a mask, but their habituated autonomy also paves the way for an ability to demonstrate emotional presence during hearings and discretion in evaluations.
The Feeling of Justice - Emotion-cognitive Processes of Judicial Decisions
Uppsala University, Sweden
The idea of objectivity as disembodied and unemotional, which lies at the core of the criminal justice system, is currently challenged by the growing field of law and emotion. The aim of this presentation is to develop an understanding of the emotion work engaged in by judges and prosecutors when evaluating and assessing evidence in fraud and intimate partner violence (IPV) cases. While fraud usually requires technical evidence and tends not to raise expectations of emotionality, the main evidence in IPV cases is often the testimonies of the victim and witnesses and these cases are generally regarded to be emotion-laden. Drawing on ethnographic data from an ongoing research project in Sweden, encompassing observations of hearings and deliberations, shadowing and interviewing prosecutors and professional judges, the comparison between these different types of crime provides a rich description of emotional processes in judicial decisions. The analysis demonstrates that judicial decision-making in practice is oriented by emotional information and investigates how this orientation, conceptualized as the emotive-cognitive judicial frame (Westergren & Bergman 2016), comes into play in court proceeding and deliberations in the context of a civil law system.
Learning and Habituating Prosecutorial Emotions
1University of Gothenburg, Sweden; 2Uppsala University, Sweden
In order for boundaries and norms of legal professional actors to settle and reproduce, the ‘emotive-cognitive judicial frame’ must be habituated; professional feeling rules and behavioural requirements must be incorporated as part of the professional identity. This paper investigates how the emotive-cognitive judicial frame becomes habituated with growing experience, from prosecutorial training to experienced prosecutors. 41 prosecutors in different stages of their career were interviewed once or twice while being shadowed in their daily work, during preliminary investigations and in court. Around 300 criminal hearings, involving prosecutors, were observed. For prosecutors ‘bounded independence’ – independent self-confident performance of objective prosecutorial powers which is paradoxically dependent on the efficient and deferential work of other professional groups – is a core competence. Bounded independence requires flexible use of techniques of emotional astuteness and elaborate insensitivity. The first phase of habituating bounded independence is learning how to distance oneself from one’s own foreground emotions of embarrassment and insecurity, as well as from others’ communication of irritation, frustration and ridicule. Elaborate insensitivity protects prosecutors from attempts by others to weaken their self-confident performance. In the second phase, the need to manage one’s own foreground emotions decreases as emotion work becomes routinized. The performance of independence develops into a strategic and nuanced display of objectivity. In the final phase, emotional distance becomes securely habituated, allowing situated emotional presence and skilfully strategic emotional displays. Although independence is a critical individual requirement for inclusion within the rank and file of prosecutors, it builds on a solid ground of group solidarity and collective support.