From Fact to Feeling: An Explication of the Mimetic Relation Between Law and Emotion

The legal community has often been accused of constructing a closed and self-referential system comprehensible only to its members and largely disconnected from the wider interests of social justice; “law, in the forms that it is practised and taught, means domination, oppression and desolation [and] does not help but rather hinders people on the way to free society” (Bankowski and Mungham in Images of law. Routledge & Kegan Paul, London, p xi, 1976 ). If this is so, then the impoverishment of dialectical exchange is unsurprising in what is an abstracted and largely inaccessible rigid regulatory environment in which the dominant viewpoint is the only valid truth. The last decade has evidenced an increasing lack of connection between ordinary people in the world of nature and experience, and the construction of the individual or groups according to a particularistic set of arbitrary criteria imposed from within the rarefied parallel legal universe. This paper deconstructs the processes and values which continue to shape law’s truth or reality, and suggests how the imperatives of social justice are best served by a rhetorical appeal to aesthetic judgment which is informed by emotional engagement. This is not to say that moral judgements need to dispense with reason and rely wholly on feeling; rather that reason and emotion comprise a unique complementary bond. It is suggested that emotional intellect enables the pre-linguistic, preconscious organisation of raw data which facilitates the operation of formal inductive reasoning, necessary for the formulation of truly moral judgements.