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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

April 18, 2011

Emotions and Decisions

Inherent in many legal rules is the ideal of a human as a rational and unemotional decision-maker. For example, we instruct the jury not to be “swayed by sympathy, prejudice, or passion”. We attempt to ascertain whether or not a confession was the result of “a rational intellect and a free will.” We are required to decide whether evidence should be excluded because the evidence “appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish” or has a “tendency to suggest a decision on an improper basis, commonly, although not necessarily, an emotional one.”

The concerns that these rules attempt to address are legitimate, but the conception of human actors as rational decision-makers is, most likely, erroneous. This misconception is a foundation of neo-classical economics, and through the law and economics movement, this erroneous view has been further reinforced within the law.

David Brooks, in his recent book, The Social Animal, discusses this misconception. According to Brooks, the view of humans as rational, logical thinkers was the product of the French Enlightenment “led by thinkers like Descartes, Rousseau, Voltaire, and Condorcet.”[i] Brooks contrasts them with the English Enlightenment thinkers of David Hume, Adam Smith, and Edmund Burke who more clearly understood the role of emotion in being human. Brooks quotes Hume: “Reason is and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them.”

The research regarding human decision- making puts emotions at its center. A decision is not a calculation of sums, but an intuitive, partly subconscious resolution. According to Brooks, “It is nonsensical to talk about rational thought without unconscious thought” as rational thought is built upon the unconscious thought.[ii] Unconscious thought, although at times extremely good at making correct decisions, can also lead us astray in our decision making. I attempted to address some of those problems of thinking in earlier blog entries.

Jonah Lehrer, in his book “How We Decide” discusses how emotions play a central role in decision making. Plato analogized human reason as a charioteer driving one well-mannered horse and also an ill-mannered horse of the emotions. Plato was wrong again. Lehrer describes research regarding a brain damaged subject who is unable to make a decision. Lehrer writes: “For too long, people have disparaged the emotional brain, blaming our feelings for all of our mistakes. The truth is far more interesting. What we discover when we look at the brain is that the horses and charioteer depend upon each other. If it weren’t for our emotions, reason wouldn’t exist at all.”[iii]

Lehrer’s book has many interesting ideas, including the type of intelligence required to be an outstanding professional quarterback (It isn’t superior rational skill, and for some of the reasons discussed in his book, I was glad the Packers had Aaron Rodgers at quarterback during the last Super Bowl rather than Brett Favre.). Emotions are central to many decisions, including complex decisions, such as that which jurors often face during a trial.

Brooks’ book discusses research on human behavior in many different contexts. Although the book is structured on the somewhat corny life stories of fictional characters Raymond and Erica, it’s an easy, but worthwhile, read for anyone interested in human behavior.



[i] Brooks, David, 2011, The Social Animal—The Hidden Sources of Love Character and Achievement, Random House, N.Y., p. 233-34.

[ii] Ibid, p. 239

[iii] Lehrer, Jonah, 2009, How We Decide, Houghton Mifflin Harcourt Publishing Company, N.Y., N.Y. p13

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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