On Punishing Emotions论惩罚情绪.pdfVIP

Ratio Juris. Vol. 16 No. 1 March 2003 (37–55) On Punishing Emotions BRIAN ROSEBURY Abstract. This paper challenges recent influential arguments which would encourage legislators and courts to give weight to an assessment of the “evaluative judgements” expressed by the emotions which motivate crimes. While accepting the claim of Kahan and Nussbaum and others that emotions, other than moods, have intentional objects (“the cognitive conception”), and are not mere impulses which bypass cognition (“the mechanistic conception”), it suggests the following criticisms of their analysis. First, the concept of an emotional “evaluative judgement” tends to elide the distinction between (misleadingly named) “judgements” that are merely the sense of an emotion, and do not have the character of acts, and deliberative emotional judgements that do resemble acts and so properly fall within the corrective scope of the law. Second, intentional emotions are empowered by pre-intentional psychological resources which are less amenable than intentional states to the agent’s conscious supervision: The traditional recognition of “infirmity” in mitigation of crimes uncharacteristic of the criminal’s overall conduct towards others is justified by the unpredictable action of these pre-intentional elements and can survive the abandonment of the mechanistic conception of emotion. Introduction Could we rightly be punished for having bad emotions? Or rewarded for having good ones? Many people would regard such punishment and reward as violating an irreducible sphere of privacy in which, if we are to enjoy minimal psychological integrity and self-respect, parts of our inner life must lie beyond the reach of the law. The generally accepted “act requirement” for criminal liability protects us from punishment for emotions alone. There are, however, existing criminal law doctrines,