[author]YANG Bei

[content]

YANG Bei

Law School, University of International Business and Economics

Abstract: Cognitive science has disproved the dichotomy of reason and emotion, yet this dichotomy continues to constrain legal thinking, preventing lawyers from understanding and utilizing emotional thinking, thereby causing or exacerbating social cognitive divides. Legal practices, both ancient and modern, demonstrate that emotional thinking is both a necessary and significant aspect of legal reasoning. Drawing on cognitive science research, lawyers’ emotional thinking encompasses three key implications: first, making intuitive judgments based on emotion; second, justifying legal judgments using emotion as a basis; and third, persuading others by mobilizing emotions. In contemporary society, where value judgments are increasingly diverse, emotional thinking plays a crucial role in reinforcing the legitimacy of law, bridging cognitive gaps, enhancing social acceptance, and bolstering legal authority.

Keywords: legal thinking; emotional thinking; rationalism; cognitive science

Introduction

Since Descartes, the reason-emotion dichotomy has dominated cognitive frameworks, serving as the logical foundation for many theories. In legal thinking, emotion has historically been stigmatized. Labeling a judge as “emotional” is a severe insult, implying a lack of discipline, impartiality, and rationality. Reason is presumed to be the default mode of legal thinking, with the absence of emotion considered the hallmark of rationality. In recent years, while some scholars have acknowledged the role of emotional factors in legal reasoning, the binary opposition between reason and emotion remains an implicit constraint on legal thought. Emotional thinking is largely absent from legal research, a silence disproportionate to its historical contributions. Indeed, the absence of emotional thinking is a key reason many legal judgments face criticism. Consequently, legal professionals must clarify the meaning and function of emotional thinking, fully recognize its importance, and adeptly apply it.

I. What Is Emotional Thinking for Legal Professionals?

In simple terms, emotional thinking is reasoning based on emotions. Here, “emotion” refers to a specific psychological state triggered by a particular object, corresponding to the English term “emotion.” In the Western tradition, terms like “passion,” “sentiment,” “affection,” and “feeling” once carried similar meanings, but since the mid-19th century, they have coalesced under “emotion.” Thus, emotion in this context broadly encompasses moods, passions, and feelings. Emotional thinking permeates the entire legal judgment process, from fact-finding to justification. During fact-finding, it drives reflexive, intuitive judgments; during justification, it enables reflection, analysis, and the use of emotional arguments to substantiate decisions, while fostering social acceptance through emotional resonance. Accordingly, emotional thinking for legal professionals has three primary implications:

(A) Making Legal Judgments Based on Emotion

In the fact-finding stage, emotional thinking manifests as legal professionals making unreflective, intuitive judgments based solely on their own emotions. “Legal practitioners, especially judges, often find—indeed, in most cases—that their decisions rest on an entirely different basis: an intuitive, instinctive appeal to a sense of right and wrong, practical reason, and sound human judgment (gesunder Menschenverstand).” Kirchmann even argued that “in nearly every domain of law, emotion has already selected the answer before scientific inquiry begins.” Contemporary scholars have validated these insights.

Professor Hu Changming’s empirical analysis of 1,060 theft-related criminal judgments from four grassroots courts in a specific region showed that social factors—such as the defendant’s gender, age, education, occupation, and origin—influence sentencing outcomes. These variations often align with judges’ emotions, as people tend to empathize (e.g., like or pity) with those similar to themselves. Numerous foreign studies also confirm that judges are more sympathetic to lawyers or parties resembling themselves. Before these empirical findings, the studied judges were largely unaware that social factors shaped their decisions through emotions, with some denying it even after seeing the evidence.

Occasionally, judges explicitly acknowledge emotion’s role. In the Guangzhou Huang XX Intentional Homicide Case, an elderly woman over 80, Huang XX, killed her son, who had Down syndrome since birth and was recently bedridden with atrophied limbs. Fearing he would suffer without care after her death and unwilling to burden her healthy eldest son, she fed him a large dose of sleeping pills, smothered him with a mattress, and strangled him with a scarf before surrendering. The court noted that Huang, “as the victim’s biological mother, had cared for him diligently for 46 years since his birth despite his illness. In her advanced age and frail health, tending to a deteriorating, incapacitated victim had become exceedingly difficult. Unwilling to see him suffer after her death, she committed the act of ending his life before her own. Though her actions violated the law and constituted a crime, her sorrow is pitiable, and her circumstances warrant leniency.” Consequently, her punishment was reduced, and a suspended sentence was imposed.

At this stage, emotional thinking may be conscious or unconscious but is always non-rational. Conscious emotional thinking occurs when a legal professional recognizes an emotion yet relies on it as the sole basis for judgment. Unconscious emotional thinking happens when they are unaware that their judgment stems from emotion or even that an emotion has been triggered. Since intuition’s formation remains an unexplored realm in psychology, non-rational emotional thinking may reside in the vast, deep subconscious. While it significantly affects judgments, it is not the focus here; acknowledging it merely cautions legal professionals to stay alert to emotions.

(B) Using Emotion as a Basis for Justifying Legal Judgments

In the justification stage, legal professionals may rationally use emotional factors as arguments to support a judgment, often focusing on others’ emotions. In ancient Greece, emotion-based arguments were among the three most persuasive types in courtroom rhetoric. Emotion can directly underpin a judgment—leading straight to a conclusion—or, more commonly, indirectly contribute through consequentialist reasoning by factoring into utility assessments.

In the second-instance ruling of the Wuxi Frozen Embryo Case, the court upheld four elderly plaintiffs’ rights to manage and dispose of embryos, explicitly citing emotion as a basis. The judge wrote: “In determining the rights to the embryos, the following factors must be considered: first, ethics… second, emotion. For white-haired elders to bury their black-haired children is among life’s greatest tragedies, let alone losing an only son and daughter in old age! After Shen Jie and Liu Xi’s accidental deaths, their parents could no longer enjoy familial harmony. The pain of losing an only child is beyond ordinary comprehension. The embryos left by Shen Jie and Liu Xi became the sole vessel of their families’ lineage, embodying personal interests such as mourning, spiritual solace, and emotional comfort. Allowing both sets of parents to supervise and dispose of the embryos aligns with human ethics and may alleviate their grief.”

In consequentialist reasoning, the emotional impact on others is often a key outcome. Gerald L. Clore argues that a decision’s rationality depends on whether its consequences are beneficial, a judgment reliant on value standards provided by emotions, making emotion a critical utility measure. Daniel Kahneman asserts, “Utility and emotion are inseparable; emotions are triggered by change. A decision theory ignoring feelings—such as the pain of loss or regret after error—not only misaligns with reality descriptively but also fails to maximize utility.” Thus, emotion is indispensable in assessing behavioral justifiability. Recent argumentation studies have integrated emotional preferences and psychological states into models, establishing emotion as a basis for justifying judgments in theory and practice.

(C) Securing Acceptance of Legal Judgments Through Emotion

The legal field abounds with examples of “convincing through reason and moving through emotion,” as persuasion often hinges more on emotional resonance than rational analysis. People may unconsciously accept a judgment under rationality’s guise due to emotional influence. Thus, once a judgment is legally justified, understanding emotion’s mechanisms and societal sentiments is key to maximizing acceptance, a principle evident in rhetoric’s nearly 2,000-year history.

As the oldest legal argumentation theory, rhetoric emphasizes mobilizing audience emotions. Classical rhetoricians, drawing on experience, highlighted listeners’ psychological states. In courtroom advocacy, they stressed understanding a judge’s sense of justice, interests, class, or mood, adapting to shifts in temperament. Aristotle argued that a speaker must master argumentation principles and the audience’s character and emotions, acting as both logician and psychologist. Scholars like Hobbes, Bacon, Hume, Adam Smith, and Vico valued rhetoric for harnessing emotion in persuasion. In Perelman and Olbrechts-Tyteca’s The New Rhetoric, eliciting emotions to gain acceptance remains central. They noted that “cultural facts often carry specific emotional effects—emotions forged by memory or communal pride”—and leveraging these enhances approval of judgments.

Among these implications, the first is elusive and disciplinable only through moral emotion cultivation; the latter two explicitly use emotion as a means, requiring legal professionals to understand emotional patterns—a rational application of emotion. Emotional thinking is neither the dominant nor sole mode of legal reasoning; it is a necessary, significant, yet subsidiary component.

II. The Legitimacy of Emotional Thinking in Legal Practice

Thinking modes are tools—means to ends. Their legitimacy derives from their ability to achieve specific purposes. Thus, the legitimacy of emotional thinking for legal professionals stems from its capacity to fulfill law’s goals. On one hand, emotional thinking is not reason’s opposite; the reason-emotion dichotomy lacks justification. On the other, emotion underpins law’s logic, and emotional thinking advances legal values like justice, order, and harmony.

(A) Rethinking the Reason-Emotion Dichotomy

Descartes’ reason-emotion dichotomy ignored their interplay across biological, cognitive, and behavioral dimensions. Scholars have long criticized it as “entirely artificial and contrary to actual thought processes.” Since the 1970s, cognitive science—spanning psychology, computer science, philosophy, linguistics, neuroscience, anthropology, and sociology—has refuted this divide, with Antonio Damasio leading the charge.

Using functional magnetic resonance imaging (fMRI) and 3D imaging (Brainvox), Damasio and his wife studied twelve patients with prefrontal cortex damage—a region tied to emotion. Expecting only emotional impairment, they found significant decision-making deficits too. Reasoning, emotions, and feelings were equally compromised, especially in cases with intact attention, memory, intelligence, and language, suggesting complex neural interactions among normal emotions, feelings, reasoning, and decision-making, undermining Descartes’ dichotomy physiologically.

Emotion, as a physiological process, unfolds thus: stimuli prompt bodily parts (sensory organs, muscles, viscera) to send signals via peripheral nerves to the brain, passing through the spinal cord and brainstem to the somatosensory cortex and insula. Chemical substances from bodily activity enter the bloodstream, influencing brain regions directly or indirectly. The brain evaluates and processes this, issuing commands via nerves and releasing chemicals (hormones, neurotransmitters, metabolic regulators) into the blood, eliciting bodily responses.

Typically, emotional experiences involve cognition (gathering data), appraisal (assessing significance), motivation (driving behavior), and sensation (reflecting the mind-body state). For example, a woman walking alone at night sees a burly figure emerge from an alley. Her body signals her brain, which appraises it as dangerous, triggering tensed muscles, dilated pupils, and clenched fists via nerves and blood. She then feels fear. The brain’s appraisal—potentially rational reflection, not just reflex—determines her reaction, making appraisal emotion’s linchpin and enabling rational emotional mobilization.

This rationality allows evaluation of others’ emotions: “Why aren’t you angry about an unjust imprisonment?” or “Why don’t you pity an evicted elder?” Without rational grounding, such questions would be baseless. Psychologically, rational beliefs and emotional preferences are indistinguishable; rational emotions and emotion-driven rational thought are plausible. Not all emotional arousal reaches consciousness; unconscious memories can trigger responses, meaning emotions may occur unknowingly. Some psychologists argue the reason-emotion divide merely separates unconscious from conscious emotions. Theories like emotional and ecological rationality integrate emotion, with decision theorists Hastie and Dawes proposing a rational model incorporating emotional states. If rationality is understanding the world, emotion is not its opposite. Emotional thinking can be rational or non-rational, necessitating an update to reason-centric legal reasoning models.

(B) Emotion as the Underlying Logic of Law

Throughout human evolution, emotion has been a survival strategy and social bond, eliciting reciprocal responses to strengthen ties. “A sound legal system must first conform to society’s true emotions and demands, whether right or wrong.” Emotion pervades law as its foundation and institutionalized expression. Law may primarily channel collective societal emotions—reflecting, projecting, supporting, or amplifying them. Arendt described American law’s spirit as “an emotion of active support and continuous engagement in public welfare matters.”

Law infused with emotion is experiential, not just cognitive. Emotional thinking, centered on empathy, is essential to understanding it. Without it, concepts like “dignity,” “torture,” or “emotional damages” lose meaning. Constitutionally, a nation’s constitution embodies its people’s political emotions toward the state. Civil laws like marriage and inheritance protect familial emotions, while criminal law upholds core moral sentiments, with guilt hinging on moral offense depth.

Crucially, rights stem from emotion—law’s logical starting point. In The Struggle for Rights, Jhering locates rights’ essence in emotion: “The power of law, like the power of love, resides in emotion.” Rights’ miracle arises from “the raw emotion of pain” and “moral outrage at rampant injustice,” not intellect or education. Law, in affirming rights, affirms emotions, enhancing legal comprehension through this emotional root.

(C) Emotional Thinking as the Basis for Value Judgments

Value is inherently emotional. “When we assert something has ‘value,’ we express our feelings, not a fact that holds despite differing emotions.” Value judgments are emotional choices, beyond formal logic’s reach. Logic cannot validate values or resolve their hierarchy—e.g., life versus liberty in COVID-19 responses. In a pluralistic world, seeking consensus is key to addressing value conflicts, and emotional thinking is vital. Even rationalists like Habermas and Rawls, excluding emotion from deliberation, recognize its role in fostering loyalty to rational norms and stabilizing justice emotionally.

From an emotionalist view, value judgment is about emotional persuasion, not rational compulsion. Perelman’s The New Rhetoric reframes argumentation thus, seeing concepts as comprising descriptive and emotional elements, with emotion integral to their use. Mobilizing emotion is key to persuasion. Respecting societal emotions—especially justice—guides legal professionals in identifying and resolving issues, aligning judgments with moral sensibilities.

(D) Emotional Thinking as a Pathway to Positive Social Outcomes

Judicial duties include resolving disputes and restoring order, making social impact critical. Individually, emotional thinking aids in understanding dispute origins and encourages voluntary compliance. Societally, it fosters acceptance, enhancing legal authority by aligning rulings with collective emotions.

In dispute resolution, emotional thinking unravels emotional knots—e.g., elderly parents suing for minimal support not for money but for visits. Mediation relies on transforming parties’ perceptions and emotions. Emotion catalyzes action, turning “I am required” into “I am willing,” reducing enforcement costs. Socially, rulings gain acceptance through emotional alignment, as public sentiment shapes collective consciousness. Emotional thinking enables anticipating and evoking societal emotions, strengthening legal authority via emotional ties.

III. Primary Methods of Applying Emotional Thinking by Legal Professionals

In practice, legal professionals apply emotional thinking through three main approaches:

(A) Introspection

Emotion’s influence on judgments is inevitable; denial is futile. “Legal professionals are not legal robots; we need human feelings, human warmth, and must accept human limitations.” Acknowledging this allows reflection to mitigate bias. Judicial bodies could collaborate with psychologists to develop emotion-tracking tools. Understanding emotion’s mechanisms also enables systemic measures to reduce triggers, like delegating victim representation.

When evaluating behavior, emotional responses’ propriety is assessed via empathetic role-switching—imagining oneself in another’s position, per Adam Smith’s “impartial spectator.” In the Huizhou Yu Deshui Theft Case, the judge’s empathy for the defendant, pitying a “poor child” overwhelmed by sudden wealth and later remorseful, shaped a lenient ruling.

(B) Argumentation

Emotional thinking in argumentation uses emotion rationally, subject to justificatory norms. In the Wuxi Frozen Embryo Case, the court cited universal grief as a legitimate argument. In the Yu Huan Intentional Injury Case, the appellate court considered Yu’s fear and anger, implicitly endorsed in guiding precedents, balancing legal and societal justice.

(C) Mobilization

Empathy—feeling with parties and aligning with societal emotions—is key to mobilizing emotion. Metaphors, like Justice Ginsburg’s likening marriage distinctions to milk grades, evoke resonance.  In China, “judicial postscripts” express empathy, as in a divorce case where the judge lamented the couple’s rift while urging cooperation for their child, enhancing the ruling’s moral weight. 

Conclusion

Since Descartes' rationalism dominated epistemology, worshiping-reason, suppressing-emotion thinking mode in legal field deeply-rooted. From last-century-early vending-machines to this-century intelligent-robots, legal-professionals toward prohibiting-emotion judicial mode diligently-pursue, turning facts modularized, turning laws symbolized, turning interests-balancing algorithmized. Algorithms for-us decide breakfast variety, day’s clothing, for-us choose children’s tutoring-classes, for-us arrange parents’ birthday-parties, for-us schedule clients, for-us do analyses, for-us review case-files, for-us write judgments. We in enjoying algorithm-era convenience simultaneous, surrendered all with decision-related emotional experiences, finally, we all became thin paper-people, ultimately by we created artificial-intelligence alienated. In algorithm-era emphasizing legal-professionals’ emotional-thinking, clarifying emotional-thinking positioning and application, not-is toward formal-logic dominated legal-thinking conduct counterattack-settlement, but-is toward legal-thinking conduct perfection and strengthening. If say with norms and logic dominated legal-thinking shaped legal-professionals’ attitude, then emphasizing empathy emotional-thinking then endows legal-professionals with warmth. Emotion not-is legal-professionals’ Achilles’-heel, instead perhaps-is legal-professionals perceive world third eye. Facing complex cases when, legal-professionals often need some imagination and creativity. Such abilities not logical-reasoning can provide, yet perhaps by emotional-thinking brought. After-all computational-thinking theoretical insight relatively short-sighted and without discernment, entirely by reason dominated life perhaps inevitably narrow, cold, harsh ungrateful, insight into social-life needs “supplemented-with toward certain life empathy and vivid imagination.” When logical-reasoning proceeds to water-exhausted-place, emotional-thinking spreads wings.