Constitutional Sentiments

Sajó, András (2006) Constitutional Sentiments. Acta Juridica Hungarica, 47 (1). pp. 1-13. ISSN 1216-2574

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Abstract

The principal claim of the essay is that sentiments and assumptions about senti­ments -   have an important role in setting up constitutional designs and interpretation (“evolving standards of decency”); -            constitutional arrangements do have impacts on social emotions; -                the disregard of the interrelation of emotions and other forms of cognition condemns legal theory to one-sidedness and the efforts of behavioral economics seem not to undo this one-sidedness.              For example, fear is present in the making of many constitutions. Constitutions are designed to give assurances against fear that stems from, among others, pre-constitutional oppression, mob rule and factional passions. Constitutional rights are also structured by emotions: Compassion and indignation serve as emotional grounds to accept and claim human rights.     A simplified vision of modernity claims that law and constitutional design is all about rationality. Brain imaging studies indicate that moral emotions guide many moral judgments or are in competition with reasoning processes. Of course, moral emotions contribute to the shaping of law through moral judgments. To the extent law intends to shape behavior, it will rely on its legal folk psychology. A theory of constitutional sentiments shall reconstruct the assumptions on human nature as emotional nature that shape the constitution and its interpretation. Historically, constitutional path dependence presupposes emotional choices and emotional action tendencies that are institutionalized and 'imposed' on law and society. Paradigmatic changes in constitutional law cannot be explained without considering the path-breaking rule of emotions. For example, the commitment to abolish slavery cannot be explained without the emotional condemnation (based on disgust and resulting in indignation) of the institution. The ban on torture is also rooted in sentiments of disgust. Concepts of cruel and unusual punish­ment are rooted in emotions of disgust. Law is both trying to script emotions (in order to prevent challenges to the status quo) and accommodates prevailing (or preferred) emotions (hence the difficulty of a non-revenge based criminal policy).

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