ELTRG Seminar: Emily Kidd White (York University, Canada)- ‘On Emotions in the Philosophy of Constitutional Law’

This is a seminar organised by the Edinburgh Legal Theory Research Group. The speaker Emily Kidd White, from York University, Canada, will be presenting her paper on ‘On Emotions in the Philosophy of Constitutional Law’.

Our seminars consist of a 30-minute presentation given by the author, followed by a 60 to 90-minute Q&A. This is not a pre-read event, but the paper will be circulated beforehand through our mailing list. To subscribe, please send an email to edinburgh.legal.theory@gmail.com.

Author bio: Emily Kidd White is an Associate Professor at Osgoode Hall Law School. She holds a J.S.D. and an LL.M. from New York University School of Law, where she won the Jerome Lipper Prize for Highest Standing in the Program. Dr. Kidd White writes on constitutional law and on legal and political philosophy, with a particular interest on the various roles emotions play in legal reasoning. She is the author of Emotions in Legal Reasoning (Oxford University Press, Legal Philosophy Series, forthcoming), and, along with Susan Bandes, Jody Madeira, and Kathryn Temple, she recently co-edited the Research Handbook on Law and Emotion (Edward Elgar, 2021).

Abstract: Drawing on the philosophy of emotion, this paper will explore how a particular moralized conception of the mind emerged and then rooted as a bedrock element in modern liberal constitutional theory. 
In his groundbreaking book, Shame and Necessity, Bernard Williams speaks to the field of legal theory to criticize its sometimes-shared reverence for certain constructions of the will and notions of intention that echo some deeply held commitments within modern moral philosophy. The book uses ancient Greek Tragedy to show how a series of conclusions about ethical activity get constructed at the level of premises that order the status of emotions vis-à-vis other parts of the psyche. The book uses ancient Greek Tragedy to show how these change over time. Characteristically modern senses of control over action show themselves thin, for Williams, set against a cast of full-blooded Sophoclean characters who apprize themselves through the eyes and esteem of others. This contrast puts pressure on the emotion vs. reason distinction which rests upon a historically contingent moralized psychology that prizes a narrow and particularized conception of the will, and upon which, several core conceptions which pervade much of a particular era of constitutional law theorizing rely, particularly those pertaining to contract and consent, and broad notions of rationality.
As the paper will argue, drawing out the place of emotions within a presupposed philosophy of mind that’s already embedded in the foundations of a theory of constitutional law stands to tell us a great deal about the functions that theory fulfils. This paper will mine Williams’s Shame and Necessity, setting to light the hidden moralised ethical psychology at work in the ground-level assumptions within modern liberal constitutional theory. It will argue, following Williams, that this move represents an unacceptable narrowing. For Williams, paying attention to the emotions in ancient Greek tragedy brings into view certain now-dominant philosophical assumptions that send to the margins (or work to obscure entirely) certain ethical or political dilemmas. This paper explores why, for Williams and beyond, this represents something of a loss in a textured understanding of ethical life and political phenomenon that extends into modern constitutional theory.
 

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