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Emotions in the Evaluation of Legal Risk

Ware, L (2016) Emotions in the Evaluation of Legal Risk. In: Landweer, H and Koppelberg, D, eds. Law and Emotion - (Recht und Emotion I: Verkannte Zusammenhänge). Neue Phänomenologie, I . Verlag Karl Alber, Freiburg, pp. 249-277. ISBN 978-3-495-48817-1. (Access to this publication is currently restricted. You may be able to access a copy if URLs are provided)

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Abstract

The risks taken into account in legal decision-mak- ing are, often, matters of life and death, but the way we think about risk is flawed. This is a problem. The dominant account of how emotions are involved in risky decision-making follows the standard probabilistic account of risk. If we entertain a modal ac- count of risk, however, this changes the way in which a host of legal actors—members of the jury, judges, defendants, lawyers, legislators, regulators, and police—ought to think about how emotions impact risk evaluation. In what follows, I examine what taking a modal account of risk would mean for the way we under- stand emotions in the evaluation of legal risk: specifically, the risk of wrongful conviction.

The present chapter draws on contemporary research in the epistemology of risk to examine how emotions can influence the evaluation of legal risk. I first review a distinction between two understandings of risk—the probabilistic account and the modal account—and demonstrate how the probabilistic account is in- complete. Next, I highlight how emotion can be seen to mediate decision-making in a series of empirical studies on the assessment of gruesome photographic evidence. I then analyse the standard accounts of how emotions play a role in risk assessment, which build upon a probabilistic account of risk. A modal account of risk and emotion is then offered, demonstrating the ways in which emotions can contribute to the evaluation of risk understood modally. Finally, I consider what legal practices and structures need to be refined or abandoned in order to facilitate the condi- tions most conducive to harnessing the evaluative power of emo- tions in legal decision-making.

Item Type: Book section
Uncontrolled keywords: emotion, law, risk, counterfactual, probability
Subjects: B Philosophy. Psychology. Religion > B Philosophy (General)
K Law > K Law (General)
Divisions: Faculties > Humanities > School of European Culture and Languages > Philosophy
Depositing User: Lauren Ware
Date Deposited: 30 Aug 2017 13:31 UTC
Last Modified: 06 Feb 2020 04:16 UTC
Resource URI: https://kar.kent.ac.uk/id/eprint/62976 (The current URI for this page, for reference purposes)
Ware, L: https://orcid.org/0000-0001-7340-4338
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