Retributive Emotions and Punishment

Abstract

This article is a reflection on the role of emotions in legal decisions related to punishment determination. Drawing on a literature that attributes an evaluative-cognitive function to emotions, I will argue that emotions are cues about what we socially value, which is important for substantive and design-level decision making in the criminal justice system. In this sense, I will claim that emotions point to value judgements that are worth bearing in mind, although, to do so, it is necessary to clarify: a) on the one hand, which of them are appropriate and can be a reliable guide to punishment, its incidence and severity; and b) on the other hand, which of them are inappropriate, even if they are, in fact, operating as guides to punitive deliberation. Punishments play a social role that is not only linked to the idea of prevention, but also to reactive attitudes and emotions to the harm that is caused by criminal behaviour. This paper is an effort to highlight the potential of the study of emotions in areas of law where they have been relegated and even presented as obstacles in the delivery of justice.