10 - Retributive hatred: an essay on criminal liability and the emotions

Summary

It's great to be back in Chicago where people still know how to hate.

Mike Royko, on returning home after covering the 1972 Democratic Convention in San Francisco

The critical legal studies movement has, in my judgment, raised at least one important issue for jurisprudence and moral philosophy. I am thinking of its claim that traditional moralistic jurisprudence errs in confining its inquiries to formal, abstract, and public doctrines and to the intellectual rationales for those doctrines. According to the “crits,” a full philosophical grasp of law and morality requires an examination of the underlying causal forces that in part generate both the doctrines and the intellectual rationales for them. The person who seeks total enlightenment about morality and the law is invited to look, not just to the ideological superstructure, but to the underlying substructure that gives the superstructure at least a part of its point. This seems to me an invitation that those of us who practice traditional jurisprudence should accept.

I am particularly interested in the degree to which certain moral and legal doctrines are rooted in specific passions (feelings, emotions) and the degree to which a philosophical examination of those passions will have a bearing on an understanding and evaluation of the doctrines that they in part generate and for which these doctrines in part serve as rationalizations. Although not currently at the center of philosophical fashion, this type of inquiry has, of course, a venerable philosophical history.