Transversal Dimension C: The Binding Force and the Emotive Foundations of the Law

To which extent emotions can be used as a basis for the validity and acceptance of standards is an issue relevant not only to human rights, but also to the law in general. Looking beyond the juridical sources of law doctrine, which is sceptical of an emotive basis for the validity of the law, it can be seen that various types of “legal beliefs” are pervaded by emotion, as is the sense of justice on which the social validity of the law is based in large part. Incidentally, not only is the social science debate on the actual extent to which emotions pervade the law currently experiencing a revival, especially in the United States, but we are also seeing a perhaps unexpected call from the juridical sphere for a “culture of a sense of justice” (Rechtsgefühlskultur).
Modern trends in human rights and international humanitarian law (jus in bello) thrive on emotive influences that go far deeper than mere empathy. Strong emotional elements were already apparent in the 1899 Hague Convention II – Laws and Customs of War on Land, which introduced concepts such as “laws of humanity” and “dictates of the public conscience” (Martens Clause). It is precisely the emotionally based suggestive power of individual cases upon which many of the bold legal developments introduced by international courts (European Court of Human Rights, Inter-American Court of Human Rights) are based. But what values do we need to be aware of when establishing normative global systems in order to move beyond discredited natural law and a positivity blind to any values and mobilise a sense of justice which, while it may be based on different concepts of community, allegiance and solidarity, is essential if we are to rise up and take a position on the world in order to endow it with a sense of meaning?
A more differentiated response to this issue requires that we view the economic, political and communal spheres as facts to be understood in a social science context. As such, we need to move beyond the general significance of emotions in the law to address the question of the extent to which we can identify patterns of emotional foundation that affect one sphere -(political, economic or communal) more than another. Addressing the emotive foundations of modern law in the context of globalisation also means transcending the civilisation of collective feelings in criminal law to discuss the affective charging of the non society-based law of transnational normative orders. The fact that this law, e.g. European law and especially “Humanity’s Law” (R. Teitel), often lacks any binding force may be a result of the difficulty we have in developing an empathetic link to others across large distances. But what didactic and sensitising potential can be developed in this context by forms of “remote justice”, such as tribunals, which have had (and now increasingly have) to issue rulings in cases involving a complete dehumanisation of the world?
As such, there is also a need to examine the force du droit and adherence to the law as variables, both in the horizontal comparison of cultures and in the vertical hierarchy of orders. Admittedly, we can no longer simply assume that the traditional nation state is the natural point of reference for any and every type of adherence to the law if, for example, social groups or religious communities demand validity for particular concepts of order and state legislative standards pointing to affiliation clash with universal human rights at the same time. As such, the issue of the extent to which the respective content of standards appeals to a sense of justice stands in opposition to the initially unrelated question of proximity to or distance from the institutions creating and applying the law. At the same time, neither of these questions can be answered in general terms, but rather only with reference to the respective cultural contexts concerned. This issue becomes even more controversial against the backdrop of individualisation processes which now sometimes go hand in hand with aspirations of influence that tend towards self-empowerment. For example, the established diagnostic apparatus of medical expertise is called into question in order to create one’s own therapeutic approach based on internet research, and enraged citizens challenge the decision-making authority of political bodies and processes even when it is democratically legitimate. Under such conditions, the old issue of the acceptance of the law re-emerges, especially where complaints with greater or lesser weight about a lack of legitimacy find their way into the discourse, for example, as a result of the legislative bodies being structurally or functionally overloaded.
Against this backdrop, adherence to the law can increasingly be interpreted as an issue of “representative culture”. The term is used here to refer to cases where claims of validity extend beyond the group of their socio-structural supporters and can be asserted within various parameters. This contrasts with all forms of culture which are a purely performative expression of a particular social group and, as such, can be referred to using the counter term of socio-structurally “congruent culture”. As such, these two terms are useful for describing the contrast between social norms of groups and the universal claim of validity made by the law and answering in a new light the question about the significance of culture for the acceptance of the law in relation to the interference between norms and the law. In the sociology of law, this question has to date been answered in institutional terms at times by referring to the function of the enforcement staff, especially where advancing differentiation and specialisation in legal fields and legal norms is in some cases dramatically increasing the distance between the law and the “lifeworld” of people. Wherever the authority of the police, the courts and prosecuting authorities is called into question more generally and the internationalisation of legal cases could potentially lead to a lack of legitimation, the issue of recognition beyond the use of enforcement apparatus becomes more critical and points to a large number of social ties which guarantee adherence to the law through congruency between social group norms and the law, wherever they correspond.