摘要：In response to Dean Martha Minow’s 2014 Brennan Center Jorde Symposium Lecture, Forgiveness, Law, and Justice, 103 Calif. L. Rev. 1615 (2015), available here. Can we use legal institutions to cultivate forgiveness after mass violence, genocide, or pervasive group-based injustice? This is the question Dean Martha Minow asks in her provocative and pathbreaking Jorde Lecture. Yet she also poses a question that is simpler and broader in its reach: Should we attempt to use law in a purposive way to shape or foster human feeling? Both questions, as Minow acknowledges, evoke skepticism from those who see law as a field of objectivity and reason, or those who view law as ineluctably and exclusively bound to norms such as consistency, predictability, and the resolution of discrete controversies. However, as I argue in this Essay, these questions also elicit doubts from a less probable group of critics: scholars who have come to view law and emotions as deeply intertwined. Although Minow is less focused on this group of critics, their concerns merit close attention; they frame an important set of questions facing this emerging field of scholarship. Most law and emotions scholars agree that we can use a rich, interdisciplinary understanding of human emotions to assess, critique, or revise legal rules and institutions. But there is more ambivalence about whether we can or should use the instrumentalities of the law to encourage or shape emotions in socially ameliorative ways. Although Minow’s primary focus is on probing the instrumentalities of repair following mass violence, her essay provides a clear model of how we might pursue this second possibility as well, using the law’s potential to support, foster, or cultivate pro-social emotions. In Part I, I offer a brief outline of the scholarship on law and emotions, which distinguishes two facets of its effort. The predominant strand of analysis, described in Part I.A, examines emotion’s effects on law, defined as legal doctrine or the work of legal actors. A second body of work, explored in Part I.B, investigates law’s effects on emotions, contemplating purposeful efforts to probe, incentivize, or cultivate emotions through law. This second strand of analysis has proved more controversial among law and emotions scholars, particularly where it envisions using law to mobilize or promote moral or other pro-social emotions. To illuminate this controversy, I examine several works by law and emotions scholars that reflect such skepticism. Though the work is varied,
