47 Acta Jur. Hng. 1 (2006)

handle is hein.journals/ajur47 and id is 1 raw text is: 
















1216-2574 / USD 20.00                                           ACTA  JURIDICA   HUNGARICA
@ 2006  Akadimiai  Kiadd, Budapest                                  47, No 1, pp. 1-13 (2006)
                                                               DOI: 10.1556/AJur.47.2006.1.1



ANDRXs SAJ6*


Constitutional Sentiments

    Abstract. The principal claim of the essay is that sentiments and assumptions about senti-
    ments
        -  have an important role in setting up constitutional designs and interpretation (evolving
    standards of decency);
        -  constitutional arrangements do have impacts on social emotions;
        -  the disregard of the interrelation of emotions and other forms of cognition condemns
    legal theory to one-sidedness and the efforts of behavioral economics seem not to undo this
    one-sidedness.
        For  example, fear is present in the making of many constitutions. Constitutions are
    designed to give assurances against fear that stems from, among others, pre-constitutional
    oppression, mob  rule and factional passions. Constitutional rights are also structured by
    emotions: Compassion   and indignation serve as emotional grounds to accept and claim
    human  rights.
        A  simplified vision of modernity claims that law and constitutional design is all about
    rationality. Brain imaging studies indicate that moral emotions guide many moral judgments or
    are in competition with reasoning processes. Of course, moral emotions contribute to the
    shaping of law through moral judgments. To the extent law intends to shape behavior, it will
    rely on its legal folk psychology. A theory of constitutional sentiments shall reconstruct
    the assumptions on human  nature as emotional nature that shape the constitution and its
    interpretation.
        Historically, constitutional path dependence presupposes emotional choices and emotional
    action tendencies that are institutionalized and 'imposed' on law and society. Paradigmatic
    changes in constitutional law cannot be explained without considering the path-breaking rule
    of emotions. For example, the commitment to abolish slavery cannot be explained without the
    emotional condemnation (based on disgust and resulting in indignation) of the institution. The
    ban on torture is also rooted in sentiments of disgust. Concepts of cruel and unusual punish-
    ment  are rooted in emotions of disgust. Law is both trying to script emotions (in order to
    prevent challenges to the status quo) and accommodates prevailing (or preferred) emotions
    (hence the difficulty of a non-revenge based criminal policy).

    Keywords:  constitutional design, psychology, enlightenment, militant democracy, politics
    of emotion, social risk evaluation, populism





    * Member of the Hungarian Academy of Sciences, Professor of Law, Institute for

Legal  Studies of the Hungarian   Academy of Sciences, H-1014, Budapest, Orszdghiz u.
30.; Professor, Central European   University, Legal  Studies.
E-mail:  sajoand@ceu.hu

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