See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/235733231

Rights and emotions, or: on the importance of having the right emotions

Article · January 2004

CITATIONS READS

7 489

1 author:

Paul Stenner
The Open University (UK)
132 PUBLICATIONS   4,380 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Open Psychology Research Centre View project

Spinozist concern with affect View project

All content following this page was uploaded by Paul Stenner on 19 May 2014.

The user has requested enhancement of the downloaded file.

Rights and emotions, or: the importance of having the right emotions 1

Paul Stenner

Department of Psychology
University College, London
Fachbereich Rechtswissenschaft
Universität Frankfurt am Main

Abstract

In the following paper I take a theoretical look at what it might mean to ‘feel the right
feelings’. In so doing I try to show that emotional life – far from existing in a natural state
beneath obstacles that prevent its expression – is always already intimately connected with
moral questions of rights. Whilst this insight is far from new, I try to tackle it in a new way by
addressing directly the problem of how rights, understood generally, come into contact with
emotions. This requires a discussion of the difference between moral right and legal right,
and of the dynamics between them. Following this path necessarily takes me into territory that
is for the most part alien to psychologists. I hope to show that a detour into problems usually
reserved for moral philosophy, political science, jurisprudence and historical sociology is
nevertheless relevant to the task of understanding how a psychological phenomenon like the
experience of emotions is shaped, patterned or structured by the moral and legal orders of
social systems.

1. The constant fear that one day all will be exposed, or: having the right emotions

“He will be kind and tender and perhaps… I shall sit there and listen, my soul heavy
with guilt. But is my soul heavy with guilt? No! And that is why I frighten myself.
What weighs upon me is something else. Fear. The constant fear that one day all will
be exposed. And as well as fear, the shame. But since I feel no true repentance I can
feel no true shame. Yes, fear tortures me, and shame at my deceit. But I feel no shame
at my guilt, or at least not enough. And it’s that which is destroying me. It’s terrible if
all women are like this. And if they aren’t, then something is wrong with me.
Something is wrong with me and I lack the right feelings. When I was a child, old
Niemeyer said the right feelings were what counted. That if you had them you were
spared the worst. But if you hadn’t, then you were in mortal danger and in the Devil’s
possession. Good God is that how I am?” She laid down her head and wept bitterly.
(Theodore Fontane, 1895, Effi Briest)

The task of this paper is to begin to develop a theoretical framework for analysing the
relationship between emotions and rights. Any such relationship, particularly when expressed
in so general a manner, is of course highly complex in nature. To reduce some of this
complexity, let me begin with a simple way into this relationship. The simplicity of this way
is gained only at the price of a very general and ambiguous usage of the word ‘right’, but

1
The present paper is based upon research that was funded by fellowships from the Alexander von Humboldt
Stiftung, and the Leverhulme Trust. A version of the paper was presented in 2003 at the Kolloquium
Entwicklungspsychologie of the Freien Universität Berlin, and at the Institut für Sozialforschung, Frankfurt. I
thank both groups for the excellent discussions that ensued. A version of the paper has been published in German
in the Forum Kritische Psychologie, 47 (2004): 39–55.

1
some of the complexity will be reintroduced in due course. On this simple, general level, the
question of the relationship between emotions and rights can be put as follows: what are the
right emotions to feel in particular circumstances? This is the predicament that Effi Briest
illustrates so well. 2 She appears both to lack the right feelings and to feel the wrong feelings.
The concept of right here has strong moral connotations. That is to say, the ‘right’ emotions
are not just somehow ‘accurate’ emotions, or even natural emotions. They are the appropriate
emotions. This implies an ordered vantage point from which such feelings can be judged
appropriate or inappropriate. Following Rom Harré, we could call this a “moral order”.
Ordered or patterned by a moral order are the conditions under which people can be praised or
blamed. A moral order, we might say, supplies a means of orientation that enhances the
likelihood that people can be positioned as blameable or praiseworthy. We might call the first
of these positions opened up by the moral order the bad position, and the second the good
position. We routinely describe the person in the good position as being “in the right”.

So, Effi is aware that she should feel guilt at having betrayed her husband, but she does not.
She should feel shame in the face of her guilt, but she does not. She should feel true
repentance, but she does not. She does feel shame, but only at the fact of having acted
deceitfully, not at having committed a sin. And she feels fear, “the constant fear that one day
all will be exposed”. This too falls into the category of ‘wrong feelings felt’ as opposed to
‘right feelings not felt’. That is to say, whilst it is no surprise that people hide their sins, it is
hardly, and especially in a Christian context, the right thing to do.

The object of Effi’s fear is interestingly ambiguous, and worth dwelling on. On the one hand,
it is a constant fear that the infidelity will be exposed. She fears the moral condemnation that
will follow such an exposure. On the other hand, it is specifically a fear of feeling the wrong
feelings and of what that means about who she is. It is this that she presents as ‘destroying
her’, since here the consequence is not simply moral condemnation by others, but, in the
words of wise old Niemeyer, the mortal danger of a life in the devil’s possession. These more
radical and destructive feelings follow, it seems, from Effi having adopted the position of a
second order observer of her own consciousness. She observes and describes not only her
emotional responses to her actions, but also her emotional responses to her emotional
responses. New emotions of fear and distress result from this meta-observation of her
inappropriate emotional consciousness, and also new possibilities for self-description. She
literally frightens herself. Hence we must distinguish two forms of the fear of exposure that
Effi describes:

• The first is a comparatively normal fear of being blamed for a wrong that has been
committed. The fear of exposure to the condemnation of one’s peers, and all that might
follow from that.
• The second is a more complex fear, not of judgement by way of the moral order, but of the
dawning possibility that one is somehow beyond the judgement of the moral order. This is
the terror of the second order observation that she may be radically outside the fold of her
community 3 and thus “in the Devil’s possession”.
2
In what follows I will treat Effi as if she were a real individual and not an invented character of Theodore
Fontane. Elsewhere I hope to show the importance of the novelistic medium in the generation of the emotional
literacy that has become increasingly central to highly individualised late modern social systems. It is of great
importance that Effi, as second-order observer of her own emotions (see below), is herself merely a description
based on observations by Fontane, only to be presented as an object of further observation to a novel-reading
public that can then use this resource to better observe and experience their own observations and experiences
about their emotions! (See also Luhmann, 1998).
3
“It is that self which is able to maintain itself in the community, that is recognized in the community in so far
as it recognizes the others” (G.H. Mead, cited in Honneth, 1986: 78).

2
Significantly, it is in this second context that she questions whether “all women are like this”,
or whether she is completely alone in her emotional isolation from the moral order of her
social system. It would appear that much hangs on the answer to this question. Either her
situation speaks of her own personal deviance, or of a terrible but general social situation to
which all her contemporaries are subjected. 4 Either way, the means of orientation provided by
the moral order is here itself found questionable, and not just the person judged by it.

2. The good position, or: having a right to one’s emotions

As someone in the situation of having committed adultery, Effi finds herself in the bad
position. As long as she hides the fact, of course, this bad position remains private or
psychological and not yet public. Should it become public, her husband would occupy the
good position of the so-called moral high ground. This good position is clearly not
subjectively good, since those whose partners are unfaithful typically feel a bad combination
of jealousy, anger, dejection, shame, fear and so forth. We might say that it is ‘objectively’
good, however, since it is marked out as such from the quasi-external vantage point of the
moral order. 5 In the case of somebody in the good position, it becomes plausible to talk of
them, precisely not as having the right or wrong emotions, but as having a right to their
emotions. This distinction merits further exploration.

Effi’s husband, from the vantage point of the moral order, has a right to be jealous or
otherwise upset. 6 This also means that he has a right to have these emotions taken seriously,
and, if necessary, translated into action. He has a right because his good position as such is
perceived to deserve defending and bolstering. If he is unsure about his feelings (which is
likely given their negative qualities and the unpleasant nature of the circumstances he must
face) then he can be assured through social communication that he acts rightly in
acknowledging and following them. The ‘a’ in ‘having a right’ conveys all the weight of
moral support granted to the holder of the good position.

Moral questions such as this therefore intimately, and classically, involve the figure of an
asymmetry or imbalance that, in the name of moral justice, must be brought back into
symmetry or balance. The moral order is, in this sense, an elaborately constructed set of
weighing scales, the quasi-objectivity of which is affirmed each moment that it operates. He
in the good position is morally ‘in credit’, and she – the debtor in the bad position – owes him
his due. This is why the feeling of guilt proper to the one in the bad position is literally the
painful acknowledgement of debt. 7 As the acknowledgement of debt, the acknowledgement

4
“It is when we detect our own weaknesses that we come to pity or despise mankind. The human nature from
which we then turn away is the human nature we have discovered in the depths of our own being. The evil is so
well screened, the secret so universally kept, that in this case each individual is the dupe of all: however severely
we may profess to judge other men, at bottom we think them better than ourselves. On this happy illusion much
of our social life is grounded.” Henri Bergson (1986: 11–12).
5
This is not to contradict the mundane fact that what that external vantage point actually is needs to be argued
out and constructed rhetorically (cf. Stenner, 1993 for a worked example in relation to jealousy). As discursive
construction, to the extent that it is moral, it refers to a ‘third position’ that must be affirmed as such by those
subject to it.
6
What is decisive here is not to be found in the nature of the emotion experienced. The overly suspicious
jealousy of a wrongful accuser will, given a moral order sensitive to this issue, land that person in the bad
position, and the solidity of their feelings will be undermined through social communication (should it be
allowed to occur) not bolstered (see Stenner and Stainton Rogers, 1998). Obviously, however, such responses
depend upon the moral order at play. In many societies even suspicions of jealousy, on the part of husbands, are
authorised to be taken as morally serious (see Stenner, 1992).
7
This is explicit in German, where the English words ‘debt’ and ‘guilt’ are both translated by Schuld.

3
of guilt implicitly orients the guilty one towards recognition of the violated norm, and
therefore towards a repayment that might restore the lost equilibrium. The realignment of a
disturbance in the balanced relations of recognition that constitute a moral order is at the heart
of moral justice. 8 That is why guilt is the right emotion, and why no other emotion will do.
Likewise, the anger, contempt and resentment proper to the good position scream for
recognition of the violated norm. Forgiveness will also do, but only on condition that the
forgiven is aware of the actuality of their violation, thus affirming the quasi-objectivity of the
moral order. The moral situation can be pictured as a children’s see-saw with the good
position represented by the child held up off the ground by the weight of the bad position
rooted firmly on the floor. The point of equilibrium exactly between them is the quasi-
objective third position of moral right. When the person up there on the moral high ground of
the see-saw or scales has those emotions they have a right to, and when the bad position is
weighed down by the right feelings of guilt, it is as if both of them point in unison to the
moral norm at play between and beyond them, at the fulcrum. This makes it possible to assert
the paradoxical conclusion that the transcendent nature of the moral order is anchored in
emotional experience. To feel the right emotions is literally to embody the moral order, 9 and
to actualise its truth.

3. The two emotional sources of moral right

Such predicaments as Effi’s illustrate one way in which questions of rights, in this moral
sense, are implicated in the structuring or patterning of people’s emotional possibilities.
Radical social constructionists such as Rom Harré (1986) are surely right, then, in suggesting
that something like guilt could not exist without a moral order 10 . But it is equally true that a
moral order could not exist without guilt.

That emotions are subject to moral judgements and social control is no doubt in large part a
consequence of the motivational role they can be seen to play with respect to conduct and

8
For Hegel, a “disturbance and violation of social relations of recognition” is the basis of Spirit’s unfolding
ethical progress (Honneth, 1996:6).
9
The asymmetry in the use of this little ‘a’ in the phrase ‘having a right’ is thus a direct reflection of the
asymmetry in the moral situation. That is to say, the person in the bad position is rarely described as having a
right to their emotions, whereas the person in the good position is usually so described. Likewise the person in
the good position is rarely described as having the right or wrong emotions, whereas the person in the bad
position is usually so described.
10
This relationship between moral right and emotion has, albeit implicitly, been central to studies of the social
psychology, sociology, anthropology and history of emotions over the past few decades. Analytic concepts such
as “feeling rules”, “structure of feeling” and “emotionology” have been developed (e.g. Hochschild, 1983;
Stearns, 1989). These have been applied to shed light on such things as the cultural and historical variability of
emotional life as a function of shifting moral orders, and the patterning of emotion in relation to social structure,
power, economics and so forth. Typically these accounts have articulated themselves as against the demoralised
treatment of individual psychology and biology (see footnote 6). Contrary to the proposition that specific
emotion words refer to specifiable empirical organic or psychic referents, the social constructionist argument has
been advanced to the effect that emotions are moral and hence social ‘all the way down’. To describe oneself as
envious or proud or ashamed is to deploy a socially available discursive resource to describe a social response to
a social situation that in turn serves social functions. For Rom Harré (1986), for instance, the biological
processes that typically (but not necessarily) occur during emotional episodes cannot alone be considered
emotions. Rather, it is the discursive, usually moral, distinctions at play in language that are constitutive of
particular emotions. The difference between jealousy and envy, to illustrate this essentially Wittgensteinian
point, hangs on the question of whether a social object is understood to be owned by an actor who fears its loss,
or whether it is coveted by an actor to whom it does not yet belong. The decisive difference between these
emotions is hence to be found in the social domain of rightful propriety, and not in the organic domain of
autonomic functioning or neuro-chemistry, or the psychic domain of information processing or consciousness.
This social ordering is simultaneously a form of ordering of consciousness. If envy thinks ‘where IT, is I shall
be’, then jealousy thinks ‘where I am, IT shall be’.

4
communication. This is an ancient and prevalent theme, already well articulated in Aristotle’s
Ethics, which contains a detailed analysis of what we now call ‘emotions’ in relation to
character. The Seven Deadly Sins and the Seven Cardinal Virtues provide another striking
example of an obvious exercise in the moralisation of specific emotions as part of the
elaborate moral order of Christianity. Indeed ethical, moral and religious systems without
central reference to emotions are the exception to the rule. 11 The Stoics, the Epicureans, the
Neo-Platonists; St Paul, St. Aquinas and St. Augustine; Descartes, Spinoza, Hobbes; Smith,
Kant and Rousseau: each of them articulated their deeply influential ethical and moral visions
in relation to a systematic meditation on what are variously called passions, sentiments,
affects, feelings and emotions. It is even possible, without crass oversimplification, to discern
in this history of meditation on moral order an interesting bifurcation. On the one hand there
are those who take the general category of the passions as that which must at all costs be
mastered, restrained or controlled in order to produce morally acceptable behaviour (Plato, the
Stoics, St Paul, Descartes, Hobbes and Kant, for instance). Whilst on the other are those who,
on the contrary, find in emotional life the positive source of morality (here the Epicureans and
Rousseau are good examples).

In fact, a consideration of this (ideal-typical) historical bifurcation will enable us to

reintroduce a little more complexity into the concept of moral right in order better to
understand its relations with emotions. When we ask the question ‘what is right?’ we find in
the tradition rapidly sketched above two ideal-typical answers. For Plato, Descartes and
company right moral conduct is ensured through reference to a norm that transcends everyday
human existence. The transcendent norm is the source of all value, and everyday human
existence is for the most part merely its degraded and more or less worthless shadow. One
finds the answer to the question ‘what is right?’ only in that norm. By virtue of one’s
mundane humanity, of course, one is forever falling short of the ideal. Given that human
emotions are very much a part of the mundane particularity of everyday human existence,
they play only a negative role in the identification of right. More precisely, they motivate
wrong, since they lead to greed, petty strife, supercilious pride, aggression and violence,
covetousness and so on. They naturally motivate the kind of anti-social self-interest that leads
us, like parasites, to take from others whilst giving nothing in return. Our emotions, in short,
are a force against right since they perpetually pull towards moral disequilibrium and hence
must be ceaselessly pulled into moral line. We might call that process of realignment right
justification. 12 Emotions are emblematic of the heavy, concrete particularity that prevents us
from soaring to the rational heights of the light, transcendent purity where true right is to be
discovered. 13

For Epicurus, Rousseau and company the contrary is the case. We can learn the nature of right
only through careful attention to our innermost feelings. The metaphor of airy heights is
11
As I have argued elsewhere (Stenner, 1992), seen against this historical background, the early history of
modern psychology and biology of emotion, beginning with Darwin and continuing until today via William
James, Walter Cannon and so forth, shows up as an exercise in the de-moralising of emotional life. Stripped of
lofty discussions of vice and virtue and the possibility of a good life, emotions are presented as functions of an
organic system in its environment and, occasionally, the relationship of this system to consciousness. It seems to
me that William James’ provocative question “what is emotion?” should not be read merely as a call for an
empirical answer that might fill a gap in our existing knowledge. It is at the same time, and typically for James, a
deeply existential question: what is this thing that has provided the positive or negative ground for the value of
our very existence?
12
This is intended as a pun on the word-processing function that serves to align text down the right-hand margin
of a page.
13
According to Exodus 19, Jehovah gave Moses the tables of the Decalogue on the heights of Mount Sinai.
Platonic forms are likewise located in the heavens in contrast to the cave. Kant distinguishes empirical from
transcendental and knowable phenomena from unknowable noumena. The theme is endlessly repeatable.

5
reversed and replaced with a quest to find right in the hidden depths. Beneath the layers of
social convention that numb our natural sensitivity can be discovered, in our true feelings, the
only sure and trustworthy moral sensor. This replacement of heights with depths leaves intact
the contrast between a mundane, everyday world, on the one hand, and the source of right, on
the other. In this case, however, the mundane world is the world of society, order and
regulation, inauthentic chit-chat, heartless exchange, and so forth. It is beneath the surface, in
our true feelings, that right is to be discovered, and not in an external norm or law.

So, on the one hand we do right only by adopting a combative stance towards our affects –
literally fighting them in order to transcend them and thereby do what reason, tradition,
society or religion dictates our duty to be. On the other hand we do right only by following
and trusting our true feelings. 14 Tomkins (1963) has identified what appears to be the same
Bergsonian polarity in his research on affects and ideology. Research using the ideological
polarity scale he designed to tap this distinction suggests that endorsement of what he calls a
norm-centred or a human-centred position can be best predicted from answers given to the
question: ‘Is human nature basically good or basically bad?’. From the ‘norm-centred’
perspective human nature is considered as essentially bad and in need of rectification by
norms. From the ‘human-centred’ perspective, in contrast, human nature is considered as
essentially good and in need of protection from social corruption. According to Tomkins
(1963), this polarity maps onto a range of themes from pedagogical style to epistemological
preference. The political nature of the polarity is also apparent. The idea that people are
basically moral but corrupted by social arrangements is a recurrent theme in liberal thought
and also to some extent in Marxism. Symmetrically, the idea that people are egotistical brutes
driven to satisfy their unquenchable passions by whatever means necessary is typical of
conservative ideology.

It is also striking that in moral terminology and iconography, the good position is always
depicted on the right side of the scale, and the bad position on the left. It is not accidental that
this corresponds with our use of the words right and left in politics. 15

Norm-centrism and human-centrism thus seem to be two important sources of morality. If this
is so, then once again we find moral right intimately related with emotion. This relationship, it
seems, has a double form in which one aspect is the inverse of the other. At stake in this
double-form, as we have seen, is the very definition of human nature, since in one case
humanity is identified with the emotions (the true emotions which transcend mundane
society) whilst in the other it is identified with their negation (since emotions are taken to be
as emblematic of mundane reality).

14
The contemporary relevance of these accounts, in various forms, amongst ordinary British people was
empirically demonstrated using Q methodology in Stenner (1992). Understandings of the meaning and value of
emotionality, in other words, split broadly into ‘romantic’ and ‘classic’ variations.
15
This polarity also shows up in social theory. Take the three classic ‘fathers’ of modern sociology. Furthest to
the left we have Marx, whose overarching concerns can be said to be with a combination of justice (in the form
of a profound critique of existing bourgeois law and morality based on a humanitarian concern with the
alienation and exploitation of workers) and self-realization (the possibility of fulfilling true, un-alienated, human
potential). Next to Marx is Weber with his chief preoccupation of freedom (which lies behind his ambivalence
towards rationalization and bureaucratisation). And on the right we have Durkheim, whose overriding
preoccupation was with moral commitment as the necessary foundation for a social order that necessarily
transcends individuals (who must partake in the conscience collective). The first two criticise society from the
perspective of what human beings require (Marx with optimism, Weber more pessimistically), whilst the third
judges individuals from the perspective of what a society requires.

6
4. Law

The moral sense of right is not the only meaning of right. Morality, by definition, tends
towards the absolute, and is not to be compromised by the demands of mundane reality. But
even the strictest of moralists recognise that we need to live in a mundane reality too. When
we look to the question of the regulation and ordering of the conflicts and complications of
mundane social life, we rapidly encounter law. This leads us to pose the question of the
relationship between legal rights and emotions, and of the relationship between moral rights
and legal rights.

Niklas Luhmann begins chapter 5 of his 1981 book Aufdifferenzierung des Rechts with the
following ironic comment: “Das Recht hat etwas mit sozialen Konflikten zu tun”. Law refers
to conflict and serves to regulate conduct in cases of conflict. In so doing, law serves what
Luhmann considers to be its principal function of stabilising social conduct by solidifying
expectations and rendering the social world more predictable.

Michel Serres, in his 1992 book Le Contrat Naturel discusses the origins of law in ancient
Egypt. Periodically, the River Nile would flood and submerge the highly fertile land at its
borders. The flood with its silt and mud would erase the borders that enclosed individual plots
of land in the alluvial valley and marked to whom they belonged. Order is returned to chaos.
At the return of low water, royal officials called harpedonaptai would begin again the task of
measuring up the land in order to divide it into parts that could then be attributed to those with
claims. This is the legal task of making decisions, literally cuts, which assign limits. The
decision is made by these royal officials, who draw upon expertise in geometry and surveying
as much as law. The limits that they assign stop disputes amongst neighbours, and allow life
to go on predictably and in relative peace.

In the work of the harpedonaptai, Serres finds the origin of legal right: here, the right to
property. A plot of ground is enclosed and attributed to somebody, by right. Through the
mediating role of a third position, each person is put in a place that is officially recognised to
be theirs. 16 Civil and private law are born. That same official recognition permits those who
represent this third position to collect taxes from those thereby positioned. Public and fiscal
law are born. The social order begins to solidify and crystallize. 17

Legal rights therefore permit a specifically legal mode of recognition that is designed to lend
order to everyday social life. An authorised third party intervenes between subjects who are
thus able to organise and integrate their action to correspond to this socially shared and agreed
legal norm. The operation of law requires and fosters a ‘norm-centred’ orientation, because
the legal norm is external in the sense of being something that exists prior to any dispute
between subjects. The subjects in dispute do not have to settle the question “what is right?”

16
“In recognition, the self ceases to be this individual. It exists by right in recognition, that is, no longer in its
immediate existence. The one who is recognized is recognized as immediately counting as such, through his
being – but this being is itself generated from the concept. It is recognized being (anerkanntes Sein). Man is
necessarily recognized and necessarily gives recognition… As recognizing, man is himself this movement, and
this movement itself is what supersedes his natural state: he is recognition” (Hegel, cited in Honneth, 1996: 42).
Here, in his meditations on natural law, Hegel articulates what we might call the assumption, in the religious
meaning of the term, of the natural human into the communicative circuits of the social system. As immediate
existence becomes anerkanntes Sein, emotions enter into ‘right justification’.
17
“Laws are like nuclei around which crystallize popular instincts, which, without their support, would remain
fluid and indeterminant” (Georges Sorel, cited in Greil, 1981: 72).

7
between themselves, 18 or by way of morality alone, since the law exists precisely to settle that
question. This is what lends legal right its perceived cold and unemotional character. Hot
disputes are, we might say, neutralised. That is to say, they are partitioned by way of cold,
neutral, decisions. We might say that the emotionally grounded ‘guilt’ proper to the moral
order is transformed into the rational judgement of ‘guilt’ proper to the communications of a
legal system. In fact, in so far as the law processes and sorts out conflicts, it can be said to be
sorting out the products of what will often be, on some level, moral disputes. In shifting moral
disputes onto a legal register, a certain emotional cooling is achieved and rendered expectable.

5. Law, morality, emotions

If the law fosters a norm-centred orientation, then this is only intensified by the fact that the
norms of a legal system tend at the same time to be supplemented and bolstered by those of
the moral order in such a way that legal right is made to correspond as far as possible with
moral right. The law, for example, is typically lent a sacred justification. 19 Thought of
spatially, legal right as positive social facticity comes, in such cases, to be smoothly inserted
as the middle stratum between the two paradoxical aspects of morality identified earlier:
transcendence (the upper stratum), and the experience of emotions in which it is anchored (the
lower stratum). Morality both stands above and lies beneath the law, and, as it were, sustains
it from both sources.

But legal right is not always harmonised with moral right. When the two fall out of harmony
or out of ‘synchrony’ we witness the reappearance of the human-centred orientation, this time
in the guise of a morality in conflict with law. Such disjunctions between legal right and
moral right can take the form either of a moral right that is rendered illegal or of a legal right
that is considered immoral. In such circumstances, the law itself is called into question on
grounds of morality. This is of particular interest to us, since, as will be shown, emotional life
is then rapidly drawn back into direct relevance.

A good example of a legal right judged to be immoral is provided by the English Enclosure
Movement. Particularly between the 15th and the 19th century, common land was
progressively fenced off and turned into the private property of increasingly wealthy
landlords. This process resulted in large numbers of tenant farmers being displaced with no
compensation into a life of poverty and destitution. This process was legally legitimated
through the allocation of property rights to those who grabbed the land. A political movement
developed which condemned this legal right from the moral perspective of its injustice. For
such a political movement of moral protest to develop, the emotions of resentment, anger and
so forth experienced by the disenfranchised must be affirmed to be the morally valid basis of
a demand for restored equilibrium. The social movement then coheres around these morally
supported feelings. To the extent that the law can be plausibly presented as having violated
the balance of moral order, it can be placed in the bad position. This positioning, and the
bolstering of resentment that it involves, is clearly in evidence in the following popular poem
from the height of the movement (see Boyle, 2002):

The law locks up the man or woman

Who steals the goose from off the common
But leaves the greater villain loose

18
In which case, as La Fontane illustrates in his fable ‘the wolf and the lamb’, the will of the strongest tends to
prevail as ‘right’.
19
As seen in the case of the harpedonaptai, or in the case of the correspondence of law and morality in ancient
Jewish law.

8
 Who steals the common from off the goose.

The law demands that we atone

When we take things we do not own
But leaves the lords and ladies fine
Who take things that are yours and mine.

The poor and wretched don’t escape

If they conspire the law to break;
This must be so but they endure
Those who conspire to make the law.

The law locks up the man or woman

Who steals the goose from off the common
And geese will still a common lack
Till they go and steal it back.

To the extent that morality transcends the law, it provides a higher authority from which
vantage point the law can be judged. To the extent that it underlies it, it supplies the emotional
energy or motivation which can, under the right circumstances, function as a motor for the
transformation both of law and of society itself. In such circumstances, poems, songs, novels,
political tracts and so forth serve to articulate the emotional experiences of resentment,
righteous anger, shame and disrespect into a coherent pool of shared consciousness. A ‘we’ is
created. “The law demands that we atone”. This ‘we’ is effectively an emotional source of
moral commitment and political motivation. The other side of this discursive articulation of
moral and emotional experience is the identification of the bad position: “those who conspire
to make the law”; those “Lords and ladies fine” who are left by the law to “take things that are
yours and mine”. In this way, such protest narratives serve also to identify the target towards
which actions motivated by the emotions of the good position should be aimed. 20

The criticism of legal right from the standpoint of moral right tends to be human-centred to
the extent that morality teaches us to consider, as human creatures, human claims of injustice,
suffering and so forth. There comes a point, it could be said, when the value of suffering and
oppressed human beings comes to outweigh that of the existing social order. At that point a
human-centred consciousness may prevail over a norm-centred orientation. But in its
transcendental aspects, morality, as discussed earlier, demands no less of a norm-centred
orientation than law. 21

In fact, the human-centred orientation really only comes into its own as an option, historically
speaking, once the transcendental basis legitimating social order comes radically into
question. That is to say, with the so-called Enlightenment. With a transcendental God playing
an increasingly minor role, morality must find its source in human nature. 22 The result is that
the transcendent becomes humanised; and vice versa. To the extent that society comes to exist
20
“The motivating force of the whole socialist movement is the opposition between morality and law, which
comes about whenever consciousness reaches a certain degree of maturity when man dares to see and reflect and
when he thinks about debatable applications of juridical rules” (Sorel, cited in Greil, 1981:73).
This question is also central to the work of Axel Honneth, who proposes “that the experience of disrespect
represents the affective source of knowledge for social resistance and collective uprisings” (1996:143).
21
As is particularly apparent in the moral theories articulated by norm-centred thinkers such as Kant.
22
This can be found in the depths of the newly created self, as with Rousseau, or in the capacity for reason, as in
Kant. Or it can be found sociologically as that which serves a social function of integration (as in Durkheim), or
psychologically as a naturally unfolding cognitive capacity (as in Kohlberg).

9
no longer for the sake of God, then it must exist for the sake of itself. The result is that society
itself increasingly becomes the sole remaining justification for its politics. Any new morality
must be deployed for the good of social progress, however defined. That is to say, with
modernity, right comes increasingly to be articulated and claimed directly in the name of
humanity. 23

6. Conclusion

I conclude, therefore, by opening up the question of human rights, which I do not have time to
address in this paper. Suffice it to say that with the American Bill of Rights and the French
Declaration of the Rights of Man we enter a new configuration in which emotions and rights
come to play a more and more central role in social life. In what I have said so far I hope at
least to have pointed to some of the interesting complexity to be found at the interface
between human emotions and rights. Specifically, I hope to have provided some conceptual
tools that help to show the extent to which emotional experience and expression are shaped
and patterned by those claims that are sanctioned by one’s location in the local moral order of
a community. I hope to have presented a convincing case for the existence of two distinct
sources of morality, one that finds right in the depths of emotions, and one that finds it in
transcendent norms. And I hope to have illustrated something of the dynamic between legal
right and moral right that informs processes of social change through a marshalling of those
moral emotions that occur with the experience of violated right.

References

Agemben, G. (1998). Homo Sacer: Sovereign power and bare life. Stanford University Press:
Stanford, California.
Arendt, H. (1990). On Revolution. Penguin: Harmondsworth.
Bergson, H. (1986). The Two Sources of Morality and Religion. The University of Notre
Dame Press: Notre Dame, Indiana.
Boyle, J. (2002). Fencing off ideas: Enclosure and the disappearance of the public domain.
Daedalus, Spring 2002: 13–25.
Boltanski, L. (1999). Distant Suffering: Morality, media and politics. Cambridge University
Press: Cambridge.
Greil, A. L. (1981). Georges Sorel and the Sociology of Virtue. University Press of America:
Washington D.C.
Harré, R. (1986) (Ed). The Social Construction of Emotions. Blackwell: Oxford.
Honneth, A. (1996). The Struggle for Recogntion. Blackwell: Oxford.
Hochschild, A. R. (1983). The Managed Heart: The commercialisation of human feeling.
University of California Press: Berkeley, California.
Luhmann, N. (1981). Ausdifferenzierung des Rechts. Suhrkamp Verlag: Frankfurt am Main.
Luhmann, N. (1998). Observations on Modernity. Stanford University Press: Stanford,
California.
23
For Rousseau, for instance, the law is subjected to a vicious attack in the name of a morality grounded in
oppressed humanity: “The first person who, having fenced off his land, took it into his hands to say ‘This is
mine’ and found people simple enough to believe him was the true founder of civil society” (1964: 164). The
same can be said for those resounding words in the Communist Manifesto: “Your jurisprudence is but the will of
the class made into a law for all”. For Hannah Arendt (1990), Rousseau marks the theoretical introduction of the
theme of pity into politics, the practical application of which was overseen by Robespierre and his followers (the
Reign of Terror was exercised always in the name of the good position, the so-called ‘Republic of Virtue”). On
this see also Boltanski (1999), Sznaider (2001) and Agamben (1998).

10
 Rousseau, J.J. (1964). Ouevres Completes, Vol.3, Bibliothèque de la Pléiade. Gallimard:
Paris.
Serres, M. (1982). Le Contrat Naturel. Editions François Bourin: Paris.
Sznaider, N. (2001). The Compassionate Temperament: Care and cruelty in modern society.
Rowman and Littlefield: Oxford.
Stearns, P. (1989). Jealousy: The evolution of an emotion in American history. New York
University Press: New York.
Stenner, P. (1992). Feeling Deconstructed? With particular reference to jealousy. PhD Thesis,
University of Reading.
Stenner, P. (1993). Discoursing jealousy. In E. Burman and I. Parker (eds) Discourse Analytic
Research: repertoires and readings of texts in action. London: Routledge.
Stenner, P. and Stainton Rogers, R. (1998). Jealousy as a Manifold of Divergent
Understandings: a Q methodological investigation. The European Journal of Social
Psychology, 28, 71–94.
Tomkins, S. (1963). The right and the left: a basic dimension of ideology and personality. In
R. W. White (ed). The Study of Lives. Atherton Press: New York.

Address for correspondence

Department of Psychology,
University College London,
Gower Street,
LondonWC1E 6BT.
Email: p.stenner@ucl.ac.uk

11

View publication stats