Rationality, Objectivity, and Autonomy in the Legal Sphere

by Åsa Wettergren , Sara Uhnoo and Moa Bladini (Gothenburg University)

In November, Professor Åsa Wettergren and Associate Professor Sara Uhnoo from the Department of Sociology and Work Science, and Moa Bladini, Associate Professor from the Law Department at Gothenburg University, Sweden, worked at ZiF as the ZiF Visiting Group “Consent-Based Rape Legislation in Practice: Challenging Judicial Core Values”. In their research project Rape or consent? Effects of the new rape legislation on legal reasoning and practice (financed by the Swedish Riksbankens Jubileumsfond 2020-2023) they had collected loads of data and with a book contract landed at Bristol University Press they needed time to begin the analysis and start writing. The book will be published in June 2025 and has the title Challenging Judicial Core values – Consent Based Rape legislation in Practice. In this interview the researchers talk about the challenges of their project.

Is the consent‐based rape law embedded in a nonrealistic, idealized context of rational decision‐making and action?

To answer this question, we need to briefly explain our theoretical perspective. Our analysis is based on an emotion-sociological framework that views cognition as always also emotional and thus emotion and cognition are often mutually supportive. Emotions have an epistemic function and help cognition to separate relevant from irrelevant information, and to focus attention when carrying out specific tasks. The problem with the Western judicial system is that it rests on a modern conventional separation of emotion and cognition, referring emotions to the private or psychological sphere, and often associated with irrational and non-professional behavior. However, not even Max Weber made such a drastic separation between rationality and emotions. In his writings about bureaucracy and the modern law it is instead quite clear that he talks about a specific management of emotions to achieve the civil servant’s neutral and objective treatment of citizens, clients, etc. In the emotion-sociological perspective we call this a rationalist way of organizing and managing emotions, or a rationalist emotional regime. In this regime emotions that are conducive to rational action are effective in the background, just below consciousness, orienting the actor towards matters of relevance and away from distractions. Furthermore, what we may call epistemic – or knowledge seeking – emotions help legal actors to determine when they know enough and are ready to make a decision. For instance, curiosity and uncertainty are conducive to focused attention and wanting to inquire more about a specific issue. Satisfaction and certainty close the inquiry. Feeling certain is also comfortable and therefore if you have reached the point of certainty, you may emotionally and cognitively resist opening up for further inquiry even if new information shows up. We have found that when legal professionals evaluate evidence, doubt and skepticism are systematically maintained to avoid jumping to premature conclusions (before the trial is over for instance). This certainty/doubt spiral is thus conducive to an objective and rational evaluation of all evidence. Even if emotions sustain rational action in this way, however, they may not always lead to correct decisions. This is because emotional processes over time and accumulated work experience become part of the routine and habitual ways of doing things. In the Swedish judicial system, emotions are treated with suspicion (because they are seen as unprofessional) to a degree which is exceptional in an international perspective. Although all western legal systems do believe that emotions can be kept out of rational decision-making, Swedish legal professionals are perhaps particularly unused to reflecting and discussing their epistemic or other background emotions with one another. This means that they do not reflect upon the origin of their certainty or doubt, and this may lead to biased decisions.

Is that especially the case in rape legislation or is it typical also for other areas of legislation?

The consent-based rape law in fact challenges the habitual ways of evaluating evidence because it requires legal professionals to assess stories, and not just objective factual evidence or forensic data. The latter often accompanies the charges, but because the legal task is to evaluate if sex was (in)voluntary on behalf of the claimant, and whether the defendant intentionally ignored that the claimant was not participating voluntary, the hard evidence is usually secondary. For instance, if both parties agree that they had sex, which is often the case, the forensic find of semen traces is not per se incriminating. But the claimant says it was involuntary and the defendant says it was voluntary. Evaluating the credibility of the claimant’s and the defendant’s stories makes legal professionals uncomfortable because they cannot draw on their habituated method of determining if someone is guilty or not, by adding for instance objective fact to objective fact. This brings attention to lacks in legal education, such as methods for analyzing and interpreting qualitative data. It also highlights the inadequacy of the standard legal approach to a crime, which is, generally, to look at it as an isolated event, cut loose from its context and the situated relations of power and status. According to the new rape legislation, judges are now supposed to determine if consent was established or not between parties by considering the context, both relationally, spatially, and temporally. How they do it, however, is up to each individual judge. Hence judges often resort to common sense and “social facts”, which are in turn carriers of rape myths and stereotypes.

Åsa Wettergren, Sara Uhnoo and Moa Bladini. Foto: ZiF

In sum, one might say that the consent-based rape law highlights shortcomings in modern perceptions of what the law is and what it should do. Modern law is built on a simplified and dated understanding of the relation between theory (the law) and empirical data (reality as we know it). When a criminal case builds on a series of objective evidence it is easy to keep up the illusion that legal constructions can simply be pasted onto a particular crime – cut out from the messy real world and neatly encoded in legal terminology. The illusion starts to crumble when the same epistemic approach is applied to evidence that demand skills in scientific interpretive analysis of qualitative empirical data. Learning such skills, moreover, would challenge the traditional juridical notion of the legal subject’s autonomous free will. Understanding someone’s action in a specific situation as navigating complex relationships in particular space and time, runs contrary to the view that action is the outcome of an isolated subject’s clear and conscious decisions.

How can legislation deal better with how people really act and decide?

This is something we are working on as we do the analysis for the book. Given that the legal system is a conservative and slow-changing institution (which is probably a good thing in a constitutional perspective) we cannot hope for more than initializing a discussion among the ranks of legal professionals. We hope to change the current debate from a critique of the “bad quality of the evidence,“ or the “comparatively low standards of evaluating the evidence” in rape cases, to a discussion about the type of evidence and appropriate methods to assess them. This basically means introducing theory of science in law through questions about ontology and epistemology.

We also believe it is important that the law learns from social science where the area of sexuality, gender, and power has been researched for decades. After all, consent-based rape legislation is an outcome of this research. Moreover, the law needs to revise the core concepts of objectivity, rationality, and autonomy, both in terms of how these are incorporated by the legal actors (who see themselves as being objective, rational and autonomous) and in relation to the legal subjects before the court. Objectivity, as is well-known in social science, is not a position but a critically reflexive activity and a process of constant intersubjective synchronization. Rationality is dependent on both cognitive and emotional information and motives, but the emotions of rationality must be made transparent and critically reflected upon. Individual autonomy, if it exists at all in a relational world, is always bounded and context dependent.

Is this where the relation between emotion work and empathic imagination becomes relevant?

Yes, absolutely. Emotion work or emotion management is the process of aligning your emotions with the feeling rules of a specific emotional regime. This is necessary in every workplace and as mentioned earlier, with time and experience, it becomes backgrounded and habituated. But emotion work is also necessary to reflect on the background emotions informing assessments and decisions. Empathic imagination is a kind of emotion work and involves understanding someone else’s emotive-cognitive position in, and perception of, the world. The more we understand what it is like being the other the better we understand how they feel and think, and thus their actions. When we already share the position and perception of the other, we easily get a fuller and more nuanced empathic insight than if the other is socially different. The latter requires more emotive-cognitive effort, which in turn presumes interest and curiosity in learning about the other. The whole effort requires more time and more emotion work in terms of not taking the easy way down the stereotype alley. Consequently, in the book we discuss “empathy brokerage”, between the parties, as an observable and central ingredient in rape trials. Empathy brokerage is conducted by the prosecution and the defense and connected to the evaluation of the stories of the parties and how these appear reasonable (and thus credible) to the court. It involves negotiating the juridically pre-set understanding of the rationality and autonomy of actors, whereby legal actors, more or less successfully, try to facilitate the empathic imagination of the judges and convey the claimant’s or the defendant’s retold behaviors as rational given the particular situation. 

Did you make some progress at ZiF?

We certainly did! It was wonderful to cut loose from the everyday lives at our home offices in Sweden and dedicate ourselves to the data and analysis for a full month. Being in the same place and working together the same hours on the same topic for such a long time is a rare opportunity. We got the outlines of the analysis ready, planned the contents of the empirical chapters, and started working on a chapter each. The time spent at ZiF was enormously productive and worthwhile.

What are your future plans concerning the topic?

The book is the last outcome of our three-year rape-project. Now we look ahead and plan to apply for a comparative project since many European countries have also introduced consent-based rape laws recently. Moa Bladini is running a new project on judicial autonomy. We are also planning a larger inter-disciplinary research program in which the transformation of the legal system is one out of four sub-studies covering different institutions in a modern society in transition. 

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