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Legal hopes: enhancing resilience through the external cultivation of positive emotions

Legitimated by rationality and grounded in claims of dispassion and objectivity, the law has been reluctant to acknowledge its relationship to the emotions.1 When legal actors have recognized emotion, their focus has often been on negative emotions – from vengeance to shame or regret ― and the way that their amplification, control, or redirection can shape doctrine, or contribute to the achievement of legal goals.2 Legal thinkers have been slower to embrace a role in which legal actors use law to achieve emotional goals, rather than using emotion to achieve legal goals.3 This has been true, a fortiori, where the goal of legal action is to foster positive emotions, such as hope, interest, joy, or feelings of affection or solidarity. The spectre of an intrusive state coercing the performance of sham emotions4 has slowed exploration in this potentially productive area. In this article, we challenge legal scholars to rethink this reluctance, by exploring one context in which the legal cultivation of positive emotions may prove particularly useful. This context is the fostering of resilience, defined either as the capacity for normal development in circumstances of chronic stress or deprivation (e.g. extreme poverty or parental violence or drug use), or as the ability of less systematically disadvantaged individuals to respond productively to more acute stressors (e.g. unemployment, or death or illness of a family member). A growing psychological literature has highlighted the role of positive emotions in producing resilience and has emphasized the role of habituation in fostering such emotions. Drawing on our earlier work on the legal cultivation of hope, we argue that habituation to positive affective responses can be achieved not only by self-regulation and therapeutic intervention, but by programmatic interventions prescribed by law.