Lee Marsons, PhD Candidate, School of Law, University of Essex
In this post, the UK Administrative Justice Institute (UKAJI) invites contributions to a new series of blogs on the theme of ‘Emotions in Administrative Justice’. Designed to explore and extend the growing but nascent research in this area, the objective is for the series to be developed as a special issue of a journal at a later date. Among other things, contributions might explore the emotions and emotional concerns experienced by various actors and participants in the administrative justice system, what emotions and emotional processes are of particular relevance to administrative justice and why, and how public administration can be reformed to lessen negative, and enhance positive, emotional impacts.
Emotions in administrative justice
As Lisa Flower (2018) has eloquently put it: “The law is a peculiar paradox of unemotional emotionality. Whilst the involvement of emotions in law…is so obvious as to make its articulation seem almost banal…the centrality of emotions is often stifled, overlooked or rejected in order to lift the rationality of law (p. 16-17).”
In spite of the often claimed aspiration of administrative justice to ‘humanise the state bureaucracy’ and despite a comparatively healthy literature on emotion in alternative dispute resolution, as a whole administrative justice scholarship is little more nuanced, subtle, and sophisticated in its approach to emotions than legal scholarship generally. Indeed, with exceptions like Sharon Gilad’s research on ‘emotional labour’ in the Financial Ombudsman Service, emotions and administrative justice are not phrases commonly seen, understood, or analysed together.
That is a pity. It is not difficult to imagine the potentially salient and powerful connections between the two. As UKAJI has explained:
“Administrative justice concerns how we interact as individuals when the government, or those working on its behalf, act in ways that appear wrong, unfair or unjust. It encompasses matters of everyday importance to all of us, such as housing, education, health care, immigration, planning, social security and taxation.”
Thus, administrative justice can be the difference between whether someone is housed or not, receives social security payments or not, is forcibly expelled from the country or not, or gains justice after state maladministration in healthcare or not. For at least this reason, emotion lurks beneath the surface of administrative justice, and is perhaps at its core, whether or not it is at the forefront of professional analysis.
In initiating this blog series, the purpose is to link together administrative justice and the area of socio-legal scholarship known as ‘law and emotion’, which focuses on how law and its actors, procedures, and institutions are, could be, or should be related to human emotions. As a genre, this was originally devised by Susan Bandes in her edited volume, The Passions of Law.
To give a basic overview of what is meant by emotion, Lindquist et al (2013) suggest that:
“[E]motion refers to some change in subjective experience, autonomic responses (e.g., heart rate, respiration, electrodermal activity), physical action (or an increased likelihood to perform an action, such as facial muscle movements, skeletal muscle movements, etc.), as well as some perception, thought, or judgment of the surrounding world.”
It is this complex, multi-dimensional, multi-level process at the frontier of psychology and biology, that may produce commonly known ‘discrete emotions’, such as anger, anxiety, frustration, happiness, sadness, guilt, fear, and so on. Nevertheless, there are many theories and definitions of emotion, hailing from a variety of theoretical, philosophical, scientific, and methodological perspectives, and it would not be sensible to forestall debate on what emotion might mean in the administrative justice context at this stage. For now, the key question is: if emotion exists in administrative justice processes – like it exists in all other human processes – what, if anything, do we do about it?
Talking about emotions without talking about emotions
In their research on Swedish judges and defence lawyers, Bergman Blix and Wettergren (2018) argue that legal professionals develop means of ‘talking about emotions without talking about emotions’ (Stina Bergman Blix & Asa Wettergren, Professional Emotions in Court: A Sociological Perspective (1st edn, Routledge 2018 p. 7). That is, professionals are prepared to invoke suspiciously emotion-like, emotion-related, and quasi-emotional concepts (like intuition and empathy), but rarely, if ever, use the word emotion per se. There is a similar trend in administrative justice.
Even a modest attempt at research reveals that, irrespective of whether the exact word emotion is used, things sounding suspiciously like emotions have been attracting considerable attention in the world of public administration and administrative justice in recent years. This attention has operated at a range of levels. Some has focused on the macro-societal level of the country at large. Since 2015, for instance, the Office for National Statistics has produced data about nationwide personal well-being, which attempts quantitative measurement of experiences like happiness and anxiety in the general population. In addition, in a report for the Carnegie UK Trust, Julia Unwin explored the role that kindness might play in public administration, ranging from social security, to healthcare, to education, to housing.
Other attention, however, has focused on much smaller levels of analysis, down to the micro-level of individual administrative actors. The then Secretary of State for Communities and Local Government, for instance, declared in March 2018 that the Grenfell Tower Inquiry Chair, Sir Martin Moore-Bick, should manage the process with ‘empathy’ (House of Commons Hansard, 22 March 2018, Vol. 638 Col. 411).
Between the macro- and micro-levels, some scholars have focused on the meso-level of particular organisations or institutions of government. Nicola Glover-Thomas (2019), for instance, has investigated how the system of mental health tribunals could be made more therapeutic for mentally vulnerable persons, including through empathetic practice. And Kit Collingwood-Richardson, Deputy Director of Universal Credit at the Department for Work and Pensions, has argued that: “[W]e need to develop our empathy, both individually and at organisational levels. Higher-empathy policymaking practice leads to better policy, which leads to better services, which leads to efficiency and cost savings, as well as happier people out there in the real world.”
Similarly, the Local Government and Social Care Ombudsman now expressly describes one of its values as being: ‘Listen carefully with respect and empathy.’ Anna Bradley, chair of Healthwatch England, has encouraged the use of compassion in LGSCO complaints-handling: ‘Compassion is key to good complaints handling, remembering that those affected are people not case files.’ One of the few commentators to – almost – use the word emotion without obfuscation include the current Parliamentary and Health Service Ombudsman, Rob Behrens, who told the PACAC in January 2019 that: ‘We have to be more emotionally intelligent to deal with…cases on a daily basis.’
It is this growth of ‘talking about emotion without talking about emotion’, combined with its potential salience to administrative justice as mentioned above, that prompts UKAJI to initiate this call for contributions in this under-developed, but potentially fertile, field.
Questions to consider and research outputs
Abrams & Keren (2010) suggest that law and emotion scholarship has three key potentials: “to illuminate the affective features of legal problems;…to investigate these features through interdisciplinary analysis; and…to integrate that understanding into practical, normative proposals.” (p. 2002).
With this in mind, UKAJI encourages contributors to illuminate, to investigate, and to integrate emotion in administrative justice. UKAJI’s primary focus has always been on developing and using research to understand how the systems of administrative justice operate and to put forward sensible and robust proposals for reform based on this understanding. In this vein, this series offers an opportunity to advance and improve our knowledge of the role of emotion in administrative justice, a field hitherto under-acknowledged, under-developed, and under-explored, but potentially critical. In addition, the series offers the chance to develop reform proposals, whether modest or radical, in light of this new knowledge. The medium-term end goal would be to develop the contributions as a special issue of a socio-legal journal.
Without being prescriptive or proscriptive, readers may wish to consider the Table below, which outlines potential analytical approaches to contributions in the series:
Please find UKAJI’s format and style guidelines here. To express interest or for further information on the series, please contact Lee Marsons on firstname.lastname@example.org.
This post is originally appeared on the UKAJI’s blog and is reproduced here with permission and thanks.