While many are reeling at the election of Donald Trump to the US Presidency, it is important to pause and consider how this happened. How did a real estate tycoon, made famous by a reality TV show, come to win over an established political leader, Hillary Clinton? What are the implications of this election for the way that we think about politics and law?
The Trump phenomenon did not emerge in a vacuum. He was democratically elected by the people of the United States of America. Democracy, within Western states, is held up as one of the hallmarks of advancement and progress. One of the central presuppositions of democratic thought is that individuals act in informed and rational ways. Theoretically, the democratic narrative goes something like this: candidates are chosen from the mass of electors in a democracy and put forward for election; the candidates engage in a contest of ideas in the public sphere; and then the electors make a free, rational and informed choice regarding who they want to be their leader.
However, the US election panned out differently in practice. Trump ran on an anti-establishment platform (which is somewhat ironic, considering that the Occupy movement railed against capitalists like him) and played up the differences between himself and the political elite. His catchy slogan was easy to understand, he wanted to ‘Make America Great Again’. He presented a view that tapped into the hearts, or the emotions, of mainstream Americans who were dissatisfied with the course of events in America today. Trump’s appeal to the emotions of the American public was a crucial factor in getting him over the line.
However, this pandering to emotions allowed Americans to cast aside other parts of Trump’s rhetoric and policy unseen or unheard. The media reported and scrutinised Trump’s call for Mexico to pay for a wall which will keep Mexicans out of America. Even more attention was given to Trump’s sexist rhetoric and deplorable past conduct. Trump’s record in LGBTIQ and migrant rights is similarly awful. Trump’s rhetoric, which has been characterised as sexist, racist, homophobic and engaging in class warfare, however, seemingly fell out of public consciousness as Americans voted for a Trump Presidency. The charisma of Trump allowed American voters to overlook some of the most negative aspects of Trump’s rhetoric and policies.
Trump was a skilled political actor: he, and his team, understood that the rational and informed actor assumption of democratic theory does not necessarily hold true. Liberal political theorists have denied and dismissed the role of emotions in politics. However, a Trump election shows that now, more than ever, we are required to think more deeply about the role that emotions play within our political reality. If the power of emotions is so strong that a man who holds the values and policies towards marginalised communities that Trump does can be elected to the US Presidency, we must re-evaluate our approach to, and understanding of, the way that emotions play a role within constructing legal and political orders.
So the Trump election provides a prescient catalyst for pause and reflection from legal scholars. One of the most obvious points for reflection is the idea that decisions can be made rationally with the absence of emotion. The politico-legal order today suggests that this is not necessarily the case: the British people voted for Brexit, Duterte seized power in the Philippines, and now the US has elected Donald Trump as their president. If emotions are playing a role, perhaps scholars should place greater scrutiny on them to better understand what role they are playing in practice. However, these are all examples of the negative effects of emotion, and maybe there are positive ones too?
Martha Nussbaum’s work Upheavals of Thought, suggests that emotions and rationality are not separate. Instead, Nussbaum argues that rational actions include considerations of emotion. If the expansion of the idea of ‘rationality’ were to be widely accepted, critical scholars would need to engage with how this would play out in real world decision making. What are the implications for this view on the way that societies are ordered and decisions are made? Would it render the certainty and consistency that legal orders crave impossible?
There has been an overwhelming emotional response to the Trump election, from the despair and despondence of marginalised communities to the jubilation of conservatives and anti-establishment supporters. How do such emotional responses to political events cause continuity or change within a society?
Finally, and to my mind, most crucially, critical scholars need to consider the power dynamics of evoking, utilising and manipulating emotions. Who benefits from the absence of an emotions analysis? Whose voices are silenced by the use of emotions in law and politics? Is there a hidden race, gender, sexuality and class agenda in appeals to political emotions? How can marginalised communities win in a contest that plays on emotions? In a liberal battle of ideas that consistently moves towards progress, marginalised communities could hook arguments onto human rights. But in an emotionally driven politico-legal order, where appeals to love and respect can be fought with appeals to fear, shame and outrage, where is the foothold for progressive politics?
We are yet to see what a Trump election will actually mean. Will he make good on his promises? Or will the political establishment tame him? Nevertheless, the prospect of Trump as President is profoundly frightening. Critical scholars need to devote more attention to the role that emotions play in the political processes that shape and frame the politico-legal orders we engage with. Our colleagues in history, sociology, cultural studies and many other disciplines have already begun to think about the role of emotions in their respective disciplines. Writing in October 2016, Susan Bandes, one of the first scholars to engage with emotions in legal research, reiterated her call for greater scrutiny of the role of emotions in what she calls ‘the inhospitable terrain’ of the law. It may still be considered disruptive to normative thinking to consider the role of emotions in law and politics, but when the outcome of this is the election of men like Donald Trump it is an approach we should reconsider.
Josh Pallas is an interdisciplinary international law researcher who is completing a PhD in international law and emotions and the University of New South Wales, Sydney, Australia. Josh is also a member of the Law and Emotions Cluster of the ARC Centre of Excellence for the History of Emotions. You can find him on twitter @joshpallas.