In proposing to rationalise law, this book draws on a workable although
potentially difficult distinction between rationality and irrationality.
31
Rational
decision-making is detached and intellectual. Irrational decision-making, by
contrast, is personal and based on feelings.
32
This distinction between rational
and irrational echoes a number of opposites or contrasts -
cognitive and
affective functions, information and sensation, intellect and emotion, sense and
sensibility, idealism and pragmatism,
33
reason and rhetoric, head and heart, and
left brain and right brain.
These processes correlate to some extent with two aspects of humankind. One
aspect is represented by homo sapiens, the
rational human who thinks and
plans ahead;
the other aspect by homo sentiens, the feeling or emotional
human.
34
However, decision makers who act rationally rather than irrationally
still have emotions. They differ from irrational decision makers in that they are
able to control their emotions by possessing what Daniel Goleman labels
emotional intelligence.
35
The distinction between rationality and irrationality is reflected in two major
and contrasting theories of human behaviour. Behaviourism treats humans as
rational animals who calculate their self interest, in particular the likely pleasure
___________________
31
See McCrone (1993).
32
In Northern Securities Co v United States 193 US 197, pp 400-401 (1904) Justice
Oliver Wendell Holmes commented how an extraneous but noteworthy factor in a
case both “appeals to the feelings and distorts the judgment”.
33
Naffire, Wundersitz, Gale (1991)
34
This distinction between rational and irrational appears in Max Weber’s
analysis of human action -
see Elwell (1996). (i) Action can be rational either as
zweckrational or wertrational. Zweckrational action is “technocratic thinking”
where rational means are deployed to achieve an instrumental goal such as
buying a house, finding a marriage partner or obtaining a university degree.
Wertrational is using rational means to pursue symbolic or value based outcomes
such as finding spiritual salvation or achieving intellectual fulfilment. (ii) Action
can also be affective action or traditional action, which correspond to the category
or irrational action postulated by the author. Affective action is action driven by
emotion, while traditional action is acting according to custom. In this same mode,
discussion of irrationality in Chapter 27
includes explanation of how human
action can be driven by emotions, culture or social bonds and to this extent
eschews rationality.
35
Goleman (1996). The measure of a person’s emotional intelligence is
referred to as their EQ, their emotional quotient to highlight the point that
emotional intelligence is another measure of ability that stands
along side IQ,
intelligence quotient. Note, however, the argument from Lehrer (2009) that
rational decision making requires an emotional input because the best decisions
blend feeling and reason.
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