Introduction: Criminal Law and Emotions in Modern Europe

Conference at the Center for the History of Emotions. Max Planck Institute for Human Development - Berlin 21-22 May 2015

InterDisciplines. Journal of History and Sociology 6/2, 2015

Rechtsgeschichte - Legal History, 2017

The conventional image of a judge as a dispassionate person continues to prevail in both popular culture and academic scholarship, despite influential recent research that has clearly demonstrated the inevitable impact of emotions on judicial decision-making. This article provides a historical perspective on what Terry Maroney has called »the persistent cultural script of judicial dispassion« and extends the discussion to modern continental legal systems. By looking at the legal debates that took place on the pages of professional periodicals and academic monographs across Europe, I show that the role of emotions was in fact an important topic in these discussions, with many participants advancing a very positive view of emotions as something that can help the judge arrive at correct decisions. I further argue that there was a specific historical period around the turn of the 20th century when the discussions about the importance of emotions for legal judgment intensified greatly. I associate this trend with the emergence of the German free law movement and examine the influence of their radical ideas on legal scholars across Europe. In particular, I consider the experimental legal model of »revolutionary justice« that was introduced in Soviet Russia following the Russian Revolution of 1917 as an attempt to put the ideas of the free law movement into practice by placing a particularly strong emphasis on emotions in legal judgment. By bringing in the wider social and cultural context, the article provides new explanations for the rise and demise of the »emotional judge« between ca. 1880 and 1930 and the persistence of the »dispassionate« stereotype in the modern era.

Feelings about Law/Justice. Rechtsgefühle, 2023

Rechtsgefühle (feelings about law and justice) influence legal processes, politics as well as attitudes towards law, and have centrally impacted legal history. Using Rudolph von Jhering’s The Struggle for Law (1872) as a point of departure, the essays explore ‘legal feelings’ as a sensus juridicus – a judge’s effort to make legal norms fit the facts at hand –, as the emotions evoked by laws and legal processes, and as catalysts for legal reforms. Rechtsgefühle prove themselves pertinent with regard to the history of emotions, in respect to neuroscientific approaches to law and calls for computational law, and in terms of the ever thorny topic of how law should differ from politics. The authors argue for a plurality of Rechtsgefühle.

InterDisciplines. Journal of History and Sociology, 2015

Does passion influence law making? Are senses part of the juridical process? Do emotions have anything at all to do with law? 1 Law regulates emotional behavior and legal procedures often arouse emotions (Posner 1999). But are passions and emotions innately woven into the texture of law? This special issue argues that understanding the debates on, and concepts and perceptions of, emotions is essential to comprehending law in a fundamental and multifaceted manner. 2

This article focuses on the most recent debates in a certain area of the 'law and emotion' field, namely the literature on the role of affect in the criminal law. Following the dominance of cognitivism in the philosophy of emotions, authors moved away from seeing emotions as contaminations on reason and examined how affective reactions could be accommodated within penal proceedings. The review is structured into two main components. I look first at contributions about the multi-dimensional presence of emotions within ordinary criminal proceedings. Second, I examine work done on the use of criminal trials under the emotionally stressful circumstances of post-conflict societies. In the conclusion I sketch a theoretical proposal for moving the discussion forward.

2015

Against the dominant cultural script according to which law and emotion are incompatible, this essay brings into focus the reciprocal relation of law and emotion that forms in the eighteenth century and is foundational for the self-conception of the modern citizen around 1800. This reciprocity is enabled by the ›discovery‹ and valorization of emotion as an independent faculty, as we show with recourse to first the moral-sense-debate and then Rousseau and Herder. In the course of being theorized, emotion acquires an irreducible relevance for cognition, judgment, and subject formation—and thereby also for law, insofar as it is understood as normative knowledge and as guide for the actions of the subject. Just how fundamental the epistemological relevance of emotion is at the beginning of the nineteenth century is revealed not only by the emergence of the term Rechtsgefuhl, but also and above all by its systematic deployment on entirely different levels: such as in law, in politics, an...

Rechtsgeschichte - Legal History, 2017

This article explores two interrelated facets of early modern law and emotions. It first examines the emotional dynamics of negotiated justice in early modern Europe, tackling one of the clearest characteristics of European legal culture in this period. In so doing, it underscores how the complex emotional worlds connected with justice practices that were transactional, negotiable and often explicitly based on the reproduction of society's hierarchies and relationships through settlements and arbitration. Secondly, it moves to consider such changes in legal thought that occurred as critiques of practices of Old Regime justice. Reconsideration of the relations between emotion and law in the Enlightenment occurred as part of a twinned project of the critique of existing practices of law and speculative imaginings of the potential of legislation to influence behaviour and feelings. Innovative accounts of the relation between passions and law were the product of this reconsideration of the status quo. Laws were reconsidered as tools to channel human passions in certain directions. This article explores the place of emotions in legal change in the seventeenth and eighteenth centuries by looking both at the defining practices of early modern justice and how they were the spur for new conceptions of the relationship between legislation and the passions.

InterDisciplines, 2015

Law and emotions share a complex, reciprocal relationship: Does passion influence law making? Are senses part of the juridical process? Do emotions have anything at all to do with law?1 Law regulates emotional behavior and legal procedures often arouse emotions. But are passions and emotions innately woven into the texture of law? This special issue argues that understanding the debates on, and concepts and perceptions of, emotions is essential to comprehending law in a fundamental and multifaceted manner.

HAL (Le Centre pour la Communication Scientifique Directe), 2020

How can one reconcile law and emotion and how can one reconcile judges and emotions? It seems to have been admitted, notably following the discoveries of neurosciences, that Descartes was mistaken in distinguishing between body and mind, reason and emotion 1. Reason without emotion leads to bad decisions, pent-up emotions lead to bad intuitions. The Law and Emotion movement has developed in the United States to deepen the importance of emotions in the legal and judicial reasoning 2. In Germany, in the 19th century, the doctrine of legal feeling was introduced by Savigny 3 as well as part of the free law movement 4 ., It was nevertheless severely criticized because it risked leading to arbitrariness 5. However, basing a rule of law on reason alone does not seem satisfactory either. How should we consider the relationship between law, judges and emotion in Descartes', countries 6 ? Without entering into a philosophical debate on Descartes' famous mistake, which is perhaps not a mistake at all (see below), it is important to articulate law and emotion in a civil law judicial reasoning. It is about not succumbing to the "emotional turn" without saving the rational approach through the formal application of a legal rule. This research based