Negotiating Justice and Passion in European Legal Cultures, Ca. 1500–1800

Zeitschrift des Max-Planck-Instituts für europäische Rechtsgeschichte Rechts R Journal of the Max Planck Institute for European Legal History geschichte g Rechtsgeschichte Legal History www.rg.mpg.de http://www.rg-rechtsgeschichte.de/rg25 Rg 25 2017 252 – 262 Zitiervorschlag: Rechtsgeschichte – Legal History Rg 25 (2017) http://dx.doi.org/10.12946/rg25/252-262 Stephen Cummins * Negotiating Justice and Passion in European Legal Cultures, ca. 1500–1800 * Center for the History of Emotions, Max Planck Institute for Human Development, cummins@mpib- berlin.mpg.de Dieser Beitrag steht unter einer Creative Commons cc-by-nc-nd 3.0 Abstract 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 defin- ing practices of early modern justice and how they were the spur for new conceptions of the relation- ship between legislation and the passions. Keywords: justice, emotions, reconciliation, passions, enlightenment □× Rg 25 2017 Stephen Cummins Negotiating Justice and Passion in European Legal Cultures, ca. 1500–1800 The cross-disciplinary investigation of law and with the history of the emotions. A major reference emotions has often described itself as mounting a point for the explicit pre-modern study of legal challenge to notions that the law is passionless. emotions has been Daniel Lord Smail’s study of Some contributions to this debate – such as Susan how emotions were expressed or expunged in legal A. Bandes’ scholarship on victim impact state- contexts in late medieval Marseille.3 Despite the ments – highlight instances where emotions are clear remaining potential there are two prominent or have been central to legal practice but require challenges for early modern law and emotions more critical treatment. These investigations have scholarship, one from each of its twinned discipli- often been a project of recovery or recognition, nary fields. First, as these centuries pre-date the rise showing that presumptions of law’s emotionless- of the modern psychiatric language of emotions ness are unfounded in one manner or another. identifying the place of emotions is not always Historical approaches to these questions have obvious or analytically straightforward. Another shown numerous constellations of relations be- related challenge is that this period predates the tween concepts of emotions, practical legal ar- high era of legal codification and therefore stands rangements and the experiences of people passing before the obvious incorporation of many ›emo- through or working within judicial systems. Crit- tional‹ subjects into legal regulation. Rather than ical assessment of the links between human emo- discouragement, both of these challenges offer tions and legal arrangements go back much further reasonstoturntothisperiod.Turningtothe than this scholarly project and a historical perspec- seventeenth and eighteenth centuries promises tive on these problems reveals different, historically ample returns for new histories of how emotions contingent, relations between these two spheres. interacted with legal thought and practice before Certain transitions in legal thought and practice the rise of modern scientificconceptsoftheemo- from the early modern to modern period in Eu- tions in the nineteenth century. ropecanbeshowntobe,inpart,changesinthe This article explores two interrelated facets of analysis of the interrelations between human feel- early modern law and emotions, demonstrating ings and human law. some of the possible new approaches in this vein. The research that makes up »law and emotions« The first section tackles the emotional dynamics of scholarship has a modern emphasis. This concen- negotiated justice in early modern Europe, analyz- tration on the twentieth and twenty-first centuries ing one of the clearest characteristics of European is explained by the current legal relevance and legal culture in this period through the lens of practical ambitions of much of this research.1 emotions history. This reveals the complex emo- Looking back farther and tracing the early mod- tional worlds connected with justice practices that ern histories of laws’ encounters with the emo- were transactional, negotiable and often explicitly tions provides valuable perspectives. A consider- based on the reproduction of society’s hierarchies able amount of existing pre-modern research has and relationships. In particular it deals with how drawn from the interdisciplinary field of law and those defined as offended parties (especially the kin literature.2 The vast number of detailed accounts of the murdered) had the right to forgive or of the use of trial records to reveal subjective arrange settlements with offenders in many early feeling or cultural patterns in the early modern modern jurisdictions. Enlightenment critics would period have often not been explicitly concerned come to see these arrangements as compromised 1Bandes /Blumenthal (2012). 2 See, for example, Kim (2015), Barclay (2015) and Lemmings (2017). 3Smail (2003) 94–95. 252 Negotiating Justice and Passion in European Legal Cultures, ca. 1500–1800 Fokus focus by both »private hatred« and undue clemency – feudalism and the emergence of commercial soci- fundamentally misguided emotional orientations ety drove the expansion of the legal profession.7 that, rather than extinguishing negative feeling, Southern Europe saw a boom of legal education, produced cruelty and unhappiness. Their new ap- withariseinstudentsstudyinglawandthenum- proaches saw an active role for prosecution and ber of law faculties.8 In the Kingdom of Naples, punishment at the service of public rather than, as for example, both aristocratic litigation and policy many saw it, private interest. The second section choices expanded the power and number of law- moves therefore to consider such changes in legal yers.9 Montesquieu estimated there were around thought that occurred as critiques of practices of 50,000 lawyers in Naples in 1729.10 By the close of Old Regime justice. Reconsideration of the rela- the eighteenth century, in 1793, another likely tions between emotion and law in the Enlighten- more accurate survey estimated that there were ment occurred as part of a twinned project of the 26,000 who lived off the business of law »sup- critique of existing practices of law and speculative ported by funds provided by the litigious nature imaginings of the potential of legislation to influ- of the nation«.11 One of the major commonplaces ence behaviour and feelings. Innovative accounts of the age was that litigation generated hatred.12 of the relation between passions and law were the This period saw not only a rise in the usage of civil product of this reconsideration of the status quo. law but it was also an era in which states increas- Laws were reconsidered as tools to channel human ingly attempted to rule through law and to extend passions in certain directions. As a whole this their control over the practice and priorities of article explores the place of emotions in legal criminal law.13 change in the seventeenth and eighteenth centuries Some accounts of legal change in early modern by looking both at characteristic practices of early Europehavedrawnonanoverlyneatdivision modern justice and how they were the spur for between an older popular justice that was increas- different modern conceptions of the relation be- ingly replaced by the yoke of official justice tween legislation and the passions. Understandings through coercion.14 The expansion of the state of the reasons for punishment shifted heavily in system of criminal justice in fact required extensive this period. Both punishment and justice were local collaboration and used the emotions of the shaped by retributive understandings of divine populace to claim legitimacy.15 Underlying sim- justice at the start of the period but were increas- plistic accounts are evolutionary visions of law in ingly challenged by alternative accounts of the which criminal law replaces revenge. Passions are ends of justice. replaced by reason; the use of justice replaces the taking of vengeance. Yet the history of early modern judicial development was not simply the re- I. NegotiatedJusticeandtheEmotions straint of vengeance or the closure of extrajudicial in Early Modern Europe paths to settlement. Rather, across early modern Europe, justice remained not only marked by In Europe the early modern period saw the negotiation,

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