In the study of history, the emergence of criminal courts has often been described as a way in which people’s emotions were sublimated and cultivated. As such it has functioned as a way of explaining the decline of violence in Western societies, important in Elias’ notion of the civilising process. The challenge of this and other grand narratives on the relation between law and emotions were one the topics of discussion during the conference “Criminal Law and Emotions in European Legal Cultures: From the 16th Century to the Present”, organised at the Max Planck Institute for Human Development in Berlin. The organisers GIAN MARCO VIDOR (Berlin) and LAURA KOUNINE (Berlin) opened the conference by introducing several of these larger narratives. One of them was the belief that justice should be blind to emotions, an idea that has been heavily criticised by experts from the field in recent years. An important critic of this ideal, TERRY MARONEY (Nashville), was a special guest at the conference. Maroney is a distinguished legal scholar who assists American federal judges in coping with the emotions they face during their work. She argued that the old-fashioned conception of ‘dispassionate justice’ is often the cause for high stress-levels among judges of American federal courts. Drawing on her experience with working with them, she pleaded for more openness in appraising emotions in the legal arena.

UTE FREVERT (Berlin) began the historical discussion by pointing out the importance of the law as an institution that could produce emotional scripts and noted that some approaches to the history of emotions often neglected institutions and their capacity to create such scripts. She briefly demonstrated this by looking at the shifting appraisal of ‘religious feelings’ in German laws on blasphemy. Following Frevert’s talk, DAVID SABEAN (Los Angeles) opened up the discussion on the relation between the law and human desires. In his keynote speech he demonstrated how the issue of incest posed a conundrum to legal scholars in the early modern period. The universal character of the aversion to incest forced these scholars to question why something so universally repugnant should be part of the law. In his talk he reconstructed a tradition of thought, from Melanchthon to Thomasius, in which the law was ultimately seen as a disciplinary tool, emanating from the idea that desires, sexual and non-sexual, are evoked wherever a line is drawn, thus justifying laws against incest.

The first panel was devoted to the early modern period. Since the conference had the goal of discussing longer chronologies of the relation between law and emotions, the panellists deliberately chose to place the early modern period in dialogue with the late modern period. ALLYSON CREASMAN (Pittsburgh) and CAMILLA SCHJERNING (Copenhagen) both focussed on anger and insult and the interplay between social norms and legal practice. As Schjerning demonstrated, the strategic use of anger was a marker of social hierarchy in early modern Copenhagen and Creasman argued that in early modern Germany, the expression of anger was increasingly considered to be a mitigating circumstance for a crime due to the prominence of the laws on insult. In a way, anger became cultivated and was more frequently excused in German criminal trials. With this, Creasman challenged Elias’ idea of the civilising process, in which anger is something that is supposed to be suppressed. Focussing on the town of Springfield, Massachusetts, MALCOLM GASKILL (Norwich) developed the tensions in the pilgrim village between the standards of proof of courts and the fact that emotions were considered the ultimate proof in determining if someone was a witch. In the case studies he presented, he demonstrated how in times in which community life was harmonious, emotional distress did not function as sufficient evidence in court cases. However, when community life became more distressed due to the rise of commerce and population growth, emotional reactions became more decisive in court cases than they were in earlier times.

The second session was titled ‘Emotions on Trial’ and brought together scholars researching the explicit utterance of emotions during trials. ELWIN HOFMAN (Leuven) presented the results of his study on the frequency of defendants weeping while on trial in the courts of the Flemish cities of Kortrijk, Antwerp and Brussels. He demonstrated that there was a significant increase in the amount of people registered weeping during their trial in the late eighteenth century. This increase was, not coincidentally, simultaneous with the flourish of the ‘Age of Sentimentalism’ (1760-1780). He thereby gave support for the claim that sentimentalism was not only a trend in higher society, but also among the lower classes, ultimately arguing that it actually transformed the emotional dynamics of the courtroom. Weeping in court was also addressed in KATIE BARCLAY’s (Adelaide) contribution on the different ways the authority of Irish courts was contested and strengthened in the early nineteenth century. She demonstrated how ‘weeping judges’ enlisted support for the courts from the community, thus showing that weeping ultimately had a social power. On the other hand, she showed how accused men often refused to show the appropriate emotions as an attempt to reject the authority of the court over them. SHIRA LEITERSDORF-SHKEDY (Haifa) presented her research on the emotions of public prosecutors in present day Israel. In her interviews with public prosecutors, she encountered many narratives of sorrow and frustration. She discussed how many prosecutors use certain rituals or strategies of switching roles as a sort of ‘armour’ against their feelings. In referring to the title of the session, ‘Emotions on Trial’, the chair STEPHEN CUMMINS (Berlin) emphasised how the papers presented showed that displays of emotion can often be suspect. However, as regards historians’ attempts to analyse the emotional content of trials, Cummins noted that the contributors found innovative ways to get around flat descriptions of court cases and avoid the ‘formalism’ of the law in order to demonstrate the powerful role emotions play in court cases.

In his keynote speech, DANIEL SMAIL (Boston) also revisited Norbert Elias’ idea of the civilizing process and raised doubts about the claim that history has witnessed a steady decline of violence. He pointed out how violence in medieval times followed scripts and conventions too, arguing that litigation in that period was often conceived of as a superior form of vengeance. Furthermore, he criticised Elias’ assumption that the homicide rate is a proxy measure for the amount of violence in a society, since this leaves out many forms of violence. As an alternative, he suggested that we analyse the level of stress and happiness in a society as a proxy for the violence rate, which would be possible if historians were to adopt research methods from the life sciences. ELIZABETH LUNBECK (Boston) focussed in her keynote speech on the police, addressing the violent events of the recent past. She claimed that this violent behaviour has increasingly led to the portrayal of policemen as sociopaths. She noted, however, that in some respects this view correlates with research on the emotions of police officers from the late 20th century, which coined the phrase ‘criminals and supercops’. The research demonstrated that habitual criminals often share the same psychological characteristics as the best performing police officers. In a way, coinciding with Smail’s argument, Lunbeck argued that these modern police officers have skipped parts of the civilising process.

The contributions of the third panel were centred on Russia. This panel provided an opportunity to discuss some of the larger chronologies of law and emotions, since it brought together a scholar of early modern Russia, one of nineteenth century Russia and one of the early Soviet era. MARIANNA MURAVYEVA (Oxford) was the first speaker to explicitly raise the category of space in her study of accusations in early modern Russia. By looking at a case of child abuse, she argued that the different courts (ecclesiastical and secular) and the different ways in which the court rooms were designed determined the emotional strategies that people used to persuade the judges. In addition, Maravyeva introduced the analytical category of ‘emotional environments’ to strengthen her claim. EUGENE AVRUTIN (Urbana-Champaign) described a unique accusation of ritual murder from the White Russian border town of Velizh, which lasted twelve years, from 1823-1835. The case revolved around the rumour that the Jewish inhabitants of Velizh had stabbed a vagrant’s son. Avrutin demonstrated how in this case fantasies and magical beliefs played a significant role, arguing that such superstitions have continued to play an important role well into the modern period. DANIEL NEWMAN (Washington, D.C.) brought material from the early Soviet era to the discussion. His research focusses on criminal appellants. He discussed two cases, arguing that appellants tried their best to convince the judges that they had a desire to be a part of the national (Soviet) community and to be ideal Soviet subjects, but that they also combined their pleas with traditional models, known as the plach. The chair, PAVEL VASILYEV (Berlin), noted how the cases presented in this panel had a highly personalised, individual character, in which bodily expressions and space had a decisive influence. He stated that these approaches allow analyses of the practices in court rooms to move beyond the framework of normative legal theory.

During the final panel NIAMH CULLEN (Dublin) discussed a case of abduction in post-World War II Italy: the trial of Filippo Melodia, who abducted a girl named Franca Viola. Cullen showed how the conflicting notions of romantic love and honour played out during this trial, as reported in the press. Since Viola refused to marry the man who had abducted and raped her, she contested the traditional belief on the relation between honour and chastity and defended a ‘new’ romantic notion of love, based on her freedom of choice. Not only was this sharp contrast played out in the court room, but the media played a pivotal role, highlighting the distinction between the old and new conceptions of love and honour and making the case into a national affair. KATARIINA PARHI (Oulu) delved into medical discourse in Finland around the turn of the century and addressed notions of diminished responsibility. She described the invention of ‘pathologised emotions’ in psychiatric discourse and the new role psychiatrists played as advisers in the court room. She demonstrated how ultimately ‘psychopathic emotions’ were increasingly viewed as a threat to Finnish society. The chair DAPHNE ROZENBLATT (Berlin) used these contributions as a springboard for meditations on the conceptualisation of emotions and the ways shifting conceptions haves affected society’s visions of deviance and criminal justice. She argued that it was not only the concepts used that were significant, such as love, honour, or psychopathic feelings, but also how discussions on these emotions played out in public discourse. Thus, attention to media, psychiatry and public discourse was a welcome addition to the discussion of the law.

In the round table discussion the commentators, DAGMAR ELLERBROCK (Dresden) and Terry Maroney, proposed a tripartite distinction for conceiving of the ways in which emotions play a role in the legal domain. First, there is the intrinsic level, dealing with the determinate effect of emotions on the legal case, for instance where it concerns the mitigation of sentences. Second, there is the evidentiary level. On this level emotions function as evidence and play a role, for instance, in the process of truth-seeking. Thirdly, there is an extrinsic level. It addresses the question of how the legal system affects all those involved in a court setting. During the discussion it became clear that these were all fruitful ways that the relation between law and emotions could be discussed and that they had the potential to inspire future research. Furthermore, for research into the emotional dimension of the legal system the discussants noted the importance of thinking about ‘informal’ forms of justice and addressing the question as to why some people litigate and others do not. All in all, considering the combination of case studies during the panels and the larger historical narratives in the keynotes, the conference hosted an inspiring combination of research on the ways the legal system could affect the hearts of people.

Conference Overview:

Laura Kounine and Gian Marco Vidor (Berlin), Opening
Ute Frevert (Berlin), Introduction

Keynote
David Sabean (Los Angeles), Horor Naturalis or Indifference: The Incest Taboo in Natural Law and Evolutionary Biology

Panel 1: Early Modern History, Emotions and Law
Chair: Claudia Jarzebowski (Berlin)

Malcolm Gaskill (Norwich), Emotions on the Frontier: Witchcraft in Seventeenth-Century New England

Camilla Schjerning (Copenhagen), “As a Raging Man”: Narratives of Transgression and Emotional Communities in Copenhagen, 1771-1800

Allyson F. Creasman (Pittsburgh), Fighting Words: Anger, Insult, and the “Right of Retort” in Early Modern German Law

Panel 2: Emotions on Trial
Chair: Stephen Cummins (Berlin)

Katie Barclay (Adelaide), Performing Emotion and Reading the Body in the Irish Court, c.1800-1845

Elwin Hofman (Leuven), Angry Killers, Weeping Whores? Emotions in Criminal Trials in the Southern Netherlands, 1750-1800

Shira Leitersdorf-Shkedy (Haifa), “The Sensitive Prosecutor”: The Emotional Experience of Prosecutors in Managing Criminal Proceedings

Keynote
Daniel Lord Smail (Boston), Reflections: Violence and Emotions

Dinner Talk
Terry Maroney (Nashville)

Keynote
Elizabeth Lunbeck (Nashville), Policing Emotions: Emotional regulation and Psychopathy in Law Enforcement

Panel 3: Russia, Borders, Encounters
Chair: Pavel Vasilyev (Berlin)

Eugene M. Avrutin (Champaign, Illinois), The Confrontations: Emotions and the Meaning of Belief in a Russian Border Town

Marianna Muravyeva (Oxford), “He Called me a Pimp and his Mother a Broad”: Emotions of Complaint in the Narratives of Parent Abuse in Early Modern Russia

Daniel Newman (Washington), Emotional Appeals in Early Soviet Criminal Cases: The Plach as Legal Strategy

Panel 4: Emotions and Legal Responsibility
Chair: Daphne Rozenblatt (Berlin)

Niamh Cullen (Dublin), Love and Honour in 1960s Sicily: The Trial of Filippo Melodia

Katariina Parhi (Oulu), Examining Degenerate Souls: Psychopathy and the Question of Responsibility in Early Twentieth-Century Finnish Forensic Psychiatry

Roundtable
Chair: Sandra Schnädelbach (Berlin)

Commentators: Dagmar Ellerbrock (Dresden), Terry Maroney (Nashville)