Feeling the Law

Concepts on the Relation between Emotion and Judgment in German Jurisprudence 1870-1933

(project duration 2015-2017)

The process of legal decision making is considered to be governed by rules of rationality. In other fields too, a dispassionate, "cool-headed" manner implies neutrality, objectivity, and supremacy. Judgment and emotion are often supposed to operate as opposite terms, often due to the association of emotions with uncontrollable, impulsive, natural, and bodily elements.
Interestingly, jurisprudence of the nineteenth century produced a variety of legal texts focusing on questions of judicial emotion and intuition. Especially from the last third of the nineteenth century onwards, the term Rechtsgefühl became prominent in legal debates. What did authors exactly mean by this term (translated to mean both a sense of justice and a feeling for the law)? How were emotion and intuition described in relation to juristic practice? What value was assigned to emotion concerning the judicial decision making? How did emotions appear to be handled during adjudication?
This project seeks to illuminate the historically grown narratives of the peculiar contrasts and relations set up between reason and emotion and to sharpen the view on a number of concepts related to the judicial handling of emotion. These concepts will also be contextualized in various ways: To what extend do they reflect (post)bourgeois programs of handling emotions? What role do ideas regarding gender and masculinity play in juristic emotions management? How do upcoming natural sciences influence jurisprudence in its interpretive patterns and procedural ideals?
The basic assumption of this project is that the different concepts of judicial decision making and handling of emotion can be regarded as contributions to an emotional practice that is realm- and historically specific. The ways and modes of forming emotional programs through and within juristic discourses of the nineteenth and early twentieth centuries will be at the focus of interest.