Convenors

Kimberley-Joy Knight
The University of Sydney
Email

Merridee L. Bailey
The University of Adelaide
Email

Connect

History of Law and Emotions

This cluster focuses on the relationship between law and emotions from the Ancient World to the present day.

 

History of Law and Emotions .jpg

Image: Gilbert, and Sullivan. Trial by Jury - Chaos in the Courtroom. Digital image. 1 May 1875.

Today many assume that Western legal practice has historically rested on the view that good law requires dispassion: emotion should have no role in the creation, interpretation, reception, or practice of the law. However, in the last two decades there has been an ever-increasing volume of academic work by legal and social historians, philosophers, social scientists and legal practitioners that paints a very different picture, both of the historical situation and of modern law and courtrooms. Our aim is to bring together scholars in a variety of disciplines, as well as legal practitioners, to reconsider the role of emotions in law and legal practice.

While work on law and the emotions has mainly focused on crime and the courtroom, the cluster looks at the whole range of legal activities and legal interactions with society. At the same time, we examine how study of legal history can inform and develop the wider study of the history of the emotions. Particular areas of focus include: the presentation of law and legal decision making as distanced from emotion; contrasts between theory and practice, and methods of condemning emotional practice; forensic rhetoric and emotion; the use of law to restrain supposedly objectionable emotion, as a form of social and cultural control. The cluster is characterised by the lengthy historical period it covers; its engagement with western and non-western legal traditions; and its interaction between the historical and the contemporary, the scholar and the practitioner.

This cluster is a collaboration between the Australian Research Council Centre of Excellence for the History of Emotions, Europe 1100‒1800 (CHE) and the Institute of Legal and Constitutional Research, St Andrews, Scotland.

Convenors

Merridee Bailey (The University of Adelaide, ARC Centre for the History of Emotions; Associate Member, Faculty of History, The University of Oxford)
Medieval and early modern English history
Court of Chancery; history of emotions

Professor John Hudson FBA (Institute of Legal and Constitutional Research, The University of St Andrews; University of Michigan Law School)
Medieval History
Legal history of England c.1050‒1250, approaches to legal historiography including the study of rhetoric and emotions

Kimberley-Joy Knight (The University of Sydney, ARC Centre for the History of Emotions)
Medieval History
Demeanour evidence, canonisation and canonisation procedure, emotions and rhetoric

Cluster Activities

Emotions in the Courtroom, 3‒4 May 2015, University of St Andrews, Scotland

Emotions in Legal Practices: Historical and Contemporary Attitudes Compared, 26‒28 September 2016, The University of Sydney (See our Flickr album here)

Emotions and Law: A Cross-Disciplinary Workshop, 24 March 2017, University of Western Australia 

Law and Emotions in Sentencing, 1 December 2017, University of Western Australia 

Emotions and Forensic Rhetoric, University of St Andrews, Scotland (forthcoming Academic year 2018)

Main Outcomes

Research and publishing on Emotions and Law

Workshops, symposia and conferences

Formal and informal collaborative supervision and mentoring of graduate students

Interdisciplinary grant applications

Working together with legal practitioners

Public engagement activities

Recent Publications

We are delighted to announce the publication of some of the papers stemming from last year’s conference on the theme of Emotions in Legal Practices at the University of Sydney. The special issue of The Journal of Legal History 38.2 (2017) entitled The History of Law and Emotions was edited by Merridee L. Bailey and Kimberley-Joy Knight and includes the following contributions:  

Merridee L. Bailey and Kimberley-Joy Knight, ‘Writing Histories of Law and Emotion’, 117‒29.

John Hudson, ‘Emotions in the Early Common Law (1166–1215)’, 130‒54.

Amy Milka and David Lemmings, ‘Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom’, 155‒78.

Alecia Simmonds, ‘"She Felt Strongly the Injury to Her Affections": Breach of Promise of Marriage and the Medicalization of Heartbreak in Early Twentieth-Century Australia’, 179‒202.

Katie Barclay, ‘Narrative, Law and Emotion: Husband Killers in Early Nineteenth-Century Ireland’, 203‒27.

Other recent publications include:

Katie Barclay, ‘Natural Affection, the Patriarchal Family and the "Strict Settlement" Debate: a Response from the History of Emotions’. Eighteenth Century Theory and Interpretation, 58.2 (2017): 307‒18.

Katie Barclay, ‘Performing Emotion and Reading the Male Body in the Irish Court, c.1800‒1845’. Journal of Social History 51.1 (2017): 1‒20.

David Lemmings, ‘Emotions, Power and Popular Opinion about the Administration of Justice: The English Experience, from Coke’s ‘Artificial Reason’ to the Sensibility of ‘True Crime Stories’. Emotions: History, Culture, Society 1.1 (2017): 59‒90.

Recent Grants and Awards

John Hudsons European Research Council-funded project on ‘Civil Law, Common Law, Customary Law: Consonance, Divergence and Transformation in Western Europe from the late eleventh to the thirteenth centuries’ is now under way. The project explores the highly significant division in present-day Europe between two types of legal system: the Continental European with foundations in Civil Law and the English Common Law. Both trace their history back to the twelfth century, and the project re-evaluates this vital period. A feature of the project is to approach the subject in part from the point of view of litigants and others whom law affects, that is, from the consumer-perspective. Combining mainstream legal history approaches with history of emotions, this element of the project will seek differences and similarities in the relationship of law and emotions in a variety of legal settings. The conclusions may well differ those derived from more traditional institutional perspectives, and stimulate further thought on the comparative history of law and emotions.

Work in progress

Emotions and Trials Podcast Series

History of Law and Emotions Bibliography

The Law’s Two Bodies, University of St Andrews

Media

Judging Remorse - ABC Law Report, Radio National, 27 September 2016

Emotions in Legal Practices Conference: Some Thoughts - Hugh Dillon, Deputy State Coroner, NSW, Histories of Emotion Blog, 18 November 2016

Podcasts

Professor Annalise Acorn (University of Alberta), Punishment as help and the blaming emotions’

Professor John Hudson (University of St Andrews), Frustration leads to anger: laymen and clerics in the courtroom’

Elizabeth Papp Kamali (Harvard) The Role of Anger in Medieval English Felony Adjudication’

David Lemmings (University of Adelaide)
Power, Emotion and Popular Opinion in the Administration of Justice’.

Rebecca F. McNamara,
The Hidden History of Emotions at Law in Late Medieval England’

Susanne Pohl-Zucker Diminished responsibility and the judgment of manslaughter in Early Modern Germany’

Ian Forest (Oxford University), Faith and Feeling in late medieval litigation’

Hans Jacob Orning (University of Oslo), Law, Anger and Mercy in Norwegian Courts in the high Middle Ages’

Contact

Merridee Bailey (membership enquiries)

John Hudson (media outside Australia; general enquiries)

Kimberley-Joy Knight (media Australia)

Collaborating Members

Annalise Acorn (University of Alberta)
Steven Anderson (The University of Adelaide)
Annie Blachly (Monash University)
Anna Boeles Rowland (Oxford)
Amanda Capern (Hull University)
Robyn Carroll (The University of Western Australia)
Rita Copeland (University of Pennsylvania)
Greg Dale (Monash Law)
Hugh Dillon (NSW Coroners Court)
Will Eves (University of St Andrews)
Ian Forrest (Oriel College, Oxford)
Katie Glaskin (The University of Western Australia)
Renata Grossi (Australian National University)
Maggie Hall (WSU)
Helen Hickey (University of Melbourne)
Rachel E. Holmes (The University of Cambridge)
Caroline Humfress (University of St Andrews)
Jill Hunter (UNSW)
Lorna Hutson (Merton Professor of English Literature, University of Oxford)
Tom Johnson (The University of York)
Liz Kamali (Harvard Law School) 
Chloe Kennedy (University of Edinburgh)
Hila Keren (Southwestern Law School)
Laura Kounine (University of Sussex)
Anne Laurence (The Open University, UK)
Kathy Mack (Emerita Professor, Flinders University)
Jani McCutcheon (The University of Western Australia)
Rebecca F. McNamara (UCLA)
Allan McCay (The University of Sydney/ Macquarie University)
William Ian Miller (Michigan Law School)
Hans Jacob Orning (University of Oslo)
Josh Pallas (UNSW Law)
Susanne Pohl-Zucker (Independent scholar)
Michael Proeve (The University of Adelaide)
Sharyn Roach Anleu (Flinders University)
Senthorun Raj (Keele University)
Kate Rossmanith (Macquarie University)
Daphne Rozenblatt (Centre for the History of Emotions, Max Planck)
Anna Boeles Rowland (The University of Oxford)
Alecia Simmonds (University of Technology Sydney)
Daniel Lord Smail (Harvard University)
Jason Taliadoros (Deakin University)
Kathryn Temple (Georgetown University)
Stephen D. White (Harvard/Emeritus Professor, Emory University)
Meghan Woolley (Duke University)

CHE Members

Merridee L. Bailey

The University of Adelaide

Email

Katie Barclay

The University of Adelaide

Email

Kimberley-Joy Knight

The University of Sydney

Email

David Lemmings

The University of Adelaide

Email

Joanne McEwan

The University of Western Australia

Email

Amy Milka

The University of Adelaide

Email

Charlotte Rose Millar (2016)

The University of Queensland

Email