Emotions are an integral part of appeals to law whether tacitly or formally acknowledged. This affective dimension is explored in Professor Eric Reiter's new book, which was published in the Osgoode Society for Canadian Legal History series and is a winner of the Canadian Historical Association's Best Scholarly Book in Canadian History Prize. This book is a social and legal history of the way that emotions were articulated, recounted, and framed in legal actions over an 80-year period of Quebec's history, and how these emotions were validated, rejected, or ignored by the legal actors who heard or otherwise encountered them. This meticulously researched, legally sophisticated, and empathetic book contributes to our understanding of civil and common law actions and actors, family and broader social dynamics of the period, and the legal development of personality rights in Quebec law. It also constitutes a foundational work in the emerging field of the legal history of emotions through its original thesis and methodology that should provide a template to other historians wishing to explore the legal history of emotions.
The first chapter explores the law and legal culture that frame Reiter's historical account, highlighting the centrality of the person in civil law traditions (appearing as the first book, for example, in the civil codes of Quebec), the rise of materialism in Quebec formal law before and during this period, and the challenges posed to materialism by the affective concerns of the actions for moral injury. Reiter explores the action for injure as a claim for damages for moral injury, foreshadowing the development of personality rights in the twentieth century. He also considers the space preserved in the concept of biens (usually translated as “property”) for non-materialist, humanist elements such as honor, which, in the nineteenth century, were conceived of as a kind of capital or goods belonging to the person.
Reiter models a methodology of studying the legal history of emotions. The book proceeds by way of six “emotions” chapters (Chapters 2–7) which each take an emotion or group of emotions as its subject. In each chapter, Reiter delves into a few representative cases, linked by emotions rather than by legal doctrine or actions, to explore the legal expression of the emotion(s). Although certain topics would not obviously be considered together in a legal history (e.g., marriage annulments and defamation in Chapter 3), the close relationship between the underpinning emotion (e.g., dishonor) provides the thread and allows a holistic appreciation of the expression of that emotion in those legal actions. Reiter liberally explores the social context of the cases he chooses. The emotions-led methodology encourages a high level of investment in the protagonists. Fortunately for the reader, Reiter often follows these individuals past the formal resolution of their claims to their experiences in later life, providing a satisfying (and appropriately emotional) arc for the reader.
The journey through emotions begins with Reiter's granular examination, in Chapter 2 (“Shame, Mortification, Disgrace and Dishonour”) and Chapter 3 (“Family Dishonour”), of the complex normative order constituted by individual and family honor and dishonor. Of note here is the extent to which Reiter sensitively details the normative orders inhabited by his subjects; for example, the culturally specific shame and mortification of an ethnically Polish father whose first child's christening is interrupted by the police who confiscate the alcohol and send the guests home.
In Chapter 4 (“Bodily Intrusions”), Reiter leaves the terrain of the traditional moral injuries for which a plaintiff might obtain financial compensation, to consider the feelings of outrage, powerlessness, and violation experienced when bodily integrity is breached through unauthorized autopsies, involuntary surgeries, and compulsory medical examinations. Reiter succeeds in providing a patient-side legal history of the emotions that would eventually lead to the recognition of personality rights and related doctrines of informed consent. Chapter 5 (“Betrayal”) does not disappoint, allowing a subtle appreciation of the emotional texture of familiar family law issues such as marital separation, breach of promise to marry, seduction (i.e., adultery), and claims of financial support for separated spouses and children. Chapter 6 (“Grief and Mourning”) explores the emotions brought about by the death of a loved one and includes an important foray into the complexities of damages for the moral injury resulting from the death of a loved one at the hands of a railway, and its relationship to wrongful death suits in the common law.
Exploring the legal history of emotions allows Reiter to go beyond the old chestnut cases and topics of contract and tort law, or obligations and delict/extra-contractual obligation, as those topics have been and currently are known in civil law. Reiter's research method relies on discerning emotions from a range of primary sources such as transcripts, evidence, and other court records, rather than framing his study with the questions of law considered on appeal. Using emotions rather than the hierarchy of legal decision making to shape his narrative allows Reiter to bring new cases to the fore. In Chapter 7 (“Indignation, Anger, Fear”), Reiter delves into hitherto largely unexamined cases of racial and religious discrimination in Quebec in which plaintiffs sought emotional remedies through contract and tort law respectively. Throughout, Reiter shows the powerful potential of the legal history of emotions to alter our perspective and reveal novel legal disputes as interesting, not for their specific legal holding, but for the rich emotional landscape in which they occurred. This penultimate chapter will be a valuable resource both methodologically and substantively for historians interested in discrimination in Quebec, and in Canada, for years to come. Reiter's final chapter, Chapter 8, provides a satisfying coda exploring the translation of emotion-based legal actions into the language of rights.
It is telling that the most powerful comment I have is that I wanted more; for example, a longer conclusion revisiting the themes of the first chapter. The writing is even and, erudite, and the inferences that Reiter draws from his sources are clearly outlined. When the supporting material is thin, Reiter does not over-reach. He has developed and applied a novel paradigm that creates new, important openings for legal historians. This book is an immense contribution and invitation to future work.
