Feeling the Law: Debates on Rechtsgefühl in German legal thought around 1900

Sandra Schnädelbach

Is there such a thing as a sense for justice or a feeling for the law? And if yes, would it be a feature innate in every human, an anthropological gift? Or rather a product of specific education and training, and therefore a trait especially developed by jurists? Around 1900 German jurists extensively addressed these questions, reflecting on the term „Rechtsgefühl“ that integrated various definitions and views on the relation of law and emotion. This paper will chart the shifting understandings of the relation between law and emotion that took place in the late 19th and early 20th century. Drawing on ideas of 18th century philosophy, jurists often connected Rechtsgefühl with theories of moral sense, understanding emotion primarily as an epistemological category. However, new definitions of emotions offered from the natural sciences changed not only the definition of Rechtsgefühl, but also the position it was attributed in juridical practice. Was a jurist supposed to consult his Rechtsgefühl when making a judgment? When was the use of emotion legitimate? How jurists answered these questions at the turn of the 20th century reflects how the management of emotions was at the core of the debate on Rechtsgefühl: Via the ‚right‘ handling of emotions the jurist had not only to prove his professional ability but also his bourgeois-masculinity.

Sandra Schnädelbach is a Pre-Doctoral Fellow at the Center for the History of Emotions at the Max-Planck-Institute for Human Development, Berlin. Her dissertation project on Concepts on the Relation between Emotion and Judgment in German Jurisprudence 1870–1930 is nearly finished. After receiving an M.A. in history, theatre and film studies, and German Literature from the University of Cologne, she worked in the CRC project “Aesthetic Experience and the Dissolution of Artistic Limits“ on concepts of aesthetic and juridical judgment.