Intersecting Legal and Intellectual Histories

Canadian legal history is thriving. The field addresses itself to both legal scholars and historians of Canada and beyond. It is capacious in subject matter and approach, even as an impressive synthesis is emerging. Amidst these positive developments, the field seems little troubled by the methodological doubts voiced over the last decade or so, especially in the American context. Eric H. Reiter’s splendid Wounded Feelings exemplifies the best in Canadian legal history, but shares its reticence to discuss methodology. The book advances the project of historicizing the law in Canada by foregrounding the affective aspects of interpersonal disputes in Quebec across eight decades. The range of themes — from family honour and the history of death to medical malpractice and racial discrimination — is as impressive as the diverse cast of litigants is compelling. Reiter calls the book “a legal history of emotions” (8), but has more to say about the history of emotions than legal history. Still, the book’s sterling quality invites an attempt to reconstruct its approach to legal history retrospectively. Such a reconstruction suggests that Wounded Feelings lies at the intersection of legal and intellectual history. Positioned this way, the book offers an effective, if implicit, response to criticisms of recent legal history and an endorsement of a principled pragmatism in matters concerning methodology. Such a reading highlights three themes for further reflection: the relationship between emotions and morality, the dichotomy between the subjective and objective, and liberalism as a framing device. Civil- and common-law traditions are frequently contrasted as proceeding by different methods, which, in turn, map onto different varieties of legal history. As Reiter puts it, the former “tends to emphasize principle and doctrinal development more than the particularities of individual cases” (22). Wounded Feelings emphasizes both to great effect and addresses objections levelled at the type of legal history associated with each. The history of doctrinal development occupies a prominent place despite the rather apologetic characterization of part of that discussion as an “excursus into the arcana” of French law. Focused on legal thought, the first and last chapters develop one of the book’s key arguments: that there was a shift between the 1870s and about 1950 from legal analysis rooted in situational stories of feelings that had been wounded by a defendant who had acted with “no right” to more abstract legal analysis of violations of a plaintiff’s rights. It is not unusual to trace the origins of human rights to eighteenth-century humanitarian sympathy that recoiled from the deliberate wounding of fellow human beings. Yet if Reiter’s account underlines the legal salience of such sympathy, it nonetheless bolsters intellectual and legal histories that posit a much shorter history of human rights, such as Samuel Moyn’s. Discussion of legal doctrine occurs in other chapters as well, on specific issues such as breach of promise, alienation of affection, and the bar against damages for “solace of grief” despite the civilian norm “that any injury caused by fault should be compensated” (41, 8, 26). Chapters 2 through 7, however, exemplify another variety of legal history, the case-in-context method or legal archeology. While historians in numerous fields have long experimented with micro- and narrative histories and with “thick description,” legal archeology is especially prevalent in the legal history of common-law jurisdictions, which includes Canada. In part, this reflects the fact that legal principles and reasoning are elaborated through precedent-setting or “leading” cases, allowing history to be integrated into law school curricula more readily (6). The method uncovers and re-incorporates into its analysis aspects of the case stripped from the published reports of appellate court decisions that focus …