Quoting the distinguished modern philosopher Tina Turner, Temple poses the question "What's love got to do with it?" As well one might. A lawyer friend said with astonishment when she saw Temple's book, "Emotions? In Blackstone?!" Neelie and Allan, the two young sweethearts in Wilkie Collins's Armadale (1864–66), looking for love in all the wrong places, find none in the Commentaries' reduction of marriage to contract. Blackstone's eighteenth-century detractors, Jeremy Bentham and Mary Wollstonecraft among them, would also have had a hard time in finding much love or emotion in what they saw as Blackstone's conservative and gradualist approach to aspects of English law that they thought cried out for reform. Temple nevertheless makes a generally convincing case for the important place of affect, emotion, and even love in the works of Blackstone, not limited to his famous digest of English law. Blackstone's "The Lawyer's Farewel to His Muse" (1755) also has a significant place in the discussion—sometimes, it seems, to the point of dominating it. It would have been helpful to include the full text of this poem, which is not likely to be familiar to even specialist readers.For Temple, "The Lawyer's Farewel" articulates a view of "harmonic justice" that marries the concordia discors of law and emotion. The project of her book is "to explore how the traces of an affective aesthetics outlined in this early poem served to help Blackstone reimagine the aesthetic and emotional world of eighteenth-century English law." Blackstone's lawyer must bid farewell to poetry, harmony, and an oddly eroticized figure of Justice in favor of the demands of daily legal practice, exemplified by the noise and confusion of Westminster Hall. While the account of marriage in the Commentaries seems coldly contractual to the lovers in Armadale, Temple sees emotion in Blackstone's "inextricable interweaving of desire and disgust." Similarly, the melancholy of "The Lawyer's Farewel" resurfaces somewhat unexpectedly in the section in the Commentaries on property law. Blackstone's discussion of inheritance evokes the "embodied wishes of the voiceless dead" and the lost communal culture of the Saxons, offering an "extended elegy" for ancient oral and poetic tradition that bears comparison with Gray's "Elegy" and other literary works of fashionable mid-century melancholy. This may suggest that English law is some kind of "aesthetic failure," but also offers the possibility of recovering lost values and building a future through melancholic reflection. Less convincing is the chapter on the relation of body, text, and speech, where Temple argues that Blackstone's own "disfluency" as a speaker and his insistence on strict adherence to legal precedent as judge in the Onslow libel case are evidence of "anxieties related to oral, manuscript, and print cultures." The chapter that draws parallels between the Commentaries and gothic fiction and architecture is much better. Temple's point of departure is Blackstone's famous description of English common law as a venerable castle, modernized for present-day habitation but still containing many dark chambers and labyrinthine passages, much like Walpole's castle in Otranto. Very gothic in feeling is Blackstone's discussion of peine forte et dure, a punishment of long pedigree still meted out in the eighteenth century (although rarely) to criminal defendants who refused to submit to the court's jurisdiction when asked to enter a plea. Those subject to the penalty were gradually crushed under a heavy weight while deprived of food and water—in spite of Blackstone's insistence that English law (unlike its continental European counterparts) rejected torture as barbarous. For Blackstone, English law displayed "tenderness" in applying the remedy sparingly and only after the accused had received three solemn warnings of its consequences. The contortions of Blackstone's prose in explaining these points are interestingly compared to the digressive, obfuscating style of gothic novels. Temple then embarks on a discussion of modern torture at Guantanamo Bay, noting parallels between official statements on the heinous acts that took place there and Blackstone's "this isn't torture because we don't use torture in England" line of reasoning on peine forte et dure.The chapter's concluding proposal for a modern legal "doctrine of tenderness," which would respond to abuses against detainees based on the vulnerability of the body, is insufficiently fleshed out and ends an otherwise strong chapter on a weak note. Temple's new doctrine is in any event probably already covered by the Eighth Amendment to the U.S. Constitution, existing norms of human rights law and international conventions, and legal concepts like the prerogative powers of mercy and pardon. Temple's treatment of happiness and its cognates like "happen," "happenstance," "hapless," and "mishap" is good, and occasions consideration of Blackstone's vision of happiness-inducing harmonic justice. One place where she sees a failure of harmonic justice and happiness is in Harper Lee's To Kill a Mockingbird, where the Commentaries are held up as a model of English prose but also serve to justify gradualism in response to racism, segregation, and injustice. The book's unusual concluding coda argues that the "excessive subjectivity" of a present-day, agitated criminal defendant can bring emotion to legal decision-making. This is a point that would have been better placed in the discussion of Temple's tenderness doctrine, but even there it would take us pretty far from "legal emotions in William Blackstone's England."

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Temple, Kathryn D. Loving Justice: Legal Emotions in William Blackstone’s England

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