Academic journal article Wordsworth Circle

Trials in Romantic-Era Writing: Modernity, Guilt, and the Scene of Justice

Academic journal article Wordsworth Circle

Trials in Romantic-Era Writing: Modernity, Guilt, and the Scene of Justice

Article excerpt

Culturally central, spectacular trials--the trial and execution of Louis XVI and his family (1792-93), the sedition and treason trials of the London Corresponding Society defendants (1793-94), the Reign of Terror (1793-94), William Hone's blasphemy trials (1817), the Cato Street Conspiracy trial and execution (1820), Queen Caroline's trial in the House of Lords and the court of public opinion (1820)--affected Romantic-era literary texts, even if they did not include trials. Representations of trials in popular prints, trial transcripts, and parodies eroded the power and prestige of the crown and aristocracy, who had tried to repress public discourse on matters of state and class privilege. Even before scandalous Queen Caroline Affair, the embarrassing divorce trials of the high born recounted in published transcripts exposed the aristocracy to ridicule and undermined its claims to moral superiority. The publication of these subversive trials occurred during the reform of what was called the Bloody Code, the legal system that identified two hundred capital crimes--most of which were crimes against property. By the 1830's and 40's, the reform effort had sharply reduced capital crimes in part because the legal system had been rationalized by the utilitarian logic sketched out by Jeremy Bentham, James Mill, and their philosophical progeny.

All opposition to the Bloody Code and class domination of the law was not utilitarian and bourgeois, however. Artisan radicals such as the republican Richard Carlile and the anti-slavery lecturer, Robert Wedderburn, also changed the legal institutions by their principled resistance (Wiener; Scrivener 146-66). Their arguments against legal oppression were often constitutionalist and traditional rather than utilitarian, as the historian Epstein illustrated in Radical Expression: Political Language, Ritual, and Symbol in England, 1790-1850 (1994). Some literary texts with fictional trials (Caleb Williams, Frankenstein) criticized the utilitarian rationalization of the law by insisting on the absolute particularity of crime, the complexity of which rendered quantifiable norms for punishment impossible. Such texts challenged both the Bloody Code and the utilitarian modernization process from the left. Other literary texts with fictional trials, however, questioned the law and modernity from another position, one which rested on providential narratives affirming a divine justice. Divine justice is also a preoccupation of an ironic text like The Cenci, fully committed to modernity. There were, then, three distinct conceptions of how law worked in the Romantic era: 1) a paternalistic law sanctioned by divine right and symbolized by the scene of torture or the public hanging, the spectacle of physical punishment within a strictly hierarchical society; 2) a utilitarian law based on the calculation of self-interest within a market society; 3) a radical critique of law. The first conception has been described vividly by Michel Foucault (1977), and the second by Elie Halevy (1955), while this paper will attend to the third conception and discuss how it relates to the other two. Radical critique of law is of two types, one committed to modernity and legal rationalization (if also critical of utilitarian versions of rationalization), and another inspired by premodern social structures.

As a concept, modernity helps explain competing legal models. As developed by Jurgen Habermas (1984, 1996, 1997), modernity is an historical project articulated in the Enlightenment: the differentiation of reason, the demythologization of traditional worldviews, the disenchantment of magical thought, and overall the replacement of authoritarian bases of human interaction with rational purposive action and communicative action. With modernity brought the Industrial Revolution, scientific rationalism, political democracy, secular ethics, intellectual freedom, and the rationalization of law. In the Romantic era, paternalist law resists modernity by affirming the timeless and divine order over-seen by God's representatives within the state. …

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