- The Consumption of Justice: Emotions, Publicity, and Legal Culture in Marseilles, 1264-1423
This outstanding book raises fundamental questions about the practice of law and the function of law courts in late medieval society. Smail shifts the focus away from formal procedure and theoretical treatises that have been the subject of much of the existing historiography to the "consumption of justice." How and why, he asks, did ordinary people use the courts in late medieval Marseille? Why did people choose to "invest" both emotionally and financially in law courts when other options for settling scores with enemies were available? The answer, significantly, has little to do with a concerted effort on the part of the authorities to monopolize the arena of dispute in their sanctioned courts. Rather, consumers of justice appropriated the legal mechanism of litigation because it was an effective means to make a positive statement about one's reputation and good name (fama) and simultaneously to destroy that of one's adversary. This system served this objective well because it was public.
The courts convened in stalls set up in the heart of the city, and the proceedings were open for anyone to hear, thus creating a public social memory that became common knowledge and an "archive" of proof for future cases about the fama of the litigants. Interestingly, this kind of proof was of greater import and weight to the outcome of a case than empirical evidence and demonstrable facts, precisely the elements that the new Roman-Canon law of proof emphasized in its jurisprudence. The courts, in short, "served an important advertising function ... of community standing," which made them popular (27).
Smail's method is adapted from Bourdieu's view of people as conscious and determined "agents in pursuit of political goals" using available "cultural scripts" (16).1 He also takes recent suggestions from the literature on consumerism and applies it as a metaphor for understanding judicial change. Finally, his book represents an effort to put emotions back into history. He notes that formal legal procedure (the Roman-Canon law) emphasized emotional neutrality despite recognizing the importance of the key jural emotions of love and hatred. The theory ofthe "civilizing process" draws upon this neutrality as proof that [End Page 647] the emerging courts of law contributed to the historical psychosocial repression of emotions that partly define modernity. Smail contests this conclusion by demonstrating from his sources that the emotions never went away. In fact, litigation thrived precisely because it was viewed asan effective means to "transact an enmity" and openly demonstrate affection (27).
Smail bases his arguments on prodigious research in a relatively understudied sphere of late medieval and early modern legal history, that of civil litigation. Several thousand civil cases are extant in Marseille between 1264 and 1423 (in contrast to only three registers of the far more studied criminal cases), and Smail has plumbed more than 1,000 of them, one in six of which even contained depositions of witnesses. He thus has an extensive repository of records from which to parse the voice—and motives—of ordinary people in their consumption of justice. His conclusions are compelling.
1. See, for example, Pierre Bourdieu (trans. Richard Nice), Distinction: A Social Critique of the Judgement of Taste (Cambridge, Mass., 1984).