Getting Justice: A Comparative Perspective on Illegitimacy and the Use of Justice in Holland and Germany, 1600–1800

Extramarital sexuality has always been regarded as a transgression of the accepted norms. The increasing criminalization of extramarital sexuality after the Reformation led to an intensification of the prosecution of illegitimacy by secular authorities. But in the pluriform early modern legal landscape, a whole range of judicial, semi-judicial and extrajudicial institutions and mechanisms existed to exercise control over deviant behavior.

This paper focuses on the institutional setting in which social control over illegitimacy was exercised in the early modern period in Holland and Germany, working with Martin Dinges' concept of the "uses of justice." Both regions experienced several waves of criminalization of sexuality during and after the Reformation, and women were disproportionately affected by this. However, research for both regions has shown that women were not only "passive victims" in this process but also shaped the institutions by actively making use of them. It has been suggested in the literature that, in the early modern period, Dutch women enjoyed a rather favorable position compared to women in neighboring countries and that they were granted considerable leeway in social and legal respects. Considering the differences in the legal system in both countries, the question arises whether there were fundamental differences in the way that social control was exercised over illegitimacy in Germany and the Netherlands and whether Dutch women were truly granted more leeway in a social and legal respect with regard to illegitimacy.