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chapter 8 Social Control Viewed from Below: New Perspectives Herman Roodenburg ho actually controlled the law in early modern Europe? Was the law merely an instrument in the hands of state, church, or ruling class? Was it all or primarily a matter of control to bottom? Or were the middle and lower classes involved as well? And did the state evolve at the expense of society or was it perhaps the other way round? Was it rather society itself, in its growing demand for regulation, that created the state? And if we prefer this far more complex history , how exactly was this social demand complied with? Was the law the primary institution that people would turn to or were there many other, informal or quasi-formal, institutions that were more or less admitted or even encouraged and supported by the state? Indeed, did people switch from one institution to the other? Over the last twenty years these questions have dominated the exchanges among criminal historians, and they are still debated today. Offering a new understanding of the issues at stake, the chapters collected in this part of the volume all present a perspective “from below.” They focus on the lower criminal courts and on the civil courts; on church and consistory courts; on related institutions such as the guilds, the confraternities, and the urban neighborhoods; and on the family. What the authors share is a common interest in the concrete, multifaceted uses of the law.The perspective presented is, above all, a perspective of accommodation and negotiation. At present the legitimacy of this alternative view has been widely acknowledged . But the debates have been fierce, especially in Germany, where they became part of a wide ranging school controversy between, on the one hand, the defenders of a historische Sozialwissenschaft, taking their cue from the works of Karl Marx and Max Weber, and on the other hand, the protagonists of a historische Anthropologie, drawing most of their inspiration from cultural anthropology, modern folklore studies, and related disciplines. To many continental historians, using broad conceptualizations such as “acculturation” or “social disciplining,” it was primarily the state or an alliance of state and church that controlled the law. The advocacy of Robert 145 W Spierenburg_Vol_1_Ch_8_2nd.qxd 6/22/2004 2:46 PM Page 145 Muchembled and Heinz Schilling has been influential in this regard. A similar view has been ascribed to Norbert Elias and his notion of a western European “process of civilization.” To other mainly English historians, it was not so much the state as the governing class that ruled the law. As the Marxist historian Douglas Hay argued, the law of eighteenth-century England was first and foremost an instrument of class oppression. It was there to discipline the lower classes, and it did so through an imposing mixture of terror, mercy, and ceremony.1 Muchembled formulated his thoughts in the late 1970s, Schilling some ten years later. In the meantime they have both modified their positions, making room within their top-to-bottom approaches for dimensions of reception and appropriation .2 Elias’s is a somewhat different case, as he has been treated somewhat unfairly by his critics. For instance, he defined his “civilizing process” as basically blind, as a long-term process generated by a growing and overall intensification of social and psychological interdependence.To reduce these blind developments to a set of active interventions from above clearly misses the deeper message of his work. In addition to this, Elias allowed for civilizing effects independent of court and state, pointing for instance to the social and psychological restraints implied in the world of trading relationships and commerce.3 Recently, this idea of civilizing pressures not imposed by court and state but, as it were, welling up from below, has been advanced by some historians working on seventeenth- and eighteenth-century England. But they contrast their views with those of Elias, who is identified once more with a one-sided perspective from above.4 The masterful narratives of Muchembled, Schilling, Hay, and Elias came to prominence in the 1970s and 1980s. In 1974, however, the French historian Yves Castan proposed a very different approach. Though acknowledging the terror of the law, he was one of the first historians to look beyond the institutions of formal social control and trace the countless practices of informal mediation, including the structuring role of honor and reputation. Confronted with large numbers of “infrajudicial” settlements in the eighteenth-century Languedoc, Castan concluded that discipline and...


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