9. The Uses of Justice As a Form of Social Control in Early Modern Europe
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chapter 9 The Uses of Justice As a Form of Social Control in Early Modern Europe Martin Dinges Introduction s many studies of the history of criminal justice in early modern Europe testify, the number of indictments dropped before a final verdict was reached was surprisingly high.1 They far surpassed the number of procedures resulting in formal convictions. Apparently, there was a great discrepancy between the number of accusations taken as cases into court and those actually tried. One explanation for the courts’ behavior might be that they considered the issues raised in the accusations irrelevant and wished to unburden themselves of such trifling controversies. This institutional filtering of unwelcome affairs is then construed as a successful example of judicial policies. In keeping with these policies, the courts prosecuted only those cases deemed important by the authorities, the alleged controllers of the institutions of justice. This interpretation has been offered for the French judicial policies of the 1760s, when the prosecution of violence was toned down in favor of the prosecution of theft. Similar spurts in the criminalization and decriminalization of certain offenses have been observed elsewhere. In this view the institutions of justice were merely instruments in the hands of the authorities; it was a question of “top-down” social control. However, when viewed from a different perspective, that of the actual plaintiffs , the large number of dropped cases may be explained in another way. It might equally be argued that having recourse to justice was never intended to institute and conclude proceedings. Rather, lodging a complaint was merely one of a myriad of possibilities for making oneself heard in a conflict out of court.2 Submitting a case to court was simply an instrument for advancing the settlement of a personal conflict by taking it to a higher—mostly a government— authority.To put it differently, the many cases dropped could indicate that people used the institutions of justice merely as an additional instrument of everyday 159 A Spierenburg_Vol_1_Ch_9_2nd.qxd 6/22/2004 2:46 PM Page 159 social control, not dissimilar to an admonition or a form, even a violent form, of self-help. Lodging a complaint, then, was merely a judicial step. Whether that procedure also led to a formal conviction was totally inconsequential to the parties involved. Adopting this perspective, namely the plaintiffs’ motivations, we must first examine the demand for justice. The concept of the “uses of justice” is interpreted as referring to the many ways in which contemporary individuals have dealt with the courts. It denotes both the recourse to justice and the forms this took. The courts are understood as an institution of the authorities, whose activities were only partially determined by those in charge. In general, the role of the courts was equally determined by the people. In the long term, such processes of appropriation can alter the institution ’s nature as much as any reforms of the judicial system initiated from above. Clearly, the uses of justice can tell us much about how early modern Europeans perceived the functions of the criminal courts. In taking this position, we are confronted with a range of theoretical and empirical perspectives, in the first place with the widespread assumption that in supplying justice the authorities also determined its demand. Writing about some long-termchangesinCastilianjusticeintheSpanishGoldenAge,thehistorianRichard Kagan argued how a first phase of intensive recourse to justice and of institutional development was succeeded by a second one, in which a deliberate establishing of thresholdsonlywidenedthegulfbetweentheroyalcourtsandthepopulation.Considering the national and later the urban interests as the driving force behind this development , Kagan considered the plaintiffs’ behavior as merely a dependent factor.3 A similar bias may be found in Wolfgang Schmale’s comparison of the judicial cultures in early modern Saxony and Burgundy.4 Though he takes the demand for justice as his point of departure, his overall perspective is that of a modernization theory centering on the gradual differentiation of our present-day separation of powers between the judicial and the executive. Compared to Burgundy, Saxony experienced more disputes around its judicial system, but these are discussed simply as “system errors.” The author does not acknowledge that people could negotiate the organization of the courts by proceeding more frequently against their functioning. To find out how people maintained their judicial interests, it may be useful to examine concepts other than their legal acculturation or the “professionalization” of the courts. Again, in relating peaks in the lodging of complaints to the concrete interests of the...


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