Violent Crimes and Retaliation in the European Criminal Justice System between the Seventeenth and Nineteenth Century

Abstract

Early modern courts dealing with violent crimes constitute an exemplary field to study historical changes in the function and significance of retaliation as a measured reaction to criminal behavior. In pre-modern times, on the one hand, appropriate violence could be considered as a socially accepted behavior to react to violations of honor, body and property, as well as violent assaults could be compensated with a material recompense. On the other hand, penal justice partially followed the purpose of retaliation in the sense of retribution, and criminal courts punished manslaughter or murder with the death penalty. The ambivalence of retaliation with regard to violence was even more emphasized since the seventeenth century, because the emerging public criminal justice system followed more and more utilitarian purposes and punished violent crimes to maintain social control or to ‘discipline’ and ‘civilize’ perpetrators. Whereas the death penalty and retribution slowly decreased since the eighteenth century the purpose of private compensation and conflict settlement persisted to a certain degree, influencing court decision. If compensation between perpetrators and victims was achieved criminal courts could waive public punishment, but instead increasingly imposed punitive damages (Privatstrafe) and material public recompense. As a consequence, the function of retaliation and the relations between the different actors shifted from private compensation (perpetrators and victims) and public punishment (state and perpetrators) to ‘public compensation’ and ‘private punishment’ as an amalgamation of private and public retaliation which served for the interests of the state: fiscal recompense, the juridification (Verrechtlichung) of vindicatory violence as well as private retaliation, and the extension of social control through the criminal justice system. Commencing with the legal practice of the early modern criminal justice systems in Europe private and legal retaliation to violence significantly changed from legitimate vindicatory violence, private compensation and retributive public punishment to a system of formal social control and public retaliation that prevents violence, but impairs the interest of victims and prefers public compensation. Based on recent studies on violence in early modern Europe and exemplary court records this paper analyses the significance and the different functions of retaliation in the legal practice of European criminal justice systems responding to violent crimes.

Keywords: retaliation, violence, criminal justice, criminal law, mediation