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

Abstract

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.

Illegitimate parenthood in early modern Europe

“…The options and survival opportunities of unmarried mothers were very much related to early modern social control mechanisms and disciplinary actions of urban institutions. Studies of the uses of justice have shown the broad variety of institutional actions and different forms of secular and ecclesiastical institutions dealing with bastardy and unwed parenthood across early modern Europe (Adair, 1996;Gerber, 2012;Kamp & Schmidt, 2018;Vermeesch, 2016;Van der Heijden, 2016). The contributions to this special issue reflect the various ways in which urban institutions across Europe handled and dealt with illegitimacy, but the articles also demonstrate the great similarities between Europeanregions.…”

“…Local governments or neighbours did not necessarily act against such women -they could also be supportive. Quite a few single mothers demonstrated legal agency and successfully took legal recourse against the alleged fathers of their illegitimate children (Kamp & Schmidt, 2018;Vermeesch, 2016Vermeesch, , 2019. Historians have shown that single motherhood was not necessarily associated with relative social isolation and marginalization, but that some women rather sought early marriage by taking the risk of prenuptial pregnancy and that many illegitimate children were conceived in courtship (Muir, 2018).…”

“…In the last decades, family historians have begun to revise the rather negative and passive portrayal of the lives of unmarried mothers, by shifting the attention to 'pauper agency'. They began to look at the opportunities and options of women facing single motherhood, the space to make choices, and their attempts to improve their lives (Froide, 2005;Hitchcock 1997, Kamp & Schmidt, 2018Schmidt & Van der Heijden, 2016;Sharpe, 1999;Vermeesch, 2016Vermeesch, , 2019Walker, 2003). This special issue presents new research on the ways in which unmarried parents -particularly women -negotiated illegitimacy, how they interacted with urban institutions, and what legal resources they had.…”

Unwed mothers, urban institutions and female agency in early modern Dutch, German and Italian towns

“…A third important characteristicic is that the courts functioned both as a civil and a criminal court. This had important implications for women's options because the institution that was responsible for the disciplining of extramarital sex was the same as the institution in charge of the settlement of paternity suits and alimony cases (Kamp & Schmidt, 2018;Burghartz, 1999, pp. 276-284).…”

Facing illegitimate motherhood in eighteenth-century Antwerp: how changing contexts influenced the experiences of single mothers

“…For early modern Germany and the Dutch Republic, Ariadne Schmidt and Jeannette Kamp have recently emphasised the ability of early modern unwed mothers to strategically use legal forums and instruments of social control in spite of their vulnerability. 8 These historians go against older views that emphasised the liability and social isolation of unwed mothers, and the ways in which an illegitimate birth aggravated their sad situation. 9 In the 1970s, publications by Louise Tilly, Joan Scott and Miriam Cohen and by Cissie Fairchilds explained rising illegitimacy levels in nineteenth-century western Europe by women's lack of leverage in the sexual relations with men whom they expected to marry.…”