Plebeian Dispute Settlement in Baroque Inner Austria: Between Feud and Criminal Law

Head of the post-doctoral research project:

Asst Prof Žiga Oman

Cooperating institutions: Institute IRRIS for Research, Development and Strategies of Society, Culture and Environment

Project duration: 1. 10. 2021 30. 9. 2023

Funding: Slovenian Research Agency (ARRS) (no. Z6-3223)

 

A SHORT DESCRIPTION OF THE RESEARCH PROJECT

SCIENTIFIC BACKGROUND, PROBLEM IDENTIFICATION AND OBJECTIVE OF THE RESEARCH

The purpose of this research is to investigate the continuities and changes to plebeian dispute settlement between feud (vengeance) and criminal law in early modern Inner Austria in the hitherto neglected period of 16501780, presumed to have been the time ‘after the feud’, by addressing the role of custom and law in enmities of the lower orders, the feud’s gendered aspects and emotional regime in an age of growing state interference in local communities.

European early modernity is predicated on the eradication of the feud. In the Holy Roman Empire, the period after 1500 is equated with the establishment of modern order, characterised by the adoption of the inquisitorial judicial process following Emperor Charles V’s Criminal Law (1532) and coeval provincial legislation, the establishment of Imperial legal institutions on a sounder footing following the Peace of Augsburg (1555) and the efforts of religious reformers towards social discipline. In the seventeenth century, the process, it is claimed, was accelerated by the imposition of a ‘well policed society’, following economic crises, social upheaval, plague epidemics, worsening climate conditions and the ravages of the Thirty Years’ War. The dominant historical narratives regard these developments as part of a linear progression towards the emergence of modern civil society. However, recent studies have proposed three major objections to the established view. First, after 1500, state interference in local communities dismantled medieval social, religious and legal systems of dispute settlement, thus exacerbating conflict. Second, the change was made worse by civil war, religious discord, social mobility and Protestant critiques of litigation as unchristian. Third, rates of interpersonal violence did not decline in the post-medieval West: early modern courts of law were complementary to customary dispute settlement. The explosion of litigation after 1500 is an indicator of increased conflict in society.

This project is predicated on recent research on Italy, early modern Europe’s most civilised and complex region, which demonstrates that feud or vendetta was a complex social practice of dispute settlement that did not disappear after 1500. In fact, in Italy the violence worsened in the sixteenth and seventeenth centuries (Povolo, 1997; Carroll, 2016; Raggio, 2018). Italy challenges the idea that litigation was the opposite of feud; it turns out to have been its corollary – interpersonal violence and litigation boomed at the same time.

Research on the feud in the Holy Roman Empire, in contrast, remains dominated by the belief that it was a medieval and elite phenomenon. Plebeian feuds have been generally disregarded by German studies of the practice or interpreted as a backwoods phenomenon. Despite the recent examination of the widespread practice of feuds (Fehde) among peasants in late medieval Bavaria (Reinle, 2003), the dominant German accounts maintain that feud was a rigidly defined legal custom of the nobility, a genus of war, abandoned following the Imperial Peace of 1495. While its significance and function in the creation of a distinctively ‘German’ (i.e. Imperial) constitution, either as the legitimating tool of a class of ‘robber barons’ (more recently e.g. Rösener, 1982; Algazi, 1996) or as an essential element in state-building (Brunner, 1939; recently e.g. Zmora, 2011; Eulenstein et al., 2013), has been exhaustively debated, the debate has remained an essentially local one (Kaminsky, 2002), since its protagonists generally tend to assume that Fehde is a quintessentially German phenomenon. Research is further limited by rigid lexical or legislative definitions of feuding, which ignores it as a social practice. In fact, the ‘Germanic’ Fehde was no exception. Whether over spilled blood or property rights, the purpose of feud in every society was to communicate a grievance and invite mediation, first by the community (e.g. Boehm, 1984; Miller, 1996; Darovec, 2017). The Fehde, like other forms of customary dispute settlement, was a legal instrument for the enforcement of satisfaction for injury through the use of limited violence (usually seizure or destruction of enemy property), requiring a formal renunciation of peace (diffidatio, Absage). This was rarely the case for homicides, since the killing had already ‘publicised’ the injustice, which led historians to erroneously distinguish between blood feud and feud, something contemporaries would not have done. Although the Fehde was declared illegal in 1495, this in no way meant that it stopped as a social practice. The evidence that it survived at least until mid-seventeenth century is overwhelming (Peters, 2000; Mommertz, 2003; Oman, 2016; 2019). Yet, what about later periods? When did the time ‘after the feud’ (cf. Wieland, 2014) actually arrive and why? The project will address these questions by expanding the investigation of feud in the Empire to the eighteenth century for the first time.

The traditional view of feud as an essentially medieval custom of the nobility is largely shared by Slovene (and Austrian) historiography, in which research on the practice among early modern commoners is barely present and only a few studies have been done for the Habsburg hereditary territories of Inner Austria, which encompassed the bulk of today’s Slovenia and a large part of the Republic of Austria. By focusing on plebeian dispute settlement between feud and criminal law in early modern Inner Austria, this project will not only fill in the gaps in the historiography but, because it centres on the hitherto neglected period of 1650–1780, presents a major contribution to the European historiography on violence, the state and the ordinary people’s use of the law.

The duchies of Styria, Carinthia and Carniola that, along with the County of Gorizia and Gradisca and a few smaller territories, comprised Inner Austria (officially until 1749), present an excellent research laboratory, as these largely rural areas make an important contrast with the Italian research, dominated by urban studies of the feud/vendetta. Since the vast majority of early modern Europeans were peasants, the project’s focus on rural communities is important well beyond the scope of local history. The region at the juncture of the Eastern Alps and Northern Adriatic was a meeting point of Slavic, Germanic and Romance worlds, where local customary and statutory legal systems were influenced by German and Italian legal theory and practice. The three duchies, which made up most of Inner Austria, were linguistically and, to a degree, culturally divided between the predominantly Slovene-speaking Carniola, Lower Styria and Southern Carinthia (the few larger towns were bilingual) and the generally Germanophone Central and Upper Styria and the larger part of Carinthia. This makes the region a good testing ground for the transformation of the post-medieval ‘German’ Fehde. In general, Inner Austria is thought to have been ‘pacified’ by the early 1700s, following the end of the great peasant revolts (the last two in 1635 and 1713), Ottoman and kuruc raids, and due to the expanding (princely) state judicial and administrative apparatus, culminating in the Enlightened-Absolutist reforms since the 1740s, including the abolition of patrimonial judicial autonomy in the 1780s. However, several instances and hints of the long survival of feud from the eighteenth (e.g. Dolenc, 1935, 409–410, 417; Ožinger, 1993, 75; Kos, 2015, 160–161) and, to a degree, even the nineteenth century (Polec, 1945, 47, 50) are attested in (mostly older) literature, which need to be properly contextualised and the archival research expanded.

This project builds upon the applicant’s PhD research on feud as a complex social practice of dispute settlement among all strata in the Slovene historical lands in the period of 1500–1650, centring on Carniola and Lower Styria, by deepening the investigation: i) chronologically, to the High and Late Baroque period (ca. 1650–1780) as a time of the expanding modern state and its interventions in local communities due to judicial and administrative reform and centralisation, traditionally viewed as the age of the emergence of modernity; ii) geographically/culturally, to Carinthia, Central and Upper Styria, to encompass all three Inner Austrian duchies and their German-speaking population, providing a crucial comparison with the urban-focused Italian research and iii) methodologically, to engage with the gendered aspects and emotional regimes of plebeian dispute settlement in early modernity. The research will address an important segment of the Slovene-Austrian shared history and provide new insights for understanding early modern society.

Apart from its research period, the project’s originality lies in its methodological approach. Along with using recent legal anthropology to analyze the social practices of dispute settlement and interpret lawsuits from the perspective of the disputants, the researcher will engage archival sources by following the language and pattern of feud to locate cases thereof in the extensive judicial sources. The German word for feud, Fehde, and the Slovene fajda (a colloquial term adopted in the 20th c. from Italian or French historians) share a common Germanic origin, meaning: enmity (Netterstrøm, 2007, 18). In medieval and early modern Europe, ‘enmity’ (inimicitia, Feindschaft, sovražnost etc.) was the most common synonym for feud, denoting not just the emotion of hatred, but a formal relationship of mutual opposition or hostility between individuals or kin groups. As there was an abundance of synonyms for feud, following the 1495 Imperial prohibition of the Fehde, all social strata could easily abandon the word for a plethora of cognates that articulated the same state of social relations without fear of legal sanction. Predicated on anthropological research, a recent cross-cultural comparative study (Darovec et al., 2017), to which the applicant has contributed, proposes that feud as a formalised enmity followed the pattern of just grievance (injured honour, demand for satisfaction) – violence – mediation – truce – peace, regardless of the etymological differences in denoting the phenomenon and its stages in various languages (e.g. vendetta and vengeance from the Latin vindicta or from Old Germanic fǣhþ or gifehida: Fehde, faida and feud).

Concurrently, the researcher will address gender and emotions in feuds as two neglected fields of inquiry. Dispute settlement was a deeply gendered process, as men and women were culturally assigned different roles and could have contrasting experiences of legal and communal processes as plaintiffs, defendants or witnesses. Gender roles were also based on distinct concepts of personal and family honour: e.g. economic success, virility and martial prowess for men (e.g. Krug-Richter, 1999; Tlusty, 2011) and for women sexual integrity, fertility and keeping a good household (e.g. Roper, 1989; Cohen, 1992; Gowing, 1996). Recent research suggests that, apart from matrimony as the ideal guarantee for peace, women had two traditional roles in dispute settlement: facilitating reconciliation by pleading for peace or exacerbating enmity by fuelling the narratives of injustice as the main keepers of family memory (e.g. Young, 2000; Byock, 2007; Dean, 2007). Early modernity was also a time when gossip, calumny and insults as the typical ways with which women pursued enmity could include accusations of witchcraft to devastating effect, especially in the Holy Roman Empire. It has been argued (Bossy, 2000) that disparate ways of pursuing enmity available to men and women may have in part resulted in the predominant association of women with witchcraft. While the connection between enmities and witch trials is not new, it remains underexplored and is virtually nonexistent in Slovene historiography, much like the gendered aspects of dispute settlement as a whole.

The same can be said for the emotional regime of feud, albeit the investigation everywhere has begun only very recently within the history of emotions and remains focused on the Middle Ages. To explore how changes to dispute settlement in early modern Inner Austria impacted the ways plebeians understood and explained their enmities, the researcher will engage archival documents with the study of emotional scripts: culturally meaningful and repeated emotional sequences. Emotional scripts is a method adapted from psychology (Kaster, 2005), which will help the applicant analyse culturally coded sequences of interactions, including the emotion language: phrases, silences, idioms, metaphors, gestures etc. When a script is in process, specific emotions can be present, recognised and decoded by the members of an emotional community (social, gender or language group etc.) (Rosenwein, 2006; 2015; Nagy, 2019), without being explicitly mentioned. As such silences are common in judicial records, e.g. in the descriptions of enmity or peacemaking (Althoff, 1996), the method is particularly useful for addressing emotions in dispute settlement.

The project’s overall objective is to analyse the continuities and changes to plebeian dispute settlement between feud and criminal law in Inner Austria in the High and Late Baroque period. The applicant will surmount the legislative and cultural idiosyncrasies of national histories to address real social phenomena, thereby positioning the regional (Inner Austria) investigation into the broader (Holy Roman Empire) context. The project will focus on three interrelated specific objectives.

The first specific objective will investigate the role of custom and law in plebeian enmities in early modern Inner Austria, determine their intertwinement and compare their success to understand the continuities and changes to dispute settlement in the period of growing state interference in local communities. What was the role of urban and village elites in this process? How were state interventions received by the broader population? What were the variations between the enmities of peasants and townsfolk, e.g. due to differences in social control and disciplining? How did social change and judicial reforms impact the roles of kinship, neighbourliness and community in dispute settlement? What were the reasons for the long survival of feud? While recent studies on the early modern feud have addressed these questions to some extent, most notably for Italy, they remain largely unanswered for much of the Holy Roman Empire, including Inner Austria, particularly for the virtually unexplored High and Late Baroque period, believed to have been the time ‘after the feud’.

The second specific objective will analyse the gender aspects of dispute settlement, particularly the roles of women in feuds, to chronicle the continuities and changes to assigned gender positions, their practice and manipulation in early modern Inner Austria. While there has been ample research on women in dispute settlement in the early modern Empire, it is largely related to the history of crime and next to completely separated from the investigation of the feud, which the project will address. To what extent did the roles of men and women in enmities and peacemaking adapt to state interventions, e.g. whose roles adapted more easily? When did women transgress traditional roles? What role did marriage between feuding families retain in early modern dispute settlement? The project will also look into the role accusations of witchcraft played in plebeian enmities in Inner Austria, both before, during and after the height of the ‘witch craze’ in the territory (ca. 1660–1710), thus contributing to current research.

The third specific objective will address the emotional regime of feud to ascertain how early modern judicial reforms, social disciplining and upheaval impacted the ways ordinary people in Inner Austria understood, expressed and explained their enmities. When and how were emotions of enmity and reconciliation expressed in the sources? To what degree were the new regimes of feeling received by urban and village elites and ordinary people? To what extent did people adapt their emotional narratives to changes in criminal law? Since the research on emotions in feud is quite recent, their investigation in plebeian dispute settlement in early modern Inner Austria, located at the juncture of Italian and German legal and learned culture, is certain to provide new insights.

The current state of research shows that plebeian feuds in the early modern Holy Roman Empire are a neglected field of inquiry, with only a handful of researchers having addressed it thus far. Research has been especially meagre for the seventeenth and is practically non-existent for the eighteenth century. Focusing on early modern Inner Austria as a part of the Empire, this project will fill in the gaps and contribute to the development of new research directions, by deepening the investigation and providing original interpretations  predicated on new approaches. The inquiry will use two interrelated approaches: the archival study of serial judicial sources and an analysis of coeval legislation and treatises on dispute settlement by early modern thinkers. By expanding the investigation chronologically, geographically, culturally and methodologically, the project will upgrade hitherto research and provide new hypotheses, theoretical and conceptual tools for historiography as well as other humanities and social sciences.

The project is original for Slovenia (and Austria) in both its theoretical and methodological aspects, yet is about much more than local history. It will be the first to systematically address plebeian feuds at a time when the Holy Roman Empire is generally regarded as already ‘freed’ from the practice and address its thus far neglected gendered aspects and emotional regimes, contributing to early modern social and women’s history and the history of emotions, thus also following recent research trends. Consequently, the project will test traditional assumptions about important topics such as the law, modernity and violence. While the investigation of early modern plebeian feuds in Slovenian (and Austrian) historiography has been scarce, the research problem can be appropriately addressed by following the project’s work programme and contribute to a hitherto neglected field of inquiry.

 

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