Change, Continuity and Modernization of Criminal Law between the Early Modern and Modern Period: Conceptual and Methodological Approaches

The seminar deals with the methodological question of change and continuities between the early modern period and modernity using the example of criminal law in Central Europe and discusses basic problems of the periodization of general historical epochs and criminal law. In the history of criminal law, emphasis is usually placed on the far-reaching change between the pre-modern criminal law, which was characterized by “bloody” common law codes, inquisitorial procedure, torture and capital punishment, and the modern criminal law of the 19th century, which was shaped by the Enlightenment, the French Revolution/Napoleon, reforms, philosophical jurisprudence and codifications. In the area of criminal procedure, judicial practice and criminality, however, continuities can also be identified and processes such as humanization, modernization and nationalization of criminal law prove to be limited. Based on these ambivalent findings, concepts of historiography such as “periods of accelerated change”, “saddle period” (1750-1850) and “defensive modernization” will be presented, which offer methodological approaches to the problem of historical change between the early modern period and modernity. It will also be discussed whether such methodological concepts are relevant to the basic question of legal history to which extent criminal law follows general historical transformation processes or its own developmental logics resulting from interdependencies between criminal law norms, academic discourse, judicial practice and state policy.

Readings: Karl Härter, Strafrechts- und Kriminalitätsgeschichte der Frühen Neuzeit (methodica - Einführungen in die rechtshistorische Forschung 5), Berlin/Boston: De Gruyter Oldenbourg 2018, S. 24-33 & 163-165; Karl Härter, Die Entwicklung des Strafrechts in Mitteleuropa 1770-1848: Defensive Modernisierung, Kontinuitäten und Wandel der Rahmenbedingungen, in: Rebekka Habermas/Gerd Schwerhoff (Hg.), Verbrechen im Blick. Perspektiven der neuzeitlichen Kriminalitätsgeschichte, Frankfurt am Main/New York 2009, S. 71-107