“Following one norm meant violating the other”
Interview with Hillard von Thiessen on early modern competitions of norms and the role of law
Nowadays, a person who tried to excuse himself after a bar fight and the subsequent charge of assault by saying that he only wanted to restore his honour would probably stand little chance in court. In the early modern period, the situation may have been different. In addition to the authorities' prohibition of violence, there was also the expectation of the social environment that insults to one's honour should not simply be accepted. Different norms could therefore sometimes apply simultaneously and guide one's actions.
The historian Hillard von Thiessen from Rostock deals with the formation of different systems of norms and their mutual concurrence and competition in early modern Europe. His most recent book, Das Zeitalter der Ambiguität (The Age of Ambiguity), was published in 2021, in which he bundles a variety of current research topics into a comprehensive picture of the early modern period. As a fellow at the Käte Hamburger Kolleg, he has now refined this picture even further.
Professor von Thiessen, in recent years you have developed a detailed picture of the early modern period as an age of cultural ambiguity. Can you describe again in a few sentences what you think are the defining features of this age?
The early modern period is often depicted as particularly contradictory, a period when an astonishing dynamism developed within a traditional and statically hierarchical social order with regard to the fields of politics, social relations, economy, and confessionalised religion. In my opinion, the core of this contradiction lies in the fact that on the one hand early modern societies followed an ideal of purity and unambiguity. That is, people still perceived the world as an entity created by God, which was ultimately harmonious and free of contradictions (and how could it be otherwise with God’s creation?) – true faith only had to be worked out from the correct interpretation of divine revelation, the valid rule of law only established in each case, and the appropriate virtues emulated. Clear rules and truths were certainly desired, and above all also vigorously demanded. But precisely because of this, there also arose on the other hand contradictions. Competing confessional churches vigorously postulated the observance of the rules of correct religious behaviour; the state attempted to regulate the lives of its subjects; and, in order to preserve reputation and honour, people tried to adjust to the increasing pressure of their social environment to conform – all of this meant the emergence not of unambiguity, but of normative contradictions.
One example: an early modern actor who was insulted by a neighbour was faced with the problem that his social environment expected him to defend his honour with violence if necessary, while the church taught the exact opposite and the secular authorities also expected that peace and order be preserved – different expectations of action, in other words, all of which were legitimate. But following one norm meant violating the other. Society was thus marked by an acute or latent “concurrence and competition of norms”, since, although there were many clearly formulated rules, laws and systems, there were still no fields of action clearly tailored to them in which certain norms prevailed. Therefore, normatively difficult situations arose time and again.
However, early modern actors were not particularly torn by this, but knew how to deal with the situation: they navigated between different norms – social, religious, and those oriented towards the common good – and thereby developed a strong “tolerance of ambiguity”, a fundamental ability to deal with conflicts between norms, to endure, ignore, overplay, or use them for their own benefit. Ultimately, the average actor in the early modern period was concerned with maintaining his social standing while not coming into serious conflict with the authorities and not endangering his chances of salvation. Early modern societies were therefore marked by a strong “cultural ambiguity” that seems alien to modern people, an ambiguity especially with regard to the abrupt switching back and forth between roles, the low value of individuality and personal authenticity, and the ability to accept normative contradictions.
You began your fellowship at the Käte Hamburger Kolleg almost a year ago with the intention of developing your concept, and in particular of exploring where law fits in. How far have your reflections progressed in this regard?
Particularly stimulating for me has been to compare in many discussions and readings the different disciplinary research traditions in the Kolleg – besides my own subject, history, legal history, and cultural and legal anthropology – and to look in particular at how they examine normative systems and their dynamics, what terms they use to do so, and how their disciplinary traditions have developed. A very important point in my concept is that the three normative systems that I regard as prototypical should be considered equally weighted; in other words, unlike older historiography, I do not place a priori norms set by the state before others. Legal history naturally focuses primarily on legal norms, but it is exciting to see the extent to which research has focused increasingly on how legal norms behave in the overall structure of norms. In addition, pre-modern legal pluralism sheds light on plurality and the vying for validity within a system of norms, something that I have included more strongly in my concept, which was primarily focused on concurrences between systems of norms.
Interestingly, similar initial problems as I had in developing the concept of the concurrence and competition of norms lead in the case of cultural and legal anthropology to different conceptual solutions: while I distinguish between different systems of norms, many anthropologists adopt a broad concept of law that is virtually synonymous with cultural and social norms. They do so out of respect for the fact that conventional ideas of norms and order in societies that are not familiar with academic-European law or that have only absorbed this law in the course of colonisation have an ordering and world-interpreting function that is not inferior to European law. Hence, the use of the term “law” for both spheres. Such use would be heuristically misleading for European societies, where, despite some overlaps, there are clear differences between legal and social norms. I think that there are two well-founded and different uses of the term here, which we should simply take into account in interdisciplinary dialogue.
Isn’t law in a certain sense above the normative systems you describe, since it makes an unconditional claim to validity?
As already suggested in the answer to the last question: definitely not! Because if I take an actor-centred approach, i.e. start from the perspective of the actors, from the question of how norms are brought to actors and how they deal with them, then law as part of the (in my diction) system of norms oriented to the common good does not actually have precedence. For, all normative systems in the early modern period seemed to actors that they were based on legitimate values, that compliance was expected, and that non-compliance could entail sanctions. If (until the early 18th century, at any rate) one system of norms could claim more authority than another, then it was the religious system, not least because it held the strongest threat of sanctions: the loss of salvation, i.e. the prospect of spending the second part of life, eternal life, in heaven. And social expectations also had at least as much authority as legal norms or decrees by worldly authorities in early modern societies, with their virtually synaptic face-to-face relationships (and thus immediate threats of sanctions against deviance).
"Judges were often masters of casuistry in the early modern period"
Early modern research has long discussed phenomena that are inexplicable from a modern point of view, such as inefficient courts that rarely brought a case to a resolution or laws that were never enforced. What logic did the pre-modern legal system follow?
Essentially, different logics. Or, to put it another way, it was situated in a field of tension between competing norms. That Justitia is blind is a claim that is not easy to realise even in modern times, but even less so in the early modern period. For judges, who sometimes had to expend considerable energy deciding which law was valid in the first place, were also expected to consider the circumstances, especially the social circumstances, of the case. This meant, for example, checking whether a particular sentence would plunge a family into misery, whether the honour of the accused would be unduly affected, and even whether the social order would be endangered. If this was the case, sentences were often very lenient, so lenient that the question arose whether laws should be enforced at all. But that is not the point: laws were made as ideal solutions, which, however, always had to go through the acid test of casuistry, so to speak, in reaching a verdict. Was a judgment based on the wording of the law really appropriate? Had all the circumstances and consequences (which supplications brought to the attention of the judges or their princely lords) really been considered? These considerations clearly show how law is implemented in a society shaped by cultural ambiguity: it is in a field with other norms, which does not mean that it is powerless or weak, but that it is implemented in relation to other normative considerations. Not only confessors, but also judges were often masters of casuistry in the early modern period.
You state in your book The Age of Ambiguity that this very age came to an end around 1800. In this, you agree with Thomas Bauer, who sees a “unification of the world” at work in the modern period. From the perspective of the present, could we not also argue the other way round that our late modernity, marked by social diversity and the pluralisation of ways of life, is producing a new pluralism of norms?
Yes, even if the diagnosis of the present seems very difficult, given the current massive normative tensions in Western societies. Incidentally, the diversity and concurrence of norms did not disappear completely even in high modernity. What changed massively in the transition to modernity, however, was the tolerance of ambiguity among many actors, and a very strong push towards standardisation and unification set in in many fields: in the legal system, in administration, in nation-state politics, and also in private life, which was invented as such in the first place and was also highly normative as the bourgeois family ideal. Boundaries were drawn more clearly: between the sexes (and their supposedly natural behaviour), between health and illness or disability, between the spheres of the public and the private, between nations and the characteristics attributed to them. Ambiguity became invisible, so to speak, or was deemed a remnant of the past that would eventually disappear as part of modernisation.
Now it can be argued that these categorisations – which, as Zygmunt Baumann has pointed out, only generated new contradictions and were therefore doomed to fail – are beginning to dissolve in postmodernity. This applies, for example, to gender classifications, partly to ideological boundaries, but not at all to demarcations between social norms and those oriented to public welfare. Surprisingly, this is where the image of an ultimately victorious modernisation process is most persistent, as can be seen in debates on corruption, for example. But are we ultimately becoming a bit more casual with regard to norms, even a bit more pre-modern again? I believe that only to a limited extent. For on the one hand, an essential basic condition for the early modern tolerance of ambiguity was the view that sinful man was simply incapable of fulfilling norms to the letter and of moral perfection, and therefore had to be content with dithering casuistry. I don’t really see such anthropological modesty in current discourses, but rather the opposite. And we should also not overlook the fact that there is massive resistance in society, for example against the trend of dissolving or de-essentialising gender boundaries, but also against dissolving national attributions and identities.
You will soon be co-organising a “conceptual forum” at the Kolleg. In this workshop format, current theoretical and methodological approaches to the study of law will be discussed across disciplines and epochs. What insights do you hope to gain from this for the concept of the concurrence of norms and of cultural ambiguity?
I am particularly curious about the interdisciplinary discussions. It is particularly interesting to compare historical with anthropological approaches. Early modern historians – myself included – tend to identify differences between epochs, whereas anthropologists remind us of the extent of cultural differences and interconnections within a period. Especially for a historian of the early modern period, it is a very interesting experience, and one that I have already had several times in the Kolleg, when colleagues from anthropology approach contemporary societies with questions and achieve results that definitely show overlaps with historical research on the early modern period. As an early modern historian, it is no less exciting to discuss the basis of the validity of law (and other norms) with legal scholars, because there are very different perspectives here. And finally, the question is still largely unresolved regarding the transition from pre-modern to modern systems of norms – who or what actually drove the change, how did the actors perceive it, how much pre-modern ways of dealing with norms can still be found in the modern era. In this respect, cross-epochal perspectives will be particularly in demand at the conference and hopefully in future research.
The questions were posed by Lennart Pieper.