(image source: MPI Frankfurt)
The MPI for European Legal History in Frankfurt advertises two postdoc positions on early modern legal history.
By the third decade of the sixteenth-century, once the first settlements had been successfully established in the Caribbean as well as in Central and South America, the Spanish monarchy had to confront the task of establishing its dominion over huge populations and across vast distances, albeit with limited human and material resources. In light of the scarcity and the remoteness, great importance was accorded to propagating and implementing codes of conduct and modes of behavioural control – not just among European settlers, but also over the indigenous populations.
As a part of the Collaborative Research Centre (‘Sonderforschungsbereich’) 1095, which was approved in November 2014 and is slated to begin at the start of 2015 at Goethe University, Frankfurt, bearing the title “Discourses of Weakness and Resource Regimes”, this subproject draws on the broader historical context described above to ask what norms and mediatic forms had been put to service by the Spanish sovereign to regulate codes of conduct in the period spanning between the 16th and mid-17th century. This study centres predominantly on “normativity”, its conventional and mediatic sources, not least on “law” and the functionality of these normative orders. However, the core of this project draws less on conventional sources of legal history, meaning the large stacks of textual collections pertaining to the norm setting practices of higher authorities or other early modern legal sources from the Castilian tradition and ius commune. Instead, special attention is being paid to modalities of normativity and their special mediatic forms primarily established to reach out to “practitioners” – and, in particular, sources from the fields of moral theology, pastoral or catechetic literature. Research on private book collections and on book circulation shows that they predominantly included popular works, namely small compendia, summaries of greater moral theological works, and, in part, also juridical theses that were notably used in Hispanic America.
The project builds on the hypothesis that “pragmatic literature”, in particular, the strand that powerfully refers back to the tradition of moral theology, may have gained in significance and functionality in the remote frontier context of the early modern empire, lacking in any standard of review: particularly because this body of works did not represent complex instructions or a sophisticated normative framework, or even direct command of the authorities. What on the one hand was regarded as “weakness” could now also be viewed as “strength”: precisely its succinct and concise quality may have rendered this strand of pragmatic literature functional; instead of focusing on law and its enforcement, the works concentrate on the innate force of human conscience, inculcated by way of rituals and discourses. These texts were simultaneously “weak” and “strong”, not only because it was possible to tie them in with Christian traditions of a weak discourse. They were perceived as weak for the lack of theoretical complexity compared to the challenging scholarly tractates and, importantly, also because in general they could not be enforced like the rule of law. They were “strong”, on the other hand, in a pragmatic sense, as their flexible normative underpinnings enabled them to take up those notions of legitimacy and basic moral assumptions which became a part of the moral economy of the colonial society. Not least in the imperial peripheries, where the American territories were located at the beginning and where vast swaths of the Americas continued to remain even after different centres were established in the composite monarchy, these adaptable and pragmatic texts addressing codes of conduct, such as confessional writings, catechisms, moral theological instructions, became particularly important: even in places where the reach of law was limited or non-existent, the practice of specific regulations and notions of “proper” behaviour were effectively mediated through ecclesiastic institutions and players, but also through the omnipresent religious symbols and their consistent inculcation.
There are some indications that this constellation of resources was responsible for generating, even minimally, normative conceptions of social order and thereby also establishing a system of rule: Juridical normativity and institutions consolidated in a process of differentiation, essentially resources central to the formation of the early modern European state, were substituted by religious normativity and pragmatic literature, which characteristically offered greater scope for interpretation. As a result, the situation that emerged could be construed as “weak” when compared to the European context. But set against the backdrop of the challenge of the colonial project – at the outset at least – it could be viewed as a functional normative order built on a distinct configuration of resources.
If these hypotheses were confirmed, the project would also help to bring to light not just the practical significance and functionality of this strand of sources, which has received scant attention for a long time, but perhaps also its intellectual weight. It is possible that the perceived weaker nature of this literature does not merely suggest – as often assumed – a form of vulgarization; on the contrary, it may be possible to see herein a conscious, and considerable work of abstraction.