Constitution as Assemblage: The Normative Signature of Early Modern Rule

What were premodern constitutions? How should they be studied, and to what end? To address these questions, the lecture begins by problematizing the distinction between norm and practice that is customary in constitutional history—as it is in legal history—and expands it into an analytical model of constitution as an assemblage in which political practice, explicitly normative practices, and abstract normative systems form a heterogeneous whole. Drawing on empirical material from the Holy Roman Empire and its territories, the paper then uses this model to identify more precisely the distinctive normative signature of premodern constitutional orders. Political practice was integrated above all through situational and social forms of coordination and thus appears to be under-normativized. Only in situations of conflict did the degree of normativization increase, when actors appealed to custom and the common good in order to block changes that lacked consent. It was at this point that text-based practices of explicating normative knowledge came into play, through which political orders were theorized and contextualized within a learned juristic discourse. The abstract normative systems that emerged in this way, however, tended to be over-normativized, insofar as they often could not be made to prevail over situational and social forms of practical coordination. The lecture concludes by considering the scope of this analytical model in the context of the practice turn in legal history.