Mathieu Deflem
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Please cite as: Deflem, Mathieu. 2014. "Introduction to the Transaction Edition." Pp. ix-xvii in Custom: An Essay on Social Codes, by Ferdinand Tönnies. New Brunswick, NJ: Transaction Publishers.
It can only be considered a testament to the enduring relevance of the sociology of Ferdinand Tönnies that his 1909 work Custom (Die Sitte) has been selected for republication in the prestigious Law and Society series published by Transaction Publishers under the admirable guidance of Javier Treviño. The fact that this particular work of Tönnies is less widely recognized as a classic contribution in the grand canon of law and society scholarship makes this new edition all the more important and useful. For scholars interested in the study of law from a sociological and, more broadly, social-science viewpoint will find much food for thought in the work of Tönnies, in general, and in this book, in particular. Unlike Tönnies’s general studies on sociology and society, moreover, his book on custom has the advantage of presenting a concise and accessible introduction into several key elements from the broader sociological thought of Tönnies, which can benefit both the theoretical understanding of law as an object of social-science reflection as well as advance empirical insights into the multiple dimensions and roles of law in society. In this Introduction, I will situate the core elements of Tönnies’s book on custom within the wider contours of his oeuvre and offer some food for thought on the continued value of this study on custom as an object of sociological reflection.
Gemeinschaft and Gesellschaft
Ferdinand Tönnies was born
in Schleswig-Holstein, Germany, in 1855. He received
his doctorate in 1877 and was thereafter primarily associated with the
University of Kiel, albeit it mostly on a non-permanent basis. Unhindered by
all too many formal teaching duties and other academic obligations, Tönnies was
a highly independent and extremely prolific writer, with a total of over 900
publications devoted to a wide variety of topics in sociology, philosophy, and
politics. Unlike some of his famous contemporaries such as Max Weber and Emile
Durkheim, Tönnies also enjoyed a very lengthy life, though sadly reaching the
advent of the Nazi seizure of power in 1933, whereupon he was formally dismissed
from his university position. Tönnies died in Kiel in 1936 at the age of 80.
Tönnies’s
first book is his renowned study Gemeinschaft
und Gesellschaft (Tönnies 1887). The fame of this book is somewhat tragic,
however, as it is a work that is both cited frequently as well as generally understood
poorly. The book is primarily a sociological study on the evolution of society,
arguably the first of its kind to move intellectually from a normative social
philosophy to a scientific sociology of societal change and modernity. Tönnies
specifically outlines a model of change whereby societies evolve from Gemeinschaft (community) to Gesellschaft (society). Gemeinschaft-like social formations are
primarily agricultural and centered around small villages, whereas Gemeinschaft types are industrial and
large in scale with sizeable metropolitan areas.
The
suggested transformation would not be unique to the sociology of the classical
era were it not for its underlying theory of the individual in society and its
specific concept of evolution. Whereas Durkheim conceived of the transformation
towards modern society in terms of a transition from mechanical to organic
solidarity at the social, especially cultural level, and whereas Weber sketched
a process of societal rationalization in terms of the changing form in which
social organization takes place, Tönnies uniquely complements his sociological
theory with an accompanying social psychology. Specifically, Tönnies develops a
theory of the human will to suggest that Gemeinschaft
societies are oriented around an essential-will (Wesenwille) which readily emanates from a person’s character and
temper. Gesellschaft formations, in
contrast, are centered on the capacities of persons with an arbitrary-will (Kürwille) to make decisions based on a
differentiation of means and ends. The linking of this social-psychology of
will to a sociology of society is a contribution to social theory that sets Tönnies
apart from other classics, who more typically treat these two elements of human
existence as separate and unconnected.
Moreover,
Tönnies’s conception of societal evolution is peculiar as he insists that the
social types of Gemeinschaft and Gesellschaft must not be considered as
opposing polar types, but rather are to be conceived in a continuum of
development as variably evolved formations that are ideal-typically conceived as
pure types precisely to allow for empirical variation to be revealed from case
to case (Tönnies 1931, 1971). Tönnies thought of the transition from one to the
other type as analogous to the maturation from childhood to adulthood.
Theoretically, therefore, Tönnies also merged various strands of social thought
and gave a place to both organic theories as well as rationalist models of
society that were more typically held to be in opposition.
Custom, Law, and Culture
Along with the conceptual
distinction between Gemeinschaft and Gesellschaft, Tönnies demarcated various
social processes and institutions, including law and custom (Tönnies 1931,
1971). Specifically, Tönnies advances a sociological theory of law from common
law to statutory law. Whereas common law is guided primarily by existing
customary practices, statutory law is deliberately constructed in view of
reaching certain ends that, most typically, are determined by the state. Thus, common
law is typical for Gemeinschaft
societies, whereas statutory law develops with the transition towards Gesellschaft. Along with this legal
change, Tönnies also specifies a criminological perspective that differentiates
between crimes that immediately reflect a person’s passions and are usually
violent in nature (typical for Gemeinschaft)
and those that are instrumentally oriented at gaining profit (typical for Gesellschaft) (Deflem 1999).
Importantly, Tönnies does not suggest that one societal type and, along with
it, one type of law and one type of crime would replace earlier forms. Instead,
Tönnies argues, even the most advanced Gesellschaft
formations retain Gemeinschaft
qualities. Thus, the relative weight of state-determined law (on the basis of formal
legislation) as compared to other aspects of law (that remain related to
custom) is, according to Tönnies, always empirically variable.
Accordingly,
Tönnies introduces the notion —of central importance to the present study— that
custom remains an important category of thought even, and especially, in the
analysis of the most advanced Gesellschaft-type
societies. In fact, Tönnies’s study on custom is specifically devoted to the
study of customary practices in modern Gesellschaft,
where custom co-exists with other, more rationalized forms of social
organization. One can very well argue and defend the notion with Tönnies that
the problem of the relationship between custom and society is most acutely
posed in those societies which are not wholly dictated by customary practices.
For whereas custom is exhaustive of all social relations in societies that are
primarily organized as Gemeinschaft,
only in Gesellschaft societies can
there be a relation between custom and law (as well as other institutions) that
is variable and potentially raises more and less problematic issues.
As
Tönnies argues in the opening pages of his book, custom (Sitte) is theoretically conceived as involving certain factual
practices, normative aspirations, and will-related dispositions. As such,
custom refers at once to the real, the ideal, and the desirable, and it
connects objective with inter-subjective and subjective aspects of social life.
The
differentiation of the three aspects of custom is in Tönnies’s terminology an
example of pure sociology, engaged in clarifying the foundational concepts of
sociological thought (Tönnies 1931, 1971). The majority of Tönnies’s observations
in the remainder of his study operate at the level of applied sociology,
oriented at a deductively arrived understanding of the dynamics and
interrelationships among various social events and institutions. On some
occasions, also, Tönnies deepens his analysis with specific illustrations of
certain concrete instances of the discussed dynamics as an effort in empirical
sociology. Naturally, the three forms of pure, applied, and empirical sociology
mutually inform each other, but Custom
is primarily a work in applied sociology.
At
the level of applied sociology, Tönnies analyzes custom in relation to a number
of social phenomena and institutions. Specifically, Tönnies discusses a variety
of interesting issues involved with age and generations, religion, gender,
family, and fashion. His observations are many, not extremely tightly organized,
but presented with an excitement and a revealing quality that many contemporary
scholars will and should envy. Of special note is that Tönnies’s strategy of
applied sociology allows for both analytical distinctions to be made and
empirical connections to be revealed. Thus, for instance, Tönnies posits the
interconnections between the ancient, the sacred, and the natural in custom.
Of
most distinct relevance from the viewpoint of the study of law is that Tönnies
in this work shows how the relationship between custom and law changes with the
transition from Gemeinschaft to Gesellschaft. In social formations
predominantly organized as Gemeinschaft,
law is established by custom (as customary or common law) and consequently
constituted as natural. By contrast, Gesellschaft
social formations witness a separation of law from custom, so that both
customary and statutory law are differentiated from custom itself by being
commanding and ideal rather than, as in the case of custom, necessarily obeyed
and real (see Tönnies’s exposition in this book, pp. 65-67).
In
the above sense, Tönnies’s work shows that in Gesellschaft there remains a special need for Gemeinschaft and that, indeed, custom contains both real (factual)
and ideal (moral) components on both the inter-subjective and subjective level.
In the German language, it is to be noted, these important connections are
immediately revealed in the terminology of Sitte,
Sittlichkeit, and Sittengesetz, translated in English as, respectively, custom, ethical life, and
morality laws. As clarified in the original Preface to this translation by
Borenstein (pp. 5-7), the German word Sitte
as such readily brings out the moral aspects of custom (as mores) and the
association with the (moral) obligations of ethical lifeforms and those legal
regulations that apply to common decency (good morals). At the criminological
level, etymological affinities are likewise revealed as the control of ethical
offenses or moral crimes (Sittenverbrechen)
is charged to vice squads or morals police (Sittenpolizei).
Tönnies’s narrative masterfully brings out these intimate connections in his
work, so that the translation of his ideas into the English language, even in
non-similar terms, should provide no obstacle to their proper understanding.
Contemporary Relevance
Readers of this new
Transaction edition of Tönnies’s Custom
have the rare privilege to not only read and study Tönnies’s ideas but also of
being able to situate and discuss this particular work, more broadly than ever
possible, in terms of the history and systematics of sociology, specifically,
sociological theory and the sociology of law. The many observations Tönnies
makes in his book are beyond any doubt worthy of our attention today. In fact, Tönnies’s
observations on the relevance of gender and fashion give his now century-old
work an unexpected contemporary flavor, even when some of its precise
statements will need to be adjusted in the light of empirical changes in
society and theoretical developments in sociology. It would be foolish to argue
otherwise, but it would be foolish as well to not continue to see the
analytical value of Tönnies’s work. The readers will need to make their own
independent judgments on the value of Tönnies’s work for our time, but at least
three elements can be forwarded as worthy areas for further investigation.
At
the level of pure sociology, one is struck by the sophistication of the
analytical distinction Tönnies introduces in his conceptualization of custom as
having objective, inter-subjective, and subjective dimensions. In modern
sociology, this idea has been most visibly influential through a related —and
at least in part explicitly to Tönnies indebted— theoretical treatment in the
work of Talcott Parsons (1971), who distinguishes culture from society and
personality (and behavioral organism). Again partly extending from this groundbreaking
formulation, Jürgen Habermas (1981) similarly differentiates in his concept of
the lifeworld the three aspects of cultural reproduction, social integration,
and socialization. As such, it can be seen that the analytical distinction
between objective, inter-subjective, and subjective aspects of custom and other
social formations, as Tönnies introduced it in this work, has remained to be of
considerable analytical value throughout the development of sociology.
More
generally, the analytical value of the sociological concepts of Tönnies can
only remain an object of continued attention in social-science scholarship.
This intellectual strategy, to treat the classics as contemporaries, was set in
motion in modern sociology most distinctly by Parsons (1937) in his The Theory of Social Action, in which Tönnies
ironically had only a modest place. However, Parsons’ voluntaristic conception
of action, his theory of the pattern variables, and the AGIL-model of the
social system are deeply indebted to Tönnies’s concepts of Gemeinschaft and Gesellschaft,
as most clearly revealed in Parsons’s central notion of societal community (in
German: gesellschaftliche Gemeinschaft).
Turning
to the levels of applied and empirical sociology, at least two avenues of
theory and research are possible in line with Tönnies’s work on custom. First,
at the most general level, Tönnies illustrates the most foundational aspect of
any sociology by situating custom within society. In the sociology of law, this
notion is reflected in a conceptualization of law in society and the study of law in relation to other social institutions (Deflem 2008). More specifically, Tönnies
takes on an important task, which is also practiced in much of contemporary
sociology of law, by relating custom to various aspects of culture, such as
religion, gender, and family. Focused on the transition to Gemeinschaft, Tönnies’s ideas remain useful today by suggesting an
approach to study, and formulate questions that need to be asked about, the
relation of custom as well as law with aspects of the hyper-diverse and occasionally
fragmented cultural manifestations of today. Tönnies’s work thus provides an
avenue to marry the insights of the sociology of law with those of the sociology
of culture, two of today’s arguably most exciting specialty areas in the discipline.
Second,
on a more concrete and empirical level, it is remarkable to note how much
sensitivity Tönnies already showed towards the societal relevance of cultural
phenomena related to age, gender, family, and fashion. Such cultural dimensions
have not always been duly embraced in sociology, at least not until much more
recent times. In so many ways, Tönnies’s work is in this respect well ahead of
its times. It remains up to contemporary sociologists, of course, to estimate
how Tönnies’s study can and should be relevant today for research on such
important cultural topics as the changing place and role of the sexes and
trends and variations in fashion. From such work, the continued value of Tönnies’s
sociology could ultimately be demonstrated in the sociological study of law,
custom, gender, and, indeed, fame and celebrity.
References
- Deflem, Mathieu. 1999. “Ferdinand Tönnies on Crime and Society: An Unexplored Contribution to Criminological Sociology.” History of the Human Sciences 12: 87–116.
- ———. 2008. Sociology of Law: Visions of a Scholarly Tradition. Cambridge, MA: Cambridge University Press.
- Habermas, Jürgen. 1981. The Theory of Communicative Action, Volume 2, System and Lifeworld. Boston, MA: Beacon Press.
- Parsons, Talcott. [1937] 1949. The Structure of Social Action. Second edition. Glencoe, IL: The Free Press.
- ———. 1971. The System of Modern Societies. Englewood Cliffs, NJ: Prentice-Hall.
- Tönnies, Ferdinand. 1931. Einführung in die Soziologie. Stuttgart: Ferdinand Enke.
- ———. [1887] 1935. Gemeinschaft und Gesellschaft: Grundbegriffen der reinen Soziologie, 8th edition. Darmstadt: Wissenschaftliche Buchgesellschaft; English translation: Fundamental Concepts of Sociology (Gemeinschaft und Gesellschaft). New York: American Book Company, 1940.
- ———. 1971. On Sociology: Pure, Applied and Empirical, edited by W.J. Cahnman and R. Heberle. Chicago: University of Chicago Press.
See also other writings on culture.
