How to Ensure Predictability in Legal Pluralism. Northern Europe in the Later Middle Ages

How to Ensure Predictability in Legal Pluralism. Northern Europe in the Later Middle Ages

Käte Hamburger Kolleg „Einheit und Vielfalt im Recht“, Universität Münster; Gregor Rohmann, Goethe-Universität Frankfurt am Main
Fand statt
Vom - Bis
05.10.2022 - 06.10.2022
Vera Teske, Käte Hamburger Kolleg „Einheit und Vielfalt im Recht“, Universität Münster

Merchants engaged in long-distance trade in Northern and Central Europe during late medieval and early modern times were confronted with a particular degree of normative plurality while conducting their businesses across different territories, legal and political landscapes and with partners from different social and cultural backgrounds. Written and customary laws, mercantile codes of conduct and other social norms posed as a framework for trading and managing conflicts. Different rules and norms applied to different groups and persons within the same space and different authorities and jurisdictions competed within the same social field. How did people under these circumstances decide according to which normative framing they should act? How did actors ensure predictability? And how did people cope with non-compliance? These were the questions discussed in the workshop.

In his introduction, GREGOR ROHMANN (Frankfurt am Main) defined predictability as Niklas Luhmann’s Erwartungssicherheit. Expectations towards people’s behaviour are at the heart of the matter. Trust, consistency and reliability play an important role in shaping as well as managing these expectations. The form of trust referred to in this case is one generated by institutions, creating systemic trust (Systemvertrauen). An “institution” is understood as a social constellation of rules, norms and beliefs that shapes social behaviour and is shaped by it in a circle of mutual constitution. The plurality of legal orders and normative matrix’, of legal forums and judicial realms, of (legal) procedures and authorities suggests that the mercantile sphere was a typical example of a social field marked by “legal pluralism”. The combination of the approaches of New Institutional Economics and legal history were set out to be investigated with regard to their applicability and fruitfulness to delineate and explain the merchant’s strategies in dealing with these pluralities.

KATALIN SZENDE (Budapest) illuminated the importance of municipal administration and literacy in late medieval Hungary for creating systemic trust. Important aspects in this regard were the acquisition of a municipal seal in order to issue authentic legal documents, the employment of a municipal notary and the establishment of town archives. The setting up of municipal books containing legally binding content using vernaculars made such content available and accessible over time and to different social actors. Social practices were meanwhile still crucial to form trust, as for example, oath taking. Nevertheless, they were supplemented by the reference to codifications and the use of notarized documents in legal contexts.

OLGA KOZUBSKA (Lviv/Münster) analysed the efforts of the city of Lviv to restrict the access to urban trade for foreign merchants, establishing a rigid policy of mercantile control through separate storage systems for local and foreign merchants, a commission to supervise the commercial and mercantile activity of certain social groups and the institution of “dolmetschers”, multilingual office holders who took part in the supervision of all arriving merchants, inspecting their goods as well as validating their credentials and investigating the purpose of their stay. In this context, the rigid policy, the remarkable strict staple law and the exclusion of external authorities provided predictability.

Not always were the perceptions and attitudes towards foreign merchants this reticent. EDDA FRANKOT (Bodø) showed that, in contrast, the courts of Aberdeen operated under the maxim to welcome foreigners, since Scotland profited from them and their trade. There is no evidence that foreign merchants were treated differently or had to face severe disadvantages in their proceedings. This led to the mutually favourable outcome that foreigners utilized the Aberdeen courts rather than pursue their cases elsewhere, e.g. at their hometown. Advantageous and consistent decision making of courts as an example for legal practice could thus also enhance predictability.

These examples show how formalization and standardization, procedures and accessibility, local officials and administrative institutions were means to provide predictability. Attempts to create legal unity and harmonization, however, were not.

TOBIAS BOESTAD (La Rochelle) pointed out that the merchants themselves did not really care about harmonization of laws, and that the so-called German Law, which has been referred to as proof for such an assumption, cannot be seen as such an attempt. He pointed at a crucial misconception in the translation: the “Dudesche Recht” did not refer to a single body of law. Rather, it was a term that applied to a certain group of actors, that is merchants from a loosely defined linguistic realm, “the Germans”. The term furthermore did not apply to a law code but rather to a certain set of privileges and jurisdictions. The Latin translation into “iustitia et libertas teutonicorum” used by the contemporaries makes it rather obvious. Boestad suggested that the term functioned as an early label for what later became the Hanse.

The importance of the Hanse as a framework of action was discussed by several contributions. LOUIS SICKING (Amsterdam/Leiden) examined the Scania peninsula in the south of Sweden as a setting of jurisdictional diversity. Within the so-called Vitten, settlements of merchants and traders from different Hanseatic cities, the office of reeves (Vögte) combined administrative and legal functions. Taking the example of conflicts between Lübeck and Danzig over the border of a Vitte, he illustrated how events could be transferred from one jurisdictional level to another by using different conflict resolution models. The managing, rather than solving conflicts, could involve the Vögte, the Danish king as the “host” at Scania and the hometown city councils that could be called upon. He stressed that the centres of gravity in the models of conflict-management could shift depending on the respective balances of power.

BART LAMBERT and JUURIAAN WINK (Brussels) underlined the rather limited use of the Hanseatic structures by merchants of the Dutch Zuiderzee towns. The role of the Hanse differed according to the status of the conflicting parties: Only if both parties belonged to the Hanse, the involvement of its institutions of conflict resolution seem to have been an option. Far more important, the Hanse could provide diplomatic assistance. Diplomacy was a tool in its own right but also valuable in symbiosis with judicial measures, especially in manoeuvring complex legal landscapes. Diplomacy could smooth legal proceedings or could be used to skip or circumvent them altogether.

As INDRAVATI FELICITÉ (La Réunion) illustrated, the importance of the Hanse as a point of self-reference for the Hanseatic cities declined in the course of the early modern period. According to the terms of the Westphalian Peace Treaty and in line with the discourse on sovereignty coined by Abraham de Wicquefort and Jean Bodin, the Hanse was not seen as a sovereign actor and did thus not proof valuable in diplomatic interactions anymore.

PHILIP HÖHN (Halle) stressed the instrumentalization of political discourses as a communicative strategy. Analyzing petitions from merchants to the English parliament in 1422, he illustrated narrative constructions that were used by the conflicting parties, such as speaking of collectives, framing individual conflict actions as a result from broader political conflicts and using denominations of self and others which mirrored these conflicts. However, there were several practices that linked the actors nevertheless, ensuring that the conflict did not escalate, even if it could not be resolved. Practices such as the itemization of the conflict objects made it possible to decontextualize them and negotiate them notwithstanding the ongoing conflict. Practices such as these functioned as “communicative anchors” keeping the conflicts operable (kommunikativ bearbeitbar, Niklas Luhmann).

Violence is said to have been one option that merchants fell back on as a last resort. The institution of reprisal functioned as such a mechanism of collective liability. However, this supposedly last resort did not ensure predictability as well as it may seem. As LESLIE CARR-RIEGEL (Budapest/Münster) pointed out, there were five ways in which the institution of a reprisal could fail: firstly, by not following the proper procedure, be it either the plaintiffs, the authorities granting a reprisal or merchants trying to extract reprisals themselves. Other failures were those of enforcement due to the lack of power or conspiracy and bribery, failures due to protected status deriving from existing treaties or a letter of safe-conduct, due to meritorious conduct or due to mistaken identity or jurisdiction. The latter was said to be the most common failure. This led to the question of whether merchants were actually interested in ensuring predictability or rather in taking precautions for predictable problems. Were their strategies intended to provide predictability or rather to manage risks?

Questioning the fruitfulness and appropriateness of the concept of “legal pluralism” for the analysis of late medieval and early modern socio-economic contexts, JUSTYNA WUBS-MROZEWICZ (Amsterdam) illustrated the interconnectedness of legal, political and economic institutions in medieval and early modern Danzig. Comparing their set-up and the personnel in the administrative, political and legal institutions, she showed their alignment regarding the social background of the recruits and the qualifications of the office holders. She raised the question of whether contemporaries as well as historians need(ed) to deal with this, perceive(d) it as a problem and whether we can actually make use of the concept of “legal pluralism” without detecting truly separate legal institutions.

In his commentary, PETER OESTMANN (Münster) summarized the discussions of the workshop from a perspective of legal history and pointed towards the option of the ecclesiastical jurisdiction as a highly unified and universally accessible legal system. A crucial but missing factor in the social field of mercantile business was said to be the possibility of the transregional enforcement of law. Consistency as a crucial means to form expectation security was furthermore dependent on a legal terminology that could foster standardization and unification. However, as long as the driving force behind the actions of the merchants were the pursuit and enforcement of interests, expectation security could only be achieved in a very limited amount.

“Legal systems” are hard to detect or delineate with regard to institutions as well as personnel, and the emergence of genuine mercantile law statutes or legal orders has been questioned once again. Furthermore, the legal practice of conflict resolution was not primarily shaped by the application of laws, but by forums, procedures and norms matching the operating conditions of long-distance trade. It seems as though not the laws but the norms shaped behaviour and conflict management. For the historical actors, the plurality of norms was an asset rather than a problem.
Although one could thus question the value of the concept of legal pluralism, the contributions and discussions of the workshop showed that the standardized and formalized procedures of legal or judicial conflict management did provide a degree of predictability that other normative orders and institutions failed to provide. However, ensuring predictability, as has been shown by the presentations of the workshop, demanded more than coping with legal pluralism. And since unpredictability did not arise from legal pluralism alone, legal means could not remove or contain the various uncertainties merchants in long-distance trade had to deal with. One could therefore ask, whether and in how far strategies of ensuring predictability and coping with legal pluralism were related.

An observation made by several contributors concerned the importance of knowledge. It was one of the most important tools at the disposal of actors in order to cope with normative plurality. A familiarity with local customs, a grasp of the legal landscapes and an understanding of the political framework, the balances of power and the discourses that shaped these relations were crucial. In order to secure this knowledge, the merchants could and did resort to legal experts, like advocates and notaries. Moreover, awareness of the courts and jurisdictions available and responsible was vital to open up the possibility to enforce one’s claims in court. The usage of anything but legal means, on the other hand, could proof useful as well. The mentioning or knowing of an option alone could influence behaviour and shape conflict management, making (normative) knowledge and information crucial for manoeuvring the diverse contexts and (legal) landscapes of long-distance trade.

The contributions of the workshop examined behaviour of different parties involved in long-distance trade, showing that many uncertainties and disruptive factors could not be controlled by a single actor. The strategies used to ensure predictability, manage risks and cope with legal or normative pluralism account for the different actors involved and their respective interests. They made use of different means and institutions, creating a web of options, which promoted a certain degree of reliability in people’s behaviour and several mechanisms to enforce one’s claims if any of them failed.

Conference overview:

Peter Oestmann (Münster): Welcome

Gregor Rohmann (Frankfurt am Main): Introduction

Session 1: Merchants and Markets in Central Europe

Katalin Szende (Budapest): Trust and Distrust in the Legal and Social Framework of Urban Life in Late Medieval Hungary

Olga Kozubska (Lviv/Münster): Trading Privileges and Legal Pluralism in Ukrainian Towns

Session 2: Scandinavia and the North

Tobias Boestad (La Rochelle): German Law or Law of the Germans? Some Notes about the Early Hanse Merchants and their Attitude towards Legal „Harmonisation” in Northern Europe

Louis Sicking (Amsterdam/Leiden): A Microcosm of the Hanse? Legal Pluralism at Scania, 1350-1550

Edda Frankot (Bodø): Administering Justice to Foreigners: International Merchants and Mariners before the Late Medieval Aberdeen Courts

Session 3: Hanse Towns and Hanse Merchants

Bart Lambert / Juuriaan Wink (Brussels): Legal Pluralism and the Hanseatic Zuiderzee Towns: Conflict Management in a Multilayered Legal Landscape between North and Baltic Seas

Philipp Höhn (Halle): The Dogs of Danzig: Focal Conflicts, Political Semantics and Legal Commonalities in Anglo-Hanseatic Relations

Justyna Wubs-Mrozewicz (Amsterdam): The Trouble with Legal Pluralism: The Case of Danzig (1466-1570)

Session 4: The Hanse in the West

Leslie Carr-Riegel (Budapest/Münster): Reprisals gone wrong: English Cases of Mercantile Dispute 13th-15th Century

Indravati Félicité (La Réunion): Considerations of Legal Unity and Pluralism in Early Modern Hanse Diplomacy

Peter Oestmann (Münster): Commentary

Final discussion