Activity Report 2018–2020

Departments

European and Comparative Legal History

Stefan Vogenauer

The Department explores the European and comparative dimensions of legal history. With regard to the former, we are particularly interested in the legal history of the European Union. With regard to the latter, our focus is on legal transfer in the common law world, ie on the interaction of English law with the laws and customs of the various parts of the British Empire from the 18th to the mid-20th century. However, the European and the comparative dimensions cannot be neatly separated, as is clear from our research activities on private law and dispute resolution in a historical, comparative and transnational perspective. In a similar vein, we study the history of sources of law and legal methods across different legal systems and traditions. Another distinction that is difficult to maintain is that between legal history and contemporary law. We therefore approach historical phenomena with a keen interest in their contemporary relevance. The Department was established in late 2015, and it has grown steadily ever since. While the first years were mostly dedicated to building up the infrastructure for the new research themes of the Department, such as establishing a number of crucial international collaborations and increasing the relevant library holdings and databases, the present reporting period was one of consolidation and gradual expansion. The research activities of our 20-odd PhD students, postdocs and senior researchers are set out in greater detail below. They are bundled together in four different Research Fields, which are briefly introduced in this overview of the Department’s activities.

Legal History of the European Union

The law of the European Union (EU) is very much a contemporary phenomenon. As such, it is subject to scrutiny by EU lawyers, political scientists, sociologists and others. Yet, more than 60 years after the Treaty of Paris, EU law has accrued a substantial history that has so far escaped the attention of legal historians. The Research Field Legal History of the European Union aims to fill this gap and analyse legal developments in EU law, sometimes reaching back to earlier developments and thus putting the legal history of European integration in a longue durée context

The history of EU law has a strong comparative dimension. On the one hand, national models were a source of inspiration for many, if not most, rules and principles of EU law, as well as for the institutions and legislative techniques of the EU. On the other hand, EU law, once enacted, takes on very different forms after it has been implemented and embedded in the legal environments of 27 different Member States. A strong focus of this Research Field is also on key actors in the process of the legal history of integration, such as politicians, officials, judges – again at the levels of both the EU and its Member States.

An essential part of the work in this Research Field is dedicated to identifying and collecting sources. We employ innovative methodologies, including oral history projects, digitisation and making private archives accessible. In doing so, we collaborate with European institutions (the Council and the Court of Justice of the EU) and the Historical Archives of the EU in Florence.

Legal Transfer in the Common Law World

As the British Empire expanded, English law was being introduced in very different parts of the world. Rules, principles and institutions from England were brought into force in regions and societies as diverse as Australia, Ghana, India, Jamaica and Singapore. In this Research Field, coordinated by Victoria Barnes, we enquire how this process unfolded in various places.

In many cases English law encountered local or regional traditions, both legal and non-legal. To what extent did these encounters differ from each other? Was there ever anything resembling the frequently invoked ‘unity of the common law’? Or did the law of England acquire a distinctive flavour in each territory, depending on the geography, the climate and the prevailing religious, moral and economic views of the inhabitants? And, finally, can we learn anything from the experience of English law for the broader debate on legal ‘transplants’ and, even more generally, legal development as such?

Initial research projects have focused primarily on the following regions: India, South East Asia, North America and the Caribbean. Specific case studies turn on different areas of law, including constitutional law, the law of contract, land law and intellectual property. Apart from substantive law, they consider the various modes of conflict resolution in colonial courts and other venues.

Informal collaborations have been set up with leading scholars from all over the common law world. The bi-weekly ‘Common Law Research Seminar’, established in late 2016, has drawn many of them to Frankfurt and has become a major forum for the exchange of ideas amongst scholars working in the field.

Private Law and Dispute Resolution in a Historical‚ Comparative and Transnational Perspective

Research into the history of private law has a long tradition in Frankfurt. For Helmut Coing, our Founding Director, it was the key task of the Institute, for he considered this area of legal history to be ultimately the ‘direct foundation of the contemporary system of private law’. Thus the Institute’s first flagship publication, an extensive handbook, was entirely devoted to the sources and literature of the modern history of private law, covering the early modern ius commune and the 19th century (Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte).

Today, the Institute’s research on the history of private law has become even more ambitious in four respects. Firstly, we analyse ‘legal’ history in close dialogue with social, economic and political history. Secondly, we examine ‘private law’ with a strong focus on how private law rights can be enforced and thus pay attention to the various modes of judicial and extrajudicial dispute resolution. Thirdly, we no longer limit ‘European’ legal history to the continental ‘civil law’ tradition: we include, as a matter of course, the history of the common law in Europe and legal developments in East Asia, South America and the Commonwealth. All these are intimately connected to the legal history of Europe but transcend it; in the Institute’s research, they are seen in the context of global history. Fourthly, we consciously link the history of private law to developments in contemporary private law, and thus connect it to the disciplines of comparative and transnational private law.

International collaborations in this Research Field have been on a personal, rather than an institutional level. Work on the six-volume Studies in the Contract Laws of Asia has brought together around 150 scholars from South, East and South East Asia. The Ius Commune Casebook on Contract Law was co-authored with three leading contract lawyers from England, France and the Netherlands.

Sources of Law and Legal Methods

Legal history cannot be studied without sources. These are often inaccessible or cannot be understood without a concomitant engagement with the methodological tools available to those who produced, interpreted and applied these sources in the past. We address these issues in the Research Field Sources of Law and Legal Methods. It aims to identify, catalogue and make available sources that were inaccessible to earlier generations of researchers as well as to provide the relevant tools and aids to study them.

Using repositories, publications and collections, sources are collated and edited in long-term projects, for example the collections of legal opinions (consilia) from medieval jurists. A census of 16th-century legal imprints seeks to provide a comprehensive listing and description of the entire legal literature produced during the relevant period, at the same time attempting to show how these works were disseminated throughout Europe. Another project seeks to uncover the complete manuscripts of the influential 14th-century jurist Baldus de Ubaldis. A more recent focus is on oral history, a key method of collecting sources in contemporary history, which is particularly relevant in the context of the Research Field Legal History of the European Union.

Achievements and Outlook

Needless to say, some of the projects straddle the boundaries of at least two of the four Research Fields. The above summary can hardly do justice to the diversity of the projects pursued in the Department with regard to regions covered, periods explored and methodologies employed. Work is pursued on territories ranging from the Bahamas to West Africa, Myanmar and China. Some researchers focus on the late Middle Ages, others on the European Commission in the 1980s. In terms of methodological approaches, we employ archival research, biographical studies, digital humanities, doctrinal history, history of concepts, intellectual history, oral history, palaeography and statistics, just to name a few. Nearly all our projects have a comparative, European or global dimension. It is a privilege to lead such a vibrant and diverse community of scholars hailing from nearly a dozen different jurisdictions.

In terms of scholarly output, much has been achieved over the past three years. Detail on the various publications can be found in the Annex to this Report. These include Donal Coffey’s path breaking two-volume work on the origins of the Irish Constitution, Emily Whewell’s study of British consular power in the borderlands of China, India and Burma and Insa Jarass’ prize-winning analysis of ‘private uniform law’, to single out just a few. I am also delighted to report that work on the final instalment of Coing’s Handbuch of sources and literature of the modern history of private law was finalised during the reporting period, almost 50 years after publication of the first volume !

The coming years will hopefully see us pushing ahead in all our Research Fields, with quite a few of the first doctoral and postdoctoral projects being concluded. With regard to the common law world, we aim to intensify our research on the Indian sub-continent, a region that presents particular challenges for legal historical work; a new project examines the interaction of English and Roman-Dutch law in British Guiana. Concerning the legal history of the EU, we hope to provide a first account of how to engage in research in a subdiscipline of legal history that has hitherto been uncharted, with a volume in the Institute’s methodica series. As to the comparative history of private law, a major focus will be on the continuation of the Studies in the Contract Laws of Asia. Work on sources of law and legal methods will be directed to the completion of the long-term projects on Baldus de Ubaldis and the census of 16th-century legal imprints.

We intend to continue and expand our collaborations with our many friends and partners at different institutions in Europe and beyond. Exciting opportunities for a further exchange of ideas have arisen with the establishment of the new Department of Marietta Auer, not least with regard to our work on private law and legal method. There is much more to be learned about European and comparative legal history, and we look forward to exploring them further.

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Stefan Vogenauer

Director

• Legal History of the European Union

• Legal Transfer in the Common Law World

• Private Law and Dispute Resolution in a Historical, Comparative and Transnational Perspective

• Sources of Law and Legal Methods

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Stefan Vogenauer’s research has been intimately linked to the various Research Fields of the Department of European and Comparative Legal History. A particular focus has been the ongoing work on the six-volume Studies in the Contract Laws of Asia, co-edited with Mindy Chen-Wishart from the University of Oxford and published with Oxford University Press. This is an ambitious attempt to map out the history and the present state of the contract laws of 13 different jurisdictions in South, East and South East Asia. Together, these account for nearly half the world population, ranging from India to the Philippines. The project is interesting with regard to legal transfer in the common law world, as it examines the borrowing from English law in jurisdictions as diverse as Hong Kong, India, Malaysia, Myanmar and Singapore. However, it also has a strong European comparative element because all the other contract laws concerned can be traced back to either French or German law. Two volumes of the Studies were published during the reporting period [Chen-Wishart, Loke, Vogenauer, Formation and Third Party Rights, 2018; Chen-Wishart, Vogenauer, Contents of Contracts, 2020], and two further ones were edited with a view to publication in 2021 (on contractual validity) and 2022 (on termination and the adaptation of contracts in the light of supervening circumstances).

The last mentioned topic, contractual adaptation, has acquired particular relevance with regard to the COVID-19 pandemic, which has made it impossible or excessively onerous for many contractual parties to perform their obligations. This issue was addressed with a view to transnational sales law [McKendrick, Vogenauer, Supervening Events, 2020] and with a series of articles on force majeure-, hardship and similar clauses [Vogenauer, Härteklauseln, 2021]. It also features heavily in the third edition of the leading student textbook on comparative contract law [Beale, Fauvarque-Cosson, Rutgers, Vogenauer, Ius Commune Casebook, 2019].

The latter publication, with its focus, inter alia, on the development of EU regulations and directives in the area of private law, also contributes to the Research Field Legal History of the European Union. However, in this area, Stefan Vogenauer’s work was mostly directed to the preparation of a volume featuring a number of key biographies of early protagonists of EU law at both the national and the supranational level. The biographical approach also took centre stage in a special issue of the Journal of Legal History [Barnes, MacMillan, Vogenauer, On Legal Biography, 2020], in the institutional collaboration with Humboldt Universität Berlin on the F.A. Mann project and in the 2018 Annual Lecture of the Selden Society, which examined the lives and the work of three British translators of the writings of Savigny.

Finally, a monograph on the difficulties arising from the use of the English language in contracts governed by German law was mostly addressed to a practitioner audience. They were surprised to learn that many of the idiosyncrasies of modern English legal language cannot be understood without reference to medieval law French, the history of drafting deeds and the doctrinal origins of English contract law [Triebel, Vogenauer, Englisch als Vertragssprache, 2018].

Mapping Out, Comparing and Tracing the Origins of Asian Contract Laws Two further volumes of the six-volume Studies in the Contract Laws of Asia were published during the reporting period. The series is edited by Professors Mindy Chen-Wishart (University of Oxford) and Stefan Vogenauer. Published with Oxford University Press, it provides an unprecedented account of the contract law regimes of selected Asian jurisdictions, including the continent’s major centres of commerce, on which so far only very limited critical commentary has been available in the English language. The coverage extends to Cambodia, China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Myanmar, the Philippines, Singapore, Taiwan, Thailand and Vietnam. All volumes pursue three objectives. Firstly, they intend to gather reliable information on the contract laws of the jurisdictions involved. Secondly, they attempt a first tentative comparison of these contract laws. Thirdly, they wish to shed light on the relationship between the Asian laws involved and their respective European source jurisdictions. The third of these objectives adds a strongly historical dimension to the comparative exercise. It requires a nuanced study of the legal transfers from English, French and German law that can be observed to various degrees in all the Asian jurisdictions covered in the series. The various volumes deal with specific areas of contract law, including remedies, formation, content, parties, defects of consent, change of circumstances, illegality and public policy. Each volume features a joint introduction by the editors that specifies the research agenda, in-depth essays by leading scholars and commentators from the relevant jurisdictions and a concluding comparative discussion of the similarities and dissimilarities observed. The volumes on Remedies for Breach of Contract, Formation and Third Party Beneficiaries and Contents of Contracts were published in 2016, 2018 and 2020, respectively. A volume on Invalidity is in preparation for 2021, another one on Ending and Changing Contracts for 2022.

 

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Stephen Aranha

Doctoral Student

• Legal Transfer in the Common Law World
• Subjects. Status and suffrage in the Bahamas during the past 100 years

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Through an analysis of archival sources, constitutional texts and election laws, this project investigates to what extent colonial subjects and, later, citizens of an independent Bahamas were empowered to participate in political processes. When the Bahamas’ first parliament convened in 1729, the franchise was very limited; the first election that could be described as adhering to the principle of one-person, one-vote was in 1967. The expansion of the suffrage was the result of battles fought between three fronts: the colony’s white oligarchy, colonial administrators, and the broad masses of the Bahamian population and their political vanguard.

Important steps in the reform process towards a democratic suffrage include the introduction of the secret ballot, the removal of property qualifications and women’s suffrage. At times, the oligarchy compensated for steps of democratisation with measures that reduced their democratic potential. This history is intertwined with political developments of the time – the global process of decolonisation in general, and the minutiae of this process in the Bahamas in particular. Bahamian historiography has focused on the socio-political aspects of this so-called ‘Quiet Revolution’ and defined its timeframe as about two decades. This project extends the timeframe to include the early twentieth century and the present. Shifting the focus towards constitutional and other legal developments will demonstrate that this revolution was never finished, but rather abandoned once political power had been wrested from the white minority. The result could be described as an independent nation of dependent subjects.

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Philip Bajon

Researcher

• Legal History of the European Union

• European law and the rise of the EC/EU Council (1958-1993)

• Key biographies in the legal history of the European Union (1950-1993)

• The legacy of the Luxembourg Compromise (1966–1986)

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My research in the period under consideration is centred around three different projects. The first project, European law and the rise of the EC/EU Council (1958–1993), is a reconceptualisation of the legal and institutional culture of the European Union from the 1950s through to the early 1990s, with two forthcoming publications on intergovernmentalism and culture. This project analyses, for the first time, why Member States of the European Communities have been seen as relatively passive with regard to the gradual establishment of the constitutional case law of the European Court of Justice (EJC) from the 1950s through to Maastricht Europe. The project not only fills a gap in the recent historical and sociological literature, it also serves to test longstanding claims in law and politics literature about the obvious paradox between rising intergovernmentalism and the increasing legal integration promoted by the ECJ. A split in the Council over the ECJ and its constitutional case law was the key reason national governments did not curb the Court nor codify its constitutional case law. The project furthermore demonstrates that the rise of intergovernmentalism in the EC, which culminated in the Maastricht Treaty, led to a rejection of both the federalist aspirations of the Commission and the codification of the constitutional legal order developed by the ECJ, although Member States did accept how the latter worked as a basis for the Single Market.

The second project, Key biographies in the legal history of the European Union (1950–1993), focuses on biography in the legal history of European unification. It originates from a conference held in the summer of 2018 at the MPIeR. The project addresses a wide audience of historically informed lawyers, legal historians, as well as historical and social science scholars of Contemporary Europe. An edited volume will appear in 2021 which will contribute to the development of the intellectual history of the field, focusing on the development of ideas and doctrines. At the same time, it will explore the links between social practices and the broader context of law and legal thinking.

The third project, The legacy of the Luxembourg Compromise (1966– 1986), examines the slow transition of the EC from a culture of consensual decision-making to the practices of majority-building and voting, which is regarded as a major trend in the cultural and institutional history of the EU. The project focuses on Member States’ initial resistance to this move towards voting that continued until at least the early 1990s. It will lead to a monograph to be published in 2021–22.

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Victoria Barnes

Researcher

• Legal Transfer in the Common Law World

• The evolution of corporate governance mechanisms in the Anglo-American world

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This project traces the evolution of doctrines that regulate corporate governance. In recent decades, English corporate law has moved towards a European style of law making. The Companies Act 2006 constituted a novel attempt to codify the rules surrounding directors’ duties. Hitherto, a director’s responsibilities were defined by the common law. Most significant here are Carlen v Drury (1812) and Mozley v Alston (1847). They are used to support the proposition that courts will not intervene in corporate governance disputes, unless there is strong evidence of fraud [Barnes, Mozley v Alston, 2018]. As courts were reluctant to intervene, shareholders looked to internal mechanisms to control corporate management instead [Barnes, Newton, Formalising Credit Markets, 2018]. In the United States, this rule appears in a different guise. How did this common law doctrine develop and then diverge?

This project emphasises three key factors as drivers for legal change: (1) the importance of individuals, particularly their background and socialisation, which both influenced their view of legal rule; (2) legal literature as a crucial mechanism for the diffusion of legal ideas; and (3) the importance of shared institutions as a way of harmonising law.

In this case study, doctrinal innovation is attributed to Nathaniel Lindley (1828–1921), who travelled to France and Germany and sought to emulate what he saw as a continental way of legal writing. His view of corporate regulation was otherwise typical in Victorian Britain [Barnes, Lord Lindley, 2020]. Nathaniel Lindley’s treatise on the Law of Partnership (1860) was crucial to this process of legal change. In jurisdictions that lacked or disregarded their own body of legal scholarship, texts written by English lawyers, such as Lindley, took precedence [Barnes, Whewell, English Contract Law, 2019; Barnes, Legal Transplants, 2020]. The highest court of appeal in the then British Empire was the Judicial Committee of the Privy Council. Lord Lindley’s vision of law was embedded into the common law by the Privy Council judgment in Burland v Earle (1902). As the United States had broken away, it did not follow contemporaneous developments in English law. Yet, as tenets of earlier English law had been so carefully embedded, lawyers there could not remove these rules so easily [Barnes, Shareholder Primacy, 2020; Barnes, Shareholder Rights, 2020].

Roman-Dutch law and the common law world Casebooks on contract law are plentiful. For early examples of how cases and those writing about them contributed to doctrinal development and instigated legal change, one might look to John Smith’s Leading Cases, first published in 1837. Others followed the same format of picking out individual cases which were felt to be illustrative of a common law rule. Christopher Langdell, pioneer of the case study method at Harvard, published Cases on the Law of Contracts in 1871. In Leading Cases in the Common Law, published in 1996, Brian Simpson examined nine cases. A more recent development is the series of edited collections called Landmark Cases in.... One might notice that the texts mentioned thus far have been from common law jurisdictions. The research project Roman-Dutch law and the common law world, pursued by Victoria Barnes (coordination), Niels Pepels and Stefan Vogenauer, contributes to this well-established body of literature. However, it brings with it a new approach. Rather than focusing on describing, analysing or challenging the linear development of the common law, this study engages in a comparative method. It examines cases in jurisdictions where English law intersected with Roman and Roman-Dutch law. It focuses principally on shedding light on key cases in the contract law of Guyana and Sri Lanka. These colonial jurisdictions were often considered as the recipients of ideas from the metropole. Despite being distant from each other, these jurisdictions were linked by a shared legal background. They blended Roman-Dutch and English law, although in the 19th century, Guyana (British Guiana as it was then known) and Sri Lanka (Ceylon) were formally part of the British Empire. This project, therefore, not only compares the law being made in these mixed jurisdictions to that of England and the Netherlands, but also to each other. It considers how contract law developed in these jurisdictions. What were the competing influences of Roman law, Roman Dutch law and English law on doctrinal thought? This study does much to showcase the legal trends, unpick the comparative similarities and differences, but it ultimately explains why Roman-Dutch law persisted in some jurisdictions but was extinguished in others. It contributes to debates on the importance of culture, ethnicity and moral values of society (and their relationship to legal rules), the training and socialisation of those in the legal profession, and the embedding of judge-made law and stare decisis as a tool for eroding the structure of the civil law.

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Sean Bottomley

Former Researcher

• Legal Transfer in the Common Law World

• Institutional change and property rights prior to the industrial revolution: the case of wardship in Britain, 1485–1660

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Under the influence of institutional economics, a consensus has emerged on the importance of the balanced state: one that is strong enough to fund and provide a legal framework enabling market exchange and security from internal and external predation, but which is constrained from undermining the security of private property rights. The formative example is England, where it is claimed that a balanced state emerged after the Glorious Revolution, leading in turn to the Industrial Revolution.

This account is controversial. It is widely accepted that property rights (certainly in land) have been secure since at least 1540. It is in this context that the project examines royal wardship in Britain from 1485 to 1660, a topic that has been largely neglected by historians since the 1950s and has never been the subject of an economic history. Beginning with Henry VII, the English Crown strained to re-establish its archaic, prerogative rights to ‘wardship’. These included the right to take temporary proprietorship of freehold lands held of it by certain feudal-military tenures which had descended to an underage heritor (the ward) upon the death of their ancestor. It also included the right to take physical custody of the ward until they reached the age of majority and, when they were unwed, to decide who they would marry.

Three main points have emerged from the project so far. Firstly, the Crown’s re-imposition of wardship served to undermine property rights. Most commonly, the Crown sold wards and their lands on to third parties, acting as guardians. Guardians seldom had any incentive to take care of the estate, rather woods were chopped down, lands were over-cropped and buildings torn down for materials. It is partly in this context that Blackstone’s assessment of the Tenures Abolition Act (1660), which abolished wardship and the feudal-military tenures which underpinned it, as the ‘great[est] acquisition to the civil property of this kingdom than even Magna Carta’ can be understood. Secondly, the incidence of wardship was such that it had tangible economic consequences. For instance, land held by feudal-military tenures sold at a 10 percent discount relative to those tenures that did not entail wardship (socage) – significant in what was still a predominantly agrarian economy and where land was the pre-eminent asset and store of value. Thirdly, wardship is indicative of wider systemic failings of the early modern English state. It might have been an immensely productive source of revenue, but due to maladministration and the malfeasance of its officers, only a very small proportion of potential revenues actually accrued to the Crown.

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Matilde Cazzola

Researcher

• Legal Transfer in the Common Law World

• Philanthropy, administration and the law in the 19th-century British Empire

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The 19th century witnessed the increasing influence of philanthropists and philanthropic discourses on British imperial policies, most notably during the 1830s, with the abolition of the slave trade and slavery, the beginnings of Christian evangelisation in India and the establishment of protectors of indigenous peoples in Australia, New Zealand and the Cape. But philanthropic concerns had an impact inside the boundaries of Britain, too, as the same men and women who campaigned for emancipation, proselytisation and protection abroad often sat on the committees for the relief, schooling and nursing of the metropolitan poor and labouring classes at home.

This project assumes that disciplining the poor and labourers within and ‘improving’ the colonised without were two faces of one and the same set of social concerns. It therefore investigates philanthropy not as a private, moral relation between the wealthy and the needy, but as a branch of British imperial administration, with a public relevance and a transnational impact. By lobbying the Houses of Parliament and the Colonial Office, philanthropists influenced public policies and legal and legislative processes on a pan-imperial scale. They prompted the establishment of parliamentary select committees and commissions of inquiry, and ensured the approval of new, epochmaking pieces of legislation.

This project investigates how philanthropic ideas of humanness and reform were incorporated into – and most often disavowed by – the languages and practices of British imperial administration. To this end, it analyses a select number of influential philanthropists, transnational philanthropic groups and prominent colonial governors who interpreted their tenures as associated with a moral and ‘civilising’ responsibility. By surveying the relevance of the same set of social problems and of similar philanthropic solutions in different and distant spaces, this project will shed light on the interconnectedness of the British imperial framework from a transnational and comparative perspective.

This project aims to assess philanthropy as a key function of the 19th-century British imperial governance as it bent universalistic principles to the local and transnational need for social order. To ‘love humans’ meant, in fact, to govern and discipline them, while this disciplinary mission made an extensive use of the law.

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Donal Coffey

Former Researcher

• Legal Transfer in the Common Law World

• From unitary legal system to multipolar international organization: the legal history of the Commonwealth of Nations in the Inter-War Years

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This project concerned the constitutional development of the British Empire in the period leading into decolonisation. It specifically considered the relations between the self-governing parts of the British Empire, which made up the British Commonwealth of Nations, and the metropole. The project was pursued using a comparative approach. It drew on archival sources from each of the relevant jurisdictions to create a lattice of constitutional understanding, eg by using Canadian sources to shed extra light on the British interpretation of Irish legal liabilities in 1932. At the time, significant questions were raised about the correct forum and source of law that would be used to govern disputes between the various countries, eg should it be constitutional or international law [Coffey, 1930 Tribunal, 2019].

The questions raised at the time were fundamental to the legal structure of the Empire itself. A basic question – is it possible to leave the Empire and, if so, how? – was the subject of sustained debate over a period of 20 years until decisively settled by the Burmese independence movement [Coffey, Secession, 2018]. This, in turn, led to a change in the nature of the Commonwealth in order to incorporate republican India.

A particularly difficult member of the Commonwealth, at least in the eyes of the metropole, was the Irish Free State, whose constitutional changes in the 1930s sought to drive a wedge in the constitutional fabric of the Empire. This culminated in the removal of the Crown from the Constitution of the Irish Free Station [Coffey, Constitutionalism, 2018] and the drafting of a new Constitution [Coffey, Drafting, 2018].

 

By drawing attention to the multipolar nature of the Empire, and of law within the Empire, it was demonstrated that legal advances often occurred first in the periphery, although this was uneven between the various peripheries, before being adopted by the metropole.

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Vincenzo Colli

Researcher

• Sources of Law and Legal Methods

• Census of the opera of Baldus de Ubaldis (1327–1400)

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The research presented here focuses on Medieval juridical literature, its composition and dissemination. This literature was devoted to the utrumque ius, the civil and canon law, which constituted the European ius commune, the law common to Western Europe. The project investigates the sources of the ius commune.

Within the framework of legal literature and book production in the Middle Ages, the works of Baldus de Ubaldis (1327–1400), the most famous jurist of his time, became an important normative source of the ius commune. His commentaries and consilia spread throughout Europe in a large number of manuscripts and later in early printed books; indeed, they were still being published in the 17th century.

The project has succeeded in uncovering as many as 700 manuscripts that contain his works in whole or in part, which testifies to the wide dissemination of Baldus’s work. Prominent among these are the manuscripts of consilia, expert legal opinions given by Baldus at the request of litigating parties or judges (the project will provide a list of some 5,000 incipits of Baldus’s consilia). The Catalogue of the manuscripts has now been completed.

On the basis of the evidence provided by autographed copies of consilia which have been preserved, [Colli, Autografia, 2019], a number of other manuscripts of a special character have been discovered. These are manuscripts that actually belonged to the author himself and which he kept as his personal working copies. He subsequently modified and expanded the texts throughout his lifetime through many annotations and additions written in the margin. The discovery of these ever-changing ‘living texts’, from which the variants and multiple redactions in the later tradition of the works derive (also analysed in the Catalogue), makes it possible to construct an intellectual biography of this important medieval jurist, determining the order in which his works were compiled and the major dates in his intellectual development. This is the focus of the monograph which will conclude the project.

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Justine K. Collins

Former Doctoral Student

• Legal Transfer in the Common Law World

• Tracing British West Indian legal transplantation: an analysis of the development and role of slavery legislation (1500s–1800s)

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The thesis project examined the introduction of imperial laws and their transplantation within the relevant island colonies, issues of mixed legal systems and forms of early governance. Part 1 therefore laid out the basis of how transplantation began on a constitutional level prior to the genesis of the plantation societies and eventual economic boom. The subsequent parts of the thesis focused on various aspects of transplantation throughout the English slaveholding Empire via the progenitor Slave Code of Barbados. Part 2 specifically examined the origins of the Comprehensive Slave Codes of the British West Indies. It delved into pre-colonial English society to identify various laws and regulations adopted and adapted in the colonies and argued that transplantation was central to development within colonial legislation. Part 3 then analysed aspects of the enslaved as a property conundrum. Parts 4 and 5 focused on the period leading up to the end of slavery and the fall out that occurred after the apprenticeship system failed. The thesis concluded by addressing the breadth and depth of these ramifications post-emancipation by tracing the legal consequences of labour schemes, transactions, movements, transportations and stratifications therein. What each chapter revealed in terms of legal transplants within the British West Indies was that the English were not innovators in this regard; after all they met a region which was already colonised to a large extent by their European counterparts. The Barbadian Slave Code and its successors were simply mirrors of pre-existing laws and regulations. Close analysis of various metropolitan laws shows these linkages from the creation of the governance structures, the slavery codes, the courts, manumission laws, apprenticeships and vagrancy regulations. Each depicted the connection between the centre and its peripheries, showing that the English were great at improvising in areas somewhat unfamiliar but not totally foreign to them.

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Ijeoma Chimeri Winner

Doctoral Student

• Legal Transfer in the Common Law World

• Administration of justice in West Africa: commercial relations in the colonial courts during the era of legitimate trade (1850–1930)

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The aim of this research is to examine processes of normative production, the transfer of British legal institutions and the attitude of the new English-style courts towards commercial relations in the palm oil trade in West Africa. This study aims to provide a legal historical account of the events that characterised West African commerce and British merchant capitalism on frontiers of trade and in the administration of the colony after the transatlantic slave trade. It will fill the gap in the existing literature that does not comprehensively address the interaction between the transferred English legal institutions and legitimate commerce. Ultimately, it looks at West African trade in the post-abolition Atlantic economy and addresses the normative framework regarding commerce in the colonial era.

It aims to understand how the normative framework pertaining to commercial relations developed from the era of the courts of equity to the period of formal English legal systems. At the onset, this research will take into account historical, legal, economic and political aspects. It aims not only to present key research findings with analysis but also contextualise them thematically, theoretically and with a view to assessing possible avenues for the next phase of research in the field.

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Insa Jarass

Researcher

• Private Law and Dispute Resolution in a Historical, Comparative and Transnational Perspective

• Sources of Law and Legal Methods

• Mandatory private law – tracing the influence of judges

• Private uniform law

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Mandatory private law is of central interest in legal scholarship for many reasons. As legislators readily make use of mandatory norms to implement regulatory interests and courts usually apply mandatory rules ex officio, they require increased attention. Private parties must comply with mandatory norms to conclude valid contracts. Equally, mandatory private law has attracted the attention of legal theory, as the distinction between mandatory and non-mandatory law defines the degree of individual freedom in a legal system. Hence, it touches on crucial debates about the content, extent and raison d’être of private autonomy.

Because of the recent steady increase in mandatory private law norms, there has been criticism of national and European legislators in scholarship. In contrast, little attention has been paid to the role of the courts in the creation and development of mandatory private law and the associated legal doctrinal consequences. This is peculiar as in practice it is not only up to the courts to decide how mandatory norms must be interpreted, but often also whether a norm has a mandatory character at all. This raises questions about judicial law-making and a potential for conflict with fundamental constitutional principles.

From a historical and comparative law perspective, the research project aims not only to question the legality of this development but also to analyse the doctrinal and methodological consequences of the creation of mandatory law by judges. This study employs an empirical case law analysis of mandatory norms in various areas of private law as its methodological approach.

The second project undertaken in this period relates to Private uniform law. The national fragmentation of commercial law has always been perceived as a barrier to international trade. Therefore, it has not only been nation states that have tried to create legal unity through international treaties, private actors have also created non-state rules to this end. The classification of such nonstate rules and regulations presents challenges for our understanding of legal doctrine and legal sources.

As a result, this project established the concept of ‘private uniform law’. Based on the functional conditions of such law, private uniform law is defined as an independent doctrinal category that links certain facts of a case with specific legal consequences. The reasoning is based on an empirical analysis of English and German case law on selected non-state rules and regulations [Jarass, Privates Einheitsrecht, 2019].

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Thorben Klünder

Doctoral Student

• Legal History of the European Union

• Rechtsgemeinschaft – semantic struggles about a key concept of European Law

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My research is mostly focused on a conceptual history of the term Rechtsgemeinschaft, which is also the topic of my PhD project. The expression Rechtsgemeinschaft has been popular since the 1960s. The term was particularly associated with the idea of pro-integration policies. For decades, the fact that the EEC – and later the EU – was a Rechtsgemeinschaft, was tacitly taken as given. Now, as there is a perceived crisis among some legal scholars concerning European law and the controversies regarding the project of furthering European legal integration, the term is being called into question. Is Rechtsgemeinschaft still a fitting description of the EU both as it is and as it might aim to be in future?

Methodologically, I combine several historical semantic approaches, such as Koselleck, Wittgenstein and Skinner. As with all influential concepts, Rechtsgemeinschaft carries a lot of implicit meaning that can only be explained within the context of the contemporary debates in legal theory. As a study of legal semantics can gain much from exchange with legal theory, I have given seminars at the Goethe-Universität Frankfurt on legal theory and legal philosophy. I also contributed a comment to the Institute’s Jour Fixe, when Thomas Vesting presented his recent book Staatstheorie to engage in a dialogue between legal theorists and legal historians. A particular challenge is the translation of the term Rechtsgemeinschaft, which I have tackled in presentations in Luxembourg, Florence and Seoul.

The case study allows us to map the term’s changeability in debates on integration. In this way, this research project is a contribution to the incipient self-historicisation of European law.

I have published some of my results on a widely read blog for German constitutional law [Klünder, Was ist die europäische Rechtsgemeinschaft?, 2020] and also an English translation, which is more accessible for an international audience [Klünder, What is Rechtsgemeinschaft?, 2020].

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Jasper Kunstreich

Researcher

• Sources of Law and Legal Methods

• History of legal scholarship within the Max Planck Society

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This project is part of a bigger research network. The Institute endeavours to publish an edited collection of six individual studies of the histories of the six law-related Max Planck Institutes (MPIs) that were founded before 2000. Six scholars from different German universities, each of them acquainted with the respective MPI, have been invited to contribute. At the same time, the project forms a subpart of the Berlin-based research programme on the history of the Max Planck Society (GMPG), to which it contributes a synthesising analysis of the ‘legal’ within the Society. Another layer of collaboration included collecting material from different archives, including the Bundesarchiv, the local archives of federal ministries and the Länder, collections held by the individual Institutes and the Max Planck Society’s Archive in Berlin-Dahlem. Together with the latter, the research network has also built an extensive database that enables scholars to quickly access material, make cross references between different institutes or sections of the Society and identify network effects.

In addition to coordinating cooperation between the individual authors and liaising with the Berlin-based research programme, I also embarked on an overarching study of legal scholarship within the Max Planck Society: how did it differ from legal scholarship conducted at universities? How did Max Planck lawyers contribute to the shape and functioning of the Max Planck Society? What were their interactions with other institutions, in particular with the German Justice Ministry and the European Commission and civil service? The first three post-war decades witnessed a sustained growth of legal scholarship within the Max Planck Society with a focus on comparative and international law. This is the period during which the so-called ‘legal cluster’ emerged within the Max Planck Society; by 1966 it was well established. The cluster was characterised by complementarity – the respective institutes focused on different fields each and avoided direct competition – and strong continuity. They also provided a sort of semi-public good: their specialised libraries became reference points for legal scholars, their researchers regularly provided expert opinions for German courts. Further research looks into the changes that took place subsequently as the academy became increasingly international while their work was transformed by digital means.

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Anselm Küsters

Doctoral Student

• Legal History of the European Union

• The influence of ordoliberalism on the development of European competition law as mirrored in European Commission publications (1952–2018)

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Ideas matter. Different perspectives on thrift and competition shape the economic policy discourse on reforming the EU, while conflicting concepts of neutral monetary policy and the rule of law dominate the legal debate. This opens up the possibility of investigating the extent to which such nationally or culturally hegemonic narratives – be it in the form of frequently cited ‘lessons from the past’ or dominant schools of thought – have historically influenced economic policy and law in a European context (conceptual overview: [Küsters, Narrative, 2020]).

In order to do so, the rapidly growing set of instruments developed in the field of Digital Humanities can be used. In particular, corpus-linguistic methods allow for the clarification of the spread of narratives on the basis of word frequencies and correlations, network analysis, and algorithmically estimated topics (methodological overview: [Küsters, Volkind, Wagner, Digital Humanities, 2019]).

On the basis of these methods, my ongoing PhD project traces the ordoliberal influence on EU competition law by examining decisions and publications of the European Commission. Related work shows that a cultural preference for price stability and balanced budgets played a role both in the writings of German economic experts during periods of perceived domestic crisis [Küsters, Search, 2019] and in speeches given by ECB board members during the Eurozone crisis [Küsters, ECB, 2018]. Meanwhile, an analysis of the German medial discourse on Southern Europe finds that popular narratives do not have to be stable over time [Küsters, Garrido, PIGS, 2020].

Overall, this mixed-methods approach makes both assumptions and results intersubjectively verifiable and promises new answers to contested questions in legal history. It also strengthens the discipline’s connection with economic history [Barnes, Bottomley, Küsters, Economic History, 2019] and AI research [Küsters, Artificial Intelligence, 2020].

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Jan-Henrik Meyer

Researcher

• Legal History of the European Union

• A transnational history of European environmental law

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Why and how did the European Union (EU) – an international organisation primarily devoted to peace and prosperity in Europe through market integration – become the leading lawmaker on the environment in Europe? Which actors were driving this process and established a new system of law? How did European environmental law change over time? These are the key questions of this research project. The underlying assumption is that transnational flows of ideas and the transnational interaction of a diversity of actors were key. The core hypothesis is that the direction of these flows changed over time. While the early makers of European environmental law – at a time when even the concept of the environment was not fully established – drew on precedents and concepts from outside, over time, European environmental law was increasingly exported, and became a point of reference internationally.

The project draws on a variety of historical sources from national, EU and civil society archives, published records, legal scholarship and oral history sources. Methods include not only the qualitative analysis of texts, but also Digital Humanities approaches, notably the analysis of the emerging ‘field’ (Bourdieu) of European environmental law.

The most important results so far explore the contribution of different actors to European environmental law. Even before it was directly elected in 1979, the European Parliament (EP) placed the environment on the European institutional and public agenda [Meyer, Responding, 2020], and demanded binding EC legislation. MEPs specified quite clearly what Treaty legal bases could be used, as highlighting in a contribution to a forthcoming special issue on the European Parliament. A contribution to a history of the European Commission, based on numerous oral history interviews, as highlighted its central role in framing environmental law, and the varying role of lawyers within the Directorate General (DG) Environment. It also underscored how global trends and implementation problems changed its approach to law-making [Meyer, Environmental Policy, 2019]. A forthcoming biographical chapter on a Commission environmental lawyer who used the courts to advance implementation contributes to the growing interest in biography among legal historians. Supranational activism has not always led to legislation, as a case study and talk at the European Environmental History Conference 2019 emphasised, highlighting the instructive potential for legal history in analysing such ‘failures'.

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Aleksi Ollikainen-Read

Researcher

• Legal Transfer in the Common Law World

• Development of documentary transfer and transnational trade in Southeast Asia

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This research concerns the doctrinal history of English commercial instruments, and its interplay with mercantile custom. The common narrative among English commercial lawyers is that English law was too rigid in the 17th century and needed a jolt from mercantile practice to develop into the global commercial law that it is today. This project aims to show that this view is simplistic and misunderstands how the common law borrows content from other dispute resolution processes.

In order to do so, the research engages with several related issues in broadly two themes. The first theme concerns how the law of commercial instruments was first born out of mercantile practices in Britain and continental Europe. This project builds on the seminal work of JS Rogers (1995) by adding doctrinal detail regarding what the specific structural issues within the common law were that have since been interpreted as the common law’s ‘rigidity’. The second research theme relates to how these doctrines were then refined and adjusted when the British Empire pushed into South and Southeast Asia and the law came into contact with local trade practices.

Under the first theme, rich areas of inquiry have been unearthed by tracing the historical origins of certain doctrines that could inform not just historical debates, but advance our doctrinal and theoretical understanding as well. Once we understand the internal ‘mindset’ of the common law, the reluctance to accept new sales law in fact shows itself to be a sensible concern for maintaining boundaries between doctrines, limiting and directing parties’ disputes, and managing the amount of evidential material the courts had to consider. It is from these prosaic procedural concerns that the dominant commercial law of the modern world was born.

Under the second theme, a picture is emerging of differing trade practices and factual situations which then refine the content of the common law. English judges’ developing awareness of novel factual problems in trade disputes (eg differing customs, cultures or even languages) began to feed into a more responsive commercial doctrine. This already suggests that legal knowledge transfer was not just from London to the colonies, but involved a much more nuanced recognition of interconnected trading hubs and the admission of customary normative content

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Douglas Osler

Researcher

• Sources of Law and Legal Methods

• A census of 16th-century legal imprints

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While it has long been recognised that the printing revolution of the 15th century had profound effects on the production and dissemination of knowledge in Europe, not least in the field of law, our information on the vast book production of European publishing houses remains unsatisfactory. Only the incunable period up to the year 1500 can be said to be adequately described. However, in the last decades various projects have begun to document the printing production of Europe in the succeeding century.

These projects have proceeded along national lines. From the point of view of the legal historian, however, this approach is seriously anachronistic. In the 16th century, legal literature knew no such boundaries as those constituted by the modern nation state. The ius commune was a law common to all of continental Western Europe, written in a single European language, Latin. What were effectively extraterritorial printing centres, such as Venice, Lyon, Frankfurt, Antwerp and Geneva, permitted the distribution of legal scholarship throughout Europe and ensured that jurisprudence remained a supranational, European enterprise.

The project Census of 16th-century Legal Imprints seeks to provide a bibliography of the juristic production of the printing presses of continental Europe from 1501 to 1600. Its objective is the creation of a data bank in which surviving copies of legal editions held by individual libraries are brought together in a single union catalogue. Building on the information provided by traditional published library catalogues, attention has latterly been turned to the OPACs of the great German libraries. The comprehensive Census descriptions provide a key to interpreting the sometimes elementary information in these catalogues. This has been supplemented by visits to the libraries to inspect rare items and resolve any queries.

The Census will thus make available for the first time a systematic register of the extensive juridical holdings of the great historic German legal repositories: Freiburg, Tübingen, Heidelberg, Göttingen, Halle, Rostock, Gotha, Erfurt, Wolfenbüttel, Berlin and Munich. This should also reveal the patterns of dissemination of law books in Europe in these centuries.

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Niels Pepels

Researcher / Former Doctoral Student

• Legal Transfer in the Common Law World

• Copyright and the making of a nation: the transfer of copyright law from England to the United States

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On 7 January 1783, the artist John Trumbull, known as the ‘Painter of the Revolution’, addressed the American public in an open letter. He stressed the significance of literary property to reward American authors, in part because a ‘literary reputation is necessary to complete the national character’ in order to unite the public. In the first State of the Union Address on 8 January 1790, President Washington weighed in on the copyright debate, proposing that public happiness was to be achieved through promoting science and literature. This would also enable people to know and value their constitutional rights.

As Washington argued, the value of copyright lay and still lies in its capability to advance knowledge. He reasserted the importance of the intellectual property clause in the US Constitution. This clause laid the foundation for federal copyright law in the US, which in turn was heavily influenced by English copyright law. Over a period of seven years, Trumbull and Washington, along with other important politicians and literary figures such as James Madison, Joel Barlow and Noah Webster, proposed legislation on copyright. Why did these men think copyright law was important to the building of the early American republic? Furthermore, how did it come to pass that early US copyright law was based on English law?

This project chronicles the historical process of enacting US copyright law from 1783 until 1834, as well as tracing its English foundations – mainly the 1710 Statute of Anne, the first law to extend copyright protection to authors. It challenges current understandings of the origins of US copyright law and argues that this field of law was used to create a distinct American identity. While the English foundations of federal copyright law are well documented, relevant literature has overlooked the influence of state copyright statutes. Most states adopted copyright statutes between 1783 and 1786, all based on the Statute of Anne. The framers of the Constitution, seeing diverse state copyright laws, created a uniform body of copyright law on a federal level. Between 1783 and 1834, state legislators and Congress via statutory law, and courts via case law, continuously transferred copyright law from England to the US. Thus, early US copyright law relied heavily on English copyright law to protect and advance knowledge in the process of creating a national identity.

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Sigfrido M. Ramírez Pérez

Researcher

• Legal History of the European Union

• An oral history of the Court of Justice of the European Union

• A history of EU lawyers in European institutions

• EU law and constitutional law in Southern Europe: a comparative perspective

• Writing the history of competition law in the European Union, 1945–2003

• The history of Social Europe and EU labour law

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The research activities developed in 2018–2020 clustered in five research projects investigating different aspects of the legal history of European Union law.

The first research project, An oral history of the European Court of Justice, carried out with Stefan Vogenauer and the assistance of Dimitri Zurstrassen, was a pilot history project on the legal-administrative history of the Court of Justice of the European Union in Luxembourg. It involved a consortium of lawyers and historians who were brought together in a workshop in 2018 with the aim of defining the oral history methods to be used for this project. The second project, A history of EU lawyers in European institutions, deals with the role of supranational legal actors in the making of EU law, with a particular focus on the legal services of EU institutions. This was presented at two conferences in 2019 in Frankfurt and Brussels, which brought together specialists and lawyers from EU institutions with a particular focus on oral history methods and legal biographies. The third project, EU law and constitutional law in Southern Europe: a comparative perspective, dealing with the relationship between EU law and constitutional law, focuses on the role of non-institutional European actors in the adoption of EU law in a comparative perspective with a focus on southern European countries.

The Italian case study looks at the role of the Italian Association of European Law (AIGE), which was presented at the conference celebrating the AIGE’s 60th anniversary in Rome in 2018. The Spanish case study is part of a Spanish research project dealing with EU enlargement to include Spain and Portugal, and was presented at two conferences in 2019 in Barcelona and Lisbon. This comparative perspective was the core objective of the DAAD 2019 conference, which included a conference on the comparative constitutional history of Italy, Germany and Spain in a European perspective. The fourth and fifth projects deal with the history of EU law in two policy fields: competition law and social labour law. The project on EU competition law, Writing the history of competition law in the European Union, 1945–2003, examines one century of European competition law in a comparative and transnational perspective in a co-­edited volume with Brian Shaev (University of Leiden). This has been illustrated with publications on the impact of EU law on multinational companies in the automotive sector. The fifth project, The history of Social Europe and EU labour law, has been developed is tied to my role as coordinator of the working group panels of the European Labour History Network (ELHN) biannual conference. Its focus is on the role of European trade unions in the making of EU social and labour law.

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Christoph Resch

Doctoral Student

• Private Law and Dispute Resolution in a Historical‚ Comparative and Transnational Perspective

• The presumption of completeness and accuracy of contracts in writing – Historical legal comparison and perspectives for the harmonisation of private law

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This project focuses on the evidential significance of written contracts from a historical and comparative perspective. In many jurisdictions, written contracts have an absolute or at least superior evidential force regarding the completeness and the accuracy of their terms. What today sounds familiar even to a layperson was a tremendous legal change when introduced by statute in 16th-century France: the ius commune of that time considered witness statements as crucial for any proof before a court. The French development occurred at the time when the use of printed books became common and general literacy spread.

In the centuries that followed, similar legislation was introduced in England and several German territories. Comparisons of the interpretation of the French rule by courts and jurists with legislative drafts in England and Prussia bear strong evidence that their statutes were substantially influenced by the French model.

Adopting a historical and comparative perspective, the project also aims to shed light on current projects of legal harmonisation such as the Principles of European Contract Law. Curiously, there has been the suggestion of following contractual practice from the US, where the writing is protected through the use of merger clauses, by which the parties declare the writing to be their entire agreement. Case law analysis, however, shows that the application of such clauses is a frequent source of litigation which results in the implementation of numerous exceptions that are not reflected in the suggested rules. This research project is not limited to a purely doctrinal analysis. It is equally informed by a strong interest in the overarching historical topic of the change from an oral to a written culture in society and law and analyses policy considerations of courts and legislators from the 16th to the 20th century.

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Philipp Schmitt

Doctoral Student

• Legal History of the European Union

• Minimum harmonisation: the development of a legislative technique in EU law

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Legal harmonisation plays an important role in the European Union (EU). Its main aim is to develop a single market, but at the same time non-economic objectives must be considered. As national perspectives vary, the fundamental question remains: how much unification is necessary and how much flexibility, for example, by establishing minimum standards, is feasible? Analysing how and when different forms of harmonisation of national laws were developed allows for a better understanding of the changing character of the EU and its predecessors over the decades. Minimum harmonisation highlights the link between the fundamental question of the nature of the Union – neoliberal or social – with rather technical legal issues.

The tendency to allow for flexibility to foster integration despite national differences, such as minimum clauses and other forms of differentiation, played a role in Community law-making from the very start of integration. This finding challenges the established narrative that the Commission and the Council of Ministers initially – in a period of a now long-lost unity – only passed highly detailed directives without any flexibility. Instead, the period was characterised by contingencies and a lack of overview over the different areas of Community law and the techniques of harmonisation used.

Archival research shows how in the late 1970s a more theoretical analysis commenced within the Commission’s Legal Service. Its officials collected the different instruments and disseminated these in legal publications. As the Community grew and its legislative activities spread to non-economic areas, such as environmental law or consumer protection, minimum harmonisation played a more prominent role. By opening the ‘black box’ of the Commission, it is possible to show how a market-focused liberal approach cherishing unification and a growing ‘social’ tendency clashed. The ‘spill over’ of these internal debates into the legal discourse then sparked scientific discussion on different harmonisation techniques

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Emily Whewell

Researcher

• Legal Transfer in the Common Law World

• Tracing law across jurisdictions

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The mid-19th to early 20th century was a formative period for the creation, reformation and extension of law across the British Empire. Bilateral treaties, metropolitan Acts and local regulations attempted to stretch British jurisdiction across the Caribbean, Africa, Asia and the Pacific. Whether to protect important economic zones, to limit the reach of other imperial powers or to catch fugitives, British imperial regimes attempted to demarcate the extent of their jurisdictions and clarify the nature of imperial legal power. This project has focused upon the legal practices of extraterritoriality, extradition and deportation in two broad regions of the world: Asia and the Caribbean. It has used case studies, legislation, newspapers and archival documents to understand how individuals, such as fugitives who transgressed frontiers, shaped British imperial jurisdiction and concepts such as nationality.

Imperial legal officials, such as consuls, also played a key role in creating and applying law across borders. They campaigned for, and implemented, British legal rights that defined the contours of British imperial power. Often they had careers that spanned across jurisdictions, taking legal ideas with them as they moved. Tracing their careers has helped to understand how they understood the laws they created, interpreted and applied. This research has made contributions to several fields: historiography of borderlands and frontiers, British Empire studies, China studies and Caribbean studies.

Published pieces on the project include a book publication [Whewell, Borders, 2020] exploring legal practices in the frontiers between China, Burma and India. Other publications include an article [Whewell, Mediators, 2020] examining legal mediators in the Burma-China borderlands in the early 20th century. Other articles have explored the role of fugitives in shaping legal regimes of extradition in the Caribbean [Whewell, Refuge, 2020] and the legal connections between India and Treaty Port China through political fugitives [Whewell, Deportation, 2020]. Finally, a co-written piece with Victoria Barnes explored the transfer of English contract law to extraterritorial courts in China during the late 19th century [Whewell and Barnes, English Contract Law, 2019]. These works demonstrate how law moved with various actors – such as fugitives and consuls – and how they shaped local and regional environments across borders.

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Sarah Zimmermann

Doctoral Student

• Legal History of the European Union

• The emergence of European Union procedural law

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Although the decisions of the Court of Justice of the European Union are studied intensively by lawyers, political scientists and historians, the procedural rules governing the Court and its decisions have attracted little attention in legal research.

The project seeks to answer the question of how the Rules of Procedure of the Court of Justice came into being. In this respect, it asks what the first procedural rules of the Court of Justice of the European Coal and Steel Community (ECSC) were, who laid them down, how they evolved during the first years of the European project and whether there were recognisable national or international influences.

Given that these procedural rules were, apart from the Founding Treaties, the very first legal provisions to be adopted by the Community, the project also seeks to provide an insight into the early Community decision-making processes more generally.

Using sources from the archives of the European institutions and the ministries of the founding states, the project examines the emergence of the procedural rules of the Court with a historical perspective to these legal and, more particularly, comparative questions.

The procedural rules of the Courts of the European Union are laid down in the Protocol on the Statute of the Court of Justice and in the Rules of Procedure of the Court. Work on the subject has so far shown that the first set of Rules of Procedure, dating from 1951, was drafted within only three months by the seven judges of the ECSC Court. Their first draft was very closely modelled on the Rules of Procedure of the International Court of Justice in The Hague. This changed, however, when it became increasingly clear that it was not a classic court under international law, which is why more and more rules from national civil and administrative procedures were incorporated into the drafts. Moreover, it is noticeable that there were very few arguments among the judges during the drafting of the rules. To what extent this can be attributed to a great similarity of the civil and administrative procedures in continental Europe will be worked out, based on a selected number of procedural rules.

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Dimitri Zurstrassen

Former Researcher

• Legal History of the European Union

• Writing the history of competition law in the European Union (1974–1985)

• An oral history of the Court of Justice of the European Union

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Work was carried out on two projects during the reporting period. The objective of the first research project was to analyse the genesis of the new ECSC competition law that emerged during the European steel crisis of the 1970s and 1980s and its evolution. It was part of the Institute’s work on the history of EU competition law. Using primary sources, the research examined how this new legal framework was constructed, the actors involved, the arguments justifying its development and whether it constituted a model for the regulation of EEC sectors. The results will be published in a chapter of a forthcoming book, as well as part of a PhD thesis on the evolution of EU industrial policy in the steel sector.

The oral history project of the ECJ was initiated in 2017 and is coordinated by Sigfrido Ramírez and Stefan Vogenauer in collaboration with the Historical Archives of the EU. Its aim is to collect testimonies of people working at the institution from 1951 to 1991. My primary tasks were participating in general coordination of the project, the collection of primary sources and literature about the institution and the preparation and organisation of interviews. I also took part in the organisation of the workshop ‘Oral History of the ECJ’, held at the Institute in 2018. The proceeding of this event will be published in 2021 in the Journal Rechtsgeschichte – Legal History.

Max Planck Fellow Group

The History of European Union Labour Law

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Thorsten Keiser

Max Planck Fellow

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From the very beginning, the European Community, and later the Union, has been active in various fields of labour law. Different regulatory techniques of hard law and soft law can be observed. The Max Planck Fellow Group aims to understand these in a historical perspective and to reflect on them in their respective contexts of origin. Using archival materials, the first subproject will produce an overview that documents the regulatory emphasis of Union law in the area of labour in its supranational dimension and from a historical perspective. Parallel to this, a second project analyses these regulations in a bottom-up approach that takes the legal systems of the member states – not the Union – as its point of departure. While the first project will focus on the emergence and impact of supranational law, the second will highlight the interaction between national legal systems and European lawmaking. The resulting complementary perspectives on the development of European labour law reveal its specific characteristics: on the one hand, its roots in supranational compromise and, on the other, its adoption of certain normative patterns from the member states and thus its roots in European legal culture. The Max Planck Fellow Group will help to strengthen the existing network of research projects both at the Justus-Liebig-Universität Gießen and the mpilhlt.

The project’s activities began in summer 2020. A doctoral position was filled and located at the Max Planck Institute. Networking with various research areas at the Universät Gießen has taken place. In the course of the work, it has emerged that the thesis will focus on the legal history of European Union labour law in Germany and France. Situated within the second project, the thesis takes up a bottom-up perspective that emphasises socio-political and economic factors. Two further doctoral positions will be filled in autumn 2021. The thematic focus will be the history of labour law in the EU in general, as well as the history of anti-discrimination law in Southern Europe.

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Anna Quadflieg

Doctoral Student Max Planck Fellow Group

• Legal History of the European Union

• The origins, development and effects of anti-discrimination regulations in EU labour law

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Although labour law lies within the competence of the member states, large parts of national labour legislation today are affected by European regulations. A study of the history of protection from discrimination in EU labour law is able to offer insights into the processes and effects of European legal integration. In a first step, the project explores how the development of anti-discrimination measures was influenced by international and national actors and debates. It then evaluates how the relevant directives have been implemented and what actual effects they have had on the ground.

The existing literature on European labour and social law examines it from a legal perspective, putting it in the context of the broader European development from functional integration to a value-oriented community. In contrast to such approaches, this project places protection from discrimination in labour law in the socio-political context of two member states, France and Germany. An analysis of French and German political and civil society debates explains what influence member states’ motives, actors and institutions have had on the formation of legal norms and how legal developments on the European level have affected both countries’ public discourses on labour law. Documents from the archives of the national parliaments and governments, the EU institutions and the social partners in both countries serve as the basis for the analysis. In addition, interviews with first- and second-line actors complement the picture of the socio-political negotiation process leading up to and following the Directives.

The research project is to be understood as part of the debate on European integration through law. It aims to draw attention to normative considerations and communities and to identify problem-solving alternatives in relation to the legal regulation of an economically relevant socio-political issue.

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Historical Regimes of Normativity

Thomas Duve

The Department is dedicated to research on historical regimes of normativity in the European Middle Ages as well as in the early modern and modern periods in the Americas, Europe, Africa and Asia. We are researching diverse topics such as canon law and moral theology in 16th-century Latin America, norms regulating ownership and dependency in 18th- and 19th-century Philippines or Lusophone Africa, and the use of alternative means of conflict regulation like arbitration and conciliation boards in the German Kaiserreich.

Notwithstanding this breadth, our research relies on and contributes to some shared basic methodological premises. We build on a broad conception of normativity (‘multinormativity’), and we understand the history of law and of other forms of normativity as a continuous process of normative knowledge production through ‘cultural translation’. A focus on ‘regimes’ of normativity helps us to analyse historical constellations of norms, institutions and practices in their dynamic interaction. These methodological foundations draw on previous work at the Institute, not least on the former Research Focus Areas. The consolidation of a knowledge-historical approach to global legal history has provided us with a necessary tool for expanding the scope of research (see individual report Duve).

Structure and dynamics

The projects of the more than 40 researchers that have been working together in the Department in the reporting period are grouped together into six Research Fields.

As the individual reports will show, particular attention has been devoted to normative knowledge from the field of religion, above all, in research projects in the Research Field Religious and Secular Legal Cultures in the European Middle Ages (see individual reports of Brandes, Ehlers, Meyer, Spahn) as well as the Research Field Curia, Canon Law and Moral Theology in the Modern Era (see Birr, Bragagnolo, Decock, Duve, Egío, Mejía, Meyer, Moutin, Soler Otte).

One regional focus is the German-speaking world – in particular for the Research Fields on The History of Criminal Law, Crime and Criminal Justice in the early modern and modern periods (see Härter, Núñez, Sirotti, Vegh Weis) and on Special Legal Orders, including labour law, in the 19th and 20th centuries (see Aragoneses, Bender, Casagrande, Collin, Fuchs, Meccarelli, Wolckenhaar, Wolf). Many of the Institute’s researchers have been involved in a major achievement of our former research on conflict regulation, namely a handbook of conflict resolution in a European perspective (see the report of the editor of volume 4, Collin).

Due to the expansiveness of the Iberian empires, the legal-historical research projects assembled in the Research Field Iberian Worlds are dedicated to several places on the four continents where the Iberian empires had, at some point in the course of their existence, been present: Africa, the Americas, Asia and Europe (see the reports of Aragoneses, Bastias, Birr, Bragagnolo, Coutinho, Danwerth, Dias Paes, Duve, Escobar, Egío, Espíndola Souza, Guerra Pedrosa, Gonzales Escudero, Li, Lima, Nuñez, Rex Galindo, Matos Ñgala, Mejía, Moutin, Soler Otte, von Bogdandy). An important focus of our work is to reveal transnational and transregional connections, for example, by studying regimes of criminal law in a transatlantic perspective (see Härter, Nuñez, Vegh Weis) or through work on comparative constitutional history (see Li, Losano). Many projects are based on sources from local archives and engage in cataloguing certain holdings. A number of research projects focus on the analysis of historical regimes of normative knowledge production – ie the history of the modes of knowledge production as such – as their core question (see the Research Field Knowledge of the Production of Normativity, and the individual reports of Bragagnolo, Cesari, Damler, Duve, Li, Lima, Pogies, Spahn, Woods).

In some cases, research projects generate Cross-Cutting Themes, such as Law and Diversity. Here we can make use of the comparative potential that results from working on different historical periods and spaces. In the so-called Joint Projects, several individual projects are carried out in close coordination with one another. The project Glocalising normativities, for example, provides a shared analytical framework to different individual research projects. In a similar way, a number of researchers are currently involved in the project to publish a reference work on fundamental concepts and terms of Canon Law in Hispanic America and the Philippines (16th–18th centuries) and in the research on the School of Salamanca. Working groups like Using normative knowledge from the past, initiated by Li and Woods, serve to discuss overarching aspects. A PhD colloquium, held by Duve and Ehlers, is a forum for the discussion of how to write a legal-historical thesis.

The researchers of the Department have made intense use of the Institute’s resources for inviting guests and publishing. In the reporting period, we have hosted more than 85 guests from 25 countries. In the Institute’s publication series, researchers from the Department have edited four ‘Focus’ sections in our journal Rechtsgeschichte 26 (2018), 27 (2019), 28 (2020), published five books in the Global Perpectives on Legal History series (nos 5, 6, 12, 13, 14), and two volumes in the Studien zur europäischen Rechtsgeschichte (308, 323). More than 50 research papers have been published by members of the Department or by invited authors as contributions to its research projects in the Institute’s SSRN Research Paper series between 2018 and 2020. In the same period, the Salamanca project, coordinated by Christiane Birr, prepared 18 digital editions of, in some cases, extremely extensive works, such as the Thesaurus Indicus by Diego de Avendaño with a total of 2868 pp folio. The new book series Max Planck Studies in Global Legal History of the Iberian Worlds (Brill Publishers) saw the publication of its first Open Access digital and print volume in 2020. Two further volumes will be published in 2021.

A great deal of our work was carried out in cooperation with researchers based at other institutions, which has in some cases led to them becoming ‘Affiliate researchers’. With both the Akademie der Wissenschaften und der Literatur Mainz and the Goethe-Universität Frankfurt, we have been working together closely within the framework of the School of Salamanca project (since 2013). The Department actively participated in the Cluster of Excellence The Formation of Normative Orders at the Goethe-Universität until 2019. In 2018, we joined forces with the Bonn Cluster of Excellence Beyond Slavery and Freedom to establish a Research Group on Law and Creation of Dependency in the Ibero-Atlantic (see Dias Paes). Both this Research Group and a Max Planck Partner Group in Chile dealing with the tribute obligations of indigenous peoples in the Andean Region in the 16th century, which began their work in 2019 (see Rex Galindo), are part of the joint project Glocalising normativities. Researchers of the Department are also involved in the EU RISE project RESISTANCE (since 2018, see Bragagnolo and see Albani, Max Planck Research Group Leader). The project on the History of Criminal Law in Argentina, part of a Max-Planck/MinCyT project (since 2019, see Núñez), a third-party funded research project on Special Normative Orders in the Metal Industry (since 2019, see Wolf, Collin, Bender), and a LOEWE project on Architectures of Order (since 2020, see Damler, Cesari) all contributed to an expansion of our international and interdisciplinary cooperations. There is also a regular exchange with the Hugo Sinzheimer Institut für Arbeitsrecht (see Bender, Collin). Moreover, various researchers of the Department are engaged in the Max Planck Law network.

Results

What results have we achieved? While it is impossible to summarise the work of more than 40 researchers, which is sketched out in the individual reports following this introduction, some general developments and intellectual results should be highlighted.

First, we are extremely pleased that we have been able to expand our research to the non-American parts of the Iberian monarchies. To do so, we needed to incorporate new local expertise and find an adequate research design. The research project Glocalising normativities, established in 2018, has created such a framework for projects dealing with different situations involving the production of law in the Americas, Europe, Africa and Asia by focusing on certain regimes like ’dependency’, ’ownership’ and ’diversity’. By involving scholars from Angola, Brazil, Chile, China, Germany, Peru and Portugal, we are now able to draw on a wide variety of local archival sources. In this context, Mariana Dias Paes and her Research Group Law and the Creation of Dependency in the Iberian Atlantic are carrying out pioneering work not only in terms of research but also with regard to the form and level of cooperation with local partners. Other research projects also dedicated to the Iberian Indian domains are currently being prepared as postdoctoral projects (see Sirotti).

Yet the integration of a set of local studies from very diverse backgrounds is only possible if it is built upon solid methodological foundations. This leads us to a second major aim embarked upon in the last few years: to consolidate a method of writing a global legal history. Through a critical revision of the emerging field of global legal history, we have developed a method for writing a modern legal history in a global perspective that avoids Eurocentrism, is open to practices and materiality and understands legal history as the history of a vast diachronic process of production of normative knowlege (see Duve).

Pursued within the context of several projects, our third goal has been to substantially advance our knowledge of normativity stemming from religious authorities, especially moral theology and canon law in early modernity. The 800th anniversary of founding of the University of Salamanca in 2018 provided us with the opportunity to engage more forcefully in the debates in this field, with major contributions by José Luis Egío. Under the coordination of Pilar Mejía, a large group of authors has contributed to the Historical Dictionary of Canon Law in Hispanic America and the Philippines (DCH). With nearly 50 articles and more than 1500 written pages, this project has already made a demonstrable contribution to the research community not only in terms of expanding our knowledge about historical institutions of canon law but also by increasing the reliability of this information (see the reports of Mejía, Moutin, Soler Otte).

A fourth major aim in the last few years was to foster a dialogue between projects dedicated to different periods and areas within the Department. Examples of this intellectual integration include the research on the School of Salamanca, carried out in cooperation with the Goethe-Universität, and on the pragmatic literature, developed as a project within a DFG-funded Colloaborative Research Centre (Sonderforschungsbereich SFB), in which expertise on the European history of canon law (see Meyer) and book history, especially on one of the bestsellers of the early modern book trade, namely Azpilcueta’s handbook for confessors (Bragagnolo), provided valuable insights for the projects dedicated to colonial history (see Danwerth). In a similar way, it was possible to situate research on criminal law within a transatlantic perspective (Härter, Vegh Weis). Not least the Cross-Cutting Theme Law and Diversity has been pivotal in bringing together researchers, especially from Latin America and Europe, to discuss different experiences and theories in response to societal diversity (Collin, Bastias, Casagrande). In a certain sense, the whole research agenda of the Department – expressed in the Department’s new name Historical Regimes of Normativity as well as the underlying concept – has emerged from a fruitful confluence of research experience and theoretical reflection taking place between the projects concentrating on Germany and those with other regional focuses. Peter Collin, working together with Manuel Bastias, Gerd Bender and others, has actively engaged in this endeavour of bringing together German and non-German research traditions.

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Thomas Duve

Director

• Curia, Canon Law and Moral Theology in the Modern Era

• Iberian Worlds

• Knowledge of the Production of Normativity

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How to write legal history in a global perspective? During the period under review, this question served as the backdrop for various ongoing and new research projects in the Department. This meant that the issue had to be dealt with in a very focused manner. In particular, the research on early modern moral theology, canon law and law in colonial contexts served as opportunities to do just this.

In the research project Knowledge of the pragmatici, planned in 2015 and carried out in cooperation with the Goethe-Universität Frankfurt until 2018, so-called ‘pragmatic literature’ was examined (see reports by Bragagnolo, Danwerth, Rex Galindo, Meyer) as a genre to which relatively little attention has been paid by the European tradition of legal history. Nevertheless, this genre is both of fundamental importance to the production of normative knowledge, not least in colonial encounters, and offers a productive medium for comparative studies between different legal cultures. In order to properly understand the function of this genre in the production of normative statements, a knowledge-historical approach was developed and tested in a series of case studies. Some of the results were published in 2020 in the first volume of a new series of open access publications [Duve, Danwerth, Knowledge of the Pragmatici, 2020]. Moreover, the findings of the more than 50 articles that were written during the reporting period by contributors from different countries for the Dictionary of Canon Law in Hispanic America and the Philippines (see Mejía, Moutin, Soler Otte) have improved our understanding of the processes of globalisation and localisation of religious normative knowledge in the early modern period.

The knowledge-historical approach has also proved fruitful with regard to the legal history of the School of Salamanca. Conceptual reflections and a close reading of the texts – of which many new digital editions have been created and made available by the long-term project financed by the Akademie der Wissenschaften und der Literatur Mainz (see Birr, Egío) and carried out in cooperation with Goethe-Universität Frankfurt – showed that the School can be understood as an epistemic community and a community of practice which is not limited to a specific place or institution [Duve, School of Salamanca. A Case of Global Knowledge Production, 2021]. As such, the project has contributed to a fundamental reconceptualisation of this significant intellectual movement.

Last but not least, an analysis of the state of the emerging field of Global Legal History [Duve, What is global legal history?, 2020] has motivated the development of these knowledge-historical perspectives on legal history. A number of other activities, such as the publication of a special issue of the American Journal of Comparative Law on the relationship between legal history and comparative law [Duve, Symposium: Legal History, 2018], a critical assessment of the German historiography [Duve, Ruppert, Rechtswissenschaft in der Berliner Republik, 2018] and contributions to two Oxford Handbooks [Duve, Global Legal History, 2018; Duve, Indigenous Rights, 2018] served to further develop these perspectives. Presentations in different countries and to different types of audiences, not to mention teaching activities in Beijing and Nanjing in 2019, helped bring exposure to the methodology developed mainly from research on Europe and Latin America and to facilitate discussions with colleagues from other analytical traditions. A volume gathering together several studies on methods of legal history published in Chinese (2019) as well as a Chinese translation of a book on legal scholarship in the Berlin Republic (2021) should serve to enhance the transnational dialogue about these issues.

The Joint Project Glocalising normativities, conceived in 2018 and started in 2019, is an attempt to put these methodological reflections into practice in a variety of local settings in a longue durée perspective. To carry out this ambitious project, a new generation of scholars from different areas were brought onboard (see the postdoctoral projects of Bastias, Coutinho, Dias Paes and Li as well as the PhD projects of Espindola Souza, González Escudero, Guerra Pedrosa, Matos Ñgala, von Bogdandy).

New Open Access publication series: Max Planck Studies in Global Legal History of the Iberian Worlds The first volumes of this new Open Access book series, begun in 2020 with Brill Publishers, publish the results of research carried out in the Department Historical Regimes of Normativity, especially in the Research Field Iberian Worlds. The focus of this series is global in the sense that it does not limit itself to the legal histories of the impe- rial spaces of Portugal and Spain as such, but also looks at the globalisation and localisation of norms within what we call the Iberian Worlds, ie the regions entangled with the imperial spaces of the Iberian monarchies during the early modern and modern periods. The global dimension is, moreover, underscored by the attention paid to the coexist- ence of a variety of normativities and their cultural translations at different times and in different places. All of the monographs, edited volumes and text editions in the series are peer-reviewed and available in print and online in Open Access. Brill’s Open Access books are distributed free of charge in Brill’s E-Book Collections and can be found via DOAB, OAPEN and JSTOR.

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Alfons Aragoneses

Affiliate Researcher

• Iberian Worlds

• Convivencia

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Between 2018 and 2020 I participated in the project Convivencia and the Cross-Cutting Theme Law and Diversity. My approach to both was similar: I studied how legal discourses participated in the social reconstruction of the past in different historical periods.

All social groups, past and present, reconstruct the past to cause effects in the present, what anthropologist Christian Giordano called the ‘actualisation of the past’. Law has always played a role in this process of reinventing the past, for example, in the form of memory laws, reference to ‘legal tradition’, or preambles to laws or constitutions. The memory of law was the subject of a number of studies carried out during the reporting period [Aragoneses, La memoria del derecho, 2018].

My research on convivencia and filosefardismo [Aragoneses, Uses of Convivencia, 2018; Aragoneses, Judaism and Spanish identities, 2019] was aimed at understanding how the actualisation of the medieval past influenced the Spanish state- and nation-building processes. Spanish liberals used an idealised reinvention of Muslim, Christian and Jewish coexistence in the Middle Ages to defend their liberal / progressive political project for Spain. The message was that ‘Spain was tolerant in the Middle Ages, so Spain has to be tolerant today’.

My contribution to the activities related to the Cross-Cutting Theme Law and Diversity concentrated on legal unity and diversity in Spanish nation-building. Historically, Spanish cultural and linguistic diversity was not articulated via public law with a federal or regional structure. Diversity was recognised and accepted only in private law. When the process of codification started in the early 19th century, Catalan and other regional elites used the concept of tradition and references to history to pave an alternative way to legal modernity, resisting the unification of civil law and defending an actualisation of regional legal traditions. As a result, the Civil Code of 1889 did not unify Spanish private law, but instead respected the existence of different regional laws. History and tradition were used during this process to legitimise an alternative path to modernity. This explains the importance of regional civil law codes and traditions in today’s Spain [Aragoneses, El jurista en el barrio gótico, 2021].

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Manuel Bastias Saavedra

Researcher

• Iberian Worlds

• Glocalising normativities (Joint Project)

• Frontier law: land, territory, and justice on the edges of the Pacific World (Chile and the Philippines, 1750–1860)

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Global legal history is an emerging field that raises many epistemological, methodological and conceptual problems. It challenges a focus on Western and state-centred concepts of law; it reflects on different historical spaces and the interactions between different scales of research; it seeks to look at the foundations of the globalisation of law as the result of interactions between different world regions; and it rethinks the sources that are relevant for legal-historical research.

Many of these questions are addressed in the Joint Project Glocalising normativities, which attempts to understand how law operated in different world regions that participated in the so-called Iberian world. During 2019 and 2020, the workshops on ‘Methods and Sources’ served to discuss the concepts of glocalisation and normative production as well as the use of sources for research in global legal history. The three-part lecture series on ‘Norms and Empires’ invited leading historians in the field of imperial history to reflect on how they observed law within their own research experience. The research colloquium on ‘Global Legal History’ was created to give early-career researchers a space to discuss their research findings. During 2019–20, eight sessions of the colloquium discussed cases from Asia, Africa, Europe and the Americas.

The research project Frontier law also takes a global legal-historical perspective to study how law operated beyond the realms of formal institutions traditionally associated with legal practice: books, universities and courtrooms. It focuses on notarial and judicial archives to study the regulation of land in two frontiers of the Spanish empire, Valdivia, in Chile, and Northern Luzon, in the Philippines. Initial findings of this project were published in 2018 [Bastias, Lived Space, 2018; Bastias, Jurisdictional Autonomy, 2018], and comparisons with land tenure regimes in other territories of the Spanish empire were addressed in a recently published critical historiographical essay [Bastias, Normativity of Possession, 2020]. An ERC Consolidator Grant, awarded in late 2020, will pursue these questions in different regions of the Iberian world (ERC IberLAND. Beyond Property: Law and Land in the Iberian World, 1510-1850). Together with Luisa Coutinho, I organised a panel at the Annual Meeting of the American Society for Legal History in 2019 in order to strengthen the Asian focus of the Institute. An edited volume on local normativities in Asia is currently under preparation.

To the Cross-Cutting Theme Law and Diversity, I contributed an article on diversity in Chilean constitutional history (in press), a methodological article [Bastias, Diversity as Paradox, 2020], and co-organised a conference on ‘Diversity and Public Law in Europe and Latin America’ in 2020.

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Gerd Bender

Researcher

• Special Legal Orders

• Social regulation: modern corporatism and private power

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The regulation of industrial relations and social security – including the corresponding justificatory narratives and constructs of legitimation, which focus on the use and abuse of private power – is one of the major issues that shaped the era of industrial society. From its beginnings in the 19th century, this historical field was marked not only by the emerging welfare state but also by the rise of associations that discovered subsystemic self-regulation as a new mode of labour policy.

There have been strong reactions to this development on the European continent. The self-regu-lating world of the new corporate actors comes into the perspective of the state. Self-regulation is transformed by state norms; the unfolding collective labour law, coupled with the novel regulator of collective bargaining autonomy, becomes a prototypical legal innovation. Regulated selfregulation refers to the template configuring the new notion of statehood, the expanded state or the political system with its increasingly rich periphery of associations linked to the state as the system centre. From the mid-19th century to the present day, strategies of fortification and consolidation have appeared in this context of interwoven regulation. Associations should assume the public role they have grown accustomed to and incorporate the reference to the state into their self-description. In return, they can expect state recognition and consideration (neo-corporatist trade-off).

The project attempts to capture this tripartite regime, its practices and its resonance within the legal system in a historical longitudinal view. Starting from the profound controversy about unemployment and economic stagnation that has affected the entire EU, especially Germany, since the 1980s [Bender, Herausforderung Tarifautonomie, 2018], the project focused on the labour constitution of Weimar, which developed the fragmented historical-institutional heritage of the German empire into an overarching normative order (publication forthcoming). The legal-theoretical turbulence that took place over the course of the innovations was dealt with using the debate on collec-tive agreement as an illustration of an institution of the legal system.

The project is integrated into the Research Field Special Legal Orders. There are close ties to the research project Non-state law of the economy, and the ongoing cooperation with the project initiative History of labour law continues to offer a productive research context.

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Christiane Birr

Affiliate Researcher

• Curia, Canon Law and Moral Theology in the Modern Era
• Iberian Worlds
• Salamanca in America
• The School of Salamanca. A Digital Collection of Sources and a Dictionary of Its Juridical-Political Language

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The School of Salamanca has traditionally been identified as a comparatively small and close-knit group of Spanish theologians – beginning with Francisco de Vitoria and arguably ending with Francisco Suárez – who shaped the intellectual transition from medieval thought to modernity, not only in Catholic theology but also regarding many key legal concepts. The university of Salamanca was seen as the centre from where new and exciting thoughts were being projected into the (New) world. This traditional picture has proven in need of various fundamental adjustments which are at the heart of the work being undertaken.

Two book chapters look at early writings about the discovery and conquista of the Americas and focuses on jurists and theologians, such as the Castilian court jurist Juan López de Palacios Rubios [Birr, Before Vitoria. Early Theological and Juridical Responses to the Spanish Expansion, 2018; Egío, Birr, Before Vitoria: Expansion into Heathen, Empty or Disputed Lands, 2020]. Palacios Rubios marshalled an arsenal of arguments from Antiquity, Scripture and the Church Fathers to come to terms with the new reality of the Americas, providing a pool of erudite arguments that later authors like Francisco de Vitoria would extensively draw upon. For example, he postulated the status of the Amerindians as free subjects of the Castilian crown (as opposed to the Aristo-telian idea of ‘slaves by nature’) as well as the need to respect indigenous forms of property [Birr, Dominium in the Indies, 2018].

Another focus is the concept of the School itself, particularly the question of how we can define it to represent a global network whose members formulated answers to autochthonous questions in all parts of the Iberian empires, from the Americas to the Philippines, Japan and Goa, as well as in Europe. This perspective was discussed at an international conference in Buenos Aires in October 2018 and has been deepened in a volume in the series Max Planck Studies in Global Legal History of the Iberian Worlds [Duve, Egío, Birr, School of Salamanca, 2021].

Finally, the Digital Collection of Sources (part of the project The School of Salamanca, a cooperation between the Goethe-Universität Frankfurt, the Akademie der Wissenschaften und der Literatur Mainz, and the Institute) approaches texts printed in the 16th and 17th centuries with the methods and tools of the Digital Humanities. This work is carried out in close cooperation with colleagues from the technical disciplines: an in-depth understanding of each other’s research needs and methods is essential for a meaningful use of algorithmic tools for textual analysis, which will hopefully enable us to identify the School of Salamanca’s ‘digital fingerprint’.

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Luca von Bogdandy

Doctoral Student

• Iberian Worlds

• Glocalising normativities (Joint Project)
• Reforms of judicial systems in 18th-century Italy. Concepts, methods, successes and failures of Bourbon, Habsburg and papal attempts to establish centralised judicial authority

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According to our modern understanding, courts – and the judiciary more generally – are among the core competencies of the state. However, this understanding is the result of a long historical development. In the early modern period, many courts were feudal, municipal, or run by guilds or religious institutions, and thus derived their authority from a variety of sources that were often unconnected to the sovereign.

The doctoral project Reforms of judicial systems in 18th-century Italy examines how during the process of modern state-building the sovereigns of the main Italian states attempted to incorporate courts more firmly into their sphere of rule. A key question is how these different states tried to integrate the various tribunals into the developing organisation of the modern state, that is, to bring them under their authority according to the modern idea of sovereignty.

The starting point is the analysis of concrete reform projects in the formerly (until the Peace of Utrecht 1713) Spanish-dominated territories: the Kingdom of Naples-Sicily, the Duchy of Milan and the Papal States. Particular attention is paid to the reasons why certain reform projects were not, or only partially, successful, and thus other authorities persisted. This continued legal plurality within the individual territories could take two forms: either old institutions resisted the reform attempts, or they continued within the new institutions. This focus is part of a more general research question on the typical forms of judicial independence and accountability.

In contrast to previous research in this field, this study takes a more institutional approach and will in particular address the question of whether new courts were set up, how the courts and judges were organised and financed, and how dissenting judges were sanctioned. For the selection and presentation of the material, the theory of historical institutionalism is decisive.

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Manuela Bragagnolo

Researcher

• Curia, Canon Law and Moral Theology in the Modern Era
• Iberian Worlds
• Knowledge of the Production of Normativity
• Legal knowledge and the emergence of print. Textuality and materiality in early modern legal books
• HyperAzpilcueta. Visualising the instability of early modern normative knowledge

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With the emergence of print, books started to become the media that more than any other stored and mobilised normative knowledge. The question how the changes in the production, circulation and consumption of legal books affected the normative knowledge production in the Iberian worlds has been at the centre of two related research projects carried out in the last years on the most successful pragmatic normative book of the early modern period: the Manual de Confessores by Martín de Azpilcueta (1492–1586).

Both projects emerged out of a preceding one entitled Martín de Azpilcueta’s Manual for Confessors and the Phenomenon of Epitomisation (2016–2018) and follow complementary methodological approaches. Legal knowledge and the emergence of print combines legal historical research with methods and analytical categories from book history. In addition to the editions of the Manual, it explores archival documents such as lawsuits and notarial deeds.

The project HyperAzpilcueta focuses on the instability of early modern books, using Digital Humanities methods to create a comparative digital edition of the four main editions of the Manual. The project aims to visualise the authorial changes in the text in order to explore how normative knowledge changed within the ‘same’ book.

Two studies published during the reporting period [Bragagnolo, Managing Legal Knowledge, 2020; Bragagnolo, Les voyages du droit, 2018] shed new light on the textual dynamics of Azpilcueta’s work by showing the relevance of authorial changes to early modern normative knowledge production. The studies reveal a complex process of epitomisation in which the addition of legal doctrines, the text’s translation into different languages and the updating of the Manual with answers to questions coming from all over the world played a fundamental role.

While both the history of knowledge and book history have thus far paid little attention to law, nowadays, due not least to Antonio Manuel Hespanha’s seminal studies, approaches which were developed in the field of book history over the past decades are slowly being applied to legal historical scholarship. My research tries to further develop these approaches by using the material and digital ‘total history’ of an extremely successful book in order to show how normative knowledge was produced in the early modern period.

In addition to these research projects, I am cooperating in the project Digital Library De Indiarum Iure and am one of the Institute’s two responsible researchers in the EU-funded four-year project RESISTANCE.

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Wolfram Brandes

Affiliate Researcher

• Religious and secular legal cultures of the European Middle Ages

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The research undertaken in the years 2018–2020 focused on the study of the historical circumstances surrounding the synod known as Quinisextum or Trullanum, held in Constantinople in the spring of 692. It issued 102 canons, which to this day constitute the core of the canon law of the Orthodox Churches. The emperor Justinian II – one of the most fascinating figures in first-millennium Byzantine history – initiated substantial reforms of both state and Church. The synod’s 102 canons, some of which are very extensive, have been much discussed in international scholar- ship in recent years, but several aspects of their contemporary context have been overlooked. The most important of these is the imperial propaganda of Justinian II, directed against the Arab caliphate. The acts of the Quinisextum / Trullanum (composed of its canons and a long text from the council fathers to the emperor (logos prosphonetikos) include a number of Bible quotations, particularly allusions to the Old Testament, which contain hidden references to the emperor’s political agenda, of which the Quinisextum / Trullanum was part. Only by taking this into account can the content and intention of the canons be understood – and thus also the peculiarities of the canon law of the Eastern Churches, which are still relevant today.

The findings will be published in a monograph that will focus on the emperor himself, in addition to the canons mentioned above. However, the monograph will not be a biography of this fascinating emperor (though his life was worthy of a Hollywood movie of the 1950s or 1960s), since in my opinion the lack of sources prevents us from writing biographies for pre-modern figures.

At the same time, I am preparing a volume dealing with the history of Byzantine administration from the sixth to the ninth / tenth centuries for the methodica-series of the Institute. Considerable overlap between this volume and the study on the Quinisextum / Trullanum and Emperor Justinian II are of great benefit to both projects.

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Pamela Cacciavillani

Former Researcher

• Iberian Worlds
• The protection of private property in the face of the indigenous people’s reality in Argentina, between the end of 19th and the beginning of the 20th century

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During the period covered in this report, the main activities were dedicated to finishing my PhD thesis and preparing it for publication, as well as to developing a postdoctoral project.

The main aims of the PhD thesis From communal property to liberal property. The legal system of property in Cordoba (1871–1885) were to understand the legal-historical aspects that enabled the continued existence of indigenous communal property in times of codification, and to investigate what role the Civil Code played within the process eventually leading to the demise of indigenous communal property in Cordoba. The thesis was presented at Universidad Nacional de Córdoba, Argentina, in 2018 and obtained the highest qualification and recommendation to publish.

The postdoctoral project The protection of private property in the face of the indigenous people’s reality in Argentina seeks to contribute to a more comprehensive understanding of the phenomenon of land conflict concerning indigenous communities. The focus is on an approach that puts the effects of the various mechanisms for the protection of property / possession into dialogue among themselves. A key concept within the project is the property registry and its function of protection and legal security.

The project is now being continued from my new affiliation as Full Professor for Legal History at the Universidad de Monterrey, UDEM-Mexico, and as a Candidate to National Research (SNI) of CONACYT (2020–2022).

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Agustín Casagrande

Affiliate Researcher

• Iberian Worlds
• The crisis of liberalism and the formation of exceptional regulations (Sonderordnungen) in Argentina in the 20th century

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One focus of research during the reporting period was the participation in the Cross-Cutting Theme Law and Diversity in cooperation with Peter Collin and Manuel Bastias Saavedra. The objective of the Cross-Cutting Theme is to bring together contributions from Latin America and Europe that tackle the question of how the modern law of the 19th and 20th centuries, based on the principle of equality, dealt with social inequality and social diversity. Two conferences held in June 2019 addressed this question from the perspective of national developments in Latin America and Europe and examined fundamental questions of legal doctrine. Two further conferences, held online in November and December 2020, respectively, dealt with the diversity dimension in public law. These events brought together specialists from both sides of the Atlantic not only to under- stand the way in which the logic of equality–diversity was instituted in diverse social contexts, but also with the intention of displacing the hegemony of European perspectives. This involved the analysis of processes of the transfer and hybridisation of knowledge that allowed alternative responses to questions regarding the resolution of conflicts to be formulated in different legal spaces. My contributions focused, first, on the ‘sociological imagination’ in Argentine legal sociology in the 19th and 20th centuries, and, second, on the concept of autonomy as a tool of subjectivation and identity formation in 20th-century Argentina. A volume gathering together the key contributions from the first two conferences is being edited by Peter Collin and me.

The second focus of research, the project The crisis of liberalism and the formation of exceptional regulations (Sonderordnungen) in Argentina in the 20th century, is also connected to the diversity theme. The project’s first result was a study on how the concept of the rule of law in Argentina allowed for differentiated administrative regulation [Casagrande, The concept of Estado de derecho, 2018]. The second result was a monograph on the formation of the police institution – and its special regulations – aimed at the social control of particular sectors in Rio de la Plata in the 19th century [Casagrande, Gobierno de Justicia, 2019].

In addition to this, I contributed conference papers and articles to various other MPI projects, such as the Historical Dictionary of Canon Law (DCH) [Casagrande, Confesos, 2019] and Knowledge of the pragmatici [Casagrande, Forensic Practices, 2020].

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Pietro Cesari

Doctoral Student

• Knowledge of the Production of Normativity
• The corporation and the conception of modern space

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The project The corporation and the conception of modern space is part of the LOEWE focus Architectures of Order, which aims to analyse architecture as a cultural ordering practice that operates at the interfaces of control, knowledge, design and subjectivation. The LOEWE sub-project Corporate architecture investigates the architectural implications of both legal and managerial structures to better understand the corporate institutional revolution (see also the report of Damler).

The rise of the corporation as the predominant economic player in the early 20th century radically disrupted traditional economic theories. The stock exchange’s new mechanism of raising and collecting capital opened up completely new legal and economic perspectives. The par- celledout ownership in shares led to the disintegration of the traditional unique right of property in its two distinct components of ownership and control. The rise of the modern corporation was made possible through the power of disposition (control) handled by the rising figure of the sala- ried manager. This new role contributed to the development of innovative systems of control and administrative coordination, which proved to be more efficient than the traditional market mechanisms of price equilibrium.

The connection between architecture and corporate organisational models remains substantially unexplored. Through an historical analysis, the project aims to investigate the ways in which the new structure of the corporation and its mechanisms have affected the built environment and how, conversely, architectural design has influenced corporate structural organisation. This is pursued through the analysis of selected case studies from Germany, Italy and the USA. At the centre of the study are the corporate architectures of control and coordination: headquarters as well as subsidiaries’ buildings. My comparative approach connects the selected case studies’ corporate strategies and organisational structures with their real estate ventures. Both realised and unrealised building projects are examined to clarify the relation between organisation culture and design culture, and the role of architectural practices within it.

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Peter Collin

Researcher

• Special Legal Orders
• Regulated self-regulation in a legal historical perspective
• History of conflict resolution in Europe
• Schiedsstaatlichkeit. Balancing of state and private interests by arbitral institutions in the German Empire and the Weimar Republic
• Non-state law of the economy

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Two projects were completed during the reporting period.

The project Regulated self-regulation in a legal historical perspective, which investigated private state regulatory patterns of the 19th and early 20th centuries, was concluded with a comprehensive, digitally available source edition [Collin, Regulierte Selbstregulierung, 2018], which illustrates the legal framework for various sectors of regulated self-regulation; each chapter begins with a comprehensive introductory essay.

The project History of conflict resolution in Europe, part of a larger project network in cooperation with researchers from the Goethe-Universität Frankfurt, has also been completed. The intention was not to produce a conventional history of justice but a presentation that also took into account extrajudicial and non-state forms of institutionalised conflict resolution. The result is a handbook in four volumes; I am editor of the fourth volume (19th / 20th century) with about 50 contributions, including research reports on almost all European states. The volume’s text has been finalised, but it is to be printed only when the other parts of the handbook are available too.

The starting point of the currently ongoing project on Schiedsstaatlichkeit in the German Empire and the Weimar Republic was the finding that, in addition to the ‘normal’ structures of state jurisdiction, there existed another judicial world of a more semi-state nature. Though these arbitral institutions dealt with relatively small numbers of cases compared to the state judicial system, and did not achieve a lasting status, they did not exist in insignificant niches but rather at key points of legal policy: in the economic sphere, the world of labour, in the field of social policy, and above all in times of war and crisis. The project aims to grasp the structures, normative frameworks and to some extent also the judicial practice of these institutions, and to identify common procedural and decision-making patterns. Publications have appeared on courts of honour [Collin, Nichstaatliche Disziplinierung, 2018] and on the arbitration tribunals of the war economy [Collin, Justiz mit abgesenkten Standards?, 2019]. A monograph is planned that will provide a comprehensive overview.

Details on another current project on Non-state law of the economy can be found in the report by project collaborator Johanna Wolf.

Both of the latter projects are part of the Research Field Special Legal Orders, which aims to examine how in the legal systems of the 19th and 20th centuries, which claimed universality, new particular legal spaces emerged. They are also part of the Cross-Cutting Theme Law and Diversity, described in the report of Agustin Casagrande. In addition to this, I currently supervise two PhD projects (see the reports of Fuchs and Wolckenhaar).

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Luisa Stella de Oliveira Coutinho Silva

Researcher

• Iberian Worlds
• Glocalising normativities (Joint Project)
• Christian Japanese in the Portuguese Empire: circulation and production of normativities in Japanese lay communities (1540s–1630s)

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My postdoctoral research project on the circulation and production of normativities in Japanese lay communities builds on a methodological approach I developed in my previous work on the legal history of colonial women. Studying the women of Paraíba, a captaincy of northeast Brazil, I used the concept of multiple normativities to analyse dozens of daily life cases from Portu- guese and Brazilian archives. The results of this research showed that the law of the metropole was not simply transplanted to the colony but rather interacted with local normativities, providing options to women depending on the intersection of their status, condition, religion and sexuality that demonstrated the flexibility of sex and gender categories according to the practice of law [Coutinho Silva, As dotadas e meeiras, 2020; Coutinho Silva, O saber médico e o corpo, 2019; Coutinho Silva, Land, Slaves, and Honour, 2020; Coutinho Silva, Nem teúdas, nem manteúdas, 2020].

For the current project, I expanded the scope of my study on women‘s legal history in the Portu- guese Empire to include Asian territories. Using missionary activity in Japan from the 1540s to the 1630s as my case study, I particularly focus on lay brotherhoods as loci of the production of normativities. In the absence of Catholic priests, these confrarias of converted Japanese were organised by Japanese lay practitioners, both women and men. In order to contextualise the missionaries’ sources about the lives of the converted and the mission in Japan (such as letters, reports, questions on daily life issues, pragmatic literature, and histories of Japan) that circulated throughout the Iberian empires, my approach takes into consideration also Japanese legal history and sources in Japanese. The aim is to write a legal history based on religious practices as normative cases considering both traditions, in particular to demonstrate how practices surrounding marriage, inheritance and kinship systems, repudiation, divorce, and the role of women in the confrarias redefined social roles and legal categories as they were culturally translated and adapted. Therefore, methodologically my work is still located at the intersection of legal history, women’s history, gender studies and global history.

During the first of several planned visits to archives and research stays, I was a Visiting Research Fellow at Waseda University, Tokyo, in June 2019, where I had the opportunity to develop networks of collaboration with Japanese scholars and to deepen my familiarity with Asian legal historiographies, the Japanese language and sources.

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Daniel Damler

Affiliate Researcher

• Knowledge of the Production of Normativity
• Corpotopia. Architectures of fictional enterprises

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Since 1 January 2020, the Institute has been involved in the LOEWE research project Architectures of Order, a four-year cooperation with the Technische Universität Darmstadt’s Department of Architecture, the Art History Institute of the Goethe-Universität Frankfurt, and the Deutsche Architekturmuseum, funded by the German federal state of Hessen. Like Pietro Cesari’s PhD project (see his report), my research on Corpotopia. Architectures of fictional enterprises is part of the sub-project Corporate Architecture. Corpotopia examines the political, legal, economic and architectural content of representations of corporations in popular utopias and dystopias since the 1920s. It builds on preliminary work, such as Konzern und Moderne. Die verbundene juristische Person in der visuellen Kultur 1880–1980 (‘Corporate Modernism. Corporate Groups in Visual Culture 1880–1980’), published in 2016, which examined ‘corporate images’ as part of the psychological profile of high modernity.

At the same time as large multinational corporations began to compete with the state as the hitherto dominant political and economic actor in reality, the entertainment industry started to create fictional parallel worlds dominated by large corporations. Examples are the comics Superman (DC Comics, since 1938) and Batman (DC Comics, since 1939) with LexCorp in Metropolis and Wayne Enterprises, Inc. in Gotham City, respectively. Architectures play a prominent role in the dramaturgical concepts of comics and films, both literally and metaphorically: such corporations (often holding companies) have an astonishingly complex legal architecture, and this complexity and power requires a convincing visualisation, for which buildings (corporate headquarters) are best suited. A small database of almost eighty fictional large companies in films and comic strips is currently under construction.