Wednesday, January 23, 2019

European or Global? Secular or Religious? How (Some) European Jurists Re-Consider their Past

Recently, I returned from a visit to the Max Planck Institute for European Legal History in Frankfurt (, where several groups are working simultaneously to re-cast European legal history. Rather than thinking about Europe in isolation, rather than insisting on law as a secular affair, members of these groups interrogate the processes that led European law to expand overseas, as well as the way religion contributed to this expansion. They ask: What would happen to European law if we observed it from a global perspective? If we considered not only its accomplishments (rule of law, constitutions, democracy, etc.) but also its other legacies (empire, slavery, violence, and so forth)?[1] If we focused on the entanglements between law, religion, and morality?

With study groups centered on “Legal Transfer in the Common Law World”, “European Normative Orders in Ibero-America,” “Governance of the Universal Church after the Council of Trent,” “The Legal History of the School of Salamanca,” or “Translations and Transitions: Legal Practice in 19th Century Japan, China, and the Ottoman Empire,” this re-thinking follows several paths. 

(1)   It interrogates the spaces that scholars need to study if they are to understand the history of European law. In tune with existing affirmations that Europe was an idea rather than a continent and that its meaning and extension constantly mutated, they suggest that historians of European law should modify the scope of their analysis. The appropriate scope could cover from Rome to the Mediterranean, further west to Latin-Christendom, North to England and Scandinavia, and across Oceans to Africa, Asia, and the Americas.

(2)   It asks about the consequences of the encounter between Europeans and other legal cultures. Rather than posing a West vs. the Rest, or engaging in, dismissing, or criticizing Eurocentrism, the aim is to understand how interactions between European and non-European norms changed both. Change and endurance are important in this regard but looking at European law elsewhere also has important methodological underpinning. European response to the “other,” scholars at the Max Planck argue, can tell us a great deal about European law. It allows to perceive its rigidity on occasions, malleability on others, and helps identifying its core principles as well as their potentialities. In other words, the main question we should ask is not whether European law was indeed universal (or potentially universal) as some Europeans have argued, but which parts of it survived the transfer outside Europe, what was lost, what changed, and how.  
(3)   If enlarging the research on European law to less-than-usual suspects is important, research at the Max Planck also reminds us that as important is to ask, “what is law.” Rather than assuming that law was a secular affair, the research agenda followed in Frankfurt recognizes the centrality of religion by integrating to the study of European law canon law and moral theology and by re-evaluating the contribution of the church to the dissemination of juridical ideas. One emblematic way they do so is by insisting on the importance of pragmatic literature, that is, the non-juridical literature that inculcated normative conduct ([2]  Drawing our attention to less-than- conventional sources for legal history, it observes what practitioners published but also the contents of popular works, as well as works of moral theology, confessionaries, and the like. The working assumption is that these types of sources, mostly ignored, contributed greatly not only to disseminate legal ideas, not only to vulgarize them (as they are often viewed) but also to develop and enrich European legal tradition.

[1] Thomas Duve. “Global Legal History: Setting Europe in Perspective.” In Heikki Pihlajamäki, Markus D. Dubber, and Mark Godfrey (eds.). Oxford Handbook of European Legal History. Oxford: Oxford University Press, 2018, 115-140. This transformation began in 2009 after Thomas Duve was named director of the Institute. The Max Plank has this amazing system: The Society identifies individual scholars and names them directors of an institute, giving them space, funding, and administrative support to hire scholars and develop their own intellectual agenda, the only condition being that they innovate. 
[2] The results of this project will soon be published in a new Open Access book series with Brill Publishers, titled Max Planck Studies in Global Legal History of the Iberian Worlds.