Recently, I returned
from a visit to the Max Planck Institute for European Legal History in
Frankfurt (https://www.rg.mpg.de/en), 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
(https://www.rg.mpg.de/research/knowledge_of_the_pragmatici).[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.
