Did long-distance trade not have its own intrinsic logic?
Report on the workshop “How to Ensure Predictability in Legal Pluralism. Northern Europe in the Later Middle Ages” on 5 and 6 October 2022
by Vera Teske
The workshop focused on merchants engaged in long-distance trade in late-medieval and early-modern Northern and Central Europe. According to the workshop’s initial thesis, these merchants were particularly confronted with normative plurality, since they conducted their business across different territories, legal and political landscapes, and with partners from different social and cultural backgrounds. A prerequisite for initiating and conducting business successfully was a certain degree of predictability of action and behaviour among the trading partners. How could this be guaranteed over long distances and in very different contexts? Which norms were followed and how were violations dealt with? These were the central questions of the workshop.
Research on the Hanseatic League argues that the mercantile system was relatively autonomous, and that the social interactions and behaviour of those involved were controlled by the normative function of personal networks, instruments of collective liability, and social exclusion. However, the importance of the political framework for long-distance trade, such as the trading privileges agreed upon and guaranteed by the trading partners’ respective authorities was emphasized as well. The merchants interacted with institutions of public order that acted as guarantors for enforcing legal claims and contracts. A thesis still put forward by debates in economic history is that long-distance merchants must have sought to homogenise and rationalise their normative framework. The workshop discussed the role that legal norms and other normative systems, administrative and social institutions, and judicial and extrajudicial means of conflict resolution played in generating predictability in the context of long-distance trade. Following Niklas Luhmann, the workshop set out by defining predictability as “certainty of expectation” (Erwartungssicherheit).
The benefits of formalisation and standardisation: courts and administration
Several contributions to the workshop showed that predictability was created by the emergence of administrative structures and the formalisation and standardisation of bureaucratic procedures, such as through the procedural maxim of textuality, for example in some cities in the late medieval kingdom of Hungary. Also, as was shown for the city of Lemberg, a rigid but consistent policy of discrimination and control of the economic activity of certain social groups made interactions predictable, though not necessarily economically profitable for all parties involved. The decision-making of courts could then have a stabilising effect if foreign merchants were treated fairly in their court proceedings and therefore chose an appropriate court rather than taking their cases elsewhere, e.g. their hometown. This was demonstrated by the example of the courts of the Scottish city of Aberdeen.
The advantages of plurality: judicial and extrajudicial conflict management
The example of the so-called German law illustrates that legal norms served not to standardise or harmonise the normative framework, but rather to mark difference. The iustitia et libertas teutonicorum, i.e. the rights and freedoms of “the Germans”, referred to a group that was marked by linguistic (and not territorial) commonalities and that claimed certain privileges for itself. In this respect, legal norms did not necessarily help homogenise the group of long-distance merchants and their normative frame of reference. But what role did these norms play in managing or resolving conflicts?
The local courts often referred in their judicial practice not to the written laws, but to issues of equity and justice. The conditions of long-distance trade gave rise to systems tailored to the needs of merchants, for example with regard to the duration of proceedings. Diplomacy was seen as an instrument in its own right, one that could also be used in conjunction with legal measures, for example to accelerate court proceedings or to bypass them altogether. Manoeuvring between different courts and jurisdictions, as well as appealing to competing authorities, were also strategies that merchants used to exploit the respective power constellations to advance their own interests and claims. They instrumentalised political discourses in conjunction with other practices, such as listing and negotiating individual objects of conflict, and tied negotiations to an economic logic.
Legal methods thus complemented the normative mechanisms of resolving conflict; the different systems of norms influenced judgments, while the framework conditions of long-distance trade influenced procedures. For contemporaries, this plurality created options rather than problems. Unpredictability or uncertainty resulted primarily not from normative or legal plurality, but from the difficulty of enforcing claims made.
Reprisals as institutions of collective accountability are a vivid example of this limited enforceability, as they could fail in numerous ways, such as when a person did not comply with due process. Other reasons that reprisals failed were lack of authority or bribery of local officials, the protected status of the counterparty due to existing treaties, a letter of protection or its deserving behaviour, and not least the mistaking of identity and thus the counterparty’s absence of liability. Thus, different procedural steps carried the risk of failure. Local officials, procedural rules, or the collision with other norms, such as that of honour, were potentially powerful factors that a single actor could barely control, and that followed very different systems of logic. The question therefore raised at the workshop was whether, from the perspective of the individual merchant, we should not rather speak of risk management. A certain degree of predictability could only be produced by the network and interaction of many different actors, their strategies for asserting their interests, and the institutions that emerged in the process. Knowing how to manoeuvre within this framework was a central prerequisite for a person to advance his or her own interests.
The example of long-distance trade also points to another factor that should possibly be taken more into account in other contexts: namely, the importance of interests and the systems of logic associated with them. It was suggested at the workshop that efforts to achieve predictability should not be tied to the conscious constitution of collectively binding social and legal norms and institutions, which in turn aimed at harmonising the normative framework. Rather, the consensus that each actor was allowed to pursue his or her interests as long as this did not blatantly violate those of others created the framework for the interactions that in turn generated norms. It was universally accepted and expected that “the others” would seek to advance their own interests and improve their position. What this meant for the emergence, dynamics and mode of action of norms of very different provenance remains an exciting question, especially for the Kolleg. This peculiarity – though not necessarily autonomy – of the economic sphere also invites us to question the units of study that we define all too quickly.
Legal pluralism as a problem?
The example of the city of Danzig was used to show the extent to which administrative, political and judicial institutions were intertwined. The city bodies were very similar in terms of personnel and the qualifications that their officials held. Interaction between and with these institutions was shaped by the coexistence of legal and social norms, economic systems of logic, and personal networks. The interweaving of different normative systems is thus evident in late-medieval and early-modern socio-economic contexts such as long-distance trade.
The contributions and discussions showed how much the production of norms, their acceptance and effect, and the practices and procedures accompanying them influenced each other, i.e. how much fields and systems overlapped and interacted with each other.
This observation points to a fundamental methodological challenge when it comes to studying multinormativity and legal pluralism in such a multi-layered context of interaction as pre-modern long-distance trade. Drawing on Pierre Bourdieu’s field theory or Niklas Luhmann’s systems theory, researchers construct units of investigation such as “fields” or “systems”, these nevertheless only ever showing a section of this context of action and deliberately reducing the complexity of historical reality. This is hardly surprising and only a problem if such an intrinsic logic is postulated for the systems, fields or communities identified in this way that they are granted a supposed autonomy.
What must always be reflected upon is the question of which fundamental units of investigation are defined, what consequences this has for each form of normative and legal pluralism, and which phenomena are thereby made visible or veiled. For, each theoretical construction, without which no study is possible, only allows a glimpse of the multifaceted phenomenon that is legal pluralism.