(image: Livorno, 17th Century; source: Wikimedia Commons)
HSozKult reports the following event on early modern and modern transnational commercial law - DEADLINE 29 MARCH 2015:
What can the evidentiary artifacts that are deployed to resolve commercial litigations tell us about the legal configuration of the Mediterranean between the fifteenth and nineteenth centuries?
Since 2012, the ERC-funded Mediterranean Reconfigurations research program (ConfigMed) has been studying commercial disputes, legal pluralism, and intercultural trade in the Mediterranean, at the crossroads of different traditions, legal regimes and referents. In this context, our method helps to address conflicts involving economic actors from Europe to the Ottoman Empire and North Africa, as well as to focus on the encounters, compromises and possible exchanges of these geographical entities.
Systems of legal proof belonging to the prominent legal structures from ancient times to the modern era have been subject of several investigations and a wide range of publications between the late 1950s and early 1960’s, when the collapsing colonial empires discovered - or rediscovered - the foundations of indigenous legal theories, known to play a critical role in their independence.
This workshop aims to continue this work and these reflections with a particular emphasis on the production and circulation of the elements of legal proof in the Mediterranean. Based on the examination of written certificates and declarations, we propose to examine their effect on both the commercial world and legal systems that are often seen as closed within itself.
One of the primary axes of this workshop will be the analysis of the procedures of dispute resolution through the production and circulation of certificates and written testimonies. The origins, formal diversity, materiality and logic of these artifacts should be able to provide food for thought on the nature and resolution of disputes, as well as the practical functions of institutions, such as consulates and commercial courts.
Particular attention will be paid to cases involving agents of different backgrounds (i.e. disputes with the infidels, and those conflicts between local people and foreigners or traveling people); effort will be made to understand the terms and limitations of access to justice for the different actors (for example, did Muslims submit an appeal to the European courts?), as well as the logics and practices of intermediation that were made possible by the presentation of the evidentiary elements.
Our thinking is based on findings from recent research, such as those devoted to the procedures of "summary justice", available to foreigners and merchants in Europe, or, in the land of Islam to the Siyasah doctrine and the practices of justice administered by the ruler instead of the qadis or the uses by foreigners of the Ottoman Imperial Council (Divan) in case of commercial conflicts. The workshop aims to explore such legal procedures by peering into the archives, as well as by tracing the circulation of written documents. Our interest, therefore, will not be invested in the legal and philosophical systems of any single "civilization" or "cultural area", but rather in the socio-cultural relations between them prompted by commercial litigations, as well as issues raised by the coexistence or interpenetration of different evidentiary logics.
As such, this workshop aims to overcome the vision of a Mediterranean reduced to the strict opposition between an Islamic legal system of evidence - oral and highly structured by the formalist constraints of the so called divine law - and a radically different Western evidentiary system oriented towards a Weberian Rationalisierung, marked by the triumph of the written and notarization of the modern law.
This will necessarily involve careful consideration of the circulation and use of evidence, for the reconstitution of the chain of correspondences between litigants, intermediaries and user or producer institutions of evidentiary elements. This should produce material to discuss the relevance of the boundaries usually drawn between worlds that seem to be permeable, such as those opposing the oral and the written, the private and the public. For example, the Ottoman judicial practice had established processes of validation and certification of private acts with values similar to the certificates produced by the public authority of the Latin notary.
Moreover, we will need to go beyond an analysis of evidence reducing them to their mere functions and original purpose - to convey the truth about the facts – in order to fully interpret them as tools of thought. The formal aspect of the evidence, the logic of their composition and communication, the rhetoric used in their language(s) and any external sign of validity may be used in order to evaluate, in a new light, the texture of legal cultures of different eras, territories and differentiated social groups. By considering these evidentiary pieces as instruments, the workshop will address the role of evidence in the analysis of communication processes and interpret it as a privileged scenario of legal and cultural creativity in a trans-Mediterranean space formed by different resolutions of commercial litigations.
Thus, the contributions addressing the following issues are particularly welcome:
- At what point in the legal procedure did the presentation and the examination of evidence occur, and on what criteria were they evaluated? What were the effects of this presentation on the outcome of the case?
- Are the evidences used in commercial disputes specific to the world of Mediterranean trade, or do they come from other legal systems and/or Mediterranean and extra-Mediterranean cultural worlds? Is it possible to link the resolution of commercial disputes in terms of other problems, such as solicitations for return of goods taken by corsairs?
- Do the materiality, nature and functions of these instruments relate to particular spaces, institutions or types of procedures?
- Beyond the usual formal classifications, what distinctions can be made between different written pieces attached to trials? Is there a type of documentation specific to the Mediterranean legal system that is mobilized more than others in order to win the case in a trade dispute?
- What is the role of private deeds in the resolution of these disputes? Under what legal, political or religious conditions, and in what particular contexts are they of greatest importance for the actors?
- Does the study of legal procedures from the point of view of the evidentiary elements confirm the hypothesis that the commercial courts would have had a more flexible approach than other courts vis-à-vis the written evidence?
- In case of confrontation between several regimes of legal evidence, how would the regulatory institution decide on the value of the pieces presented? Did mixed regimes exist that relied, perennially or ad hoc, on the articulation of different forms of evidence, or even on their hybridization?
- What was the process of validating the evidence? And what can this process tell us about the function of institutions, the effects of procedures and the legal culture of the actors?
- Finally, what were the main institutions issuing certificates and documents of proof of all kinds? Do particular schemas appear in the uses of these institutions by social actors? And what were the communication logics provided by the legal procedures? Were they defined by the circulation of the written pieces?
Contact: Prof. dr. W. Kaiser (Paris I): firstname.lastname@example.org.