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): wolfgang.kaiser@univ-paris1.fr.
