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This special issue of one of the leading German historical journals features case studies and a theoretical model to conceptualize multinormativity in the early modern period. The overarching concept that holds the contributions together is that of "normative competition" (Normenkonkurrenz), developed by Hillard von Thiessen. It offers a dynamic, interactive, and actor-centered approach to the co-existence of potentially conflicting normative orders in the early modern period. Von Thiessen draws attention to the manifold ways in which subjects consciously or unconsciously contribute to the shape and operation of norms. He offers an alternative to existing models that try to describe and explain normative change in the early modern period, such as Gerhard Oestreich’s model of "social discipline" (Sozialdisziplinierung) and Wolfgang Reinhard and Heinz Schilling’s model of"confessionalization" (Konfessionalisierung). In von Thiessen’s view, these models are inadequate. They are implicitly indebted to Max Weber’s paradigm of the gradual rationalization of Western civilization, and they assume a static opposition between norm-creating authorities and norm-receiving subjects. The models of "social discipline" and "confessionalization" start from the belief that citizens’ behavior gradually and homogeneously adapted to the norms laid down by the authorities. Recent historical scholarship has demonstrated that the top-down imposition of norms by state authorities and religious institutions often failed. A gap existed between the norms on the books and the norms in action, to the extent that daily life deviated from norms imposed by central authorities like the state or religious institutions in the first place. Von Thiessen, however, wants to avoid narratives of failure or success. Rather than starting from an antagonistic vision that pits institutional norm-producers against passive norm-receiving subjects, von Thiessen emphasizes the synergistic role played by all actors in the production and implementation of norms. ...
This article tries to outline possible research topics in the field of comparative 20th century legal history between Europe and Latin-America. It seeks to examine changes both in Labour and Property law as core areas where social conceptions began to influence »liberal« private law. Focussing on an example from Mexican law in the aftermath of the revolution which took place in the first decades of the 20th century, it is argued that new conceptions in both fields were discussed using similar conceptual patterns in Europe and LatinAmerica. In the reaction of the jurists from both continents to the challenges of the new century lies a possibility for fruitful comparison. Conducting research in such a framework can also produce comparative results on the interplay between constitutional law and private law – especially when the focus lies on Germany and Mexico, where new constitutions at the beginning of the new century did evoke reactions in the discourses about private law. With regard to methodology it has to be observed that such research has to go far beyond the traditional pattern of »reception« of legal concepts from Europe in Latin-America, and to highlight more complex ways of transition of legal forms between the two continents.
In Germany, the termination of employment contracts is a central and often intensely debated legal issue today. This is not surprising since employment termination entails substantial risks for the person affected and threatens the very foundation of his or her economic existence. This is why both politics and legal dogmatics place the individual engaged in dependent work at the centre of concern as a subject requiring protection. In Germany, labour law ("Arbeitsrecht") emerged as an independent field of law focusing on the persona of the dependent worker ("Arbeitnehmer") and its typified normative ascriptions. This process took place in the course of the 20th century, as the concept of the principal requirement that employees be protected against unforeseen or unjustified dismissal became increasingly established, giving rise to very intricate regulations. Social security is a guiding motif of this legislation which regards contract termination primarily as a risk. It is often not considered that this constellation is a very new one. Defined conceptions of the interests of the parties to labour contracts also existed before 1900, but social security was then not a central criterion. At that time, many people perceived the termination of their employment as an opportunity rather than primarily as a risk. Employers, on the other hand, aimed to keep people in their service for as long as possible. In the late 19th century, the enforcement of labour performance by legal means and normative instruments, which no longer plays any role today, was still an important issue. This provides occasion to investigate the freedom of working people from the perspective of the history of law, whereby this article focuses on the history of the German-speaking territories. ...
"Nothing is more soothing to the nerves than a detailed discussion of homage and lordship …" If William de Briwerr, fictional English knight and narrator in Alfred Duggan’s historical novel Lord Geoffrey’s Fancy, is right, then a conference held in April 2011 will have set the participants at ease. Following the call of the Konstanzer Arbeitskreis für mittelalterliche Geschichte and the conference organiser, Karl-Heinz Spieß, they had gathered to discuss the "Formation and dissemination of feudalism in the Empire and in Italy during the 12th and 13th century". The conference proceedings have now been published, and I suppose William de Briwerr would have approved of the intensity of discussion contained therein. ...
On February 20 at the Max Planck Institut für europäische Rechtsgeschichte, the Legal Historian and member of the Constitutional Court of Peru, Dr. Carlos Ramos Núñez, presented a crucial intervention on the problems that face the current constitutionalism in Latin America. Faced with a heterogeneous group of historians, philosophers and theoreticians of law, interested in the vicissitudes of Latin American juridical evolution, the political-juridical tensions of the Peruvian present served him as a framework to raise various constitutional problems and controversies. ...
The article aims to investigate, under the aspect of translation, the process of legal appropriation and reproduction of international law during the course of the 19th century. An occidental understanding of translation played an important role in the so-called process of universalization in the 19th century, as it made the complexity of global circulation of ideas invisible. Approaches proposed by scholars of Postcolonial, Cultural and Translation Studies are useful for re-reading histories of the circulation of European ideas, particularly the international law doctrines, from a different perspective. The great strides made in Translation and Cultural Studies in the last decades, as well as the discernment practiced in the scholarship of Postcolonial Studies, are important for a broader and more differentiated understanding of the processes of appropriation and reproduction of the doctrines of international law during the 19th century. The present article begins by tracing the connection between translation and universalization of concepts in 19th century international law; after a short excursus on the Western idea of translation, the attention is focused on the translation of international law textbooks. The conclusive section is dedicated to a comparison between Emer de Vattel’s Droit des gens and Andrés Bello’s Principios de Derecho de Jentes.
Five hundred years ago, Hernán Cortés launched his invasion of Mexico (1519–1521), which culminated in the fall of Tenochtitlán. A little over a decade later, the Inca realm was destroyed by Francisco Pizarro’s clan in Peru (1532–1533). The decisive factors and myths of the Spanish "conquests" are treated in the pertinent historiography. Recent literature has had less to say on the subsequent phase of early colonial history, when the Castilian Crown and its representatives in the "New World" tried to reinforce their dominance – essentially against the interests of the first generation of conquistadores. This tumultuous period is the subject of Gregorio Salinero’s book, which re-examines disobediences, political trials and governance in Spanish America, as the subtitle reads. It is an augmented version of Salinero’s La trahison de Cortés (Paris 2014), now skillfully translated into Spanish by Manuela Águeda García Garrido. The author, professor of history at the Université Paris 1 Panthéon-Sorbonne, is well known for his research on transatlantic relations between Spain and Spanish America. ...
This paper reflects on legal pluralism. How did medieval societies incorporate both unwritten customs and written law at the same time? How did they constitute the process of finding justice? What is the essense of legal pluralism, and will it help us understand the situation of Taiwan’s indigenous population?
We aim to solve these problems by taking a closer look at medieval Saxony: for around 400 years, both laws given by the authorities and traditional customs in Saxony worked fine in parallel. The latter were put into writing by the legal practitioner Eike von Repgow around 1230 for reasons unknown. We refer to his collection of laws and customs of the Saxons as the Sachsenspiegel ("Mirror of Saxons").
While Saxons certainly differed from Taiwan’s indigenous population for many reasons, such as the supposedly weaker egalitarianism among the Saxons than among at least some indigenous groups, the two show some remarkable similarities nonetheless. Just like the Taiwanese Gaya, the Sachsenspiegel’s spiritual origin raises the claim to validity. Furthermore, comparing the handling of a person’s sale of inherited property, the legal situations in the Sachsenspiegel and Taiwan’s unwritten customs resemble each other. The heir can transfer only property he acquired personally. Furthermore, the author discusses the different character of courts and procedure under oral law in contrast to written modern law.
Finally, the paper concludes with some remarks about a learned commentary on the Sachsenspiegel written around 1325, combined with an outlook on the possible future of Taiwanese customs.
Circulation of legal knowledge, ideas, norms and practices has taken place throughout legal history, shaping legal experiences in different corners of the world. Over the past couple of years, approaches to the study of such circulations have changed radically. Legal historians have adopted approaches from cultural studies and transnational history in order to gain a deeper understanding of the complexities inherent in these processes. ...
The relationship between past and present has been the subject of controversial debates in historical research time and again. In 2013, to give a prominent example, Philip Alston in a review essay discussed the issue of "Does the past matter?" with regard to a debate on the origins of human rights. The debate was dedicated to the controversial question of "[h]ow far back can we trace the genealogy of today’s international human rights system". In this review, I would like to rephrase this question to ask instead to what degree the present matters for historical writing. Other than in the work of Alston, this is not meant as a question on the contingency and path-dependence of history, but rather as a reflection on how historians describe and evaluate the past and what role knowledge of the present may have in this context. ...