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Analysing coherence in law through legal scholarship

Periodic Reporting for period 3 - CLLS (Analysing coherence in law through legal scholarship)

Reporting period: 2020-01-01 to 2021-06-30

The ERC project Coherence in Law through Legal Scholarship analyses the coming into being of coherence in legal scholarly writings, for the theme of collateral rights and insolvency, in the period between around 1500 and 1900. The problem of coherence in law is very important, because of the contemporaneous debates over the functionality and consistency of legislation. A methodology to assess coherence in law has never been developed. The project takes it as starting point that it is possible to craft a methodology to assess underlying consistency in legal solutions from an empirical standpoint. The project moves away from debates over the systematic or non-systematic qualities of law as such (these pertain to legal theory rather than empirical assessments of law). Legal scholarly writings are a very good source to test a methodology of assessing coherence. The notion of coherence is split up into different aspects, and each of these aspects are checked for in legal scholarly writings dealing with specific themes. These themes are insolvency and security interests, which are chosen because of their economic importance. It is assumed that coherence in rules regarding these themes was crucial for the functionality of the rules. The project starts from two hypotheses. Both are concerned with the establishing of coherence over time. It is assumed that, for the theme of collateral rights and insolvency, rules were perfected through different stages. At the bottom level of market practices novel ideas could emerge, or contracts could be used to circumvent existing rules. If those practices became widespread, they could be acknowledged in municipal legislation or procedural practice before the municipal courts. But for implementation of new legal ideas, the crafting of the rules by legal scholars was crucial. Secondly, it is hypothesized that the addition of legal scholars was to cut out exceptions and make rules as straightforward as possible. Underlying this hypothesis was the idea that for collateral rights and insolvency, the customs of merchants have never been relevant; also, municipal and central legislation was rather minimal meaning that the only source of law in which rules were exposed was legal scholarship. Also the contents of rules used in contractual practice and at the municipal level were thoroughly academic.
In the first four years, work package 1 has been executed and work packages 2 and 3 have been started. The first work package was concerned with the set-up of a methodology to trace coherence in legal scholarly writings of the Early Modern Period. This was done on the basis of all legal scholarly writings produced in Holland in the sixteenth and seventeenth centuries. The focus was on rules relating to security interests and insolvency. All rules (procedural, substantive, of different areas of law) have been catalogued and valued for their connections. Compared to the initial project description, the assumptions and hypotheses have for a large part been confirmed. It was indeed found out that structure can be found in scholarly texts. The modes of interconnectedness (that is, perspectives from which to appraise coherence) that were developed in the preparatory stages of the research have been very valuable. In fact, two modes stand out as being extremely important. The first one is rephrasing interconnectedness. Coherence is then defined as relating to the inclusion of similar elements. This in several instances has been detected as a marker of coherent legal thought of the author writing down rules. This was found out with regard to the difficult match between concepts of the late medieval doctrine, which had derived from Italian municipal legal practice, and the Holland practices. The Dutch authors spoke of “bankruptcy”, whereas the Italian medieval legal scholars talked of “flight” or “fallite”. However, connections were established because behind these labels were rules that were similar both for Roman law, Italian municipal practice and the Dutch practice. The concepts of “lucrativa” and “onerosa”, for example, have proved to have been a cement between rules regarding fraudulent conveyances but also seizure and criminal insolvency. The use of these terms reflected consistent legal thought on behalf of the authors that made use of them. Another one is “distance interconnectedness” (coherence in this mode is viewed as resonating arguments used in the same source materials): the use of source materials was indeed assessed as an important marker for the resulting views of legal scholars. In particular the tension between a humanist approach, which stuck close to the Roman source texts, and a method that took the late-medieval scholarship into account stand out. These results have been presented in eighteen publications and debated over at three panels and two workshops.
The project has yielded some results that go beyond the state of the art. The processes of legal change in seventeenth-century Holland, with regard to the themes of security interests and insolvency, have been analyzed. It was commonly thought that commerce was the main driver in the creation and perfection of legal rules. In fact, scholars often created law. They achieved coherence in doing so, while assembling new and existing rules into a whole. For example, Dutch authors distinguished between moratoriums that had been granted by the prince (in that case interests were suspended, secured creditors had to comply and the consent of creditors was no requirement) and moratoriums granted by the creditors (interests did not stall and secured creditors were exempted from the effects of the moratorium). This distinction was very coherent: the Dutch scholars crafted this distinction while integrating legislation with academic writings. But most importantly, this was done in a balancing act, preserving the existing proceedings but at the same time changing their effects so as to integrate them on the basis of the underlying idea. This result is very novel. Furthermore, it was found out that the efforts to establish coherence were determined by strife between different levels of government (central, municipal, different courts) and professions (judges, legislators, advocates, curators). As a result, it was necessary not only to distinguish between sources of law (scholarship, legislation), but also to draw up a scheme of different types of legal scholarly writings (academic, practical, formulaic). This has helped in finetuning the conclusions. The legal scholarly additions were mainly academic, and the search for rules of thumb was not driven by practice (or following on from strife among groups of legal actors), but rather by an aim to provide law as detailed and consistent as possible. Furthermore, it has been demonstrated that coherence can be assessed in legal scholarly writings, reflecting consistent legal thought of authors. A careful reconstruction of ideas allows for assessing structure in legal writings that transgress the boundaries of legal Begriffe, even areas of law. It is expected that in the project research that remains to be done, the methodology to assess coherence will be refined further.
PhD defense ceremony Maurits den Hollander 22 June 2021