Since 2021, at the Käte Hamburger Kolleg for Advanced Study in Münster, research has been conducted into the dynamic tension between "Legal Unity and Pluralism" throughout history. The first annual conference, which explored fundamental questions relating to the research carried out, was hosted by the centre’s two directors, Ulrike Ludwig and Peter Oestmann.
The conference’s main theme "exception and plurality" combined two terms that in themselves open up many interpretive approaches in an original fashion. While "exception" can be understood either empirically-statistically or normatively, as was emphasised at the conference, the term "plurality", and the current positive connotations it possesses, refers to an intensive research debate in which terms such as "Multinormativität" (multi-normativity: Thomas Duve) , "legal pluralism" or "Rechtszersplitterung" (legal fragmentation) are frequently employed and expounded upon. This combination of terms is, above all, original, but not only for jurists, as exceptions bring to mind rules, while plurality brings to mind unity. This first opposing pair enables a dogmatic hierarchization of legal material: exceptions precede rules on the one hand, but, on the other hand, care must be taken to avoid interpretations that are too broad. ALEXANDER DE CASTRO’s (Maringá) talk, who placed the development of Brazilian juvenile criminal law in relation to adult criminal law, provided insights into this. Plurality and unity belong rather to the linguistic arsenal of legal-political diagnostics, which in modern times increasingly marked the absence of codifications as pathogenic in order to cope with the negatively perceived plurality of legal sources in existence in the early nation-state. That this was able to become virulent within the context of monarchic rule as early on as the 16th century, was highlighted by ALAIN WIJFFELS’s (Leuven) talk on the organisation of the criminal justice system by Philip II in the Netherlands. Ultimately, the legal landscape remained diverse for many reasons. How this combination of exception and plurality might be analytically useful, is, at first glance, attractively puzzling.
The conference’s organizers therefore explained in more detail how they hoped that this combination could yield fruitful results. In the introductory talk given by ULRIKE LUDWIG (Münster), she addressed not only the centre’s basic concept, but also the question of the concept of law, a topic that resulted in numerous discussions between the interdisciplinary research community present, including scholars from both the social sciences and the field of (legal) history. However, the meeting was not only intended to provide an academic foundation that was heuristic in nature for the coming years, but also aimed for analytical insights, for which three guiding research topics were chosen: plural legal systems, the pattern of diversity in judicial practice, and plurality. PETER OESTMANN (Münster), before reviewing the individual topics of the talks to be given, illustrated how, based on a normative understanding, the differentiation of rule and exception within a codification can result into the delimitation of case groups and an ordering of legal plurality: Here, a non-trivial connection between exception and plurality was named, which was not dealt with in more detail at the conference, but will hopefully be taken up again elsewhere.
The highly-praised talk given by RALF SEINECKE (Frankfurt am Main), which was referred to several times by participants, was dedicated to "legal pluralism", an important competing concept to "Rechtsvielfalt" (legal diversity). The talk provided the participants with basic orientation by pointing to both the stability and porosity of "legal pluralism" as a research concept. In his view, the concept consists of four main characteristics, all related to one another, namely law without state, alternative law, inter-legality, as well as nomos. Using these attributes, a relatively solid ground for the classification of historical source findings can be established. However, Seinecke qualified the use of these terms as a “turn” and furthermore raised a pluralistic concept of law that promised a departure from a uniform, supra-temporal, metaphysical one. At the very latest, during the ensuing discussion, the time-boundedness problems of such pluralisations, as well as the connection with ideas of diversity/plurality became visible.
The commentary by REINHARD ZIMMERMANN (Hamburg) seemed to take the concept to absurdity by identifying (empirical) exceptions in European inheritance systems, e.g. the potentially unlimited legal succession under the law of the Federal Republic of Germany, which is singular within Europe. The commentator thus used several coexisting nation-states that he deemed to be pluralistic as a basis for distinguishing rule from exception. An approach that was not unamusing in nature, however: for it pointed to the fuzziness of the concept of pluralism. This supposed deficit can, of course, also be turned around. One participant emphasised that the concept was an open one. At the end of the first section, it remained questionable whether pre-modern phenomena can thus be better understood with the help of "legal pluralism", or whether "legal pluralism" as a topic should be left to historical discourse analysis, insofar as it deals with the intellectual currents of postmodernity.
In addition to the search for terms that are equally useable for the historical, legal, and social scientists participating in the research group, another of the conference’s main "threads" was the observation that conflicts of norms and the handling of them were a phenomenon that typically accompanied legal diversity. It was these conflicts of norms in which rule and exception were first effectively negotiated. One case group in which this aspect came into play, was the clash between the legal ideas of conquerors and those of natives.
MATTHIAS BÄHR’s (Dresden) talk focused on the conflict that arose from the English monarchy’s colonialist plantation policy. The monarchy allowed both Scots and English to settle in Ireland around 1600, resulting not only in the occupation of Irish land, but also rising tensions due to confessional differences. Using case studies, the speaker demonstrated the interplay of a plurality of norms and cultural difference. The English view that the native elite had no legal claim to their own land, was a heavy burden. The counter-strategies employed by the Irish consisted of mobilising alternative normative systems against this view: On the one hand, the native elite claimed to be members of the European aristocracy. On the other hand, they argued that as the English king claimed to be the king of Ireland, too, a patronage relationship between the Irish nobility and the king existed, and so their established positions would have to receive more recognition. However, this and other campaigns were not successful in the long run.
JAKUB URBANIK (Warsaw) changed setting and epoch by presenting how a conflict of norms between rulers and those being ruled was played out within the Roman Empire. For Rome-ruled Egypt, he addressed two petitions from farmers who wanted to cultivate the soil according to their country’s custom so as to receive exemptions from Roman taxes. What the conference’s audience found remarkable was the extent to which Roman law was able to respond to local circumstances. Indeed, references in Roman imperial law already existed with regard to non-Roman, indigenous customary laws. In the discussion, attention was drawn to the differences between the source terms mos and consuetudo. In the conversation following the talk, one participant also recalled the seminal studies by Ernst Levy on West Roman vulgar law and by Ludwig Mitteis on imperial law and popular law (Reichsrecht und Volksrecht). Possibly, the related older research discourses on the relationship between centre and periphery, or between classical and vulgarised law, i.e. laws adapted to late antique traffic needs, could provide further insights.
Conflicts of legal plurality are also borne out in courts and in front of administrative authorities in particular. Three talks dealt with this topic. QUENTIN VERREYCKEN (Louvain) examined the question of mercy and the law, a well-known legal-historical subject, based on French and English statutes and practices. Although the power to pardon had been based on Roman models, the forms of granting supplication differed greatly in the two different countries, as the speaker demonstrated using letters. The relationship between being pardoned and the law is certainly one of exception and rule, but whether two systems of norms really came into contact here, which were a prime example of legal pluralism, as one participant thought, or whether mercy through regulation somehow also had a legal quality, could not be definitively clarified. A participant's statement that showing mercy was sometimes understood as a royal duty was an argument in favour of an inner-systemic rule-exception relationship of (at least) limited scope.
YVONNE KLEINMANN (Halle) used a Polish city, half of which was inhabited by Christians and half by Jews, as a suitable framework for examining the institutional side of legal plurality. This also came into play in the sense of a plurality of legal sources, since Magdeburg law applied within the city. Of greater importance for the talk, however, were the city's judicial institutions, which had been formed by the nobility, the council, the guilds and the Jewish community. According to the speaker, who based her theses on several case studies, the core of the administration of a multi-religious city was knowledge and linguistic competence. The relationship between the coexisting courts had to be understood less in terms of competition and more in terms of division of labour. Within the discussion that followed, some expressed a warning against too broad a use of a diagnosis of legal plurality, as some supposed collisions may simply have been the result of problems enforcing different laws. Also worthy of consideration was the reference to the resolution of normative collisions through compromise. Did the agreement between the parties form a second-order exception to the two primarily conflicting norms?
An excellent example of plurality with multiple meanings was provided by CHRISTOPH LOHRKE (Münster), who discussed the marriages of German citizens married to foreigners around 1900. In the modern constitutional state, the administration is so intensively oriented towards the goal of subsuming the law that, from a scholarly perspective, less amalgamation of the law, other norms, and the personal views of officials is to be expected here than in the Ancien Régime, where it is already heuristically difficult to reconstruct exactly how officials dealt with plural rights. The appliable law in each case was decided at the registry office (Standesamt), where administrative officials and members of different cultures met. The speaker drew attention to an ambiguous side of the temporal change in the practices of the enforcement of norms. On the one hand, with regard to the registrars, one can speak of a surge in the increase of professionalization. More and more, being a registrar was a full-time job, registrars began to found their own associations, and professional literature emerged in the form of manuals and periodicals. At the same time, it became noticeable that the application of the law had been massively influenced by gender perceptions and the trustworthiness of men and women was viewed differently. For example, women who wished to marry a Turkish national were required to recite aloud a text to prove that they were sufficiently informed about Turkish law. Men did not have to recite such a text. The discussion contributed to the fact that citizenship law had functioned as a central means for unifying the law in the first place. Generally speaking, the lecture pointed out the difficulties of dealing with legal plurality. Even the compilation of the relevant legal sources posed significant obstacles for the (historical) parties concerned, especially when these sources were written in languages rarely mastered.
Characteristic for the conference, besides its main themes, was an intensive, exemplary culture of debate. Discussions were held at the end of each talk, each section and the entire conference. Their fast-paced nature and their content cannot be adequately related here. However, the final discussion’s opening statements are of particular note. Whereas Zimmermann compiled a typology of legal plurality, which will hopefully also be included in the transcript of the conference, FRANZ-JOSEF ARLINGHAUS (Bielefeld) and ANDREA NICOLAS (Münster) emphasised the perspective of those acting in particular. In doing so, the distinction between right and wrong was raised, as well as the shaping possibilities of the participants involved (forum shopping). Overall, the participants showed a strong desire for interdisciplinary exchange and agreed upon common concepts and terms. Whether it was norm-scientific, discursive and sociological legal concepts that were raised, or whether an in-depth argument about indigenous cultures took place; nobody would have dreamt that a connection between conceptual ideologies and playing mini-golf could have existed before the conference. As was to be expected for the first annual conference held by a research collective that is at the beginning of its research journey, some things are yet to be defined and examined in greater detail. Despite the impressive breadth of material on norms and cases, the inner connection between exception and plurality in particular still requires more detailed analysis. The collisions of norms, however, provided an important connecting link already – where diverse systems of norms come into contact, rules and exceptions must be decided upon and made distinct from one another.
Conference overview:
Ulrike Ludwig / Peter Oestmann (Münster): Begrüßung und Einführung
Session 1: Plurale Rechtsordnungen
Moderation: Reinhard Zimmermann
Ralf Seinecke (Frankfurt am Main): Ein Pluralistic Turn?
Matthias Bähr (Dresden): Plurale Normen und die Praxis der Differenz in der Frühen Neuzeit: der Fall Irland
Jakub Urbanik (Warszaw): Public Land Leases Turn Inhumane. Imperial Grace and Local Custom(s), or the Status of Local Law under Roman Rule Revisited
Reinhard Zimmermann (Hamburg): Kommentar und Diskussion
Session 2: Rechts- und Gerichtspraxis
Moderation: Franz-Josef Arlinghaus
Alain Wijffels (Leuven): Einheit statt Vielfalt? Die Kriminalpolitik der Strafjustizordnungen von Philipp II. für die Niederlande (1570)
Quentin Verreycken (Louvain): At the Crossroads of Norms and Exceptions: The Regulation of the Power to Pardon in Late Medieval England and France
Yvonne Kleinmann (Halle): Wissen – Kompetenz – Arbeitsteilung? Zur Praxis christlicher und jüdischer Gerichte in einer frühneuzeitlichen polnischen Stadt
Franz-Josef Arlinghaus (Bielefeld): Kommentar und Diskussion
Session 3: Gesellschaftliche Diversität und Rechtsvielfalt
Moderation: Dorothea Schulz
Alexander de Castro (Maringá): The Codes of Minors as Gateways to an Underground Penal System: the Legal Treatment of Underprivileged Children and Adolescents in Twentieth-century Brazil (1927–1990)
Christoph Lorke (Münster): Normkonflikte und Rechtspluralismus: Eheschließungen mit Ausländer:innen in Deutschland als verwaltungsrechtliche, privatrechtliche und interkulturelle Herausforderung (1870–1930)
Dorothea Schulz (Münster): Kommentar und Diskussion
Gemeinsame Abschlussdiskussion
Reinhard Zimmermann, Franz-Josef Arlinghaus, Andrea Nicolas: Eingangsstatements
Debatte im Plenum