Fellows

Dr Jonathan Benney is a graduate of the Asia Institute of the University of Melbourne, Australia. After working at a lecturer and researcher in Australia, he spent two years as a research fellow at the Asia Research Institute at the National University of Singapore. His research explores activism, political communication, and new media in contemporary China. While at the LOEWE Research Focus, he is examining the stability maintenance process in contemporary China: that is, the development of stability maintenance (weiwen) offices at central, provincial, and local levels, each of which has a diverse range of aims generally targeted at avoiding and mediating social disputes. This movement has characteristically been interpreted mainly as a top-down process aims at facilitating political stability and eliminating dissent. Dr Benney aims to add to this analysis by assessing the work of stability maintenance offices and staff as a means of grass-roots conflict resolution and local government innovation, particularly in rural areas. Dr Benney will move to the Institute for US/China-Issues at the University of Oklahoma in August 2013.

Peripheries of Europe, including Hungarian Kingdom, represent specific legal spaces showing similar traits of evolution that could potentially help in building further hypotheses with respect to pre-modern alternatives of conflict resolution. Within this research project, strategies of law of evidence are in focus. Concentrating on the procedural aspects of conflict resolution in medieval Hungarian Kingdom, it namely appears that more than finding the real truth, the aim of the conflict resolution was to settle the case through the compromise of the litigants. One finds many examples of such a dispute settlement, which basically does not search for truth, but rather represents giving up on truth. The means of evidence could have hence played a role completely different from the current perception. Not even the evidence in the form of written documents might have had the power of absolute evidence, nor the testimony of parties or witnesses, since the evidence was often followed by an oath or another type of ordeal. Such a transfer of rational evidence into the world of supernatural could have been an intentional act aiming to leave the platforms of truth and lies, and rather to resolve the latent conflict between the parties. The “evidence” thus seems not to have served to reveal the truth, but rather served only as a means of reconciliation of parties and restoration of peace and justice.

The utilization of marine resources has always been accompanied by international conflicts on various levels of aggravation. In particular during the 19^th and 20^th century international fishing conflicts reached sometimes close-to-war or even war-like levels with the so-called Cod-Wars between Iceland and the European distant water fishing nations as a prime example.

While the conflicts themselves occurred normally on the open sea outside of the visibility of the public, these conflicts often involved international courts and arbitration mechanisms and finally fostered the development of international law, in particular the Law of the Sea. Anyhow these conflict resolution mechanisms often played only a minor role when it came to the resolution of the actual conflicts. Most of the international conflicts related to the utilization of marine resources were finally solved by direct bi- or multinational negotiations.

The research project to be carried out within the context of the LOEWE research focus will focus mainly on the following paradox:

While international conflicts on the utilization of marine resources during the 19^th and 20^th century often resulted in the introduction of new judicial conflict resolution mechanisms or the modification of already existing mechanisms and institutions, these institutions were not only not able to prohibit future conflicts, but more important would not have been even able to solve or avoid those conflicts on which they have been developed.

In fact it seems that despite of a wide array of available judicial conflict resolution mechanisms international marine resource conflicts seem to be basically solvable only via extrajudicial mechanisms.

The research project will therefore focus on the following topics while using in particular conflicts that arose in the context of distant water fisheries as case studies:

• What are key-characteristics of marine resource conflicts that distinct them from other international conflicts?
• How did actual conflicts foster the development of international law and related institutionalized conflict resolution mechanisms
• Why are these mechanisms and institutions are not able to even solve conflicts very similar or even identical to those conflicts that served as the key examples for their development?
• What role played the fact that these conflicts occurred on the oceans and therefore in an area often recognized as an area with only limited means of jurisdiction?

Answering these major research questions will hopefully allow me to identify the key-weaknesses of the development of international judicial conflict resolution schemes up to now in the context of marine resource utilization conflicts and such to identify areas that need to be addressed in the context of the future development of such judicial instruments, so that judicial conflict resolution schemes can gain prevalence above non-judicial instruments.

Pakistan has been at the core of international politics and security studies for more than a decade but little attention was given to the law and the judiciary in respect to governance. Justice and Governance in Pakistan wants to provide an overview of the practices of law and its rationales based on first-hand data collected in the four provinces of Pakistan, the capital territory of Islamabad, and the disputed territories of Gilgit Baltistan and Azad Kashmir. It will delve on the rights and obligations stemming from the (post-)Islamic state and investigate how state and non-state law complement and overlap one another in the everyday governance. This project will analyse the polarization between centralized and decentralized governance, and provide examples of the translocal role of the everyday legal practices that tend, in certain cases, to perpetuate non-state law both in South Asia and in the diasporas. It will scrutiny the adequacy of the legal pluralism approach to address the anxiety of state-centered legal frameworks vis-à-vis customs and personal laws and it will explore the potential of an integrated approach that takes into consideration the historical ideals of normative humanism.

The main puzzle of this project is the emergence of new liberties within the context of colonial and semi-colonial domination. The research is focused on the emergence and application of religious liberty during the nineteenth century. In this period, the protection of religious minorities in international legal treaties was both the attempt to diffuse the European principle of religious liberty and an instrument of hegemony in unequal European/non-European relations. In other words, while religious liberty emerged as a novel emancipatory right it was as well an aspect of colonial practices. The project is focused on the legal relations of selected European and Asian countries. Taking the unequal protection of religious minorities in bilateral treaties as a vantage point, I will research the legal discourse to illustrate how this aspect of the unequal treaties was theorized and further developed in international legal thought. The project is a potential contribution to various literatures, such as the debates on hegemony and religious liberty, center and periphery, international intervention and responsibility, etc. The project builds upon two previous works. On the one hand a chapter on religious liberty as narrative to justify humanitarian intervention in the nineteenth century which is already finished and now under review. On the other hand a broader research on religious liberty in bilateral treaties between selected European, Latin American and Asian countries in the nineteenth century. This latter project is still ongoing and forms part of the work of the Max-Planck-Fellow Group “Governance of Cultural Diversity” directed by Matthias Koenig at the Max-Planck-Institute for the Study of Religious and Ethnic diversity in Göttingen.

The juridical regimes of justice or those deriving from interactions between cultures represent different issues which cross contemporary juridical experience. However, even if they are potential autonomous objects of interest for the legal history, they seem to be able to be considered, by way of a new heuristic, in a unitary reconstructive horizon.

Above all, it is a matter of investigating the characteristics of the juridical dimensions of justice as well as the processes of juridical dimensioning of justice. Here justice is considered not just as a philosophical issue, rather as an issue which is at the base and which explains the configurations of law (with reference both to the unwinding of the juridical thought and to the legislative options and judicial practices) in different times and contexts.

The perception of justice, indeed, knows different declinations during the past centuries; all this because of complex social, political, economic, anthropological and cultural factors. This is particularly true for the field of conflict resolution which, in such a perspective, assumes a central relevance.

Just think of the medieval and modern age: here, society with its pluralistic articulation expresses a demand for a complex justice, crossed by fields of tension which, due to the lack of primacy of politics over law, have still unsolved repercussions on the judicial moments for conflict resolutions; here the law that is used to exercise justice is a tool of justice determination. If we have a look at the criminal justice, only to mention an example, the datum is evident: on the one hand, a State need of justice (ne crimina maneant impunita) emerges, in order to punish disobedience to the law of the prince; on the other, a communitarian exigency of negotiated justice which aims instead at satisfying the victim and settling the conflict persists. All this situates different trial rituals such as accusatio and inquisitio, summary trial, transactio in the field of action of criminal justice often intertwining them one another; all this tends to characterise, in a peculiar way, the function of judges (just think of the regimes of the arbitrium iudicis), and some decisive knots of the trial like those concerning evidence and punishment.

On the contrary, in contemporary times, we assist to the rise of monistic legal systems with a society that organises itself around the value of individual freedom and with a political power that expresses itself on the basis of the principle of State sovereignty, affirming its primacy over the law (by way of the primacy of the statute law over the other sources of law); here the quest for justice expressed by society, but filtered by the law maker in general and abstract norms, arrives already axiologically determined to the judicial phase; the law that serves to exercise justice becomes a tool for administering justice. Not by chance, just to remain within our example, within the field of criminal law there happen the transformation into ideal-types of the accusatorial and inquisitorial trials, the codification of trial itinera, the enucleation of substantive criminal law (in its turn the subject of codification) from the procedural law, and the privatisation of the transaction practices for conflict settlements.

The different characterisation of the quest for justice (and this can apply to all the fields of justice) has relevant repercussions on the characteristics of the trial and judiciary institutions; it interests the structure of the trial iter (the profiles of flexibility/predetermination of procedures; the regimes of separation between substantive and procedural law, etc.), the typology of the subjects involved in the conflict (individual / communitarian dimension), the role of its main actors (role of the judge and of the parties), the articulations of the jurisdiction (the correlation between ordinary and extraordinary as well as that between public and private).

We can then say, in order to pick up the thread of our reasoning, that to consider the juridical dimensions of justice means to turn, with a different horizon of meaning, to the study of the procedural configurations and of the judiciary apparatuses in time.

Moreover it is a matter of understanding the historical ties of our interpretative paradigms and favouring useful conceptual recoveries for an up-to-date look at the current characteristics of the issue of conflict resolution.

The aim of the particular investigation course which we are illustrating here is, however, to specifically observe such juridical phenomenology of justice in relation with an issue which is, in its turn, a drive of discontinuity and construction of the historical experience: the interaction between culture. The meeting, the facing and the clashing between cultures in complex societies – dynamics which here interest especially for its juridical repercussions (even though we do not want, by way of this, to ignore the qualifying anthropological, sociological and philosophical implications of our matter) – are often been the occasion for founding and developing a new law; juridical history seems to be able to offer analyses capable of enlightening the ways and experiences of such a process of renovation. Here we are interested in understanding how the quest of justice changes, the relationship between justice and law, which juridical mechanisms are involved, which regimes of legal protection derive from it and for which subjects, which transformations concern the law, etc..

Just think in particular of the phenomenon of people circulation, whether it is linked to migratory phenomena in a strict sense or more generally to dynamics of a geopolitical type which favour the production of complex societies. Such phenomenon – especially if observed as a problem of legal dimensioning of justice – may highlight its repercussions on the characteristics of the juridical system, with reference to the issue of circulation of rights and also with reference to the circulation of law (here understood in its wider meaning from transplant to transfer, translation, entanglement, hybridisation, etc.).

The field of action, built in such a way, lends itself to be investigated following historiographical and methodological perspectives recently come to light which intend to consider the contribution of global and transnational perspectives for the development of the history of the European law.

Such course of investigation seems also to be able to favour a dialogue between the history of law and the sciences of contemporary law. Even though it is empirically formulated for a research of figures of the experience, it can indeed represent also a fertile ground for problematizations of a general theoretical type, favouring the contact between the history of law with issues of the current juridical experience, which ask a question of new sense.

Mediation within social welfare courts is currently practiced in ten German states. As a result of § 275 Abs. 5 ZPO (civil process order) amended in the “Law for the promotion of mediation and other processes of extrajudicial conflict resolution”, mediation within courts will in future be part of the role of the ‘amicability judge’, who is not authorised to make decisions: The amicability judge can “use all conflict resolution methods including mediation”.

The potential and requirements of consensual conflict resolution were reflected upon in the projects mentioned on mediation within courts. While the work up to now has focussed on the reliability of mediation within courts and the search for areas of use in social law, the subject of investigation here is how effective procedural law in particular is in managing the task of consensual conflict resolution. How is the implementation of requirements for consensual conflict resolution normatively controlled and which reforms may be necessary in order to exhaust the potential of consensual conflict resolution in proceedings in social welfare courts? In terms of methodology, this will build on the understanding of social and procedural law as control sciences. This perspective makes it possible to introduce the dogmatically separate behavioural norm content of administrative procedural law and procedural law to mutual discourse and to involve non-legal functional conditions of mediation within courts, parts of which have been evaluated as part of mediation projects. The effectiveness of the arrangement of the choice between conflict resolution options in court proceedings and the control of the phases of the consensual conflict resolution proceedings up to agreement will be investigated.

Furthermore, mediation within the courts and the amicability judge model will be integrated into the existing approaches in the theory of conflict resolution within the study of law.  This part of the investigation is intended to initiate mutual dialogue in debates regarding both mediation’s contribution to the modernisation of the judiciary and the characteristic of mediation within courts as a ‘hybrid creature’ made up of conventional conflict resolution delegation and ADR. In contrast to a widely-believed hypothesis, mediation is not always a ‘law-based’, means of self-policing in civil society and as such is not necessarily to be placed outside the state sphere. Instead, the ‘state as guarantor’ can and should provide adequate judicial means for consensual conflict resolution in the relationship between citizens and the state.

Mediation is – certainly following the German Mediation Act of 21^st July 2012 – a recognised process for extrajudicial conflict resolution and one which is enjoying increasing application in many areas of life. In terms of content, the benefit of mediation is the wide variety of methods and conflicts, which allow it to be used specifically depending on the context and conflicting parties. Exaggerating slightly, it can be said that anything is allowed which is conducive to dealing with conflict by mutual consent and which does not injure anyone. Having said that, standards which are also adhered to by legislators are forming in the nationwide mediation associations.

As a recognised consultancy process, transaction analysis (TA) offers an ethically-founded and practicable foundation, based on the conception of autonomy and contract, on which the mediator can carry out the work he has been commissioned to do (with further TA concepts).

As part of the fellowship, the extent to which

1. transaction analysis and ‘the’ mediation are built upon identical ethical and philosophical foundations and
2. the concepts provided by transaction analysis are usable in mediation

is to be investigated. The field of application to be examined in this is conflict management within and by organisations. Here, the conflict-oriented perspective is increasingly considered sensible, in order to actually exploit the potential seen in conflicts for economically successful and satisfactory cooperation. The application of mediation (founded in transaction analysis) requires an organisational framework which allows individuals to make use of and develop their personal conflict skills, and to make them available for dealing with the organisation’s matter to a certain extent. Whether this sounds like a purely win-win situation will be the subject of more detailed investigation.

The case study investigated during the fellowship stay in Frankfurt is part of an ongoing 4-year postdoctoral research project on mercantile conflict resolution in Danzig, c. 1460-1580 (NWO-VENI), conducted at Leiden University. The focus of the study is conflict resolution between Danzigers and traders from other Hanseatic towns, as well as non-Hansards (Englishmen, Hollanders, and to a lesser extent Scots and Poles). The project combines diplomatic and legal history approaches and sources, and thereby fits very well within the framework of the LOEWE Research Focus.

In my general project, the three angles of analysis are the policy (development of norms), practice (the actual conflicts and modes of conflict resolution) and perception (contemporary evaluation of the efficiency) of mercantile conflict resolution. The trade related conflicts are examined on three levels: individual, group, and large-scale conflicts. Many of the analysed cases combine these levels. Depending on the stage of the conflict and the changes of context, the selected conflicts appear both as legal and as diplomatic matters.

The sources used for the analyses are diverse. The material consists of letters (to and from rulers and other towns), reports, decisions of Hanseatic towns, entries in town books, testimonials, legal processes, as well as drafts of decisions by the overlapping jurisdictions in Danzig. A smaller part of the material is published (Hanserecesse, Niederländische Akten und Urkunden and other), but one of the objectives of the project is to employ primary archival sources which have received little or no attention in research.  The bulk of these primary archival sources have been collected in the State Archives in Gdańsk, Poland. In addition, archival research has been conducted in Copenhagen, Lübeck, London and Deventer, and an investigation in Brussels, Amsterdam and the Hague will be undertaken in the near future. To date, ca. 4000 pages of archival sources have been collected and are currently being analysed. Especially the sources from the sixteenth century have proved to be a treasure trove for highly informative and complex cases, relevant to the study of legal, diplomatic and economic aspects of pre-modern commercial exchange. These cases are unknown to general scholarship yet fit very well into the current discussions on the institutions of trade in pre-modern Europe (Greif 2006, Ogilvie 2011, Gelderblom 2013), which can be seen as one of the most vital branches of New Institutional Economics in a historical perspective.

The point of departure for the case study analysed in Frankfurt is a process file of 420 pages in the State Archives in Gdańsk, supplied by published sources and possibly further research in the archives in Brussels. I have already done a preliminary investigation of the sources, and literature research has shown that the case has received hardly any attention until now.

The background for the conflict was the Nordic Seven Years’ War (1563-1570) in which Denmark, Poland and Lübeck fought with Sweden over the supremacy in the Baltic. Seven ships, sailing in 1564 from Holland with Portuguese salt, headed for Riga when (in their version of events) they were captured by Swedish warships and taken to Stockholm. The shippers were made to sell their goods at a low price, and then released. When they subsequently sailed to Danzig, an agent and plenipotentiary of the Danish king had them and their ships arrested on charge of providing supplies to the enemy. The Danes (backed by the Polish authorities) demanded that the shippers should be tried before the magistrate of Danzig. Although neither the ‘ratione delicti’ nor ‘domicilii’ applied, the shippers decided to follow the summons, asking the regent of the Netherlands for support. The resulting trial was recorded in the proceedings,  preserved in the State Archives in Gdańsk. The trial ended, or more precisely was suspended with a ‘sententie interlocutaire’ on the instigation of the Polish king in 1565, and was to be resumed later. In the following year, several negotiations were conducted with the Danish king, resulting in a decision that the matter was to be taken up after the war: matters became more complex since there were more cases of alleged Swedish assaults. Moreover, a vague promise was obtained that the legal claims might be dropped and the conflict might be resolved ‘in friendship’, i.e. through mediation and diplomacy. Since there are no indications that the case was resumed in a formal legal framework, the latter solution was probably chosen.

My analysis of how law and diplomacy were entangled in this case will follow two lines:

1) The direct involvement of the representatives of the Danish and Polish king in this trial were unusual in the Danzig context, and can be observed from its onset (the demand that the trial was to take place in Danzig) to its suspension. An in-depth study of the proceedings and post-trial sources can show whether it was indeed a court trial, or a stage for a diplomatic conflict. The latter is a working hypothesis. Moreover, the role of mediation in and outside the court, as well as the choice of mediators will be analysed.

2) The shippers repeatedly presented their views on the way in which trade and legal procedures should function in general, and more specifically in wartime. Their perceptions and differences of expectations will be investigated against the changes of the large-scale context: more ships found their way to Sweden, there was a threat of the closure of the Sound by the Danish king, and Danzig got engaged in disputes with the Netherlands over grain trade bans. Rulers and towns were weighing individual claims against collective interests and often the former had to make way; yet in some contexts, an individual case was a bargaining card. Which arguments were used for the diplomatic and legal choices taken in conflict resolution?