Junior Research Group

In a late 19th century history of commercial law which has become a classic, Wilhelm Endemann’s Studien in der romanisch-kanonistischen Wirtschafts- und Rechtslehre, the author admonished that the first autonomous treatises on commercial subjects, which appeared in the sixteenth century, could not be fully grasped without reference to the canon law tradition. He noted that famous jurists such as Sigismondo Scaccia (c. 1564-1634) constantly judged commercial laws and practices not only from the perspective of secular jurisdiction (forum externum), but also from the point of view of conscience, which was understood as an internal court (forum internum). In other words, Endemann perceived that the modern division between ‘morality’ and ‘law’, or, for that matter, between ‘religion’ and ‘law’ failed to do justice to the story the sources wanted to tell him. Not only were theologians the guardians of an extra-judicial mode of conflict resolution in the so-called court of conscience, the very conception of ‘normativity’, ‘conflict’ and ‘jurisdiction’ turned out to have been different at that time.

Endemann’s story about the history of commercial law recalls the pluralistic nature of the early modern legal universe and the fundamentally Christian background against which the Western legal tradition emerged. During the Late Middle Ages and the Early Modern Period, the Catholic Church could be considered as a global institution which produced different kinds of laws and exercized jurisdiction in the shadow of the rising State (Duve). As a matter of fact, the norms produced by the Church in those times were not limited to internal administrative affairs, marriage or judicial procedure. Rather, property, contracts and business were of the highest concern to a Church that claimed to possess the keys to paradise. The hundreds of manuals for confessors and treatises on contracts, justice and laws which appeared in the Early Modern Period bear witness of the tremendous attempt made by canon lawyers and moral theologians to create a new legal framework that would enable merchants to come to grips with the ‘moral’ and ‘legal’ aspects of the rise of new forms of business (Prodi). The sixteenth century saw the rise of commercial capitalism in the wake of the discovery of the Americas and the concomitant increase in the Church’s preoccupation to issue rules that could govern commercial transactions around the globe and that could save the merchants’ souls.

This research project wants to shed new light on the history of commercial law by taking seriously the essentially religious normative universe from which commercial law drew its origins. By confronting the work of concrete canonists and theologians (e.g. Summenhart, Dr. Navarrus, Lessius) with the work of early modern lawyers (e.g. Scaccia, Felici, Klock) on particular topics (e.g. equity, partnerships, money-exchange), it intends to answer questions such as the following: 1) How did the emerging ‘secular’ discourse on commercial law relate to the canon law tradition; alternatively, how did forum internum and forum externum interact as modes of conflict resolution?; 2) Was there a connection between changes in the evaluation of specific commercial practices and simultaneous developments in general contract law?; 3) Were theologians the ‘articulators and ideologists of a global structure of horizontal relationships between holders of the subjective rights of dominium – a structure of human relationships that we have been accustomed to label “capitalism”’ (Koskenniemi)?

This research project proposes an analysis of the development of modern contract doctrine and of its foundations in Protestant theology, focusing mainly on Germany, The Netherlands and England during the 16th and 17th century. Previous works have already well examined the role played by canon law and Catholic moral theology in this field. But what about the contribution of Protestant theologians and jurists to the law of contract? Moreover, was there a decisive interaction between forum internum and forum externum in the development of modern contract doctrine?

For a long time, English law was characterised by a strict division between common law and equity. Institutionally, this manifested itself in the separation between the proper jurisdiction and the Court of Chancery, which was the definitive authority in equity jurisdiction between the 14^th and 19^th Centuries.

The Court of Chancery developed out of the special jurisdiction of the king. Its main function was to moderate the rigid formalism of common law through more extensive legal remedies and exceptions. In reasoning its verdicts, it referred less to the term equity and much more to the term conscience.

However, the term conscience was not understood subjectively during the constitutive time of the Court of Chancery, but was predominantly characterised by the universal moral concepts of the Catholic Church. This understanding is certainly suggested by the judges of the Court of Chancery, who, until the Reformation, were often also bishops. The question presents itself, however, of the extent to which these moral concepts merely served as a pretext to justify the court’s own verdicts.

The aim of this research project is therefore to get to the bottom of the role of Catholic moral theology in the evolution of equity law. Possible correlations between moral theological concepts of the time and processes such as decisions of the Court of Chancery will be investigated. In this, the integration of originally non-state behavioural norms into common law, which was already differentiated at the time, will be particularly observed.

The history of the Court of Chancery has been investigated comprehensively in Anglo-American legal history. However, the focus of this was often on the historical origins of various legal instruments which are still in use today. If the principles of decision-making were examined at all, this was usually by drawing on extrajudicial statements from the judges involved. The “Canonistics, Moral Theology and Conflict Resolution in the Early Modern Period” junior research group now offers the opportunity to investigate the specific influence of canonical sources on the evolution of equity law.

Finally, the history of equity jurisdiction will be used to find out how socially accepted universal moral concepts can influence conflict resolution and contribute to the acceptance of a state legal system.

In the Late Middle Ages and Early Modern Age, the Sacra Poenitentiaria Apostolica was the highest doom seat of Latin Christendom for clemency matters. Those who aspired to become priests despite the stigma of their birth, wanted to turn their backs on cloister life despite profession, or wanted to secure the existence of a marriage endangered by canonical obstacles, turned to the Roman “fountain of grace”. The flood of petitions heading to Rome was therefore not driven exclusively by concerns for salvation, but also by tangible economic and social conflicts. All supplicants shared the same reason for their conflict situations: violation of the statutes of general Church law. The Penitentiary thus acquired the role of a pacification body, which resolved legal conflicts in the granting of theological grace, so to speak.

The vast majority of petitions registered and granted in Rome were requests de matrimonialibus. The existential dimension of this specific type of conflict is revealed by the use of dispensations as a procedural instrument of evidence: A papal dispensation which legitimised the parents’ marriage could secure the descendant his inheritance. The spectrum of “legal marriages” as reflected in the Penitentiary register stretches from the recognition of marriages afflicted with obstacles and the dissolution of existing couplings to the annulment of promises of marriage given under duress. The foundation of this medieval marital law was formed in the 12^th Century at the point of intersection between canonic law and moral theology. New moral theological acquisitions, such as the doctrine of free will, entered the legal understanding of marriage via consensual marriage. At the latest when the status of marriage was fixed as a sacrament in the Fourth Lateranum, the church’s venue jurisdiction in matrimonial matters was inviolate.

The curial matrimonial registers have already enjoyed well-founded statistical and empirical evaluation as a fundus of everyday, social and mentality history. Little attention has so far been paid to the process itself in partibus, which was initiated by Rome delegating of the checking of the veritas precum to local judges. In this, a look at the local transmission of court files could allow interesting conclusions to be drawn on the essence of the process between internationality and regionalism. The following questions will guide the work: How could Rome ensure that local processes were decided in its favour? How much freedom did the Penitentiary grant to the court in question? Do local notions of the law stand out in the process or the witness interrogations? A three-country comparison between court documents from one English, one Southern German and one Upper Italian diocese, with the inclusion of curial transmission, form the archival basis of the investigation. Both relatively good transmission and profoundly different legal traditions are anticipated here. Investigating the Penitentiary as a European court avant la lettre, the process order between standardisation across the whole area and individual local situations is a suitable way to work out how forms of pre-modern moral-legal conflict resolution worked.

On January 20th 1585, the III Mexican Provincial Council began in Mexico City, capital of the Viceroyalty of New Spain and head of the ecclesiastical province of México, which included Mexico, a mayor portion of Central America and the Philippines. One of its particular intentions was to establish the application of norms set by the General Council of Trent. The Mexican Provincial Council lasted nine months and promulgated a body of decrees. The originals of the Council’s records are being held by the Bancroft Library (Berkeley/Ca.); in 2006-2009 they were published in a four volume-edition.

Due to the initiative of Archbishop Pedro Moya de Contreras, everybody could present his doubts or disputes to be resolved by the Council. Consequently, a large variety of petitions was presented, many of which the Council resolved in actu. The major questions were treated by consultatio, i.e. they were handed over to a committee of theologians and jurists and, in some cases, other learned persons oder institutions such as the religious orders. In many cases, the reports of these committees influenced the wording of the Council’s decrees.

The research will focus on the arguments put forward in the consultations in order to gain a better understanding of the Council’s jurisdiction in religious and seculars matters. This analysis will take into account the specific relation between ecclesiastic and secular authorities resulting from the Crown’s Patronato. It will focus on the jurisdictional conflicts between the various actors who presented their disputes to the Council: bishops, clergy, cathedral chapters, religious orders, royal and viceroyal authorities.

Our investigation will focus on connecting historical evolutions in the sphere of law, morality and conflict resolution to the secularization debate going on in philosophy of religion. The aim is to use the theories of Gauchet, Girard e.a. to explain and to put into perspective historical data from the legal and moral theological traditions. We see two possible approaches:

A)    Secularization seems to find its origin in the axial revolution, launching an ever increasing centrifugal thrust in intellectual history by differentiating what was once one (Voegelin). Not only the pluralism in our legal tradition, but also the detachment of morality and law, seem to be offshoots of this revolution, whose impetus was reinforced by the specific and instable symbolical foundations of Christianity as described by Gauchet.

He identifies the unmediated personal contact with God as a subversive force that undermines not just the church, but religion itself as the determinant of the social fabric. Could we interpret the forum internum, where one faces God and is called to account for one’s sins, as an institutionalized form of this personal contact with God, and as such as a contributing factor to religion’s demise? Does not the fact of the ‘juridization’ of the forum internum in moral theology attest to an attempt of the church to fixate and control this subversive power of personal association with the divine? If yes, then the stress on sin may have contributed to a world focused exclusively on crime, where sin has become irrelevant.

The tensions building up between the internal and the external forum but also their mutual contamination or osmosis (Prodi) might be understood as an example of Girard’s mimetical struggle, where antagonists increasingly come to resemble each other before difference is restored in a fatal blow to one of both parties, in casu the internal forum.

B)    Girard sees the end of religion in the disruption of scapegoating mechanisms and the increasing ability to recognize and protect scapegoats. Primitive religion’s narrative was told from the perspective of the persecutors. Christianity however is told from the viewpoint of a scapegoat and dismantles scapegoatism. Open for investigation is the question whether our legal sources reflect such a changing mindset. And if they do, how did this effect conflict resolution in the new world, where primitive and Christian worldviews have met?