The CLLS-project started in January 2017 and it will last until the end of 2021. The project encompasses three work packages. In the first one, 'Coherent legal writings' (2017-2019), the focus will be on generalizing legal scholarship of the sixteenth, seventeenth and eighteenth centuries, belonging either to the pan-European tradition of the ius commune, or having strong regional implications (Roman-Dutch law, French legal humanism, usus modernus Pandectarum).
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A second work package, 'Commercial hubs and coherence through legal scholarship' (2018-2021), tackles the dynamics in the establishing of coherent norms among different legal sources in cities of commerce, and in relation to contextual factors. This WP will be concerned with three case studies (three cities of trade): Amsterdam, Lyon and Frankfurt.
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A third work package, '(In)coherence in codifications' (2019-2021),
compares the results of WP1 and WP2 with the contents of codifications that came after, and with generalizing legal scholarship that was written after the issuance of codes.
Coherence in Law Through Legal Scholarship (CLLS)
What?
Why?
In continental Western Europe, the law as regarding security interests and insolvency proceedings is fundamentally changing. In many respects, the rules of nineteenth-century codes are being challenged. Non-possessory pledges, transferable liens and pre-insolvency proceedings are commonly being presented as innovations, but they have antecedents in the law that applied before the age of codifications. Analyzing this law of the Old Regime is therefore functional for present-day legal solutions.
Why?
The hypothesis
The hypothesis
Collateral rights (security interests) were changing from the sixteenth century onwards, especially in continental North-Western Europe.
Two developments, which were supported by and/or caused from within legal scholarship, stand out. The first is the development towards general collateral. ‘General collateral’ means that all assets of a debtor are legally – even in the absence of contractual stipulations – considered to be the common pledge of his creditors. This development correlated with a higher valuation of movables than before. In regard of proceedings, the creditor could easily obtain attachment and expropriation of assets in compensation for his arrears. In short, the novelty of general collateral meant that default was considered a sufficient cause for sequestration of a debtor’s assets. A second change concerned the growing derivation of interests from movables or funds and the third-party effects that ensued therefrom. Abstracted security interests were crafted by legal scholars that loosely related to assets. They provided claimants with benefits on assets that the holder of the goods is not aware of.
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The hypothesis of the project states that there was a trend of growing coherence in rules applying to collateral rights, which was directed from within legal scholarship, but which proffered different solutions
according to regions. Not only were rules made congruent, scholars endeavoured to make them easier to handle by abolishing exceptions. In so doing, legal authors perfected the practices of commerce. The latter were not sufficient, because they needed legal body. The products of legal scholarship were rules of thumb, which were manageable in commercial practice.
What is coherence?
The project's core notion of coherence is considered as touching upon different aspects of consistency. These different aspects are expressed with 'modes of interconnectedness'. Coherence can be interconnectedness between two rules, which is evident when both rules share components (one mode is therefore 'rephrasing interconnectedness'). Another way of looking at coherence is to count the distance between rules, principles or supporting arguments (e.g. if author A cites or refers to author B, who based his argument on author C) (hence 'distance interconnectedness'). Also, coherence can be considered as the result of exhaustiveness (many sources are cited, expressed in the mode 'source interconnectedness') or as the exact opposite, i.e. the suppression of exceptions and the choice for certain sources over others (as expressed in the modes of 'reductive interconnectedness' and 'authoritative interconnectedness').
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