“It’s also about developing new narratives”

Interview with the Directors of the Käte Hamburger Kolleg

The Käte Hamburger Kolleg “Legal Unity and Pluralism” officially began its work in June 2021. Its academic concept is based on the insight that legal unity and legal pluralism should not be studied separately from one another, but rather in their mutual relationship of tension. Through their many years of engagement with the theme, historian Prof Ulrike Ludwig and legal historian Prof Peter Oestmann gradually developed the idea of creating a space to study the phenomenon in its entire breadth across epochs and disciplines, a space where scholars from different disciplines can enter into dialogue with one another and develop new models of interpretation. In this interview, the Kolleg’s two directors describe what is special about the research approach chosen, the opportunities and difficulties that interdisciplinary research entails, and the goals that they have set themselves for the first funding phase.

How did the idea of applying for a research Kolleg on “legal unity and pluralism” actually come about? What were your initial thoughts regarding content and research strategy?

Oestmann: I have been preoccupied with the issue of legal unity and pluralism for almost 25 years now, and we have also been discussing it intensively among historians and legal historians in Münster for over five years. Ulrike Ludwig and I then began the more detailed phase of preparing for the application two to three years ago.

Our starting point is the idea that law always has opposing tendencies between unification and fragmentation, and this in different times and spaces. However, since the terminology used in the different disciplines is inconsistent, individual findings remain isolated and exciting cross-disciplinary discussion is rare. In terms of research strategy, our aim is therefore to stimulate dialogue within the humanities, to link historical disciplines with those concerned with the contemporary situation, and not least to overcome Eurocentric perspectives.

Ludwig: It’s also about developing new narratives. Legal pluralism has been discovered everywhere in recent decades, meaning that legal unity, which actually long played the more important role in historical research in connection, for example, with processes of state building, has been pushed somewhat into the background. What we need, and especially for comparative debates, is a descriptive model for different, historically mutable constellations of legal pluralism and legal unity. This can only be achieved by first listening to a great deal of discussion, and the Kolleg is an ideal space for this.

Oestmann: Disciplines that work historically are often a little afraid of theory-building and generalisations, because the special case is always more complicated. We would already have gained much if we manage to build models or a typology here.

Ludwig: It’s true that reality is highly complex. At the same time, though, it’s very unsatisfactory if you can only ever refer to individual cases. A great deal changed between 500 and 1900, and that has to be explained. If we can’t offer anything here, then we always end up with a simple scheme that has at its outset a great legal pluralism that was then gradually unified, with everything then being fine, since this supposed development is also normatively charged. But as scholars in the humanities we cannot help using our findings to counter this story and to tell a more plausible one, also with regard to social debates.

So legal pluralism is a central theme in historical research?

Oestmann: Legal unity is a classic theme in research. All signs point to harmonisation in the 19th century: there are suddenly legal codifications, uniform weights and measures, and the unity of the nation state is also supposed to be reflected in legal unity. This idea has been challenged for some time now, and it is now believed that the unitary state of the 19th century was either a historical exception or never actually existed in this form. This, in turn, brings into sharper focus phenomena of legal pluralism. For example, the institutional weakness of the pre-modern era is now being turned into a positive and presented as a model for the European Union. But scholars in ancient history have for quite some time now also discussed different layers of law, and anthropologists and sociologists point to the omnipresence of legal pluralism in the modern period.

Ludwig: What is new about our approach is that we explore not only legal pluralism or legal unity, but the dynamic relationship between the two. This means on the one hand that we examine how phenomena are interlinked in historical development – for example, when phases of unification alternate with those of pluralisation. And on the other that we also need to reflect more on how much what we see depends on our own point of view and yardstick of observation. For example, the spread of Roman law in Europe, when seen from close up, led to a new pluralism with specific local manifestations of law. When taking a more distant perspective, though, we can discern the formation of a larger legal area where similar principles prevailed.

Why did the “Käte Hamburger Kolleg” format funded by the Federal Ministry of Education and Research (BMBF) seem particularly suitable for your project?

Ludwig: Such a Kolleg can help us network the discussions, and that is crucial for us in our aim of bringing together the diverse research on legal unity and pluralism that exists, and of developing something new together. So it’s about creating a space where scholars can talk to each other.

Oestmann: … and these being scholars – that’s what the third-party funder wants – who already have a lot of experience in the field, i.e. at least a doctorate. And they should still learn something new in the joint discussions and be released from other duties so that they can focus on their own research.

Ludwig: I think the format is in a way also a reaction to current developments in the academic system. The chance to learn as much as possible in a field that really interests you no longer happens very often. And that’s exactly why we need such spaces, where you know that if you’re doing research on a certain theme, then you have to go there. It should be clear after twelve years that Münster is the place that stands for the theme of legal unity and pluralism.

Why is Münster the ideal location?

Ludwig: The conditions here are very good with three professorships for legal history alone, but also with a historical science that is very open to legal questions. The Kolleg will expand this discussion group in Münster to include an international group.

Oestmann: There is also the University’s internal advisory board with other discussion partners from three faculties who are interested in the theme. And this tradition has grown in Münster: there have been historically-minded Collaborative Research Centres here for over 50 years, and the Cluster of Excellence “Religion and Politics” for almost 15 years. Research in the humanities is also extremely important in how the University perceives itself, and we feel a great deal of goodwill on the part of university management.

There is lively interdisciplinary discussion at the Kolleg. What do you hope to gain from working with researchers from other disciplines, such as anthropology, sociology, and applicable law?

Oestmann: We hope to gain insights into areas that we ourselves know nothing about. Sociologists, for example, primarily observe the effects that law has, which we can then use to look beyond normative pluralism to social diversity and the connection between the two. On the other hand, anthropological studies of contemporary societies may also tell us about pre-state conditions in other epochs, if we assume that law has very specific characteristics in regions where statehood does not function. This at least is our initial question: Does law have certain basic structures that are supra-temporal and that can then be transferred to the early Middle Ages, for example?

Ludwig: In addition, area studies and anthropology present us with comparative cases from outside Europe, and these can help us to move away from the master narrative of European development that sees this development as the “norm”. Europe is indeed our focus of interest at the Kolleg, but for the purposes of “Provincializing Europe” we see it as one of many world regions.

Oestmann: Europe is seen as a typical example of the path of unification towards a nation state with clear borders, a constitution, and a penal code. While not necessarily wrong, this grand narrative overlooks many things. There is still a great need for research, especially in areas where people thought they already knew everything. It is worth making comparisons with non-Europe, if only to put our own certainties into perspective.

Ludwig: Incidentally, it is also important to think of Europe more broadly than just Germany, France, and England. We have projects at the Kolleg on countries that have featured far too rarely in comparative discussions: for example, Bulgaria, Sweden and Finland, Poland, and Lithuania.

Interdisciplinarity already begins with the two of you. As a historian and a legal historian, how do you perceive the relationship between your disciplines?

Oestmann: I think there is traditionally a distorted perception of the other discipline, which has led to misunderstandings. Historians always thought that legal historians only deal with laws that no longer apply, and are not interested in the reality of law. Conversely, legal historians thought that historians deal with social phenomena such as deviance or crime, without knowing what the laws of the time permitted or prohibited. There has now been a clear rapprochement, however, insofar as legal historians also deal with legal practice, and historians also deal with norms. There are certainly still a few who carry on in the same way, but I have only had positive experiences. In Münster, there has been close cooperation for a long time anyway.

Ludwig: After all, we are both representatives of our disciplines who value the other very much and explore what we can learn from each other. And of course it’s true that a legal training makes you look at laws in a completely different way than a historian. It is essential to be aware of one’s own limitations in understanding. The great advantage of historical approaches, on the other hand, is that we can often look at many more sources, carry out serial surveys, and thus examine social phenomena more broadly. In short, we need each other in order to develop a holistic understanding.

Whether it is the EU and Poland arguing about the primacy of European law over national law, the different ways that the vaccinated and unvaccinated are treated in the pandemic, or the introduction of a global minimum tax to drain tax havens – many of the issues currently being discussed are related to legal pluralism or efforts to unify the law. How far can the Kolleg’s research also help us to understand the present-day better?

Oestmann: The historical sciences can promote a relaxed approach to contemporary phenomena, as they show that such phenomena are not as unique as we think, and can be found in many epochs. But we also have to say self-confidently that our central task is to increase historical knowledge, and not to exploit this knowledge or to answer questions about the present.

Ludwig: I think that the current debates about legal pluralism are often linked to a morally charged process of scandalisation. We need a calmer, more objective, and more informed way of dealing with such phenomena. If we can show that there have always been forms of legal pluralism and legal unity, with all their advantages and disadvantages, and that how one evaluates this depends very much on one’s own perspective, then we will have already achieved much. We must explain that legal pluralism is also normatively contained, that there are strategies to make it legally secure, and that it also comprises regulated procedures with a certain degree of expectability.

Does the 19th-century idea of unity still linger in these moral condemnations of legal pluralism?

Ludwig: It is indeed primarily all about an idea, but one that can also be something good – if we think of the Universal Declaration of Human Rights, for example. A whole series of highly charged moral ideas of legal unity came down to us in the 19th and in the first half of the 20th century, but they should be distinguished from legal reality.

Oestmann: This is a discourse that gives different answers in different contexts, these answers also being normatively anchored in different ways. Take human rights, for example. Of course we consider slavery wrong and the equal treatment of men and women right, and we also confidently represent these normative demands to the outside world. In other matters, however, things are not so clear. I have the impression that in this country there is a widespread need for harmony and an aversion to conflict. This is evident in the widespread hostility to federalism, for example, when once again there are calls for educational laws to be unified. But there is also another, liberal approach that sees pluralism as an opportunity to try out different models.

The first fellows started at the Kolleg on 1 July 2021, initially as part of a digital fellowship due to the pandemic. How would you assess the joint work done so far?

Ludwig: The fact that we were able to award digital fellowships was a great way to help us get going in the first place. But I would also say that being able to come together in the flesh as it were has allowed us to put the idea of the Kolleg into practice in a very different way. Zoom and co. will always be limited in terms of fostering lively discussions. Nevertheless, there were hardly any difficulties in switching from digital to on-site contact, because we already knew each other well enough to be able to continue our discussions straight away.

Oestmann: For me, the transition from digital to on-site contact was associated with a feeling of liberation and a strong motivational boost. We also need informal formats, e.g. small working groups and conversations over lunch, which can be more creative than plenary meetings. But of course there will also be large conferences in the near future.

Finally, a question about your immediate goals: What would you like to achieve in the Kolleg during the first funding phase?

Oestmann: We would like to clarify the diverse phenomena in such a way that we can develop a typology. For this, we first need a kind of glossary that defines the important terms on which there has been no consensus so far. This would give us a standard that we would no longer fall short of. Second, we are planning a central collection of sources including historical examples that we consider particularly relevant in terms of legal unity or pluralism. This could also be used in teaching in the future.

Ludwig: In order to gain knowledge, we first need to understand where we actually misunderstand each other. It may be that the anthropologist understands by one and the same term something completely different from the medievalist. I therefore hope that in the first four years we will succeed in developing a common descriptive language that takes into account the different disciplines, epochs, and not least the different working and source languages. This is a challenge that should not be underestimated; if we succeed, we can already be very happy.

The questions were posed by Lennart Pieper.