Normative hybridity in Antwerp marine insurance (c.1650-c.1700)
De ruysscher, D. (2015). Normative hybridity in Antwerp marine insurance (c.1650-c.1700), in: Donlan, S. et al. The Laws' many bodies: studies in legal hybridity and jurisdictional complexity, c1600-1900. pp. 145-168 In: Donlan, S.; Heirbaut, D. (Ed.) (2015). The Laws' many bodies: studies in legal hybridity and jurisdictional complexity, c1600-1900. Duncker & Humblot: Berlin. ISBN 9783428147151. 269 pp., more |
| Abstract | The developments relating to marine insurance in the city of Antwerp, in the second half of the seventeenth century, demonstrate the dynamic relation between the relevant living law consisting of normative practices that were used by merchants residing or trading in Antwerp, and the law in action regarding the subject, which was the judicial practice of the Antwerp City Court of aldermen. By the middle of the seventeenth century the mentioned living law of merchants on the one hand, and the official law of the city of Antwerp on the other, had drifted apart. In the second half of the 1600s, when marine insurance revived in Antwerp, the law in action, of the Antwerp City Court, soon caught up with mercantile practices. Following a confrontation with the mercantile novelties, the Antwerp judges adjusted older official norms that had been written in the urban law compilation of 1608, to elements of living law. The Antwerp aldermen could not be too strict in their approach of marine insurance practice, for the commercial stakes were high, and a severe policy could turn the marine insurance economy into a scam-ridden and uncontrollable black market. The living law of merchants had become involved with the standardization of terms of contract, and the generalization of certain insurance products, which before 1650 had been offered against high rates of premium, but which were now considered as elements that pertained to every marine insurance contract. This breaking away from official law had not made the living law entirely immune to interference of judges. Even though merchants considered insurance contracts as being self-reflexive and mediation was preferred as a method of dispute resolution, actions and ensuing agreements were dependent on what the official law provided. In the 1650s and 1660s, the Antwerp aldermen bended the existing written law of the city, but this new approach did not end up in an assimilation of legal orders concerning marine insurance. The living and official law did not become completely identical as to the contents of rules. The aldermen did not integrate the customs of merchants into their judicial practice, but continued to set out standards for behaviour, now on the basis of newly acknowledged mercantile techniques, usages and customs. The law regarding mercantile contracts cannot be reduced to a customary law made by merchants, and neither should official law be regarded as out-of-touch with commercial realities. Interactions between the living law of merchants and the official law were most natural: each one had an impact on the other. Whether they became intertwined or more opposed to one another, depended largely on the attitudes of legislators and courts. |
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