Continuity, Legal Principles and Roman Law. The Case of General Average

Abstract

Some commercial rules might appear universal and almost atemporal. This appearance has sometimes favoured theories on global commercial practices, and especially the idea of a universal lex mercatoria developed by traders for traders without external influences. The pitfalls of such an approach have been shown time and again in literature. A different and perhaps more difficult issue is to distinguish general principles from their practical application in pre-modern commerce. Blurring them together has favoured general narratives of universal rules. Perhaps more importantly, it has also sidelined the underlying issue of why some general principles are indeed attested almost universally. If general principles may pass unscathed across time, the practical rules deriving from those principles usually do not. Those rules need to be interpreted within their historical and economic context: this may help making sense of their diversity and variety. When looking at the environment in which a rule was applied, however, there is often the tendency to discount the legal features of that environment. After a period in which customary commercial rules remained largely oral, they were written down. This process is often neglected in the scholarly analysis of the rules. Straightforward as it might seem, however, the simple fact that an oral rule was written down did leave profound marks in the rule and its working. Moreover, once written down those rules often began to be studied and interpreted by learned jurists, who looked at them through the lens of legal concepts often quite alien from the environment in which the rule was originally produced. Roman law is a case in point, as during the early modern period being a university-trained jurist by and large meant having studied Roman law. The progressive re-writing of medieval rules and their inclusion in compilations of growing length and complexity often led to a revision of those same rules, in which Roman law concepts acquired an importance they often did not possess before. The study of those commercial rules, therefore, must take into account both the social, economic and technological circumstances in which they were produced and the intellectual and legal environment in which they were later interpreted and re-fashioned. If this second kind of environment is discounted, it may stand in the way of a better understanding of those very rules. One of the reasons that suggest taking this environment into account is not usually discussed, as it is somewhat counter-intuitive. Jurists imbued with Roman law doctrines had themselves some trouble in leaving them aside – even when they wanted to. This was the case especially in those parts of Europe whose legal character was defined by Roman law: there, to reach a solution in line with non-Roman commercial practice, some Roman-law reasoning had to be employed all the same. This article does not offer a methodological analysis that should then be applied to the sources. Rather, it shows those methodological problems as they emerge from the study of the sources, which will be the both the point of departure and of arrival in the analysis. To do so, an ancient legal institution was chosen: that of General Average. General Average is a voluntary sacrifice of a part of the cargo (and/or of a part of the ship) made during navigation in order to save the rest. It is a principle that has amply withstood the test of time, and which looks apparently simple – and deceptively consistent. The challenges of seafaring are unquestionably similar across space, and – despite technological advancements – time. A storm might break out during a voyage between Izmir and Venice just as much as it could while sailing from Riga towards Lübeck, or from Bordeaux to the Cinque Ports in England. In each case, if cargo was jettisoned or some masts were cut to light the ship, the economic damage had to be spread among all pa