Conclusion: urban discourse and legal constraints
It now seems clear that the study of language must be central to any attempt to trace the development of maritime law in the early sixteenth century, not just for the obvious reason that our knowledge of the subject has to be drawn from what is said about it in written records, but also because lawful behaviour appears to have been conceived of as behaviour susceptible to acceptable description.88 As intellectual historians have shown, linguistic conventions constrain both the ways in which behaviour can be justified and the range of behaviour people can indulge in when they may need to provide justifications for their actions.89 Aware that they might have to appear before the bailie court to defend themselves, mariners and merchants had to be mindful of the tales that might be told there and to act accordingly.
On the one hand, these tales described established practices, yet on the other hand, the practices had come to be established because there were tales that could be told about them. It was the approbatory description of standard ways of doing things, or more accurately the availability of approbatory descriptions, that gave normal practice its normative dimension. Sometimes, inevitably, practices were raised for discussion before they were fully established, and it was on these occasions that resort was taken to what looks more like the reasoning of lawyers. Propositions of law were remembered – and possibility remains that they were recited from written sources – yet even then law does not appear to have been regarded as something distinct from the factual situations to which it might be applied. However clearly propositions of law may have been recalled, what made them binding was not their origin in authoritative sources but their absorption into the usage and custom of the burgh. Recalling propositions of law formed part of the process of negotiating acceptance of new tales. These moments of uncertainty, when a degree of innovation occurred, are especially interesting for historians intent on tracing the development of the law, but they should not be allowed to give a false impression of the nature of the law that was being developed.