Local knowledge and legal cultures
The position reached so far is that although there is some evidence of an ability to think like lawyers among those involved in court cases in Aberdeen in the early sixteenth century, the evidence is too slight to justify an attempt to reconstruct other cases in a way that would make them satisfy the expectations of lawyers.
The mariners and merchants who adjudicated on their own affairs would no doubt have agreed with any suggestion put to them that the law consisted of rules, for they did occasionally express their thinking in such terms. For the most part, however, they do not seem to have thought in terms of legal abstractions that could have been related to the facts of cases. The entries in the records in which some semblance of legal reasoning can be found are vastly outnumbered by those in which normative thinking is embedded in factual observations, which is understandable given that the normative appears to have been identified with the normal. The only justification for treating the rare cases in which those involved may have reasoned like lawyers as paradigms for the many in which such reasoning could only be read into the records would be if the records of the majority of cases are unintelligible otherwise. Yet the entries relating to maritime trade can be understood in a different way. A feature common to entries in all three of the categories distinguished earlier is that mariners and merchants were reporting each other’s actions to the court, often in the expectation that something would be done about them.66 They reported one another to the court in much the same way as children tell tales on each other to their parents or teachers. This should not be taken to mean that the mariners and merchants were engaging in some form of puerile behaviour, as if they lacked the sophistication of the trained lawyers who were appearing around the same time in other courts. Just as smart children appreciate that for the tales they tell to be effective they need to resonate with the presuppositions of their parents or teachers, so mariners and merchants must have appreciated that reporting one another to the court would only produce the results they wanted if the court shared their understanding of how things were meant to be done.67 The tales told had to be tellable tales, and in principle an accumulation of tellable tales may be as effective, extensive and elaborate as an assemblage of applicable rules. If the task of the legal historian is seen as the recovery of tellable tales, or as the investigation of the presuppositions shared by those involved in the court process, then there may be some prospect of an account of the maritime law adhered to in Aberdeen remaining true to the character of the source material available.Some readers may be reminded of the account of adat adjudication in Indonesia originally presented in the Storrs Lectures delivered by Clifford Geertz in 1981.68 Noting that adat was generally perceived to be a kind of custom, Geertz warned that the confusion caused by the concept of custom among anthropologists was exceeded only by the confusion it caused among lawyers. Among anthropologists, custom tended to be reduced to the level of practice, habit or a way of doing things – in other words, to a matter of fact – whereas among lawyers it tended to be turned into abstract generalisations or written rules – in other words, into a kind of law. 69 Adat, Geertz insisted, was bound to be misconceived by anyone who thought in terms of a binary opposition between fact and law. As he saw it, adat consisted of acceptable representations of reality, or ways of describing the world that were believed to be appropriate. The purpose of adjudication, he believed, was to work towards a consensus on how far something that had happened could be described as something that ought to have happened.
Viewed in this way, the legal process was not merely �functional’ but deeply �cultural’, in the sense that it was a means not merely of determining disputes but also of generating social awareness. Geertz famously described people as animals suspended in webs of significance that they themselves had spun, and maintained that the task of the cultural anthropologist was to explain the significance of the webs spun by social groups, not by �translating’ them into supposedly corresponding terms, concepts and symbols drawn from other cultures, but by engaging in a necessarily hermeneutic process of �interpretation’.70 Law, he argued in his Storrs Lectures, was one of the types of web people spin, and it needed, if it was to be properly understood, to be interpreted in ways that rendered the thinking of its users intelligible, not simply restated or reworked in keeping with the thinking of external observers.71 Properly understood, law was intrinsically cultural. The point was not just that the development of a culture could be affected by law, or even that a developed culture could involve expectations of law, but that law was itself a cultural development. As Geertz put it, law needed to be perceived as �a species of social imagination’.72Geertz also envisaged law as a species of �local knowledge’, by which he appears to have meant two things. The first is that law in a form like adat does not consist of abstract generalisations that can be applied logically to separately discovered facts, but is bound up with the facts of circumstantial cases.73 Knowledge of this type of law is unavoidably localised because it cannot be abstracted from the cases in which it is found without being turned into something it is not. A natural response for some lawyers to make is that �case law’ is a category with which they are all too familiar, and that extracting general rules from particular decisions is what they do best.
But could the mariners and merchants who raised cases, served as bailies and sat on assizes in Aberdeen have made the same response? To have been able to extract transferable rules from earlier rulings they would at the very least have required access to those rulings. Written records were obviously being made, and parties frequently asked to be provided with copies of entries affecting them.74 The existence of these records could have changed the character of the law mentioned, so long as they were used as a source of reference.75 The reality is, however, that while there were occasions on which earlier rulings were drawn to the court’s attention, this only occurred when the rulings had been made at previous stages in the same proceedings.76 Earlier rulings do not feature anywhere in the entries examined here as what lawyers call �judicial precedents’. The most that may be suggested is that people involved in litigation sometimes remembered previous cases, which would have given any rules they formulated the fluidity commonly taken to typify the operation of an oral tradition of usage and custom.77 It has been seen that when a proposition of law was enunciated in one petition, it appeared to build on a decision delivered in a previous case, and the proposal is to treat regularities found in other entries as evidence of legal customs.78 Different entries related to different cases, distinct from each other in their factual circumstances, yet the entries were often expressed in strikingly similar language. The proposal is not to restate these similarities as abstract generalisations of a kind that could be used to supplement the small number of propositions of law found in the records, but is rather to identify certain broad forms of narrative that came to be considered acceptable and to examine the presuppositions that made them acceptable.In seeking to examine the presuppositions that made tales tellable, less may perhaps be learned from the methodology of legal historians than from the methodology of intellectual historians, who are used to investigating the linguistic or ideological conventions behind the particular modes of discourse they study.79 The modes of discourse studied are particular, not simply in the sense that intellectual historians tend to concentrate on specific kinds of thought, but in the crucial sense that they believe thought to be constrained by conventions shared among members of particular linguistic communities.80 To this extent, they are in agreement with the second thing Geertz had in mind when he remarked that legal knowledge must be local, which is that anything resembling adat has to be particular to the community in which it is generated.81 Law, as a species of social imagination, must be particular to the social group responsible for its development, and it therefore needs to be asked how the group responsible for developing the maritime law adhered to in Aberdeen was defined.
In one case, it was argued that the crew of a foreign ship should not be required to make a payment, �becaus it is nocht the use of thair cuntra’, but the court concluded that they ought to pay, �conforme to the auld use observit withtin this guid towne past memour of man’.82 As has been seen already, reference was made in other cases to the custom �usit in this towne’ or �withtin this nobill burght’.83 When the latter phrase was used in the exceptional petition in which a proposition of law was enunciated, reference was initially made to the custom of the �realm’, possibly because account was being taken of a ruling in an earlier case, for in that case advice had been sought from �the towne of Edinburgh’.84 However, the court insisted on the petition being �correctit’ and �reformit’, and the word �realm’ was excised and replaced with �burght’, a firm indication that the court believed its concern to be with its local law.85 Adherence to its own law – to the development of a shared understanding of how maritime trade should be regulated or to the generation of a culture of law – was one of the ways in which the urban community defined itself.86 It may be illuminating to search for the origins of the burgh’s law, which may reveal the extent to which it was open to external influences, but however cosmopolitan these influences may turn out to have been, it was ultimately the usages and customs of the burgh that were given effect.87