For all the popularity that comparative legal history is enjoying today among legal historians, scholars have kept at a safe distance from the history of insurance law. Not only there is no comparative history of insurance law in Europe, but even attempts to sketch out modest comparisons between two jurisdictions are few and not always successful. Sometimes those parallels focus on a few years only, thus providing admirable pages of micro-history that shine in splendid isolation. Other times, they span across the centuries in a few pages, providing stimulating accounts of modest utility. Besides, and especially on insurance, the dialogue between legal historians and economic historians is relatively recent. This limited dialogue has often been a problem perhaps more for the lawyers, given the reluctance of some scholars to look at archival material, coupled with a rather optimistic attitude towards the interest of learned jurists for the commercial practice of their time. Further, the usual division between common and civil lawyers has done little to encourage a comparative approach. As with most other branches of commercial law, insurance law presents another difficulty: its history is often heavily influenced by court decisions, many of which are little known and little studied. This is not just the case of England, but – one might even say, even more than England – also of many civil law countries.
These are some of the reasons why a comparative history of insurance law is yet to be written, and so an important reason to congratulate the editor of this book, Phillip Hellwege. There are however two other – and equally important – reasons why this book should receive praise. The first reason lies in its very good scholarship – the proverbial excellent work that identifies a serious and vast gap in the historiography and begins to fill it. The second and no less important reason is that in this volume the editor offers a sound methodological basis to proceed in filling that gap.
Ultimately, comparative legal historians are faced with the same risks as comparative lawyers (of all, the classical triptych: finding imaginary parallels, arguing for deceptive similarities and pointing to misleading influences), plus an extra one – the difficulty of persuading other scholars of the utility of their analysis. If a comparative description of contemporary law on any given subject might be of some utility, the same is not necessarily true for the history of the law. This is not to say that comparative legal history is irrelevant – the opposite is true. At the very least with regard to the history of insurance law, this reviewer is deeply persuaded that the only way to make sense of the evolution of the subject is by comparing its history across different jurisdictions. But here lies a serious difficulty: how to begin this comparative analysis?
Hellwege's answer is to map out the development of insurance across different jurisdictions, so as to identify some “points of interaction” between them. Speaking of “points of interaction” is methodologically more correct than thinking of common roots, if only because unearthing such common roots would presuppose a knowledge – in both qualitative and quantitative terms – that we just do not possess. The history of insurance law is far from clear for any European country: the farther back in time we go, the more the picture gets blurred – hence most legal work tends to focus on the last couple of centuries. At present, stating with certainty where a concept originated and when – and how – did it spread is more an act of faith than of scholarship. Besides, deriving causality from chronology is equally an act of unbridled optimism: even if we could establish that some particular insurance practice emerged earlier in one market and later in another, does that necessarily mean that the first market “exported” that practice to the second one? Hence the methodological choice to look for specific points of contact in the history of insurance of different countries.
From this comparative approach some central research questions emerge. First, the relationship between different kinds of insurance – chiefly, maritime, fire and life insurances. Second, the relationship between premium insurance and mutual insurance (as well as that between guild insurance and the early experiments on social insurance). Third, the interaction between customs and laws on the one hand, and between rules and courts on the other. Fourth, the similarities between standard contractual terms in insurance practice across different jurisdictions – often a sign of deeper interactions.
The book groups a number of studies on specific European regions – France, Italy, Spain, Belgium, the Netherlands, Britain, Germany and Scandinavia. Each chapter is written by a recognised expert in the field. They all are of excellent quality, while of course remaining quite different from each other (both because of the heterogeneous development of insurance across Europe and because of the different historiographical traditions). But, crucially, they all present a homogeneous structure, as they all seek to provide an overview on both the history and the historiography of the subject. They all make for extremely interesting and rewarding reading, both for their academic rigour and for the truly comprehensive overview they provide.
A short review may not render justice to the scholarly significance of each contribution in this volume. All it can do is to highlight a few particularly noteworthy features, starting with the central importance for any comparative analysis on insurance of the normative framework within which its rules developed. In this sense the contribution of Maura Fortunati is of particular interest. Fortunati observes the crucial role that the Mercantile Rota of Genoa played in the passage from mercantile customs to legal rules by interpreting them in the light of ius commune principles, thereby providing a common framework that could be applied in most other European jurisdictions. This, together with the prestige of the court itself, would explain the great influence that the Genoese Rota had in the early modern period (especially up to the end of the seventeenth century) across Europe.
Geopolitical factors should never be underestimated. In her contribution on France, Sophie Delbrel explains the importance of the case of Alsace-Moselle, ceded to the German Reich in 1871 and returned to France after the First World War. As it is known, an important part of the Bismarckian social state consisted in the social insurance schemes, arguably the most advanced of the times. The popularity of such schemes made it impossible for the French Government to abolish them after the return of Alsace-Moselle to France. Rather, their presence in a part of the country favoured the development of social insurance in the rest of it.
A very much under-researched aspect of the history of insurance, which might perhaps encourage its comparative study, is the role of the church. So far, this has mostly been looked at in relation to usury, and so in negative terms – to what extent did the church prohibit it (and implement its prohibition)? But, as Miguel Ángel Morales Payán argues, the church also played a more positive role for the development of insurance: the first form of social security that we know of is the so-called familiaritas, a contract in which an individual would donate (in part or in total) his or her estate to an ecclesiastical institution in return for assistance in case of illness and old age. The relationship between this institution and life-long annuities is clearly attested in the sources, but it awaits further scholarly research.
Equally interesting is the study of Dirk Heirbaut on mutual insurance as emerges from twelfth-century charters. The mutual obligation described in such documents would appear as grossly outdated: the financial contribution of each burger was so negligible as to make it useless. This would suggest that the origins of mutual insurance – at least in some parts of Europe – might pre-date maritime insurance or have autonomous origins.
On the question of the origins of different “branches” of insurance, the contributions of Phillip Hellwege on the Netherlands and on Germany are of particular significance. For the Netherlands, Hellwege's very careful examination of seventeenth-century sources raises significant doubts as to the common understanding of the origins of fire insurance – usually dated at the earliest to that period, and considered a mere by-product of maritime insurance. After Hellwege's re-examination of the sources, the earliest known fire-insurance Dutch contract (dating to 1663) is to be taken not as the first contract of a new kind of insurance, but rather as evidence of a much older practice.
A similarly critical approach permeates Hellwege's in-depth contribution on the history of insurance in the German territories. Much unlike other parts of Europe, it is quite common among German scholars to argue for three different roots of insurance: maritime, fire and life insurance would not have a common origin (namely, maritime insurance), but rather evolved along different and separated paths. Insurance would derive from the Roman maritime loan, whereas protection against the events of death and fire would find its origin in the guild system (trade guilds and the so-called “fire-guilds” respectively). The third root may be described as the state-run adaptation of the guild-based social and fire-insurance model (although even this connection with the guild system is controversial among scholars). State-run insurance schemes are attested from the seventeenth century in a growing number of German principalities. This distinction among different “roots”, observes Hellwege, is artificial and misleading, as it stands to qualify any risk-shifting experiment after the dichotomy between premium insurance and mutual insurance. Hellwege's critique of traditional German scholarship could well be extended beyond Germany: the risk of reading history through the lens of dogmatic categories is always present. Much of the literature on the history of insurance law is, unfortunately, a testament to that very risk. Indeed, reading the contribution of one of the greatest experts on the history of commercial law in modern-day Belgium, Dave De ruysscher, separating history from law would just be impossible. And this is precisely what makes the contribution excellent.
As the subtitle of this book (A Research Agenda) makes clear, the present volume is meant as an introduction to and a framework for a series of more specific studies building on it. True to its title, this book can be hailed as the – much-needed – beginning of a comparative history of insurance in Europe. It is hoped that more such works will follow.
