The Twentieth-Century Origins of the Medieval Lex Mercatoria Thesis
Keywords:
intellectual, disaggregate, William Mitchel, nineteenth-century GermanAbstract
This article reappraises the early intellectual formation of the medieval “lex mercatoria” thesis: the idea that the international merchants of medieval Europe (or perhaps beyond) enjoyed a universal, autonomous, and customary body of commercial law created and administered by themselves. The debate over its existence, raging for at least 120 years, shows no signs of slowing, in part because the idea is of undoubted usefulness to both proponents (so-called “mercatorists”) and critics. The article offers a new account of the origins of this idea and looks to disaggregate different mercatorist conceptions. Revising the conventional genealogy that traces the theory through the work of Berthold Goldman to the nineteenth-century German scholar Levin Goldschmidt, who is much misunderstood in Anglophone scholarship, it argues that the idea’s powerful re-emergence in the second half of the twentieth century was mediated through two distinct channels, one centred around the British-German jurist Clive Schmitthoff and the other around the British historian William Mitchell. The latter yoked Goldschmidt’s emphasis on the medieval merchant class as a source of legal innovation to a thoroughly Anglophone concept: the “law merchant”. Critics, however, have engaged primarily with Schmitthoff’s conception, whose “strong” mercatorist argument was not only unusually forthright but reoriented the debate to focus on commercial law’s supposed autonomy from the law of territorial states, an even less plausible proposition in historical terms.
References
Istvan Hont, Jealousy of Trade: International Competition and the Nation-state in Historical Perspective (Cambridge MA: Harvard University Press, 2010), 4–5.
2
Originally coined by Nicholas Foster in “Foundation Myth as Legal Formant: The Medieval Law Merchant and the New Lex Mercatoria,” Forum Historiae Iuris (2005), URL: https://forhistiur.net/2005-03-foster/ accessed 4 July 2023; Stephen E. Sachs, “From St. Ives to Cyberspace: The Modern Distortion of the Medieval ‘Law Merchant’”, American University International Law Review 21 (2006): 688; Emily Kadens, “The Myth of the Customary Law Merchant,” Texas Law Review 90 (2012): 1157.
3
Charles Donahue, “Medieval and Early Modern Lex Mercatoria: An Attempt at the Probatio Diabolica,” Chicago Journal of International Law 5 (2004): 22; Albrecht Cordes, “Conflicts in 13th Century Maritime Law: A Comparison between Five European Ports,” Oxford University Comparative Law Forum (2020): Paragraph 1. The first scholarly attack on the concept can be found in John S. Ewart, An Exposition of the Principles of Estoppel by Misrepresentation (Chicago: Callaghan and Company, 1900), 373–4.
4
Francesca Trivellato, “‘Usages and Customs of the Sea’: Étienne Cleirac and the Making of Maritime Law in Seventeenth-Century France,” Tijdschrift Voor Rechtsgeschiedenis/Revue d’histoire du droit/The Legal History Review 84 (2016): 196.
5
Emily Kadens, “The Medieval Law Merchant: The Tyranny of a Construct,” Journal of Legal Analysis 7 (2015): 251.
6
Kadens, “The Myth,” 1168; 1180.
7
Ricardo Galliano Court, “Honore et Utile: The Approaches and Practice of Sixteenth-Century Genoese Merchant Custom,” in Understanding the Sources of Early Modern and Modern Commercial Law: Courts, Statutes, Contracts, and Legal Scholarship, eds Heikki Pihlajamäki, Albrecht Cordes, Serge Dauchy, and Dave De ruysscher (Leiden: Brill, 2018), 59.
8
On the ‘romance’, see Nikitas E. Hatzimihail, “The Many Lives and Faces of Lex Mercatoria: History as Genealogy in International Business Law,” Law and Contemporary Problems 71 (2008): 172; Donahue, “Medieval and Early Modern Lex Mercatoria,” 37; Sachs, “From St. Ives to Cyberspace,” 688; Foster, “Foundation Myth,” paragraph 46; and particularly Wyndham Anstis Bewes, The Romance of the Law Merchant: Being an Introduction to the Study of International and Commercial Law, with Some Account of the Commerce and Fairs of the Middle Ages (London: Sweet and Maxwell, 1923). On the temporal compression see Kadens, “The Tyranny,” 258–9; on the implicit Eurocentrism see Neilesh Bose and Victor Ramraj, “Lex Mercatoria, Legal Pluralism, and the Modern State through the Lens of the East India Company, 1600–1757,” Comparative Studies of South Asia, Africa and the Middle East 60 (2020): 278.
9
Bruce Benson, Enterprise of Law: Justice Without the State (Independent Institute: Oakland, 1990), 87–98: Bruce Benson “Customary Law as a Social Construct: International Commercial Law,” Constitutional Political Economy 3 (1992): 1–27.
10
See Orsolya Toth, The Lex Mercatoria in Theory and Practice (Oxford: Oxford University Press, 2017), 6–30 for the state of the art regarding the new lex mercatoria debate. For a list of lex mercatoria proponents, Kadens “The Myth,” 1153, note 1. On the French School, see Mikaël Schinazi, The Three Ages of International Commercial Arbitration (Cambridge: Cambridge University Press, 2021), 202–32.
11
Paul Milgrom, Douglass North, and Barry Weingast: “The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges, and the Champagne Fairs,” Economics and Politics 2 (1990): 1–23; cf. Jeremy Edwards and Sheilagh Ogilvie, “What Lessons for Economic Development Can We Draw from the Champagne Fairs?,” Explorations in Economic History 49 (2012): 131–48. Law and Economics has actually been criticised for not engaging extensively with ‘non-legal orders’ like the lex mercatoria: see Robert Ellickson, Order without Law: How Neighbours settle Disputes (Cambridge MA: Harvard University Press, 1995), 137.
12
William Landes and Richard Posner, “Adjudication as a Private Good,” The Journal of Legal Studies 8 (1979): 257–8.
13
Edward Stringham, “On the Origins of Stockmarkets” in The Oxford Handbook of Austrian Economics, eds. Christopher Coyne and Peter Boettke (Oxford: Oxford University Press, 2015), 335–6; P. McNamara and L.Hunt, Liberalism, Conservatism, and Hayek’s Idea of Spontaneous Order (New York: Palgrave MacMillan, 2007), 140.
14
Emily Kadens, “The Myth,” 1157; Foster, “Foundation Myth”.
15
Dave De ruysscher, “Conceptualizing Lex Mercatoria: Malynes, Schmitthoff and Goldman Compared,” Maastricht Journal of European and Comparative Law 27 (2020): 465–83: Kadens, “The Myth,” 1161–2.
16
Maura Fortunati, “La lex mercatoria nella tradizione e nella recente ricostruzione storico-giuridica,” Sociologia del Diritto 2 (2005): 33
17
Dave De ruysscher, “La lex mercatoria contextualisée: tracer son parcours intellectual,” Revue Historique de Droit Français et Étranger 90 (2012): 501–2.
18
See Daniel Coquillette, “Legal Ideology and Incorporation II: Sir Thomas Ridley, Charles Molloy, and the Literary Battle for the Law Merchant, 1607–1676,” Boston University Law Review 61 (1981): 315–71; Lex Mercatoria and Legal Pluralism: A Late Thirteenth-Century Treatise and its Afterlife, eds. Mary Elizabeth Basile, Jane Fair Bestor, Daniel R. Coquillette, and Charles Donahue Jr. (Cambridge MA: Ames Foundation, 1998), 128–62.
19
Stefania Gialdroni, “Gerard Malynes e la questione della lex mercatoria,” Zeitschrift Der Savigny-Stiftung Für Rechtsgeschichte (ZSS) 126 (2009): 248–64; De ruysscher, “Conceptualizing Lex Mercatoria,” 475–80.
20
J. H. Baker, “The Law Merchant and the Common Law before 1700,” The Cambridge Law Journal 38 (1979): 295–322.
