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La lex mercatoria contextualisée: tracer son parcours intellectuel
Abstract
Lex mercatoria is, as a label for contemporary transnational commercial law, well known from legal literature regarding international markets . Some arguments with respect to that concept have historical implications: a medieval body of commercial law is often considered as the predecessor of the lex mercatoria of today. Yet, legal historians have recently questioned whether a medieval commercial law existed in a uniform sense in different locations. As a result, the intellectual history of the concept of lex mercatoria is the more interesting. In this article, it is demonstrated that this notion was introduced in legal literature on international markets in the middle of the twentieth century, and that it was at that time borrowed from English legal-historical writings. The latter had taken a seventeenth-century concept as a description of historical facts, even though in the 1600s in England the late-medieval meanings of the term had fundamentally been changed. Originally, lex mercatoria described the procedure that was applied in tribunals of cities with market rights.
... And, as law merchant advocates realize (Trakman 1983, pp. 2, 7-9), such merchant practice was only incidentally about law, in that courts had to respond to disputes arising about the commercial techniques already in use. The courts could have based their decisions on what merchants-whether local or foreign-did, or they could, and did, turn to other sources, such as civil or common law or their own common sense (De ruysscher 2012b;Donahue 2004a, p. 32). ...
The story of a medieval law merchant has a strong hold on scholars interested in private ordering. Despite numerous historical
works demonstrating the falsity of the myth, it continues to be discussed regularly in scholarship as if it were an accurate
portrayal of the past. This article tests the law merchant story against evidence about the mechanisms of medieval trade.
It suggests that medieval commerce had little space for a specialized law, and that merchants had little need for it because
of both the well-developed trading infrastructure and the actions of local governments to ensure the protection of legal rights.
While early modern European commerce expanded, merchants had to develop practices of trade for operating all across Europe and beyond. The development of commercial law and jurisdiction was based mainly on particular local practices. A formal common commercial law had never been established, and the idea that commonly accepted mercantile customs should guide proper commercial exchange remained a central reference point for settling commercial conflicts. For maintaining legal standards, so-called parere were circulated between the central marketplaces of Europe. In these, particular questions of legal practices were put up for discussion. This chapter analyses the parere as narratives of debt and obligation within the institutional frame of the Nürnberg merchant guild, an institution frequently asked for its legal opinion.
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