Dave De ruysscher’s research while affiliated with Tilburg University and other places

This chapter analyses the enforcement of collateral rights (security interests) in sixteenth-century Antwerp. It contrasts the agency of individuals, i.e. creditors and debtors, to the agency of the urban legislator. The latter’s importance is often forgotten. The Antwerp economy hinged on the categorisation of types of debt and their ranks, which were formulated by the city’s administrators. Municipal bylaws and the practices of local courts provided rules governing the creation and the effect of securities. Ordinances stipulated the order in which preferential debts were to be paid from the proceeds of the auction of an insolvent debtor’s assets. Such rules were the outcome of deliberation among urban administrators. They responded to economic and mercantile contexts, but nonetheless they had to rely on their own conceptions mostly. Detailed discussions in doctrine provided inspiration, but not solutions.

This article compares the doctrines on transnational commercial customs in Malynes’ Lex Mercatoria (1622) and in the writings of Clive M. Schmitthoff and Berthold Goldman. It is argued that core problems in conceptualizations of lex mercatoria are present in all these texts. Malynes unsuccessfully attempted to reconcile a new approach of considering law merchant as ius gentium on the one hand, with a tradition of particular customs of trade on the other. All three authors mentioned struggled when explaining how custom emerges from contracts or practice. Malynes, Schmitthoff and Goldman tried to apply existing notions (usage, custom) in order to do so, often referring to historical arguments, but they could not bridge the fundamental differences existing between customs of trade and ius gentium. As a result, all three authors failed in putting forward a workable theory of lex mercatoria. Non-matching legal views on international business practices were cut and pasted together, as it were, and new theories on lex mercatoria would do well not to replicate this approach.

The Development of Commercial Law in Sweden and Finland provides a broad perspective on recent research into the history of North European commercial law in a comparative and international framework. The book brings together themes that have previously been considered largely from a national perspective. Despite Sweden's and Finland's peripheral locations in Europe, global legal phenomena took place there as well. These countries were at the crossroads of cultures and commercial interests, allowing us to re-examine them as lively laboratories for commercial laws and practices rather than dismissing them as a negligible periphery. The importance of trade and international transactions cannot be disclaimed, but the book also emphasizes the resilient nature of commercial law. Contributors are: Dave De ruysscher, Stefania Gialdroni, Ulla Ijäs, Marko Lamberg, Heikki Pihlajamäki, Jussi Sallila, and Katja Tikka.

Over the past decades, legal historians have become more cautious when it comes to rules that in the Middle Ages and the early modern period were defined as ‘(old) customs’. Earlier optimistic appraisals as to the age of such rules have been challenged. This article argues that efforts of debunking should be combined with a more thorough analysis of the legal consciousness of past societies. It proposes to look at old municipal private law, not as a set of rules fixed by tradition, but rather as a malleable body of norms. The symbolic qualities of law were such that renewal and rephrasal could be combined with an ideology of conservation. It was perfectly possible for administrators to promote new rules as being a part of an ‘age-old law’ of the city or the land, without breaching the implicit conventions as to the qualities of law. However, as will be demonstrated further, there were limits to the agency of administrators in this regard. The codes as to the features of law marked boundaries that had to be taken seriously.