The Unromatic History of Lex Mercatoria in England

Abstract

The idea that a homogenous law merchant once existed is a popular one used by the two founding fathers of the ‘new lex mercatoria’ movement, Berthold Goldman and Clive Schmitthoff, in order to argue in favour of a modern body of transnational mercantile law. History is central to their thesis, with Goldman going on to describe lex mercatoria as ‘a venerable old lady who has twice disappeared from the face of the earth and twice been resuscitated’. Charles Donohue has called this take on history ‘tendentious’. But it does have support from some serious legal historians including Maitland. There is undoubtedly some romantic appeal to the idea of an ‘integrated system’ of mercantile law but unfortunately it does not fit very well with the facts as we know them. An examination of mercantile law and practice across Europe in the Middle Ages suggests that far from a universal system of law, the law that applied to merchants was local rather than transnational.

Keywords: contract, lex mercatoria, history

JEL Classification: K12