Lex Mercatoria and the Autonomy of Merchant Law
Legal scholars likewise have generally considered GA to be an uncomplicated procedure with an equally straightforward history.
1 William Tetley, ‘The general maritime law: the lex maritima (with brief reference to the ius commune) in arbitration law and the conflict of laws’, Syracuse Journal of International Law and Commerce 20 (1994), 105–45, at pp. 105, 128–9. Here, they may have been beguiled not only by the simplicity of the animating principle, but also by assumptions about the immutability of merchant custom under the influence of the aforementioned lex mercatoria. This is the highly influential concept propagated by some contemporary legal scholars that medieval Europe, or perhaps an even wider area, once shared a body of universal customary merchant law administered without the help or interference of the state.
2 See Toth, The Lex Mercatoria, pp. 6–30 for the state of the art regarding the new lex mercatoria debate. This notion has been variously defined but is usually discussed in very vague and general terms: the legal scholar, Nikitas Hatzimihail, compares the lex mercatoria to the proverbial
Arlésienne: everyone talks about her, but we never actually get to see her in person.
3 Nikitas Hatzimihail, ‘The many lives – and faces – of lex mercatoria: history as genealogy in international business law’, Law and Contemporary Problems 71 (2008), 169–90, at p. 169. Hatzimihail explains that the French expression L’Arlésienne refers to someone about whom there is much talk but who never shows her face. The phrase originates from an 1872 play by Alphonse Doudet about the doomed love of a young man for a girl from Arles who never appears on the stage. One influential articulation of the idea can be drawn from the work of Clive Schmitthoff, who, along with Berthold Goldman, helped to resurrect interest in the lex mercatoria in the early 1960s.
4 Hatzimihail, ‘The many lives – and faces’, pp. 175–88; Stefania Gialdroni, ‘Gerard Malynes e la questione della lex mercatoria’, Zeitschrift der Savigny-Stiftund für Rechtsgeschichte 126 (2009), 38–69, at pp. 38–9. Schmitthoff claims that ‘international commercial law … arose in the Middle Ages in the form of the law merchant, a body of truly international customary rules governing the cosmopolitan community of international merchants who travelled through the civilized world from port to port and fair to fair’.
5 Clive Schmitthoff, ‘The law of international trade, its growth, formulation and operation’, in Clive Schmitthoff (ed.), The Sources of the Law of International Trade (London: Stevens & Sons, 1964), pp. 105–6. This medieval law merchant ‘owed its international character mainly to four factors: the unifying effect of the law of the fairs, the universality of the customs of the sea, the special courts dealing with commercial disputes, and the activities of the notary public’.
6 Schmitthoff, ‘The law of international trade’, p. 106. Whatever its vagaries, the lex mercatoria idea has powerful contemporary resonances, since it has been used to argue for a ‘return’ to private ordering in global trade, sometimes called the ‘new’ lex mercatoria.
7 Bruce Benson, The Enterprise of Law: Justice without the State, 2nd edn (Oakland: Independent Institute, 2011), pp. 30–6; Leon Trakman, ‘From the lex mercatoria to e-merchant law’, The University of Toronto Law Journal 53 (2003), 265–304, at pp. 265, 269, 275–6; Ana Lopez Rodriguez, Lex Mercatoria and Harmonisation of Contract Law in the EU (Copenhagen: DJOF Publishing, 2003). This is a small fraction of the works which adhere to the notion of a historical lex mercatoria. See the bibliography in Emily Kadens, ‘The myth of the customary law merchant’, Texas Law Review 90 (2012), 1153–206, at pp. 1153–4. The increasing involvement of states in maritime law across the early modern period is generally seen by mercatorists as a negative development. While some theorists, such as Schmitthoff, saw the lex mercatoria’s absorption into national state law as a fairly unproblematic process which did not change its fundamental character, others, led by Goldman, saw the takeover of state law as bowdlerisation.
8 Hatzimihail, ‘The many lives – and faces’, p. 187. See also Benson, The Enterprise of Law. Some jurists impressed by this latter vision have then used the lex mercatoria as part of a wider argument to the effect that non-state actors have, when allowed to thrive, provided more efficacious solutions to the problem of ‘justice’. Here the medieval lex mercatoria represents, it is claimed, the ‘best example of what a system of customary law can achieve’.
9 Benson, Enterprise of Law, p. 87. Similar claims are made regarding a lex maritima, a universal maritime law which is sometimes presented as a subset of the lex mercatoria.
10 William Senior, ‘The history of maritime law’, The Mariner’s Mirror 38 (1952), 260–75; Tetley, ‘The general maritime law’. On the distinction between these two terms see Albrecht Cordes, ‘Lex maritima? Local, regional and universal maritime law in the Middle Ages’, in Wim Blockmans, Mikhail Krom, and Justyna Wubs-Mrozewicz (eds), The Routledge Handbook of Maritime Trade around Europe 1300–1600 (London: Routledge, 2017), 69–85. These scholars present a private ordering as the natural solution for mercantile justice, a commercial Garden of Eden since disordered by the baleful interference of states.
GA has been cited by the supporters of the lex mercatoria idea – so-called ‘mercatorists’ – as evidence for these claims, especially with regard to Schmithoff’s second pillar, the ‘universality of the customs of the sea’. GA, with its ancient antecedents, and commonly practised across European jurisdictions, would seem at first glance the perfect example of the lex maritima.
11 For example, Tetley, ‘The general maritime law’, p. 128. On this, see Jolien Kruit, ‘General average – general principle plus varying practical application equals uniformity?’, Journal of International Maritime Law 21 (2015), 190–202, at p. 191. The earliest expression of the law of GA is usually taken to be the
Lex Rhodia de Iactu (the Rhodian Law of Jettison) collected in Justinian’s
Digest, and which thus forms part of the
Corpus Iuris Civilis – the authorative texts at the centre of the
ius commune, that is the system of civil and canon law which formed the substratum of all legal regimes in continental Europe in the medieval and early modern periods.
12 See Manlio Bellomo (trans. Lydia Cochrane), The Common Legal Past of Europe, 1000–1800 (Washington, DC: Catholic University of America Press, 1995), pp. 78–90; Tamar Herzog, A Short History of European Law: The Last Two and a Half Millennia (Cambridge, MA: Harvard University Press, 2018), pp. 76–93. This was the ‘learned’ law that was taught to law students at universities from the twelfth century onwards, and was the law that jurists turned to when positive local law seemed to provide no solution to a legal problem. Since even the English admiralty courts used continental civil law, this meant that European jurists were, in theory, provided with a common reference point.
13 Bellomo, The Common Legal Past of Europe, p. 81. The fact that something called ‘Average’ apparently existed everywhere ostensibly gives substance to the idea of a unified merchant customary law. The argument has a tendency to become circular, because once this ‘proof’ of the lex mercatoria
has been found in the form of GA, the ‘fact’ of the lex mercatoria, unchanging and universal, discourages further scrutiny of GA itself.
GA in its modern form is also an excellent example of ‘stateless’ law, since it derives its force not from international conventions, but rather by clauses inserted into freight and insurance contracts.
14 Kruit, ‘General average’, p. 192. The rules which regulate it today are maintained and amended by a non-governmental organisation, the
Comité Maritime International, with the input of international shipping and insurance associations.
15 See ‘CMI: About Us’, <https://comitemaritime.org/about-us/> [accessed 23 February 2020]; ‘General Average: York-Antwerp Rules’, <https://comitemaritime.org/work/york-antwerp-rules-yar/> [accessed 23 February 2020]. It has therefore been taken up by mercatorist scholars as evidence for their claims and has, moreover, been presented as an instance of the lex maritima, immutable since ancient times. It is safe to say that one departing from the mercatorist position would have little reason to further examine GA, because its supposed stacicity would render its 3,000-year history unilluminating – as well as very dull.
In response to the claims of mercatorists, historians of medieval and early modern trade have argued that a lex mercatoria neither existed nor needed to exist. Emily Kadens has shown that merchants had no use of a uniform substantive law, Edda Frankot has found that maritime customary collections in North Sea ports varied greatly, whilst Albrecht Cordes, Maura Fortunati, and Stefania Gialdroni trace most references to the ‘law merchant’ to a highly localised English discourse ultimately rooted in seventeenth-century antipathy between the common and civil law courts.
16 Kadens, ‘The myth’; Albrecht Cordes, ‘Lex maritima?’; Albrecht Cordes, ‘The search for a medieval lex mercatoria’, Oxford University Comparative Law Forum 5 (2003), <https://ouclf.law.ox.ac.uk/the-search-for-a-medieval-lex-mercatoria/> [accessed 2 February 2024]; Maura Fortunati, ‘La lex mercatoria nella tradizione e nella recente ricostruzione storico giuridica’, Sociologia del diritto 2–3 (2005), 29–41; Gialdroni, ‘Gerard Malynes e la questione della lex mercatoria’; Edda Frankot, Of Laws of Ships and Shipmen: Medieval Maritime Law and its Practice in Urban Northern Europe (Edinburgh: Edinburgh University Press, 2012). GA has even been called to the witness stand at times to show that norms were heterogeneous at a doctrinal level. Albrecht Cordes has argued for at least two families of GA practice in Europe, one ‘Southern’ and one ‘Northern’.
17 Cordes, ‘Lex maritima?’, p. 76. Jolien Kruit, meanwhile, has conducted a comparative study of GA in historic normative collections of European/Mediterranean maritime law starting with Justinian’s
Digest in the fifth century AD and ending with Louis XIV’s
Ordonnance de la Marine of 1681.
18 Kruit, ‘General average’. She finds that while the GA principle finds a place in all of them, there is no agreement between them as to the circumstances in which the apportionment of damages should take place. Yet precisely because the mercatorists claim that the lex mercatoria was composed of unwritten customs, it is almost unfalsifiable from the point of view of municipal and state collections. It is therefore necessary to turn to archival records that might shed light on the interplay between ‘state’ law and merchant practice.
A wider issue is the autonomy which maritime justice enjoyed from other legal regimes. This is a question that the lex mercatoria debate, with its focus on the autonomy of merchant law from the state, both hints at and distracts from.
Ancien régime merchants did sometimes claim for themselves a special semi-autonomous place in the legal order of things, especially with regards to the
ius commune. The idea of a ‘lex mercatoria’ was often invoked in English legal discourse as a means of expressing this.
19 Mary Elizabeth Basile, Jane Fair Bestor, Daniel R. Coquillette, and Charles Donahue, Lex Mercatoria and Legal Pluralism: A Late Thirteenth-Century Treatise and its Afterlife (Cambridge, MA: Ames Foundation, 1998), pp. 139–46. What is more, much mercantile justice in the medieval and early modern periods was conducted using summary procedure, which required, amongst other things, that judges base their decisions on ‘the nature of things’. As Simona Cerutti points out, the doctrine of the ‘nature of things’, drawing ultimately on the philosophy of Thomas Aquinas, posited a teleological vision of the world in which each ‘fact’ was a font of its own legitimacy.
20 Simona Cerutti, ‘Fatti e fatti giudiziari: il consolato di commercio di Torino nel XVIII secolo’, Quaderni Storici 34 (1999), 413–45, at p. 420. Early modern mercantile cases were usually adjudged according to the principle of good faith and in a ‘mercantile style’. This approach, as Tijl Vanneste so elegantly puts it, ‘considered [what was] reasonable and equitable in law as the legal consequence of what was considered reasonable and fair behaviour in trade’.
21 Tijl Vanneste, Intra-European Litigation in Eighteenth-Century Izmir: The Role of the Merchants’ Style (Leiden: Brill, 2021), pp. 4–5. So it turns out that ‘what merchants did’ could be of considerable normative importance.
22 Kadens, ‘The myth, p. 1164.The seventeenth century is a key period of witness in this respect. Where the mercatorists have seen increasing balkanisation, some prominent legal historians have seen a move towards greater European unity. It is undeniable that the centralised national state was on the move in this period in the domain of maritime law, and this resulted in the circulation of new printed doctrinal collections. Albrecht Cordes has argued that the influence of texts such as Louis XIV’s
Ordonnance de la marine (1681), produced under the auspices of Jean-Baptiste Colbert, as well as the publication of other influential collections, such as the ‘Hanseatic ship and sea law’ (1614) gave impetus to a gradual process of identification and consolidation.
23 Cordes, ‘Lex maritima?’, p. 82. Perhaps even more importantly, this was an era in which learned jurists began to seriously interest themselves in maritime law and in which printed texts on the subject emerged in increasing numbers, and this had the potential to promote a shared understanding of institutions like GA across Europe and to bridge the gap between different legal orders. Peter Peck the Elder, Quentin Weytsen, and Mattheus De Vicq in the Low Countries, Charles Molloy in England, and Francesco Rocco, Carlo Targa and Giuseppe Casaregi in Italy are just some of the authors who published on issues related to GA in the sixteenth and seventeenth centuries.
24 Quintin Weytsen and Mattheus De Vicq, Tractatus de avariis (Amsterdam: Henricus & Theodorus Boom, 1672), p. 23; Petrus Peckius, Arnold Vinnius, and Johannes Laurentius, Ad rem nauticum pertinentes (Amsterdam: Joannis Henrici Boom, 1708), pp. 188–297; Charles Molloy, De iure maritimo et navali or A Treatise of Affairs Maritime and of Commerce (London: Walthoe, 1744), p. 280. For the Italian authors, see pp. 65–76 in this book. From this it follows that a key theme in this book will be the dialogue between various written norms and the practice that emerges from the seventeenth-century archival documents. Was it the increasing ‘professionalisation’ of maritime law and centralising legislation from above, or shifting maritime practice and organisation of trade ‘from below’ that was driving legal change and determining how risk was to be shared? This was, moreover, also a faultline running through the tribunal that is the focus of this study: the Court of the
Consoli del Mare di Pisa (Consuls of the Sea in Pisa), the foremost maritime-commercial court in Tuscany.
25 Alessandro Lo Bartolo, ‘The Consoli del Mare of Pisa, 1550–1750: an institutional and social profile’, in Jake Dyble, Alessandro Lo Bartolo, and Elia Morelli (eds), Un mare connesso. Europa e mondo islamico nel Mediterraneo (secoli XV–XIX) (Pisa: Carocci, 2024), 177–200. The court of the
Consoli represents a kind of weather front where two legal regimes meet. It was a court with a commercial remit authorised to use summary procedure, and its judges were Florentine nobles without legal training, chosen, at least in theory, because they had some experience in commerce; and yet the court was staffed, at least in part, by learned lawyers schooled in the
ius commune who looked to Roman law as the ultimate font of legitimacy.
One particularly striking result to emerge from this study is fractures that existed between the ‘GA’ of the normative material, including tracts by learned jurists, and the GA that was used by early modern practitioners. The provisions of the
Digest had a clear impact on Tuscan GA cases, but this remained quite superficial. GA was quite a different instrument to the institution posited in the
Lex Rhodia, or even in the
Llibre del Consolat de Mar, another important collection of norms in the Mediterranean context.
26 Germà Colon and Arcadi García (eds), Llibre del Consolat de Mar: edició del text de la Real de Mallorca, amb les variants de tots els manuscrits coneguts (Barcelona: Fundació Noguera, 2001); Giuseppe Lorenzo Maria Casaregi, Consolato del mare colla spiegazione di Giuseppe Maria Casaregi (Venice: Silvestro Gnoato, 1802). This tension posed few problems for practitioners but was a knotty issue for legal theorists and technicians versed in the
ius commune, who were painfully aware of the dissonance between the traditions. Yet their systematisation efforts, as evidenced both by the activities of the court and the publications of learned jurists, had not produced much in the way of results even by the end of our period. There was still no commonly agreed upon typology of maritime Averages, nor an agreed upon definition of GA. Though Cordes is entirely correct to identify the period as tending towards harmonisation and consolidation, it should thus be noted that this remained an incomplete and contested process as late as 1700. Nor, on the basis of this evidence, is it wholly true to say, as Donahue does, that ‘the effective legal system for the Italian merchants was the
ius commune’ as far as GA is concerned.
27 Donahue, ‘Lex mercatoria’, p. 33. Though the mercatorists are sometimes criticised for overstating the distance between commercial law and other legal orders, some autonomy for merchant practice thus emerges.
28 Donahue, ‘Lex mercatoria’, pp. 34–6. Ultimately, however, this cannot be considered to support the central mercatorist claims, since a certain deference to merchant practice does not imply the existence of a coherent corpus of unwritten doctrine understood by all merchants. On the contrary, this study demonstrates how commercial law, particularly the procedural element, was very susceptible to local conditions and contingency.
29 A similar conclusion is reached by Roberto Zaugg in Stranieri di antico regime. Mercanti, giudici e consoli nella Napoli del Settecento (Rome: Viella, 2011). In the free port of Livorno, Tuscany’s main international port in the period, the lack of a native mercantile elite was conducive to the emergence of a laissez faire approach on the part of the court, in contrast to places like Venice.
30 Maria Fusaro, Political Economies of Empire in the Early Modern Mediterranean: The Decline of Venice and the Rise of England 1450–1700 (Cambridge: Cambridge University Press, 2015), pp. 106–7. Procedural advantages were offered – informally, and off the record – to English and Dutch merchants and shipmasters operating in the port. This was not only done to keep these commercially important actors satisfied, but also to resist diplomatic pressures being exerted on the Grand Duchy by their home states.