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difficult to reconcile a state so characterized to the spread of organic forms
of law.
Even outside the realm of common law systems, commercial practice
has throughout history driven the codification of systems of law, and not
vice versa.  [T]he merchants who began the process of transforming Eu-
ropean feudal society into the commercial, democratic, international trad-
ing world of our day, argued historian J. B. Condliffe,  were merchant
adventurers in the crudest sense. Unless we realise this fact, we cannot un-
derstand the continuous struggles between them and the church in its ef-
forts to apply the doctrines of Canon law. 35
The Rise of the Lex Mercatoria
Contract law has long and largely been driven by the shared needs
of international traders.36 The hugely important Lex Mercatoria, or the in-
ternational  laws merchant, which developed privately and sponta-
neously to govern commercial transactions, dates from the twelfth
century, before the consolidation of states.
In Europe s prenational stage, the Lex Mercatoria consisted of a  body
of truly international customary rules governing the cosmopolitan com-
munity of international merchants 37 on the high seas and at commercial
fairs.38 Its emergence corresponded with a rapid expansion of European
agricultural production, the accompanying dramatic increase in city size,
and the consequent rise of a new class of professional merchants that
marked the eleventh and twelfth centuries. Europe s urban population
24 A BRIEF HISTORY OF LAW AND GLOBALISM
grew roughly tenfold from 1050 to 1200, while its general population per-
haps doubled, and its merchant class grew from a few thousand to several
hundreds of thousands.  Outsourcing was already emergent nearly a mil-
lennium before Lou Dobbs declared it treason. English merchants bought
wool from local manors and, instead of processing it locally, sold it on to
Flemish merchants. They in turn distributed it to Flemish spinners and
weavers to be worked into cloth, which was then reimported back into
England to be sold at international fairs. All aspects of the commerce,
from transport to insurance to financing to sale, were governed by the
transnational Lex Mercatoria.39
Merchant law as it evolved was based on the customs of maritime port
cities and inland fairs and markets. It came to be codified in a number of
different forms. The Amalfitan Table of 1095, a collection of maritime
laws, was an example of merchant custom becoming written legislation.
Adopted by the Republic of Amalfi on the Italian coast, its authority
spread throughout all the city republics of Italy. A compilation of mar-
itime judgments by the court of Oléron, an island off the French Atlantic
coast, became a form of judge-made common law. It was adopted by sea-
port towns of the Atlantic Ocean and North Sea, including those of En-
gland, around 1150. Norms of merchant practice also evolved into written
commercial instruments of standardized character, disputes over which
came to be adjudicated in specialized mercantile courts, presided over by
elected representatives of the merchants themselves.40
The importance of the Lex Mercatoria as transnational law was re-
flected in the fact that by the late eleventh century, transnational trade,
generally conducted at large international fairs held at regular intervals
throughout Europe, or more regularly in the leading market towns and
cities, predominated over local trade across much of Europe. Its universal
character is stressed in much early writing on it. For example, the Chan-
cellor of England wrote in 1473 that foreign merchants who brought suits
before him would have them determined  by the law of nature in
chancery . . . which is called by some the law merchant, which is the law
universal of the world. Gerard Malynes, author of the first English book
on the Lex Mercatoria, wrote in 1622:  I have entitled the book according
to the ancient name of Lex Mercatoria . . . because it is customary law ap-
proved by the authority of all kingdoms and commonweals, and not a law
A BRIEF HISTORY OF LAW AND GLOBALISM 25
established by the sovereignty of any prince. Its enduring nature is at-
tested to by Lord Blackstone writing in the mid-eighteenth century:  The
affairs of commerce are regulated by the law of their own called the Law
Merchant or Lex Mercatoria, which all nations agree in and take notice of,
and it is particularly held to be part of the law of England which decides
the causes of merchants by the general rules which obtain in all commer-
cial matters relating to domestic trade, as for instance, in the drawing, the
acceptance, and the transfer of Bills of Exchange. 41
The Lex Mercatoria became part of national law, while maintaining its
transnational character and authority, through the patronage provided to
it by emerging national political authorities. The Magna Carta of 1215 pro-
vided that  All merchants shall have safe conduct to go and come out of
and into England, and to stay in and travel through England by land and
water for purposes of buying and selling, free of legal tolls, in accordance
with ancient and just customs. Such ideas came to be reflected in recip-
rocal rights of individual property holding and commerce provided for in
treaties, such as those which evolved among Italian cities from at least the
twelfth century on. So-called staple towns in fourteenth-century England,
Wales, and Ireland where trade in wool, leather, lead, and other staple
products was conducted were required to apply the Lex Mercatoria in
all matters relating to the staple, and granted resident foreign merchants
political rights which today would be considered incredible. Such foreign-
ers were legally entitled to vote in elections for the local mayor, who was
required to have knowledge of the Lex Mercatoria, and comprised half the [ Pobierz całość w formacie PDF ]

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