Benson, Bruce L. --- "The Law Merchant’s Story: How Romantic is it?" [2011] ELECD 239; in Zumbansen, Peer; Calliess, Gralf-Peter (eds), "Law, Economics and Evolutionary Theory" (Edward Elgar Publishing, 2011)

Book Title: Law, Economics and Evolutionary Theory

Editor(s): Zumbansen, Peer; Calliess, Gralf-Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448230

Section: Chapter 3

Section Title: The Law Merchant’s Story: How Romantic is it?

Author(s): Benson, Bruce L.

Number of pages: 20

Extract:

3. The Law Merchant's story: how romantic is
it?
Bruce L. Benson

Lex Mercatoria, the `Law Merchant,' usually refers to the rules and procedures developed
within merchant communities to support trade in medieval Europe, without the assist-
ance of government.1 While a very large literature describes and analyses Lex Mercatoria,
an expanding literature argues that these descriptions are significantly over-romanticized
stories, if not outright fabrications.2 Some of the controversy reflects an apparent lack
of familiarity with or misinterpretation of historical context or evidence, but much of
the conflict appears to be definitional (Coquillette 1987: 291­2; Epstein 2004: 3­4).3 The
following presentation offers a focused examination of key aspects of Lex Mercatoria in
an attempt to direct the debate toward actual tenets of and evidence supporting the story.
Section 1 below focuses on definitions of law, customary law, merchant, and Law
Merchant that generally apply in the literature. After that, an overview of the medieval
Lex Mercatoria is presented in Section 2. Section 3 concludes.


1. WHAT IS THE LAW MERCHANT?

Epstein (2004: 3) notes that those:


1
Lex Mercatoria also labels certain rules and procedures of modern international commercial
activity. This modern Law Merchant is not discussed, but see Benson (2009).
2
E.g., Volckart and Mangels (1999), Donahue (2004), Kadens (2004), Drahozal (2005), and
Sachs (2006).
3
The controversy actually appears to be part of the wider ideological debate about law, poli-
tics and legal regulation. The underlying issue is, should private ...