Tuesday, December 30, 2014

Hatzimihail on Genealogies of Lex Mercatoria

Nikitas Hatzimihail, University of Cyprus, Department of Law, has posted Genealogies of Lex Mercatoria, which appeared in Studies in Memoriam of Professor Anthony Antapasis (Athens, 2013),  411-452.  Here is the abstract:    
The historical study of mercantile law has, without a question, much to teach both business and private international lawyers. Such study requires a sophisticated methodology that combines the rigour of professional historians with understanding of doctrinal complexity. However, most of the popular historical narratives about the “old” law merchant have little to contribute to historical scholarship and appear instead primarily concerned with genealogy: their principal aim is to inspire their audience or to provide argumentative weapons to their party in the modern debates about lex mercatoria and the governance of transnational business activities. In comprehensive historical accounts and casual references to a common historical consciousness alike, the “ancient” law merchant is presented as an autonomous, cosmopolitan, transnational legal system. This imagery is also recurring in the modern conflict-of-laws literature, as well as domestic commercial law. It permeates historical narratives in comparative law and doctrinal legal history. The ancient law merchant even serves as case-study material for legal and economic theorists.

The power of this historical imagery masks its weak historical validation. Especially in recent years, a number of legal historians have refuted much of lex mercatoria genealogy, providing alternative stories about the legal treatment of commerce in medieval and early modern Europe. However, such historical revisionism has so far made few inroads among mercatorists or even in the mainstream of international business law: the romance of the law merchant still casts a powerful spell.

That the mercatorists’ historical imagery persists in spite of these refutations suggests that what matters, for the debate, is not so much what actually happened, but what projections into the past align best with present circumstances and what constructions of the past are used to justify explanations of the present. On the one hand, historical narratives as a whole support the notion of a transnational, cosmopolitan law merchant. On the other hand, when examined in detail or in contrast to each other they illustrate the internal divisions within the mercatorist alliance.

In an earlier study that illustrated this point [Hatzimihail, "The Many Lives - and Faces - of the Lex Mercatoria: History as Genealogy in International Business Law", 71 L. & CONTEMP. PROBS. 169 (2008)], I examined in detail two paradigmatic narratives of lex mercatoria historiography: the principal historical accounts provided by the two founding fathers of the modern lex mercatoria, Clive Schmitthoff and Berthold Goldman. Schmitthoff and Goldman were instrumental in the formation and shaping of the lex mercatoria discourse from its beginnings in the early 1960s until the late 1980s. More generally, they played important roles in the academic elaboration of international commercial law and international commercial arbitration. They are also regarded as emblematic of the two basic approaches to lex mercatoria—with Schmitthoff emphasizing the use of state and nonstate sources, and Goldman insisting on the stateless (a-national) character of lex mercatoria. Of their many works, I chose for my textual analysis two classic essays providing a comprehensive outlook of the authors’ respective worldviews and normative projects: genealogical narratives form a vital part of the argument in both essays.

The present essay largely reprises my previous examination of Schmitthoff’s and Goldman’s historical narratives, in Sections III and IV respectively. It also includes a third case study – the mercatorist historical narrative of Friedrich Juenger, a private international lawyer sympathetic to lex mercatoria (Section V). Unlike Schmitthoff and Goldman, Juenger is not a canonical figure of lex mercatoria, but his text is characteristic of his own discourse and relates to the two canonical narratives. The three texts considered are also separated by each other chronologically by a distance of around two decades: Schmitthoff in the early 1960s, Goldman in the early 1980s and Juenger in 2000.

The different point in time that each was written should probably be taken into account, as having somewhat influenced both the ideas expressed and their explicitness (indeed, the point in each author’s career at the time of writing must be also be considered), but the ideas expressed here continue to represent different streams of thought that remain alive – and distinct – to this day. It would be a mistake, therefore, to see the three texts as representing a unitary evolution of thinking about lex mercatoria, old and new.

The three case studies are preceded by another sort of genealogy in Section II: a survey of historical invocations from the early modern era to the early twentieth century, i.e. the period prior to the emergence of a new lex mercatoria.