Lex Mercatoria as Jus Mercatorum, Essay Example

The History of European Economics as International Law

The explanation of the cultural rights/rites of ‘Manifest Destiny’ lies at the core of early modern Europe’s knowledge of its own settlement in history. Indeed, the emergence of the European nation-state from pre-history to the present within Western historical accounts primarily assumes specific environmental and technological changes within Europe contributed to the formation of the market and its foundations (Maddison, 2007). Originating in European states and states-system it is thought, the development of the market and its processes are recorded repeatedly within Western thought as the driving impetus behind the global capitalization of resources, and extra-territorial market expansion. Inferred within quite coherent logic dictating a precise regional historiography of economics, is the long-term impact that Europe has had on attendant rule articulation in international law. For instance, Maritime Law and its rules on trade, quite explicitly if not expressly, opened the door for European interpretations of the globe as a resource that could be ‘discovered’ for market usurpation.

Evidence to the discussion on Europe’s provenance in the area of international law is perhaps most readily accorded to colonialism and it’s indoctrination through the legal culture and application of the Lex Mercatoria and Jus Mercatorum – regulatory rules for trade by sea (Michaels, 2007). The retention of writings within legal statute is illuminated through this History of Maritime Law, as research on the sustainability of Law’s project is first and foremost sourced in classical codes, dating back to the law of Rhodes in the first century B.C. (Jones, 1988).

How the ‘rights’ of Europeans and protections within European economies of trade law emerged reveals much about ‘entitlement’ in general, and through the preeminence of contract law in the Statute of Frauds and UCC (Uniform Commercial Code) the circumstantial is turned into certainty “as its written” (Jones, 1988). Statutory references within twentieth century legal prospectus and provide insight into the early political economy of Western law. Of particular interest is the concept of ‘legal certainty’ as it pertains to an economics of ‘rights’ as outlined in Bruno Leoni’s (1961) formative critique. Citing the Roman Emperor, Justinian’s Corpus Juris, Leoni notes that while “written law is itself not always necessarily legislation” the body of “existing” law is an object that carries value much like inconvertible legal tender currency (Leoni, 1961). European civil law is constituted of a dearth of written rules which, for Europeans, stands as an icon of freedom. The exception to this rule is, of course, seen within the process of British constitutional law which is unwritten, and reliant upon the ‘parliament of the day.’

The translation of something like early maritime law into colonial administration is quite apparent, through analysis of the extra-territorial constitutional efforts of European governments claiming statehood in locations in the Americas, Africa and Southeast Asia (Maddison, 2007). The legacy of those sovereign compacts, albeit somewhat strictly adhered to through a matrix of dominance and tacit consent, crafted charters for new citizens outside the client state (Soll, 2009). The practice of extensive appropriation of lands elsewhere in precedent European history opens discussion on the implications of disjunctured sovereign territories as economies of scale, and their assertion as mercantilist states subject to allegiance of a centralized ruler; often at quite some distance in the early modern period (Jones, 1988). The Roman Empire clearly set the framework for both institutional and market forms much prior to colonial outposts between the 17^th and 20^th centuries, with the ecclesiastical courts of the Vatican serving as the foundation of European law writings derived from Latin based canon law. Law’s Latin root proffered the idiomatic transference of canon law as dominion at this time, and enabled the Church to extend its reach across Europe and ultimately to colonial locations – as seen extensively in the Americas. Hence, extrapolation of bureaucratic rules was ready-made vis-à-vis legal writings, and the certainty of their enforcement.

Since the late twentieth century, the relationship between law and the economy has changed significantly. Thinkers like Jones (1988), Leoni (1961) and Maddison (2007) foreshadow how the shift in legislative impacts on market interests; and the relationship between individual choice and those forces.  As the market expands, argues Leoni, determination of freedom and constraint “pivot[s] more and more on legislation.” From a public choice perspective, the social contract has become one of legislative, and most specifically, regulatory interests that in turn foster a futures market based on ideals such as the modification of regulatory standards within trade relationships through market incentives.

Engagement between legislative laws and civil legal practice has increased as the number of regulatory statutes increases based on policy demands by a public that has rapidly changing ideas about technology and its uses, are also incorporated into the rules of contract law, and the parameters of attendant tortfeasor litigation (Calliess, 2007). In the tradition of Lex Mercatoria inroads made with international law comprised of conventions, are ratified completely or partially into national legislation as signatory agreements, and amendments proceed forward on the numerous agendas providing governance to global civil society and its market.

References

Ahnert, T.J. (2005). Encyclopedia of the Enlightenment. Annals of Science 62, 273 -275.

Calliess, G.P. (2007). The Making of Transnational Contract Law. Indiana Journal of Global Legal Studies, 14 (2), Summer 2007, 469-483. DOI: 10.1353/gls.0.0011

Jones, E.L. (1981). The European Miracle: Environments, Economies and Geopolitics in the History of Europe and Asia. Cambridge, UK: Cambridge University Press.

Leoni, Bruno, (1961). Freedom and the Law. Indianapolis, ID: The Liberty Fund.

Petiti, J.P. (2008). Introduction: Science, Politics, Philosophy and History. Minerva 46, 175-180.

Maddison, A. (2007). Contours of the World Economy 1-2030 AD: Essays in Macro-Economic History. Oxford, UK: Oxford University Press.

Michaels, R. (2007). The True Lex Mercatoria: Law Beyond the State. Indiana Journal of Global Legal Studies, 14, (2), Summer 2007, 447-468. DOI: 10.1353/gls.0.0001

Samuels, W.J., et al. (2003). A Companion to the History of Economic Thought: Blackwell Companions to Contemporary Economics. Malden, UK: Blackwell Publishing Ltd.

Soll, J. (2009). Accounting for Government: Holland and the Rise of Political Economy in Seventeenth-Century Europe. Journal of Interdisciplinary History, 40 (2), Autumn 2009, 215-238.

Withers, C.W.J. (2002). The Social Nature of Map Making in the Scottish Enlightenment, c.1682–c.1832. Imago Mundi 54, 46-66.