Amalia D. Kessler is Associate Professor of Law and Helen L. Crocker Faculty Scholar at Stanford Law School and has an appointment (by courtesy) with the Stanford University Department of History.She applied the "Page 99 Test" to her new book A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France, and reported the following:
Page 99 addresses one of the two major themes of A Revolution in Commerce. The first, discussed elsewhere in the book, is how ordinary merchants thought about commerce during a period of dramatic commercial expansion, when the foundations of modern capitalist society were first being laid. Eighteenth-century merchants, I argue, fundamentally reconceptualized commerce, and in so doing, helped to undermine the corporatist logic of the Old Regime and thus to give rise to the French Revolution.Read more about A Revolution in Commerce at the Yale University Press website.
The book's second main theme, which I address on page 99, concerns the law applied by the Parisian Merchant Court and, in particular, the standard account of the law merchant. According to the standard account, from the middle ages well into the early-modern period, merchants across Europe resolved their disputes by applying a distinctive body of merchant customs -- namely, those constituting the law merchant -- and towards this end, developed their own merchant-run courts. While there are some variations in the standard account, they all share two core features. As I argue on page 99:
[First,] they assume that the law merchant is the product exclusively of merchant norms and practices. Second, they assume that the law merchant arose in a way that was clear and incontrovertible, such that merchants at all times knew what the law merchant was -- and, in fact, they knew what it was, because it facilitated what they all understood to be their interests.
One of my primary goals in the book is to ask how accurate this description of the law merchant actually is; and I conclude that while some aspects of the standard account are valid, many are not. Thus, contrary to the standard account, the law applied by the Parisian Merchant Court was not produced exclusively by merchants and was not aimed solely at promoting market expansion. For example, parish priests played an important role in resolving many disputes before the Court and, in so doing, they often implemented Church law (like principles of just price) or sought to promote such religious values as shielding the weak (the poor debtor) from the powerful (the wealthy creditor).
On much of the remainder of page 99, I point to the serious evidentiary problems with the standard account of the law merchant:
One of the most remarkable features of the standard account of the law merchant (in all its forms) is that it is based on relatively little historical evidence. In support of their claims, proponents of this account rely significantly on citations to other secondary scholarship written in the same vein--and, in particular, to the classic works of Levin Goldschmidt and William Mitchell. As for the primary sources cited, these are largely published treatises and statutes, rather than archival court records. Moreover, because the driving theme of the standard account is that the law merchant was the same throughout Europe and across many centuries, proponents sometimes deploy these published sources in strikingly ahistorical ways. For example, one author bases his description of procedure in the supposedly pan-European, medieval law merchant largely on a single treatise, written by the late-seventeenth-century French jurist Toubeau -- a treatise concerning the French merchant courts of Toubeau's own era. In addition, while the standard account relies on published primary sources only minimally, and often poorly, it largely ignores archival records from actual merchant institutions. The absence of such archival evidence is due, no doubt, in part to the inherent difficulty of archival research, but is also likely due to the nature of the standard account itself. Since the law merchant is presumed to have been the same everywhere, and since merchant interests are presumed to be universal, unchanging, and self-evident, why bother to explore how the law merchant actually operated in particular institutions at particular moments in time?
As an archival study of the Parisian Merchant Court and its practices, A Revolution in Commerce provides a much-needed glimpse into the realities of how merchants actually resolved their disputes.
Page 99 concludes with a brief look at how recent scholars have used the standard account of the law merchant to support their presentist goals:
The standard account of the law merchant has a long history, which has been given new life in the last several decades by two groups of scholars. First, legal scholars advocating the establishment of a transnational commercial order created by and reflecting the interests of merchants have called for a return to the law merchant. Second, some of the economists instrumental in developing the field of institutional economics were inspired to trace the institutional foundations of the modern Western economic and political order -- and, thus, perhaps to transplant these in the developing world -- by the history of the law merchant.
To the extent that bad history will (or has) formed the basis for modern-day policy-making, the need to correct this history, I conclude, is all the more urgent.
--Marshal Zeringue
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