The Making of Commercial Law: Common Practices and National Legal Rules from the Early Modern to the Modern Period


New international commercial law has been hotly debated in the legal scholarship of the recent decades. Many scholars have called this body of law  new lex mercatoria, connecting it to the medieval lex mercatoria that supposedly developed on the commercial practice of medieval and early modern Europe, with little intervention from state authorities. This project is directly linked to this vibrant international discussion, providing a view from the north of Europe.

According to the critics, the main problem with the notion of medieval and early modern lex mercatoria is that it is lacking empirical evidence, at least if a legally binding commercial practice in the form of lex mercatoria is thought to have covered more or less the whole European continent. More local studies are still needed, however, to find out to what extent common rules or practices existed, how binding they were, and whether commercial disputes were solved in courts of law or elsewhere in different parts of Europe. Because historical arguments have been used to bolster modern legal theories of modern lex mercatoria, it is pivotally important to screen the historical argumentation and to do it comparatively, setting national histories in an international context.

The approach of the Project is throughout historical-comparative and empirical. In addition to contemporary scholarly literature and statutory material, we will approach the development of the Swedish commercial law through court records. The results will be compared to existing literature on other parts of Europe, such as Germany, England, France, and the Netherlands. The Swedish town courts of the fifteenth and sixteenth century were open to the use of international legal sources. King John III’s Privilege Letter to the Town of Stockholm of 1570 established, for instance, that the town court members should, “whenever cases on which no law exist, investigate and judge according to their best conscience.” This kind of provisions probably opened the way to the inclusion of commercial practices within the array of legal sources. The same Letter held it that whenever a case was about “foreign affairs”, half of the judges should be foreigners, “so that the case would be prudently handled and the foreigners would not need to complain about any injustices.” The privileges of Gothenburg and Landskrona include similar provisions. Local patriotism and egocentrism also played a role.

Did the courts decide commercial disputes “according to their conscience”, free of any pre-established rules, or did they implement commercial practices? Without a study of the court records and other sources we cannot even be sure whether the merchants brought their cases to courts, or whether they preferred solving them in extrajudicial arbitration. These are all questions in need of empirical studies.

Special commercial courts were never created in Sweden, although the development in some of the towns was moving towards that direction. The records of the Town Courts of Stockholm and Gothenburg will shed light on the actual workings of the law. Besides town courts, it is indispensable to include the appeals courts, founded from the 1614 onwards. The Appeals Courts of Svea (founded in 1614), Dorpat (founded in 1630), Vaasa (founded in 1776) and Vyborg (1839) represent this upper echelon of judiciary, in charge of unifying interpretations, legal formulations, and procedures.

Emerging mercantilist policies affected administration as well. In 1651, a Collegium of Commerce (kommerskollegium) was founded in Sweden to serve as a central administrative organ in the field of commerce, maritime affairs, and industry.  The new administrative organ reflected the increased interest of the crown to extent its authority to commercial regulation. For a brief period in the 1660s and 1670s, the Collegium was also in charge of the appeals in commercial cases. Its archive for this period will be included in the study.

The rules of international commercial law, in the beginning of the seventeenth century still poorly defined in Sweden, became much clearer towards the end of the century. The Maritime Law of 1667 turned international commercial law and procedure more clearly than before into parts of national legal order. However, one should not exaggerate this development, technical as it was in many respects. Much of the contents still came as legal transfers from other parts of Europe, especially the Netherlands, leaving limited space for national legislative maneuvers.

The Project will provide a view not only on the strictly normative development of the field but also on its commercial context. Therefore, the development of Swedish commerce in key towns of Stockholm and Gothenburg will be subject to research as well. The Project will produce updated knowledge on the commercial practices of the merchants in the sixteenth and seventeenth centuries, as well as on the development of Swedish commercial relations with the Netherlands, Germany, and other countries. The Project will also delve deep into the commercial practices in the nineteenth century at the grassroots level, using the Hackman-company of Vyborg as an example. It is important to find out how the change in the commercial relations, practices, and attitudes contributed to the legal changes.

 The time frame of the Project extends from the beginning of the sixteenth century until 1917, the year when Finland became an independent state. Although the period may seem long, our intention is not to produce a complete history of Swedish commercial law for the whole period. For one thing, we will concentrate on certain aspects of commercial law (such as the legal sources and the procedure in commercial cases) and leave others out (such as the development of bills of exchange and banking). On the other hand, the periodization enables us to grasp a hold of two essential developments: the emergence of commercial law as part of national Swedish law in the early modern period (while we do not claim, of course, that no commercial law at all would have existed before the sixteenth century) and the relationship of commercial law to the supposed modernization of law in the nineteenth century. Most of the eighteenth century, however, will be a matter for less attention.

Both internationally and nationally, the research theme is intimately linked to the problem of the nationalization of law in the early modern period and the ensuing legal modernization. It is generally assumed that the early modern state brought about national tendencies in law, contributing to a gradual demise of European ius commune. The nineteenth century, with the birth of market capitalism, is then considered the decisive turning point in the modernization of Western law. It is often taken for granted, in the Weberian sense, that law also passed from a pre-modern to modern stage in the nineteenth century. General statements of this sort need, however, be verified each and every time we discuss a particular branch of law, and commercial law is no exception. The great variations in legal, political, and economic change call, again, for a decisively comparative approach.

Nineteenth-century commercial law is thus problematic from the perspective of grand narratives of legal modernization. For instance, the special commercial courts were not abolished in the French revolution. Instead, they were conceived differently, not as tribunals of merchants as a distinct group as in the ancien régime, but adopting a more functional approach to jurisdiction. Law reform activists and business lobby organizations throughout the Western world advocated the French model of commercial courts, but with different degrees of success. In Sweden and Finland, the idea of a special commercial jurisdiction was criticized in the 1850s and 1860s as being inconsistent with equality before the law. 


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