Lisa Bernstein on the Myth of the Law Merchant

The medieval law merchant

In this lecture Professor Bernstein explores the “story” of the medieval law merchant, a story that has had a profound influence on the development of commercial laws around the world and a major impact on the way institutional economists think about private ordering. She suggests that the story is but a “myth” and presents the work of leading historians that demonstrates that there was not, in fact, a law merchant relating to sales in the Middle Ages.

In an attempt to end the long and unjustified reign of what Kaden’s calls “the tyranny of a con-struct”, Professor Bernstein continues her investigation by acknowledging that there have been many changes in the infra structure of commerce over the past hundred years, which makes it worthwhile to explore whether unwritten usages exist in more contemporary merchant com-munities. In particular, in this session, the investigation follows by looking at the available con-temporary evidence about the existence of usages, and then briefly explore the normative question, of whether if they exist, they should be used by courts to resolve contract disputes.

In the first lecture, Professor Bernstein stressed the idea that the myth of the Medieval law merchant has had a profound effect on the development of modern commercial law. In this video, Professor Bernstein will discuss case studies that explore the existence or nonexistence of unwritten trade usages in more modern merchant communities. In particular, these studies are shown to cast doubt on whether unwritten customs and usages of trade existed in Ameri-can merchant communities at the turn of the 19th Century.

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