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Customary law as a social contract: International commercial law

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  • Bruce Benson

Abstract

Merchants broke the bonds of localized political constraints during the tenth and eleventh centuries to establish the constitutional foundations of international commercial law as we see it today. The medieval “Law Merchant” was an international legal system that governed without the centralized coercive power of the state. In order to see how this was possible, the incentives which led to the merchants community's social contract, as well as the rules and institutional arrangements that the resulting contract produced are examined and explained. A process of legal change evolved, participatory institutions were established to adjudicate disputes and effective incentives were implemented to induce compliance with the resulting judgements. The unwritten social contract established by the medieval business community remains in force to this day. International commercial law is still largely independent of nationalized legal systems, retaining many of the basic (though) modernized institutional characteristics of the medieval Law Merchant. James Buchanan suggested that “Free relations among free men—this precept of ordered anarchy can emerge as principle,” under an appropriately structured social contract. The international Law Merchant provides a historical and modern demonstration that Buchanan is indeed correct. Copyright George Mason University 1992

Suggested Citation

  • Bruce Benson, 1992. "Customary law as a social contract: International commercial law," Constitutional Political Economy, Springer, vol. 3(1), pages 1-27, December.
    • Handle: RePEc:kap:copoec:v:3:y:1992:i:1:p:1-27
    DOI: 10.1007/BF02393230
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    References listed on IDEAS

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    1. Kreps, David M. & Milgrom, Paul & Roberts, John & Wilson, Robert, 1982. "Rational cooperation in the finitely repeated prisoners' dilemma," Journal of Economic Theory, Elsevier, vol. 27(2), pages 245-252, August.
    2. William M. Landes & Richard A. Posner, 1978. "Adjudication as a Private Good," NBER Working Papers 0263, National Bureau of Economic Research, Inc.
    3. Williamson, Oliver E, 1983. "Credible Commitments: Using Hostages to Support Exchange," American Economic Review, American Economic Association, vol. 73(4), pages 519-540, September.
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    Cited by:

    1. Oliver Volckart & Antje Mangels, 1999. "Are the Roots of the Modern Lex Mercatoria Really Medieval?," Southern Economic Journal, John Wiley & Sons, vol. 65(3), pages 427-450, January.
    2. Bruce Benson, 1994. "Emerging from the Hobbesian jungle: Might takes and makes rights," Constitutional Political Economy, Springer, vol. 5(2), pages 129-158, March.
    3. JEAN-MICHEL Josselin & ALAIN Marciano, 1997. "The Paradox of Leviathan: How to Develop and Contain the Future European State?," European Journal of Law and Economics, Springer, vol. 4(1), pages 5-22, January.
    4. Francesco Parisi, 2000. "The Cost of the Game: A Taxonomy of Social Interactions," European Journal of Law and Economics, Springer, vol. 9(2), pages 99-114, March.
    5. Fon, Vincy & Parisi, Francesco, 2008. "Role-reversibility, stochastic ignorance, and social cooperation," Journal of Behavioral and Experimental Economics (formerly The Journal of Socio-Economics), Elsevier, vol. 37(3), pages 1061-1075, June.
    6. Benson Bruce L., 2000. "Jurisdictional Choice in International Trade: Implications for Lex Cybernatoria," Journal des Economistes et des Etudes Humaines, De Gruyter, vol. 10(1), pages 3-32, March.
    7. Horwitz Steven, 1993. "Spontaneity and Design in the Evolution of Institutions: The Similarities of Money and Law," Journal des Economistes et des Etudes Humaines, De Gruyter, vol. 4(4), pages 571-588, December.
    8. L. Van Den Hauwe, 1998. "Evolution and the Production of Rules—Some Preliminary Remarks," European Journal of Law and Economics, Springer, vol. 5(1), pages 81-117, January.
    9. Bruce Benson, 1999. "To Arbitrate or To Litigate: That Is the Question," European Journal of Law and Economics, Springer, vol. 8(2), pages 91-151, September.
    10. Volckart, Oliver, 2004. "The economics of feuding in late medieval Germany," Explorations in Economic History, Elsevier, vol. 41(3), pages 282-299, July.
    11. Francesco Parisi, 1995. "Toward a theory of spontaneous law," Constitutional Political Economy, Springer, vol. 6(3), pages 211-231, October.

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