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.


J.H. Baker, The Law Merchant and the Common Law Before 1700, 38 Cambridge L.J. 295 (1979)

Bruce L. Benson, The Spontaneous Evolution of Commercial Law, Southern Econ. J. 55, 644–661 (1989) 

Harold Berman. 1983. Law and Revolution. The Formation of the Western Legal Tradition. Cambridge, MA: Harvard University Press (1983).

Lisa Bernstein, Merchant Law for a Modern Economy, in PHILOSOPHICAL FOUNDATIONS OF CONTRACT LAW, Gregory Klass, George Letsas & Prince Saprai eds. (Oxford University Press, 2014)

Robert D. Cooter, Structural Adjudication and the New Law Merchant: A Model of Decentralized Law, 14 INT'L REV. L. & ECON. 215, 226 (1994)

Charles Donahue Jr. (2004) Medieval and Early Modern Lex Mercatoria: An Attempt at the Probatio Diabolica,  5 CHI. J. INT’L LAW 21 (2004).

Emily Kadens, Order within Law, Variety within Custom: The Character of the Medieval Merchant Law, Chi. J. of Int’l Law: Vol. 5: No. 1 (2004).

Emily Kadens, Myth of the Customary Law Merchant, in 90 Texas L. Rev. 1153 (2012)

Emily Kadens, The Medieval Law Merchant: The Tyranny of a Construct, in 7 J. Legal. Analysis 251 (2015)

Janet T. Landa, The Economic Success of Chinese Merchants, in Southeast Asia (2016)

Scott E. Masten and Jens Prufer, On the Evolution of Collective Enforcement Institutions Communities and Courts, 43 J. Legal Studies 359 (2014)

Paul R. Milgrom , Douglas C. North, Barry Weingast, The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges, and the Champagne Fairs, 2 Economics and Politics, 1 (1990)

Stephen E. Sachs, From St. Ives to Cyberspace: The Modern Distortion of the Medieval ‘Law Merchant’, 21 Am. University International Law Review, 686 (2006)