by Amalia D. Kessler. New Haven and London: Yale University Press, 2007. 391pp. Cloth. $55.00. ISBN: 9780300113976.
Reviewed by Claire Lemercier, Institute for Early-Modern and Modern History, CNRS-ENS, Paris. Email: Claire.Lemercier [at] ens.fr.
(also available en français)
This thoroughly researched book deals with a topic that might seem exotic to many: the Parisian merchant court in the 18th century and the way it not only adapted to, but also contributed to shape “the rise of commercial society.” It should however attract readers well beyond specialists of France and/or economic history, for methodological as well as substantive reasons. It makes a convincing case for the use of archival material created by the daily workings of a (first degree) court. In addition, it addresses several topics of special interest for political science and/or law and court studies. The book has deservedly won a prize of the American Historical Association: it is very clearly written; the technicalities and specific context of each chapter are nicely introduced for the non-specialist reader. The interlocking of various sources, including the narration of cases and even excerpts from dramas, makes the book all the more compelling; it is always done with the necessary scientific precision, distinguishing between various sorts of myths and realities.
Merchant courts were special courts adjudicating disputes related to commercial contracts and negotiable instruments. Their judges were merchants elected by fellow merchants – in fact, in 18th-century Paris, by leaders of the six to eight most prestigious merchant guilds. In this period, they were not confined to a judicial role, but also had political functions that allowed them, and especially the Parisian court, to try to influence the government in the interest of merchants, guilds and/or merchant courts. They were one of the few institutions that survived the French revolution, more or less unchanged in their judicial role, except for their name: in 1790, they became “courts of commerce,” which pointed to a change in their jurisdiction (now based on commercial activity, not on merchant status) that had important cultural and political, if not really practical, consequences.
Such courts of lay judges still exist today: this interesting French peculiarity had however attracted little or no research before Amalia Kessler, who was the first to dive into the massive archives of a court that dealt with hundreds of cases each week. What she gives is however much more than an institutional monograph. Studying a period of economic, cultural and political change that eventually led to a revolution, she shows how merchant judges, as well as the arbiters whom they used to investigate and try to conciliate cases and the parties themselves, understood these changes, reacted to them and even influenced them. Whereas they insisted, at the beginning [*248] of the century, on promoting a Christian merchant virtue rooted in good faith, precise accounts and personal long-term relationships, the growing anonymity of some merchant practices led judges and arbiters to invent a new rhetoric, and accordingly to enforce different norms. “Commerce” became the description of a social function not necessarily limited to those who had the status of merchants, based on the sufficient provision of credit and oriented towards the good of the public – or, in the new 18th-century terms, of “society” as a whole. More concretely, it was now deemed necessary to enforce the rights of holders of negotiable instruments, even when it harmed previous holders of good faith, and to consider some firms as artifical persons with changing partners, distinct from underlying familial or other personal relationships. This general thesis that strongly links the chapters of the book however does not tell a simple tale of modernization. On the contrary (and perhaps contrary to the connotations of her title), Kessler points to slow transitions, remainders of previous practices (e.g. in disputes about goods) and tensions and contradictions felt by the actors. About these contradictions, the book nicely complements the master work by Jean-Pierre Hirsch (1991) – unfortunately, without explicitly discussing it.
Each of the six chapters is devoted to a particular topic: the relationships of the court with other municipal and national institutions, its procedure, and the way it decided on disputes involving negotiable instruments, partnerships and corporations, and “relational contracts.” Each one, especially the fifth (negotiable instruments) and sixth (national institutions and the demise of corporatism), is in itself interesting, while participating in the progressive unfolding of Kessler’s broad thesis. In addition to what it adds to economic history, the book is of special value on three substantial topics.
One of Kessler’s main stated aims is to expose the flaws of traditional, law and economics narratives of lex mercatoria. Generally based on little or no first-hand historical evidence, this standard account is frequently endorsed by scholars and even international institutions promoting the adoption of common-law inspired institutions in contemporary Third World or post-communist countries. Therefore, questioning it has important implications in real world policy as well as for our views on law-making and “legal traditions.” While confirming some of its aspects, namely the fact that merchants generally looked for simple, rapid, cheap and oral procedures and created part of the substantive norms applied by commercial courts, Kessler’s research also emphasizes other points that contradict the standard narrative: the role of public authorities and civil law jurists in the evolution of commercial law, the fact that it never constituted a unitary corpus of rules known to all merchants (many decisions being completely case-specific and precise customs rarely being used as default rules) and, even more importantly, the fact that there was no such thing as a unitary interest of commerce promoted by all and leading to growth. Conflicts and discussions on values are at the core of each chapter.
The second substantive interest has to do with the general thesis of the book. Kessler is particularly adept at showing how new rhetorical devices (ways to [*249] justify a demand or an existing privilege) were created in the context of particular disputes – especially jurisdictional conflicts, – how this regularly led to (at least in retrospect) contradictory claims, and how some of these rhetorical strategies therefore backfired. As it is now recognized that guilds were still an important social institution in the 18th century, their complete abolition in 1791 remains a puzzle to many historians, despite important recent research (Kaplan 2001). Kessler’s discussion of the way merchant courts were led to describe “commerce” as a (meta) corps (corporate body), while at the same time claiming jurisdiction on non-merchants practicing commerce and proving the importance of their activity in functionalist/utilitarist terms, shows how discourses promoted by the very leaders of the guilds could be used to ultimately destroy the guild system. This account of conflicting and sometimes self-contradictory representations of society interestingly complements discussions by Pierre Rosanvallon on tensions in French (but not only French) conceptions of representation after the Revolution (Rosanvallon 2007).
A more obvious, but not less useful contribution of the book lies in its careful reconstitution of the day-to-day workings of the court, and especially in its reflections about the social and cultural significance of various aspects of procedure. Studies of first-degree civil courts are not a common genre, at least in French research (Margairaz 2007). It is admittedly difficult to deal with massive and often illegible archives; the choice made by Kessler, who concentrated on 300 arbiters’ reports (but read 2700 more) and precisely discusses a dozen cases, seems quite reasonable, although a few additional simple counts in reports and judgments could have been useful. For all these difficulties, such a source still provides invaluable glimpses of actual commercial practices and the way they were understood and judged: although admittedly not representative, such clues allow us to construct hypotheses on behaviors and representations that left no other traces. More importantly for court research, the sources enabled Kessler to discuss several aspects of summary proceedings, e.g. arbitration/conciliation and types of proofs, and peculiar ways of adjudication, e.g. “sentimental legal reasoning” (based on a narrative centered on the moral qualities of parties). She here adds to a quite new field of historical research (Cerutti 2003) and provides interesting comparisons for contemporary debates about alternative dispute resolution.
Kessler never gives theoretical references in the field of Law & Society; her book however is an excellent example of what this approach has to offer to social sciences, and especially to history. Beyond history of law and courts per se, Kessler makes a convincing point for the study of institutions, especially courts, as a way to reconcile research on discourse and on practices (difficult questions for historians after the “linguistic turn”). As she puts it, “Legal institutions and practices do more, however, than simply implement discourse; they also serve as an important agent of discursive, or conceptual, change” (p.288). Although not rich in theoretical or methodological developments, Kessler’s book gives interesting tools for those who want to understand this sort of change. [*250]
Cerutti, Simona. 2003. GIUSTIZIA SOMMARIA. PRATICHE E IDEALI DI GIUSTIZIA IN UNA SOCIETÀ DI ANCIEN RÉGIME (TORINO, XVIII SECOLO). Milano: Gian Giacomo Feltrinelli.
Hirsch, Jean-Pierre. 1991. LES DEUX RÊVES DU COMMERCE. ENTREPRISE ET INSTITUTION DANS LA RÉGION LILLOISE (1780-1860). Paris: éditions de l’EHESS.
Kaplan, Steven L. 2001. LA FIN DES CORPORATIONS. Paris: Fayard.
Margairaz, Dominique. 2007. “Postface” XXII-2. HISTOIRE & MESURE 167-175. Available at http://histoiremesure.revues.org/index2543.html
Rosanvallon, Pierre. 2007. THE DEMANDS OF LIBERTY: CIVIL SOCIETY IN FRANCE SINCE THE REVOLUTION. Cambridge: Harvard University Press.
© Copyright 2009 by the author, Claire Lemercier.