Abstract

To justify their activity, the first English mercantilists present commerce as a natural activity, which promotes peace between nations and contributes to the progress of civilization. In particular, they use the lex mercatoria, a notion inherited from the Middle Ages. The idea of a mutual trade of humanity, put forward in the writings of merchants, but also in an author like Grotius, contrasts with the theories of sovereignty linked to a national territory by political thinkers like Francis Bacon, Thomas Hobbes and William Petty, or in some ways with a lawyer like John Selden. Paradoxically, while the constitution of colonial empires coincides with the rise of the great international trade, freedom of trade is presented by its defenders as an alternative to the antagonism between the states and the logic of domination induced by modern theories of imperium. This apparent contradiction between state logic and commercial humanism –or what appears to be such– seems to subsist in the modern resurgences of the lex mercatoria in the twentieth century. Yet, the idea of a source of the law independent of the state and rooted in the antiquity of customs, the uniformity of market practices or the jus gentium, is largely a fable, and an ideological construct aimed at concealing the reality of commercial practices. From this point of view, the fable of the lex mercatoria certainly plays an important role in the constitution of the commonplace of the doux commerce and the promotion of the freedom of trade by those who are, directly or indirectly, the main beneficiaries.