The Canon Law of Business

Theologians, Canonists, and Their Contribution to Early Modern Commercial Law

In a late 19th century history of commercial law which has become a classic, Wilhelm Endemann’s Studien in der romanisch-kanonistischen Wirtschafts- und Rechtslehre, the author admonished that the first autonomous treatises on commercial subjects, which appeared in the sixteenth century, could not be fully grasped without reference to the canon law tradition. He noted that famous jurists such as Sigismondo Scaccia (c. 1564-1634) constantly judged commercial laws and practices not only from the perspective of secular jurisdiction (forum externum), but also from the point of view of conscience, which was understood as an internal court (forum internum). In other words, Endemann perceived that the modern division between ‘morality’ and ‘law’, or, for that matter, between ‘religion’ and ‘law’ failed to do justice to the story the sources wanted to tell him. Not only were theologians the guardians of an extra-judicial mode of conflict resolution in the so-called court of conscience, the very conception of ‘normativity’, ‘conflict’ and ‘jurisdiction’ turned out to have been different at that time.

Endemann’s story about the history of commercial law recalls the pluralistic nature of the early modern legal universe and the fundamentally Christian background against which the Western legal tradition emerged. During the Late Middle Ages and the Early Modern Period, the Catholic Church could be considered as a global institution which produced different kinds of laws and exercized jurisdiction in the shadow of the rising State (Duve). As a matter of fact, the norms produced by the Church in those times were not limited to internal administrative affairs, marriage or judicial procedure. Rather, property, contracts and business were of the highest concern to a Church that claimed to possess the keys to paradise. The hundreds of manuals for confessors and treatises on contracts, justice and laws which appeared in the Early Modern Period bear witness of the tremendous attempt made by canon lawyers and moral theologians to create a new legal framework that would enable merchants to come to grips with the ‘moral’ and ‘legal’ aspects of the rise of new forms of business (Prodi). The sixteenth century saw the rise of commercial capitalism in the wake of the discovery of the Americas and the concomitant increase in the Church’s preoccupation to issue rules that could govern commercial transactions around the globe and that could save the merchants’ souls.

This research project wants to shed new light on the history of commercial law by taking seriously the essentially religious normative universe from which commercial law drew its origins. By confronting the work of concrete canonists and theologians (e.g. Summenhart, Dr. Navarrus, Lessius) with the work of early modern lawyers (e.g. Scaccia, Felici, Klock) on particular topics (e.g. equity, partnerships, money-exchange), it intends to answer questions such as the following: 1) How did the emerging ‘secular’ discourse on commercial law relate to the canon law tradition; alternatively, how did forum internum and forum externum interact as modes of conflict resolution?; 2) Was there a connection between changes in the evaluation of specific commercial practices and simultaneous developments in general contract law?; 3) Were theologians the ‘articulators and ideologists of a global structure of horizontal relationships between holders of the subjective rights of dominium – a structure of human relationships that we have been accustomed to label “capitalism”’ (Koskenniemi)?

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