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12 J. Mar. L. & Com. 153 (1980-1981)
The Evolution of the Law Merchant: Out Commercial Heritage - Part II: The Modern Law Merchant

handle is hein.journals/jmlc12 and id is 159 raw text is: Journal of Maritime Law and Commerce, Vol. 12, No. 2, January, 1981 The Evolution of The Law Merchant: Our Commercial Heritage LEON E. TRAKMAN* PART II: THE MODERN LAW MERCHANT** The medieval Law Merchant did not die in the post-medieval times. Rather, it was transformed in character during the sixteenth and sev- enteenth centuries to blend in with local influences, to reflect the policies and interests, and the procedural rules of the forum. The merchant system still maintained its influence upon the development of domestic law. In Europe, the British Isles, and later the United States, the form of merchant law which arose reflected the needs of trade in each local community of merchants and in the international community at large. Mercantile law in England evolved differently than did commercial law in Continental Europe. Yet the Law Merchant itself remained the source in both legal systems. What happened in each case was the embodiment of Law Merchant values within domestic legal systems that were in line with state policy, national interests and domestic mores. Only certain attributes of the medieval Law Merchant changed. For instance, do- mestic laws, by definition, were not universal in their application. Such laws varied from jurisdiction to jurisdiction. They altered in accordance with forum concerns, especially indigenous business demands. Yet the foundations of the Law Merchant-flexibility of approach and com- mercial orientation-remained intact in both civil and common law systems.'04 The localization of the Law Merchant produced these alterations. National law influences meant that merchant practice was no longer the sole determinant of acceptable behaviour in business affairs. Novel * B. Comm., LL.B. (Cape Town); LL.M., S.J.D. (Harvard); Professor of Law, Dalhousie University. ** Part I, on the Ancient and Medieval Law Merchants appeared in the October issue, 12 J. Mar. L. & Com. 1 (1980). o4 In fact, the writings on the Law Merchant (e.g. supra note 102) repeatedly indicate that the Law Merchant did not die in post-medieval times. It was merely transformed in character to suit the needs of the forum, in particular its public policy. The primary change in the Law Merchant was therefore formal, rather than a matter of substantive law. 153

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