Was There a Rule of Law in Early Modern Amsterdam? Mercantile Customary Law as a Test

Abstract

This contribution intends to shed light on the development of the rule of law, particularly by questioning the existence of such rule of law in early modern Amsterdam. In literature, thinner and thicker definitions are given, mostly presented as a continuum. This contribution will focus on mercantile customary law as it is a legal source that hardly fits in the literature-based categories. The importance of customary law seems to have decreased parallel with the bureaucratization of law; similarly this legal source can be considered as relatively democratic as it was based on the consent of a certain community. This ambiguity was also part of an old debate among legal historians. Some have indeed argued that custom was indeed solely based on the tacit consent of communities while others claimed that custom was a legalistic source in the sense that it provided formal rules of decision often written down in a way very similar to law books. This debate runs parallel to the question to what extend merchants made use of public institutions in the organisation of their trades.With regard to early modern Amsterdam, this contribution argues on the basis of a variety of primary sources that lawyers and proctors had a relatively advanced legal system at their disposal in which moral convictions played an important role. The example of the city’s weigh house will be used to elaborate on the precise way the institutional and legal frameworks were applied in mercantile practice. It will be concluded that many mercantile customary norms can be linked to institutions like the weigh house, but that this institutionalisation was not necessarily at odds with a continuation or even development of democratic elements. Especially the guilds functioned as a vehicle that helped to articulate tacit customs while having a great influence on Amsterdam politics at the same time. For this reason it should be seriously considered that Amsterdam already had a relatively advanced legal system that was dependent on bureaucratic institutions in the early modern period. Such system should be considered as an important step towards the presence of the rule of law.