A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France (review)

France’s Juridictions Consulaires, founded in the sixteenth century, were civil tribunals with local authority over disputes between merchants, including especially suits for nonpayment of debt. Forerunners of the modern Tribunal de Commerce, these merchant courts were staffed not by royal judges but by merchants whom the local guilds elected annually. They prided themselves on rapid and inexpensive justice, basing their rulings as much on common sense and knowledge of prevailing business practices as on the letter of the law. The papers of the Juridiction Consulaire de Paris at the Archives de Paris constitute one of our richest collections of sources for the business history of the old regime. Kessler has written the first book-length study of the Juridiction Consulaire de Paris in nearly a century, and by far the best.

Kessler works at the intersection of legal history, business history, and history of discourse. She seeks to understand not only commercial law as it was lived and practiced in eighteenth-century Paris but also the rhetoric through which merchants justified their place in society, and she has identified a profound shift in that rhetoric. In early modern France, proponents of commerce argued that merchants could be trusted because they were virtuous and selfless, stressing the need for regulatory agencies, including guilds and merchant courts, to maintain the virtue of the business community. The eighteenth-century guilds and merchant courts, however, began to insist instead on the utility of commerce, regardless of the morals of those who practiced it. If Kessler is correct, the sort of laissez-faire economics usually associated with great Enlightenment writers was also a popular movement that penetrated the commercial class. A central paradox of her book is that the very guild leaders who developed this utilitarian ethic also sought to preserve guild privileges. The abolition of the guilds by the French Revolution was the ultimate, but unintended, consequence of their efforts.

Kessler draws heavily on the documentation generated in jurisdictional disputes between the Juridiction Consulaire and the royal courts. The heart of the book, however, is her analysis of hand-written reports filed by the independent arbiters whom the merchant court appointed to research and mediate its more complex cases. Arbiters’ reports do not lend themselves to quantitative analysis, but they offer a wealth of anecdotal information on practices, attitudes, and daily lives. Kessler shows how a wide variety of conflicts typically arose and found resolution, from unpaid wages to disputed marriage contracts. Her most ground-breaking chapter concerns the evolution of business associations, the liquidation of which often led to litigation. Eighteenth-century Parisians experimented with new forms of joint-stock ownership and limited liability that presaged the modern corporation. These novelties are nowhere described in the printed sources of the period. Finally, Kessler challenges much of the legal scholarship about the “law merchant” by showing that commercial law was not free from the edicts and institutions of the French monarchy.

Kessler’s central thesis is that the shift to a new utilitarian rhetoric of commerce was driven by the “rise of negotiability.” As negotiable credit instruments became more common in France, circulating wealth became more impersonal. The health of the economy required merchant courts to maintain the value of commercial paper through formal enforcement of certain obligations instead of through old-fashioned attempts to evaluate the morality of the parties. The “rise of negotiability” is at once the most fruitful and the most problematical concept in the book, since Kessler presents no quantitative evidence that negotiable credit instruments were, in fact, more common under Louis XV than under Louis XIV. Unlike notarized contracts, commercial paper tended to be destroyed after redemption; hence, its quantity in any given period is extremely difficult to estimate. Until further research clarifies this point, the link that Kessler asserts between the rise of negotiability and the shift in merchant...