Lex Mercatoria, Legal Pluralism, and the Modern State through the Lens of the East India Company, 1600–1757

As the organizers of the conference that inspired this essay have observed, the historical status and contemporary relevance of lex mercatoria are contested: It has been invoked to describe a legal notion in medieval European history by which—it is claimed—merchants established "their own private 'law' to facilitate commerce that applied beyond borders and influenced the public sphere through the formation of state enterprises."¹ As Emily Kadens has put it, describing the claim of modern-day "mercantorists" in their retelling, "the law merchant evolved from merchant practices, as traders experimented to find the most ef cient commercial methods."² As it "[bubbled] up from below … independent of government involvement, the best of these practices spread across Europe" with a "uniformity and universality of the resulting customary rules that facilitated transnational trade in a world of parochial local jurisdictions hostile to foreign merchants and lacking unifying states."³ As a result of these rules, "no matter where in Europe they traveled, traders could rely upon these merchant-devised customs to provide default rules and to fill in gaps around negotiated contracts"⁴ with the confidence that the rules of lex mercatoria could be applied to settle any disputes that might arise. The claims of the modern-day mercantorists—of en made by lawyers or legal scholars without formal training in history, and invoked to justify contemporary legal developments, practices, and institutions that seek to facilitate international trade and commerce—are received with skepticism by professional historians.

Our overall goal in this article is not to weigh in directly on the debate about lex mercatoria in Europe, although we will have something to say about this. Rather, approaching the debate as an historian and a law professor respectively, our goal is to use the history of the English (later British) East India Company as a lens through which to better understand the contemporary world and, in particular, the claim by legal practitioners and some academics that contemporary forms of commercial dispute resolution have a historical precedent in lex mercatoria as it was understood and invoked in practice in medieval Europe. In doing so, we of er three particular contributions to the ongoing discussion of lex mercatoria. First, we seek to inject a non-Eurocentric perspective into the debate. Following Jane Burbank and Frederick Cooper's lead, we show how "linkages among imperial expansion, governance, and law in these other (Asian) contexts provoke transformations in sovereignty and political imagination."⁵ In particular, we will, second, of er a consideration of the East India Company from its founding in 1600 through the mid-1760s as an opportunity to reflect on the history of legal pluralism in India and its significance to the lex mercatoria debate. Finally, we of er this essay as an example not only of how to shif away from methodological nationalism but also of how to bridge conversations between legal scholars and historians of early modern South Asia, two groups often not placed in the same framework.

The contemporary world is marked by a struggle on the part of many modern states to reassert their legal authority even as the nature of legal authority is itself changing into a less familiar, more pluralistic form. In seeking to understand this transformation in—and decentering of—the modern state's authority, we consider—through the lens of the encounter between the English/British East India Company, the Mughal Empire, and variously themed regional states of the subcontinent—the multiple sources of legal authority claimed by the Company and the way in which it positioned its legal and political legitimacy in relation to multiple and of en competing centers of power. Specifically, the essay examines the legal landscape in the subcontinent from the Company's emergence in the 1600s leading up to the Battle of Plassey and the subsequent acquisition by the Company of the diwani (right to collect taxes) in the 1760s. This history of the shifing natures of legal authority adhered to by the Company in India will be explored as...