Presenting a new insight into the history of commercial law in the legal systems of European countries, Un Diritto per l’Europa industriale provides a novel point of view on the global history of European legal thought. Moreover, even though this work essentially focused on continental Europe, Ferdinando Mazzarella’s research additionally offers, through the quality of its conclusions based on a significant bibliography, a fundamental basis for comparison with common law countries. The comparison between each of the continental legal systems is facilitated by the relevance of the period chosen corresponding to the development of modern law in Europe. The study begins precisely at the time of the rise of the European codifications in the 19th century and finishes at the end of the Second World War. Ferdinando Mazzarella starts his study with a chapter dedicated to the new order in Europe resulting from the Napoleonic Code of Commerce (1807). He then highlights the significance of the liberal evolution of European commercial laws between tradition and expansion and through to the development of national legislation, such as the Commercial codes in Spain (1829), Germany (1865) and Italy (1865, 1882). The last two chapters are devoted to the study of commercial matters in the Austro-German culture at the beginning of the 20th century and, then, to the rise of companies in the decades that followed. Ferdinando Mazzarella’s contribution to the history of legal thought, as well as to the history of European commercial and industrial law, is significant in three major and complementary respects: first, with regard to the characteristic features of the development of commercial law since the European codifications; second its fundamental contribution to the role of economic and social transformation in Europe and, third, the comparativism carried out in this work between European laws and doctrines. Regarding this first point, his major contribution involves emphasising the particularity of the commercial matter by means of the historical difficulty of delimiting its disciplinary field and the competent courts. Highly flexible and constantly evolving, commercial affairs can only gradually detach themselves from the legalistic framework originally assigned to them. Ferdinando Mazzarella accurately illustrates the exciting and difficult balance between the inherent and necessary flexibility of the business world with the need for certainty in transactions and the accuracy in applying legislation. Since the mid-19th century, the constant evolution of trade law has been closely linked to the continued expansion of national and international trade, the development of new business practices and the latest legal relationships. The accompaniment of these evolutions remains in the system of recodification, as illustrated by the case of Italy in the first part of the 20th century (227). But the use of special legislation, as exceptions to the codes, has, following the example of Spain (267), also emerged as a new alternative. This necessary adaptation of the law was also illustrated, later, by the multiplicity of complementary topics, such as industrial law or business law. Consequently, and secondly, Ferdinando Mazzarella’s work shows that the historical spirit of commercial law can only be understood in light of a society in constant evolution. This study makes it possible to better comprehend the complexity of the evolutionary context of the last two centuries in Europe, from liberal individualism of the early 19th century to the development of the social question during the 20th century. It leads one to think about the specificity of the commercial discipline with regard to the civil law; the self-determination of individuals or the interventionism of the State; the idea of economic rise associated with the progress of each country; the abstract equality of contractors or the idea of the necessary balance of benefits. One of its main interests is to replace the commercial area closely associated with industrial and economic revolutions with social changes that have taken place over the past few centuries in the European context as well as with new legal subject matters such as credit, insurance, and business development (207). In his contribution to the history of modern legal thought, Ferdinando Mazzarella also pertinently recalls the importance that must still be attached to scientific positivism, sociology and the renewal of methods of interpretation (131). In a final step, Un Diritto per l’Europa industriale also contributes in a new way to the comparativism of European legal systems. It illustrates not only how European countries have specifically and individually sorted out legal and economic issues over the past few centuries, but also demonstrates the many interactions and reciprocal influences between states. Since the beginning of the 19th century, the circulation of ideas and legal concepts has been particularly striking between Italy, France, Spain and Germany. In virtue of its open nature, commercial law represents a branch of law that can only suggest comparisons and studies at the international level. Positivist jurists studying contemporary law and legal historians alike will be interested in the quality of the contributions, the sources mobilised and the legislation analysed in this work. When thinking about the legal adaptations to new the economic realities, as well as the development of the idea to bring continental European legislations closer together, this history of modern legal thought certainly makes it possible to better understand the origin and the spirit of certain essential concepts still used nowadays. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: email@example.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
American Journal of Legal History – Oxford University Press
Published: Jan 11, 2018
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