medieval trade law, lex mercatoria. Lex mercatoria was a sui generis legal and
socio-economical system, based on the self-regulation of merchants themselves,
drawing its credibility from best practice and customary law, which were applied
in merchant and trade courts along important trade routes. Still, it can be
contested whether lex mercatoria in fact existed to the extent attributed to it in
modern literature.
3
Although freedom of contract is a well-established principle of contractual law,
its significance in dispute resolution is a relatively new development. The importance of consent in dispute resolution owes much to the ADR movement of
1980s. In their efforts to provide alternatives to court proceedings, which were
considered expensive, slow and inadequate due to their win–lose mentality, advocates of ADR favoured more flexible and efficient conflict management. These new
methods would take into consideration the needs of the parties in a specific case.
Instead of enforceable decisions on rights and obligations, the ADR ideology
would produce solutions that would transcend the limits of legal dispute resolution, by introducing new mediation and negotiation techniques for coming to a
genuine agreement between the disputing parties. The basis of jurisdiction for such
alternative resolution methods would lie in the consent of the parties. The
individual needs of the parties would be decisive in formulating the procedure in
casu, as this would also change the focus from courts to the parties and encourage
parties to take responsibility and a more active role in settling the dispute.
6.1.2 The concept of consent
Similar to the concept of sovereignty, the concept of consent has carried a
multitude of meanings that have been subject to continuous reinterpretations.
Consent is closely linked with contracts, although neither can be truncated to the
other: the history of contracts dates back to Ancient Greek and Roman legal
traditions but the emphasis on consent is more recent. Although consent, in the
meaning of popular participation in communities, has also been applied in early
Christian and Medieval communities,
4 in the following I focus on consent in the
framework of contractual law, as individual expression of intent, which is considered
to be legally relevant.
Consent, according to the Oxford Dictionary, refers to ‘permission for something to happen or agreement to do something’.
5 What makes consent legally
relevant is the subtext of subjectivity, of individual action, of the importance of
self-determination, which all flow from the subjectivity of the individual. Thus,
the increasing importance attributed to consent in the late-eighteenth century
and in the nineteenth century is linked with individualism, which consecutively
was a reaction to the social change brought on by the Industrial Revolution and
urbanisation.
6 As such, consent has a reciprocal dimension, as the legal consequence, the contractual relationship with obligations, follows from congruent
expressions of consent from parties. This element of incorporating an obligatory
meeting of the minds, the binding contract, has proved to be a particularly useful
legal instrument.
Consent and private autonomy 143
socio-economical system, based on the self-regulation of merchants themselves,
drawing its credibility from best practice and customary law, which were applied
in merchant and trade courts along important trade routes. Still, it can be
contested whether lex mercatoria in fact existed to the extent attributed to it in
modern literature.
3
Although freedom of contract is a well-established principle of contractual law,
its significance in dispute resolution is a relatively new development. The importance of consent in dispute resolution owes much to the ADR movement of
1980s. In their efforts to provide alternatives to court proceedings, which were
considered expensive, slow and inadequate due to their win–lose mentality, advocates of ADR favoured more flexible and efficient conflict management. These new
methods would take into consideration the needs of the parties in a specific case.
Instead of enforceable decisions on rights and obligations, the ADR ideology
would produce solutions that would transcend the limits of legal dispute resolution, by introducing new mediation and negotiation techniques for coming to a
genuine agreement between the disputing parties. The basis of jurisdiction for such
alternative resolution methods would lie in the consent of the parties. The
individual needs of the parties would be decisive in formulating the procedure in
casu, as this would also change the focus from courts to the parties and encourage
parties to take responsibility and a more active role in settling the dispute.
6.1.2 The concept of consent
Similar to the concept of sovereignty, the concept of consent has carried a
multitude of meanings that have been subject to continuous reinterpretations.
Consent is closely linked with contracts, although neither can be truncated to the
other: the history of contracts dates back to Ancient Greek and Roman legal
traditions but the emphasis on consent is more recent. Although consent, in the
meaning of popular participation in communities, has also been applied in early
Christian and Medieval communities,
4 in the following I focus on consent in the
framework of contractual law, as individual expression of intent, which is considered
to be legally relevant.
Consent, according to the Oxford Dictionary, refers to ‘permission for something to happen or agreement to do something’.
5 What makes consent legally
relevant is the subtext of subjectivity, of individual action, of the importance of
self-determination, which all flow from the subjectivity of the individual. Thus,
the increasing importance attributed to consent in the late-eighteenth century
and in the nineteenth century is linked with individualism, which consecutively
was a reaction to the social change brought on by the Industrial Revolution and
urbanisation.
6 As such, consent has a reciprocal dimension, as the legal consequence, the contractual relationship with obligations, follows from congruent
expressions of consent from parties. This element of incorporating an obligatory
meeting of the minds, the binding contract, has proved to be a particularly useful
legal instrument.
Consent and private autonomy 143