Max Weber, Monopole und der Geist der europäischen Rechtsgeschichte

»Not all monopolies are against nature.« With this brief opening statement of a short passage on monopolia in De iure belli ac pacis, Hugo Grotius neatly summarized his compelling but succinct exposition on the legitimacy and illegitimacy of different types of concentration of market power. While rejecting cartel behavior and the artificial creation of market barriers, he considered that state monopolies at fair prices and dominant positions acquired by honest means were two instances of monopolies that deserved a more nuanced assessment. Drawing on Max Weber's intuition about the spiritual sources of Western legal culture, this paper argues that a fresh look at Grotius's scholastic sources, especially Lessius's De iustitia et iure, allows us to gain a deeper understanding of why Grotius did not reject the latter types of monopoly straight away, at least not from a strictly juridical point of view. At the same time, building on the scholastic distinction between charity and law, Grotius introduced a notion popular with later natural lawyers such as Henricus Coccejus that certain dominant positions may be prohibited on policy grounds despite their apparent legitimacy from a purely contractual point of view.