Présentation de l'éditeur

The Historical Foundations of Grotius’ Analysis of Delict explores the origins of a generalised model of liability for wrongdoing in the history of European private law. Using Grotius as its focal point, it analyses the extent to which earlier civilian and theological doctrine shaped his views. It divides Grotius’ approach into three elements – the infringement of a right, fault, and remediation – and traces the development of parallel concepts in earlier traditions. It argues that Grotius was influenced by the writings of Thomists to a far greater extent than has previously been acknowledged, virtually eclipsing any sign of civilian influence except where Romanist learning had already been incorporated into theological doctrine.

Joe Sampson, Ph.D. (2016) is the David Li Fellow in Law at Selwyn College in the University of Cambridge.

Sommaire

Part I. Introduction

1 The Place of Grotius in European Private Law

2 Grotius’ Formulation of Delict

The General Definition
Remediation
The Harm Element
Responsibility
Conclusion

Part II. The Civil Law

3 The Roman Law of Delicts

Delict and Crime
The Delicts as Conduct-Centric Wrongs
Piecemeal Doctrine and Historical Patchwork
A Plurality of Fault Concepts
The Narrowness of the Interests Protected by Delict
Gaps in the Roman Law of Delicts
Barriers to Generalisation

4 Delict in the Middle Ages

A Chronological Overview of Delict in the Middle Ages
Fault and Diligence
Doctrinal Developments in the Lex Aquilia
Iniuria
Conclusion

5 Delict in the Sixteenth Century

Delict and the Mainstream of ‘Legal’ Humanism
Individual Strands within Sixteenth-Century Delictual Scholarship
Donellus and the Generalisation of Delictual Scholarship
The Procedural Bias of Earlier Movements towards the Generalisation of Delict
Conclusion

Part III. Grotius’ Thomist Sources

6 The Foundations of Thomism

Praise, Blame and Responsibility
Justice as a Virtue
Aristotelianism and Roman Law in Spain

7 ‘Delict’ in the Summa Theologiae

The Structure of Wrongdoing
Commutative Justice and Restitutio
Individual Sins
Voluntariness
Voluntariness and Restitutio
Responsibility and Agency
Conclusion

8 The Mechanics of Restitutio

Wrongdoing as the Primary Source of Inequality
Commensurability
The Problem of Priorities
Actual and Hypothetical Losses
Excusing Restitutio: Impossibility and Disproportionate Hardship
Conclusion

9 Sins, Wrongs and Rights

From Specific Wrongs to Protected Interests
The Development of Individual Wrongs
From Wrongs to Rights

10 Roman Law and Thomism

The Rise of Fault within Thomism
A Syncretic Legal Culture?

Part IV. Conclusion

11 The Historical Foundations of Grotius’ Analysis of Delict

Remediation
Responsibility
Loss and Harm
Conclusion