The Historical Foundations of Grotius’ Analysis of Delict: (24/13 Studies in the History of Private Law)

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.

Table of Contents:
Preface Acknowledgements 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 Bibliography Index

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