The Historical Foundations of Grotius’ Analysis of Delict


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.

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Joe Sampson, Ph.D. (2016) is the David Li Fellow in Law at Selwyn College in the University of Cambridge.
Part I. Introduction
1 The Place of Grotius in European Private Law
2 Grotius’ Formulation of Delict
The General Definition
The Harm Element
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
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
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 and Restitutio
Responsibility and Agency
8 The Mechanics of Restitutio
Wrongdoing as the Primary Source of Inequality
The Problem of Priorities
Actual and Hypothetical Losses
Excusing Restitutio: Impossibility and Disproportionate Hardship
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
Loss and Harm
Anyone interested in the history of private law in Europe, intellectual history, the development of the civil law in medieval and early modern Europe, and general histories of European law.
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