Nowadays it is generally held, that the owner who brought an actio legis Aquiliae usually claimed no more than his loss, perhaps already in Ulpian’s time, for certain in Justinian’s. For the sum of condemnation based upon the estimation-clauses of the lex Aquilia would only then exceed his damages, if either the injured object’s value had decreased in the last year or 30 days (Inst. 4,3,9) or the wrongdoer had denied having caused the damage (C. 3,35,4). There is, however, a third reason, which the Roman texts fail to mention: a possible residual value of killed lifestock, wounded slaves, and damaged objects, which benefitted the owner. Only a few later jurists took this into account: in medieval times Jacques de Révigny and Pierre Jacobi, Johann Oldendorp in the Early Modern era. The notion prevailed that the lex Aquilia obliged to pay at least the object’s full value.
When Thomas Craig (c.1538-1608) wrote his great treatise on Scottish feudal practice, the Jus feudale, he devoted a considerable part of the first book to legal origins. This article deals with Craig’s treatment narrative on the origins of feudal law and tenure in the fourth and fifth titles of the first book. By close examination of the text, the detailed formulation of Craig’s argumentation and technique is uncovered as well as the myriad classical, mediaeval and humanist sources upon which his literary project was based. In this way, the deep relationship between Craig – and by extension Scots law – and the historico-legal product of the French legal humanists is explored.
This article tackles the issue of whether and how Hugo Grotius conceives of custom as a formal source of the law of nations. The main claim of it is that not only custom plays a fundamental role in Grotius’s thought, but that his reflections mark a fundamental turning point for the history of customary international law. A crucial role in this process of re-conceptualization is played by Grotius’s reading of Dio Chrysostom, whose oration On custom provides him with an integrated account of custom as a ‘normative practice’ based on rhetorical judgment (as opposed to the Scholastic interpretation of custom as reiteration of voluntary acts). Consequently, I argue that Dio Chrysostom’s text helps Grotius to transpose the question of the normative legitimacy of custom from a moral to an interpretative level. To conclude, I will show that Grotius adopts two different rhetorical strategies to prove the existence of customary norms of ius gentium.