In his Defensio fidei catholicae de satisfactione Christi adversus Faustum Socinum Senensem Grotius makes use of sources taken from Roman law. We discuss three examples and ask the question whether something may be said about the weight of the arguments Grotius has taken from Roman law, mainly the Digest. The first one relates to his belief that it is a matter of public interest that crimes do not remain unpunished and he calls this argument even a trivial commonplace: Hoc enim iudicare videtur trita sententia delicta puniri publice interest. (2) The second example is Grotius’s thesis that si alio animo alius idem solvat, liberatio non contingit. (3) The third example is his thesis that ex Romanorum legibus … poenae variantur pro conditione personarum which he also justifies with an impressive number of references. The conclusion is that Grotius uses these arguments, as if they were propositions suitable to function as part of the theological construction apt to rebut the views of Socinus, but for that purpose Grotius´s quotations are generally taken out of their original context and landed on a sort of Procrustean bed of his theological presuppositions.
On Legal Arguments in Grotius’s De satisfactione Christi
Intertextuality and Polemics in Historia Gotthorum (1655)
In his Historia Gotthorum (1655), Hugo Grotius set up a Swedish ‘Gothic myth’, a powerful historiographical construct aimed at increasing Swedish prestige by identifying the ancient Swedish as the forebears of the late antique Goths, Vandals and Lombards. Entering into dialogue with fellow historiographers was vital to this venture. The ‘Prolegomena’ to Historia Gotthorum are accordingly marked by an extensive polemical dimension. A critical discourse analysis of both explicit and hidden polemics in this text reveals a clever combination of scholarly argumentation on the basis of historical evidence and strategic image-building to convince the reader. Furthermore, Grotius regularly drew on the works of contemporary colleagues for his historical evidence. The present article sheds light on the various argumentation strategies deployed in the ‘Prolegomena’ to Historia Gotthorum and the role of early modern historiographical texts as treasure troves of historical knowledge. This not only offers further insight into Grotius’s historiographical practice, but also provides an excellent example of how early modern historical writers interacted with the texts of their immediate colleagues.
Mark Somos and Dániel Margócsy
Two pirated editions form a vital but neglected part of the printing and reception history of the first edition of Grotius’s Mare liberum.
Grotius’s theory of punishment provides a unique lens through which to view his evolving thought on sovereignty between De Indis and De iure belli ac pacis and the implications of that evolution for Grotius’s theory of the ius in bello. Throughout both works, Grotius attempted to leave open the possibility of private punishment and private warfare, a position not easily squared with prevailing views of sovereign authority. Initially, Grotius was content with a theory marrying the private right of punishment with more traditional Scholastic views of sovereignty through a transfer of the private right from individuals into the hands of the sovereign. This theory also adopted traditional views of subject responsibility for sovereign acts—and, by extension, the exposure of subjects to punishment for the acts of their sovereign. By the time of his mature work, however, Grotius turned away from natural law justifications for collective responsibility and collective punishment, denying that subjects had to answer for the acts of their sovereign as a necessary incident of the compact creating civil society. This led Grotius to refer virtually all forms of collective responsibility, such as reprisal or punishment exacted through war, to the law of nations. This sharp reduction of the natural consequences of the creation of sovereign power also enabled Grotius’s argument that the private right of war, and in particular the private right of punishment, remained available after the creation of civil society.
Jeremy Seth Geddert
Most readers believe Grotius failed to refute Socinus in De satisfactione. This article argues that Grotius’s failure was one of reception rather than argument. It is possible to read De satisfactione as Grotius adverted: a genuine (if subtle) concept of satisfaction, and a defence of the (small-c) catholic faith. Grotius does reject a necessitarian identical satisfaction, in which a repayment is equal to a debt, but like Aquinas, he embraces a teleological equivalent satisfaction, in which a punishment fits a crime. Yet Grotius’s catholic theory was predestined not to persuade a wartime Continental audience whose centre had not held and which sought definitive distinctions from the Roman church. His attempt to forge a broad middle way would succeed only later in Britain.
Historical and cultural norms under the traditional Chinese legal order
Peter C.H. Chan
This article explores the position of mediation as a means of civil disputes resolution in China’s legal history. While civil adjudication existed in imperial China, the legal tradition of wu song (‘[a society] free from litigation’) played a fundamental role in shaping China’s imperial civil justice system. Under the Confucian ideology, disputes of a civil nature should be settled through conciliatory means so that the amicable relations of the disputants could be maintained. The culture of face-saving and the maintenance of cordial relations remains a distinctive characteristic of the modern Chinese society. This legal historical background provided the ideological foundation for civil procedural systems during the Republican era (1911-1949) and the early days of the People’s Republic (since 1949). The current debate on the contemporary mediation system is placed into the appropriate context when one understands that civil process in China today still operates under the shadow of cultural norms of the traditional Chinese legal order.
Legal historians have surmised that court records of the British province of East Florida (1763-1783) have been either lost or destroyed. This assumption was based on the poor conditions for survival of documents in Florida and statements made in the secondary literature on the province. Nonetheless, a significant number of documents related to the courts of British East Florida exist in the National Archives (Kew). These materials reveal an active legal culture using English law in a wide range of courts including (1) the Court of Common Pleas; (2) the Court of Chancery; (3) the Court of General Sessions of the Peace, Oyer et Terminer, Assize and General Gaol Delivery; (4) Special Courts of Oyer et Terminer; (5) the Court of Vice-Admiralty; (6) the Court of Ordinary; (7) the General Court; and (8) a District Court.
This article studies a portion of the documents related to the Court of Common Pleas to describe the nature of the court’s practice in civil litigation. It closely examines three cases for which sufficient extant pleadings permit the reconstruction of the general contours of recovery for breach of a sales contract through an action of trespass on the case, for contract enforcement through an action of covenant, and for recovery of a sum certain through an action of debt. The small window provided by these cases into the activities of this court reveals a heretofore unknown world of English common law in North America during and after the American Declaration of Independence. This new information supplements and challenges our established understanding of colonial law in North America in the revolutionary period and the use of law in the British Empire. This study illustrates the many opportunities these sources offer to legal historians of the period.
José Domingues and Pedro Pinto
This study examines the first and to date probably the only known fragment of the legislative compilation known as the Reforma das Ordenações de D. Afonso V, [‘Revised Laws of King Afonso V’], accomplished by Doctor Rui Fernandes in the town of Arruda on 28 July 1446. The fact that it is a parchment fragment has given rise to the hypothesis that it is the only known vestige of the original version, which would have been deposited at the central Chancery immediately after the revision was concluded, in order to serve as the matrix for subsequent authentic copies.