ESIL Interest Group History of International Law

ESIL Interest Group History of International Law

maandag 12 juli 2021

JOURNAL: Grotiana XLII (2021), No. 1 (Jul)

 

(image source: Brill)

Historical, Philosophical, and Legal Foundations of Strict Liability in Hugo Grotius—Some Introductory Remarks to the Special Dossier (Bart Wauters) (OPEN ACCESS)

Culpa Levissima and the Eclipse of Strict Liability (James Gordley) (DOI 10.1163/18760759-42010002)

Abstract:

In Roman law, as interpreted by the medieval jurists, in a gratuitous loan (commodatum), the borrower was liable for culpa levissima, failure to use be as diligent as “most diligent” (diligentissimus). It would seem, then, that a person could be liable for conduct that he could not help. That consequence troubled the medieval canonists a person would then be liable who had not sinned. It troubled the late scholastics because a person would then be liable for an accident, which was not a violation of commutative justice. Some concluded that liability for culpa levissima was a creature of positive law, based on pragmatic considerations but with no grounding in principle. There was another explanation glimpsed by the late scholastics and by Hugo Grotius: commutative justice requires that one who borrows gratuitously indemnify the lender against any loss. Unfortunately, in the following centuries, that explanation was lost from sight.

Qualitative Liability in the Early Modern Low Countries (ca. 1425–1650) (Wouter Druwé)

Abstract:

In his ‘Inleidinge tot de Hollantsche Rechtsgeleertheyt’, Hugo Grotius introduced the concept of wrong-by-construction-of-law (‘misdaed door wetsduidinge’), the idea that civil law could assign liability to someone who had not committed any fault, i.e. merely because of his or her ‘capacity’ or ‘quality’ as a parent, as an owner of an animal, as an inhabitant of a building, or as an employer or shipowner. This contribution situates Grotius’s views on qualitative liability within the wider Netherlandish learned juridical context of his time, and especially studies the role of fault (‘culpa’) and presumptions of fault in the learned theories on qualitative liability. Apart from printed treatises and volumes of consilia, this contribution also takes into account hitherto unstudied handwritten lecture notes of the late medieval and early modern university of Leuven.

The Place of Fault in Grotius’s Conception of Liability for Wrongdoing (Joe Sampson) (OPEN ACCESS)

Abstract:

This article compares Grotius’s treatments of liability for wrongdoing in natural law and the law of Holland to emphasise the conceptual centrality of fault in both, and places Grotius’s analyses in their historical context by tracing the treatment of strict liability in those intellectual traditions upon which he drew. It focuses in particular on the formulation of obligations quasi ex maleficio to show how the absence of fault rendered the obligation something other than delictual.

Strict Liability and Necessity in Grotius, Pufendorf, Smith, Kant, and Beyond (Bart Wauters) (DOI 10.1163/18760759-42010005)

Abstract:

This article compares the views of Grotius and subsequent authors on the doctrines of necessity and strict liability. This comparison takes place at two levels. On the one hand, there is a comparison of the views of Grotius with those of Pufendorf, Smith, Kant and recent Kantian authors. On the other hand, there is a comparison between the doctrines of necessity and strict liability. This exercise leads to the conclusion that strict liability does not have to be a mere matter of choice opted for by positive law, but in some instances can also be thought of as a requirement of a private law framework expressing the fundamental moral equal freedom of man.

Grotius’s Position on Implied Servitudes by Means of Destinatione Patris Familias (Vincent Van Hoof) (OPEN ACCESS) (DOI 10.1163/18760759-42010006)

Abstract:

According to Grotius in his Inleiding (2.36.6), the actual use of two houses by the same owner could lead to the implied grant of a servitude if he transferred one of the houses to someone else, ‘without any mention either the one way or the other’. Various interpretations of this text exist, but the consensus is lacking. In this article, the author investigates the meaning and influence of Grotius’s position on implied servitudes in both his time and the following centuries. This research shows how Grotius’s opinion progressed from Bartolus’s approach to implied servitudes and sheds new light on the creation of servitudes by means of destinatione patris familias in the Netherlands.

Religion and Government in Hugo Grotius’s Annales: Orthodoxy, William the Silent and Reason of State (Jan Waszink) (DOI 10.1163/18760759-42010007)

Abstract:

In Grotius’s Annales, religion appears almost exclusively as a social and political problem. References (implied or explicit) to religion as a good thing or its positive effects are lacking. This aspect of Grotius’s text arises from its equation of ‘religion’ with ‘combative orthodox religion in the post-reformation era’. However, it is not credible that this view represents Hugo Grotius’s actual opinion of the Christian faith as such. The solution seems rather that the above equation must be a conscious rhetorical strategy designed to strengthen the argument of the Annales. Continuing from that conclusion, however, the texts allow us to deduce some views on reason of state and religious policy, which do seem to have been actually held by Grotius in this period, or at least to have enjoyed his active interest.

The History of Fair Trade: Hugo Grotius, Corporations, and the Spanish Enlightenment (Edward Jones Corredera) (DOI 10.1163/18760759-42010008)

Abstract:

The early Spanish Enlightenment was shaped by debates over corporations, sovereignty, and the balance of power in Europe. Spanish officials, in this context, turned to the ideas of Hugo Grotius to establish joint-stock companies that could allow the Crown to regain control over its imperial domains and establish perpetual peace in Europe. This article recovers the writings of Félix Fernando de Sotomayor, Duke of Sotomayor (1684–1767), who drew on the works of Grotius, Samuel Pufendorf, and Charles Dutot in order to show that the history of these corporations chronicled the contestation and erosion of Spanish power and the diversion of European states from their true interests. Sovereigns, not merchants, argued Sotomayor, could guarantee fair trade and the equitable distribution of wealth. The study of Sotomayor’s views on trade, natural law, and alienation challenges traditional interpretations about the Iberian engagement with Grotius, the rise of capitalist hopes in Southern and Northern Europe, and Spain’s investment in the Enlightenment.

Book reviews:

  • The Law of Nations and Natural Law 1625–1800, ed. by Simone Zurbuchen (Gabriella Silvestrini)
  • Michael P. Scharf, Milena Sterio and Paul R. Williams, The Syrian Conflict’s Impact on International Law (Robert Volterra)
  • Martha Nussbaum, The Cosmopolitan Tradition: A Noble But Flawed Ideal (Tarik Kochi)
(read further here)