The Binding Force of Unilateral Promises in the Ius Commune before Grotius, in Grotiana 41 (2020), pp. 40-58 ISSN 0167-3831 (print only) 1876-0759 (online) (original) (raw)
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ON THE ENFORCEABILITY OF CONTRACTS: EQUITY, JUSTICE AND LAW IN THE IUS COMMUNE
In this brief study of the medieval jurisprudence, customary law and contracts during the thirteen century I have presented some of the basic ideas of Bartolus, Baldus, Hostiensis, and exposed the two different opinions that were formed in the canonistic literature on the enforceability of contracts: Johannes Teutonicus and Innocent IV. During this “rebirth” of law in the thirteen century, roman and canon law witness the rise of the ius commune and its subsequent impact upon equity and justice. The influence of Roman law upon the canon law is well-known, however starting with Bartolus and Baldus, from the XIV century a new ius commune emerges based on the influence of the doctrine and jurisprudence of contemporary institutions and enhanced by the medieval mutations.
Grotius's Contract Theory in the Works of His German Commentators: First Explorations
Grotiana, 2020
Due to its enormous importance, Grotius’s contract doctrine has been extensively investigated by legal historians. This paper seeks to enhance scholarly understanding of this topic by looking at commentaries on De jure belli ac pacis written by German theologians and jurists in the second half of the seventeenth century. The paper focuses on comments concerning promises: the criteria for promises that are binding under natural law; the foundations of the obligation to keep promises; error and duress; and immoral promises. Grotius’s contract doctrine rested on a mélange of sources, both theological and juridical, which were not always consistent. Commentators sought to harmonise them by looking at them from different perspectives: some comments were mainly based on interpretations of ius commune texts, whereas others reflected a moral theological approach. The results drew distinctions (directly or indirectly) between law and moral theology that contributed to the fragmentation of Grotius’s synthesis.
Ius gentium: The Metamorphoses of a Legal Concept (Ancient Rome to Early Modern Europe)
in: Empire and Legal Thought. Ideas and Institutions from Antiquity to Modernity, ed. Edward Canavagh, Brill/Nijhoff [Studies in the History of International Law], Leiden/Boston, 2020
This chapter outlines a history of the concept of ius gentium. It is intended to serve as a contribution to the intellectual history of international law, from Late Antiquity to Early Modern Times. The historical role played by the concept in the framing of international law is not easy to evaluate, as the oldest traces of Roman ‘public international law’, in the sense of law regulating relations between polities, are actually found within ius fetiale. It is, in fact, difficult to arrive at a clear understanding of ius gentium in the history of Ancient and Medieval legal thought, due to a semantic stratification dating back to Roman Antiquity: on the one hand, a fundamental ambiguity exists in the relationship between ius naturale and ius gentium (as in Gaius’ definition, Dig. 1.1.9, possibly under Ciceronian influence) – on the other, the latter, first classified as a branch of the ius privatum (Ulpian, Dig. 1.1.1.4), was later understood as including public law institutes (Hermogenian, Dig. 1.1.5) and even institutes mainly relating to foreign relations (Isidore of Seville, Etymologiae V.6 = Decretum c. 9, d. 1). The simple juxtaposition of these definitions within Justinian’s compilation and Gratian’s Decretum raised several theoretical issues for Medieval jurists, and generated a significant scholarly debate. Firstly, following Dig. 1.1.4 and Dig. 1.1.5, glossators argued that ius naturale and ius gentium – not, as would be claimed by later jurists, Roman law as a whole – formed the ius commune. Secondly, commentaries on Dig. 1.1.5 analysed the various legal institutes listed within the passage, focusing particularly on dominium and obligations. Thirdly, both jurists and theologians elaborated extensively upon the connections between ius gentium and ius naturale: they first drew a distinction between ius naturale primaevum and secundarium, and then reformulated this distinction in such a way that ius gentium itself was split into ius gentium primaevum and secundarium. Many words were to be expended on this distinction until well into Early Modern Times, in the course of a discussion which recent scholarship has studied in depth. This chapter, however, will focus less on this doctrinal debate during the the sixteenth and seventeenth centuries than on the transformation undergone by ius gentium as it developed into a ius inter gentes specifically regulating relations between political communities. Special attention will be paid to diplomatic theory, which has proven to be a particularly interesting field within which to fully evaluate the slow emergence of the state as the only legitimate subject of international law.
This paper will investigate the errors that can make the judgment null and void and, therefore, produce the reversal of the res judicata. Res judicata is considered the irrevocable end of a correctly constructed judicial proceeding. We will try to find out what, in the Sixteenth and Seventeenth centuries, gives substance to this assumption in order to better understand the discipline of the miscarriage of justice of the time. We will see what the differences are between final judgment and res judicata; the elements which constitute the authority of the res judicata and the iuris et de iure presumption which gives it foundation; and the judicial errors made in a criminal judgment that are taken into consideration by the jurists. The errors that can be made by the judge while judging are directly proportional to the powers entrusted to the judge itself by the political order within which he operates. The power of judging and the duty to do it according to certain rules converge upon the figure of the judge. The res judicata produces effects precisely because it is the result of the correct interaction between such power and such duty. The power of judging which the political order entrusts to the judge is limited by the fact that he has carried it out within the rules established by the same political order. The widening and narrowing of these limits have repercussions on the irrevocability – or better, on the capacity of not being rescindable – of the res judicata which, in the most extreme hypothesis, could be valid and therefore produce its effects even in the case where the judge operates without respecting the rules . The sources that have been consulted for this paper are essentially of a doctrinal nature and they refer to a period that goes from the end of the Fifteenth to the Seventeenth century. Jurists, that have been taken into consideration, belong to the territories of present-day Germany and central-northern Italy and are known as ius commune jurists.
Political consent, promissory fidelity and right transfers in Grotius
Grotiana, 2019
Grotius (1583-1645) is now widely acknowledged as an important figure in early modern contractual and consensual theories of political authority and legitimacy. However, as his thoughts on these debates are disseminated throughout his works rather than systematically ordained, it remains difficult to assess what, if anything constitutes his distinctive mark. In the present paper, I will argue that his works contain a combination of two conceptual elements that have come to constitute a salient characteristic of early modern contract and consent theories: first, a strong obligation to keep one’s promises, and second, an account of perfect promises as transferrals of rights. In the political sphere, this means that citizens who have promised their obedience to the authorities are obligated to keep faith, which provides a solid foundation for political obligations. In addition, their promise implies that authorities receive the right to rule over them, which accounts for the legitimacy of these authorities' power. https://brill.com/view/journals/grot/40/1/article-p123\_123.xml
Forum Prawnicze 6/80, 2023
The article examines arguments based on Roman law in Chapter V of Hugo Grotius’ Mare liberum, sive de iure quod Batavis competit ad indicana commercia dissertatio. This short treatise, constituting in fact an extract from a larger work known as De iure praedae commentarius, not published during Grotius’ lifetime, is an excellent example of how new normative solutions can be developed on the basis of existing legal institutions. Some of these institutions, despite having been developed as part of the ancient Roman law, were treated by Grotius as having their origins in natural law (ius naturale), or the law of nations (ius gentium). The reference to natural law certainly facilitated the transposition of institutions that had historically fitted into the framework of private law (ius privatum) into the realm of public law (ius publicum). This tendency was one of the key factors in the development of the early modern concept of ius gentium. Hence, the analysis covers the institutions and concepts invoked by Grotius, such as, in particular, occupatio, res publicae, and res omnium communes. Their use is a proof of the realism of Grotius, who creatively applied the institutions of Roman private law to public jurisdiction over the seas.
Journal of Modern Science, 2022
It is believed that in the post-modern age the legal security and the predictability of judicial decisions have entered a crisis because the principle of the judge’s subjection to the statute is also in crisis. The Roman law could teach us that the legal security and the predictability of judicial outcomes have experienced a pre-modern age where they were not linked to the modern principle of the judge’s subjection to the statute but were instead linked to the principle of unambiguous, clear and precise wording of the legal paradigms which the judge was subjected to in order to deliver his judgment. According to the Roman foundations of the European law, the institutions of the European Union have drawn our attention back to the necessity of unambiguous, clear and precise legal text. The Latin sources analysed here show the use of the formulae («precise, strict, and simple») and not of the statutes as a guarantee of predictability of judgement outcomes and as a control of the sentences of the judges. We may say that the judge in the Roman formulary procedure was subject to the magistrate’s formula and not to the statutes, because the relationship was between the judge and the formula and not between the judge and the statute. In conclusions, the current crisis of the statute should not necessarily lead us to abandon the need to guide the judges’ decisions with clear, precise and unambiguous legal paradigm.