Wim Decock, THEOLOGIANS AND CONTRACT LAW: THE MORAL TRANSFORMATION OF THE IUS COMMUNE (CA. 1500–1650) Leiden: Brill (www.brill.com/lhl), 2013. xvi + 724 pp. ISBN 9789004232846. €179.00.

Pages155-157
Published date01 January 2015
AuthorDot Reid
DOI10.3366/elr.2015.0264
Date01 January 2015

The influence of the so-called Spanish scholastics on the development of the ius commune is not a novel idea. James Gordley's influential book The Philosophical Origins of Modern Contract Doctrine (1991) examined the way in which the moral theologians of the Counter-Reformation mined the philosophy of Aristotle and the theology of Thomas Aquinas to develop the rules of private law. Gordley also argued that the Aristotelian concept of commutative justice was an explanatory legal principle and that its interpretation by the scholastics had a profound impact on the natural lawyers of the seventeenth century. As such, this aspect of legal history must be of interest to Scots lawyers since Stair belonged to that tradition.

Wim Decock's Theologians and Contract Law: the moral transformation of the ius commune (ca. 1500–1650) builds on those foundations and represents 724 pages of detailed research, based on the author's doctoral thesis, on the development of legal thought in the sixteenth and early seventeenth centuries. It provides voluminous detail on the writers and thinkers of the period focussing principally on the theologians and the way in which the ius commune was “transformed into the image of Christian morality” (Prologue). Decock argues that one result of this transformation was the birth of the concept of freedom of contract as part of a moral universe which respected the power of individuals to undertake contractual obligations by virtue of their mutual consent.

Freedom of contract is the book's central organising theme, perhaps chosen because it naturally opens up larger debates about the relationship between law and morality, the sacred and the secular, and it provides an ideal framework in which to explore what the author describes as “a vibrant tradition of scholastic contract law” (Prologue). Decock covers a broad sweep of intellectual thought across the sixteenth and seventeenth centuries. He examines the writings of major scholastic theologians such as Suárez, de Soto, Sanchez and Lessius; the canonists Navarrus and Covarruvias; many civilian and humanist jurists; and an array of other texts too numerous to mention, as well as extensive secondary literature in English, French, Italian and German. Particular emphasis is placed on Lessius who is regarded as a “gateway” (18) to a much larger literature. His work not only points back, showing the influence of the writers who preceded him, but also forward as a source of inspiration for the work...

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