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In this article, my objective is to provide an understanding of Isidore of Seville’s enormously influential definition of ius gentium in its own right. Recent studies have primarily focused on the legal aspects of Isidore’s conception of ius gentium. However, while Isidore as a man of learning was familiar with the legal categories he used, it is by no means certain that his understanding of legal concepts would match that of a contemporary jurist. Isidore was a theologian, and there are strong indications that he was more than a mere transmitter of classical knowledge. In this article, I show that he was an original thinker whose conception of ius gentium contained several innovative features that could not be fully grasped without a deep understanding of his theological ideas based on Augustine and Gregory the Great.
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.
Present-day scholarship on the law of delicts (or the law of torts) can be broadly divided into two 'camps' .1 The first group of theorists manages a consequentialist conception: the system of delictual liability is modelled in view of the consequences it yields. Since the work of Ronald Coase, Guido Calabresi, and Richard Posner, these consequences are often seen in economic terms. The costs of accidents are externalities; the prevention of those externalities also leads to costs. It is the role of the law of delicts to force injurers and victims to take these costs into account and/or allow them to adjust their level of behavioural activity. The overall result is wealth maximisation. The second group of theorists favours a non-consequentialist or 'moral' approach. This is not to say that an economic analysis is not 'moral'; there is a sense in which wealth maximisation is the embodiment of the moral requirement of putting resources to their highest use. At the very least, as Posner emphasises, wealth maximisation is perfectly consistent with most influential moral systems.2 Rather, the 'moral' or non-consequentialist approach starts the analysis from the general idea that wrongdoing or unjustified conduct underlies liability.3Strict liability is easily incorporated into a consequentialist or economic conception as it builds upon the kind of cost-benefit analysis the Learned Hand Philosophical Foundations of Tort Law, ed. by David G. Owen (Oxford: Oxford University Press, 1995), pp. 99-111 (p. 111). 3 A still-useful overview of tort scholarship until the end of the twentieth century is provided by David G. Owen, 'Foreword. Why Philosophy Matters to Tort Law' , in Philosophical Foundations of Tort Law, pp. 1-27.
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