For most textbooks on European legal history, the sixteenth century is the age of Legal Humanism. If we were to assess the importance of different strands of legal thought according to their contribution to the development of the law, however, there could be no doubt that the same period was, in fact, the ‘age’ of the Second Scholasticism. And yet, apart from a few exceptions, it has only been during the last few decades that scholars have begun to take a serious interest in the subject. There are several reasons for this. One, and perhaps the most relevant, is that it would have shifted the focus away from the dominant narrative of the history of European private law as a German centripetal movement, culminating first with Savigny's Historical School and then with Pandectism.
The premise of this narrative lay in the Dutch ‘twist’ of European legal thought, which served as a legal, cultural and geographical basis to move away from the late Middle Ages (still rooted in the ius commune). To this end, the importance of the School of Salamanca had necessarily to be downplayed. A short survey of its most famous components was invariably used only as an introduction to Grotius, after whom the attention progressively shifted to his German ‘successors’. Most of the authors who focused more carefully on the Second Scholastic typically looked only at its contribution to the birth of international law. This is, of course, an important subject but it added to the impression that, within private law, the School of Salamanca was mainly instrumental to the novelties introduced by Grotius and then elaborated by German scholars.
This impressive study by Decock fits within a new strand of scholarship focusing on the School of Salamanca in its own right. Such a reason alone would be sufficient to welcome his work as a valuable contribution. But the book deserves appreciation on so many levels as to place historiographical reasons at the end of a long list. Decock explores the influence of the Spanish early modern moral theologians on contract law. The core of the work, however, lies in the investigation of the tortuous route leading to the general consensualist principle, reached by bending canon law principles so as to move away from the strictness of Roman law.
The influence of the Second Scholastic on the development of contract law was immense. Similarly great, however, are the difficulties of a thorough study of the subject. The main one lies in the overabundance of material. The number of treatises and their complexity are such as to require the sacrifice of some and more of a focus on others. Particular attention is given here to the principal authors (or, more correctly, those whom we would consider as such), especially – in rough chronological order – Francisco Vitoria, Martín de Azpilcueta, Domingo de Soto, Diego de Covarruvias y Leyva, Bartolomé de Medina, Domingo Báñez, Luis de Molina, Francisco Suárez, Lenaert Leys (Lessius), Pedro de Oñate, Juan de Lugo and Huig de Groot (Grotius). But ample space is also devoted to a vast number of other authors, often important in their own right. As a result, the work gains enormously in coherence, much to the benefit of the reader.
Lessius occupies a pre-eminent place in the book, as of course he deserves. But Decock is always careful not to give the false impression to the reader that Second Scholasticism was a continuous and organic progression, moving from Vitoria and culminating with Lessius. It would be more accurate to say that ‘moral theologians’ is a catchphrase, encompassing many and different lines of thought. The author explores such different lines, highlighting similarities as well as differences. Chronology is never confused with continuity, and even when there is cause for continuity the different nuances between authors on specific subjects are always carefully examined. The book does not seek to tell a story in which every phase is a further step to the conclusion, as happens only too often in scholarly works. To borrow a musical metaphor, early modern legal thought – all the more in contract law – was a counterpoint, not a military march. In this spirit, Decock compares different authors so as to explain what influence one had on another, and why their solutions on the same issue often diverged.
If the challenges that the subject posed to the author are great, so are those faced by the modern reader. To fully appreciate the significance of the Second Scholastics on private law, the reader has two main obstacles in particular. The first lies in the intricacies of the ius commune: moral theologians drew on the late-mediaeval civil and (especially) canon law, and some basic knowledge of both is necessary to understand the conceptual framework within which they operated. Also, the origin of a principle of contract law is often to be found in a different subject (which, following our modern distinctions, could be as remote from private law as administrative law). It is therefore not possible to limit one's analysis to the private law ‘parts’ of the ius commune. The second obstacle is the very different mentality of early modern authors, for whom there was no solution of continuity between law and theology. After a short but robust methodological premise (Chapter 1), the first part of the book is devoted to a careful introduction to the subject, which allows the non-acolyte to navigate through the intricacies of late-mediaeval ius commune while at the same time approaching the main representatives of the School of Salamanca (Chapter 2). It is a masterful synthesis and a captivating narration, expertly leading the reader through the intricacies of a subject of great complexity.
The book then moves to the analysis of the salient steps leading to the construction of a unitary law of contract, a general contractual category based on offer and acceptance (Chapter 3). This chapter is of crucial importance because it serves as the central point around which the rest of the book develops. The other chapters deal with a series of limitations to the consensualist principle. The analysis of such limitations is of great importance in better defining the scope of the principle itself. At the same time, the analysis provides precious insights into the working and mind-set of early modern moral theologians. The first series of limitations is devoted to the issue of vitiated consent, such as fraud, mistake and duress (Chapter 4). Here Decock offers a masterful and clear explanation of the progressive overcoming of the (Roman law) distinction between contracts based on good faith and contracts based on strict law. A second group of limitations is represented by external legal constraints imposed by ecclesiastical and secular authorities (Chapter 5). The discussion focuses on whether such constraints may be binding in conscience, therefore limiting the freedom of contract of the parties. The next chapter deals with the limits posed by an immoral object, such as prostitution. The last substantive chapter engages in a complex discussion on fairness in exchange. In all these last three chapters Decock displays consummate knowledge of the subject, striving for clarity without oversimplifying complex debates.
A final chapter concludes the book. It provides an insightful summary of some salient points of the work while also offering an engaging comparison with a modern perspective, so as to highlight the structural differences and to further explain the framework within which the early modern moral theologians operated.
Decock's book is undoubtedly a milestone in the study of the approach to contract law by early modern theologians. It is exhaustive and yet reader-friendly, a clear sign of the writer's mastery of the subject and, at the same time, a relief for the reader interested in but not very familiar with late mediaeval and early modern Continental legal thought. It highlights the insufficient amount of studies of the same calibre on related subjects, such as the progressive separation of conscience from canon law, the relationship between catholic and protestant moral theologians, the influence of moral theologians on the emergence of natural law, and so on. As with any great study, it equally fills and furthers our ignorance: one realises both how much one does not know, and how much there is still to study.
