Theology, Philosophy and Law in the Late Scholastic Teaching of Restitution

© Mohr Siebeck

The new monograph by Prof. Nils Jansen, law professor at the Cluster of Excellence „Religion and Politics“ examines theology, philosophy and law in the late scholastic teaching of restitution. The book paints an expansive picture of extra-contractual claims to restitution in the early modern discourse of natural law. According to Jansen, core assessments made in the understanding of restitution are still ubiquitous in European law and central elements of this doctrine continue to prove useful today. The book has been published by Mohr Siebeck Press and presents the results of Cluster Project A2-8: The doctrine of restitution in 16th-century scholasticism.

Restitution was originally one of the central doctrines of medieval and early modern moral theology, which integrated large sections of the law of debt, profit, liability and indemnity into a closed system. In its developed form, this doctrine combined theological, philosophical and legal elements into a comprehensive theory of natural law, which was used daily as part of the Catholic practice of confession. The analysis therefore clearly shows that the restitution theory may never have been separated entirely from its religious foundations, but it acquired its concrete form only as an increasingly legally formulated, dogmatically fixed theory of justice. The theory of restitution was therefore paradigmatic for the creation of a theory of moral theology in late scholasticism.

In the third part of his book, the author describes why the theory of restitution as such never entered the secular discourse of natural law and legal scholarship. Theological and not legal reasons were decisive here. The theory of restitution was part of the sacrament of penance. Given the controversies over doctrines of justification, the theory of restitution became practically symbolic for the confessional division of Europe. Prof. Jansen therefore sheds light on a systemically central point of early modern discourses of natural rights and on the difficult question of how European legal scholars of the 17th century handled the intellectual legacy of 16th-century scholasticism.

Literature: Jansen, Nils, Theologie, Philosophie und Jurisprudenz in der spätscholastischen Lehre von der Restitution. Außervertragliche Ausgleichsansprüche im frühneuzeitlichen Naturrechtsdiskurs (Grundlagen der Rechtswissenschaft, vol. 19), Tübingen: Mohr Siebeck 2013.