The Western legal tradition portrays itself as a tradition of rationality. Although this tradition has its roots in the academic treatment of law at the medieval university, the medieval juridical mannerisms seem to be anathema to the Weberian "formal rationality." Scholasticism has become the synecdoche for the problems we moderns have when trying to access medieval thought. Medieval Scholastic jurisprudence seems prima facie strangely formalistic, guided by ambitions that are incomprehensible to the "modern mind." Yet medieval jurisprudence is not as remote from us as it might seem at first glance. This paper aims to demonstrate that what connects the medieval and the modern jurist are aspects of legal discourse that cannot be explained in `rational' terms. To this end, the paper focuses on the "legal aesthetics" of the Scholastic jurists, exemplified by an inquiry into the doctrine of "interesse," one of the most controversial areas of the law of damages.
Monday, January 30, 2012
Dedek on Scholastic Jurisprudence and Us
Posted by Dan Ernst
Helge Dedek, McGill University Faculty of Law, has posted The Splendour of Form: Scholastic Jurisprudence and "Irrational Formality," which appeared in Law and Humanities 5 (2011): 349-383. Here is the abstract: