The Splendour of Form: Scholastic Jurisprudence and 'Irrational Formality'
McGill University - Faculty of Law; Institute of Comparative Law
December 1, 2011
Law and Humanities, Vol. 5, No. 2, pp. 349-383, 2011
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.
Number of Pages in PDF File: 35
Keywords: Medieval jurisprudence, Scholasticism, rationality, formality, legal aesthetics, doctrine of interest, damages
JEL Classification: K10, K12, K19, K40, K49
Date posted: January 26, 2012