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The Splendour of Form: Scholastic Jurisprudence and 'Irrational Formality'

Law and Humanities, Vol. 5, No. 2, pp. 349-383, 2011

35 Pages Posted: 26 Jan 2012  

Helge Dedek

McGill University - Faculty of Law; Institute of Comparative Law

Date Written: December 1, 2011

Abstract

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.

Keywords: Medieval jurisprudence, Scholasticism, rationality, formality, legal aesthetics, doctrine of interest, damages

JEL Classification: K10, K12, K19, K40, K49

Suggested Citation

Dedek, Helge, The Splendour of Form: Scholastic Jurisprudence and 'Irrational Formality' (December 1, 2011). Law and Humanities, Vol. 5, No. 2, pp. 349-383, 2011. Available at SSRN: https://ssrn.com/abstract=1992377

Helge Dedek (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

Institute of Comparative Law ( email )

3644 Peel Street
Montreal, QC H3A 1W9
Canada

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