Helge Dedek

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

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.

The Global Challenge in Common and Civil Law Contexts: A Canadian Perspective

The Canadian chapter brings together two reports, covering Quebec and the common law provinces of the country. In Quebec, a mixed jurisdiction, there has always been a particular awareness of the challenge of how to train students in both the common law and civil law, a history, the Quebec report finds, that has facilitated and furthered an internationalisation of legal education beyond the exigencies of Canadian bijuralism. The report on the common law provinces, however, diagnoses a lack of a similar mindset in common law Canada. Beyond this difference, in both common and civil law provinces, more and more opportunities are opening up for Canadian law students to add international components to their educational experience. The unified conclusion of the authors is that internationalisation should not only be perceived as including more inter and supranational topics in the curriculum or offering a more intense training of the skills necessitated by ‘global lawyering’. Properly understood, internationalisation would also include the creation of awareness of the economic and cultural implications of the phenomenon of ‘globalisation’ and of an understanding of legal pluralism as a manifestation of the phenomena of globalisation and migration in a domestic context.

A Particle of Freedom: Natural Law Thought and the Kantian Theory of Transfer by Contract

Modern contract law theorists frequently invoke Kantian ideas to conceptualize contract as a form of immediate transfer. The Kantian theory of contract itself is eclectic: Kant makes use of the main conceptual building blocks of Natural Law (in particular Grotian) contract doctrine – promise and transfer. Yet Kant re-arranges and adapts them to his own epistemology and conceptual system. I submit that because of this connection, additional light can be shed on Kant’s theory of contract by placing it in the context of contemporary Natural Law discourse. One of the most outspoken critics of contract theory in the Grotian tradition was then famous (and now apocryphal) legal philosopher Theodor Schmalz. Schmalz faulted Natural Law thought for conceptualizing contract as transfer by fallaciously – “subreptively” – explaining the normative event of creating an obligation through the model of the empirical transfer of physical objects. Kant’s theory reads like a response to this critique: Kant avoids modelling contract on the transfer of property. Rather, he explains any transfer as contractual, brought about by a unified will.