Scholastic Jurisprudence

From Max-EuP 2012

by Andreas Thier

1. Conceptual definitions

The term ‘scholasticism’ has its origins in the expression σχολαστικός, which in turn originates from the words σχολή (school, studies, leisure) and σχολάζειν (to devote oneself to something, to have leisure). So, originally σχολαστικός designates a person who is doing work of his choosing without external pressure. It is in that sense that σχολαστικόν is used in Aristotle’s Politics, where it designates the ‘reposeful’ and forms the basis of θεωρία. Since Theophrast (372/369–288/285 BC), σχολαστικός has been mainly used as a self-description by philosophers; later the term and its Latinized form scholasticus designated ‘someone belonging to a school’. In late antiquity and right into the Carolingian period this understanding evolved into attributions of special erudition and outstanding intellectual skills. At the same time, from around the 1st century BC σχολαστικός and scholasticus were combined with the expression rhetor, which had encompassed the meaning ‘legal counsel’ at least since Cicero. It corresponds to this development that starting in the 4th century at the latest, the term scholasticus had been used in the same way (see CTh 8,10,2); Augustinus even mentions the scholasticum iurisperitum (the ‘legally trained scholastic’). Later the word acquired an additional layer of meaning, as an ‘office holder’ (see also C. 12,61,2 pr), in particular in the Byzantine region. In the context of the Carolingian renaissance, scholasticus was used as the title of the head of a monastery or a cathedral school, the caput scholae. Since the 12th century, the adverb scholastice had been increasingly used to distinguish theology as taught at cathedral schools and university from monastic education. Essential for ‘scholastic’ academic theology in that sense was the high importance of dialectical philosophizing, while for monastic doctrine dialectics meant little more than a mere device for interpretation of the Bible and other authoritative texts. From a 16th century humanistic perspective, scholasticus meant the embodiment of the philosophically guided theologians of the later Middle Ages, who had become caught up in bookish argutii and subtilitates (‘overprecision’ and ‘subtleties’).

Similar in its beginnings, but also shaped, partly, by different assessments, an early modern ecclesiastical perception of scholastics evolved: Martin Luther in his Conclusiones contra scholasticam theologiam described scholasticism as theological exploitation of philosophy, which, however, contradicted the postulate of sola fide. The Roman Catholic church understood scholasticism in the same way, but valued it considerably more. Beginning with the Council of Trent (1545–63) scholasticism formed the essential base of the Roman Catholic doctrine of the faith, which was to be spread in particular by the Jesuit order and refined by the so-called Spanish Late Scholasticism (see 4. below). In 1879 the encyclical Aeterni Patris of Pope Leo XIII (1878–1903) declared the medieval doctrine, particularly as espoused by Thomas Aquinas (1224/25–74), to be the touchstone of the Roman Catholic position vis-à-vis secular philosophy. The rise of ‘Neo-Scholasticism’ in catholic theology that was thereby fostered continued well into the 20th century, even if Pope John Paul II (1978–2005) complained in his encyclical Fides et Ratio of 1998 about the loss of importance of philosophia scholastica in the period since Vatican II (1962–65).

Modern secular philosophy was dominated by a rejection of scholasticism. Here, it was perceived as the embodiment of ‘pedantic philosophy’ of ‘popish religious men’ slavishly following authority (Christian Thomasius, 1710), who produced nothing other than ‘artificial ignorance’ (John Locke, 1690). While these criticisms persisted until the beginning of the 19th century, the assessment began to change due to new historical approaches to the Middle Ages. Even non-catholic authors now started to discuss coherence and meaning of ‘scholasticism’ as historical phenomena. Until the early 20th century the dominant view was that ‘scholasticism’ designated an approach in the tradition of Christian thinking, which aimed to dissolve the friction between philosophy and theology by forming a kind of believing knowledge. In that understanding, the importance of authoritative texts like the Bible or the patristic writings, as well as the writings of philosophers of the antiquity, in particular Aristotle, is essential. Since the middle of the 20th century, the distinction between the ‘scholastic’ theology of the universities and a monastic theology has taken on greater significance. In the course of further discussion ‘scholasticism’ became increasingly a label for the epistemological approaches adopted in all high and late medieval scholarship taught and practised at universities. But here, too, auctoritas and rational argumentation, based on logic, remain of key significance. This kind of description of scholasticism as a mode of thinking in the high and late medieval scholarship guided, essentially, by the requirement of rationality and its concern with authoritative texts, provides the background for the following survey.

2. Elements of scholastic scientific culture

The starting point of scholastic scholarship is the analysis of authoritative texts (such as the Bible, patristic writings or works of Aristotle) which also shaped academic teaching. The lectio (reading) and the discussion of differing views proposed by other authorities expose different ways of thinking, which are then subjected to further inquiry in the form of the quaestio (question). Here, the dialectic method has a strong impact. Apparently already known in pre-Gratian canon law doctrine (canon law) (Ivo of Chartres, d 1115; Bernold of Constance, d 16 September 1100), this method was spread chiefly by the programmatic treatise Sic et non (‘Yes and No’) of Peter Abelard (1079–1142). By the 13th century the influence of Aristotelian teaching, translated in particular by Boethius (475/480–524) and Averroes (1126–92), reached its culmination. The standards of scientific argumentation, set by Aristotle, and the broad variety of Aristotelian metaphysical and natural philosophical categories became essential for the now-burgeoning development of scholarship and teaching at the universities. It was the guiding idea of this approach that the God-created order of the world was rational and therefore accessible to, and through, rational interpretation. So, the Aristotelian phrase ars imitatur naturam (art imitates nature) was understood not only as an aesthetic concept of mimesis. It also formed the point of departure for scientific knowledge. Here, as famously phrased by Thomas Aquinas, metaphysics as rectrix omnium aliarum scientiarum (‘ruler of all other sciences’) moved into centre stage. Statements such as this one revealed the notion of the ideal unity of all scholarship, which found its counterpart in the relative uniformity of the structural elements of argumentation and—in modern parlance—publication. Crucial in this context was the quaestio. Here, it had to be resolved whether contradictions between different texts could be eliminated by means of the distinctio (the distinction between different levels of understanding), because only in that case could the authority of seemingly contradictory texts be maintained. As a consequence, semantic differentiation gained importance. At the same time, quaestio and distinctio developed new layers of meaning within the text of an auctoritas. This kind of textual analysis also defined academic teaching at the universities, which started with the lectio, and where the disputatio developed into a mode of teaching of its own. This kind of academic teaching also shaped the types of scholastic literature: the gloss, originally only a paraphrasing comment to a single textual element, evolved from the lectio and developed later into the analytical commentary. Disputatio and quaestio found their counterparts in quaestiones disputatae and were later combined in the summa. It was characteristic for this development that the text of the work being discussed would itself take a back seat as against the presentation and discussion of different textual interpretations. Thus, the citation of contemporary authors and parallel texts assumed growing importance. From the 13th century onwards, this kind of debate was somewhat consolidated with the emergence of glossae ordinariae (loosely translated as ‘general commentaries’) on authoritative texts such as the Bible.

3. Scholasticism and medieval jurisprudence

As mentioned above, it had been pre-Gratian canon law that had contributed to the formation of the scholastic approach. It might also be said that the frequent references to the authority of patristic books (sanctorum patrum) during the period of the Gregorian reforms (canon law) at the end of the 11th century marked an antecedent of the legal thinking defined by scholasticism, which was to become the characterizing attribute of the ius commune, originating at the turn of the 12th century. The scholastic approach to law, ie its interpretation and teaching, was particularly strong at the school of Bologna, which arose at the beginning of the 12th century. This is illustrated by the programmatic title of Gratian’s decretum (canon law), which promised its contemporaries the Concordia discordantium canonum and which used for this purpose distinctio and quaestio, typical elements of the scholastic method. The typification of the literature of canon law and Roman law (ius commune) also mirrored the scholastic tradition: as early as the 12th century—initially originating from university teaching—glosses and summae were authored, which developed into lecturae and commentariae in the 13th century. Always, in this context, the quaestio provided the most important device for interpreting texts of Roman, canon and even feudal law, the authority of which provided the starting point of the discussion.

While, the glossators appear to have been mainly interested to use this method in order to solve concrete cases, by the 13th and 14th centuries, the tendency to work with more abstract perspectives and categories gained ground. Telling in this respect was a statement by Baldus de Ubaldis (1327–1400): qui vult scire principiata debet noscere principia (he who wants to know what derives from the principles must know the principles; Commentaria in Digestum vetus ad D 1,1,1, no 2). However, the learned jurisprudence of that period was far removed from monumental systematizing concepts such as those developed in Thomas Aquinas’ Summa Theologiae, even though it has been demonstrated that Baldus and his contemporaries at least rudimentarily debated possibilities of a more systematic order of legal knowledge and legal norms (Maximiliane Kriechbaum). Substantive elements of scholastic discourse gained more influence: thus, the doctrine of the four causae (causa formalis, materialis, efficiens and finalis), borrowed from Aristotle, was used in order to interpret contractual obligations, or governmental use of power. Similar developments can be shown for the application of the categories actus/potentia and forma/materia, which were used in contractual doctrine or to distinguish actio and obligatio. But despite this apparent proximity of jurisprudence to theology and philosophy, the jurists from early on claimed an epistemological identity of their own. Partly, it was acknowledged that the approaches shared a common starting point, as portrayed in the parable by Stephen of Tournai (1128–1203), who compared theologus et legista to two guests invited for a meal, one of whom preferred sweet dishes, and the other the sour ones. At the same time, however, the autonomy at least of scholarship in Roman law was fiercely stressed as, for example, in the firmly negative answer to the question whether iuris consultus … debeat theologiam legere (whether ‘a jurist has to read theology’): everything could be found in the Corpus iuris (‘omnia in corpore iuris inveniuntur’; Gl Notitia ad D 1,1,10,2). This strict orientation on texts of Roman and canon law corresponded with Bartolus’ statement that verbis… Aristotelis … iurist(a)e … non saperent’ (jurists do not know Aristotle’s words: Tractatus de regimen civitatis). These jurisprudential efforts at demarcation were sparked not least by the fact that theologians debated numerous legal topics and issues. This can be seen, for instance, in the discussion on the basis of property rights or theological concepts of natural law.

4. Spanish late scholasticism

As mentioned above, in the age of reformation and counter-reformation the Thomistic tradition gained special importance for the Roman Catholic culture of knowledge. Characteristic in this regard was the substitution of Petrus Lombardus’ (d 1160) Four Books of Sentences, for long the most influential textbook of academic theological teaching, by Thomas Aquinas’ Summa Theologiae. In Spain in particular, Thomistic texts gained considerable prominence, especially at the university of Salamanca. Here Thomas’ commentaries and the so-called Relecciones by the Dominican theologian Francisco de Vitoria (c 1483–1546) formed the foundation for a new tradition. The authors of treatises based on these writings were frequently theologians such as the Dominicans Domingo de Soto (1494–1560) and Melchor Cano (1509–60), the Jesuit Francisco Suarez (1548–1617) or the Franciscan Alfonso de Castro (1495–1558). But Thomistic theology was also adopted by jurists such as the canonist Diego de Covarrubias y Leyva (1512–77), his academic mentor Martin de Azpilcueta (1491–1586) and the more Roman law oriented Fernando Vázquez de Menchaca (1512–66). Apart from their common affinity to Thomistic doctrines, these authors were also joined in their alignment to the scholastic approach of sic et non. In combining moral-theological and jurisprudential auctoritates, a conjunction which rarely occurred in the Middle Ages, perspectives of argumentation were extended even though the works of these authors remained linked to the formal structure and the thematic universality of medieval scholasticism. Against this background the frequently used labels of ‘Spanish Late Scholasticism’, ‘Iberian Late Scholasticism’ or sometimes also ‘Second Scholasticism’ is certainly correct. Somewhat ambiguous, however, is the occasionally used term ‘School of Salamanca’: Apart from the fact that not all authors were affiliated to the University of Salamanca, this expression further implies a similarity of arguments and perspectives that did not actually exist.

In terms of content, the Spanish authors were strongly moulded by their allegiance to concepts of natural law based, essentially, on Thomas Aquinas’ doctrines. On this basis, conceptions of individual rights and liberties were developed, which were inspired also by the question of how to deal with the peoples under the newly created colonial rule. Moral theology and natural law also came together in debates on the justification of acts of war, the legitimacy of political power and its limits, and a very refined general criminal law doctrine. In the field of private law, conceptions of property, mutual contracts and restitution had a particularly strong impact on 17th and 18th century secular conceptions of natural law and thus indirectly still influence our modern legal thinking.


Heinrich Schmidinger, ‘“Scholastik” und “Neuscholastik”: Geschichte zweier Begriffe’ in Emerich Coreth, Walter M Neidl and Georg Pfligersdorffer (eds), Christliche Philosophie im katholischen Denken des 19. und 20. Jahrhunderts, vol 2 (1988) 23; James Gordley, The Philosophical Origins of Modern Contract Doctrine (1991); Heinrich Schmidinger, ‘Scholastik’ in Historisches Wörterbuch der Philosophie, vol 8 (1992) col 1332; Norman Kretzmann, Anthony Kenny and Jan Pinborg (eds), The Cambridge History of Later Medieval Philosophy (1997) 192; Annabel S Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (1997); Christoph HF Meyer, Die Distinktionstechnik in der Kanonistik des 12. Jahrhunderts (2000); Maximiliane Kriechbaum, ‘Methoden der Stoffbewältigung’ in Hermann Lange and Maximiliane Kriechbaum, Römisches Recht im Mittelalter, vol 2 (2007) 264; Johanna M Baboukis (tr), Josef Bordat, ‘Late Scholasticism’ in Stanley N Katz (ed), The Oxford International Encyclopedia of Legal History, vol 4 (2009) 15.

Retrieved from Scholastic Jurisprudence – Max-EuP 2012 on 25 May 2022.

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