Blowhard, Esq. writes:
Common-law legal reasoning, or the method by which lawyers and judges analyze a problem, has roots that stretch back almost 1,000 years to the educational method known as Scholasticism. Before we get to exactly what Scholasticism is, though, it’s important to know a little about Monasticism, the type of learning it replaced.
Monastic learning was passive by design. One was not supposed to question the Biblical text or writings of the Church fathers. Monks sat quietly and listened during their mealtimes as someone read to them. Didn’t understand a point? Had a question? Too bad. Monastic vows usually prohibited speaking. The point wasn’t to assert your will — the point was to obliterate it. (Sounds a bit like undergrad education today, if you ask me.)
The favored genre of Monastic learning was Biblical commentary. Commentators would gloss a text line by line, word by word, speculating on the spiritual significance of what they read. While these commentaries were restricted by the text, they were also meditative, associative, and stream of consciousness. There wasn’t much logical organization to these Monastic glosses, so the monks sort of just ramble on.
The Scholastics, on the other hand, approached things quite differently. While Monasticism was a product of the rural, contemplative countryside, Scholasticism arose in the towns and cities that were thriving during the Commercial Revolution. The Scholastics emerged from milieu in which people were quite comfortable speaking, haggling, and arguing — they sought out conflict.
As for the method itself, the Scholastics started with a question, for example, “Is it ever permissible to lie?” They would then comb through the recognized authorities — the Bible, texts of the Church fathers, Church communications, Papal letters, the pagan philosophers — looking for points of agreement and disagreement. The next step was the juxtaposition of these authorities, lining them up pro and con. Then, via a dialectical process, they would reconcile the authorities, arguing that if you looked closely, they actually didn’t disagree at all. This reconciliation was accomplished in two ways: 1) via philological analysis (the Scholastics loved to split hairs over the meaning of words) and 2) via logical, formal analysis.
The Scholastic method should sound awfully familiar to any lawyers in the audience because this is exactly how modern legal reasoning works, as well as providing the basic blueprint of judicial appellate opinions. An appellate opinion usually begins with the “question presented,” i.e. the legal issue to be determined. Then, the judges review the controlling legal authorities — decisions of prior courts that have ruled on similar issues, influential law review articles, treatises, etc. If there is a direct conflict among the authorities, the judges will do their best, via philological analysis and formal logic, to synthesize and reconcile the conflict. Most United States Supreme Court decisions follow this model — the Justices are not usually deciding a novel legal issue, they’re trying to reconcile a conflict between two different federal appellate jurisdictions who are coming to opposite outcomes on the same issue.