Legal Thought Evolution: From Medieval Dialectics to Modern Systems

Foundations of Legal Discourse Theory

The primary objective of discourse theory is to identify the viewpoints and arguments from which issues can be considered. The direct adoption of these arguments and views is often associated with specific places or topics.

Medieval Legal Dialectics and System Integration

Medieval legal thought employed dialectical processes and methods, often derived from topography, to discover arguments. A monumental achievement of legal thought during this era was the integration of diverse legal traditions into a single system. These traditions included:

• Roman Law
• Canon Law
• Feudal Law
• Municipal Law

Each of these legal systems possessed its own distinct viewpoints and sources of legitimacy; their orders were often contradictory yet essentially autonomous. Reconciling their compatibility within a unified legal order was a quintessential task of the art of debate, which, starting from diverse perspectives, aimed to achieve consensus.

Challenges to Meaningful Consensus

The practice of organizing consensual discussions, while aiming for widespread agreement, has become increasingly superficial. Consensus is no longer about specific, content-rich aspects but is instead organized around general formulas devoid of specific references.

Critique of Generic Formulations

Both discourse theory and legal methodology recognized the weakness of overly generic formulations. They insisted that "no general rule can extract the specific remedy, but rather one must infer the rule" and that "all generic definition is dangerous."

Evolution of Legal Principles

Late medieval schools developed more general principles of law that were subsequently adopted by schools of rational law as fundamental legal principles.

Evolution of Legal Systems: Inductive to Deductive

The 14th to 17th centuries witnessed the inductive formation of the 'legal system,' driven by a particular worldview. From the 18th century onward, this system was perfected, its axioms developed, and legal thinking became limited to deductive explanation, exemplified by Pandectistics.

The Rise of Pandectistics and Modern Crisis

The 19th and 20th centuries marked the beginning of a new effort to rebuild the system, as the evolution of legal institutions, necessitated by new societal needs, triggered an internal legal and conceptual crisis.

Unifying Legal Institutions: A Conceptual Challenge

This monumental task of unifying legal institutions demanded significant effort. It required identifying a viewpoint from which a logical unity or relationship could be established among the various legal institutes under consideration.