Biography
Using an existing biography as a draft to make a new one
 
Introductory Note
A few short biographies of Paul Scholten have been written, all of them in Dutch. One of these is available on the internet: W.M. Peletier, ‘Scholten, Paulus (1875-1946)’, in Biografisch Woordenboek van Nederland, The Hague 1979, last modified 2009.
DPSP acquired permission to make an English translation of this text and publish it on this website. You will find this translation below.
Many details in this biography, however, require an explanatory note, not only for the foreign reader, but also for the younger generation of Dutch readers. At the same time, in many cases the question arises whether this information is relevant for Paul Scholten’s theory.
It can be argued that a conception of law as propagated by Paul Scholten, which stresses the importance of  the autonomous decision of the judge, is inherently connected with a conception of the kind of character one has to develop, the kind of life one has to live, the kind of background knowledge and experiences one has to acquire to be able to live up to this high office. From such a perspective law is more a cultural and social phenomenon than a rational discipline.
There are thus two issues at stake here.
  • 1 Leave a comment on paragraph 1 0
  • Firstly it can be asked which elements of the biography posted below are nowadays relevant, and also which elements are lacking.
  • Secondly the problem must be solved how the social, cultural and political aspects of the life of Paul Scholten that are deemed to be relevant can be explained to foreign readers. To “explain” means here to make it comparable with social, cultural and political phenomena to which foreign readers are acquainted. Therefore the reader will find a list of possible research questions which have arisen in the course of translating the Dutch biography in the section: Social and Cultural context . The discussion about which of these possible research questions should be selected for further research is closely connected with your comments on the draft below.
 
SCHOLTEN, Paulus (1875-1946)
Translation of a Dutch text : © ING – Den Haag. Source: W.M. Peletier , ‘Scholten, Paulus (1875-1946)’, in Biografisch Woordenboek van Nederland, The Hague 1979, last modified 2009.

Early Childhood

2 Leave a comment on paragraph 2 0 Scholten, Paulus, jurist (born Amsterdam 08-26-1875 – deceased aboard MS Delftdijk 05-01-1946 on his way to the United States and Canada).

3 Leave a comment on paragraph 3 0 Son of Gerbert Scholten, broker, and Catharina Elisabeth Ledeboer. Married on 04-23-1903 to Grietje Fockema. Of this marriage 2 sons and 1 daughter were born.
In his native town, Scholten attended primary school and the municipal senior school which from 1927 onwards was called the Barlaeus Gymnasium. Here he enthusiastically took part in the activities of the school clubs and contributed to the literary club, called Disciplina Vitae Scipio.

Study

4 Leave a comment on paragraph 4 0 In 1893 he enrolled in the Faculty of Law at the Universiteit van Amsterdam. On 02-08-1895 he successfully passed the candidate’s exam, and on 01-26-1898 the (final) doctoral exam.
On 05-25-1899 he obtained his doctorate with distinction (cum laude) with a thesis on damages other than contract and tort. His supervisor was J.F. Houwing.
In the meantime he participated intensively in student life as a member of V.O.N.D.E.L., and from 1896 until 1897 as ab-actis (secretary) of the lustrum senate of the Amsterdamsche Studenten Corps (Amsterdam Student Society).

First Job

5 Leave a comment on paragraph 5 0 Scholten settled in his native town as an practicing lawyer and solicitor (1899-1907) and in 1903 was appointed as deputy judge, a position he held until 1915, when he became deputy justice at the Amsterdam Court of Justice until 1935.
In 1906 he gained a temporary post lecturing on civil law and civil procedure in Amsterdam. From 1907 to 1914 he was appointed as a professor in Roman law in Amsterdam, and in addition, in 1910, he was again entrusted with civil law and civil procedure ( until 1945 and 1927 respectively).
From 1914 onward his teaching commitment also included Old Dutch Law and the Encyclopedia of Law (until 1921). From 1927 to 1946 he taught philosophy of law as well. His full schedule as a lecturer did not prevent him from acting as an editor for the journal on Private Law, Notarial Profession and Registration (WPNR) between 1907 and 1930, and, from 1926 to 1942, as annotator to the journal on Dutch case law (NJ).
In 1922 he was appointed a member of the Royal Dutch Academy of Sciences for which he published the following “mededelingen” Convenances vainquent loi (1930), Rechtsbeginselen (1935) and De Structuur der rechtswetenschap(1945). From 1930 until 1942 he was secretary of the department of literature of the Academy.

Social Engagement

6 Leave a comment on paragraph 6 0 From 1927 to 1935 he was a member of the Education Council. In 1924 he took on a weighty task, namely the establishment of a school for higher education in law in former Batavia (currently Indonesia). Before and also during this sojourn of several months in the Dutch East Indies he became deeply involved in many aspects of the Indonesian society.
The picture of Scholten’s activities until the years of the war is by no means exhaustive; even taking into account almost twenty years of chairmanship of the Amsterdam University Society (he delivered the address at the fiftieth anniversary of that society in 1940) as well as the fact that he was rector (1932-1933) in the year of the tercentenary of Amsterdam University and was an editor and active participant in many journals such as Onze Eeuw, Synthese, De Schakel, the Algemeen Weekblad voor Christendom en Cultuur, and Woord en Wereld, while he was also chairman of the Reorganization Committee of the Dutch Reformed Church.

7 Leave a comment on paragraph 7 0 His cultural interest, and in particular his passionate involvement in social affairs, contributed to a harmonious development and deepening of his Christian philosophy of life, which in all respects guided his activities in the field of law and which he saw as decisive ultimately for the acceptance of any legal solution. Inspired by these principles, he became a well-known personality who was an example to several generations of lawyers. Even now the `Amsterdam School of Scholten´ is well-known among today’s lawyers, and many of the publications which contributed to making Scholten into one of the most prominent lawyers of his time are studied to this day (1979) by students as compulsory literature.

8 Leave a comment on paragraph 8 0 In the beginning Scholten was only moderately interested in law – he had wanted to study language and grammar – but Houwing’s fascinating manner of teaching won him over to the study of law. Houwing treated legal issues against a wide background, beyond the written law and even beyond the law altogether, such as the historical development, the needs of society et cetera. This method appealed to Scholten, as did the dialogue-form of teaching which Houwing was in the habit of using. Later, his own classes would be equally geared to active participation, rather than passive listening. He had an animated contact with his students by debating with them as equals.

Paul Scholten’s Impact

9 Leave a comment on paragraph 9 0 Scholten’s impact on the legal life of his day was great, especially in the field of private law. In 1902, a few years after defending his doctorate thesis, a related essay was published in Rechtsgeleerd Magazijn. It treated the issue of causality in the doctrine of extra-contractual damages and introduced the concept of ‘adequate causation’ to explain that of all the circumstances which are proven to be conditions for the occurrence of a legal effect, only those causes that have increased the chance of that occurrence considerably have any legal relevance. This concept was accepted in, for example, accident insurance, and since 1927 became the leading thinking of the Dutch Supreme Court.
In the first years of his professorate, Scholten engaged intensively in the doctrine of tort, e.g. in the problem of fault, especially fault of the aggrieved party. Here he applied a form of refined interpretation like he had done elsewhere, for example in his considerations of article 2014 of the Dutch Civil Code. He edited and revised several times the volumes on the law of persons and the law of property of Asser’s Manual. These revisions were so encroaching and bear such proof of visions and notions typical to his approach, that both volumes may be considered as textbooks written by Scholten himself.
In addition he wrote innumerable articles to elucidate his view on several subjects, for instance on the law relating to marital property, and the doctrine of the cause of transfer of ownership especially with regard to assignment or enlargement and building across the property boundary. Later on, subjects having to do with the concept of legal personality would ask his attention, not only because he was about to tackle the second part of the first volume of Asser’s Manual, concerning Representation and Legal Personality, but also because according to him the abstract construction of legal personality could bring about unreasonable and unfair consequences for legal life, as for example in the case that an association had not yet been approved or had not been approved anew.

10 Leave a comment on paragraph 10 0 Whenever according to Scholten fairness or habits, which were socially accepted as legal rules were at stake, the last word was not left to legal doctrine, but a solution needed to be sought and found that was acceptable practically as well as theoretically. Not even the law itself had the last word: there will always be a need for interpretation in order to find justice. This problem is extensively treated in the General Part of Asser’s Manual which was originally intended as an introduction to the law of persons but later on was designed in a different way. The General Part may be considered one of the most original surveys about the nature of law in Dutch legal literature, or, as Professor J.E. van Dievoet from Leuven observed, it constituted the most remarkable and at the same time the most complete Dutch study about the method of private law of those days.

11 Leave a comment on paragraph 11 0 It is apparent from his “General Part” that Scholten, just like E.M. Meijers, his former school companion and later colleague in Leiden, was not only attributed the highest authority as a specialist in private law but that in the same way as Meijers, he also occupied himself with the general concepts, backgrounds, systematics, and the essence of law. However where Meijers approached the legal subject matter in a pragmatic manner, based on scientific analysis and in a legalistic way, Scholten rather worked in a philosophical-synthetic way, proceeding from Christian ethical principles.
Both their ‘schools’ still exert influence in the Dutch legal life. Numerous speeches and Royal Dutch Academy of Sciences`mededelingen’ (announcements) written by Scholten show that he believed the principles of law to be situated in the relationship of God with man. In his view there exists neither in law nor in the science of law a clear separation between the factual and the normative, between “is” and “ought”. Justice and fairness are decisive for law and law can never be found in the written law alone. Just as man is not perfect and is subjected to growth, so also the legal order is imperfect and continually changing. In the end human conscience has the final say: if someone in all conscience is convinced that the government exceeds the limits determined by law in exerting its authority, he may, if worst comes to worst, make a stand against that government. This is the only justification for a revolution.

Nazi Occupation Years

12 Leave a comment on paragraph 12 0 It is not surprising that for Scholten, being a sensitive lawyer as well as a conscientious man, the years of the war and occupation were an abomination. But it is also not surprising that with his militant character he devoted himself to maintaining the fighting spirit of the Dutch people. As a professor he was one of the most principled characters. It was on his initiative that an informal board for concerted action was established among the different universities and schools for higher education, and it was Scholten who insisted that an address was sent to the “Rijkscommissaris “ in October 1940, in which a petition was made to abandon the use of discriminating measures against Jewish public servants. He did not regard the university as merely a professional school for practicing science, but as a center for spiritual life.

13 Leave a comment on paragraph 13 0 Furthermore, he performed a leading role in the Dutch ecumenicity. In 1940 the General Synod, an advisory body to the church council, convened a committee for ecclesiastical consultations, which was inaugurated in August that year. The main study group of this committee was focused on church and government, which, by its important recommendations and guidelines, to a large degree determined the attitude of the Dutch Reformed Church toward measures taken by the German authorities. Scholten was the chairman of this study group.
On 31 October 1941 the first meeting took place between Scholten, who had been chairman of the Church Assembly since 1941, and rchbishop Mgr. J. de Jong. A proposal was made to present a memorandum to the then Secretary-General of the Ministry of Justice, the NSB-member J.J. Schrieke, to ask him to bring about a meeting with the Rijkscommissaris A. Seyss-Inquart about the persecution of Jews, the violation of justice and the imposition of a National Socialist philosophy of life. Scholten was going to present that memorandum in person, but a few days before the meeting on 17 February 1942, Scholtren was arrested and banished to the South of Limburg (Valkenburg). His place was taken by prof..W.J. Aalders.
Later in 1942 Scholten was placed under house arrest in the Veluwe where, in his country house at Hulshorst, he still managed to do plenty of work for the fatherland and the Dutch Reformed Church. Through his chairmanship of the Reorganizing Committee of the Dutch Reformed Church, he had a large influence on the replacement of the standing rules of 1816 with a new church order, drawn up and accepted by the Dutch Reformed Church itself.

Activities pertaining to the rebuilding of Dutch Society after the War

14 Leave a comment on paragraph 14 1 Throughout the war Scholten stood at the front when freedom of conscience and the principles of Dutch society were at issue. For example, on 14 September 1940, during a large meeting convened by the Liberal State Party, Scholten acted as a spokesman together with H.B. Wiardi Beekman and B.M. Telders. The meeting was forbidden, nevertheless the speeches were published in a pamphlet, entitled Loyalty to the Fatherland and sold by the thousands. Later he was in charge of the so-called Scholten-group, which addressed problems relating to the occupation and developed plans for the “postwar Netherlands”. This group consisted of persons of different political and religious persuasion.
Out of this group and a number of other illegal groups, the National Advisory Committee arose when the occupation ended. Paul Scholten accepted the chairmanship on 20 July 1945. The committee had among its tasks to make proposals for the appointment of members for the Emergency Parliament.
Scholten, who till then had been a member of the Christian Historical Union without any ties to its program, was appointed a member of the upper chamber of the Dutch parliament. After some time he ended his membership of the CHU. His political preference shifted to the Labour Party which was newly constituted in February 1946.

15 Leave a comment on paragraph 15 0 His sudden demise while on a journey to the United States ended this versatile life.

Back to top

©2013 UvA

Site made by: Woovar (Development) and Huppes-Cluysenaer, Graphical design: Crasborn.nl,