General Part

Introduction to the Book

The General Part was written in 1931 as the “new volume I”  to a textbook of four volumes, dating from 1885 and onwards:  Mr. Asser’s illustrious manual on Dutch Civil Law.

1 Leave a comment on paragraph 1 0 “Asser-serie” is the name of one of the main textbooks on Dutch Civil Law. Carel Asser (1843-1898) was a professor at Leyden University who lectured on civil law, commercial law and the law of civil procedure. He wrote his manual for young students who to his mind needed an introduction to the general principles of civil law without being detracted too much by the details and complexities, discussed in the academic world.
The manual was published bit by bit in so called ‘afleveringen’ (deliveries), beginning in 1878. The first print of the first volume, containing an Introduction and the Law of Persons,  was ready in 1885. The manual gradually expanded to five volumes. After World War II, however, it exploded and according to the publisher’s planning it will shortly consist of 32 volumes. Each volume is still known as a part of  “Mr. C. Asser’s Handleiding tot de beoefening van het Nederlands Burgerlijk Recht ”(Mr. C. Asser’s Manual for the Study of Dutch Civil Law).
The fourth (1912) and fifth (1923) reprint of the first volume were revised by Paul Scholten. In the course of editing the sixth reprint Paul Scholten decided to take out the introduction and create an independent volume: the General Part of 1931. The General Part treats issues which play a role in every segment of civil law: its method (chapter 1), the reach of civil law in time and place (chapter 2)  and the history of the Dutch Civil Code (chapter 3).

2 Leave a comment on paragraph 2 0 Although the General Part was not written as an introduction for students,  it avoided the use of legal theoretical jargon. It treats all the general issues which form part and parcel of any introductory course such as the nature of a legal rule, the difference between private law and public law, law as a unified system (construction, fiction, analogy, system) and the nature of the decision.
The popularity of the General Part is due to, among other things, the fact that it shuns a meta-view and describes the general issues of Legal Theory from the point of view of the professionals who have to take legal decisions on a daily basis. Especially popular are the last paragraphs of the first chapter on the Method of Private Law, which treat the legal decision itself. For the moment, only this first chapter is translated in the DPSP-project.
The ‘down to earth’ character of the General Part is in a certain sense deceptive, as Paul Scholten was quite knowledgeable about the historical, philosophical and religious depths of the academic tradition of law and used the General Part to present his own very specific view on this tradition, which was rooted in his religious Lutheran conviction.
In 1934 a second edition of the General Part was written by Paul Scholten. In 1974 his son, G.J. Scholten, who just like his father was a professor in Civil Law at the University of Amsterdam, took care of a third edition, in which the many references to positive law were updated.

3 Leave a comment on paragraph 3 0 In 1995 a new General Part (2) was written by J.B.M. Vranken. This book didn’t replace the General Part of Paul Scholten but functioned alongside it. This General part (2) is based on the theory of language, which plays an important role in the hermeneutical perspective of current legal philosophy. Although according to Scholten the personal conviction of the judge is indispensable for the notion of justice, the hermeneutical perspective assumes that there exists no private language and that therefore every conviction is primarily determined by someone’s social environment.
In 2005 General Part (3) was produced by J.B.M. Vranken as a continuation of General Part (2). In this book Vranken attacked the central position of the judge in legal theory. According to Vranken, legal argumentation should free itself from the predominance of the technical juridical concepts and become more openly political in defending the choices made. Thus General Part (3) had become more or less the complete opposite of the original General Part (1).

4 Leave a comment on paragraph 4 0 In 2010 a book with a new title was published Dorsten naar gerechtigheid (Thirsting for justice), edited by T.J.M. Slootweg. This book contains a reprint of the first chapter of General Part (1), and next to it a selection of Paul Scholten’s Collected Papers that shows his strong affinity to the Christian existentialism of authors like Jaspers, Brunner, Barth and Buber. In a postscript Slootweg draws attention to Scholten’s Personalism and to the way his methodology and legal philosophy can be linked to the contemporary work of postmodern philosophers (i.e. Levinas and Derrida) and to the ‘religious turn’ in postmodernism.  Slootweg has edited two more volumes on Scholten’s conception of the judicial decision and is administrating the website of the Paul Scholten Association on Law and Religion.

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