Theory of Paul Scholten

The additional chapter in the Book on the theory of Paul Scholten should give a general overview of the discussions in legal theory which have been inspired by Paul Scholten: the main characteristics of his theory, the discussions about the intepretation and value of his ideas. Till now these discussions were in Dutch between Dutch scholars. What is needed is a discussion in which the theory of Paul Scholten is compared to the many writers to which he refers himself, like Gény, Stammler, Burkhardt, de Tourtoulon. This is not only important to mark the similarities and differences with his own contemporaries, but especially also to understand the differences and similarities between the intellectual climate of Europe in his days and in our days. The understanding of the current relevance of the ideas of Paul Scholten by comparing them with the legal theorists which are covering the pages of textbooks today, such as Dworkin, Hart and Kelsen, should therefore be embedded in the older discussions to be aware of the great discontinuity brought along with World War II.

In the different pages of Comparative Research the relevant issues for research questions will be discussed and selected.

At this page attention will be payed to the question why Dutch scholars, practitioners or students feel inspired by Paul Scholten, or detest his ideas. To start the discussion some members of the Editorial Board have made short (max 500 words) contributions, which are displayed below. Hopefully readers feel inspired to add to these their own contributions, sending them by email to the contact-address of this site.

 

Antoinette Muntjewerff

The General Part by Paul Scholten (1934) is essential for legal research

My research is on legal expertise and the acquisition of legal expert performance. My research interests are on thinking, reasoning and planning that mediate legal problem solving, learning and skilled performance. My main interest is on the structure and acquisition of legal expert performance. My research includes disciplines as legal (computational) theory, legal methodology, legal knowledge acquisition, cognitive science, learning & instruction and instructional technology. My research focus is on the conceptual analysis of the basic (or core) tasks in law (legislative design and legal assessment) to construct models that can be used in legal research and legal practice. In this (re)construction process, two components are distinguished.
(1) A theoretical component of exploration, conceptualization and specification of legal knowledge and legal reasoning resulting in explicit models of legal knowledge and legal reasoning. Two perspectives are taken within this approach: a legal perspective and a knowledge engineering perspective.
·         From the legal perspective different legal sources, being legal empirical research, legal educational practice, legal dogmatic and legal theoretical research, are examined to specify the required models.
·         The knowledge engineering perspective is used to construct models at a high level of explicitness as they have to be executed by a computer. This explicitness of models is exactly what is needed in instruction, for theory formation and fault detection.
(2) An empirical component where empirical studies are carried out to acquire insight in the way legal practitioners and legal scientists handle legal knowledge in general and in carrying out specific legal tasks. In this case, law students are studied to see how they handle and use legal knowledge to perform a specific legal task and what difficulties they experience.

For me the general Part by Paul Scholten provides the basis for the theoretical exploration, conceptualization and specification of the core task in law: legal decision making. Three main elements are important in his General Part:

1. Law is seen as a system which is coherent (system and coherence)
2. The activities and knowledge needed to carry out these activities are made explicit (methodology)
3. The distinction between ‘fast’ and ‘slow’ thinking (intuition and rational problem solving)(Kahneman 2011)

Research into legal problem solving requires being acquainted with the General Part of Paul Scholten.

Niels van Manen

My interest for Scholten originated during my studies at Leyden University during the ‘revolution’ of 1968/1969 that wiped over the world. In the critical approach of law and legal decision making, most law professors in those days still claimed that law was clear and that judges, like their social background, were unimportant. Scholten, 35 years before, in his Algemeen Deel (General Part) proclaimed ‘Law as an open system’ and clearly motivated the influence of the ‘mind set’ of a judge at every decision: there was no, and there could be no the neutral judge, lacking any influence on the legal outcome of a conflict in court. Scholten, as I perceived as a young legal scholar, was not only a well respected legal scholar and a well known professor of Civil Law and Philosophy of Law at the Law Faculty of the University of Amsterdam, but also, in his General Part, putting one of the Judicial Myths to an end: Justinianus, Montesquieu, Robespierre and all those Bouche de la loi-adepts, in conviction or ideology, were wrong. This thought of such an eminent legal scholar offered, as I perceived it, a starting point for my critical analysis of the judicial profession and law in general. This ‘Law as an open system’ was, if not for the first time in the Netherlands presented by Scholten, than at least made Salonfähig by Scholten in the legal debate. And Scholten claimed that judges were jumping to their conclusions and decisions. The only remaining question was: how do judges actually decide? Scholten did see a role for intuition, at least in the second edition of 1934, published three years after the first edition, thus filling a gap: it will be either the Idea of Law, one of the form in which the Weltgeist is realizing itself, or the conscience that is subdued to a higher power, which as Person revealed in Creation and History, the individual and the society (collectivity) approaches with unconditional claims. (p. 181, second edition)”
The first refers, according to Scholten, to idealism, especially in its Hegels-pantheïstic forms, de second is the claim of the Christian belief. This substantialization of the sources of the judicial intuition is in my opinion too limited. It neglected, amongst others, Marx and Durkheim. More than 60 years after the publication of the Algemeen Deel, André Hoekema and I wrote in 1994 Types of Legality and in 2000 an considerably extended version (subtitle: Developments in Law and Society), in search of changes in social structures and public morals in the Netherlands during more than a century, in order to be able to explain the developments and changes of the law (statutes and judicial decisions). The insights of this study brought us to themes like the multicultural society and the law, and more broadly legal pluralism. But I am still searching for the sources of this intuition… in theory and practice.

Laurens Winkel

My research on the works of Paul Scholten is framed in a double way:

at first I am interested in the history of legal science and jurisprudence in the first half of the 20th century (the reappearance of natural law philosophy in particular) and I find Scholten’s analysis of the judge dealing with private law codification particularly fascinating. From a legal historical perspective he deals with the same problems as Portalis in his famous Discours Préliminaire. Scholten has not worked alone! In his valedictory lecture of 1945 he acknowledges this and he mentions his sources, especially in the works of Rudolf Stammler. In the beginning of his career he also published an article on the new Swiss Civil Code of 1907 with its famous first article in which a provision is given in case of a lacuna in the statutes. In this article we find the legal theory of the “General Part” in  a nutshell.

In the second place: Scholten started as a professor of Roman law as a successor of Max Conrat. In his inaugural lecture he makes a few very interesting remarks on the utility of the study of Roman law. In my view this start of his career in teaching Roman law has had far reaching consequences for the further development of his legal theory.

 Liesbeth Huppes-Cluysenaer

There is a quote by Karl Popper, funny enough in Dutch, because it has been taken from a lecture which he delivered in the Netherlands and was published in translation (Wijsgerig Perspectief, 22 (1982/5), 144-149.). Translated back to English by me: “But the old ethics was based on the idea of subjective knowledge, certain knowledge, and because of this on the idea of authority, while the new ethics is based on the idea of objective knowledge, on uncertainty”. In the new ethics the emphasis is on rational criticism “it has to provide specific reasons why specific statements (…) seem to be wrong or specific arguments invalid”.

In my opinion Paul Scholten has tried to erect a monument for exactly that idea of professional practice which according to Popper can be traced back to Aristotle and which he wants to destroy forever. Scholten, who doesn’t refer to Aristotle,  seems to have been quite aware of the ideas in his days, which foreshadowed these words uttered by Popper.
From the start of my professional career I have been interested in the opposition between these two models of professional practice. It was the central theme of a paper I wrote in 1977 for the first Conference of the Dutch Legal Sociologists. I have especially worked on the concept of subjective knowledge in its contradiction to the ‘epistemology without a knowing subject’ of Popper.
For most people the term subjective has connotations like ‘determined by emotions and prejudices’. Paul Scholten doesn’t deny this. But he defends – especially so in the last 20 pages of his General Part –  an epistemological model with a double structure: based on (in my words) a cooperation between verbal intelligence and acting intelligence. Verbal intelligence is abstract and general, while acting intelligence pertains to the assessment of individual situations and cannot be worded.
Acting intelligence is for Aristotle the key to morality and shared by all animals.(Barnes 1976). To be able to live in political structures, people have to engage in verbal intelligence. But acting intelligence should always be first and foremost. Human beings have, just like animals, the capacity to learn. This means that they have a natural insight in what it takes to survive and be happy in the long run. This insight comes in the form of emotions and the capacity to judge them. To let verbal intelligence supersede acting intelligence means to rob people from their soul. When this happens to a human being, you can observe it in his body language, which becomes dull and domesticated. When acting intelligence disregards verbal intelligence, the human being becomes a dangerous wild animal.
Paul Scholten describes in his General Part how the legal structure of society should be conceived to promote this mixed regime of two forms of rationality at all the levels of it.
Popper’s view implies the continuous attempt to get a complete rational control over professional practices, while ethics is seen as nothing other than choice, making people to behave like wild animals.

Bram Scholten

Paul Scholten is my grandfather. The more I read in his writings, the more I regret that I was born too late to have known him. What is it that gives me this feeling? It is the warmth of his heart that shines through so many of his writings. His scholarly knowledge of the legal system seems to have filtered through his heart. The wisdom of the heart, not its passions. This is not only evident in many of the articles in the first and second part of his collected writings (of which one even has the fascinating title ‘Law and love’), but also in his General Part, in particular where he writes about how it is when you are the judge and the moment comes that you have to decide. In my view that is why you can still feel such an affinity with Paul Scholten today, in any case when you are his grandson.

Marjanne Termorshuizen-Arts

Of old, jurists have strived to establish meanings of legal terms and concepts as precisely as possible. For a time they worked from the assumption that it was possible to so determine the meaning of a legal concept by means of a clear legal definition that interpretation was hardly or not at all necessary. Faced with the facts of legal practice, however, views have changed.. The dynamic developments of our rapidly evolving and changing society have e.g. made it necessary to make use of vague terms and open descriptions in the definitions of legal provisions.
The previous ways of interpreting were therefore replaced by a broader approach, whereby one understood that for interpretation also factors outside positive law will always play a role. This meant that in addition to the positive law elements such as the meaning which is given to a concept in the doctrine or case law, also the influence of the interpreter/the subject itself is crucial to interpretation. Paul Scholten was one of the first to realize and propagate this.
In this and adjacent fields Paul Scholten was a pioneer. He warned against a too restricted and what he called rational way of decision making by the judge. According to Scholten, for a judicial decision to be valid and just also the irrational or intuitive, and thus personal and preferably non-juridical aspect was indispensable. One of the jurists who have elaborated on Scholten’s ideas is Jan Vranken, a leading jurist of our time. Jan Vranken has published two books on legal theory and the finding of law of which the first (in 1997) came as a follow up of Paul Scholten’s Algemeen deel. In his second book, Asser-Vranken, Een vervolg (2005), Vranken states that the particular mind set of jurists that helps them to decide a case, which is based on the education and particular way of thinking of jurists, seems to make it easier for them to reach conclusions. Differently from what they think, however, those conclusions do not need to be valid. If one thinks in a specific mental model one runs the risk to be imprisoned within the borders of such a model. Basing ones views on a pattern of thought or mental model seems to be so efficient because some factors are given too much attention while other factors are obscured. To see all factors at once is too much a burden for the average jurist! Therefore, according to Vranken, it is healthy to not exclusively focus on the position of the judge as the decisive factor in finding law but to insert other ways of thinking. In this he stresses the importance of context which should permeate the restricted thinking pattern or mental model of before. I doubt whether Vranken comes to a convincing solution in this second work of his. Perhaps his third one, which is coming soon (2014), will not only literally but also in reality create a “synthesis” that is acceptable and fruitful.
Anyway, Paul Scholten appears to be an inspiring model even up to the year 2014!

Esther Hoorn

In most digitisation projects, no-one knows the views of the original rights holder on online access. This is not true in Scholten´s case. When the Dutch copyright act was introduced in 1912 he wrote an article expressing his view that copyright protection had become too broad and too long (Scholten, 1951). Scholten died in 1946, so his general introduction is still not in the public domain. In the early stage of the project commitment of all stakeholders was assured. The library provided the support for the repository, and the faculty and the research institute provided other support.  The publisher consented to the project after consulting Scholten´s family. The family(1) considered the ambitions of the project in alignment with his ethos of sharing.  Scholten is famous for his emphasis on the role of discussions in developing a clear insight in a legal decision and considered sharing knowledge on the law as a moral demand for every lawyer.  This example proves that digitisation is feasible in a specific project where the need for these resources online is perceived as relevant for the present-day scholarly communication, but digitisation of older works still in copyright is, however, generally problematic due to the issue of rights clearance. Solutions can be found through the combined inventiveness of scholars and librarians involved in open access.

(1) The author of this article is the great-granddaughter of Paul Scholten.

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