Influence of Ethical Theology on Scholten

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In this article Harry Groenenboom provides a brief investigation of the meaning of Paul Scholtens views against the background of the so called ‘ethical theology’. In doing so, he also addresses the question what the meaning of the word ‘life’ is in this specific context.
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In the first place the author makes clear that there is probably an influence of the ethical theology on the philosophy of law of Paul Scholten. To make this point clear, he provides a description of the ethical theology which is based on relatively recent literature about this subject.
Subsequently he makes the influence of the ethical theology on Scholtens writings more specific by investigating a concrete example of the influence of the ethical theologian P.D. Chantepie de la Saussaye on Scholtens philosophy of law.

The author concludes first that the ethical theology has to do with the starting point of theological work, the method, and not with the outcome. In the second place, ‘ethical’ means that one focuses primarily on the heart, not on the mind (or reason) of man. In the third place, ‘ethical’ means an imperative for man to devote himself. Which is based on the conviction that the true humanity of Christians is based on the life and work of Jesus Christ. And in the fourth place the ethical theologians believed that cultural sciences like theology do not exist without a very personal contribution from the researcher.

As for the meaning of the word ‘life’ the author concludes that this means in the first place the true human life. That is the life that is based on the life and work of Jesus Christ. That is a life that serves God and the neighbor, as some ethical theologians stated, in total self-denial.

In the second place, life means full life. Therefore theology as well as other sciences should not depend on mere reason. Feelings, emotions, matters of the heart of man (like conscience) are as much, or even more, important as rational theories or dogmas are.

Paul Scholten on Church Law

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In this article, Hélène Evers DD, LL M, shows us that Paul Scholten gave his talents and and knowledge as a professor of law not only for the discipline of law in general, but also for a specific part of law namely church law.
Scholten demonstrated that church law is genuine law. His thinking followed his accustomed approach, by going back to the fundamental questions. What is the essence of Law and What is the essence of church? The answer to these questions led him to rebuilding a church order for the church of his day, the Dutch Reformed Church. His reasoning and solutions are still relevant.
When Scholten discovered that his own church was very weak for lack of a proper base to act and speak out in her calling to be a witness and a force for justice, he put in years of work (1931-1945) to change this. Acting entirely within the given – weak – system, he was the main force to prepare and defend a reorganization of church law, which in the end was crowned with success. As the article shows, this was quite a difficult process which demanded stamina and commitment.
Scholten’s personal faith in God was characteristic for him, and relevant to his view of the law. The question why law has authority for all people in a community, and why ultimately a judge’s decision must be obeyed, is a philosophical and ethical one.
This was one of the subjects Scholten had thought deeply about. God was not a philosophical or theoretical force for him – he believed in the reality of God in Christ, and bowed to that authority. He was convinced that only the authority of the Person of God behind the person of the judge and the system of law, entitled the judicial system to function.
His faith also gave him the strength to resist the Nazi authorities in the Netherlands during WWII, in spite of banishment and internment. It brought him high esteem both in his university and his church.

Norm and Decision: Theory Relevance of Paul Scholten and JHA Logemann

Socio-Legal Perspective Case Study Verdict Judge Concerning Ruilslag in Indonesia

This paper intends to study the teachings of Paul Scholten contextualization in his Algemene Deel in series of Asser’s Handleiding tot de beoefening van het Nederlands Burgerlijk Recht (Textbooks for Dutch Civil Law) and JHA Logemann in his book “Over de Theorie van een stellig Staatsrecht” (On a theory of a constitutional law applicable). The second view is very influential legal scholar in colonial Indonesia that seems to be very relevant in the case of decisions which the controversial Indonesian judges decide cases like funnel-law, giving rise to public resistance, that creates injustice for justice seekers and destabilize the learning system in the faculty of law.
The essential question of how judges should carry out their duties is necessary to well understand some basic concepts and the relationship between the one with the other, the concepts, rules (norm), the rule of law (rechtsnorm), the rule of law (rechtsregel) and legal decisions (rechtsbeslissing). Rule is a provision that states what behaviors should be (mandatory) done and what behaviors are prohibited in certain social situations.
In order for the rule of law to be used to regulate human social life (society), then it needs to be formulated in the form of the rule of law, law in a material sense. Thus, the law is the verbal formulation of the rule of law. The rule of law is the form of appearance of the rule of law that can be known by the citizens-public (legal subjects). In each of the rule of law is (hidden) rule of law. While the legal decision is the decision by a competent authority which establishes concretely what are the consequences of a particular situation to grant or alter the rights and obligations of certain legal subjects. Thus, each set in a concrete legal decision is entitled or obliged to do what to whom in what circumstances and on what basis.
The earlier concepts explained the existence of the rule of law that must be distinguished from the existence of two atmosphere. In an atmosphere of enforceability (sfeer der stelligheid), the law was always present as a rule objective, which is common to all those who are in the same situation. But in a legal reality (sfeer der rechtswerkelijlkheid), the law was always present as a legal ruling (rechtsbeslissing), which applies only to the concrete events or certain situations and subject only to the law relating to the incident causing legal decision, and name- his name is explicitly mentioned in the legal decision. So, in essence, the decision that was not applicable common law, does not apply to all legal subjects, but only binding on certain parties only. The second legal thinkers about how judges should finish their job of running legal case that confronted him, then the authors conclude that the opinion Logemann and Scholten are basically not different. Thus, the essence of the authors question the dichotomy and debate of normative-empirical legal research Indonesian legal scholar and decisions of the judges are controversial by examining the teachings of Paul Scholten reinforces the view that the socio-legal research is a necessity taught in Indonesia law school.

“A-logical” Character of Indonesian Adat Law Based on Paul Scholten’s Perspective

Starting from a view of the logical and a-logical element in law, Prof. Mr. Paul Scholten in his book entitled de structuur der rechtswetenschap sharply criticized about the “Reine Rechtslehre” or The Pure Theory of the Law initiated by Hans Kelsen. This view separates between the doctrine of the law from the influence of the other sciences, as well as other factors beyond the law itself. Even a legal doctrine must be separated from the influence of the soul in relation to the establishment of legal institutions and legal developments. This paper will discuss about the existence of Adat law in Indonesia as a legal system that was born and influenced by a-logical elements outside of the law itself, like Adat (customary) in society, the internal of psychological flow (aliran kejiwaan/volkgeist) and historical factors. As a country that tends to embrace the Continental European legal system or the Civil Law, the regulation which have binding legal force should be set out in an Act of systematic or already codified. But in reality, Indonesia is a multicultural, multi-ethnic and race that already have adat law as the applicable law, so long before the enactment of statutory law. The Existence of Adat law in the future still into a long debate, especially with increasing conflicts involving indigenous people although the rules of Adat law has been accommodated in the written law (National Law). In addition, in this paper it would be necessary to describe the status of Adat law as a part of Jurisprudence through an ethnographic approach, as well as a material in the formation and development of national laws with a historical approach and the facts that occurred in the middle of society as part of a-logical element of Law.

The Judges’ Reasoning in the Finding Law of Chinese Minority in Indonesia

The Struggle of Scholten’s Interpretation Method on Legal Discourse Among Legal Realists and Legal Formalists

Scholten mentions that judges should perform an interpretive finding law both in juridical and sociological aspects (Scholten translated in Sidhartha: 2002: 22-24). Through finding law, the sharpness in identifying legal facts, rules and norms will produce a just verdict, give protection to the citizens, and fulfill the right (Scholten as translated by Sudikno et al: 1986: 12-16). In this context, Scholten’s thought is very feasible to be used in reading the interpretation of law on case law related to the fundamental rights protection of Chinese community in Indonesia. Historically, the Chinese community in Indonesia has often experienced discrimination and violence. The national legal systems and public policy during the New Order government isolated communities by prohibiting the use of Mandarin Chinese, shutting down Chinese schools, banning all symbols of China, and creating the policy of assimilation that forced them to change their name, etc. (Marwan: 2012: 13-19). Even some of racial riots in 1963, 1974 and 1998 could also not be separated from the role of discriminatory government. Subsequently, after the reform, the court is expected to deliver justice and support towards the fundamental rights fulfillment of the Chinese community needs to be deeply academic reflection. Scholten provides an impressive theoretical instrument to assess the decisions related to the dignity of the Chinese community in Indonesia. Judges are demanded not only to solely refer to the textual rules, but also to see the development of social facts and evidence throughout the trial in detail. Decisions of the judges about the dignity of the Chinese community mainly consist of two issues: the first is a matter of Chinese name-changing and the second is about the land conflict. On the first issue, the reasoning of the judges on several case law such as Liem Thian Hok, Hwi Ken Kuk, Tan Miauw Tjwan, Bing Liem Khoan, Ie Joe Siem, Tan jwie Nio, Tjien Jauw, Tan See Lie, Njoo Tjoen Hao, and Tian Siong better reflect the defense in the protection of fundamental rights. Of all such case law, the petitions of citizens were granted by the judges. Proving that the judge closely paid attention to the complaints, aspirations, and witnesses presented in the trial. In addition, the judges were no longer discriminatory if they followed the regulations of human rights such as citizenship law, civil and political rights, and so on. Scholten also mentions that the task of a judge is to find the law so that any action will not conflict with decency and based on solid facts. When the requests for name-changing of decency and even support system have strong evidence, then it is the judges’ responsibility to grant it. The judges, at the time of deciding, had established their own norms (translated Sudikno Scholten et al: 1986: 15). The second-most found case of Chinese community is related to the land conflict. Most cases of land conflict begin with the forcible retrieval of land owned by the Chinese foundations under Suharto military during the New Order. Unfortunately, many cases regarding Chinese society were defeated in the Courtroom, and the judges failed to perform finding law. These can be case law of the land conflict are defined by Scholten as a “failure” to interpret the art of the legal science (Scholten translated by Sidhartha: 2002: 24)

General Method of Private Law

Chapter 1 of Volume I (General Part) of Mr. C. Asser's Manual for the Practice of Dutch Civil Law.

Preface (by translator)
The General Method of Private Law is a translation of the first chapter of Paul Scholten’s ‘Algemeen Deel’ (General Part), which is the first volume of ‘Mr. C. Asser’s Handleiding tot de beoefening van het Nederlandsch Burgerlijk Recht’ (Mr. C. ASSER’S Manual for the practice of Dutch Civil Law). The first edition of the ‘Algemeen Deel’ (General Part) was published in 1931 by W.E.J. Tjeenk Willink, Zwolle. Read more about the publication history of the ‘Algemeen Deel’.

The first edition from 1931 was used for the translation in English. The translation and publication of only the first chapter asked for a new title, to be able to discern it from the book as a whole. The first chapter (179 pages) of the General Part was titled: The method of private law. It has been decided to add the word general to the new title of the translated text, to indicate that it contains a general theory about the nature of private law, as stated by Paul Scholten in the Preface: “that which is common to all the parts” (para 2).The subtitle is added to relate the English translation to the history of previous publications of Paul Scholten’s famous text.

The translation in English is made on behalf of the Digital Paul Scholten Project, by a translation committee, consisting of Liesbeth Huppes-Cluysenaer, Cassandra Steer and Marjanne Termorshuizen-Arts.
Permission to publish in open access is acquired from the family Scholten.

A preprint of the translation has been posted in open access now. A preprint is a draft, which in the future still will be revised. When the finalized text will be posted as publication, it will comprise the history of its previous revisions: the different editions of the text can be opened and also the reviews and editorial decisions can be viewed. This makes it possible to quote or to refer to this preprint by using the citation-data, offered below.

The Digital Paul Scholten Project is a research project that not only aims at an improvement of the translation, but also organizes and supports the research needed to make the explanatory annotations to the translation. Also translations in other languages can link to these explanatory annotations. People, who are interested in the project, are invited to cooperate in the project. Those who consider such participation are asked to register

To invite comments on the first draft of the English translation, the text of this preprint is also published in a side by side version in Dutch-English and French-English The French translation makes use of the edition of 1934, in which some text is added. To make the comparison easy all three texts were divided in paragraphs. It was impossible to follow Paul Scholten’s division in paragraphs because he often uses very long paragraphs. Therefore the numbered paragraphs are just arbitrarily chosen text chunks. Paul Scholten’s own division in paragraphs is indicated by indents in this preprint.

To be cited as:
Scholten, Paul. General Method of Private Law. Chapter 1 of Volume I (General Part) of Mr. C. Asser’s Manual for the Practice of Dutch Civil Law. Preprint, first edition. Amsterdam: Digital Paul Scholten Project, May 2014. http://www.paulscholten.eu/research/article/english

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