About Paul Scholten

Paul Scholten, Aristotelian Protestantism in Dutch Legal Philosophy

 

Liesbeth Huppes-Cluysenaer*

 

 

Introduction

Paul Scholten (1875-1946) is considered to have been the leading philosopher of law in the Netherlands of the twentieth century. His fame was established by his ‘General Part’ of a textbook series on Dutch civil law, which is still in use today.[1] The first chapter of the book constitutes the core of his view on legal philosophy and was already translated into French and Indonesian. The chapter has now been translated into English as the ‘General Method of Private Law’.

Recently there is a renewed – often religious inspired – interest in Paul Scholten’s other philosophical essays as assembled in Collected Papers.[2] This new interest changes the perspective on Scholten’s view on law and society and invites to rethink Scholten for the 21st century.

The impact of Paul Scholten can be analyzed in three dimensions: Paul Scholten as legal scholar, as protestant thinker, and as philosopher.

 

The Legal Scholten

The bibliography of Scholten’s publications[3] shows how prolific Scholten was as a writer on practical issues of Dutch civil law. In this legal context, General Method is in the first place a seminal introduction to the general aspects of civil law. The legal Scholten is also historical, as most of his references to jurisprudence, laws and literature are now out of date. And yet his General Method continues to be of great value for the practice of law by virtue of its focus on the foundational issues of law. Nonetheless and true to his own opinion about the dynamics of law, some of Scholten’s views on these foundational issues seem rather old-fashioned by contemporary standards.{2}

Scholten’s biography makes it clear that in his own time Scholten was well-known and highly regarded for his opinion on issues of private law. Up until the last part of the twentieth century, large masses of students studied many issues of private law in terms of a discussion between Scholten and his colleague at Leiden University, Meijers. Meijers designed a new code for Dutch private law which was gradually introduced book by book from 1970 onward. As a result, Scholten’s direct significance for the interpretation of private law has declined over time.

 

The Protestant Scholten

Scholten was very interested in Protestant theology, as appears from his correspondence with theologists. He is not seen, however, as having introduced any new theological ideas. The protestant Scholten was, in the first place, the politically engaged Scholten. His ideas were highly influential first in the context of the NCJV[4] and later in his contribution to the reorganization of the Dutch Reformed Church. His political attitude can be characterized as aimed toward openness and equality. His advocacy for openness included openness among Christians of different denominations and between Christians and non-Christians. He was loved by his students for interacting with them on an equal footing. Further he was engaged in initiatives which aimed to address the social needs of society.[5] Scholten’s Christian faith has recently begun to draw new attention from legal philosophers.[6] They emphasize the religious importance of Scholten’s concept of ‘person’. His Collected Papers include many essays which elaborate Scholten’s Christian engagement with politics, law and philosophy.

 

The Philosophical Scholten

The philosophical heritage of Scholten can be summarized in two concepts, both central to General Method: 1. Law as an open system. Rules require interpretation and as a result people will adapt rules to their contemporary ideas. 2. The judicial decision as a leap and as an act. In the end a legal decision is an act with consequences in the real world. As will be further explained below, Scholten thinks that acts do not simply follow from reason but have their own emotive source in the acting subject. Conscience contains such a moving force and Scholten considered conscience a personal link with God.{3}

General Method is loved by many for its literary quality. It is a magnificent description of what jurists do and care about in legal practice. It provides a mirror in which most jurists with a court practice recognize themselves.[7] At the same time – paradoxically – General Method reveals how legal deliberations and decisions unavoidably contain non-rational elements. In an argument which avoids the use of abstract theoretical language and is interspersed with many jurisprudential examples, Scholten identifies the points in legal reasoning which cannot be fully explained and legitimized by reason alone.

From a pragmatic point of view, which sets Scholten’s Protestant faith to one side, the view exposed in General Method has had great advantages in that its non-rational factors enable judges to adapt law smoothly to the dynamics of society. Such a pragmatic view does not pay tribute to the fact that for Scholten the pursuit of justice is the essential aim of law and that precisely this pursuit implies the impossibility of giving a fully rational legitimation for judicial decisions. Therefore, the exercise of public authority is unavoidably subjective. Scholten believed that the Christian faith and law have historically converged in their view on the act of ruling.[8] It is on this deeper level that the three Scholtens converge.

 

Paul Scholten as a philosophical counterpoint

The posthumous postwar regard of Paul Scholten as a leading philosopher of law took Scholten’s criticism of the idea of law as a closed system seriously and welcomed the pragmatic usefulness of this criticism. Scholten’s political pleas for openness and for the promotion of social welfare were also fully embraced.

Most young legal theorists in the second half of the twentieth century, however, concluded after reading General Method that new and better ways of legitimating legal decisions could be found in the pragmatic and hermeneutical approaches introduced by the new social sciences and humanities.[9] A new General Volume to the Asser-series written by Vranken[10] and published in three volumes (1995-2014) aligned more closely with these new orientations. The fact that Vranken’s treatise was published alongside the {3} old one of Scholten and did not replace it, underscores the lasting value of Scholten’s work.

What then is the lasting value of Scholten’s General Method? A provocative answer to this question was given when in 1994 the research institute for general jurisprudence was founded at the University of Amsterdam and was named after Paul Scholten. The director summarized the institute’s first conference on the topicality of Paul Scholten, declaring that Scholten’s ideas should be stripped of his Christian view on legal principles, and that it was not necessary to like Scholten’s ideas to find them interesting.[11] This provocation was then answered by Leiden scholars with a call for new attention for Scholten’s Personalism in the context of his Protestant faith.[12]

Given the rapid deconfessionalization which has taken place, it seems most unlikely that the lasting value of General Method could rest in its confessionalism. Yet the Leiden scholars seem to be right in asking attention for the way Scholten’s view ties in with the new theology of Personalism in the twentieth century. The Leiden scholars think that the Personalist theology can offer a philosophical counterpoint to the rationalism of Comte.[13] At the same time the personalist theologists lose sight of the unique contribution of Paul Scholten to legal theory. Scholten’s contribution to law defends a political view which Comte described as a metaphysical, negative, protestant, juridical view. Comte’s positivism holds a frontal attack to metaphysics, Protestantism, and law. This attack can only be parried, when it is understood what the relation is between these three characteristics. General Method clarifies this.

General Method takes the long-standing European civil law tradition of judicial court practices, as it existed before the rationalism of the French Revolution, as point of departure. Scholten explains how the interpretation of the positive law of his time should be enriched by falling back on these traditional ideas.[14] Scholten’s view was contrary to the rationalist, idealist, and materialist perspectives which at the end of the nineteenth century gained large followings. The two political ideologies which were mainstream in Scholten’s time – socialism and political liberalism – explicitly proclaimed the {5} disappearance of law.[15] Scholten was quite aware of this development and General Method can be seen as an attempt to protect the true foundations of law which were endangered by these new political ideologies.

The general admiration for Scholten’s General Method shared by Dutch philosophers of law, and the regard they have for the open, charismatic, politically influential, and progressive person he was, is intertwined with a general awareness that the type of court practice he had in mind was already on the brink of disappearing in his days.[16] There is a definite conservative touch underneath in General Method. Precisely this deep-down resistance to certain aspects of the developments of his time, which for the rest he actively supported, makes Scholten’s work unique and topical for the philosophical debate of this day, in which a weakening of ‘Economic Europe’ could be countered by a revitalization of ‘Metaphysical Europe’.[17]

 

Confusion about the Metaphysics of Aristotle

General Method is rightly characterized as a critique of legal positivism, i.e., the codification movement and the Begriffsjurisprudenz of the beginning of the nineteenth century. This criticism was shared by many of Scholten’s contemporaries and by almost everyone in the postwar period. What is mostly not acknowledged, however, is that for Scholten this criticism was a means to fall back on the philosophical kernel of the judicial practice in the conception that was dominant before the French revolution. He took this philosophical kernel as perspective for envisioning a law practice which was better adapted to the legal problems of the society of his days. Scholten understood that the discipline of law can only function well – as a court practice – within the old Aristotelian epistemological, metaphysical framework.

In the nineteenth century the codification movement and the Begriffsjurisprudenz had reconstructed the European tradition of court practices in a perfect classification model.[18] The Linnaeus model of perfect classification was at that time – the end of the eighteenth century – completely {6} new and was informed by nomothetic Enlightenment beliefs. To believe that the practice of law can be captured in a perfect classification system means to believe that the good and the true concur in the essence of things in a perfect order of the real world. The idea of such a nomothetic order, called Deism, had developed in the natural sciences. The question whether such a perfect order could be transferred to the domain of law and politics was discussed right from the start of the new scientific approach to nature in the sixteenth century. This discussion between Deists and Aristotelians was what today we call a paradigmatic discussion. While the Deists had the epistemological paradigm of a correspondence between concepts and reality, the Aristotelians had an epistemological paradigm in which such a correspondence was explicitly rejected.[19] The Deists reconstructed the ancient Aristotelian beliefs within their own paradigm and subsequently developed a positivist interpretation of natural law, which was the opposite of what Aristotle had in mind. This positivist interpretation of natural law introduced an absolutist centralist perspective on humanity in the field of law and politics.

Confronted with the successes of the new natural science, those who wanted to oppose the penetration of absolutism in the domain of law and politics elaborated a two-sided ontology of a perfect order which could in no way be known as far as it pertained to human agency. This ontological dualism is an echo of the Aristotelian dualism between theory and practice. Just as there was from the sixteenth century on an Aristotelian conception of theory conceived in terms of religion, there was also a Cartesian conception of religion. Their different interpretations of natural law caused a religious political conflict in the Dutch Reformed Church. It was won by the protestant metaphysics of a two-sided ontology. The Dutch Republic consequently followed in many ways the Aristotelian view on law and politics in the ancient Athenian polity, attempting to transfer these ideas to the societies of the sixteenth and seventeenth century.

In the days of Scholten the Deist paradigm of correspondence was rejected by many schools of thought such as Neo-Kantianism and Pragmatism. That was the moment that a renewed understanding of the Aristotelian view and religion, in contrast to the Deist deformed picture, became possible. The discussion about the topicality of Paul Scholten is – like all contemporary philosophical debate about law – highly confused by the fact that this revision did not happen and that the new schools of thought kept incorrectly attributing the idea of a perfect {7} classification system to Aristotle.[20] As everyone agrees on the impossibility of Deism, it is high time to appreciate the fact that the nineteenth and twentieth century reconstructions of the past lean heavily on that incorrect reconstruction of Aristotle’s epistemology.

 

Scholten’s contribution

Debate between the old philosophy of Aristotle and the new philosophy of Descartes was held extensively in the Netherlands from the end of the sixteenth century on. Voetius acted as a main spokesman for the Aristotelian philosophy. New attention has recently arisen for this debate[21], which brings not only to the fore Voetius’ attempt to align Protestantism with the old Aristotelian philosophy, but also that there was thorough knowledge and acceptance of Aristotle’s Metaphysics in the Dutch Republic.

Talking in terms of old and new philosophy hides the important innovation of Dutch Protestantism brought about by reading Aristotle’s texts and understanding his ideas about particular justice (Nicomachean Ethics) and general justice (Politics) as inherently connected with ontological and epistemological ideas. This reading brought about that religion was removed from the pure intellectualism of the scholastic schools and positioned in the ‘drama of daily life’. Understanding the Aristotelian relation between legislation and practice and its functioning in the open democracy of the Athenian polity showed to be extremely important in consolidating a civic polity of tolerance in the Dutch Republic. The struggle to elaborate a two-sided ontology resulted however in religious dogmas which were only understandable to people well-trained in Aristotle’s Metaphysics. These dogma’s created a sort of black box in Dutch Protestantism and were later the cause of many schisms.

Paul Scholten not only adhered to Voetius’ view in the famous debate between Voetius and Descartes,[22] but was, as his correspondence shows, quite aware of the incorrect attribution of naïve Deist ideas to Aristotle. He understood that the new acceptance of an epistemology, which rejected the correspondence of concepts and reality, held the promise to reformulate the old protestant dogma’s in a language which was simpler. He must have seen with sorrow that the new epistemology of his days turned into a social science which again {8} adhered to a correspondence of concepts and reality, based on Verstehen, and which again mixed up theory and practice and turned law into a tool of centralist management.

Scholten kept in close contact with the theologians who played an important role in digesting the new epistemology in the protestant church. In a letter to Noordmans,[23] one of the highly respected Dutch theologians at the time, Scholten asked for feedback on his opinion that most theologians showed a naïve understanding of Aristotle concerning the debate between Voetius and Descartes. In his answer Noordmans, a specialist on Descartes, ignored Scholten’s question. Another highly respected theologian at the time, Kohnstamm, was a close friend of Scholten. In his work Scholten refers to the Personalism of Kohnstamm.[24] Kohnstamm wrote a work on epistemology at the beginning of the twentieth century, which still is influential in religious circles. In this book also Kohnstamm wrongly attributes Deist ideas to Aristotle. This incorrect attribution was not based on his own reading of Aristotle. Kohnstamm claimed that his notes of the lectures of his teacher Spruyt were sufficient.[25]

Paul Scholten had to accept that he stood more or less alone with his basic Aristotelianism. The newly emerging pragmatic and hermeneutical approaches of the social sciences not only continued but even deepened the equalization of theory and practice. This brought about a new inspiration in religion, which completely lost contact with Aristotelian Metaphysics instead of putting it on a new footing and creating a better understanding of it. On top of this, the incorrect understanding of Aristotle’s Metaphysics could not be criticized in a scholarly argument as till quite recently it was deemed unacceptable to give new readings to Aristotle’s texts if one was not a specialist in ancient Greek language.[26]

It can be concluded that Scholten had to make his points about the specific nature of law without explicit reference to Aristotle. His General Method has successfully preserved the legal and political culture installed by the religious foundation of the Dutch Republic. It still is the shared understanding of many {9} Dutch jurists. It is a heritage however which these jurists cannot share with non-jurists.

 

Scientific welfare-model

Scholten’s criticism of the Deist assumptions was acknowledged and appreciated by contemporaries who definitely had no inclination to revive the past.[27] Scholten’s first essay on a legal theoretical subject is entitled ‘Law and Philosophy of Life’, which refers to Rickert (1863-1936) who developed a new scientifically inspired understanding of life for the social sciences, based on a method of ‘Verstehen’.[28] Scholten appreciated Rickert’s attempt to demarcate the humanities as a cultural science apart from the natural sciences. Scholten rejected the idea of an autonomous social science, however.[29]

Rickert, like Scholten, elaborated his method by starting with a rejection of Deist assumptions. He argued that the system view created by a classification is not a true picture but a selective representation from a governing perspective.[30] The governing perspective of natural science emphasizes the general aspects of perceived objects which enables classification. Rickert proposed a new general perspective emphasizing the individual aspects of concrete events.[31] The uniqueness of an event is determined by its relationship with the values actually cultivated by people in a certain place and at a certain time.[32] Rickert intended to develop the cultural science of history as an autonomous science on a par with the natural sciences.[33] He felt that if the science of history is to:

compete with the kind of general validity that natural science claims in stating laws of nature, we must not only assume that certain values are in fact acknowledged by all members of certain communities; we must also assume that the acknowledgment of values in general can be required as indispensable for every scientist, and thus that the relation of unique and individual reality to some values that have a general validity that {10} is more than empirical, is necessary. Scientific necessity can be ascribed to a historical representation only under this condition. (trans. Oakes)[34]

For Rickert the assumption of the factual and normative existence of some generally valid values is meta-empirical (metaphysical, ontological). An autonomous social science as imagined by Rickert would investigate the historical centers of law, church, family, state, etc, where people cultivate general and common values. This social science would establish the meaning this cultivation has for the sequences of change that form the successive stages in the cultural development of a people.[35] Such scientific investigation is only possible when the scientist – as the cognitive subject – works value-free and takes distance from the way actors in these historical centers enact values by taking positions on them. The scientist recasts the meaning of these enactments from the perspective of their contribution to a general historical development in the direction of meta-empirical values. The history of science will reveal the content of these meta-empirical values, according to Rickert.[36]

To put Rickert’s view in perspective, it is important to realize that Enlightenment had created the nation state with its mission to work for the benefit of all citizens. To be able to do this, nation states needed general pictures of the world as viewed from the general will of a nation. The system view created by the codification movement and Begriffsjurisprudenz had provided such a concurrence of general world view and general will. Rickert aimed to move forward on the path of progress started in the Enlightenment. To this end, he took as his point of departure the heritage of Comte and Hegel with their Deist ideas of historical progress.[37] With his method, Rickert completed the welfare model of Comte (1798-1857), a main founder of positivism, sociology and political liberalism. Rickert provided it with an empirical model of human science able to compete with natural science.[38]

According to Comte, the constitutional model of the nation state with its trias politica will die and be replaced by a new welfare model which also recognizes three powers:{11}

The business of the public is to form aspirations; that of publicists to propose measures; that of rulers to realize them. (…) In a word, when politics shall have taken the rank of a positive science, the public should and must accord to publicists the same confidence in their department that it now concedes to astronomers in astronomy, to physicians in medicine, etc.; with this difference, however – that the public will be exclusively entitled to point out the end and aim of the work. Such confidence, attended as it has been, with the most serious disadvantages, while politics has remained vague, mysterious, devoid of principle – in a word, theological – will, so soon as it has been transformed into a positive science, be accompanied by no greater evil than the confidence that we daily and fearlessly accord to the physician, even in matters of life and death. (trans. Lenzer)[39]

Rickert elaborated the role for the publicists in Comte’s model. He took Hegel as a reference point and turned Hegel’s philosophy into a social science, which describes with the help of the method of ‘Verstehen’ actual positions on value. Rickert thus gave the publicists of Comte’s model the authority of scientists, and at the same time downgraded the authority of the practitioners who take position on values in the historical centers of church, state, family etc., by assessing the meaning of these positions on value in terms of contributions to a general historical progress of the cultural development of society.

 

Paul Scholten’s work as inspiration and scope for debate in legal philosophy

The rejection of Deism led to the disentanglement of two types of political debate: 1. the academic model of judicial court practice in regard of good and bad, and 2. the scientific model of welfare policies concerning true and false. As explained above, rejection of the Deist model implies the rejection of an objective standard concerning both the good/bad and true/false dichotomies. Therefore, debate about the two models is essentially a political debate about two different ways of organizing the formation of a public rationality, about two different ways of organizing concept formation that can be generally accepted as valid. This debate is continually undermined by participants on both sides who return to Deist arguments. Deist arguments – pro or contra – must therefore be exposed and avoided.

Crucial for the difference between both models is whether practice or theory comes first. The academic model with its emphasis on particular justice in individual cases puts practice first and is regulated by a judicial procedure.[40] The scientific model with its investigation of general laws puts theory first and {12} is regulated by the organization of the universities.[41] Scholten follows the academic model when he argues that sociology should not be treated as an autonomous discipline. Rickert follows the scientific model when he develops his cultural science as an analogue of natural science. The opposition between Scholten and Rickert is meta-empirical (metaphysical/ontological).

The academic model is the metaphysical point of departure of Scholten’s philosophy. Scholten’s work can be used as general framework for a debate about the two models, because Scholten acknowledges both models as incompatible on a theoretical level, but accepts the possibility to harmonize both models in practice by taking account of the individual characteristics of events. Modern social science and humanities, as represented by Rickert’s update of Comte and Hegel, acknowledge only one model by subordinating practice to theory. In nearly all philosophical schools of the twentieth century the academic model is intentionally disregarded. A good example of this intentional disregard in the Marburg school of Neo-Kantianism is offered below in a quotation of Kelsen. Kelsen makes a frontal attack on Aristotle’s theory of natural law by accusing it of an absolutist tendency.[42] Right at the beginning of his famous article on Aristotle’s Politics Kelsen states:

The almost divine authority which Aristotle enjoyed in the sphere of the natural sciences has long since disappeared; (…) But the profound respect accorded to his Ethics and Politics remains undiminished. Their influence on the thought of our time can scarcely be overestimated. Modern scientific treatments of the problems of a moral world-order and of a juridical state community still, in very great measure, betray the stamp of the Aristotelian system. But in that system Aristotle’s Ethics and Politics are essentially connected with his Metaphysics. And thus it is the Metaphysics which appears as the foundation of the moral system of values, whether these values be knowingly accepted in their original form or received through the dogmas of Christian theology into which they have gone over. But it is precisely the Metaphysics which is the least personal part of Aristotle’s work. In this department he remained the pupil of {13} Plato, although in no other he did so passionately combat the philosophy and the theory of ideas of his master.[43]

Aristotle criticizes Plato on three points and here these three points are simply put aside by Kelsen without any further argument. These three points are fundamental for a comparison of both models. The first point is that Aristotle accuses Plato of the big mistake to invent ‘ideas’ as an intermediate category, which hides the problem that there is no correspondence between concepts and reality.[44] The second point is that Aristotle accuses Plato of an absolutist, totalitarian conception of the State. According to Aristotle the State has to be conceived socially as an arrangement of smaller autonomous parts like families and clans and on a political level as an arrangement of offices.[45] The third point is that it is not knowledge but virtue which determines action.[46]

In the next paragraph a short overview will be given of the frame of discussion on these three points in connection with what Scholten writes in General Method about dualism and administrative law. This will be followed by a paragraph, which further elaborates the metaphysical background of what Scholten writes about the judicial decision.

 

Dualism of concept and reality

Paul Scholten defends a dualism between written law and customary law:

Legal rule is equivalent to legal prescription, ‘as a rule’ is however synonymous with ‘usually’. And not only do these words have a twofold meaning, there are several others in which the legal language expresses this peculiar characteristic of the law. (…) Many difficult questions of legal philosophy would have been understood — I do not say ‘solved’, because there is no solution possible — if people had paid more attention to this twofold character of the law. At the same time this belongs to the province of that which happens and that which ought to happen, of the ‘Sollen’ and the ‘Sein’, as the Germans call it. There is a tension here that people can recognize, but not remove. And even less so, because both claim absolute dominance. It is because of this that we see time and again that the one is sacrificed to the other, either the law is subordinated to custom, as sociologists are wont to do, or custom is set aside by the written law — which is typically juridical, at least during the 19th century and in our present time. (…) Two powers confront each other here and also in my view there is no solution that points out a place for the one in the system of the other. But this contradiction is bearable, a twofold authority next to each other can be recognized if we understand {14} that we can arrive at one decision in individual cases, which sometimes will enforce the written law over and against custom, and at other times will ensure victory to custom over the written law. This is unbearable only to he who thinks that it should be possible to derive every decision on a legal issue from a closed set of rules. If this were correct, there could only be one source of law. Our entire argument aims to prove the erroneousness of this proposition. (GM, 378-383)

A contradiction between two powers and two systems of thought is bearable according to Scholten if we understand that we can arrive at one decision in individual cases. This view gives a unique position to the person who takes such a decision, and it explains why traditionally the moral role in law and politics has been attributed to individual agents in a position of authority.

In different times and different places, the position of the decision maker will be organized in a different way. In current times one could think for example that for Aristotle the position of judge would refer to the Assembly. Aristotle, however, attributed the moral role of taking position on values primarily to the managers of households and state. The function of the Assembly was to elect magistrates and to call them to audit and thus more political than moral. [47]

What interests us here is not how these positions are organized, but the metaphysical stance which is involved in the position of the decisionmaker in a ‘dualist way of thinking’.[48] This metaphysical stance is expressed by Scholten when he states that the application of rules must always be problematic (GM, 26). In the preface of General Method Scholten announces

I believe finally that the jurist can only acquire a true understanding of what law really is by reflecting upon its method.

According to Paul Scholten the rejection of a correspondence of language and reality is a prerequisite for a true understanding of what law really is. Understanding law means to understand and be explicit about the fact that the judge in the end acts in a position of authority over others, which in essence cannot be legitimized. The judge exerts subjective power substantially ‘in the blind’.

Only by being explicit about it, this ontological issue can raise the question if there is any form of knowledge which can encourage and guide the judge’s work. Can the promise be made that in the long run the judge somehow acquires personally or in a collective historical process a progression of insight {15} in the world? And could such insight lead to a better world in an objective or intersubjective sense?

Scholten does not accept the idea of a collective process that creates a shared conscience (GM, 490) and although he emphasizes the active awareness in every human being of what law requires (GM, 481), he also emphasizes that there is no demonstrable truth available about what judges should decide. Other judges will decide differently (GM, 529). It is important to realize that according to Scholten this view – understanding and being explicit about the fact that the one who takes responsibility over other people in the end always acts from his own faith – is at the same time the essence of his understanding of law and of his Christian belief (GM 271). This reference to his own Christian belief could be interpreted as a reference to the official point of view of the Dutch Reformed Church, which won victory in the near civil war caused by the theological conflict in 1619 and to which Scholten refers in his essay about the fundamental principles of society.[49]

Paul Scholten’s work could be given contemporary relevance by situating his personal Christian conviction in the larger frame of a school of thought which started with Aristotle’s criticism of Plato[50] and had its latest revival in French existentialism.[51] It could then be explained that according to Aristotle the consolation of the judge is not to be found in knowledge but in the attainment of intellectual virtue: a state of self-reliance, strength and moderation, an empowerment to act (GM 528).

Overtime this school of thought has been confronted with forms of intellectualism and positivism which founded their beliefs on a correspondence of language and reality, such as recently the belief that acting is rule-following and that the existing language contains common meanings which evolve and get internalized in common practices.[52] The systems of thought developed by [16} these schools are given relative value by Scholten: like the classification systems developed by Begriffsjurisprudenz, also the insights of the new language theories are helpful, but these schools are both unjustified in their absolute knowledge claims.[53]

 

The state as an arrangement of offices

The state is conceived politically by Aristotle as an arrangement of offices, which are managed for fixed periods, often on a voluntary basis. The state is conceived socially as an arrangement of families (households/clans) with their own internal organization of power. When the unification process proceeds too far the independence of the individual will be lost; the state will then become an aggregation of individuals like a military force.[54]

In the Dutch Republic the Aristotelian conception of the polity as an arrangement of offices not only functioned as a model for politics, but also for church organization.[55] Scholten’s General Method is about the method of private law. Still, he feels the need to explain extensively how private law is demarcated from public law. He starts section 9 with the words:

Seemingly we have departed in section 8 from the argument outlined in this chapter, about finding law. The question about the opposition between private and public law presented itself unintentionally, but it doesn’t seem to fit in easily in the course of the argument. In the meantime, it was impossible to avoid it.

This is a somewhat puzzling statement. Scholten knows, and has elaborated in other writings, that his view on the relation between legislation and practice in private law is severely endangered by the new ideas about welfare politics that link up with administrative law and hold a strong tendency of unification of the state. Scholten describes administrative law in §8 as follows.

The same State, which holds a relation to the law, because it takes the enforcement and formulation of the law upon itself, sets itself also other goals, since time immemorial the defense against foreign attack, moreover the care for the ground on which the people live, water-agency, and for the means of traffic and communication, for education and for the multifarious other things which it brings currently under its control. It does all this in virtue of the power, to which it is entitled, the authority, which it can exercise. To this end it establishes rules, which – as its commands – bind the persons who are subjected to its power. It does this in the same way as it formulates {17} the law between individuals, through legislation. We are confronted here with what is normally called the administrative law. (GM, 122)

…..what is at stake here is the relation between power and law, these two continuously clash with each other, it is impossible for the one to acknowledge the other, yet both need each other continuously. There will be no law without the power to convert what the law commands into actual fact — no power, which does not at any moment bend before the law. The determination of the relationship between both presents a problem, which is time and again put aside and never solved. Still, this much is certain, if the public law is conceived as a regulation of the relationship between the authority and those subjected to it, i.e. as a relation determined by power, the chance is great that this relationship will lose its legal character. (GM, 124)

Concerning the clash between Scholten’s view on the organization of state power and the new sociological ideas about rationalizing society, two points are important here: Subjective law and Political autonomy.

 

Subjective Law

In Scholten’s view, which he defends against the view of Duguit (GM, 57), who was strongly influenced by Comte, the state will abrogate law in its totality when no limits of state interference are formulated. Scholten emphasizes that the state can formulate compulsory rules to regulate purchase, employment, marriage or property, but that there must be a space left to the individual to make its own rules in contracts: the supplementary private law (GM, 83). The private sector is in Scholten’s eyes a continuous source of legislation in a purely individual contractual form.

Different from Scholten’s view that the balancing of governmental power and the right of private judgment is fundamental for a peaceful society, Comte thinks these are

two opposed and equally vicious conceptions, (which) by their very nature, tend reciprocally to strengthen each other and in consequence to maintain indefinitely the source of revolutions. (trans. Lenzer)[56]

A true conception of law is created, according to Comte when it is understood that:

(…) the clear and precise ascertainment of the active aim constitutes the first and most important condition of a true social order, since this fixes the true meaning of the system. On the other hand a society, however numerous it may be, can, just as an individual, propose to itself only one of two possible active aims. These are a violent {18} action upon the rest of the human race, that is to say conquest; and an action upon nature modifying it for the advantage of man, or production. Every society that is not definitely organized for one or other of these aims must be mongerel and devoid of character. The military aim characterized the ancient, while the industrial aim characterizes the modern, system. (trans. Lenzer)[57]

Political Autonomy

A political organization should distribute and implement authority in such a way that everyone can live a life according to one’s own conception of the good to the greatest extent possible. This is Scholten’s view. Scholten rejects the belief in a general will or common values and takes as a given that people will always differ substantially in their conceptions of the good.[58] To decide things by majority rule, forcing people in constructions which are contrary to their beliefs, will put law at risk. Power cannot function, according to Scholten, without the commitment law brings about. Law – when rightly understood – accommodates opposing views, by confining the need for the choice of one view to conflicts in practice i.e., a space strictly defined by procedures and competences. Understanding the state as an arrangement of offices means understanding it as an arrangement of competences which define the problems that can be handled and the limits on exerting authority. Managing an office in relation to citizens and other offices can be viewed as a process of continuous attunement on the level of individual problems.

The new social science created a new and rational interpretation of the liberal society. It held the promise that state power could be organized rationally by taking the empirical wishes of a people, as appearing in its common habits, common language and actual democratic procedures as point of departure. In the same way as the codification movement had described the existing legal practices by at the same time unifying and simplifying them, welfare practices were schematized in terms of goals, and costs and benefits for the means involved. Creating these schemes involved a huge endeavor of new operational definitions and data-collection. Welfare politics could be legitimized and optimized in terms of these schemes. Every conception of the good could be added and get an equal share of benefits. The idea of practice – of the act of managing and deciding – gets lost in this conception of liberal society. Individual authority is not needed anymore.

In General Method Scholten refers to this school of new sociological ideas and calls it objectionable (GM 268 and 482ff). These new ideas have brought an {19} increasing pressure towards unity of beliefs. General Method is one long argument to explain that this implies a tendency towards absolutism and perfectionism. When practice is subordinated to theory, theoretical diversity cannot be accepted. It means that law is lost and a the same time this loss means that power loses rational control.

 

Office reveals man: acting in public office

In his essay on the structure of legal science[59] Scholten has included a scheme in which both private and public law are incorporated in their dynamic relation to each other. The middle term in this scheme is wisdom, which is the result of a long-term practice of decision making. The scheme can be read in terms of Aristotle’s four causes: the formal (imaginative, law) and material (enacting, power) force, as two necessary conditions assuming each other, and God (the force or principle of nature) as the dynamic duality of efficient cause and attracting force. The dynamic dual force, also called entelechy, is the kernel of Aristotelian metaphysics.

Deism has rationalized entelechy and has completely distorted it this way. The development of  perfect classification systems in the humanities during Deism, had implied the belief that the highest concept in such a system represents the essence of humanity. On this basis a rational theory of natural law had developed, in which it was believed that each individual human being had a natural tendency to implement a common essence and that systematic analysis of human practice could reveal the content of this common essence.[60] Kelsen’s wish to reject Aristotle’s concept of natural law concerns this rational conception of natural law. It explains why Kelsen understands Aristotle’s Metaphysics as essentially Plato’s Idealism.

To explain the implications for legal theory of this misconception first the similarity and difference between the Neo-Kantians on the one side and Aristotle on the other will be further elaborated. The conclusion is that the misconception prevents a re-evaluation in legal theory of the close connection between public office and personal morality or intellectual virtue, which Scholten fills in with his reference to his Christian faith. The article will finish with a summary of the different aspects of moral agency in an Aristotelian sense, which can be found in the last part of Scholten’s General Method.{20}

 

Neo-Kantians (Kelsen and Rickert) versus Aristotle (Scholten)

Kelsen belongs to the Marburg school and he rejects not only natural law, but also the idealist outlook of the Neo-Kantian Baden school, to which Rickert belongs. Rickert believes that the life of human beings has no meaning at all but to strive for common higher immaterial ideals.[61] These higher ideals are seen by Rickert as cultural products, internalized by individuals in social processes.

The crucial point in relation to Kelsen is that Aristotle also rejects Idealism and that Aristotle’s concept of entelechy is biologically based. Aristotle did a lot of field work in his biological research and made a comparison of many constitutions of Greek cities for his political scientific research. He saw both forms of empirical research as natural science and was searching for explanatory natural laws. Aristotle’s entelechy can be seen as similar to Rickert’s Verstehen. The decisive difference between Rickert and Aristotle is that Aristotle sees the conjecture of a telos as speculative and elaborates it as a personal good, while Rickert claims the existence of general common values and empirical truth.[62]

Concerning Kelsen: Scholten opposes Idealism and Christianity as abstract and general (rational/thought) versus concrete and particular (irrational/act). In Scholten’s view only in Christianity conscience can be connected with an inner fight of a human person who strives for the good from an inner irrational drive, which it finds implanted, while at the same conscious that this drive also can lead astray.[63]

Concerning Rickert: In the Netherlands it is Kohnstamm, a personal friend of Scholten, who sees Rickert as his great example.[64] Scholten agrees with Kohnstamm’s view on Personalism, which at first sight underscores his own view of the Christian concept of conscience. Kohnstamm explains that the conscience can get guidance in the contact with other persons. Scholten mentions this. He doesn’t want to elaborate on it, but only wants to make one remark: the danger of generalizing personal experiences of inner fights to others.

Conscience teaches me what is good for me at this moment in these circumstances, it is not said that the same applies to you. … The deepest wisdom given to us for moral {21} life, Jesus’ teaching, cannot be more violated than by turning it into a moralization, transforming it into a set of precepts. (trans. lhc)[65]

It seems clear that when Scholten refers to his belief, his aim is not to proselyte non- Christians, but to debate with Christians. He wants to warn for the absolutist tendency of rationality, confusing morality with legislation in the way Kant did.[66] At the same time he acknowledges that Christians are more apt than non-Christians to understand entelechy in its original Aristotelian form. Here the words of Aristotle seem to be applicable that the same causes or means that make a human being excellent, can also destroy it.[67]

Similar to Scholten, Aristotle emphasizes the different ways in which the natural tendencies will develop in different individuals and situations.[68] Aristotle gives in his Politics the following example of the differences between peoples:

The nations inhabiting the cold places and those of Europe are full of spirit but somewhat deficient in intelligence and skill, so that they continue comparatively free, but lacking in political organization and capacity to rule their neighbours. The peoples of Asia on the other hand are intelligent and skillful in temperament, but lack spirit, so that they are in continuous subjection and slavery. But the Greek race participates in both characters (…) It is clear therefore that people that are to be easily guided to virtue by the lawgiver must be both intellectual and spirited in their nature. (…) it is spirit that causes affectionateness, for spirit is the capacity of the soul whereby we love. A sign of this is that spirit is more roused against associates and friends than against strangers, when it thinks itself slighted. (…) Moreover it is from this faculty that power to command and love of freedom are in all cases derived; for spirit is a commanding and indomitable element. (…) Hence the sayings “For brothers’ wars are cruel” and “They that too deeply loved too deeply hate”. (trans. Rackham). [69]

The natural tendencies of human beings as described here by Aristotle – development of skill and intelligence, political organization and capacity to rule, living in subordination, having the capacity to love and be affectionate, getting angry, feeling slighted, acquiring the power to command, to fight for freedom and be indomitable, to hate – seem to suit together the life of humans as {22} gregarious animals.[70] The point of discussion here is whether one accepts Aristotle’s dualist view, in which freedom and rationality are contraries with each their own attracting force, or a monist view in which these capacities are hierarchically ordered with rationality as the superior capacity. Only in the dualist view individual action gets a moral meaning and practice has an autonomous value.

Selflove and public office

Kelsen’s main attack on Aristotle is that he pleads for contemplation and for a practical political resignation as can later be found in Stoicism.[71] Kelsen ignores this way the Aristotelian idea of politics which divides power between individuals as an arrangement of offices.[72]

Aristotle’s concept of entelechy becomes meaningless in a state that forces individuals to give up all individual autonomy for the purpose of creating a collective governing body as first defended by Hobbes and later by Rousseau. Their views represent the development of the unified nation state. Aligning with the idea of the nation state, Kelsen and Rickert believe in common goals (welfare) or ideas (immaterial goods), which must be approached through collective action. Seen from this collective perspective a rejection of common goals and common rationality[73] means a resignation from all political activity, a fixation on a purely individual life and soul, to a form of moral egoism like Stoicism. When politically active such a person will despise others who don’t adhere to the same moral prescriptions.

Scholten has understood that a rejection of the priority of material goods and a turn to higher immaterial ideas, which are not understood as ‘common’, but as a personal conscience, can deteriorate when detached from a concrete practice of autonomous action. Only by taking the burden to act individually as a decisionmaker in situations of conflicting beliefs, one meets one’s own soul in a way which leads to self-reliance, strength, insight in own shortcomings, moderation and courage, which are personal virtues and at the same time values for others.[74]

As Aristotle says:{23}

….there are plenty of people who can behave uprightly in their own affairs, but are incapable of doing so in relation to somebody else. That is why Bias’s saying ‘Office will reveal the man’ is felt to be valid; because an official is eo ipso in a relation to and associated with, somebody else. And for this same reason – that it implies a relation to somebody else – justice is the only virtue that is regarded as someone else’s good, because it secures advantage for another person, either an official or a partner (trans. Thomson, Tredennick).[75]

 

1.5      Summary and conclusion

Five core points with a citation from Scholten’s work summarize his view on the judicial decision .

 

Judicial action is neither moral nor scientific.

It is relevant here to compare what Scholten writes in General Method with his remark on the first page of his essay ‘Recht en Moraal’ that till Kant in philosophy there was no distinction between Law and Morality. For Scholten morality is necessarily case-bound. The intellectual is in Scholten’s eyes morally important, because generalization is needed to implement equality, which is one of the principles of law next to others.[76]

To find law is always at once an intellectual and an intuitively moral job. It is a decision about what is and what should be at once, and precisely because of this it is distinguished from the moral as well as from the scientific judgment. (GM 520)

Judicial action comes with a duty, the responsibility of holding an office.

And hereby I return to the questions I have just raised: how is it possible that there is so much difference of opinion concerning legal issues and that still the decision of the judge is the only one possible? The answer resides, in my opinion, in his responsibility. The decision is not the only one possible in the context of the legal system and probably somebody else would have decided differently, but for him every other decision is ruled out, because it is a conscientious decision. But such a conscientious decision can only be passed by the one who is aware of his responsibility, by the judge who takes his job seriously. It is this difference in responsibility which marks the difference between a judge and a lawyer. If one can accept the argument in this section in its full bearing, one can understand that in so many cases there are arguments in favor of the {24} standpoints of both parties: the reasoning of both sides has value, relative value. The law recognizes the value of both but asks in the end for a decision. The responsibility of the lawyer is a different one, less burdensome than the one of the judge. (…) (GM 526-527)

Judicial action is a choice in freedom.

It is autonomous but at the same time it is a public duty, bound by the rules of the position (externally) and by the personal conviction (internally). Scholten links to Aristotle’s political view, that freedom is inherently connected to the exertion of authority and because of this burdensome

His (the judges) choice is a choice in freedom, but exactly because of this it is obligatory, externally and internally. It is his duty. (GM 528)

Wisdom in judicial action is a virtue for somebody else’s good.

Wisdom results from a long-term practice, taking account for difficult decisions in the exertion of public duty.

Wise is the judge who has both understanding and is empowered to act, who knows and can, who subordinates his knowledge to his acts. (GM 528)

Judicial action is a deed with consequences.

Consequences may be unforeseen and unintended. The judge however cannot excuse himself. It is part of the duty that the judge is held to have reckoned with all the consequences of the decision.

There is no demonstrable truth here. But it is better to accept that which is defective and subjective, than to gape at an appearance of objectivity and certainty, which is nothing more than show and doesn’t hold out against criticism. None of this alters the fact that the person, who pronounced the decision is objectively bound by it. (GM, 529)

Scholten’s view is particularly meaningful in situations of conflicting ideas and conflicting wishes. A long period of welfare progress has supported Comte’s belief in collective governmental action, modifying nature for the advantage of man or production.[77] In this period Scholten’s view lost political relevance, but kept its relevance for a court practice of private law. When the creation of welfare progress encounters problems and the general will to embody powerful government shows deep cracks, Scholten’s views will regain political meaning. Rethinking Scholten’s Aristotelian Protestantism for the 21st century is important.

 

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*This text is the webversion of chapter 1 of DPSP Special Issues no 1. Preferably use the citation data of the original publication when referring to this text: Liesbeth Huppes-Cluysenaer, ‘Paul Scholten, Aristotelian Protestantism in Legal Philosophy’, in Aristotelian Protestantism in Legal Philosophy, Rethinking Paul Scholten for the 21st Century, DPSP Special Issues, 1. (Amsterdam: DPSP, 2020). The pagenumers of the original publication are indicated by {}.

[1] Scholten, Algemeen Deel.; Asser et al., Asser Serie.

[2] Scholten, Verzamelde Geschriften.

[4] Netherlands Association for Christian Students.

[5] See Dijkman, ‘“We Hebben Allen Een Taak Aan de Wereld”, Paul Scholten de Doorbraakgedachte’. See also chapter 2 in this book.

[6] Slootweg, ‘Over de Grondslag van de Beslissing’. See also the article in progress of Harry Groenenboom https://paulscholten.eu/in-progress-en/.

[7] See the article of legal sociologist Robert Knegt in this book: Knegt, ‘Scholten’s Reflections on Judge’s Practices’.

[8] Read GM, block 529 and: ‘34. L’autorité de l’Etat’.

[9] See Bruggink, ‘Wat zegt Scholten over recht’. See further in this book Termorshuizen-Arts, ‘The Reception of the Work of Paul Scholten in the Netherlands’. See in particular the open reviews, which accompany it.

[10] Vranken, Algemeen Deel**.

[11] Lissenberg et al., De actualiteit van Paul Scholten. Preface by Lissenberg.

[12] See Hengstmengel and Slootweg, ‘Redactionele Inleiding’. and https://rechtstheologie.wordpress.com/over-paul-scholten/ Read the article in progress of Harry Groenenboom https://paulscholten.eu/in-progress-en/ for a further explanation of Scholten’s Personalism.

[13] Hengstmengel and Slootweg.

[14] Compare General Method block 147.

[15] Marx’s claim is well known. The claim of Comte (greatly admired by John Stuart Mill) is less well known but becomes apparent when one reads Comte. More on this below.

[16] As rightly suggested by Robert Knegt in this book.

[17] It is interesting to note that Nussbaum wants to revitalize the ideas of Comte in Political Emotions.

[18] To know what a perfect classification system is one can think of ordering bookshelves. As some books are known by their author while other are known by their subject, there are at least two classification criteria instead of one. Such a system is not perfect: one always has to look at least at two places. An example of a perfect system uses one classification criterion with hierarchically ordered sub-criteria, such as the Linnaeus model.

[19] Aristotle, ‘Metaphysics’., 987b3-11 and 997b10-20.

[20] The idea even cannot be attributed to Plato. See Pellegrin, Aristotle’s Classification of Animals. and Huppes-Cluysenaer, ‘The Individual Realism of Aristotle’.

[21] Ruler, ‘The Crisis of Causality’., Goudriaan, Reformed Orthodoxy and Philosophy, 1625-1750 Gisbertus Voetius, Petrus van Mastricht, and Anthonius Driessen. Goudriaan and Lieburg, Revisiting the Synod of Dordt (1618-1619).

[22] Scholten, ‘10. Beginselen van Samenleving’., 360/1.

[23] Balke, ‘Oepke Noordmans En Paul Scholten’. 158-160.

[24] ‘6. Recht En Billijkheid’., 268.

[25] Kohnstamm, Het waarheidsprobleem. Voorbericht.

[26] In the DPSP Editorial Board this discussion caused difficulties in 2016. The issue was resolved when in 2017 Springer decided to publish a volume on Aristotle, which was closely related to the Second Paul Scholten Symposium. In 2007 a group had been initiated by Nuno Coelho in which specialists on ancient Greek texts collaborate with lawyers, philosophers and political scientists who read Aristotle’s texts merely in translation. The group convenes biannually at the IVR-congress and has edited two volumes with Springer. I have been co-convenor since 2009.

[27] See for example the remarks about Scholten’s concept of ‘rechtspersoon’ by Jacob Israël de Haan in his inaugural lecture of 1916 Wezen en taak der rechtskundige significa, De Gids, 80. https://www.dbnl.org/tekst/_gid001191601_01/_gid001191601_01_0128.php

[28] See about Paul Scholten and Rickert in this boek: Djalins, ‘Paul Scholten and the Founding of the Batavia Rechtshogeschool’.

[29] Scholten, ‘2. Recht En Levensbeschouwing’., 133. (paulscholten.eu: 28/29)

[30] Rickert, The Limits of Concept Formation in Natural Science. 26, 195.

[31] Rickert. 40-54.

[32] Rickert. 63, 135.

[33] Rickert. 196.

[34] Rickert. 105.

[35] Rickert. 134-136.

[36] Rickert. 141/142 and chapter 5. See for practically the same view the pragmatism of Peirce: Peirce, Collected Papers of Charles Sanders Peirce , Part V Pragmatism and Pragmaticism., 268. Peirce, Collected Papers of Charles Sanders Peirce, Part I Principles of Philosophy., 102.

[37] Rickert, The Limits of Concept Formation in Natural Science., 181-184, 212-214.

[38] Rickert., 12/13.

[39] ‘Separation of Opinions from Aspirations (First Essay 1819)’. 8.

[40] Aristotle, ‘Nicomachean Ethics’., 1130a18ff. And Aristotle Politics 1253a17, 1253a39.

[41] The organization of scientific knowledge in society still more or less follows Kant’s Deist conception. See Kant, The Conflict of the Faculties = Der Streit Der Fakultäten.

[42] ‘The Philosophy of Aristotle and the Hellenic-Macedonian Policy’. This article has had different issues in journals for ethical and political theory. It is important to note that there is a reprint of the English version (1937) in 1977 in a book series on Ancient theory, which comprises from the article’s four parts merely the third one. It may be concluded from this that the sections which were left out in the issue of 1977 were not very much appreciated by the experts in ancient philosophy, while these same sections did have relevance for the specific stance Kelsen developed in ethical and political theory. See also Kersting, ‘Kelsen Und Aristoteles’.

[43] Kelsen, The Philosophy of Aristotle and the Hellenic-Macedonian Policy., 1.

[44] Aristotle, ‘Metaphysics’., 987b3-11

[45] Aristotle, Politics.1261a1ff.

[46] Aristotle, ‘Nicomachean Ethics’. 1144b18.

[47] See Aristotle, NE 1040b10/11 and Pol.1281b30–40.

[48] Recently a different view on Scholten’s dualism has been developed by Borst, ‘De dialectiek bij Paul Scholten’.

[49] Scholten, ‘10. Beginselen van Samenleving’., 366.

[50] See in this context Spruit, ‘Raimondo de Sangro’s Lettera Apologetica Radicale Verlichting in Achttiende-Eeuws Napels’. “And while anti-Cartesian polemists such as Bernardo de Rojas and Giovanni Battista Benedetti argued that Cartesianism weakened the Catholic faith, Giuseppe Valletta defended the ‘Catholic’ Descartes against the ‘Protestant’ Aristotle (implicitly referring to the virulent anti-Cartesianism of Dutch and German Protestants) (trans.LHC)”.(En terwijl anti-Cartesiaanse polemisten zoals Bernardo de Rojas en Giovanni Battista Benedetti beweerden dat het Cartesianisme het Katholieke geloof verzwakte, verdedigde Giuseppe Valletta de ‘Katholieke’ Descartes tegen de ‘Protestante’ Aristoteles (impliciet verwijzend naar het virulente anti-Cartesianisme van Nederlandse en Duitse Protestanten)).

[51] See Barnes’ ‘Introduction’ for the close connection between Aristotle’s ethics and Existentialism.

[52] See for further elaboration Huppes-Cluysenaer, ‘Informal Rules Do Not Exist’.

[53] See for logic General Method 225; See for language theory Scholten’s book review of Jacob Israël de Haan’s Legal Significa in Onze Eeuw IV, 132, 1920.

[54] Aristotle, ‘Politics’. 1253b1-15; 1261a20-1261b16; 1280b30-1281a.

[55] See the article in progress by Hélène Evers https://paulscholten.eu/in-progress-en/

[56] ‘Plan of the Scientific Operations Necessary for Reorganizing Society (Third Essay 1822)’, 14.

[57] Idem, 20.

[58] Scholten, ‘2. Recht En Levensbeschouwing’. 157. (paulscholten.eu, 74ff.)

[59] Scholten, ‘15. De Structuur Der Rechtswetenschap’, 468. (paulscholten.eu, 60). See about this scheme also Shidarta, ‘In Search of Scholten’s Legacy’.

[60] More on the historical-systematic method of Begriffsjurisprudenz in Huppes-Cluysenaer, ‘Van Een Analytische Naar Een Funktionele Rechtsopvatting’.

[61] The idea of bare life in Rickert Die Philosophie des Lebens., Vorwort.  Later this view was further elaborated by Arendt and Agamben.

[62] Paul Scholten attacks this claim of sociology in 2. Recht en Levensbeschouwing, 134. (paulscholten.eu, 31)

[63] ‘7. Recht En Moraal’., 285.

[64] Kohnstamm, Het waarheidsprobleem., Voorwoord.

[65] ‘6. Recht En Billijkheid’., 268/9

[66] Idem, 270.

[67] Nicomachean Ethics, 1103b8ff.

[68] See for Aristotle’s biological basis of irrational drive Nicomachean Ethics 1102b28-1103a10. See for individual adjustment: 1103b26-1104a11.

[69] Politics., 1327b20-1328a19. See Scholten about differences in ‘2. Recht En Levensbeschouwing’., 141 (paulscholten.eu, 45)

[70] See Scholten on the rebel in man and his preparedness to subordinate ‘15. De Structuur Der Rechtswetenschap’., 469. (paulscholten.eu, 64)

[71] Kelsen, ‘Aristotle and Hellenic-Macedonian Policy’., 63.

[72] Pol.1281b30–40.

[73] See for rejection of common conscience General Method., §27

[74] See for Scholten on selflove ’10. Beginselen van Samenleving’., 361; see for personal conscience and its limits for moral theory and specific meaning for legal theory ‘6. Recht En Billijkheid’., 268/10.

[75] Aristotle, The Ethics of Aristotle: The Nicomachean Ethics.,1129b34-1130a5. I do not use the translation of Ross and Urmson. It seems less insightful, due to the use of the word rule instead of office.

[76] See General Method 513 about generalization, See further the discussion about Kelsen’s view in ‘15. De Structuur Der Rechtswetenschap’. section 2 and about principles of law ‘13. Rechtsbeginselen’.

[77] See above footnote 57.

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