Asser-serie & General Method

Scholten’s General Method of Private Law is the first chapter of the book Algemeen Deel, written in 1931, with a second slightly revised edition in 1934. Algemeen Deel is the general volume – concerning the general aspects – of a series of main textbooks on Dutch Civil Law, which still exists, the so-called Asser-serie. The first chapter of Algemeen Deel has become the most famous text on legal philosophy in the Netherlands. The digital Paul Scholten project (DPSP) was first and foremost established to create an English translation of this first chapter.

Design of the Asser Serie

The Asser-serie is named after Carel Asser (1843-1898). Carel Asser began his legal career as a judge in the district court of The Hague and became a professor in civil law, commercial law and the law of civil procedure at Leiden University in 1892. Asser had been appointed in 1880 to the membership and general secretary of the State Committee for the revision of the Civil Code of 1838. This took much time and forced him early on to find co-authors for his manual, as he explains in the Preface of the first volume of his series. According to the same Preface, Asser wrote his manual for young students who to his mind needed an introduction to the general principles of civil law without being distracted too much by the details and complexities of the law discussed in the academic world. In that context he thought it problematic that practitioners had little time to write textbooks.
The manual was published in installments (‘afleveringen’), the first in 1878. The first print of the first complete volume, containing an Introduction and the Law of Persons, was ready in 1885. The manual gradually expanded to five volumes. After World War II, however, it expanded enormously and today consists of more than thirty volumes. Each volume is still known as a part of Mr. C. Asser’s Handleiding tot de beoefening van het Nederlands Burgerlijk Recht (Mr. C. Asser’s Manual for the Study of Dutch Civil Law).

 

Paul Scholten and Algemeen Deel

From the Preface, written by Asser, it can be concluded that the simple style and practical focus of Scholten’s General Method reflected the intended characteristics of the series.

Scholten revised the fourth reprint (1912) and the fifth reprint (1923) of the first volume. In the course of editing the sixth reprint, Scholten decided to take out the introduction and create an independent volume which was published in 1931. The volume was entitled General Volume because it treated, as Paul Scholten explains in the Preface, issues which play a role in every segment of civil law.

 

The first chapter of Algemeen Deel

The first chapter of Algemeen Deel, which treated the method of private law, was immediately considered to be a masterpiece. It was translated into French (1954) and Indonesian (1986).
While the first chapter was originally entitled The Method of Private Law, it was decided by the editorial board of DPSP to give the autonomous editions of chapter 1 in different translations a new title: Paul Scholten: General Method of Private Law (in short General Method, GM). The word general was added to emphasize that the text is much broader than a treatment of the methods of interpretation in private law and to indicate the status of Chapter 1 as a pars pro toto for Algemeen Deel.

 

The impact of Chapter 1

General Method avoids the use of legal theoretical jargon. It treats all of the general issues which form part and parcel of any introductory course of law, such as the nature of a legal rule, the difference between private and public law, law as a unified system (construction, fiction, analogy, system) and the nature of the legal decision. The popularity of General Method is among other things due to the fact that it describes the general issues of legal theory from the point of view of the professionals who have to make legal decisions on a daily basis. Especially popular in the Netherlands are the last paragraphs which treat the legal decision itself.

 

Changes and developments in recent years

The ‘down to earth’ character of General Method is in a certain sense deceptive, as Scholten was quite knowledgeable about the historical, philosophical and religious depths of the academic tradition of law, and developed a very specific point of view in the first chapter of Algemeen Deel.

In 1995 a new Algemeen Deel** was written by J.B.M. Vranken, Professor of Private Law at Tilburg University. Vranken published two other volumes, in 2005 (Algemeen Deel ***) and in 2014 (Algemeen Deel ****). Vranken’s new trilogy of general volumes has not replaced Scholten’s general volume, but has functioned alongside it, as a treatise which is better aligned with the new conceptions of law that have emerged since WWII. It should be noted that the admiration shared by many legal theorists for Scholten’s General Method should not obscure the fact that most of them fundamentally disagree with Paul Scholten’s main points of view.

 

New attention for the religious view of Paul Scholten

A new compilation of Scholten’s work was published in 2010, with the title, Dorsten naar Gerechtigheid (Thirsting for Justice), edited by T.J.M. Slootweg, Lecturer at Leiden University. This latter book contains a reprint of the first chapter of Algemeen Deel as well as a selection of Scholten’s Collected Papers that, according to Slootweg, reveals Scholten’s personalism and strong affinity with the Christian existentialism of authors like Jaspers, Brunner, Barth and Buber. Slootweg also links Scholten’s methodology and legal philosophy to the contemporary work of postmodern philosophers such as Levinas and Derrida.

 

The focus of the Paul Scholten Project

The primary focus of the Paul Scholten project is on the role of judge as the paradigmatic Aristotelian model of the individual moral actor. Many contemporary authors reject Scholten’s ideas about the way law and faith meet in the specific role of the judge. Yet the connection between law and faith returns in the recently renewed attention to the connection between emotion and law.

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