Paul Scholten’s Life

By Rogier Chorus, Liesbeth Huppes-Cluysenaer and Jacqueline Schoonheim[1]

 

 

Scholten’s life and career

During the course of Scholten’s life and career, his views on issues of private law were held in high regard as well as his views on issues of organization and mediation in all sorts of associations. He was a charismatic person and was often invited to chair the organizations with which he became involved. Scholten was also loved by his students, who adopted his concepts, referred with great reverence to him and played an important part in the reconstruction of Dutch society following the Second World War.

 

Personal Data

Paulus Scholten (Paul) was born in Amsterdam on August 26, 1875. He died unexpectedly on May 1, 1946 aboard the MS Delftdijk en route to the United States, where he was invited to deliver a lecture at Harvard University and where he would finally have the occasion to visit, together with his wife, their daughter Bodine, who just before the war had moved to Canada where she married and had children.[2]

 

Paul Scholten was born into the Amsterdam bourgeoisie, the son of broker Gerbert Scholten and Catharina Elisabeth Ledeboer. His parents passed away early so that Paul was an orphan at the age of seven. He, his brother Joan and his sister Lize were raised by his uncle Joan Scholten, a broker like his father, who married his mother when she became a widow. Paul Scholten was married in 1903 to Grietje Fockema from Friesland. They had two sons, Gerbert (Geb) en Ynso, and their daughter, Bodine.{29}

 

Education

There were two major debates about education in the Netherlands that were important in Paul Scholten’s lifetime. The first was about the place of religion in schools and concerned the segregation between schools of different Christian denominations. The second was about making Latin a requirement for higher education and concerned the potential exclusion of a large part of the population from academic education. The details about the life and career of Paul Scholten show his interest in these debates and his position in them. He was in favor of an open relationship between different denominations and of a broad model for accessible higher education.

The discussion about the place of religion in education generated from the first liberal constitution of 1848. Politically dominant became an agreement between the orthodox and the liberal parties, combined with most of the conservative party and a large part of the Catholic party, which established a neutral public school. It was permitted to establish private schools of a specific denomination, but these schools had to finance themselves without the support of public assistance.[3] The choice for a neutral public school in the Netherlands was essentially for a school of the dominant religious denomination in the area. Schools took the color of that denomination, while schools in environments with diverse denominations would take a more neutral stance.[4] So when Paul Scholten attended primary school in his native Amsterdam, his education was more neutral than religious.

Catholics and Protestants took action against the neutral public school for fear of secularization[5] and collected money to establish private schools for their own denomination. Only after the financial equalization of private and public education was achieved in 1917 – bargained in exchange for universal suffrage – did the development of private secondary and higher education became a success, leading however, to a segregation along religious lines of this sector as {30} well. When Paul Scholten attended secondary school, it was still a matter of course then that it would be the municipal gymnasium.[6]

Paul Scholten enrolled in 1893 at the Faculty of Law of the newly opened University of Amsterdam. The Law of Higher Education of 1876 made it possible to establish private universities with the same rights as the public universities of old (Leiden 1575, Groningen 1614, Utrecht 1636). In 1877 the town of Amsterdam transformed its Atheneum Illustre into a public university financed by the city. At that time, the expansion of higher education was specifically motivated by the economic and commercial needs of industry. The newly established Municipal University of Amsterdam was immediately successful, due to the appointment by the city of scholars who enjoyed great international fame.[7]

In the beginning Scholten was only moderately interested in law – he had intended to study language and grammar – but the fascinating teaching style of J.F. Houwing, a professor of civil law and civil procedure until 1910, who had also studied classical languages, won him over to the study of law. Houwing treated legal issues against a wide background, beyond the written law and even beyond the law altogether, including historical development, the needs of society, etc. This method very much appealed to Scholten, as did the dialogue form of teaching which Houwing was in the habit of using. Later, his own classes would be equally geared to active participation, rather than to passive listening. He had animated contact with his students by debating with them as equals.

Scholten successfully passed his candidate’s exam on February 8, 1895, and three years later his (final) doctoral exam. He was awarded his doctorate degree cum laude on May 25, 1899. The topic of his doctoral dissertation was on damages not related to contract or tort and was supervised by Houwing. During his study Scholten was an active member of the Amsterdam student union ASC (Amsterdams Studenten Corps).{31}

 

Professional career

After having completed his study, Scholten settled in Amsterdam as a practicing lawyer (1899-1907). He became a deputy judge in 1903 and was appointed deputy justice at the Amsterdam Court of Justice in 1915, a post which he held until 1935. In 1906 he was given a temporary post as lecturer of civil law and civil procedure at the University of Amsterdam. His appointment expanded greatly over time. In 1907 he was appointed professor in Roman law (until 1914). In 1910 his teaching responsibilities expanded to include civil law and the law of civil procedure (until 1945 and 1927 respectively). From 1914 until 1921 he taught old Dutch law and the Encyclopaedia of Law (a general introduction to law). From 1927 to 1946 Paul Scholten also taught philosophy of law.

Scholten was appointed to membership of the Royal Dutch Academy of Sciences in 1922.[8] From 1930 to 1942 he was secretary of the Academy’s Department of Literature. In addition, for almost twenty years he chaired the Amsterdam University Society and in 1940 he delivered the address upon the fiftieth anniversary of that society.[9] He held the position of Rector Magnificus in the year of the tercentenary of Amsterdam University and delivered two commemorative speeches.[10] jaartal

 

Scholarly impact

Of great importance to the development of Dutch civil law is Scholten’s involvement in the production of the Asser-serie, the main textbook series on Dutch civil law compiled by judge and legal scholar Carel Asser. This manual of Dutch civil law was published in installments (in so-called ‘afleveringen’), beginning in 1878. The first print of the first volume, containing an introduction and the law of persons, was ready in 1885. Scholten revised the fourth reprint (1912) and fifth reprint (1923) of the first volume, incorporating new laws, ideas and jurisprudence. In 1931 the Introduction in the first volume was separated from the Law of Persons and rewritten by Scholten as a new first volume, which was called the General Volume: his seminal Algemeen Deel.{32}

Scholten also edited and revised the volumes on the Law of Persons and the Law of Property of Asser’s Manual several times. These publications reflected the views and notions which typified his pragmatic approach to the theory and development of private law. He was always in search of solutions that were not only theoretically acceptable, but which also satisfied the needs of the daily practice of (commercial) life. Special mention must be made in this regard of his recognition of fiduciary transfer of ownership as a valid analogue of the right of pledge. Also noteworthy is his concern that an abstract construction of legal personality could bring about unreasonable and unfair consequences for legal life in the event an association had not yet been approved or reapproved.

Alongside his commitment to the practical aspects of applying law, Scholten also contributed to the doctrinal theory of private law. He took a decisive position with respect to two key doctrines, related respectively to Articles 1401 and 2014 of the old Dutch Civil Code. Concerning Article 1401, he published an essay in 1902[11] which addressed the issue of causality in the doctrine of extra-contractual damages, and introduced the concept of ‘adequate causation’ to explain that of all the circumstances which are proven to be conditions for the occurrence of a legal effect, only those causes that considerably increased the chance of that occurrence are legally relevant. This concept was accepted in cases concerning accident insurance, e.g., and in 1927 it became the leading opinion of the Dutch Supreme Court and replaced its doctrine of the conditio sine qua non.

With respect to Article 2014, which protects the possessor of movables, Scholten advocated a refined interpretation, i.e., an interpretation which added a restrictive condition to the existing doctrine. The doctrine provided that the good faith possession of movable goods implies ownership rights. In his essay on possession and proof concerning revindication,[12] Scholten argued that Article 2014 only protects possession obtained through a legal transfer of the movable. The possessor should be legitimated by a valid title of this transfer (sale or donation). This doctrine of legitimation was accepted by the Dutch Supreme Court in 1950.

From 1907 to 1930 Scholten was the editor of the Weekly on Private Law, Notarial Profession and Registration (WPNR). From 1926 to 1942 he was annotator of the Journal of Dutch Jurisprudence (NJ).{33}

 

Contribution to society

Scholten was editor and active contributor to many journals that were not specifically law-oriented, such as Onze Eeuw (a literary magazine), De Schakel (the journal of the Religious Democratic Circle, associated with the Liberal Democratic Union) and the Algemeen Weekblad voor Christendom en Cultuur (a weekly Christian cultural magazine). His contributions to these journals reflect his broad interest in political, social and religious life. He wrote essays concerning military conscription,[13] the monarchy[14] and colonialism.[15] His point of focus in particular was on the power of the state and the abuse of power by totalitarian regimes of an extreme left or extreme right signature.

From 1914 to 1919 Scholten chaired the Supervisory Board for the Implementation of the Law of Accidents and the National Insurance Bank. In 1917 he founded along with others the Amsterdam Lyceum. The initiative to establish the Amsterdam Lyceum was motivated by a desire to bridge a deep social and cultural divide between two segments of the bourgeois elite which had been caused by national educational policy. The desire to give a broader segment of the population access to higher education had started in the Netherlands in 1864 with the establishment of the HBS, a secondary school that did not offer Latin and Greek like the gymnasium, restricting access to university education. This resulted, according to Kohnstamm, a famous proponent of the lyceum, in an artificially created gap between pupils of both types of school that lead them to live in two different forms of one-sided intellectualism, cultural versus technical. [16] The aim of the Lyceum was to create a school open to all denominations and to all learning tracks and grant access to university education. Scholten remained president-curator of the Amsterdam Lyceum until 1931.

Scholten became a member of the national Education Council in 1927, which he remained until 1935. In 1924 he was tasked by the government to direct the establishment of the first school for higher education in law in Batavia, then a Dutch colony now the country of Indonesia. This became a predecessor of the Universitas Indonesia. During two periods of sojourn in the Dutch East Indies, {34} he visited and talked with many segments of the Indies population. He dropped Latin as an obligatory requirement and ensured that the law school curriculum was adapted to the needs of Indonesian society, as described in the article of Upik Djalins on this website.[17]

 

Protestant-Christian Conviction

Scholten received the kind of Christian upbringing which was normal in liberal Dutch bourgeois families at the time. His stepfather had no deep Christian conviction. Over the course of his life, however, Paul Scholten, became deeply involved in the Christian faith, not only in his personal convictions, but also through his membership in the church. Starting in 1931 Scholten contributed to the development and reorganization of church law of the Dutch Reformed Church. Commissioned by the Reorganization Committee, which he chaired, he wrote a defense of the Committee’s proposal for reorganization.[18] While the proposal was not accepted at first, it was later adopted, some years after his death, in 1951.

In 1939 Scholten published an article about the church and anti-semitism,[19] arguing that the Protestant church should be organized so as to be able to respond to societal evils that threaten the essence of the [of: á’?] church’s existence – the freedoms of conscience and of church organization.

 

The War Years

Scholten was invited to act as a spokesman together with H.B. Wiardi Beckman and B.M. Telders at a large meeting to be convened by the Liberal State Party on September 14, 1940. Although the meeting was forbidden by the occupier, the speeches were published in a pamphlet, Loyal to the Fatherland, and sold by the thousands.[20]

At the start of the war (1940), Scholten became the chair of a study group on church and government, which was part of the Committee for Ecclesiastical Consultations, established by the General Synod of the Dutch Reformed Church. {35} The recommendations and guidelines developed by this study group determined to a large degree the decision of the Dutch Reformed Church to openly challenge anti-semitism and oppose the illegal occupation.

From the last months of 1941 to March 1942, Scholten, who had become chairman of the Convent of Churches (a collaboration between the Dutch Reformed Church and other more orthodox reformed churches in the Netherlands) and the representative of the Roman Catholic Church, Archbishop Mgr. J. de Jong, prepared a memorandum to present to then Secretary-General of the Ministry of Justice, J.J. Schrieke. The memorandum was meant to persuade Schrieke to assist in organizing a meeting with the Rijkscommissaris Seyss-Inquart in order to express to him the objections of the churches in the Netherlands to the persecution of Jewish citizens and the occupation.

Scholten intended to present the memorandum in person, but a few days before the meeting Scholten was dismissed as professor at the University of Amsterdam and as secretary of the Royal Academy. He was banished to the southern city of Valkenburg in the Dutch province of Limburg. Half a year later he was granted permission to stay in his country house in the Veluwe (Hulshorst), on condition that advance permission was required for all travel and any nightly absence.

Scholten remained actively involved in the consultations of the Dutch Reformed Church. He led an informal group with mostly young academics to discuss the reconstruction of post-war Dutch society. This group, the ‘Comité-Scholten’ or the ‘Pauliden’, comprised persons who became influential postwar politicians, such as G.E. van Walsum, C.L. Patijn, H. Kolfschoten and W. Schermerhorn. When the occupation finally ended a National Advisory Committee was formed with members of this group and a number of other illegal groups. Paul Scholten accepted the chair of this Committee on July 20, 1945. Its main task was to make proposals for the appointment of members of the Emergency Parliament that would function until the first postwar elections took place in 1946.

Scholten became a member of the Labor Party that was newly constituted in February 1946. His membership was seen as support for a political movement in favor of ending the segregation among different religious and ideological groups that was prevalent before the war, and to assemble all progressive political forces in one political party.

Scholten became a member of the ‘Committee for Purification’ and chaired the department which was tasked with the screening of high-ranking Dutch officials accused of collaboration with the German enemy.

{36} Due to his sudden death during his journey to America, it remains unknown how Scholten would have responded to the many changes of the new post-war era.

 

 

 

 

 

[1]  * In the start of the DPSP project an English translation was made of W.M. Peletier, “Scholten, Paulus (1875-1946),” in Biografisch Woordenboek van Nederland (The Hague: ING, 1979). This text is used here as starting point.

** This text is the webversion of chapter 2 of DPSP Special Issues no 1. Preferably use the citation data of the original publication when referring to this text: Rogier Chorus, Liesbeth Huppes-Cluysenaer, and Jacqueline Schoonheim, ‘Paul Scholten’s Life’, in Aristotelian Protestantism in Legal Philosophy, Rethinking Paul Scholten for the 21st Century, DPSP Special Issues 1 (Amsterdam: Digital Paul Scholten Project, 2020). The pagenumers of the original publication are indicated by {}.