Board (2010-2020)

DPSP’s Editorial Board functioned from 2010 to 2020. The Board was concerned – at a distance – with all aspects of the design and administration of the website. Thus the Board has been of great support to the initiator of the project. Some members of the Editorial Board resigned at an early stage for varying reasons, and some in fact never became actively engaged. Listed below are those members who were actively involved in the project for a substantial period of time. The data given below often pertain not to the whole period, but to only a part of it. During the period 2010-2020 many career changes took place.

 

Members of Editorial Board

Chairman: Laurens Winkel– Professor of Legal History at Erasmus University, Rotterdam. Deputy judge at the Court of Appeal in Amsterdam. Studied Dutch law at the University of Amsterdam and law at the Université des Sciences Sociales Toulouse I. He received his doctor’s degree cum laude in 1983 for a thesis on the meaning of error iuris in Greek philosophy and Roman law. He taught as a guest professor at the University of Zürich, Fribourg, the Université Paris V René Descartes, the Università ‘La Sapienza’ in Rome and the University of Ghent, and was a member of the editorial board of the Tijdschrift voor Rechtsgeschiedenis and Grotiana. From 2001 to 2011 he was a member of the Council for the Humanities of the Royal Dutch Academy of Arts and Sciences. In 2013 he received a doctorate honoris causa at the University of Edinburgh. He publishes on the historical/philosophical aspects of civil law, the pre-modern state and the history of international law. See for publications: https://www.researchgate.net/profile/Laurens_Winkel

Vice-chairman: André Hoekema– emeritus Professor of Sociology of Law and Legal Pluralism, at the University of Amsterdam, where he wrote his doctoral thesis (1972) on the informal way in which petty theft is treated in the port area of Rotterdam, and stayed affiliated for many years after his retirement to guide PHD students. He had studied both sociology and Dutch law at the University of Utrecht. In later years he has specialized and published on territorial rights, legal reform and ways to ‘pluralize’ the state and its legal order, mostly in Latin America and some African countries. The interaction between legal and sociological/anthropological theory has been one of the recurring topics of his academic interest. In this context he has also devoted attention to Scholten and his contemporaries such as Levenbach, Valkhoff, Hijmans and Sinzheimer. See for publications: https://www.researchgate.net/profile/Andre_Hoekema

Editorial Secretary: Liesbeth Huppes-Cluysenaer: After being retired in 2012 she stayed affiliated with the University of Amsterdam as guest researcher until 2020 to finish the Scholten project. She studied Dutch law and teaching philosophy, both at the University of Amsterdam. She wrote her dissertation on the relevance of the theory of science in the context of legal education in 1995, and lectured on various subjects in legal philosophy, sociology of law, epistemology of law and argumentation theory. Her current research topic is Aristotelian legal theory. For publications see: https://www.researchgate.net/profile/Liesbeth_Huppes-Cluysenaer2

Esther Hoorn– consultant in intellectual property, open access and data management at the University of Groningen. Studied Dutch law at the University of Leiden. She has experience in legal practice, being for some time a Deputy Judge at the Leeuwarden Court of Law. She used Wiki-software in an experiment with Dutch students following legal education in English and has acquired expert knowledge about the creation of enhanced publications. Her focus of interest is in the way new software tools affect academic legal communication and broader participation in research. As a great-grandchild of Paul Scholten she promotes the availability of Scholten’s work in the public domain. See for expertise: https://www.rug.nl/staff/e.hoorn/

Niels van Manen– member of the Court of Appeal of Amsterdam since 2009. Studied Dutch law at the University of Leiden and acquired his doctorate at the University of Amsterdam in 1989 where he was an associate professor for many years. The subject of his thesis was an empirical study of social-legal aid. He and André Hoekema published a manual on the theory and method of the sociology of law. For some time he managed the Paul Scholten Research Institute of the University of Amsterdam and during this period, together with Roelf Stutterheim, edited a photoprint of the Scholten’s doctoral thesis, using Scholten’s own copy with personal annotations. In 1995 he wrote an article specifically on Scholten’s method of law-finding, which has recently been translated into English and can be downloaded at: http://ssrn.com/abstract=1585106  See for publications also https://www.researchgate.net/profile/Niels_Van_Manen2

Antoinette Muntjewerff – Assistant Professor in General Legal Theory and (from 1988 – 2003) Artificial Intelligence & Law at the University of Amsterdam. Studied both law and educational science at the Free University in Amsterdam and at the University of Amsterdam, the Catholic University of Nijmegen and the Free University in Amsterdam. Her PhD research (2001) involved theoretical and empirical studies of legal case-solving, as well as the construction of an instructional environment for learning to solve legal cases called PROSA. In 2003/2004 she worked as part time Professor of Legal Methodology at the Faculty of Law of the Free University of Brussels to develop a curriculum for Legal Methodology and set up an electronic practical (a WorkBench) for Legal Methodology. Her research focuses on modelling legal knowledge and legal reasoning to develop electronic materials for learning law (see www.antoinettemuntjewerff.nl).

Bram Scholten- advisor in the Payments Division of De Nederlandsche Bank (DNB) in Amsterdam. Joined DNB in 1980 and has held a wide range of positions since then. Was posted to the International Monetary Fund in Washington DC and since 2011 has been posted to the European Central Bank in Frankfurt. Studied Economics and (more recently) Dutch law, both at the University of Amsterdam. Grandson of Paul Scholten and son of G.J. Scholten who was Professor of Dutch Civil Law at the University of Amsterdam from 1962 until 1979, the same position which Paul Scholten had held from 1910 to 1945. Former chairman of the Westerkerk Church Council in Amsterdam and board member of the Germany Institute Amsterdam (Duitsland Instituut Amsterdam) (DIA). See for his expertise https://www.mr-online.nl/boek-juridische-aspecten-cash/.

Marjanne Termorshuizen-Arts– painter/artist and freelance translator/interpreter Dutch-Indonesian. During 2004-2007 a research member at the Van Vollenhoven Institute, Leiden. During 2006-2008 a member as well as interim-chairman of the Pin Yin Committee on the translation of Dutch legal terms in French, German and English. Studied law at the Radboud University of Nijmegen and Indonesian Languages at the University of Leiden. She received her doctor’s degree at the University of Leiden in 2003 with a thesis on the methodology of comparative law. In this thesis she developed a method to visualize the tenets which are crucial for the understanding and comparison of certain concepts of law. Also, in 1999, she published a Dutch-Indonesian legal dictionary and, in 2000, an Indonesian-Dutch dictionary on civil law. In 2003 she edited and commented upon a translation by Tristam Moeliono and Widati Wulandari of a well-known manual on Dutch penal law by Jan Remmelink. See for publications https://www.researchgate.net/profile/Marjanne_Termorshuizen-Arts. For art https://www.marjannetermorshuizen.nl/

Saskia Wouterse-Windhouwer - specialist in electronic publishing/repository manager at the University of Amsterdam and Head of Library & Information Services at the Netherlands Institute of Ecology (NIOO-KNAW) in Wageningen. At the University of Amsterdam she is the contact person for copyrights, open access, the research information system and the Institutional Repository (UvA-DARE). She is a member of the UKB-working-group Open Access and acting chair of the Special Interest Group Research Information. In 2010 she won the SURFshare Open Access Award. Furthermore she participated in the 7th Framework Programme of the European Commission entitled Digital Repository Infrastructure Vision for European Research II and is co-author of one of its products: “Report on Enhanced Publications state-of-the-art”. Currently working at the university of Leiden. See for her expertise https://www.universiteitleiden.nl/en/staffmembers/saskia-woutersen-windhouwer#tab-1

 

Scholten Seen Through the Editorial Eye

The Paul Scholten website went online in 2013. Most members accepted the request of the webmaster/editorial secretary to describe their involvement with the project.

Antoinette Muntjewerff

Paul Scholten’s Algemeen Deel (1934) is essential for legal research. My research interests are on the thinking, reasoning and planning that mediate legal problemsolving, learning and skilled performance. My main interest is in the structure and acquisition of legal expert performance. My research includes the disciplines of legal (computational) theory, legal methodology, legal knowledge acquisition, cognitive science, learning & instruction and instructional technology. My research focus is on the conceptual analysis of the basic/core tasks in law (legislative design and legal assessment) in order to construct models that can be used in legal research and legal practice. In this (re)construction process, two components can be distinguished:

1) a theoretical component of exploration, conceptualization and specification of legal knowledge and legal reasoning resulting in explicit models of legal knowledge and legal reasoning. Two perspectives can be taken within this approach: a legal perspective and a knowledge engineering perspective. From the legal perspective, different legal sources are examined to specify required models, these being legal empirical research, legal educational practice, legal dogmatic and legal theoretical research. The knowledge engineering perspective is used to construct models at a high level of explicitness as they have to be executed by a computer. This explicitness of models is exactly what is needed in instruction for both theory formation and fault detection.
(2) An empirical component where empirical studies are carried out to gain insight into the way legal practitioners and legal scientists handle legal knowledge in general and in carrying out specific legal tasks. Law students are studied to see how they handle and use legal knowledge to perform a specific legal task and what difficulties they experience.

For me Paul Scholten’s Algemeen Deel provides the basis for the theoretical exploration, conceptualization and specification of the core task in law: legal decision making. Three main elements are important in his Algemeen Deel: 1) law is seen as a coherent system (system and coherence); 2) the activities and knowledge needed to carry out these activities are made explicit (methodology); and 3) the distinction between ‘fast’ and ‘slow’ thinking (intuition and rational problem solving) (Kahneman 2011) Research into legal problem solving requires being acquainted with Paul Scholten’s Algemeen Deel.

 

Niels van Manen

My interest in Paul Scholten originated during my studies at Leiden University at the time of the ‘revolution’ of 1968/1969 that swept over the world. In their critical approach to law and legal decision making, most law professors in those days still claimed that law was clear, and that judges, just as their social background, were unimportant. Thirty five years earlier Scholten had proclaimed ‘Law as an open system’ in his Algemeen Deel (General Method) and clearly saw the influence of the ‘mind set’ of a judge at work in every legal decision. For him there was and could be no neutral judge having no influence on the outcome of a legal conflict in court. Seen through my young legal scholar eyes, Scholten was not only a well-respected legal scholar and a well-known professor of civil law and philosophy of law at the Faculty of Law of the University of Amsterdam, he also put an end in his Algemeen Deel to one of the great judicial myths: Justinianus, Montesquieu, Robespierre and all those Bouche de la loi-adepts were, in conviction or ideology, wrong. This thought of such an eminent legal scholar offered me a starting point for my critical analysis of the legal profession and law in general. ‘Law as an open system’ was, if not presented by Scholten for the first time in the Netherlands, made Salonfähig by Scholten in legal debate. Scholten argued that in fact judges take a kind of leap to reach their conclusions and decisions. The only real question was: how do judges actually decide? Scholten saw a role for intuition to fill the gap in decision making. Two sources of this intuition were possible: one was “the Idea of Law, one of the forms in which the Weltgeist realizes itself, the other the conscience subdued to a higher power, which as Person revealed in Creation and History, the individual and the society (collectivity) approaches with unconditional claims. (GM, block 530)”
The first according to Scholten, refers to idealism, especially in its Hegel-pantheïstic form, and the second is a Christian belief. I think this understanding of the sources of judicial intuition is too limited. It neglects, among others, Marx and Durkheim. More than 60 years after the publication of Algemeen Deel, in 1994 André Hoekema and I wrote Types of Legality and in 2000 an considerably expanded version (with the subtitle: Developments in Law and Society), in search of changes in social structures and public morals in the Netherlands over the course of more than a century, in order to be able to explain the developments and changes of the law (statutes and judicial decisions). Our exploration brought us to themes such as the multicultural society and the law, and to legal pluralism more broadly. I continue to search to this day for the sources of the judge’s intuition… in theory and practice.

 

Laurens Winkel

My research on the works of Paul Scholten is framed in a double way: at first I am interested in the history of legal science and jurisprudence in the first half of the twentieth century (the reappearance of natural law philosophy in particular) and I find Scholten’s analysis of the judge dealing with private law codification particularly fascinating. From a legal historical perspective he deals with the same problems as Portalis in his famous Discours Préliminaire. Scholten did not work alone! In his valedictory lecture of 1945 he acknowledged this, mentioning his sources, especially in the works of Rudolf Stammler. In the beginning of his career he also published an article on the new Swiss Civil Code of 1907 with its famous first article in which a provision is given in case of a lacuna in the statutes. In this article we find the legal theory of Algemeen Deel in a nutshell.

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

 

Liesbeth Huppes-Cluysenaer

Important for me in relation to this project is a quote by Karl Popper, taken from a lecture he delivered in the Netherlands and many other countries and tremendously influential.

But the old ethics was based upon the idea of personal knowledge and of certain knowledge and, therefore, upon the idea of authority; whereas the new ethics is based upon the idea of objective knowledge and of uncertain knowledge. This signifies a fundamental change in the underlying way of thinking and, consequently, in the way that the ideas of truth, of rationality and of intellectual honesty and responsibility function. The old ideal was to possess truth – certain truth – and, if possible, to guarantee truth by means of a logical proof. This ideal, widely accepted to this day, is the idea of wisdom in person, the sage; not of “wisdom” in the Socratic sense, of course, but in the Platonic sense: the sage who is an authority; the learned philosopher who claims power: the philosopher king. (…) The old ethics I am describing leaves no room for mistakes. Mistakes are simply not allowed. Consequently, mistakes must not be acknowledged. I do not need to stress that this old professional ethics is intolerant. Moreover, it always has been intellectually dishonest: it leads (especially in medicine and in politics) to the covering up of mistakes for the sake of protecting authority. This is why I suggest that we need a new professional ethics, mainly, but not exclusively, for scientists. I suggest that it be based upon the following twelve principles, with which I shall conclude this lecture. (‘Toleration and Intellectual Responsibility’, in In Search of a Better World: Lectures and Essays from Thirty Years (London; New York: Routledge, 1992), 188–204.)

In my view Scholten tried to erect a monument for exactly that idea of professional practice which according to Popper can be traced back to Plato and which he describes as intolerant. Scholten seems to have been quite aware of the ideas in his days that foreshadowed the words uttered by Popper. From the start of my professional career I have been interested in the opposition between this old and new model of professional practice. It was the central theme of a paper I wrote in 1977 for the first conference of Dutch legal sociologists. I especially worked on the concept of subjective knowledge in its contradiction to Popper’s ‘epistemology without a knowing subject.’ (ch. 3 of Karl R Popper, Objective Knowledge; an Evolutionary Approach (Oxford: Clarendon Press, 1972). In this regard I have been puzzled by the fact that Popper creates a distinction between Socrate and Plato, but pays no attention to Aristotle.
For most people the term subjective has connotations of being determined by emotions and prejudices. Scholten didn’t deny this. But he defended – especially in the last 20 pages of his Algemeen Deel – an epistemological model with a double structure, based (in my words) on a cooperation between verbal intelligence (concepts) and acting intelligence (intuitive appreciation). Verbal intelligence is abstract and general, while acting intelligence pertains to assessments of individual situations. In Algemeen Deel Scholten describes how the legal structure of society is based on a mixed regime of rational verbal legitimation referring to rules/principles and irrational appreciative decisions. Popper’s view implies that mainly scientists determine practice and that the distinction between ethics and science disappears.

 

Bram Scholten

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

 

Marjanne Termorshuizen-Arts

Jurists have long strived to establish the meaning of legal terms and concepts as precisely as possible. For a time they worked from the assumption that it was possible to determine the meaning of a legal concept by means of a clear legal definition, such that interpretation was hardly or not at all necessary. Faced with the reality of legal practice, however, views have changed. The dynamic developments of our rapidly evolving and changing society have made it necessary to inter alia make use of vague terms and open descriptions in the definitions of legal provisions.
Previous ways of interpreting were therefore replaced by a broader approach, whereby one understood that for interpretation factors from outside positive law must also play a role. This means that in addition to positive law elements, such as the meaning which is given to a concept in the doctrine or case law, also the influence of the interpreter/the subject itself is crucial to interpretation. Paul Scholten was one of the first to realize and propagate this.
In this and adjacent fields he was a pioneer. He warned against an overly restricted and what he called rational way of decision making by the judge. According to Scholten, for a judicial decision to be valid and just, the irrational or intuitive, and thus personal and preferably non-juridical aspect was also indispensable. One of the jurists to elaborate on Scholten’s ideas is Jan Vranken, a leading jurist of our time. Jan Vranken has published two treatises on legal theory and the finding of law, of which the first (in 1997) came as a follow up to Scholten’s Algemeen Deel. In his second book, Asser-Vranken, Een vervolg (2005), Vranken states that the particular mind-set of jurists that helps them to decide a case, which is based on the education and particular way of thinking of jurists, seems to make it easier for them to reach their conclusions. Other than what they think, however, their conclusions are not necessarily valid. If one thinks in terms of a specific mental model, one runs the risk of being imprisoned within the boundaries of such a model. Basing ones views on a pattern of thought or mental model seems to be very efficient because some factors are given too much attention while other factors are obscured. To see all factors at once is too much a burden for the average jurist! Therefore, according to Vranken, it is healthy to not focus exclusively on the position of the judge as the decisive factor in finding law, but to insert other ways of thinking. In this he stresses the importance of context that should permeate the restricted thinking pattern or mental model of before. I question whether Vranken provides a convincing solution in this second work of his. Perhaps his third one, (which is just published (2014), will not only literally but also in reality create a “synthesis” that is acceptable and fruitful. At any rate, Paul Scholten appears to be an inspiring model even up to the year 2013.

 

Esther Hoorn

In most digitization projects, no one knows what the original rights holder thinks about online access. This is not true in the case of Paul Scholten. When the Dutch Copyright Act was introduced in 1912, he wrote an article expressing his view that copyright protection had become too broad and too lengthy. When Scholten died in 1946, his general introduction was still not in the public domain. In the early stage of this project, the commitment of all stakeholders was assured. The library provided support for the repository, and the faculty and the research institute provided other support. The publisher consented to the project after consulting Scholten´s family. The family (I am a great-granddaughter)) considered the ambitions of the project in alignment with his ethos of sharing. Paul Scholten is famous for his emphasis on the role of discussion in developing clear insight in legal decision making and considered sharing knowledge of the law as a moral necessity for all lawyers. This project proves that digitization is feasible where the need for these resources online is perceived as relevant for present-day scholarly communication, but the digitization of older works still under copyright, is generally problematic due to copyright protection. Solutions can be found through the combined inventiveness of scholars and librarians involved in open access.

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