Research question: New perspectives on law and reality

Paul Scholten was one of the great exponents of the typical European civil law tradition. He has integrated this traditional view within the rising positivism of the 19th century by elaborating the role of the judge. In this research category articles are invited that describe the new ideas about the role of the judge that emerged after Worldwar II in the context of the development of the Welfare state and to compare these with the ideas of Paul Scholten.

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Upik Djalins: The article was on the website since 2016. Until publication in 2020 it had 3529 views and 634 downloads.
Djalins is interested in what she calls the philosophical DNA in the founding of the Batavia Rechtshogeschool in 1924. To find this DNA she does a close reading of Paul Scholten’s first philosophical essay of 1915 (VG 2). She asks in particular whether Scholten fits into the framework of the Neo-Kantian Baden school and concludes that this is partly the case to the extent of Scholten’s agreement with Rickert that the idea of law cannot be separated from a multiplicity of personal and societal philosophies of life. Scholten departs from Rickert, however, with his attention to the practice of law. Scholten believed that law is about the way philosophies of life are put into practice at a given time and place. When the conceptions of the citizens are not taken into account in establishing rules, it will be impossible for them to recognize these rules as law. Scholten rejects the empirical truth-claim of sociological and historical science and rejects Stammler’s idea of an ideal, universally applicable law drawn from reason or rational thought. As a consequence, legal education must necessarily be linked to an understanding and knowledge of local socio-cultural conditions. Djalins characterizes Scholten’s deeply philosophical involvement in the founding of the Batavia Rechtshogeschool as instituting a pedagogical tradition that nurtures autonomy and encourages students to think for themselves. Many of the school’s graduates were relevant in the later anticolonial upheaval in Indonesian history.

 

Shidarta: The article was on the website since 2016. Until publication in 2020 it had 4452 views and 1223 downloads.
Shidarta explains how Scholten’s views – especially his theory on law finding (rechtsvinding) –influenced the first generation of Indonesian jurists and contributed to the first format of the Indonesian legal system. He gives an overview of the way Scholten’s views were further elaborated by Dutch and Indonesian authors and the translation work which was involved. He shows how in this process Scholten’s theory of law finding was disentangled from the broader scope of legal science that Scholten developed in De Structuur der Rechstswetenschap (VG 15), and how something which was a small part of a bigger picture became an elaborate scheme of discovery and justification with his disciples. To investigate the contemporary meaning of Scholten’s ideas on law finding, Shidarta discusses a case in which Scholten admirer Bernard Arief Sidharta was invited to court to appear as an expert witness. Arief declared later in an interview that the judge had misunderstood his testimony. Shidarta’s conclusion is that the idea of the passive judge predominates in the institutional/political structure of Indonesia and that too little attention is given to the creative activity of judging. Shidarta emphasizes that every case requires the judge to consult many sources in order to take account of doctrine, history, common parlance, the system and social values in the process of finding law. This includes scholarly adapted editions of court decisions which are not only not available in contemporary Indonesia, but even the need for such a source is not publicly accepted.

 

Robert Knegt: The article was on the website since 2016. Until publication in 2020 it had 989 views and 534 downloads.
Knegt compares Scholten’s General Method with two traditions of publishing: the mirrors and the mysteries. ‘Mirrors for princes’ formed a tradition of books in the twelfth to sixteenth centuries which provided instruction to rulers. The mysteries of guild crafts were traditionally kept secret, but books explaining these mysteries started to be published in the eighteenth century. Knegt asks what it was that prompted these books to be published. Comparing the mirrors and mysteries with Scholten’s approach, Knegt shows how these accounts, just like General Method, are attempts to bridge a gap between the essentially ‘private’, intuitive, expert, non-accountable character of activities and the wish or need to nevertheless account publicly for the importance and social impact of these activities. Knegt describes how in practice-oriented social theories – especially in ethnomethodology which draws on linguistics – insights have been developed which align well with Scholten’s description of the legal practice. Knegt also specifies the difference between this practice-oriented social theory and Scholten’s view: Scholten rejects the shared character of practices, which practice-oriented social theory assumes, the latter rejects Scholten’s description of the judge in terms of individual accountability to God.

 

Marjanne Termorshuizen -Arts: The article was on the website since 2016. Until publication in 2020 it had 2733 views and 996 downloads.
Termorshuizen – Arts follows the lead provided by Vogenauer’s study of the history of legal interpretation in England and Wales and on the European continent. She concludes that through the ages the pendulum has swung back and forth, from equity and teleological considerations to periods when the Wortlaut was in higher esteem. It was not until the nineteenth century that the strict belief in Wortlauttreue was manifested in all three areas, resulting in or cooperating with positivism and legalism. Termorshuizen distinguishes two different forms of positivism. In the first half of the century, von Savigny (of the historical school) developed a scientific method which via an interconnection between three interpretative approaches (grammatical, historical and systematic) constructed an objective meaning of law which purported to reveal itself in history. In the second half of the nineteenth century interpretation no longer referred to reconstructing such a self-propelling dynamic of law but took on a purely descriptive nature. This descriptive positivism is the target of Scholten’s attack on positivism. Scholten developed a non-radical intermediate position, according to Termorshuizen, based on his way of thinking in continuities, of seeing law as partly logical and partly illogical, and the judicial decision as partly rational and partly irrational. Scholten thus prepared a smooth transition to contemporary legal theory.

 

Tristam Moeliono: The article was on the website since 2016. Until publication in 2020 it had 2972 views and 710 downloads.
Moeliono focuses on the late 1990’s in Indonesia, when Scholten’s name was largely forgotten and few could access his works. His work was rediscovered by B. Arief Sidharta, but Sidharta’s reading of Scholten was colored by the influence of two other legal scholars, Meuwissen and Soediman. The most important point in Scholten’s work, in Moeliono’s view, is Scholten’s belief about pre-existing ideas about law, conceptualized by both judges and legislators. Legal science and legal practice are intertwined in this process of conceptualization and this is how law stays in close relationship to the societal needs of a given time and place. According to Moeliono, Sidharta takes Scholten’s point but changes it by relating it to the abstract process of the development of a Volkgeist (Meuwissen) and to the national ideology of Indonesian independence expressed in the formula of Pancasila, which rejects individualism and liberalism (Soediman). Moeliono shows that Scholten explicitly rejects the idea of a legal conscience of a nation capable of speaking with a clear voice. Only when individuals as legislators and judges conceptualize their ideas about law in their own national language in an attempt to meet concrete social needs, can a true national legal doctrine emerge in a scholarly discourse. The abstract approach – either theoretical or political, may appear scientific but has nothing to do with law.

 

Possible themes for new article submissions to New Perspectives on Law and Reality

- It is interesting to note that the theme of legitimacy, which was dominant in the discussions about Paul Scholten in the second half of the twentieth century, is not dominant in these articles on new perspectives. Rather, in all articles we see a renewed interest in ideas about a collective spirit in historical/societal processes, taking into account Rickert’s modernization of historical school ideas (von Savingy and Hegel). A new battleground looms with respect to individual agency and the development of legal doctrine, criticizing the shift in the legal doctrine from the individual view concerning concrete conflicts to general abstract ideas about societal processes. The further elaboration of this battleground, given below, will indicate the relevant points for discussion here.

- Djalins calls for attention to the influence of Rickert as someone with whom Scholten both agrees and disagrees. She explains that Scholten’s departure from Rickert can be found in the philosophical insight which was foundational for Scholten’s ideas about legal education: to awaken in people the drive for personal autonomy. Djalins describes how the educational methods of the Hogeschool seem to have fueled the drive in Indonesia’s youth to fight for political independence from the Netherlands. But, as Moeliono describes, after independence the public interest was turned toward the development of ‘a Volksgeist’. The emergence of a progressive overall perspective concerning the amelioration of social life ignored the need – as Moeliono formulates it – for participants in legal proceedings to conceptualize the issues at stake in their own language. In the dialogues in court, the participants not only stress the importance of their personal conception of the conflict, but at the same time conceptualize the other party’s conception of the conflict and envisage different possible judgments.
- Termorshuizen-Arts describes Scholten as a continuous or dualist thinker who was capable of absorbing and digesting the main trends of the legal theory of his time and was therefore a forerunner of the hermeneutical legal theory of our time. It is important to note here that Rickert not only explicitly argued for his own dualism, accepting rationality and the irrationality of intuition, but also referred to many other schools in the humanities which do the same, such as the pragmatism of James to which Termorshuizen also refers.1 As also Knegt notes, many recent developments in social theory pay attention to the intuitive aspects in practices. Knegt also explains, however, the main difference between these new developments and Scholten’s view: contemporary social theory accepts the idea of shared practices and emphasizes the need of making these practices publicly intelligible. The focus on being intelligible to the public leads to descriptions that conceptualize practices in terms of progressive advance to collective goals. Scholten’s dualism does not reject such a general account, but defends the primordial position of legal practice and its protocols to provide a stage for the exchange of self-related conceptualizations in conflicts which are then publicly evaluated by a third party, who takes a position on the values involved, first with regard to the parties and only in second instance with regard to more general concerns.
- Eyes from far see better. In a simple but instructive way Shidarta shows how the later reception of Scholten’s ideas brought a radical eradication of Scholten’s dualist way of thinking. Scholten’s dualism understands law as a highly complex phenomenon of different practices and theoretical ideas.

Scheme on page 467 of PaulScholten: Structuur der Rechtswetenschap (Grey added lhc)

Scheme on page 467 of PaulScholten: Structuur der Rechtswetenschap (Grey added lhc)

Shidarta refers to the scheme Scholten made of this complexity in his essay Structuur der Rechtswetenschap, and shows how legal theory, while still referring to Scholten, has reduced his view to a very minor part of this complexity. (See the scheme and the part which is colored gray). It seems of great importance to reconsider this reduction.

- The contributions from the Indonesian authors bring home that in new states even more than in old states, the general welfare theoretical approach of social theory has inhibited the flourishing of practices which are foundational for a non-radical attitude to conflicts. From their work it becomes apparent that legal theory can gain a lot by re-reading Scholten’s collected papers. I will follow their lead by choosing Recht en Levensbeschouwing and Structuur der Rechtswetenschap as the first essays to translate into English.

 

1. Rickert, Die Philosophie des Lebens., XIII, 25.

 

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