Research question: Open System of Law

The idea of an open or dynamic system is one of the main elements in Paul Scholten's theory. Descriptions focusing on this element are welcomed.

Articles submitted on this research question

  • Scholten’s Open System of Law and Legal Harmonisation
    Author:Jaakko Husa
    Views: 3194, Downloads: 1064
  • Scholten’s contribution to a theory of legal change
    Author:Jean-Louis Halpérin
    Views: 3734, Downloads: 782

 

Editor Comment

Content

Jean-Louis Halpérin: The article was on the website since 2014. Until publication in 2020 it had 3725 views and 756 downloads.

Halpérin begins his article with the remark that Scholten’s defense of the issues of ‘subjective rights,’ ‘existence of legal principles above statutory laws,’ and ‘the importance of the feeling of justice in the judge’s decision’ today seem old-fashioned and have been rejected by many legal positivists. He focuses on Scholten’s idea of law as an open system to determine whether it is consistent with modern theories of legal change.
Halpérin follows Grabowski’s definition of ‘legal order’ as a set of valid rules, and ‘legal system’ as an historical succession of legal orders. He believes that the dynamic system of Scholten can indeed be understood in terms of Gabrowski’s conception of legal system, but that Scholten’s view at the same time prevents establishment of an historical succession of legal orders. A revolutionary succession cannot be established because in Scholten’s eyes the law remains bound by what centuries have contributed to it. Slow evolution through incremental changes, such as in the autopoetic system of Luhmann, is impossible because Scholten’s understanding of law depends completely on the subjective arbitrary choice of authorities faced with deciding cases.
Halpérin’s own view of legal change is that legal systems are so undetermined, and the evaluation of legal interpretations so subjective, that an enormous variety of trends results in different lines in different parts of the system evolving in contrary directions. Legal history cannot be seen as a global, one-voiced history of facts unfolding in a linear fashion. This view could, according to Halpérin, find methodological support in Scholten, were it not contradicted by Scholten’s assumption of the existence of trends (block 270 GM).

 

Jaakko Husa: The article was on the website since 2014. Until publication in 2020 it had 3156 views and 1046 downloads.
Husa concludes that in contemporary system theory (Luhmann, Teubner), systems are autopoietic, i.e., they only allow communications which carry the function-specific code of the system, while Scholten focuses on the judge as a human actor who brings new subjective elements from outside into the system. Husa points out that Kelsen’s Grundnorm and Hart’s rule of recognition seek to establish the validity of law in an absolute manner, rejecting Scholten’s spiritual and personal component of the judge’s input.
Husa investigates whether Scholten’s idea of law as open system could work as a bridge in the contemporary debate about legal harmonization in Europe between the view of law as autonomous and the view that law mirrors/reflects society. In the first view, legal harmonization is a legislative task of adapting rules; in the second, legislation can only be effective where it is the result of a process of minimizing the societal and factual differences between the Member States.
Husa finds support in Scholten for his own kaleidoscopic view which moves from legal system to legal culture. This leads to a plurality of legal cultures, i.e., practices of scholars and judges who apply European rules in interaction with different societal and cultural contexts and thus add to these rules. Husa concludes, however, that Scholten’s moral/theological approach fits neither in a formal approach nor in a mirror approach toward harmonization because of its focus on the individual, irrational decision of the judge. Scholten’s dynamic open system does fit, however, with a jurisprudential way of arriving at harmonization and could establish cultural pluralism as a distinctive feature of European legal culture. Husa argues that in this jurisprudential context Scholten’s approach is a relevant reminder of the significance of Aristotle’s concept of practical wisdom.

 

Possible themes for new article submissions to Open System of Law

- Both Halpérin and Husa attempt to place Scholten’s view in the contemporary positivist welfare theoretical framework, which is typified by an understanding of law as a set of rules aimed at progressive change and unification. Both authors are attracted to Scholten’s subjectivism but conclude that it does not fit within this theoretical framework. Both authors seem to conclude that there is either a formal system or no system at all and merely a variety of histories/legal cultures. This conclusion presents a variety of issues for further exploration.
- What is the integrative process that results in a history or a legal culture? Is it a construct induced by the theoretical perspective of different historical/sociological researchers? Or is it induced by legal protocols for court dialogues and expert annotations of court decisions?
- Scholten defends a dualist mixture: law can partly be conceived as a set of rules, and formal systematization is relevant to a certain extent. Dualism does not fit in a scientific method of true and false. The question is therefore whether methods of formal ordering already existed before Deism introduced the idea of the purely formal system. Roman law in the classical period has always been praised for its formality and, for example, Weber struggled with how to categorize it in reference to formal rationality when developing his scheme of different forms of rationality.1 In another publication Halpérin2  follows the path of a less rigid understanding of ordering, while Husa with his cautious remark that Scholten’s jurisprudential view could support harmonization in Europe and his reference to Aristotle in this context, also moves in this direction. Just as with respect to intuition, also here the question arises whether we then end up with relativism. And here again we are confronted with Scholten’s ‘Hegel or divine power’ and the question of what a non-believer is to do with that issue. Digging into the metaphysical/ontological roots of dualism would seem unavoidable.3
- Jonas Cohn elaborated an open dialecticism which rejected Hegel’s belief in progress: integration and disintegration occur simultaneously. Scholten refers to Cohn in a book he was working on when he died in 1946 and which was posthumously published as an unfinished essay in 1949. Scholten’s dualism and dialecticism align with Cohn’s view. Scholten’s friend Kohnstamm referred to Cohn several times in 1926 when he developed his theological view of Personalism.4 A comparative analysis of the differences and similarities between the views of Cohn, Kohnstamm and Scholten would be highly relevant. It is important to note in this respect that according to the Wikipedia entry about Cohn, Heidegger prevented Cohn – due to Cohn’s open dialecticism – from returning to his old position at the university when he returned from his stay in London during the War.5
- Next to these big issues, there are also some smaller themes to be explored:
- A comparative analysis of Scholten’s views on history and on Kelsen as expressed in Collected Papers (VG 2 and VG 15) in relation to the remarks of Halpérin.
- A comparative analysis of Scholten’s views and the contemporaries to whom Halpérin and Husa refer, namely Llewellyn, Zitting and Ross.
- A discussion about the relationship between the ideas Halpérin characterized as old-fashioned (i.e., ‘subjective rights,’ ‘existence of legal principles above statutory laws,’ ‘importance of the feeling of justice in the judge’s decision’) and the understanding of law as an open system.

 

 

1. Huppes-Cluysenaer, “Turning the State into a Household; From Judicial Law to Administrative Law.”

2. Halpérin, “Lex Posterior Derogat Priori, Lex Specialis Derogat Generali Jalons Pour Une Histoire Des Conflits de Normes Centrée Sur Ces Deux Solutions Concurrentes.”

3. See for a recent study of Scholten’s dualism Borst, “De dialectiek bij Paul Scholten.”

4. Reference to Cohn, Theorie der Dialektik. Kohnstamm, Het waarheidsprobleem.

5. https://de.wikipedia.org/wiki/Jonas_Cohn

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