The aim of this book is not to give the beginner an orientation into the subject-matter. The aim is not to introduce the study, but to accompany the study. In my opinion the student — and also the elder jurist — must learn to become conscious of the method which is used in the science of private law and must make clear to himself why a decision is made one way and not another, what the factors are which determine that decision.
It is clear that such a consciousness is only possible while one is involved in the activity itself — not before and also not afterwards. This is why the word “Introduction” had to be dropped from the title. In its place the title “General Part” was chosen.
Although the book is meant to be one of the volumes of Asser’s manual, it doesn’t treat a specific part of the civil law, but discusses that which is common to all the parts, to the law of persons, the law of property, law of obligations and law of succession: namely the method. One should not understand the term ‘general part’ to indicate something similar to the general part of the German Code, in which some general concepts such as declaration of intention, legal person and the like are treated separately and regulated accordingly. The treatment of such abstract notions is not among the tasks, which I had in mind, but rather the question whether and to what extent such abstractions are permissible and required.
I believe finally that the jurist can only acquire a true understanding of what law really is by reflecting upon its method.
I prefer to abstain from a further exposition of my intentions; the book may speak for itself.
A few remarks are still to be made.
In the first place, regarding the outline of the book. The general nature of this volume implies that it can only be understood in its totality. The various sections of the first chapter have to be read as a whole, one after another; the various considerations are related to each other and are complementary; they cannot be taken out of this context without the risk of misinterpretation.
Next with respect to the citations. The author of a book like this continuously encounters opinions, which diverge from his own — I have explained my position on these opinions, whenever I deemed this necessary to clarify my own view. I have however refrained from a polemic as well as from an extensive exposition of the different views. Given the fact that the subject-matter is very difficult and still not yet fully elaborated, it was impossible for me to state my own considerations as clearly as possible while at the same time systematizing and criticizing those of others. As a consequence, the citations are rather arbitrary — let this not lead to the conclusion that I do not value sufficiently those works which are not cited. The nature of this book was the determining factor in this. In the meantime, I believe however that the main schools of scientific thought are shown to their full advantage.
Apart from a “general part” dedicated to the method, it would also be appropriate to edit a general history of the civil law. The history of the Civil Code would be part of such a project. Such a book has not yet been written, just as a book on method was missing until now. For many reasons it was impossible for me to fill this gap.
Finally I want to thank Ms. Mr. B. J. Redeker-van Greven, who has helped me with the composition of the Index of this volume and with the correction of the proofs.
§ 1 Introduction. The problem of finding law.
The aim of the study of the private law would appear to be easily identified. The person who undertakes such a study wants to know to what people are committed towards one another in social interaction and in family relations. One wants to have the answer ready when somebody comes with the question: do I have to pay for the car I bought, even though it appears to have defects, which I did not expect? Am I allowed to fire the worker who refuses to carry out a given instruction? Does the abused woman have a reason for divorce? and so on. 8
At first sight the method of finding the answer to the innumerable questions which arise daily in such a way, may seem simple. It is the method first turned to by everybody to whom such questions are presented. We know that we need two things: knowledge of the facts and of the rule. Application of the rule to the facts will give the answer. Simple use of the most common rule of logic, the syllogism, is the only thing one has to do. And this rule gives the law— again this also is the starting point of anyone who is looking for law. It is all very easy indeed: the law, the rule set by the highest authority, and the facts. It is of course possible to ask which authority is competent to set the rule and why it has this competence, but these are questions with which the one who wants to study the private law is not concerned; these are questions of constitutional law.
The one who studies private law can accept as an established fact that the codes and the different laws in which the legislator has set his ruling, are binding. And concerning the facts, it sometimes can be difficult to establish what exactly happened between the persons involved. This difficulty however is not really of a legal nature, even though the legislator has drafted some rules about the way this work has to be done. It is significant that the jurist calls this kind of decision “factual”. Thus, we remain within the circle of the simple syllogism. 9
Anybody who defends this method can refer himself to the fact that the composers of our codes were of the same mind. In the time of the French Revolution, during which the foundation of our codes was laid, the dominant belief was that all law is encapsulated in codification. The belief was that the subject-matter of law was regulated completely and sufficiently in the legislation. When one is occupied with our question, one thinks primarily of the judge, although this is not the only one who has to find the law. The judge applies the legal rule to the case, which is presented to him. Montesquieu’s teaching concerning the separation of powers compels the judge expressly to keep himself to the limits of applying the law. His words are well-known: 10
The judges of the nation are only mouths, who pronounce the words of the law, inanimate beings, who cannot moderate neither its force nor its rigor. (trans. lhc)1
Not only the design and language of our Codes demonstrate this train of thought – especially the Law containing General Provisions for legislation - but moreover an institution like the cassation can be explained by it. It is true that the attempt – characteristic for the French revolution – to establish direct control of the legislator over the judge by assigning the competence of cassation to the legislative power, was abandoned. Nevertheless, our cassation is based on both of these ideas: finding the law consists of applying rules to the facts, and rules are solely given by legislation. A ruling cannot be quashed because it is in any general sense unjust, but only when a law is explicitly violated or wrongly applied. The task of the court of cassation is to protect the law against the judge.11
Still there is a difficulty for anyone, inclined to look at the relationship we are talking about here in such a naive way as described above, which compels him to become more aware of his method. The law is not always clear: it is far from true that the law makes it easy to find the solution for the thousand and one questions which are raised. 12
It is an illusion which the legislator again and again holds, that he has sufficiently regulated the subject-matter on which he is focusing. In each period, in which the legislator burdens himself with a great effort and embraces a whole field of law, he believes he has made a complete regulation of all possible occurring cases through codification. The consequence is that interpretation is superfluous. While one could admit that every work accomplished by humans is deficient and therefore it is possible that somewhere a lacuna or an ambiguity will come to light. In that case however one should turn to the legislator to ask for clarification or supplementation. But anyone who gives his own interpretation affects the law. Justinianus threatened punishment against anyone who would dare to explain the law. Interpretation was “perversion (distortion)”; the competence to dictate the law and to interpret it belonged solely to the “augusta auctoritas (supreme power”) of the emperor.2 13 14
History repeated itself at the end of the 18th century, the ‘Publikations Patent’ of the Prussian ‘landrecht’ of 1794 ordained
no university, court or judge will proceed to analyze or interpret the new laws of the country in accordance with the waived rights and regulations discussed, much less allow themselves to make the slightest arbitrary deviation from clear and manifest provisions of the law, on the basis of a supposed philosophical reasoning or under the pretense of an interpretation derived from the purpose and intent of the law, without exposing itself to our highest disapproval and severe punishment. (trans.lhc)3
Not only the patriarchal despot thought this way, also the revolutionary: both envisage in law only the rule emanating from themselves.
Robespierre expressed himself in the same spirit 15
The word jurisprudence must be erased from our language. In a country, which has a constitution or legislation, case law is nothing but the law. (trans.lhc)4In that period one of the courts of justice in France even spoke of interpretation and comments in terms of
plagues that destroy the law.5
Therefore solely the law counts. And still experience teaches us something else. Every law, even the most carefully worded, needs explanation. It is one of the goals of the science of the private law to establish this. One of the most well-known articles of our Civil Code ordains that every wrongful act, which brings damage to another, creates an obligation for the one whose guilt has caused this damage, to compensate it. Questions will arise: when is an action “wrongful”? what meaning do we give to “guilt”? and what meaning to “damage”? what kind of relationship is required by the law between the cause and the outcome? If somebody wants to provide fully founded answers to these questions, he would at the very least have to write an extensive treatise, maybe it will even become a substantial book. But how does he find these answers? which road will lead him to them? 16
Let us take the first question posed above. Before 1919 the Supreme Court taught that only those actions which are against the law or which infringe somebody else’s private right is wrongful; after the ruling of January 31 of that year6 the highest court extended the meaning of wrongful to any act which is against good morals or against the care which should be exerted in social life towards another person or another’s goods. 17
On what basis did the Supreme Court come to this conclusion? It is clear to the person who looks no further, that the text of the law alone does not determine the opposition between both interpretations. One tries then to dig deeper and to use different methods of interpretation, one tries to analyze the semantic meaning of the words, asks what the genesis of the law was, or as the Supreme Court did in the cited decision, investigates the history of the institution and appeals to other provisions which regulate related subject-matters, while finally, especially in the more modern literature, also the social effectiveness of the provision is taken into account. Traditionally people distinguish between grammatical and historical interpretation, to which can be added the teleological, aiming at social goals. Every jurist, whether working as a lawyer or a notary, as a judge or as a teacher, will use these methods alternately, but only a few ask themselves what it is they actually are doing, and even fewer ask if they are allowed to act as they do.18
Luckily the ability to search for the law as a tool of craftsmanship is more important than the knowledge why one searches as one does. But this doesn’t release one from the obligation to reflect about the nature of this process. There are authors – like in our time for example Suyling719
— who reject the historical method. At this juncture it is not necessary to investigate whether they actually follow this schema, we will come back to this later on. But this much is certain: they too are obliged to become more conscious of their methods. In the first place, because the rejection of what has been the traditional method of science for centuries cannot take place without reasons. But apart from that, also the systematic interpretation, which is mostly followed by this school needs justification. Why is it admissible to explain a provision of the law with the help of another provision, which is established by other people in another time for a completely different subject-matter? This is not self-evident.
And what will be decisive, if the grammatical interpretation of the words and a systematic approach lead in competing directions? For those who do want to use the historical interpretation, and for those who do want to take into account the effect of the rule or its aim — and to be sure, this is what the practical jurist will always do — these questions become much more complicated. What is the relation between history and text, or system? which will prevail when there is a conflict between the results? How will the concrete decision be found in the end? Is this by logical deliberation or is the choice made on some grounds other than intellectual ones? 20
I think that to raise these questions shows that the issue of the method of the private law is none too simple. Application of the rule to the facts, very well. But to find this rule is, even when one wants to extrapolate the rule from the law, not always easy. It is therefore indeed necessary, to describe those methods of interpretation more precisely, to determine their limits and to determine their place. 21
But there is more. Till now we have assumed that to search for the rule means to interpret the law. However, it is often the case that the law and even its interpretation — if this word is understood at least in the way it is used in lay speech — do not give an answer. One then takes recourse to analogy. A provision in the law that regulates the influence which the sale of an object has on the existing hire agreements concerning this object, is used to determine the relations between the hirer and the new owner in other cases of alienation.8 Or for example a provision that regulates vacation of rented properties at the termination of the tenancy agreement is applied to the termination of an employment contract, which includes the use of a “free residence” belonging to the employer.9 Again the question arises: what does analogy actually mean and is it permissible? If so, why? 22
If use of analogy poses the question if it is permissible to extend a rule to a case for which it is not written, and if so, why, then it is also possible to ask the question whether it would be admissible in a special constellation of facts not to apply a rule to a case although the case is in fact covered by the wording of the rule. The opposite of analogy is legal refinement: the creation of new exceptions to general rules. Again, an example from the doctrine of the wrongful act. 23
Let us suppose that the wrongdoer from whom compensation is sought, is indeed guilty of an act which can be qualified as wrongful and that the other requirements of the law are fulfilled, but that at the same time it is established that also the person who claims compensation falls short in taking care to prevent the damage and that this is also partly the cause of the calamity and thus of the damage. The Railway-company takes insufficient care for the security of transport of goods in its freight yard, yet the conductor who is run over by a train because of this, could have paid more attention himself. Will he nevertheless receive compensation? If so, fully or partly? Partly, is the answer of the judiciary since the ruling of the Supreme Court on 4 February 1916.10 Why? 24
The legal provision concerning wrongful act does not contain one word about this notion of “own fault”. It must be noted that the Supreme Court did make a feeble attempt in this case to extract the answer from the legislation by including in a wrongful act the act of the injured person who does not take enough care for his own safety, however it is generally accepted that this interpretation does not fulfil its intended aim. Lack of care for one’s own interest is not a wrongful act in the sense of the legal provision in the Civil Code. The judiciary uses this method of legal refinement constantly. Can we give some relevant arguments to indicate when and why this is permissible? 25
The question of legal refinement forms part of the problem about which there has been such a heated debate in the legal world during the last decennia: is the judge allowed to declare law beyond the scope of legislation? It goes without saying that I will not deal with this question as yet. I restrict myself to the remark that in my opinion it cannot be answered with a simple yes or no. The sequel of this book will, I hope, explain this. For this moment it is my goal only to show, that a rule cannot be extrapolated from the wording of the law, that the plain observation of daily practice of the law teaches us that by refining the general terms of the rules new rules are found, that in such a case something quite different takes place than simply subsuming a case under a rule which lays ready for use in the law. 26
Analogy and legal refinement are not the only methods, which should be mentioned here. We know now that it is not a “pretense”, as the Law on General Provisions calls it, when we say that the law is obscure and incomplete. Of the many factors of importance here, I want to mention one more thing, because it is of principled significance. This time it does not concern the extension or limitation of certain rules, but rather a correction, which is involved in every application of rules. It concerns the ban on the ‘abuse of right’, explicitly formulated by the legislator in Germany and Switzerland, generally accepted by the judiciary in France, which at this moment, thanks to the Supreme Court, is also gaining ground in our administration of justice.1127 To take the classic example of the French: a person builds a chimney on his roof which is a dummy and has no function other than to obstruct his neighbor’s view. He has no other personal interest in the chimney. Must his neighbor endure this? Nowhere in the law can he find a provision that gives him the right to demand the removal of the obstructive object. Still in case law he is put in the right. The builder has abused his property rights. Although he stayed within the limits of the words of the law, law in its more general sense could not sanction that abuse.12 28 Some would argue that this decision remains within the framework of mere application of law.13 Every law has to be applied reasonably they argue. This may be true, but then it must be defined how one can distinguish between a reasonable and an unreasonable application and in particular why the law applier is justified in founding his decision upon his own judgment of what is reasonable or unreasonable. This much is however certain: in the law itself he will not find the distinction between the one and the other. If it were there — there would be no question of abuse of law. 29
This is enough I think to make clear that the finding of law is something other than simply applying ready-made rules to established facts. It happens — and it happens often — that the rule has to be found, either by interpretation or by analogy or refinement. It happens, that the application has to be reconsidered by comparing it to what is called reasonable. The demand for a method of finding law therefore makes sense. 30
But it is still possible to criticize this conception of “finding law by the application of rules which are inherent in the law”, from yet another angle. Until now we have supposed that the finding of law is a process of applying rules to facts and we have merely indicated that these rules sometimes have to be made by the person who is searching for the law, that it is not always the case that he can find rules ready-made in the law. It is however necessary to pose the question whether it is always true that finding law is indeed the application of rules to facts, whether indeed the logical of the syllogism is sufficiently helpful. 31
§ 2 Finding law, creating law, applying law.
There is not much left of the quiet assurance shared by many in the 19e century that finding law is applying law. People agree that interpretation is necessary and also that this interpretation at the very least will give rise to the question whether or not by clarifying the rule something new is added to it. And even, that the judge cannot suffice with interpretation alone but that he expands and adds, that he creates rules himself. 32
There has been a shift, which gained its classical formulation in the well-known art. 1 of the Swiss Civil Code of 1907:
The law applies to all legal questions for which it is addressed in terms of formulation or interpretation. If no rule can be deduced from the law, the judge must decide according to customary law and, if there is not, he must decide according to the rule he would set as legislator. He then follows prevailing doctrine and tradition. (trans.lhc)14
The judge has to explain, to apply analogy, to appeal to customary law, and finally when the law does not speak, he has to adjudicate according to the rule which he would have established, had he been legislator.
Although we are thus far removed from the idea that only the written law formulates the rule, which has to be applied, it still doesn’t mean that we thus have dismissed the idea that finding law consists in the application of general rules. On the contrary, this was also the view of Eugen Huber, the maker of the Swiss Code. It is simply another authority, which establishes the rule. 34
Although there may be doubts about the all-embracing nature of the written law, people stick to the idea that finding law is applying rules i.e. that law means rules. One can find this view even with authors who abandon the doctrine that only codified law is law. To take one example from many. I borrow it from Walter Burckhardt, who as a Swiss citizen has to - and does - take into account art. 1 of his Code.15 Making law and applying law are two opposites in an absolute sense and not in a relative sense, according to his words. Making law means valuation, means weighing right and wrong, while the application of law means the use of logical schemes. Structuring society either creates new law, in which case it is making law, or it doesn’t and applies the existing laws. There is not a third possibility (tertium non datur). In the same line he makes the statement later: the concrete case is already implied in the abstract concept, just as the decision is implied by the norm. It is inherent in the concept of purchase that this interaction between A and B is a sale, while it is inherent in the norm that the buyer has to pay, that A is obligated to pay. 35
It is clear that this position assumes the fallacy of begging the question (petitio principii). If law consists of rules, if a decision has no independent significance alongside the rule, then the conclusion is undeniable. Application is application, in fact it is just a tautology. However, the question is whether this is true. In the end this position is also based upon the assumption that only codified law is law. Burckhardt does acknowledge that a person who applies laws is sometimes permitted to make laws, but only because he is implicitly allowed to do so by the legislator, and this actually is an anomaly. 36
We confront this position with two objections. Firstly, we refer to the way the law is found in numerous cases. 37
We again take the legal provision about wrongful act in our Civil Code as our starting point. The Supreme Court has decided that acts are wrongful if the actor acts contrary to good morals or does not take the necessary care as required in social interaction concerning another’s person or goods. What does the judge actually do when applying this rule? He establishes the facts, determines that the act for which a writ is served is, for example, in breach of good morals and orders the payment of damages. This seems to be completely in accordance with the normal scheme.
Still this judge does something more than the one who makes such a decision on the basis of a conflict with the law. The latter wonders if the facts which are proven, constitute the act, which the law blames. This is the purely intellectual work to which Burckhardt alludes; the former has to pose to himself the question if the proven facts are indeed against good morals; to this end he has to valuate the act: by logical conclusion alone this result will not be found. This is always the case when the legislator uses an expression and leaves it to the judge to specify the content of the rule: contrary to good morals, to the carefulness which befits social interaction, in good faith, decision according to equity, establishment of guilt in the case of wrongful act and breach of contract or extravagancies in the case of a legal separation etc. But, as may well be said in objection, this may be a complication, but it does not undermine the character of adjudication, the difference being only that before he applies the law, the judge interposes a new rule between the law which he uses and the conclusion. 38
Thus: whoever inflicts damage to another contrary to good morals has to pay the damage; to bribe a servant of a rival to betray secrets of his company is contrary to good morals. A is culpable of this act against B, so therefore A has to pay damages to B. The objection seems correct, still it goes beyond the scope of my argument. It is possible, that the judge indeed finds his decision by subsuming the case under a rule, which he derives from one authority or another or which he establishes himself, but it is also possible— and this will in fact often be the case — that in the end he does something else. It is not a rule to which he turns his mind, but the specific case itself. The rules, which the judge uses, are auxiliary, they are not decisive. The case can be of such a nature, that despite the rule, a conclusion is accepted which is opposite to that which one would have expected according to the rule. 39
Imagine an accident on the road. There has been a collision between a motorcycle and a car; they both accuse each other. You did not follow the rule objects the one to the other. That may be true, answers the other, but I could not and ought not follow this rule anymore, because you forced me to act as I did as a consequence of your way of driving. And so one could go on. One could indeed reason that this argument can be reduced to an appeal to a rule and its exception, to the exception to the exception and so on endlessly. The truth is however, that the judge finds the culpability by valuation of the case as a whole. Jus in causa positum. It is in the facts themselves that law is to be found. Only much later we will be able to explain what meaning can be given to this saying. At that stage we will see to what extent the general validity, which is presupposed in every judicial decision, can also be met in such a case. At this moment it is only necessary for us to point out that the law is not found here by inference from a rule, not even from a self-created rule. If one wants to speak here about a rule, then this rule neither precedes the activity of the judge in time, nor does it logically precede the decision. The rule is given simultaneously with the decision. The decision itself has an autonomous meaning. 40
Anybody who wants to put this to the test and wants to understand it accurately, should pay attention to the way the abovementioned question is handled in the cassation proceedings. The cassation presupposes, as I said, a strict separation between fact and law; the Supreme Court does not concern itself with the facts. Now, are the following questions dealing with facts or with law? has the defendant acted contrary to good morals, was he culpable? was there force majeure? The Supreme Court wavers. Sometimes the decision about these issues is left to the lower judge, the issues are then called “factual”, in other cases it decides to deal with these questions itself; lately there is a tendency towards the second point of view. Now it is possible to be of the opinion that this uncertainty results from the fact that the law does indeed say in general terms that the judge has to take into account the question of a breach of good morals, or duty of care, but not when this is actually the case. 41
The rules would therefore be rules of law in a general sense, and not codified rules and this has to lead to difficulties in our system of cassation (see § 1). Even this may be true, but still it does not come to the core of the matter. This becomes clear, when the judge doesn’t formulate a rule, doesn’t say in general: an act like this is contrary to good morals, but declares that given the circumstances the act is justified. In that case he includes the valuation of the facts in the decision: there is no other rule than the one inherent in the constellation of facts as a whole. In such a situation the Supreme Court stands powerless, even when it decides to apply non-legal rules whenever these are implied in a legal concept such as wrongfulness. When the Supreme Court grants cassation in such a case, it asserts its own valuation, its own finding of the law apart from the code, in the place of those of the judge. Probably this is to the benefit of our practice of law — but it is certainly a deviation from the system of cassation of our legislation. 42
Therefore: the decision is in many cases not found as an inference from a rule — instituted by whomsoever. If this is true, the decision will have an autonomous value in face of the rule. In that case it is impossible to describe law as a complex of rules. This becomes even clearer when the decision rests upon law, which is formed by the parties concerned, such as a contract or a testament. In this case the same explanation is possible as in the case of cassation proceedings — however, we have to keep this for later. At this moment we must draw attention to the second objection against the idea that finding law means applying rules. 43
Application of rules, of which rule? The answer seems again very simple: the rule, which was written for the situation concerned. An agreement of sale is determined by the provisions on sale, a request for a divorce by the provisions on the dissolution of a marriage. But if the facts are thus, that a plurality of rules could be applicable, how do I arrive at a choice then? A car has been sold; it shows deficiencies which were not expected at the purchase. May the buyer ask for dissolution on account of non-performance or for annulment on account of concealed deficiencies or on account of error? Is he allowed to choose or is only one of the rules exclusively applicable? 44
Another possibility is that the facts show complications for which the law has no provisions. A director of a company limited by shares signs a blank paper, an employer of the company writes above the signature an order to her banker to disburse a certain amount of money; the employer receives the money therewith. May the bank claim back the money from the company? Is this question decided by the rules of contract in general, by the rules of representation or of force majeure, or of liability for wrongful acts of subordinates? There has been an appeal to all of these in similar cases. How do we find the decision how to choose or should we perhaps combine the legal provisions? If we realize that this case is a simplification of one with which the judiciary was recently concerned, we will understand that to bring a case under the correct rule is not such a simple task. 45
As to how this should be done, Burckhardt, to whom I referred above, answers “by divinatory intuition” (gefühlsmassige, divinatorische Ahnung ).16 The answer is remarkable; it overthrows, I dare say, the position that finding law is restricted to the logical work of subsuming the facts under the rule. Something other than rule and facts determines the decision. For the time being I leave the correctness of Burckhardt46
’s answer completely aside, but if intuition indicates which rule has to be applied, then finding law is not just a logical activity. And if we have a criterion to put the decision to the test, to accept or reject it as correct or incorrect,— as Burckhardt also assumes — then this must consist of something other than a mere test of the syllogism, which, according to the author, we simply have to apply to find the law.
And again, we see, that the decision has an autonomous meaning in face of the rule, because it owes its origin partly to this element of finding law. This intuitive choice is also an integral part of the decision. And thus, it is not true, that the decision of the case is already encapsulated in the rule. Then it is also not true, that law consists of rules, and it follows that the decisions of the authorities charged with adjudication form a substantial part of the complex whole, which is called law. 47
One of the institutions of our practice of law - similar to that of other nations currently existing or in earlier times - confirms this conclusion, derived from the nature of legislation and adjudication. It is the coercive force of decisions which are no longer open to appeal: the decision is binding between parties. The judge in a later lawsuit is bound by it. It determines the legal relations, even if it may prove later to have been incorrect. Let us concentrate now upon finding law by applying law: the moment the judge has decided that the law has to be applied this way or that way in a certain case, then this is the law between the parties. Even if the application appears to be incorrect, this must still serve as the basis for further judgments, rather than the correct conclusion, or the rule. This can only be understood, if the autonomous character of the decision in face of the rule is acknowledged. 48
The relationship can be compared with the one between an enacted law and the constitution. A law the content of which is contrary to the constitution, is binding, as is at least believed in our country according to a specific provision in our constitution. Neither the judge nor anyone else, but only the legislative power is allowed to decide if a violation exists. In this respect there is a certain hierarchy between the powers, which generate legal provisions.17 Just as the law is entitled to an autonomous normative position in respect to the constitution, so the judicial decision is entitled to this in respect to the law. 49
Some have argued against this, that obedience to every command, which is based on the application of rules, is always to be expected, because otherwise it would make no sense to put the application of the law in the hands of any authority. This would not lead to a contradiction with the idea that finding law is applying law, because anybody who is charged with the application of the law, is entitled to claim obedience. This argument fails. The difference is that in such a view there is claimed only a provisional but not a final subjection to the decision. Therefore, although one wants to assign authoritative force to the decision, it will always be possible to test the decision with respect to the rule. The decision of the President of the lower court in an interim injunction proceeding is an example of such a command. It is binding, which means that it has to be executed. But in the principal action it is not binding, which means that it does not have the force of a final decision; the judge is allowed to give a different judgment about the legal issue. 50
Only when the decision is no longer open to appeal, the obedience, the binding, is final. And application, of which it is impossible to check if it really is an application of the rule, is more than application. This autonomy is reinforced by the task of the judge to decide his own competence. So not only are incorrect decisions - i.e. decisions which diverge from the rule - binding, but also the decisions of a judge who was not entitled to give this decision. The judge derives his power from the law, but if he decides a case, for which the law does not give him the power to decide, his decision is legally binding between the parties. How can this be understood if law is nothing else than a collection of rules? 51
The actual legal relationship, we may conclude, is not only dependent on rules, but also on decisions. And these decisions in their turn are not found by sheer inference from rules. Applying law is not the correct term for the determination of what is actual law between the parties, neither forming nor creating law, but the old term finding law. Law exists, but it has to be found, the finding comprises the new. Only the person who identifies law with rules is faced with the choice: either creation or application. This dilemma vanishes when there are other factors. I think I have shown that these other factors exist. 52
§ 3 The nature of the legal rule. The command.
We could also have stated the argument of the last section in more scholarly terms: the law does not give a hypothetical judgment. Some have been of the opinion that with such a term the logical determination of law is indicated and thereby intend to show that the law passes a judgment, which is valid under certain conditions.18 If A has committed manslaughter, he will be punished, he will have to pay the damages, etc. This way of putting things is already incorrect, for the reason that the hypothetical judgment contains a proposition about what happens when certain conditions are fulfilled; the law however is not about what actually happens, but about what should happen. We cannot read in the codified rule that whomsoever commits manslaughter will actually be punished, but that whomsoever commits manslaughter ought to be punished. The condition pertains to the ‘is53
’, the conclusion to the ‘ought’. The strict logical conclusiveness, implied in the hypothetical judgment: if A is existent, then B will be, is missing here. There is a ‘leap’ between both.
The ‘ought’ is inherent in the law. This is why we talk about norms in the law, about the command of the legislator. There has been a lot of discussion about the way we have to understand this, to whom the command is addressed and so on. In our view much of what is written has been sterile; analysis that is too sharp, or rather too abstract, has led to distorted conclusions. I cannot understand why our insight would be enriched if, for example, we do not see the penalization of manslaughter as a command not to kill, but as a command to surrender oneself to the penalty defined for this crime.19 The latter is also true, but in the Penal Code the legislator has primarily expressed his command “thou shalt not kill”. That there are exceptions to this command (self-defense, force majeure) does not rob it from this characteristic — does there exists one command, which is general, of which this is not true? 54
In our view we only reach a good understanding, when we ask ourselves how law forces itself upon our conscience, how we have to view legislation as a historical phenomenon. And then we are time and again confronted with a power, which forces its will upon us, which claims obedience, which commands. I leave completely aside to which authority this power belongs, and whether we have to imagine it as a person or as something impersonal. Yet in the law we are confronted, or more adequately formulated, subjected, to a power, which wants to reach a certain consequence, and which institutes a rule to this end. It is already for this reason that it is a normative rule, a command. The legal rule addresses its subjects with the words: “thou art obliged,” or “thou shalt”, or “thou shalt not”. The Decalogue is archetype of any legal rule. 55
I emphasize this, because I think that it is fundamental for any conception of the law, but I do not elaborate this view any further here, primarily because it would take me too far away from my aim, but also because it has only a secondary meaning for private law. The reason for this is that, although the law is a command, it is not a command alone, it is not always a command. The largest part of the private law cannot be characterized as a command. A provision like “Parents are obliged to bring up and support their minor children” is a command indeed. The same is true for the rules, which have a sanction in private law, thanks to the doctrine concerning the wrongful act art. There are more rules like this. But it is a misconception to see all law as commands. For penal law the solution of Binding20, that every penalization can be analyzed in a command and a sanction, has surely been of great importance. It has produced good results there, but it was not profitable for the science of private law, when Bindings' doctrine was imported there.2156
§ 4 The nature of the legal rule. The permittance. Objective and Subjective law.
Characteristic for the private law is the large space occupied by the law in a subjective sense. We use the term law viz. not only for the legal rule, but also for the entitlement. We do not only say, that the law in the Netherlands prescribes (law in an objective sense) , but also that A or B has a right (law in a subjective sense). We find the same parlance elsewhere. Recht in German, droit in French, jus in Latin, have the same double meaning. 57
Of course this is no coincidence; already this similarity of parlance leads us to think that rule and entitlement are a duality which cannot be separated, that they are both of essential value to understand the meaning of the law. Nevertheless, many modern theories have tried to strike the subjective law from the ranks of the concepts of law. From lecturer on state law Duguit comes the, often repeated statement:58
In reality there is no subjective right. (trans.lhc)22
He, who wanted to be a realist, forgot that the actuality of the law presents itself time and again in the form of “subjective law”. But not only those who aimed at the eradication of the subjective law misconstrued the meaning of the concept, there were also those who were prepared to acknowledge the existence of entitlements and to signify these with the name “rights” but could not conceive of them in any other way than as a reflection of the legal rule.
The law commands, from the command emanates the obligation to perform; the corollary of this is that performance can be claimed, that there is law in a subjective sense. In this case the entitlement has no autonomous meaning. Characteristic for this view is that as a consequence the obligation is also called a “right”. This is a consequence, which is indeed accepted.23 From the command a legal relationship is generated between certain persons, those, who are thus related, take part in the law, have rights. This consequence — like other things — could have pointed out the untenableness of the doctrine. Whoever calls the obligation a right, clashes openly with the law as it presents itself to us in common parlance and as it has presented itself for centuries. Legal science is not entitled to put aside such an essential use of language.59
But when we want to banish the subjective law from science, there is more than just the language that comes under threat. This is especially clear in the private law. The theory that law is only rule generates from the idea that law is the will of the organized community, the State. The State commands, that command is law. The private law — not in the theory, but surely in its actual development in adjudication and rights — has never accepted this, it could not accept it, without endangering its own existence. Law is always a regulation of the relationship between the community and the individual, they are both the poles between which every legal structure is situated. The doctrine, which sees law as a command of the State, sees only the community in this pair, which is of principled significance exactly because of its duality. Only the community is seen as an original given, the individual receives its rights from it. Although this view is untenable in general, this is felt of course most powerfully in that part of the law where the connection with the individual is most prominent, in the private law. 60
We can see that clearly if we become aware of the meaning of the subjective law in the sphere of the private law. In that context we use the term not only for the single entitlement, but for a bundle of entitlements, which are treated as a whole. Not only do we say, that A has a right to claim an (im)movable object from B, but also that he is entitled to it as a proprietor, that he is allowed to dispose of it in virtue of that right and that he is allowed to transfer this right. 61
The whole system of private law is built upon the subjective law, the opposition between real (in rem) and personal right is an opposition between subjective rights. The regulation of the disposition of the land and of material goods in general is founded on the subjective right of property, the specific relations regarding goods are conceived of as specific rights, as infringements of this property right (mortgage and usufruct); injustice is primarily an infringement of another person’s right; commerce takes place through transference of rights, new regulations generate new rights (copyright and patents). We cannot take a step in the context of property law without using the concept of subjective law. Put even more strongly: going back, we see, that the whole fabric of the modern system of private law rests on the one hand upon the relation between a person and a good, conceived of as a subjective right i.e. as property, and on the other hand upon the protection of a person regarding his freedom of self-determination, which is also conceived of as a subjective right. About the latter more soon, firstly something else about this property. 62
It is remarkable that up till now nobody has succeeded in providing a proper definition of property. Attempts are shortcoming like ‘an entitlement to general disposition’, ‘to act with an (im)movable object as one wants within the limits set by law’, and the like. This is understandable. The meaning of a concept can only be described with the help of other concepts. Mortgage and usufruct can be described with the help of the concept property. But property itself evades such a description — exactly because the concept is primary, because the general nature of its power of disposition makes the determination impossible. It should be noted that I say general nature and not absolute nature. There has been a lot of confusion on this issue. 63
On the one hand it has been the understanding that its general nature implied its absolute nature and that because of this a limitation of the entitlements of the proprietor was illicit, contrary to the law; one forgot, that the general nature of the entitlement had never existed without restriction and that the general nature doesn’t tell us anything about the extent of the restriction. The nature of the law does not determine the content. Individual and community, I said, are the original given of any law. The concept of property presupposes that the individual is to the same extent essential to the law as the community, essential to the same extent, but not more. Law as a regulation of the community implies the necessity of a limitation of property. Different times will judge differently on the extent of this limitation. On the other hand, however, it would be foolish to argue that acceptance of the limitations to its absolute character would at once deny the general nature of the concept as well. 64
Currently these limitations are carried through to a far extent; not unjustly it is said that the concept of property is excavated. But it has not been abolished, it cannot be abolished without the collapse of the private law. In the end there will remain a ‘residue’ which evades any determination. If it would be possible to determine, to indicate with rules, what the proprietor is allowed to do with his property, then property itself would have disappeared. 65
A similar argument can be made for the personality of the individual, which can be conceived of as a subjective right; the protection which the private law gives to the person, especially by the new development of the wrongful act (the carefulness which is required concerning another’s person), makes clear that also here there exists a collection of entitlements, which is acknowledged by law and restricted by it, but is not determined by regulations. 66
What is the conclusion of all this for our plan? Isn’t it true that we were describing the nature of regulations of private law? At first sight we have departed from that, in reality this is however not the case. Our conclusion is this: if the legislator describes property in the Civil Code and protects this property, then this should not be conceived as the conferment, but as the acknowledgement of an entitlement; the legislator stops for a moment as it were with giving structure to a certain domain, sets himself a boundary and leaves the rest to the individual. He does not speak the words “thou shalt”, but “thou has permittance”. The obligation which follows from this for others is secondary; one puts things upside down if one conceives property primarily as a prohibition of disturbance addressed to everybody except the proprietor. 67
The permittance is as essential to the legal rule as the prohibition. In the private law its importance is eminent. The permittance presupposes law in a subjective sense. 68
But secondly, we can derive yet another conclusion from this section, by which it links up with § 2; the phenomenon of law doesn’t contain solely rules, but also entitlements. We will return to this issue. However, we proceed firstly with our research about the nature of the rule.
§ 5 The nature of the legal rule. The promise.
The law leaves a circle to the individual human being, within which he determines freely the rules to which he subjects himself. Not only does this leave him the freedom to perform an action or not, the consequences of which are spelled out by the law, but more generally it gives him the freedom to bring into being a rule which is the best in his eyes. An example of the first is the law relating to marriage, an example of the latter is the law relating to marital property. Somebody can decide for himself to marry, but if he marries, the law prescribes the obligations between man and woman. 69
They can however decide for themselves which regulation of the patrimonial law they wish: to make the marital property communal or not. It is the latter which I have in view. By contracts and by testament, and also by some unilateral statements, the individual contributes to the development of law. The provisions of the agreement — to simplify matters I will restrict myself to this — bind the person, who entered into it, like a law. This obligation doesn’t originate from an authority above but is self-imposed. 70
But, as one can ask, is this being bound in the end not simply to be bound by the legal rule? The rule that agreements bind, that they purport the law between parties, like it is said in the Civil Code. Surely, thus it is stated in the law, but the parties - not the law - determine the meaning of this rule and the way in which a party is bound to this rule differs from the way in which an individual is bound, for example, to the rule not to damage the goods of another person. In the latter case the obligation originates from the violation of the command of the legislator, while in the first case the obligation is self-imposed by the parties, which determine its extent and impact. 71
It is asserted sometimes that an obligation does not follow from an agreement, but that the non-performance of it obligates the contracting party to pay the damages in the same way as an offence does. In this conception however it cannot be explained why the non-performance is wrongful; those who argue this, assume that there exists a legal obligation to perform, which means that it is the agreement, which binds the parties and creates law. This conception is therefore directly in opposition with the rule in the current codes that in the case of non-performance not only can it be asked to pay the damages, but also that the contracting party is to a certain extent entitled to performance. The agreement creates law—the expression in our code: between parties the agreement purports the law, is strikingly correct. 72
The command, which the law gives in this rule to its subjects, implies the acknowledgment of a completely different form of law. Although it is also possible to find here the “thou shalt” of the law, this “thou shalt” is the repercussion of a different form, of the “I shall” pronounced by the one who binds himself. The individual is not only being bound by the command of those who are charged with authority in the community, but also by his own promise. That which is binding here is one’s word — the word given to another; I have to pay, not because I wanted it, but because I have promised it i.e. have declared this intention to another. It is not the place here to elaborate this24 but I have to give warning of a possible misunderstanding. 73
It is far from true that every promise, even every accepted promise, would be binding. In the historical development of law, the contract has gained its place only slowly and with difficulty, and even now not every agreement is binding. On the contrary, the development tends more towards a restriction than to an extension; in the relation between an employee and employer we see that the promise is limited by regulation, which is top down imposed, although not always by the common legislator. Also, elsewhere the restriction of the freedom of contract is the order of the day. 74
This doesn’t do away with the fact that, as far as the law allows the individual to make law through regulation by himself, it is the word given by a person in binding him or herself by which he is obliged. It is exactly the same as with property: one can argue about the relevance of the contract as a source of law, and every positive law has its own regulation, but as long as private law exists and the individual is not completely subjected to the community, this form of law will have its own meaning. A society can only exist when one human being can trust the word of another human being.75
It is worthwhile to explore how ideas have changed in this respect. Before the 19th century, binding by way of agreement was self-evident, an axiom, which didn’t need an explanation: what did need an explanation at that time was the authority which claimed obedience to its laws; people thought they could derive this authority from contract, from the voluntary subjection of the subjects. Of all the attempts in this direction Rousseau’s Contrat Social25 is the most famous indeed. His individualist doctrine introduced the omnipotence of the State into the practice of the French Revolution and with it the absolute sovereignty of the law. The science of the 19th century followed through in this same direction and in this way the tables were turned, and it was soon the binding to an agreement that required explanation. 76
If indeed the written law, the regulation by the authority, is the source of all law, how then could the legislator, charged with this authority, come to the point of handing over part of this regulating task and leave it to individuals who probably are not very fit to do this? What guarantee will there be, that these individuals will generate precisely the kind of regulation that the legislator wants? Many thought that this would result from the giving and taking by both sides in the battle over their mutual interests. But first and foremost of course the parties do not confront each other as equals, maybe the one is more clever, or more powerful than the other, and then, even if they are equal, does this imply that their regulation will be equitable? Is the opposite not just as probable? Is it only the incapacity to regulate everything which compels the legislator to leave it to the parties to find here a correct way of regulating? 77
Burckhardt, who also asks this question, answers it by referring to the fact that the activity of individuals is stimulated this way. This answer cannot satisfy; although the stimulation of activity can be desirable indeed, a motive for the right wing political attitude of the legislative authority, it can never be decisive for the question whether the content of a contract has the character of law. We do not explain in what sense something is law by referring to such a motive. At most, what can be concluded from this: although it isn’t law, it is nevertheless treated as law. Burkhardt has the same feeling: he speaks about it in terms such as78
infringement of arbitrariness in the field of law. (trans.lhc)26
He cannot help seeing pure arbitrariness in the contractual provisions made by the parties.
By taking this position he is in opposition with what the reality of law demonstrates: binding by contract is recognized as law, the provisions of the contract are treated as legal rules. The Swiss author doesn’t want to acknowledge this, he wants to interpret the agreement solely from the perspective of the subjective intention of the parties. The actual practice is always different, has to be different, if only because the intention is not obvious most of the time. Interpretation and elaboration of the contractual provisions is performed analogous to the way it is done with the written law: it is not what the parties intend that is decisive, but rather what they ought to intend according to the interpreter. Interpretation and determination of the legal consequences merge with each other. We see this again in the cassation proceeding, which wears itself out in vain, attempting to distinguish properly between what is factual and what is legal. If there were only arbitrariness here, how would it be possible to speak of carrying out agreements in good faith, or of the obligation to act in accordance with equity? And yet those very rules are currently at stake in most conflicts about obligations arising from agreements. The provisions in the contract are legal rules. 79
Still when the question – “why legal rule?” cannot be answered by making it plausible that arbitrariness counts as law, and if the answer is deemed insufficient that the content of provisions is decisive for the question whether one can speak of law, then we have to ask ourselves if the problem is not mistakenly formulated. Indeed, when we have to decide whether the content of the contractual provisions always satisfies the requirements of equity, then we will have to deny this repeatedly, and often there will remain doubt and this will leave the question unanswered. Is it possible however to put aside all doubt with the remark that the contract binds because it is a promise, like the law binds because it is a command of the legislator? That the legal character is not to be found in the content, but in the origin of the contractual statement? In that case, however, it is not possible to give any further clarification for the binding force of the statement. 80
One who is looking for such a thing, departs from the idea that the contract has to be justified under the written law. But although the law will continuously change and restrict the freedom of contract, the point that a promise binds cannot be explained in the end in any other way than by the fact that it concerns a promise. The law structures the relationship between the individual and the community, therefore also the relationship between individuals in a certain community. Between those individuals, a relationship is created by the words, which they speak to each other. The binding nature of those words is implied by this relationship in exactly the same way as the binding nature of the command, issued by the authority within a community, is implied by the existence of the common legal bond. The science of law is not capable of giving a further explanation of these bonds. 81
This is not the place to elaborate on all of this. To clarify things I only point out for the moment that in the law of nations, among the many uncertainties which exist, there is one thing which stands firm: when one signs a treatise, an agreement between states, one is subjected to it. In that context there is not yet a law, which commands. How then is it possible to understand this binding effect when its nature is not in the same sense original as that of the command of an authority? And this is not the only phenomenon, which can be understood in this way.27 But it is impossible for me to go into that. It was only necessary to indicate these things, because we are so easily inclined today to see all law in terms of rules, preferably rules sanctioned by the State and it is this notion we have to reject if we want to understand law, especially private law.82 The formation of law by individuals is an important part of the private law. Besides rules, subjective rights and decisions, this has its own meaning. It is not only for this reason that it is necessary to understand the binding effect of the promise, it is also useful for a good understanding of a large part of the rules themselves.2883
§ 6 The nature of the legal rule. Supplementary law. Valuation and regulative task
The rules of the private law determine for the most part the limits of the individual freedom and the competence to make law. The community meets the individual, assigns him the domain within which he is allowed to act according to his own rules, determines the guarantees needed to be convinced that the statement of the person concerned is indeed a declaration of his intention, and impresses upon him that he has to stay within certain boundaries regarding the content of the regulation he makes. However, although these rules are the most important ones of the law regarding the relations between individuals, they are not the most numerous. Many more are the rules made by the legislator to be used in cases where the parties did not make these provisions themselves. The legislator departs from the idea that individuals are allowed to make regulations themselves as they see fit, and he indicates subsidiarily which rule applies when these are lacking. People call these rules supplementary or dispositive (non-mandatory) as opposed to compulsory (mandatory) law. Both terms are each characteristic for a specific part of the rules that I have in mind. 84
It is possible that the legislator in the case of a contractual relationship only supplements that which lacks in the agreement made by the parties. They only agreed on the purchase price and object for example but didn’t determine anything else; in that situation the legal regulation concerning transfer of title and indemnity will be in force. It is also possible that the legislator doesn’t leave a certain subject matter to the individuals, but rather makes rules himself, although he leaves these rules at the disposal of the parties; they are allowed to deviate. Marriage has as a consequence the community of property, but the prospective spouses are allowed to decree differently. In the first case there is law made by individuals, which is supplemented, in the second case there is regulatory law, which may yield to a contractual agreement. 85
What is the nature of these rules? 86
It is clear that they are not commands directed to the persons who are subjected to the law. The law doesn’t say: there has to be community of property between spouses, but there will be such a community as long as you do not enact otherwise. A command accompanied by the message “thou may do otherwise” makes no sense. The doctrine that reduces all law to commands, would never have gained such an acceptance if people had also taken private law into account, and not just penal law.
But what else, then, are these rules? Let’s first attempt to determine the nature of a command. Whoever commands, imagines a state of affairs in the future of which he approves or disapproves, which he does or does not want. Furthermore, he has to possess the power to make other people realize the state of affairs he wants and has to be willing to use that power. To this end he imposes his will upon his subordinates, he commands. There is therefore a valuation and an exercise of authority, which rests on this valuation. In the supplementary law both these elements exist, but they differ: the valuation is weaker, the exercise of authority is of a different nature than in respect to compulsory law. 87
The legislator who prescribes the community of property as dispositive law will also believe that the state of affairs which generates from such a regulation is in general preferable. He realizes however, that the conditions may be such that his opinion is no longer correct. This is why he allows deviations. The desirability of exceptions is always conceivable, but in the case of compulsory rules, the legislator is so convinced of the righteousness of his rules, that he accepts this drawback as part of the bargain. Here however it is different; because the valuation is a weaker one, the exercise of authority is different. The legislator doesn’t command any longer, but he “pre-scribes” in a literal sense, he formulates a guideline. Because of the hierarchical relationship between the legislator and the judge, this guideline indirectly gains a binding force for the individuals. If they have a conflict, the judge has become obliged to administer justice according to this guideline. 88
The compulsory law contains a duality of commands: one directed to the individuals, subjected to the law, the other directed to the agencies of the State, charged with the execution of the law. The supplementary law contains only the second one. There is no command directed to the individuals. They can act otherwise. If they did not make use of this competence, the judge has to follow the guideline, which the legislator handed to him. People feel however that to follow this guideline differs from the execution of a command. Doubtless, the former will ask for a more flexible attitude than the latter. There is no room here for an inexorable obedience, as required by the command. We will see how important this is for the finding of law. 89
It is important to draw attention to yet another aspect of the supplementary law, more in particular of the supplementary law in a limited sense: the completion of a rule of contract. This involves not only valuation, but also a regulative task. Till now we assumed that the legislator gives certain commands or instructions because he wishes a certain state of affairs. He believes that it will be good, when that which he desires is realized, it is justice, which he seeks. What this means exactly, we will leave aside at this moment, but the reference to justice may suffice here to express that a valuation is at stake, i.e. an ethical requirement. 90
In the supplementary law however, the judge gives rules, not in view of their content, but partly because it is better that a regulation is made, regardless of which one, than that it remains uncertain what has to be done. From the preceding paragraphs it has already become clear that finding law is not always easy, it can be important to remove doubts. Because it is often necessary for parties to act without having the time, and maybe even without having the possibility, to find out what exactly has to happen, it is desirable that somewhere a decisive answer can be found as to what should be done. The certainty of law becomes a value unto itself, and it is partly this value which the legislator seeks to realize in the supplementary law; at a certain point, the certainty of law can be more important than law itself. One part of the provisions of the law of contracts serves this certainty exclusively. 91
To give an example: when the legislator determines that the debtor has to pay his debt at the house of the creditor as is the case in our Civil Code, this is not because he deems it so much better that the debtor takes this walk, but because it is necessary to decide who has to do it. In other rules both giving structure and valuation are aimed at: the matter has to be settled, therefore rather this than something else, but the difference is not big. 92
With his regulation the legislator takes the presumed will of the parties as a starting point. If our Civil Code determines that through paying the principal sum without retention of title regarding the interests, the debtor is also discharged of the latter, is it because the fulfillment of interests is assumed. Here it is explicitly stated, but this is not always the case. From this it follows that the rule is not valid if the opposite appears to be true, even if the parties did not deviate explicitly. 93
With the supplementary law the legislator works in precisely the same way as the judge interpreting agreements. On the one hand he builds on upon the expressed intention and seeks to unravel the content thereof, according to the presumed intention of the parties — thus far his research is historical and psychological — on the other hand he establishes what can be called equitable and just, given the declarations of the intention of the parties, and in this context his labor is one of valuation and finding law. 94
It is completely wrong to leave out the latter and to see in the supplementary law only the presumed intention of the parties. In the dispositive law in the limited sense this is never the case. The legislator has not chosen for the community of property in the law relating to marital property based on the assumption that the majority of parties who marry desire as such — how much will they understand of the opposite: communal property or not?—but because the legislator thinks that this legal arrangement of the marital property is the best, the most righteous one. 95
But also in the supplementary law in a more limited sense, valuation surpasses the regulative task. The presumed intention of the parties often has only a negative significance. The legislator does not create an arrangement, because he presumes that the parties want it, but he refrains from supplementary rules when he presumes that the parties will not want these. It is clear, that if he doesn’t do so, he achieves nothing. Our code has enough examples of such unsuccessful regulations, think for example of the provisions in our Civil Code regarding diminishing the rent in case of crop failure, provisions, which are firmly put aside in practice. 96
To what extent, however, the aspiration for justice dominates over and above the aspiration for certainty of law,29 even in the supplementary law, becomes clear when one looks at the new provisions which are made in our time. As far as the supplementary law is concerned, the battle is therefore about the desirable and not about the usual. One may think of the employment contract and the company limited by shares. 97
This becomes very clear when the legislator draws up a rule from which one party is allowed to deviate, but the other party is not, like the provisions in our Civil Code regarding compensation in the case of a wrongful termination of an employment contract. If it is to the disadvantage of the employee, it is prohibited to fix the amount lower than provided for in the law. Thus far it is compulsory law. To the disadvantage of the employer, however, it is allowed. Here the regulation has a supplementary character. How could this be presumed intention with respect to one and valuation with respect to the other? There is no presumed intention here: in both cases the legislator deems his rule the just one; only, as far as the employee is concerned, he thinks that this is so much so, that it has to be imposed; he leaves the employer free to accept less. 98
And this character of valuation is especially apparent when the legislator allows deviation within a specified form. Again, the employment contract provides examples. It is indeed possible to deviate from numerous provisions, but only in writing or by applying a company-regulation. In such a situation the legislator doesn’t want to go as far as imposing his will, but he ensures that the parties are well aware of his view and that they choose a form of deviation which gives proof of such awareness. The valuation is of a specific character here: more than in the common supplementary law, less than in the compulsory law. It is semi-compulsory law. 99
In this way the supplementary law can be situated between the compelling command of the legislator and the obligation, which is founded on the promise. By looking for the presumed, not explicitly stated, promises, the latter touches the former — because it implies a value-judgment of the legislator. There is the acknowledgement of the binding by a promise, the presence of which leads to the withdrawal of the rule as soon as there appears to be a statement with a different content. At the same time there continues to be a valuation of the agencies of the community, although in an indirect way. If we should have to provide a short formula here, next to the “thou shalt”, the “thou has permittance” and the “I shall” of the preceding paragraphs, it could be no other than the so much weaker “it is proper”. 100
§ 7 Supplementary and compulsory law, continued. Public Order and good morals, sanction.
In the preceding paragraph we have explained the difference in nature between compulsory and supplementary law, at this moment we have to dwell for a while on the question, when a certain rule is compulsory. It is not possible to formulate a general criterion for this. It is a question of interpretation whether a rule is compulsory or contains supplementary law. The Law on General Provisions, which should serve us as a guide on this, doesn’t help us. If this law states that no actions or agreements can deprive of their force those laws which pertain to the public order or good morals, it does not state much more than that compulsory law is compulsory law. 101
When does a law pertain to public order or good morals? The reference doesn’t lead us any further. “Public order” is the expression one uses to indicate that a certain norm is especially important. In the context of the international private law it serves to indicate that between the norms, which are applicable in a certain State, there are some, which have such an eminent importance, that they have to be applied, even if according to the general rules the relationship would have been governed by the foreign law. In procedural law it indicates the rules, which the judge has to apply, even when the parties didn’t invoke them. In the context of this book it has no other aim than characterizing the rules of compulsory law; nobody has succeeded yet in deriving a criterion from the concept of “public order”, which could be of any use for the distinction between compulsory and supplementary law. “Concerning public order” and “compulsory” are in this context synonymous. 102
Regarding good morals, the Civil Code uses this term repeatedly, whenever it wants to refer to rules of uncodified law. An agreement is considered (null and) void, when its cause is contrary to good morals. In the case of a last will, a condition which is contrary to good morals is considered as not having been written, an association is not allowed to have as its object something which is contrary to good morals, etc. In such a case the judge is charged with the task of finding the law. Also, these rules are compulsory of nature. In the Law containing General Provisions the term good morals seemingly has a different meaning, as it doesn’t put good morals and law - unwritten and written law - next to each other, but speaks of provisions of the law which pertain to good morals. What this means aside from public order is not clear. It can be argued therefore that the provision should be read in the same way as Planiol30did, when he converted the corresponding article of the Code:103
A legal act is null and void if it is contrary to the laws pertaining to public order or morality. (trans.lhc)
This conversion is however not very significant. Even if the Law containing General Provisions didn’t already have this meaning, the provisions from the Civil Code put limits on the power of the individual. The Law containing General Provisions reminds everyone that there is compulsory private law. The legislator can give commands in private law and he emphasizes that he will do this sometimes and also that he acknowledges the fact that sometimes such a command is embodied in the rules of private law even though he did not formulate the norm explicitly. It is, however, far from true that he always attaches the sanction of nullity to this norm, the non-existence of the promise, which was given contrary to the command. “Thou shalt not commit fraud when entering into a contract” is just as plainly a command as: “thou shalt not persuade a public servant with the help of money to act contrary to his official duty” 104
Still, in the latter case the act is (null and) void, which means that neither the public servant, nor the other contracting party is bound, while in the first case only the deceived party doesn’t have to consider itself bound. The act is voidable, as it is called in our Civil Code. The law would overshoot its mark, if the deceiver were also allowed to invoke the invalidity caused by the violation of the legal command. Besides commands, permits and prescriptions to supplement the law of promises, the Civil Code also contains sanctions, i.e. rules about the legal consequences of the violation of a legal norm or the non-performance of a promise. These are indirect means to enforce what the law requires; harmful consequences for the person who doesn’t respect the legal command. Among these are nullification and dissolution of contracts, indemnity, the execution, the revocation in the law of inheritance, etc. 105
These sanctions comprise a complex system— violation of a command certainly does not always result in the nullity of the forbidden act in the face of the law: in contradiction to the nullity, the voidability, which I indicated above, demonstrates this. Another example is revocation in the case of a violation of the statutory portion of the estate. The legal share in the inheritance puts a limit on the freedom to dispose by way of a will, in this respect it is compulsory law: it is not possible for the heir to renounce his power to invoke his entitlement to the legitimate share through an agreement with the testator. But if the testator acts contrary to the legal rules and the forced heir doesn’t desire the revocation, the disposition is fully effective. 106
Here we find a specific characteristic of the private law, which is of prime importance for that part of the law: the sanctions in private law confer upon the individual a right, they do not impose a duty. Civil law is enforced through civil proceedings and for the civil action it is essential that the individual citizen choses whether or not to commence these proceedings as he pleases. The enforcement of the objective law is put into the hands of the individual, even when it concerns a command of the legislator. 107
The legislator wants that the only son gets at least half of his father’s intestate succession, when his mother predeceases, but he orders it only if the son also wants it. And even when absolute nullity is prescribed, this dependency upon the individual desire remains. This is of course only brought to light, when it is brought before the judge, in other words if a legal action is started. And it is left completely to the interested parties to commence a civil lawsuit. In the law on employment agreements there are numerous provisions of compulsory law; the legislator says time and again: thou shalt not. But, if the parties act differently and if the person who could invoke the nullity acquiesces, nobody will know the difference. 108
If the law attaches so much importance to its commands such that it asks for unconditional enforcement thereof, then these commands should contain sanctions other than those pertaining to private law. The command: “thou shalt not kill”, has a sanction pertaining to private law through indemnification, but it has also a sanction pertaining to penal law. Still one can also point out cases in the Civil Code where the agencies of the State supervise the fulfillment of the duties, which are imposed by it. The command to parents to educate and support their children is enforced by the Public Prosecutions Department and the Council for guardianship. When the parent fails, he can be relieved of parental authority at their request. But the question is if this can still be called private law. This question puts forth the following problem: what is the characteristic feature of private law? Up till now we have treated this concept as if it stood firmly. We described it in § 1 as the regulation of relations in social interaction and within families. It is clear now that this needs further definition. 109
The distinction between public and private law is not identical to the one between compulsory and supplementary law. It may be true that public law cannot change private agreements31 , but the reverse, namely that everything that cannot be deviated from by agreement is public law, is not true. Nobody has yet stated that the limitations on the freedom of contract in the law on employment have to be characterized as public law. 110
We have to look into the details of this problem.
§ 8 Private and public Law.
This is an old controversy. People quarrel about the question whether certain parts of the science of law, for example the law of civil procedure, belong to the private or public law. A question of classification, which doesn’t have to concern us. Also — and this is more important — whether or not certain legal relationships, which are public by nature, are partly governed by the rules of private law. The State and its subjects enter continuously into relations with each other, which are quite similar to those in the social interaction between private persons. 111
Nobody denies that the State can be bound by private law: the purchase of a plot for the management of public affairs is governed by the common rules of law. But if the State appoints somebody as a public servant, is this relation then also governed by private law? The relationship between the teacher at a public school and the municipal administration is quite similar to the one between his colleague at a private school and the management of the school. The latter one pertains to the private law, but the first one? Is the municipal administration allowed to fire the teacher or to diminish his salary against his will? Can the answer to these questions be found in the Civil Code? These and similar problems arise. The public teacher is a public servant. Does the public servant hold a right against the municipal administration, and can he exercise this right in civil court? Until recently this was an actual question for the legal practice, currently the Law on civil servants (1929) gives the answer. But the question about the fundamental opposition remains. 112
Aside from the position of the civil servant, there is the liability of the authorities for wrongful acts. A ship runs into a stake in a public waterway and sinks. Is it possible to sue the municipality, which is responsible for the supervision of the waterway, due to neglect of duty to keep the waterway in good order?32 Or a burgomaster thinks that he is entitled by the law to order to kill a cow, which is aggressive and dangerous. The owner denies the existence of these shortcomings and therefore also the right to kill the animal. Is he entitled to a payment of damages?33 and so on. Because for us any explicit rule is lacking, the question arrives at this: are the provisions concerning wrongful act in our Civil Code applicable and has the civil judge the authority to decide these conflicts, or are they removed from his jurisdiction because of their public nature? 113 It is a question of endless dispute, which has given rise to an extensive case law and has not yet been settled. And next to these two examples of telling hard cases, others can be indicated.34 The concession is one of them. 114
Because of this uncertainty people have felt the need for a criterion to distinguish relations of private and public law respectively; in this way, people assumed, the solution to these difficulties would be found.
In many ways, attempts have been made to formulate an antithesis. One has looked for a criterion in the persons between whom the relation exists, in the goal of the regulation, the regulated interests, in the norms themselves. In the persons: relations of private law are between individuals; relations of public law are between the State and private persons. If one raises the objection that, as actually is the case, the State can also be engaged in relations of private law, then it will be said: the State as such and private persons. However, this answer raises the difficulty as to when the State acts ‘as such’. 115
Does or doesn’t it act ‘as such’ when it buys a plot of land upon which to establish a building for public affairs? Between the interests: general and individual. Opzoomer35 states:116
in the public law the whole has to be conceived as a goal, in the private law the individual is the goal.(trans.lhc)However, isn’t the weighing of the general and individual interest in fact the foundation of any ruling by law? Has there ever been any distinction other than one of more or less, which clearly lacks the specificity needed for clear-cut boundaries. In the law itself, surely, but how?
In an attempt to end this confusion, we will have to premise one thing. There are two questions intertwined here, which are confused with each other, but which have to be distinguished; firstly this: is it possible to make a distinction between rules of private and public law which refers to the nature of these rules, like for example between compulsory and supplementary law, i.e. a distinction which pertains to any legal order, independent of time and place? And secondly this: does a certain legal order, for example the Dutch one today, makes this distinction, and if so, how? A question which in turn leads to this practical question: is a concrete relationship subjected to certain rules of public or private law, an issue which cannot be viewed in any other way than with the help of data generally used when finding law, to which therefore the answer changes according to time and place and depends on provisions of the positive law, case law etc. Even if it is possible to give a positive answer to the first question, it is not yet certain that this implies the answer to the second question. 117
We start with the first question. 118
Up till now we have pointed out that the law gives rules about obligations, which mutually exist between people, that it provides for entitlements, by which the one is allowed to claim something from another etc. This is all in force in a certain community, within a certain circle. This circle doesn’t have to be, but currently primarily is, a people which is organized into a State. The law requires by its nature to be enforced; when there is a legal battle, a decision is needed, the judgment of the authority which takes the decision should be convertible into fact. It is an agency of the State, the judge, who decides about the law — it is again by State agency that his ruling is enforced.
But not only is the law enforced by state agencies, it is also formed, at least formulated, by state agencies. In the State there is an authority, which legislates, which imposes the law it desires as law. In § 1 we already said that an enquiry into this legislative power was beyond the scope of this introduction to the private law. We can give further grounds now for this statement, because indeed we are confronted here with a distinction between two types of rules: those relating to the conduct of the individuals who are subjected to the law in a certain community and those relating to the organization of the community itself.36 Also, the latter are rules of law, normative rules unified into a system, the observance of which can be enforced. Also, here, the decision has to be found in concrete cases, which, just as in private law, cannot be obtained by simple deduction. But this concerns rules of a different nature than the rules of the common law, because these rules do not pertain to the conduct in the community, but to the formation and enforcement of law itself. 119
In such a way private and public law are distinguishable or let me rather say: the common law or people’s law and the law of the state. On the one hand the regulation of purchase, employment, marriage, property, on the other hand the way laws are established, the way judiciary power is composed, the way the relation between King and parliament is regulated. At this point there is a distinction which holds good for any legal order independently of time and place: on the one hand the way in which a decision of law is found, who is authorized to do this, and how the rules are established, which he then follows, on the other hand the content of those rules. The rule of conduct stands in opposition to the rule regarding the formation of this rule of conduct, the decision stands in opposition to the appointment of the one who is allowed to decide, the law within the organized community stands in opposition to the form of this organization. 120
Logically speaking, the public law thus precedes the private law. We have to determine firstly who is allowed to adjudicate and to establish law, before we may examine the content of this judgment. The private law is under the guardianship of the public law, as Baco37 stated. One has to realize though, that the term “public law” is used here to designate the state-organization, the constitution. But at the same time it is also true that the existence of rules of conduct, which the legislative power has codified and on the grounds of which the judge administers the law, is already embodied in the existence of the legal community, that there are therefore already rules, before they are formulated by the one, who holds power. The public law presupposes the private law. 121
The law is certainly established by, but not created by the State — public law doesn’t precede private law, they are on the same level. The State holds the power to determine the law. But the other way round, the State power is continuously penetrated by the principles of the common law because it is founded in the law, because there is state law. But we will not talk about this now, it is necessary to stick to the question of public-private law at this moment. 122
It is obvious that this distinction hasn’t taken us much further regarding the problem we are occupied with. We have to focus our attention on yet another phenomenon.
The same State, which holds a relation to the law, because it takes the enforcement and formulation of the law upon itself, sets itself also other goals, since time immemorial the defense against foreign attack, moreover the care for the ground on which the people live water-agency, and for the means of traffic and communication, for education and for the multifarious other things which it brings currently under its control. It does all this in virtue of the power, to which it is entitled, the authority, which it can exercise. To this end it establishes rules, which - as its commands - bind the persons who are subjected to its power. It does this in the same way as it formulates the law between individuals, through legislation. We are confronted here with what is normally called the administrative law. And to be able to accomplish this task properly, the State needs persons who are employed in its service. 123
How to compare these relations and rules with those, which are generally existent between human beings?
Do they distinguish themselves from the common ones by their nature? Do we have to conclude that there are two types of societal structure next to each other in the law, to both of which we are subjected, but which do not come into contact with each other? People have argued this in many ways. In our country especially Buys38 and Oppenheim39 have introduced the idea: in the public law there is a relationship of subordination, in the private law of equality. 124 This is not the place to dispute this conception in detail, what is at stake here is the relation between power and law, these two continuously clash with each other, it is impossible for the one to acknowledge the other, yet both need each other continuously. There will be no law without the power to convert what the law commands into actual fact — no power, which does not at any moment bend before the law. The determination of the relationship between both presents a problem, which is time and again put aside and never solved. Still, this much is certain, if the public law is conceived as a regulation of the relationship between the authority and those subjected to it, i.e. as a relation determined by power, the chance is great that this relationship will lose its legal character. For an explanation of this statement I refer to Krabbe’s book on the sovereignty of law.40125
Here I only have to ask for attention to two points: 1°. As soon as the superiority of the State is established this way, it becomes impossible to explain why it is bound to the private law which is currently not denied by anybody, however limited this may be; 2o. a distinction between private and public law in this sense can’t be a universally valid distinction of the nature of two types of legal regulation, if only for the reason that there are legal orders which do not know this distinction at all. 126
I point out England. It is very instructive for the continental jurist to read the chapter on the French administrative law in Dicey41Law of the constitution, because it reveals to him in a glance, that there are legal orders which have no cognition of something like the administrative law, and this is not so because the citizen has completely no right against the government – such as during the ancient regime in France and even today in some respects with us and in other places on the continent —, but because the state agencies are just like anybody else subjected to the common law. Even the word administrative law is absent. 127
We can conclude that there is no distinction between public law in a broad sense and private law, that has a universal validity for all times and places. No superiority of the public law over and above the private law. No fundamental difference of type between the norms in the one domain or the other. But at the same time there is not an absolute denial of the difference either, in as much as it concerns the current positive law and not the legal norm in general. 128
I still believe that the view which Hamaker42 developed regarding this question, provides the right answer. The private law points out the general rules of conduct, properly called the common law. The public law — if we put the state-organization itself aside because it has a different nature indeed43129
— provides rules of conduct to the same extent: commands of the government, rules of law, like the rules of the common law, which supplement that law or deviate from it for the sake of the mission of the state. This can be done explicitly, but the deviation can also be the result of the finding of law where the written law is silent.
In our country it will be possible to do this with the help of the Law on Judiciary Organization, the provisions concerning the wrongful act in the Civil Code, and above all the history and the system, the functionality and anything else that has to be acknowledged as a factor in finding the law. We certainly may say however: there is a presumption of subjection of the state-agency to the common law, but we have to add, that the nature of the relation, and especially the reliance on authority can lead to the exception of the applicability of the rules, even though it doesn’t have to bring about such an exception. We cannot give more than these generalities here. It is not the place here to find out which outcomes result from the interpretation regarding the wrongful acts of government, the concession and so on. It should be kept in mind however that the issue at hand is the type of problem in finding the law, which must always be solved in a concrete case, and that it is not about making an a priori distinction.44130
Still one remark here. It is this: it is a characteristic aspect of the common law that it can be enforced by the individual citizen in a civil court. This is not a criterion of the distinction between public and private law, in dubious cases it is precisely the question whether such an action will be admitted. But it is possible to say that the restraint from such an action is typical for an exemption from the rules of the common law. People teach correctly, for example, that the accident insurance is regulated according to public law in our country. The intention is to indicate by this, that the employee cannot ask his principal to pay the damages in case of an accident, but has to apply to an administrative agency, the National Insurance Bank, which in its turn determines and collects the contributions that the employer has to pay. 131
The common law is nevertheless in force when the exception is not applicable, as can be seen when in the case of bankruptcy of the employer, the National Insurance Bank as creditor asks for verification of the contribution, in the same way as the States asks this for tax debt. It is also apparent in the cases of a claim for refund of unduly paid tax, which are currently not uncommon: the judge is not allowed to decide the issues which the administrative law excludes from his jurisdiction, but for the rest the ordinary civil law is in force. From this it follows that we cannot say that a certain relation is exempted from the common law (such as the relation of the civil servant or the concession), as we always have to check whether in a concrete case rules other than the common rules are in any way applicable. 132
And from this it also follows that the question, which we asked at the end of the preceding paragraph was incorrectly formulated, namely whether the obligation of the parents to support and educate their children, could be seen as private law. It is certainly common law. It is enforced by civil action. But it is not exclusively common law. Besides there is a specific sanction: the possibility of dismissal on the initiative of state agencies. In this way the regulation functions on exactly the same level as the penal law. It is currently taught that penal law is public law. 133
This statement has no meaning in my view. The penal law attaches a specific sanction both to some norms of common law and to legal rules of an administrative nature. Again, this sanction is itself, as far as its execution is concerned, administrative law. But nowhere do we find as many of the most fundamental commands of the common law as in the Penal code. In this respect it is common law, but it is more than that. 134
Therefore let us summarize this again: An absolute distinction is possible between the state law and the private law. The remaining so-called public law is specific (administrative) law, as opposed to the common law. The boundaries and content of this administrative law are determined by the positive legal order; it doesn’t have a nature, which is different from the common law; where it leaves room, the common rules are in force. 135
§ 8a Appendix of § 8. Church law. Law of Associations.
One thing still has to be clarified. If the law in an organized community stands in opposition to other forms of communal organization in the State, should the law which regulates those other forms of organization which differ from the State, i.e. for example the Church or the Association, in that case not be given the same status versus the law in these organizations as the state-law has versus the common law? 136
There are indeed similarities, and the question would have to be answered in the affirmative, if those communities had an autonomous position towards the State, with respect to the law. Regarding the church this was the case during the Middle Ages: regulation of the authority of the church was of the same nature as regulation of the secular authority: the canonical law was equal to, and not subordinated to, the law of the State. For Roman-Catholics the church law still has the same character in principle, for the Protestant churches the relationship is different and complicated, it is so distinct and complex, that it cannot be explained in a few words. This requires no further attention, the more so because the current legal order does not acknowledge this autonomous position and the State’s due is not simply to have authority concerning the law, but to have it exclusively. 137
The church is entitled to regulation within its own circle, but only as far as the State allows it. Why things are established this way, how it came to be and if this is rightly accepted, are again questions of state law, which cannot be discussed here. This much is certain however, in our country the individual human being is only subjected to the church, when he has accepted this by his own action. If he has not done so, then he will find in the State law which supersedes any presumptuous claim of authority by the Church. The power of the Church can never rightfully touch he who has deserted it. In other words: the law of the Church is never anything other than promise-law, it is not command-law. The church order therefore pertains to the private law. It is situated within the current system of law as part of the common law. This does not alter the fact that it is completely modeled as a form of organization and is therefore time and again akin to the state law. 138
The same is true a fortiori for the law of associations. Within the circle of the association and the church, there is the rule of conduct versus the form of the organization. Internally, the opposition between common law and form of organization is repeated, but versus the State i.e. from the point of view of the law, which is enforced in the State, the form of organization is also a regulation by private law. Our obligation to it rests on our accession, not on the power of the organization. The fact that this power can actually be very big, is not at variance with the truth of this. 139
§ 9 The law. Factors determining its meaning.
Seemingly we have departed in § 8 from the argument outlined in this chapter, about finding law. The question about the opposition between private and public law presented itself unintentionally, but it doesn’t seem to fit in easily in the course of the argument. In the meantime, it was impossible to avoid it, and its treatment has been profitable for the issue of finding law. It opened our eyes to the fact that there is a power, the power of the legislator, that makes its presence felt in the law. 140
The first thing which one looking for law finds along his way, is the written law, not in the sense that the written law comprises all law, nor that justice in a concrete case can be deduced by logical inference from the written law, but in the sense that the commands, permissions and prescriptions of the legislator hold authority. Again, in this introduction to the private law, we do have to examine the question why this authority exists. For us it is enough to establish the fact that in the organized legal community, the State, the law is codified. The written law is the rule of conduct, dictated by the agency charged with this task by the constitution, to those subjected to its authority. 141
Now, it is far from true — as we have pointed out repeatedly — that this prescription determines the decision in a concrete case. The judge will therefore have to try to find the meaning of the written law, which means that he will try to make himself familiar with the idea, expressed by the words of the written law. These words are signs, he will try to understand what they signify. This can be done in two ways. When one tries to approach the meaning of a statement like a legal prescription, one can make it his object to find out which ideas were present in the mind of the person who stated it, what he had rejected, and what he strove for, what he intended to say with the expressed words. It is however also possible for such a person to turn the statement as such, completely detached from its author, into an object of research and to ask for the meaning of the statement according to common sense. In that case he is not interested in the ideas in the author’s mind, but in those aroused in the minds of those for whom the statement was intended. Both methods are recommended for legal interpretation45 the theory of the subjective meaning as opposed to the objective one; the first one is especially interested in historical knowledge about what happened when the law was brought about, the second one thinks that solely the words of the law and their meaning should be emphasized. 142
In my view neither the one nor the other should be accepted. Both are one-sided, both fail to appreciate the dual character of the law. As we know, the law is on the one hand the expression of the will of certain persons who are vested with authority and are entitled to impose their ideas about what should be law upon the members of the legal community, on the other hand it is a provision given for the future, which has to be considered independent of its genesis. Legislation is a historical event, which just like all historical events can only be known by a reconstruction of the ideas which existed in the minds of the people concerned. At the same time, however, it is the constitution of a new fact in the life of the law, which has a right to its own existence, of which the application and continued existence has been separated from the persons, who made it, and which therefore can have a different meaning, or can gain one, over the course of years, of which its authors had never thought. Therefore, it is not either objective or subjective, but both objective and subjective. 143
It is necessary to determine further what value is due to both these approaches, both the study of the ideas which the lawmakers had in mind— normally called historical interpretation, but which I want to name statutory-historical to distinguish it from the legal-historical which will be discussed later on— and the linguistic analysis, the grammatical interpretation. These will be both discussed in the next paragraph, here it may be pointed out already, that one should not overestimate the relevance of either. People so often give the impression as if it is both of these approaches or one of them which are of central importance: the intention of the legislator or the words according to common parlance. 144
Still both are only a means to find out the meaning of a provision, nothing more. For the search for the law in a concrete case, even as far as it leans on the authority of the code, this is only partly the work that has to be done. It is certainly never a single provision of the law, but always the law as a whole, which is enforced in application. When searching for the intention or the common parlance one sets the provision apart, but every single provision of the law forms a part of a statute which is more or less comprehensive, this statute in turn is part of the legislation in general, while this legislation is again part of the complex whole of the law. This complex whole has the form of a system, which means that there is coherence and unity, one provision presupposing the other, inconsistency of one rule to another is quite impossible, the law cannot command and forbid, or prescribe and dissuade at the same time. Every new rule, which the legislator promulgates, is included in this system, is influenced by it, is applied and interpreted in the context of the other rules. The systematic interpretation is one of the necessary ways to find law. 145
But the interpretation of an applicable provision is only partly determined by the regulations of the law, which form the context of it; this is also accomplished by the social relations themselves, to which the provision will be applied. Every regulation rests on the valuation of social interests, aims at influencing the actual social events. Its application is bound by the possibilities that are offered by the social life. This life is continuously changing. This makes it possible that the provision starts to refer to a domain for which it was not originally intended. The valuation has repercussions for its meaning. 146
The signification of a legal provision can only be determined on the basis of the relations between human beings. It does not have a separate existence but holds only for actual relations. The written law determines these, which means that it prescribes what should be the case in a certain relationship, but at the same time the law is influenced by changes in this relationship. Therefore, an interpretation is required that is in accordance with the aim of the provision, with the social situation in which it operates. The sociological or teleological interpretation claims its position here. 147
And even with this we are not yet complete. We saw that the meaning of a legal provision has to be established as part of the practice of law as a whole in accordance with the intention and common parlance, and also in accordance with the social relations, which it regulates. But the legal provision is not only part of a system of rules, which are simultaneously in force next to each other, it is also a link in a chain of regulations which succeed each other. The law doesn’t fall from heaven, it doesn’t appear in an emptiness, which existed till now, but other regulations preceded it, it replaces these, but is at the same time connected with them. There is continuity in the law, a steady development. The law is permanently flowing, it changes daily by the way it is applied to the conduct of the persons subjected to the law and also by the judiciary. One can only understand such a system, which develops and changes, when one looks at it in its development and takes its past into account. If one does not look back, one cannot look ahead, Edmond Burke once said.46 Regarding the law this is very much to the point. 148 Is it not said, however,47 that the historical research, the genealogy of something, should be demarcated sharply from the question as to what is in force and what ought to be? This demand for a demarcation is a consequence of the Kantian separation between what is and what ought to be. The former can be known by empirical research, the latter cannot be reached by such research. I hope to make a few more remarks about this demarcation below, but here it can already be established that if indeed one wants to call the science of law a science of norms and the law a system of what ought to be, one has to realize all the time, that the ought is dependent on what can be known historically,48 on the decision of the legislator or the judge and the application of it in the society. 149
It is certainly possible to distinguish between a historical and a legal conception, but the one cannot exist without the other. It is impossible to establish the meaning and signification of legal rules in a legal sense without acknowledging their relation to either preceding or current rules. Legal norms do not have an existence as logical norm above or beyond the temporal, they are historically determined. The true legal-historical interpretation, an explanation according to the origin of the rules, belongs to the science of law as one of its tasks. 150
The common parlance and the legislative history, the system of the law as a whole, social goals and effects of application, the historical development, these are therefore all factors that exist alongside each other, invested with the authority to determine what is legally valid by virtue of the law. We will see below to what extent it is possible to specify the authority of each of these factors. However, it can already be pointed out here that a clear-cut order and exact determination of the value of each factor for specific cases is out of the question. And this is the case for the reason that when the establishment of law is at stake, everything hinges ultimately on justice. This has to be kept in view with every interpretation and it is the beginning and end of any attempt to find the concrete law in practice. I deemed it important to give this reminder, but we have to postpone a further elaboration of this decisive moment till the end of our considerations. It is necessary to give initial attention to those factors, which are the means for the finding of law and at the same time the limits of the freedom to develop the law independently. 151
§ 10 Law and Language. Interpretation according to common parlance.
Language, the meaning of words according to usage, is the predominant of all aspects of the finding of law. Language is the medium par excellence by which people have dealings with one another; an order as realized by law is inconceivable without language. No law can exist without being formulated, people ask for Jurisdiction: a judgment about the law expressed in words; the judgment is founded on general formulas, which are again summarized in words. 152
The first thing which has to be established when finding law is the meaning of these formulas according to common parlance. Intuitively every analysis of the law starts with this. It has to. When the law is binding, what else can this mean than that the decision binds in the way citizens grasp its meaning according to common usage? It starts with this and it ends with it: every argument concerning interpretation ends with reviewing the result in the light of the formula. Anyone who does not continuously keep the text of the written rule in mind during his work, will lose the right track, even when studying the best textbook. 153
The law imposes its will with words. It is therefore important that the legislator uses clear language — a language which expresses the specific nature of command and prescription: short, pure and sharp. People don’t realize just how much the effectiveness of the written law is dependent on the way it is worded. The command, which is easily comprehended, and which is strongly imprinted in the memory, stands a better chance of being followed than the endless verbose exposition, which can only be comprehended with difficulty and remembered with even more difficulty. We, the Dutch, are not spoiled in this respect: already the Civil Code of 1838 was no match for the French Civil Code, but still it contrasts favorably with the wretchedness of later laws. Luckily a few recent laws give hope that we are doing better in this respect. 154
The authority of the language is so big and so self-evident that there is no need to give further arguments for it.49 If anywhere, then especially in the domain of law, the way one thinks is determined by language, viz. the language of a specific formula. It is rather necessary to determine the limits, as people have often misjudged the role of language in interpretation. It is still argued that a clear wording of the law is decisive and that interpretation only begins in the case of obscurity, in other words that the grammatical interpretation precedes the other methods of interpretation; these other resources can be used when interpretation according to the letter falls short. Nobody has defended this conception more powerfully than the Belgian jurist Laurent. His is the saying:155
respect the law (to the letter) even if it is absurd. (trans.lhc)50
This view is in conflict with the nature of finding law as well as with the essence of language.
In conflict with the nature of finding law. This never requires the determination of the meaning of a provision on its own, but rather in the light of the actual relationship, either as it exists in reality or as it is imagined by the interpreter of the law. By this it can happen that something, which is clear in itself, i.e. which evokes the same conceptions for everybody who knows the common parlance, can become obscure when the facts which are presented are taken into account. To explain this K. G. Wurzel51 uses the following example from Jhering’s Civilrechtfälle,52 which is quite revealing, even though it recalls the atmosphere of a study. The following legal provision seems clear: “a treasure belongs to the finder”; everybody knows what it means “to find” a treasure. However, take this case: A, B and C stroll alongside a small river. A sees a bag with money lying on the other side of the river. He tells this to the other two. B whistles for the dog of C, sending him to fetch the bag. The dog puts the bag at the feet of C. Who is the “finder”? A, B, or C? 156 This doctrine is also in conflict with the essence of language. A word is a sign, it has a meaning, i.e. it represents an image, which is conceived of in the mind. But this image is not clear cut, is not always the same. Every concept has a hard core, but its boundaries are fluid.53 The more concrete a word is, the less vague it will be. But it is impossible to state of any word, which is used in legal provisions, i.e. rules with a general applicability, that it is completely clear and that the corresponding image is completely determinate. It is clear what a chair is; however, when it is forbidden to put chairs in a certain place, the question can arise if some piece of furniture, which can be used to sit upon (like a bench or a trestle table etc.) can be called a chair. 157 Besides, it is not the individual words separately that matter, but the words in the context of the sentence, in which they are used. Not every word separately produces an image, which is then connected with the images of other words, but the sentence as a whole does so. The sentence again is understood in connection with the other sentences of the same paragraph while this paragraph in turn is connected with other paragraphs and so on. Opzoomer54 who certainly was inclined to put great value upon the letter of the law, warns again and again to turn the page another time and to interpret one provision in relation to the other ones. The interpretation according to common parlance points to a broader scope, it leads naturally to the systematic interpretation. And also, to the historical. For there is a relation, not only to the other words, which are simultaneously written, but also to the cultural and social life of the period in which they were uttered.158
With every utterance a speaker or writer assumes a lot which is self-evident to him and which the listener naturally adds at the moment that he understands the words that reach him. The same is true for the law. This is very tangible when we pay attention to the fact that the law often uses words which, according to their meaning in the common parlance, only indicate men, but which according to the conception of both the author and the listener, sometimes include women and at other times do not. An example of the first can be found in the Penal Code, where the continuous use of the phrase “he, who” certainly is not meant to secure the impunity of women. 159
However, in respect of the Law on Judiciary Organization it was evident, taking into account the time in which it had its origin (1827), that the “men”, who can be appointed, the public servant of whom is spoken, were only indicating males when the law was issued. Whether this still is the case, is a question of finding law, which we don’t have to answer at this moment.55The answer is found in the balancing of the different data, in the decision as to what extent other factors have to be attributed a heavier weight than history and text. This element, which is self-evident, but nevertheless unsaid, we can only retrieve by historical research. 160
Moreover, as we will see below, the law is penetrated by much concepts which are construed by the science of law; the terms, which signify these concepts have to be interpreted according to their juridical meaning and not according to common parlance. It is impossible for the jurist to establish the meaning of the words of the law without using all the knowledge with which he is equipped. 161
It may therefore be clear that we don’t get very far with the distinction between clear and obscure words when applying questions of method. Every law may need interpretation. Opzoomer 162
— with whom other than on this point I do not feel acquainted on the subject of method —, has argued this already with emphasis; he recalled that already the Romans took this view.56 As Ulpianus said:
However clear the Praetor's Edict may be, it needs interpretation. (trans.lhc)57 It would have amazed us, indeed, if this had been different, as one of the greatest between them, Celsus, already told them:
Knowing the laws does not mean grasping their words, but their power and validity. (trans.lhc)58
Still it is necessary to repeat all this yet again. Even now people are still inclined to over-estimate the value of the words for finding law. The danger of being slave to the letter is always present. The spirit brings to life, the letter kills. -
X-Just how dangerous an appeal to the letter can be becomes clear when one attempts to evade the purport of the law while keeping within the limits as set by the words. The worst sabotage of the law is the one which, by taking the letter to its ultimate consequence, kills its meaning. The act of the person,
which, while using the words, bypasses their meaning. (trans.lhc)59
is fraus legis according to Paulus. If indeed the letter prevails unconditionally, the fraus will reach its purpose.
It is correctly stated that the margin for a separate doctrine of fraus legis becomes smaller when one frees oneself from being subjected to the words. The interpretation of the law suffices then to stamp out such attempts. The margin becomes smaller, but it is not removed; the fraus keeps its meaning. It may be that a text has to be interpreted in general strictly according to the words, that strictly speaking the text doesn’t pertain to the act as it happened, but that nevertheless it didn’t or couldn’t have any other interest, that there didn’t or couldn’t exist any other aim than to evade the law through this act while respecting its letter. In such a case the law is enforced based on the fraus legis, in spite of the fact that its application is excluded according to the letter and its interpretation. Thus the Supreme Court decided.60164
The Inheritance Tax Act taxes both a gift to one’s kin as well as a legacy, if the giver retains the right of usufruct or of a regular payment unto death. In this case the deceased had made a gift and had retained a payment till three days before his death, without any other motive than to evade the law. The Supreme Court declared the Tax Act applicable, as the act took place in fraudem legis. 165
This decision fits perfectly in the somewhat more free and less literal interpretation to which the Supreme Court has turned in later years. But even in the time during which the Supreme Court was still inclined to value the words of the law quite highly in respect of the finding of law, it did not conceive of itself as being bound to these unconditionally.
J. P. Fockema Andreae, who studied the method of interpretation of the Supreme Court during the period 1893—1903 for his noteworthy dissertation,61concludes that the Supreme Court even then did not accept absurd results, despite its respect for an appeal to unambiguous words. By the vagueness and elasticity of the concept “ambiguous” the Court removed itself from all too powerful consequences of the - unjustly - accepted doctrine of the prevalence of interpretation according to parlance. 166 As soon as one refuses to accept a result because it is absurd, one has broken the unconditional surrender. At that moment one has already freed oneself of the conception that the formula of the law as it is written - i.e. according to the meaning which the parlance attributes to the words - has to be realized unconditionally. One has moved to the conception that the judge is searching for law and that in this he has to respect the authority of the written law, and of the words, but that in the end these words are nothing other than a tool to establish the meaning of the rule and the implications of this rule for the case.62167 The words do not have unconditional authority. Not even in the sense that the result at which the interpreter arrives in the end has to be compatible with the words, that the words indicate the outer limits which he is not allowed to surpass. We say his conclusion is allowed to stand next to the words but may not come into conflict with them.63 Even this train of thought is still too much attached to the primate of the words. It is true: the authority of language is great and an interpretation which removes itself from this authority in the end will not be easily accepted. Still this may be necessary. Everybody does it in the case of a slip of the pen or when an error has been made, for example when it says creditor when it should have been debtor. 168 One goes a step further when one eliminates a word from the Civil Code, because it has been written down thoughtlessly and leads to absurd results.64 And again further when one extends the period for lodging an appeal against the letter of the text of the Civil Code, as the Supreme Court did for the first time in 190865 and afterwards repeatedly. This is all unavoidable, but it is incompatible with the idea that obedience to the law means a subjection to its meaning according to parlance.169
If one follows this approach, then there is no boundary stone here for the one who seeks the law which he is not allowed to displace, but rather a tight rope which offers the utmost resistance, but which nevertheless is not only continuously bent, but can even be broken in an emergency. Without figurative language: there is an authority here, which must be respected, not one, which requires unconditional surrender. It is true that when the result of the interpretation is found, it will be reviewed again in the light of the words and it will not be easily accepted if it is clearly incompatible with the words. However, it is possible. 170
If one takes this view, it is also not difficult to point out when an interpretation according to the letter will prevail and when it will yield to another one. As I said before, it is impossible to set up general rules for this, but it is possible to indicate which circumstances have to be taken into account. A command asks for a more rigid interpretation than a provision. compulsory law will be understood more according to its words than supplementary law. In the former, the authority of the law speaks with more emphasis. The words used therefore carry a greater force. Moreover, a word will have more meaning when it is more concrete. A vague term is elastic, a concrete expression leaves less room to play. Furthermore, the authority of the words decreases as the moment of its origin is further away from us. This is related to the nature of the historical interpretation, about which more will be said below. As the law gets older and has been applied more often, the words are seen less on their own, and more in the context of their application.171
The authority of the words in a concrete command of a law that has been recently issued will therefore be the greatest. Nowhere will the interpretation according to the words be more fit than in the police regulations. When we restrict ourselves to the civil law, then, as far as our current Civil Code is concerned, the significance of it will be bigger in, for example, the juvenile law than in the doctrine of obligations.172
But of all this — although it certainly is not without importance — the significance is restricted to pointing out the direction we have to take. There is no rule, which must be observed in every interpretation of the law. This rule can be nothing other than: the authority of the language is big, but it is not the only thing. The parlance is in the end a given, which differs from the others only quantitatively and not qualitatively.
§ 11 The will of the legislator. Statute-historical interpretation.
The law is an expression of the will of certain agencies of the State, charged with legislation. When engaged in establishing the meaning of the law, what is more obvious than tracing the intention these agencies had in making these rules, according to their own account? It is therefore a continuous occurrence that we consult parliamentary history in order to interpret a law. Nevertheless, many authoritative authors have argued against the admissibility of this.66 Firstly it is said that the intention of the legislator, maybe could have been established if we had been confronted with the legislation of one single person, but cannot be known with our many-headed legislator, as not only the Crown and Ministers with their numerous assistants are charged with this task, but also such voluminous bodies as our Chambers of the States General. 173
How can we know whether what has been said by the Minister by way of explanation of a proposal has been assented to by the majority of the Second and First Chamber? Through their vote they did not accept the explanation but the legislative proposal. Moreover, even if we could establish that indeed all members of both bodies and the Minister and eventually the Crown had all intended the same with a certain rule of law, we would not be bound by this intention. The legislator can only give orders to us by law and by nothing else. What these persons, who embody the legislative power, think and want is merely their own personal opinion, which is of no more interest than the opinion of anybody else. 174
The criticism is valid if the claim is defended that the intention of the legislative agencies as derived from the documents exchanged between the different chambers of parliament and the parliamentary debates, is binding when it comes to finding law. Still too often people think that the question of the interpretation of the law could be decided with an appeal to an utterance of a Minister or Member of parliament. It is not the legislator, but the law that binds us. 175
But the question is wrongly put this way. What matters is not: either the will of the legislator or the words of the law; not either subjective or objective meaning. The written law is both a historical phenomenon and a factor, which is non-material but nevertheless real in contemporary life. The text of the law is both the expression of the will of certain persons in the past and at the same time a guideline for the present, which is independent of these persons, but it can only be the latter because it is also the first.
I as well want to distinguish between historical and juridical research and it won’t do here to appeal to the fact that legal historians, who want to understand the laws of the past, are eager to use everything which can clarify the intentions of those who drafted the laws, as is so often done to argue the significance of the genesis of written law as a means of interpretation.67 The historian wants to understand genesis and goal, he tries to uncover what the legislation said at the moment of its realization, the final purpose of the jurist is always different. Even if the jurist knew all this with complete certainty, this would not tell him much for his question: to which concrete application must this law lead me? For him, it is a given that the genesis of the law is only one thing next to others: parlance, efficiency, system etc. That which is final purpose for the historian, is a resource for the jurist, but it would be foolish to discard this resource. 176 An example from the most recent literature. People quarrel about the meaning of the word legal grounds versus legal remedies in one of the provisions of the Law of Civil Procedure. An attempt is made to determine the difference between grounds and means. In his dissertation on this subject68 P. J. de Kanter has pointed out that in the original draft of the law, the provision still had a section preceding the one which now stands alone, and which was left out because people thought it redundant. From this it becomes clear that “legal grounds” was not opposite to “legal remedies”, but to “factual grounds.”177 This doesn’t solve the practical difficulties relating to the question whether the judge should or should not add on the basis of his office to the defenses of the parties. However, it cannot be denied that this remark has had a clarifying effect on this confused issue, namely that this fact, which is provided by the historical research of the genesis of a statute, has authoritative meaning. Another example comes from my own experience. Recently the question has been put to me whether the requirement of summons in one of the provisions of the Civil Code is compulsory law. I answered in the negative and I may say that this result is partly due to the fact that I discovered that the fixed time by which the summons is relieved was added to this article in 1874 and that this was done to make it possible to renounce the requirement of summons. I therefore conceived of the requirement as dispositive law.69178
The research of the genesis of a statute can be important in two ways: firstly to establish the legal situation as it was conceived by the legislative power at the time the statute was made, which modification was intended and why it was intended, and further to find out which meaning was attributed to an expression used by the authors of the statute. The authority of the data provided by the parliamentary documents is larger in respect of the latter than of the former. It may be true that others have had a sharper eye for what caused the change of law than those who brought it about— although one has to be aware that the latter were of paramount importance when translating these wishes into reality. As far as the formulation in its narrow sense is concerned, the choice of words, certainly nobody can better explain what is meant by them than those who choose these words. I have already repeatedly said that this doesn’t determine everything, but it remains relevant. 179
If one wants to further determine this relevance, one has to keep three things in mind.
Firstly one has to pay attention to the author of the explanation that is cited. Definitions given by the Minister to remove potential doubts have more significance than an occasional remark of some member of parliament. But we can continue this line further: in this respect a greater authority is due to one Minister, than to another. If he is a man of great authority, who masters the subject of the law completely, then his word concerning the interpretation will have more weight than the word of someone who only reproduces what his functionaries have put before him and who appears to have the least possible knowledge of the subject during the proceedings in parliament, as sometimes happens. It is well known that nowhere has there been so much authority awarded to this statute-history as in in respect of our Penal Code.70
This is largely due to the great personal authority of Minister Modderman, to the conviction that this code was a monument of codification craftsmanship. And it is not even necessary to be a Minister or a member of parliament to enjoy so much authority. The preparation of the Bankruptcy Law was to an important extent in the hands of Molengraaff; that fact gives a special significance to his interpretation. The same can be expected for the new maritime law. It is not only a fact, which I ascertain, I also think that this distinction, which is incompatible with the doctrine that we are bound by an impersonal legislator, is completely justified. If the authority of the explanation of the authors of the law is based on their personal ideas about the meaning of the law, it is understandable that one is placed above the other.181
Secondly, here a distinction will have to be made between old and new law. In respect of an old code, one may compare a new commentary and an old one. The new one is composed with the help of parliamentary documents and analyses the provisions in a literal way. The old one is filled with practical cases, scientific constructions and case law. And this difference can also not only be explained but justified as well. The law gets more and more detached from its makers as its interpretation develops. The authority of the words fades away, and with it even more so the authority of statute-history. These will have to give way to an interpretation, which formed itself in another direction; that nevertheless it keeps its significance was shown by our example. Especially history, which was forgotten, also history of statutes, brings often clarification. 182
Thirdly the value of the explanation will be greater for a command than for a regulatory provision. It is more important to know what the person who gave a command exactly had in mind than what were the thoughts of he who merely regulated. The latter leaves more freedom; both later in time and immediately at the moment of the draft, the person of the legislator who makes such rules comes to the foreground to a lesser extent than he who explicitly expresses his will. Also, in this respect the authority of the words and of the intention go together and are both in opposition to the authority of history and system. Especially regarding a command, both the words and the intention have great value; if however attention is paid to the nature of the regulation, its character as a command, the words will have more value than the intention. But I repeat again: these are only indications; it is impossible to give fixed rules about the hierarchy of the factors of interpretation. 183
These two distinctions explain the value of the statute-history for the penal code and also the fact that this value decreases now. 184
This is related to the fact that these days people are generally less inclined to value the parliamentary history of the law less than in the past. To what extent this is justified follows from the foregoing.
§ 12 The unity of the law. Systematic interpretation. Conceptual Jurisprudence. Construction.
On page 50 we made the remark that the grammatical interpretation refers to a broader scope. The words have to be interpreted in the context of the sentence in which they are used, just like the sentences have to be interpreted in the context of the legal provisions, these again in the context of the statute and the separate statute within the context of the legal order in its entirety. 185
We cannot suffice with the law as an expression of the will of specific persons. Every new law becomes a part of the codification as a whole. This whole is not the work of specific persons; it is not possible to speak of an intention regarding this whole. It can be understood as a unity without any contradiction. This is implied by the character of the law as a command and as creating order. A contradictory command does away with itself, an order, which is internally inconsistent, is disorder. It has always been acknowledged that a new statute, which is in contradiction with an old one, annuls the old one. This principle (lex posterior derogat prori) is founded on the unity of the law. It is not a provision of positive law, but a logical condition of any positive law. 186
This unity implies that every legal provision always has to be interpreted in relation with other ones. The words of a certain article are often not only unintelligible before they have been related to those of another article, but we also try to understand the different legal provisions in such a way that they form a consistent whole. The one is seen as an elaboration, a completion or a deviation from the other. The science of law turns the mass of provisions, i.e. its data, into a system, by which the substance is reduced to the smallest possible number of principal rules. However here we touch upon a difficulty, especially concerning the finding of law.187
Everybody agrees that systematization is necessary. Like has to be joined with like, rules about the purchase of furniture, houses, lands and debts are joined together as rules for purchase; these are the rules about contracts together with the rules about rent, loan, deposit and so on. The rules, which are common to obligations from contract and wrongful act respectively are pointed out. And thus we can proceed. The pedagogical value of this all is clear. Nobody can learn the law if a survey of it has not been created by the formation of general concepts and a further systematization thereof. But is this systematization also significant for the finding of law?71188 It seems to be implied in the foregoing. Nevertheless, we are confronted here with a question which gives rise to a great doubt. It is this: is it permissible to infer (new) concepts and principles by way of generalizing legal rules which concepts and principles in turn contain the solution for questions of law which are not decided in the code? There are people who teach this, who believe in the so- called logical expansion-force of the law. Normally Karl Bergbohm72 is pointed out as a typical representative of this school; in our country Suyling is closely allied to it. To cite a very famous decision of the ‘H.R.’ (Supreme Court), can one conclude from the rule that an association needs recognition in order to be capable of acting as a legal person, and from taking into account the equal status of legal persons and human beings as natural persons, that also a legal person can only inherit when it existed at the moment of the devolution of the estate? This would mean that the appointment of an association as heir has no effect when the association misses this quality. 189 The Supreme Court accepted this in the famous case of the Museum of Haarlem.73 Or, to take another example with a less far reaching effect, in which such a method was used: is it allowed to infer from the existing regulation of attachment its general nature and deduce from this that attachment by garnishment only concerns the debts which existed at the moment that the attachment was levied?74 I refer to this example to make clear that the reconstruction of general concepts certainly doesn’t have to go as far as in the well-known legal person-proceedings but is often applied to rather simple questions of law.190
There are currently many people who deny this. They denounce this method as “Begriffsjurisprudenz” (conceptual jurisprudence). Logically, they say, it is impossible to infer from the rules at hand anything more than what they contain, something new is not acquired this way; there is no guarantee whatsoever that the legislator, when he gives some statements for particular cases, also wants to hold as a general rule the elements which these have in common. If the legislator issues different regulations for attachments concurrently, then it is certainly possible to derive from these the nature of attachment according to Dutch law. However, when one deduces a rule from this “nature” and applies this to the attachment by garnishment, one assumes that the attachment by garnishment has to be considered according to the general rules for attachments in this respect as well, and yet this is clearly not a logical necessity. 191
It is just as well possible that in this respect attachment by garnishment escapes the common tie by which the attachment characterizes the regulation of the different kinds of attachment respectively. If the natural person and the legal person are both persons, this doesn’t mean that they are to be treated the same in every respect, in particular it doesn’t follow that an existing relationship, which is moreover acknowledged by the law, has to be conceived of as non-existent. In this way conclusions are derived which appear to be logically conclusive, while in reality the judgment represents a valuation of the interpreter.75192
This all seems evident. It is not possible to speak of a logical expansive force of the law; I will return to this below. But this does not yet lead to the conclusion that the construction of concepts is of no value for the finding of law. To answer the question about this value, it is necessary that we again pay attention to the nature of the formation of law. Already in § 1 we pointed out that in the first place this concerns the application of rules. It may be true that it is not restricted to this, subsuming a case under a rule may not be a purely logical endeavor, but in spite of this the finding of law is at first sight the application of rules. 193
Now suppose that facts are presented to be qualified, of which it cannot be said immediately that they require the application of a certain rule. For example an installment contract has been concluded, which means that the parties stipulate that the one hands a good to the other, for which the latter pays an amount of money which will be paid in installments, under the condition that the ownership will not be transferred before the last installment is dealt with and that until that moment the paid sums will be considered as rent for the good which is given in loan for the time being. Can this be conceived of as a purchase? To decide this, we have to find out what the legislator meant with purchase when drafting the rules for purchase. We have to define the concept of purchase more precisely, to indicate its essence. We can do this by abstraction, which means to cut away all the particular and point out the essential. If we then arrive at the conclusion that the essential can also be found in the installment contract, we have “construed” the presented case as purchase. I think that nobody will deny the admissibility, yes even the necessity of this method. 194
In a practical sense, the same is done when research is not directed to a concrete given act, but to a type of acts, not to this installment contract, agreed to by X and Y in respect of a vacuum cleaner, but to the installment contract as used in the contemporary Dutch practice. The difference is only gradual, the object of study itself is found again by abstraction from a series of actions. And neither does it make a difference whether such a type of action is or is not defined by the law. It doesn’t make a difference for the method whether we decide that the installment contract, as known to the Dutch practice, is a purchase or whether we come to this conclusion in respect of this particular installment contract, which is regulated by the German law. 195
What we are doing again and again is including a case or a series of cases under a general class of relationships governed by certain rules and therefore under those rules.
In other words, when we systematize and find law this way, for example when we decide in respect of the more recent commercial law that the bill of exchange is evidence of an agreement, or when we are convinced that the firm is a legal person.76 and when we defend on this basis certain conclusions for certain questions, we are doing nothing other than execute that which is indicated by the simple work of rule application. The application of law is a logical process of subsuming. It is for this reason that the work of legal science par excellence is the logical activity of collecting data inductively, reducing these to general concepts and deducing from these new conclusions. Administering justice is always treating like cases alike. However, the similarity of cases can only be found by the intellectual activity of conceptualization.
We can also express this thus. Every judicial decision is not only the application of the rule, which is being directly enforced, but also of many others: the legal order is a unity. In any decision about purchase, the rules of contract in general also have to be applied. Therefore, if the installment contract is conceived of as a purchase, then in the decision about such a relationship the rule of contract in general also has to be enforced. If the bill of exchange is seen as evidence of a contract, then everybody who has to answer a concrete question about the law relating to bills of exchange will have to take into account the rules about documentary evidence and contract. When the general partnership is deemed a legal person, the answer to questions of a procedural nature, such as whether an independent defense of all partners respectively is admitted, or whether a partner can be called into the case against the partnership and so on, will be different than when corporate personality is denied.77197
But people will ask, is this not simply re-introducing the conceptual jurisprudence, which was just rejected? By no means, I would say. Its mistake is not that it uses a systematic way of conceptualizing when finding law — that is done by everybody — but that it uses it in the wrong manner and attributes decisive force to something, which is only a resource in the search for law. The mistake is not the use of a logical argument, but the incorrect use of it, not the acceptance of the method, but the subjection to it. This is the result of the, often adopted, intellectual attitude which surrenders easily to that which appears to us as logical necessity, as if to an absolute sovereign. 198
The following argument seems conclusive: the association is not a legal person, therefore it doesn’t exist, to be able to inherit one has to exist, therefore the association cannot inherit. But the question is whether there isn’t a broken link in this chain, whether the fact that the association and the human being both are a person in respect of the law does indeed imply that “the existence” of natural persons and legal persons can be seen to be equal, and specifically whether from this conclusion we may derive that the appointment as heir is void. Before we accept this, we have to test the result in another way. The logical-systematic method exists next to other methods, it doesn’t exclude them. 199
We have said that the search for law is the process of subsuming cases under rules. But as we have stated repeatedly it is more than this. It follows from this that the method of systematizing, the construction by which this logical activity proceeds, is not decisive in itself, just as any other activity is not. 200
Before we further point out its significance, we still have to make some remarks about the construction.
§ 13 Construction (continued). Fiction.
There are few writers who have said so many nasty things about the Begriffsjurisprudenz a as Jhering. As he grew older, he made bitter game of it. What he wrote about the construction in his first period, is still the best that has been stated about it up till now.78 Many things are out of date, but every systematician will have to agree with the three requirements to which, according to him, construction has to comply: that it covers the matter of positive law,that it is not internally inconsistent and that it also complies with aesthetic requirements.201
Covering the matter of positive law. Time and again a doctrine which was generally accepted appears not to cover the matter of positive law in its entirety; it has to yield to another doctrine, which doesn’t show the fault of its predecessor, but probably will in the end have its weak point too at a completely different spot, which will lead to its decay. When we restrict ourselves to the matter, which forms the content of legislation, there are in the law of recent days many examples of rejection of old and construction of new doctrines.202
We will take an example from each of the volumes of the Asser Serie. When the doctrine is rejected that the association which lacks legal personality must be considered simply to be non-existent, this happens partly because this doctrine is inconsistent with what is written about corporate bodies in the Civil Code.79 When possession for one year is defended as a requirement for a possessory action, this happens because the doctrine, which defines any transient control as possession, is incompatible with the provision in the Civil Code, that a seizure against the will of the possessor does away with his possession only after a year of peaceful possession by the intruder.80203 When Houwing posits his new doctrine of force majeure, he leans in the first place on the text of the Civil Code and states that it is incompatible with the old doctrine.81 When Meijers decides that the debts of the deceased are only transferred to the heir after his acceptance, this is partly due to the words “who have accepted the inheritance” in the relevant provision of the Civil Code.82 When Anema confronts the material probative force of a deed with the formal one, which according to the prevailing doctrine of those days was the only one, then his argument is base on conformity with the Civil Code.83 And like this one can go on for ever.204 Doctrine is not allowed to contradict itself. Jurisprudence, the abstract view on law, and its summing up in one single concept ask for logical unity. What other than the objection against such an internal inconsistency made Hamaker reject the conception that the transfer of ownership of immovable property takes place by the entry of the deed in the registers? How could an alienator make a transfer through the act of a public servant, which is performed in virtue of an instruction by the acquirer?84And when many people refuse to accept the German concept of the owners mortgage, what else is driving them than the consideration that the mortgage as the entitlement to the property of another, as a restriction of ownership, cannot be in the hands of the owner? There is a logical inconsistency with which they cannot cope. 205
Finally the aesthetic. What other than aesthetic requirements make us reject time and again a certain concept as being “artificial”? We want simplicity, we prefer clarity to the distorted. The science of law, like any other, stands in need of a clear exposition. The man of science is certainly not in the last place characterized by the power of imagination. This was probably never so powerful as with the Romans. Just think of the obligation as a legal bond (vinculum juris) and everything which is made intelligible for us by this. The association and the State are both persons similar to the human being from the legal perspective. Through this image something can be grasped which otherwise would remain dim and uncertain. By the imaginative force of language, it becomes possible to summarize rules and create new concepts in cases where we would otherwise remain stammering with ever more cumbersome phrases. Without image there is no creation of concepts; after what has been said, there is therefore no need to explain any further that the formation of concepts is not mere “fancy”, as is argued especially regarding the legal persons. 206
Jhering pointed out something else. It is what he called the law of economy, the necessity to master the matter with as few concepts as possible. The fewer, the more simple the coherence, the stronger the law forces itself on our mind, apt as the mind always is to think in logical schemes. The use of the concept of the legal person, the extension given to this by the foundation, is an example of how very different relationships can be controlled with the concept as an expedient. Also understanding both things and rights to fall under the same concept, which makes it possible to have the possession of rights exist next to the possession of things, and to apply the rules of possession to them and also to work with “rights on rights”, such as a pledge of a claim, and an usufruct of a right of emphyteusis. 207
There is ever more abstraction, an ever more tightly constructed building of the law. The course of the argument becomes more and more conclusive, it appears ever more convincing. The one is implied by the other with logical necessity, there seems to be not a single weak spot. But at the same time the danger increases that people forget, that the construction is an expedient and not a goal; that one loses sight of the fact that in such a logically built system the law is never absorbed completely. The chance increases ever more that essential elements are lost through this systematizing, that the construction is dominant were it should merely serve. 208
The objections are not raised from a logical perspective, but from a different angle: right and thing both united in the same concept — OK. In some cases this is a useful way of conceptualizing, but at the same time the chance is great, that it will be forgotten that there are differences between the one and the other and that as a consequence of this, the equalization of that which in the end is not equal, leads to injustice. An example is provided by the right of pledge. It is forbidden for the pledgee to appropriate the pledged property if the pledger doesn’t pay his debt. A pledge on a claim is a pledge like any other. Collection of the claim would mean an appropriation of the pledged property. This is why a pledgee is not allowed to cash the pledged claim when his debtor is overdue.85 The Supreme Court has decided accordingly.86 A construction, which is correct, but which nevertheless has to be rejected; it collides with the aim of the granting of a pledge. It is understandable when, because of this, the method of construction is sometimes set aside completely and rejected as faulty; understandable, but incorrect: a science of law without construction is inconceivable. 209
The fiction shows most noticeably the inclination to systematize, to comprise the matter under as few rules and key concepts as possible. We distinguish between the fiction and the presumption. The presumption in turn is divided into the presumption for which counterproof is allowed (praesumptio juris) and the presumption for which this is not allowed (praesumptio juris et de jure). The former is nothing other than a rule about the division of the burden of proof: the legislator assumes the presence of certain facts or relationships: whoever claims otherwise has to prove this. 210
That the property is presumed to be unencumbered means nothing else than that whoever claims to be entitled to goods, held by somebody else, has to provide evidence for this entitlement. The child who is born during the continuance of a marriage is presumed to have the husband as father. If a husband wants to assert the opposite, he will have to prove this. The presumption for which counterproof is excluded draws near to fiction. The legislator posits a general rule; the difference is merely that he takes that which normally happens as point of departure regarding the praesumptio juris et de jure and assumes this to be the case in a situation which was probably different; however in the case of the fiction something is assumed to be the actual situation which is clearly not true. A donation to the children of the second spouse is considered to be an indirect favor to this spouse and is therefore punished with nullity in the Civil Code. 211
We call this a presumption, because most probably the intention of the remarried person will be as the law presumes, — it would have to be called a fiction, if we didn’t try to find out if this intention actually existed. The law uses a pure fiction when it considers in art. 3 Civil Code the child with whom a woman is pregnant as being already born whenever this is in the interest of that child. A distinction which certainly exists and is explicitly stated, is put aside, to be able to make a whole set of rules applicable in a simple way. One has to take the interests of the unborn child into account; it is not easy to have an overview of and regulate all the cases in which this may be necessary. It seemed easier to consider the child as already born in all cases in which its interest would require this. The fiction makes an economic use of rules and concepts possible and in this respect, there is nothing against it. 212
But not only the legislator, the one who posits the rule with authority, uses the fiction, science also does. “Construction” and “fiction” merge. Is it fiction or construction when the act of the representative is said to count as the act of the one who is represented? Is it feigned here that the represented person acted, when his representative spoke certain words, or is “acting” understood to comprise not only what one does oneself, but also what one makes others do. In the construction there is an inherent element of fiction. To conceive of facts in terms of a rule, and of a concrete rule in terms of a general rule, it is necessary to put aside the particularities of that which is given. Application of law is not possible without simplification of the information.87213
The difference between this method and fiction is merely that the simplification which is made for the benefit of the construction leaves out part of the facts, while by the fiction the researcher adds facts which were not presented to him by the case. In my opinion this is never allowed. Every construction is allowed to have an element of fiction, it is never allowed to become a fiction, and this happens as soon as it assumes certain facts. The actual situation is the point of departure for law, it is not produced by it. It is noteworthy, however, how often such feigning happens. People want a certain result, because it appears to be fair and satisfactory: it is not attainable with the existing rules; by portraying the facts a little bit differently than they actually took place, the result can be obtained. Isn’t it natural that one will see the facts as one wants them to be, but as they certainly were not? Let it be clearly understood: I don’t say that any jurist does so consciously; everybody senses the unlawfulness of this method, but still it happens unconsciously continuously. 214
Many examples can be enumerated. People want a certain legal effect in a contractual relationship; the parties were silent in respect of the relevant issue. How easy it is to state that the parties, who are presumed to have intended what the judge thinks they equitably ought to have intended, have indeed actually intended this, which means that they have agreed in conformity with what the judge decides to be equitable. Anyone who wants to verify this should inspect the administration of justice regarding the interpretation of contracts: how often it is stated that the parties are considered to have intended something, to which they simply have paid no attention when they entered into the contract? “Apparently” the parties have intended to apply Dutch, French or German Law, as it is said in the administration of justice of the International Private Law, while a research directed at the ideas of the parties would have revealed nothing other than a negative result: parties have agreed nothing about the applicable law, but from the perspective of his conception of justice the judge deems the applicability of the chosen law to be the best conclusion. 215
Take note also in what way a new conception often forces its way. Partial dissolution of agreements appears to be desirable, it seems worth having a preservation for the past and a dissolution for the future. The doctrine on the applicable civil law opposes this conclusion. Non-performance is a resolutive condition and by the occurrence of that condition the agreement is dissolved in its entirety. It has been stated like this for years by doctrine and case law. Then it is pointed out by Suyling88 that the relevant provision in the Civil Code is regulatory law, which means that parties are only allowed to enter the setting aside of the agreement for the time to come in case of non-performance. Doesn’t it go without saying that when they didn’t do so, but when they have a relationship which is such that a dissolution of the contract as a whole would be inefficient and unjust, like with a supply-contract, they would have intended to do so, if they only had thought of it, and therefore (in fact) have intended it? The Supreme Court adopted this construction.89 It can be applauded that it did so; nevertheless, it is a fiction. 216 One can also think of the way in which beyond agreement guilt is feigned in order to decide an obligation to pay compensation in cases in which equity dictated it, but the strict system of the doctrine excluded it.90217
Such fictions have been of great importance for the development of law and they will continue to be so; they partly serve to solve the continuous clash between new requirements and the existing system, but they are fictions and therefore become useless, as soon as they are seen this way. For it is impossible to use such a fiction consciously. It gains a character of untruth; it is no longer convincing as soon as it is recognized as such. As long as it is not understood, it is useful as transition; as soon as it is pointed out as such, it has to be rejected.
This is a requirement of truth, to which science will always bow. To hold on to a fiction in such a case is not only dishonest, it also hinders the development of law instead of advancing it. Once it is understood that it is the law and not the intention of the parties that asks for the application of a certain national law or which considers a partial dissolution possible, a further elaboration is only possible when people drop the fiction. Otherwise one remains in half truths.91218
§ 14 Construction (continued). Correct and incorrect construction. The construction and the power of the legislator. Concept of law and the basic logical form of law (legal category).
After this digression about the fiction, let’s return to the construction. There are still some questions to answer, which can be asked about its character.
Firstly this one. Is it possible indeed to describe constructions as correct or incorrect, or is Tourtoulon92 in the right, who surely doesn’t underestimate in other respects the value of this scientific work of systematizing, when he states that the one construction has not much more value than the other and that it is mere personal preference when one choses, accepts or rejects here?
It is merely the question what one defines as “correct”. Every science has its own demands. Even now people are still inclined to identify the correctness of a scientific proposition, in whatever domain, with its provability in a mathematical sense. Apart from mathematics however, the search for and the acceptance or rejection of certain conclusions is in any science only partly the work of such an argumentation from one proposition to another93 we reach results in a different way rather than through a logical conclusive chain of arguments. A construction can never be proven. Already the fact that we can point out three elements in a construction: the covering of the matter, the logical unity and the form, and that between these three there is no fixed hierarchy, shows that we cannot be speaking of a logical argument here: the construction has to be like this and not otherwise. But this doesn’t mean that it is personal preference that decides a result of science. 220
It is always the totality of the arguments which gives rise to the conviction — not only in the science of law. For us, therefore, the three elements together to which I referred. When Tourtoulon as an example, refers to Touillier’s construction of the marital community property, which according to the latter doesn’t start until the community is dissolved, it was not a personal aversion, but the logical contradiction inherent in this conception, which led to the general rejection of it by French jurists. On the basis of this defect we are entitled to say that this construction is wrong.221
And if I may refer to myself once more — when I rejected the construction of the commercial partnership in terms of a community of joint hands and replaced it with the legal person, the reason for this was that it appeared to me that the construction of the legal person most correctly characterized and summarized the positive rules given by the judge-made law, such as the separate liquidation of the property of the partnership and the private property in case of bankruptcy, or the refusal of compensation of the debts of the partnership and private claims, or the fact there is no attachment for private claims to the property of the partnership etc. Most correctly in this respect means more in conformity with the positive matter. 222
But there was something else that made me choose it. This construction not only covered the matter more adequately, it also made it possible to give a better answer to questions to which the answer had not yet been found, or at least the answer given was unsatisfactory, especially concerning procedural issues. “Most correctly” in this respect means most in conformance to justice.
We touch upon a problem here, which until now has not yet been discussed. A construction is only correct when we can work with it, when it not only makes that which is established as positive law more intelligible and imaginable, but also makes it possible to proceed i.e. to give satisfactory answers to open questions. In the end it is justice to which we aim. Because this justice demands that like cases are treated alike, we serve it by searching for similarity in the numerous data and by detecting it where it was not yet recognized. But as similarity is always relative, similarity in the dissimilar, there is not one result of constructive science, which in itself can be established with absolute certainty and it will be necessary to test if it is just. We will see in the course of this book how this happens. Here it suffices to point out that the construction will also have to serve the demands of justice.223
People have expressed this by demanding that the construction should be efficient. This term can be useful, because it makes clear that in the law we are always oriented towards the future, a goal: to bring about a concrete law, to end a legal battle; but it is confusing when people understand efficient to mean freedom of choice and forget its ties with the positive data, with logical and aesthetical requirements. A construction, which enables a desirable result, but doesn’t take these requirements into account, is not a construction. It is nothing else than dictating a result and is worthless; it doesn’t explain why that result is desirable and therefore it will have no value for a new issue of law, that has not yet been decided. 224
The correctness of a construction is not only determined by these demands, but also by its meaning for the search for justice. When we speak of adequate and inadequate constructions, we have to keep in mind continuously that the science of law is always simultaneously: systematizing that which is and preparation of that which ought to be. The former is enclosed in the construction, but it is worthless if it is not done in view of the latter. 225
We have come this far as to the question of correctness.
Secondly, we have to describe the relationship between the constructive science of law and law somewhat further. This is best done by asking ourselves this question: the legislator (or whoever creates law) has the authoritative disposal of law; is it also in his power to determine the construction? Are we bound by his constructions?
People sometime make a sharp separation between law and the science of law. Kelsen94 even goes as far as stating that the law comprises an “alogical material” and that it is the science of law which turns this into judgments and “Rechtssätze”. Those who see the construction, just like we do, as nothing other than the continuation of what the legislator does himself: regulating by general commands and prescriptions, cannot subscribe to this judgment. The one is an extension of the other. A modern Code is full of constructions and cannot be understood without knowledge of the science of law. When this is true, it is clear that we have to obey the legislator also when he uses constructions to command and prescribe. When it is written in the Code of Commerce that a company limited by shares is a legal person, this is without any doubt a construction. Then it is also clear that as far as any command is comprised in this statement, this article is as binding as the preceding one or the next one. 226
Yet there is a problem in this. We can clarify this with the help of the example, which we referred to earlier. We accept this statement readily, but this is easy for us, because the regulation of the company limited by shares is, in all its details, completely in accordance with this general statement and nothing is stated other than what science already accepted generally. But what if this had been otherwise? If the authority which creates the law — that in our example this is not the legislator, but the judge, doesn’t matter — decides that the general partnership is not a legal person, then we contest this conception and have no inclination at all to see it as binding. On the contrary, we think — rightly or wrongly, also this is unimportant — that this decision is contrary to the rules referred to above (block 221), which are posited by the same authority for this relationship, and we think that it has to be rejected as faulty for this reason. 227
Are we allowed to do so? How can this be reconciled? A decision of the law or of a judge has authority, and at the same time we say that it is faulty, incorrect, and by this we do not mean, that it shouldn’t be law, but that it isn’t law. How could a decision be at the same time binding and not-binding? 228
To solve these problems, we have to dwell a little longer on the nature of the science of law. I do not mean legal history, legal sociology or legal philosophy, but the science of the positive law, in other words the science, which sets up the constructions dealt with in this paragraph. We have seen that the construction seeks the general in different regulations, climbs up from the particular to the general and tries to master the system of law with concepts, which are as abstract as possible.
Finally, it encounters in this way concepts, which cannot be reduced any further. However, in doing so it has reached another level unnoticed, it doesn’t work any longer with the concepts with which a certain regulation of law is summarized, but with the logical basic forms of the law itself. When we say that the company that is limited by shares is a legal person, we have set such a step: the company limited by shares is a legal concept, person is a basic form. When we analyze the obligation and recognize a duty and a sanction in it, we also cannot reduce the duty any further; the legal duty is a basic form of law. 229
We can understand this contraposition between legal concept and basic form in the easiest way, when we see that we disengage ourselves completely from any system of positive law when we define the basic form. The character of a company limited by shares is determined by the positive law; we can talk about a company limited by shares according to Dutch or German law, but it makes no sense if we would say: according to German law the legal person is this, according to French law such; the description of the category has to be suitable for both. The other way round it also doesn’t make any sense to establish what the company limited by shares according to Dutch or English law may have in common. By doing this we do not come any further in a juridical sense, and cannot make any use of the concept, which is thus found. 230
The national law determines which phenomenon is a company limited by shares, also which phenomena are legal persons, but not what a legal person is. Do not think, however,95 that we attain this category by looking for the similarity in different legal orders, nor that these are therefore nothing other than categories which are more general than the most general in a specific system of law. Every legal system is certainly a system of commands and prescriptions; in this system it is a will that speaks to us, that demands obedience. Inside this whole we can systematize rules, but outside it there is no bond which connects these rules. Every legal concept contains a rule, which is binding. Where would this binding originate from if we were to go outside a certain system? For this reason, it is not possible to climb up legally speaking by further generalization to a general concept, which is valid for different systems. However, it is possible indeed to detect categories in those systems, which the human mind follows when creating law.231 Legal subject, object, legal relationship, subjective right, legal duty, injustice, also legal ordinance, authority of law, all these are categories, which have to be established by legal theory. This theory can be sharply distinguished from the science of the positive law, as it studies the concept of law in itself. The latter has been acknowledged already a long time ago; we can only say that something is positive law, if we have a criterion which we can use to recognize law; we can never derive it from the positive law itself.96 But the basic forms also cannot be deduced from any legal content; this can already be concluded from the fact that they are themselves without content: no duty for anyone can be derived from determining what a legal duty is. Who is bound, to which obligation, it all follows from the rules which are established by an authority and not from an analysis of the nature of an obligation.232 In this respect law and language are similar: the human mind is bound to certain conditions regarding the forms which it uses when making law or language. These we find everywhere: it is rather the existence of such a category that makes a comparison possible, as remarked correctly by A.Reinach 97 than that it results from a comparison and generalization of the content of different legal regulations of different countries and times. But this doesn’t mean that the categories can be known apart from the positive law, least of all, as Stammler98 says, that they can be derived from a conceptual analysis of law. But it is not the positive law in itself which is the object of study of legal theory, neither is it the positive law of a certain people, nor that of many peoples and times, but the positive law as an expression of the law-creating mind.233 The theory searches for the categories used by the human being when he takes a legal decision, not in the positive law but in relation to the positive law. The categories are an element of the function of our mind, which we try to understand; the legal theory is related to logic and philosophy of language. When we conceive of its task in such a way, it makes no sense to ask, as de Tourtoulon99 did — and answered in the affirmative — if the categories would also be in force, if there were no positive law. Surely, they are the conditions of positive law; as assumptions of the positive law, they precede the law logically — as is said — but it wouldn’t even have been possible to question their existence, had there been no positive law. 234
When we keep all of this in mind, it is also possible to answer the question regarding the value of the constructions made by the legislator. The legislator is bound by the categories, which are studied by legal theory. It is simply impossible for him to put them aside, just as it is impossible that somebody could choose not to use the forms of our thought which logic uncovers, or those of the language which are studied by the philosophy of language.235
As legal theory pertains to knowledge, it is also clear that statements of the legislator on this subject will make no sense and will have no more value than the statement of any human being. A legislator, who plucks up the courage to determine what a legal duty or a legal person is, acts foolishly. His word is spoken into thin air and will meet no response. Therefore, this never happens, or hardly ever. But the legislator does repeatedly make statements in which he refers for his prescriptions to the legal categories, which are used in them, thus making the step from concept to basic form to which we referred above. The provision which states that the company limited by shares is a legal person is one of these. 236
We can interpret such a statement in two ways; on the one hand it is a prescription, command, declaration of will, on the other hand it is a scientific proposition. As a declaration of will it has to be interpreted like any other and has the same authority as scientific proposition it is open to the same criticism to which any scientific statement is subjected. When we assent to the proposition, there is no further trouble. When we reject it, this is not only important for science, but it also affects the statement as prescription. The reason for this is that the rejection confronts us with a contradiction. 237
Let’s take again the example of the general partnership, and again I ask the reader to pay no attention to the fact that this relationship is determined by the judiciary and not by the legislator. If people find this is difficult, consider that the law once said what is now taught by the doctrine of judge-made law. It is this: on the one hand it says that the general partnership is not a legal person, on the other that rules about bankruptcy, compensation and attachment are in force, by which the company is distinguished from the partners. If it is true that these rules are only intelligible when we assume that the category of the legal person is applied here, the first statement cannot be scientifically true, but then it also loses its authority as a prescription, because it contradicts the latter. 238
For the one who seeks the law then there is only the question left to which he must attribute value in his search for law: to the rules, which contain certain positive statements about certain legal effects, or to the abstract prescription, which is in conflict with these. He cannot follow both. In my opinion it is without doubt that the latter has to be rejected because it is scientifically incorrect100 and because in essence it was nothing other than a statement about scientific truth, that only gained another meaning as a result of the person who made it.239
It is here that the power to have disposal of the law finds its limit. It is bound to the logical forms of the law. These are an “a priori” for that power, in the same way as there is a social and ethical a priori for it. Both these will be further elaborated in the course of this book, here we are only concerned with the logical conditions of every legal judgment. 240
One should realize however that by pointing out the categories, one has by this alone said nothing yet about the substance of the law. It is not possible to derive any concrete legal provision from the categories. These are completely empty. Again, there is always the danger that a category of legal theory is treated as if it is a concept of positive law enabling the deduction of certain conclusions. Nobody has had such a sharp eye for the nature of the categories and legal theory as A.Reinach; especially he, however, has fallen prey to this mistake so badly.101 As a consequence, people have also lost sight of that which is certainly the pre-eminent importance of his distinction between legal theory and science of positive law.241
At the end of this paragraph there is nothing left for us to say, but a short summary of what we have established about the significance of the construction for the finding of law. The finding of law cannot do without the construction, because the law has to be understood as a unity; the construction, however, cannot do without the theory, because when further systematizing it, has to fall back on the categories of the law, produced by the function of the human mind. The law is found conclusively only when it is also understood. As long as we are confronted with something we sense more or less vaguely, but do not see clearly, we are not yet completely convinced. We ask further: we think about the matter fully until we can unify everything with the help of the basic forms. However, we must always realize that no attempt will ever reach this goal. The law will never be completely absorbed by the system, if only, because it varies and changes every day.242
It is impossible to give a short answer when asked for which regulations the construction has a great value and for which a small one. It can be useful everywhere. It can only be stated that it’s meaning — and thus also the meaning of finding law with the help of systematizing — increases the more the legislator has expressed himself abstractly, and thus himself has started to systematize. For us its importance is greatest in the law of obligations. When the legislator establishes a general part, as the German legislator did, it will only be possible to understand this and therefore to apply it, when the method of finding law is strongly constructive. For such rules the grammatical interpretation does not have much significance; these rules enforce an interpretation, which attempts to reach its results by intellectual efforts of a logical nature.243
§ 15 Analogy. Refinement of law. Principle of law.
It is possible that a legal question in a concrete case can neither be answered with the help of interpretation of the law according to common parlance or the intention of the legislator, nor with systematic interpretation. 244
We already saw that people often seek refuge in analogy. To return to the example that was used there: the law determines the consequence for the tenancy agreement when a leased property is sold: the legal relationship that existed between the vendor-landlord and the tenant, will exist henceforth between the latter and the purchaser. However, what if the landlord doesn’t sell his house, but gives it away, leaves it as a specific legacy or brings it in as capital in a company? What will be the consequence of this for the tenancy agreement? The answer according to case law is that even then this agreement will pass on to the one who obtained the ownership of the real estate. We are confronted here with analogy; a rule is applied in a case that is not covered by it according to the wording or intention of the rule, as far as this can be known, but which is similar to the case that is covered by such rule. What is the argument that supports this method?
Sometimes analogy is really close to the grammatical interpretation. The boundaries of the meaning of a word are not fixed forever; it is possible that the wording of some legal prescription comprises more than usual; the application of the legal rule itself can lead to an extension of that domain, however there will always be a boundary here, set by the parlance in general and by the legal rule in particular. What is our legitimation to apply a (legal) prescription to a case for which no legal rules are made? Donation, legacy or capital put into a company are not the same as selling and yet we assume that a rule of selling applies to these actions. Why? 245
The answer will have to be, that treating similar cases equally lies in the nature of finding law according to a general regulation in the written law.102 However, is there really similarity; did we not just say that donation and providing capital to a company are not the same as sale? If we answer this in the affirmative, this means that we deem unimportant whatever difference there may be between these actions in this case. However, we can only reach that conclusion by analyzing the legal rule that we are considering applying. In the clash between the interests of the one who has purchased a property and doesn’t want to bother about a tenancy agreement he didn’t make, and the one who had obtained a right to a property and doesn’t want to bother about a contract of sale made afterwards by his landlord, the law puts the latter first. 246
The tenant’s enjoyment during the period for which he rented is assured. His interest prevails. But why only in relation to that of the purchaser and not to that of other acquirers? There is nothing in the purchase and its difference with the donation which could explain this. What the meaning can be of the fact that the acquirer got the property by virtue of purchase, we cannot understand; it doesn’t matter for these relations. In other words: we think we are justified to climb up from the particular rule for sale to a general rule for alienation, to see the sale as nothing more than a coincidental element, which was taken as point of departure by the legislator, solely because it occurs most frequently.247
According to this view, finding law by analogy is closely related to finding law by construction. From the concepts of donation, sale and providing capital to a company, we construct the concept of alienation, with the help of which we form a particular rule into a general rule and conclude that the law is applied by analogy. With construction we subsume a case under a general rule; with analogy we convert a particular rule into a general one, which is not written down in the law, and then derive from this general rule a conclusion in a particular case: first from sale to alienation, then from alienation to donation, providing capital, and then also to specific legacy.248
The pendant of analogy is the refinement of law. In analogy a rule that was more or less particular is generalized, in the refinement of law a general rule is limited by particular exceptions. We have already cited the example of the limitation of damages if there is co-debt on the part of the plaintiff. We could add the example of the limitation of the statutory regulation of the notice of default, which is also due to case law. This regulation acknowledges only one exception to the requirement of a notice of default as a condition for compensation of damages; namely, when the obligation itself entails the generation of default by simply exceeding the period. In practice several exceptions are accepted, such as that notice of default is not needed in the case of positive breach of contract, when the debtor has admitted to be in default. The reader who wants to trace the slow development of this refinement of law, should read the articles of H. L. Drucker in the Rechtsgeleerd Magazijn of 1909 and 1910.103249 In a methodological sense there is a strong analogy here with the analogy. Regarding the refinement of law, we also come to our conclusions by analysis of legal rules and by understanding these as stemming from a general foundation. Here, however we don’t do this to establish the equal in the unequal, but rather the unequal in the equal. Even in the case of co-debt the injured party can invoke the letter of the law which prescribes compensation for damages, but this rule — although it may be general — is in its turn derived from a more general one: where the guilt is, there the damages should be.104 And this principle requires that a distinction will be made between cases in which the injured party is to blame and cases in which this is not so. In the same way people look for the foundation of the provisions for notice of default and find this in the rule that only the debtor who knew that an action was required from him at that moment has to pay damages for doing nothing. But if this is correct, this means that the one who has declared that he will not perform, cannot expect that he still will get a warning.250
The construction is a classification: we aggregate certain concepts and arrange them in a hierarchical order in which the higher comprise the lower. Analogy and refinement of law take place with the help of such a classification, yet their nature is different. Here we reduce certain rules to other ones which have a more general meaning and which are understood as the foundation of the rules of positive law. For example, we see in the general rule that the tenant has to prevail over the acquirer the foundation for the rule of positive law that purchase does not break rent and in the general rule that where the guilt is, there in the end the damages should be the foundation for the positive law settlement of compensation in tort. We certainly do not always realize this; we are inching onwards here, as ever; we see more similarities, than we can comprise effectively in a formula, but this doesn’t alter the fact that analysis of what we do when using analogy, always leads to this conclusion.251
We are looking for the ratio legis, as it was called in the past. Now it is possible to reduce again the rule that was indicated as foundational to another rule, and so we can go on, but also here, just as when searching for the general concept to which a particular concept can be subordinated, we come to a point where we can’t go further and here, like there, when we have reached that point we have come to another level. We have come to that point here, when we formulate a statement, which is for us — people of a certain time living in a certain country with a certain system of law — immediately evident. Where the guilt is, the damages should be is such a statement. We call this a legal principle.252
A legal principle is not a legal rule. Were it a rule, it would be so general, that it would either say nothing or too much. Direct application through subsuming a case under a principle is not possible, for this the principle must firstly turn into a rule by adding a more concrete content. When forming such rules principles will clash; one will push in this direction, the other in that direction. The principle is therefore not law, but no law can be understood without these principles. They are the orientations which our moral judgment requires from the law, general conceptions, with all the arbitrariness which their general character brings about, but which still cannot be missed In the principle we touch on the moral element in law, just as in the basic form we touch on the logical. In the end finding law calls on our moral judgment. This happens in the first place when a concrete case is decided — this issue will be treated later on — but it also happens when one is trying to trace a legal principle in the system of law. Then we can only indicate something which is ethically accepted by us. 253
It is one of the most important functions of legal science to trace the legal principle in the positive law. It is truly not only important when we are confronted with the question whether we will apply some legal provision by analogy or whether a limitation of the general rule through refinement is allowed; also in the systematic arrangement, when we combine certain provisions, we ask ourselves if they stem from the same principle and therefore can agree with such a combination. Each time we hark back to the legal principle. 254
It could be that we find the legal principle by pointing out the common element in provisions which at first sight have nothing to do with each other. J. H. Thiel105 previously had luck this way when he uncovered the principle of the protection of the good faith of third parties against the actions of the contracting parties both in the law relating to bills of exchange, to the acquisition of ownership and in art. 1910. This principle contains the idea that when a party assumes that a relation between certain parties is in fact as it appears to be, he may trust this appearance and is protected against the contracting parties as a consequence of the way they arranged the outer appearance of their legal relationship, in as far as he acts on the basis of this trust. 255 The principle can be pointed out in numerous other relations. Once uncovered it throws light on provisions which had not yet found a sufficient explanation, such as, for example, the protection of a third party, who obtains a movable property from someone who turns out not to be the owner, against the owner who reclaims the property. The same principle can be used fruitfully in further research. I thought for example that I could apply it when discussing the issue of retrospective force in the case of a dissolution of a sale of immovable property and the influence of this on the property rights, which third parties have acquired after the sale.106256 The rule in the Civil Code that “possession amounts to perfect title” can be regarded as a statement of principle. When the legislator gives a formulation which is so general, that direct application by way of subsuming is not possible, then it is a principle.107 We are confronted here with the line between rules which are kept general, and principles. Those who think that the provision in the Civil Code implies that the possessor of movables is also proprietor, may call it a legal rule, although in my opinion they will be helpless when applying this in our system of law. Others will believe, like I do, that the provision sums up two rules in one i.e. 1.“the person who in good faith obtains a movable in return for payment from somebody who is not the proprietor, will become proprietor” and 2.“the possessor of a movable is presumed to be the proprietor of it”. They will conclude that the unification of these two rules in one formula indicates a legal principle and that this legal principle is on the one hand related to the principle of the protection of good faith of third parties and on the other hand to the idea of the so-called conservatism in law (beati possidentes). 257 258
Two other legal provisions, the first in the Civil Code and the second in the General Provisions Act, obviously are nothing more than general assertions: 1. that one is bound by the agreements that one concludes and must perform them good faith; 2. that agreements that are contrary to the law or morality have no legal force. The rediscovery in our days of the extension of the contractual obligation outside the contractual content and at the same time its limitation by the principle of good faith, is of extraordinary importance for private law. But the regulation, which is founded on this, only gains actual meaning if the principle is elaborated in specific provisions. What use has the principle, when it is not actualized in particular rules?
In the end it is possible that the legal principle is neither explicitly stated, nor derivable from specific provisions, but that it is a basic assumption of the regulation of a legal domain as a whole, or sometimes of the law as a whole. In procedural law the principle of the equality of the parties is an example in this respect, entailing the requirement to give both parties equal opportunity to defend their point of view (audi et alteram partem). Another example is the aphorism: if no interest, no action. In the penal law the assertion: no liability under criminal law without guilt is an example of such an implicit principle,108 while in the end the binding by the law itself can also be considered such a principle.
The thesis that there are implicit principles, and that these do not turn into legal rules simply by formulating them in written law, but rather that this can only happen through the particularization in case law, does not mean that an explicit statement of the legislator would be undesirable. Just as we have disengaged ourselves from the conception that there exist no legal rules outside the written law, we also have to let go of the idea that everything which the written law has taken up is a legal rule. 259
It is a question of the technique of legislation whether a certain principle has to be formulated or can be assumed tacitly. If both rules, indicated above, had been included in the written law, the principle that possession amounts to perfect title could surely be missed.
If however, the Civil Code had not mentioned the principle of good faith explicitly, it is very questionable whether it would have been as pioneering in our new case law as it has been now. It would not have been impossible; the analogous principle, which is not formulated in the written law, that misuse of law is not protected, proves this. But still we may doubt if in that case it would have gained such significance. Moreover the formulation is important because of our present system of cassation, as it brings the principle under the control of the Supreme Court: in the end it may be desirable to recognize the principle beyond all doubt, to confer a special authority to that principle. 109260
A legal principle is thus an assertion about the positive law that is immediately evident. Although we find it in the positive law, in the system of rules, decisions and institutions in their totality, it transcends the positive law by pointing to the moral judgment, the division between good and evil, in which the law is founded. 261
Just as the category is the form by which the logical function of our mind establishes itself in the law, so the legal principle is the result of the ethical function. The moral judgment penetrates the law through the principle. The ethical character of the principle implies judging and this entails the possibility of gradation. There are different kinds of principles. There are those which we categorize as such because their generality makes it impossible to simply apply them to cases, even though they still contain strong elements of specific regulations (like the principle that possession amounts to perfect title). There are others, which express nothing more than that certain fundamental moral requirements also have to be obeyed in the law (like the principle of honesty and authenticity that considers every deceit to be contrary to good faith). The one is not only more general than the other, it is also esteemed higher. In the process of finding law the lower will have to give way to the higher. Accordingly, they are evident in a different way, the one will be immediately evident to everybody, the other only to those who know the system throughout.
The search for the principle is an activity of the intellect and the most important work done by the science of law, because the principle has to be tracked down in the system of positive law, the totality of the legal order, when it is not explicitly stated, while it has to be tested against this whole when it is explicitly stated. But at the same time this activity is completely irrational, because what can be recognized as a principle is only that which is accepted by the researcher as evident to his own moral consciousness. 262
With this we touch on the question that we can ask here in the same way as above concerning the logical form: is the legislator bound by these principles or can he reject them? This question needs another answer here than given there, because here it has to do with both science and judging.
The legal principle is found in the law. The legislator has power over the law, he can insert the principle in the positive law and also take it out. The principle of art. 2014 could disappear from our law, no one will doubt this. But our question is not settled with this simple remark. 263
Firstly because it is possible that the formulation of the principle is contrary to the specific regulation. The principle is a principle of the law in its totality. When it is followed in specific provisions, in the case law or in the execution of law, then it is a principle of positive law, even if the written law would expel it. And vice versa: when the specification is absent, even the most explicit formulation wouldn’t turn a formula into a legal rule. This becomes particularly clear, when the principle is written down in the law, but doesn’t contain the detailed regulation and leaves this to others, in the first place the judge. The wife has to obey her husband, according to the Civil Code. This is meant to specify a legal principle; it is a dead letter. It is not possible to refer to the case law, in which the principle should have been made into legal rule; this case law doesn’t exist. And nobody should say that although there is no such case law it would be possible to elicit it any moment, nor that it therefore could be concluded that the legal principle is law as long as it is formulated in the written law.
Anyone who argues this loses sight of the difference between legal rule and legal principle. A legal rule doesn’t lose its validity when it is not applied (Law on General Provisions); a legal principle however will not be law as long as it is not applied, since an authority other than the legislator has to formulate the rule. And now it is certainly true that the judge has to respect the principle which is formulated in the law, but the authority exercised by the legislator here has a quality which differs from the one exercised in the rule that is a command or prescriptive. The principle is guidance, it cannot require unconditional obedience, precisely because it is nothing more than a principle. Only a command, a prescription, can be obeyed, not a formulation of a principle. A judge who sets aside a principle doesn’t fail in his duty by this alone. He indeed has to have good arguments for this, in this respect he is bound by the opinion of the parties concerned; when a principle is at stake with a purport as wide as the one concerning the obedience of the married woman he is bound to what can be called the legal conscience of a certain time in a certain people. We will return to this below, here it is enough to conclude that when the law declares a principle, this doesn’t turn it into law 264
In the preceding section §14 we saw that the power of the legislator is halted by the logical function of the human mind. He has no power over our scientific opinion, our establishment of truth. He does have power over our desire and judgment of conduct, but when he formulates a principle, which he doesn’t specify in positive rules, the principle will turn into law only then when it is accepted by those to whom the elaboration has been left. When the word of the legislator doesn’t reverberate, it remains a hollow bawl. But what if the legislator does not only declare the principle, but also refines it into details — must it then be recognized, even by him for whom, according to his own opinion, it is not evident? 265
We meet an extremely difficult issue here, which pertains to the nature of the law itself. Law is positive rule, imposed as such from outside, which imposition can be established scientifically; at the same time it is prescriptive rule, which only has validity when the requirement to obey is recognized by the person who seeks the law in a concrete case. What if these two requirements collide with each other, if the one is satisfied and not the other? In this book, in which we did not examine the binding force of law, but took it as a starting point, as a foundation of our present system of private law, we have to accept that the positive rule has to be applied, even if the person who applies the law deems it immoral; but what about the principle which is embedded in and forms the background of these rules; do we have to recognize it too and use it in every case when finding law, or should we restrict ourselves to the acceptance of the rules which are written down and are we allowed to reject any consequence from the principle which is incorrect according to our opinion? 266
One thing has to precede the answer to this question. There are different levels in the merit we give to principles, we said; this is also the case in the rejection. It is possible that we deem a certain principle to be less correct, that we would have preferred both principally and specifically a different regulation of a certain matter, but that we nevertheless bow to that regulation, because we recognize this regulation as regulation simply in view of the authority from which it stems. To a certain extent we can accept that which is not evident to us, but which we understand to be evident to others. But it is also possible that we think the principle so objectionable, that it shouldn’t be called law according to us. 267
Only in the last case do we encounter our problem. There exists an important difference of opinion about this. 268
If one thinks that with the assertion: true or not true, positive law or not, the final word is said in the science of law, and if during the examination of an issue of law one excludes the moral judgment i.e., the question about justice, then every principle which during this inquiry is pointed out in the system of law is law. For me it is not clear how any activity in the administration of justice or in the science, which is preparatory for the administration of justice, is possible from this perspective. Over and over again the question is asked whether a conclusion is satisfying, in the making of a decision this satisfaction of the moral judgment in the end always gets the upper hand.
My whole argument purports to show how in this decision there is still something other than compliance with certain data which are established by intellectual research. If this is correct, the discussed point of view has to be rejected already for this reason alone. Nevertheless this objectionable conception is adhered to by numerous jurists, not only by the so-called positivists110 who think that the task of the science of law is accomplished when it is established what the law is on the ground of some authoritative phenomenon (written law or custom), but also by all those who make a sharp separation between valid law and desired law, i.e., positive and “richtig” law, to use an expression of Stammler, and who accept the latter as criticism of the positive law or guidance for the creation of new rules, but do not recognize it as an important factor for the finding of law in a concrete case. An exception to the latter are those cases in which the positive law refers explicitly to just law.111 For those who, like us (see §§ 1 en 2), think that the application of law always the finding of law implies and that the sharp separation of activities, which is assumed by these thinkers, is not possible, this conception is highly objectionable. 269
All these authors subject themselves to the legal principle that is unambiguously formulated by the authority. They cannot do otherwise; for them it is law simply because the authority has declared it. However, the person who thinks that the law participates in moral life, that the legal decision is rooted in the moral judgment, cannot accept a principle, which he rejects in his conscience as objectionable, as a principle of law. He has to put it to the test of what his conscience asserts, no matter whether he recognizes this assertion itself as the highest authority, or thinks that it in turn is subjected to a higher order and can only make its influence felt when it is anchored in this order. The former is the opinion of many types of idealists, the latter is the Christian conviction. For both an immoral principle — formulated and particularized in specific rules by whichever authority — is never law. 270
Let us take an example. The idea that the marriage binds one man and one woman throughout their lives, is a principle in our present legal system. While this is compatible with the limited recognition of the divorce, it is abandoned when the so-called terminable marriage is introduced. There is a trend to move in this direction; in other places it has already happened. Suppose that our legislator gave in to this pressure and categorized the obligation which lasts no longer than both parties desire as a legally valid marriage and elaborated this regulation in such a way that the principle was pronounced without any doubt. In that case this would not be a legal principle for a Christian conviction, which understands the presently accepted principle as a decree of a higher order. A legal principle cannot consist in something which is contrary to the most essential founding of all law. The person who takes this stand would accept the positive regulation but would fight against any extension on the basis of this principle. All rules, in which the consequences of the principle could be pointed out, should then be applied by the letter.112271 Here we encounter the moral a priori of the written law. In my opinion every analysis of the legal assertion has to arrive at the recognition of this moral a priori, the analysis itself shows the untenability of the view that one cannot take justice into account in the law. The content of this a priori, however, is determined finally by the conviction. In ethics, just as in every science, we arrive at the conviction, when we only dig deep enough in our inquiry.113272
With this all we have drifted far away from the analogy. Still it was necessary to discuss it here, if we didn’t want to stay too superficial. Moreover, it is not without importance for the finding of law by analogy and refinement of law. We will demonstrate this.
§ 16 Analogy, Refinement of law (continued). Argumentum a contrario. Separation between analogy and interpretation? Scientific analysis and valuation in both.
We have to contemplate somewhat more on analogy. People often hold the argumentum a contrario as opposite to analogy. The argumentum a contrario means that when the law lays down a rule for certain established facts, the rule is restricted to those facts and that the opposite will be the case for everything beyond. When, for example a provision in the Civil Code states that the woman cannot remarry earlier than 300 days after the dissolution of the marriage, then it follows that the man is not bound to any term when he remarries. 273
The method of arguing a contrario however does not differ in essence from the one used in analogy. We proceed in the same way, but come to another, negative, result. When we raise the question whether it should not be supposed that on the basis of the requirement of piety there should be a certain lapse of time between the dissolution of one marriage and the next, and when in our inquiry we encounter the view of the legislator about this question, we are confronted with doubt as to whether this provision permits generalization. As there is however a specific reason for the prohibition concerning the woman, which doesn’t exist for the man (the fear for confusio sanguinis), we may not generalize the rule for the woman to a rule for the husband. Also, here the analogy has its pendant in the refinement of law: when we reject a distinction with an appeal to the assertion that when the legislator doesn’t distinguish, we are also not allowed to do so. 274
We think then that the inequality to which an appeal is made in order to distinguish, does not exclude equality concerning the general rule or principle upon which the present rule is based. In other words: we reject the legal refinement, because we think that the argument based on the ratio (of the law) when compared to the grammatical interpretation, is not strong enough to deviate from the words. For the legal prohibition against committing a new marriage within a period of 300 days, this means that we conclude that even if a woman has given birth after the dissolution of the previous marriage, so that confusion about consanguinity is ruled out, a new marriage is prohibited within 300 days.114 In both cases we don’t want to look any further for general rules and legal principles, but rather stick to the data furnished by language and legal history, possibly in connection with the systematics of the law.275
If one thinks that only the latter can be called interpretation, this is all right with me. As long as one understands that in that case one uses the word “interpretation” in a sense narrower than has been customary since the Romans, and also that the judge has always done more than interpretation alone. As soon as he takes into account purpose and function, there is a different element in his decision.276
But in my view it is completely incorrect to draw a fundamental line of demarcation — like most legal scientists do —between interpretation, which is then called “liberal” or “extensive”, and analogy. Such a separation is possible on the basis of the data when one is finding law. It is possible to oppose parlance, system, genealogy of the statute, ratio. A separation according to the method is also possible. However, whether one looks at the method or at the data, in both cases analogy and extensive interpretation are completely the same. In both cases one searches for the decision by establishing the ratio, the higher rule, which can be abstracted from the written rule, in order to derive from this the new rule. There is only a difference of degree.
When one says115 that interpretation gives an outline, demarcates the domain covered by the legal provision, while by analogy this is exceeded on purpose by the one who applies the law, then one forgets that the domain is not demarcated as such, but that in both interpretation and analogy, a connection is made between a legal provision and a question in a specific case, that in both the words of the written rule are not decisive for the application on the case, that in both this is sought through a generalization of its roots. The extension of the legal protection of the tenant in the case of a transfer of ownership of the rented property (block 21) was regarded as interpretation by the Supreme Court. In my view it is a typical example of analogy. 277 The defense often given is that the analogy is based on the personal opinion of the one who seeks the law, while the extensive interpretation is based on the point of view of the legislator116 who would have expressed himself in the same way as the interpreter does, had he had the case in mind. The statute-historical interpretation is then incorrectly seen as the all-encompassing moment which moreover introduces a superfluous fiction. We know nothing of what the legislator would have done, had he thought of something of which in reality he hasn’t. 278 The fact that people nevertheless cling so desperately to this non-existent difference has a two-fold cause. Firstly, it is due to the importance it is thought to have for the criminal law. In the criminal law it is said that analogy is forbidden, while extensive interpretation is admitted. However, the examples of extensive interpretation, given by the advocates of this conception, could just as well be called examples of analogy. In pure grammatical terms a telephone is not a telegraph, fruits from the garden are not fruits from the field, someone who is sleeping is not someone who is unconscious, etc. The attempts made at the meeting of the association of Dutch jurists in 1922, to determine whether the theft of electricity is punishable according to the penal code or forbidden analogy, showed nothing but hopeless confusion.117 And one may not argue against this that a distinction should not be rejected simply because there are borderline cases, where the distinct concepts overlap. This is only true when it is really possible to make a fundamental separation, when a criterion can be formulated. This is missing here. 279 This doesn’t mean that there was not a good reason for the enforcement of criminal law to oppose to the analogy. This can be found in the penal code, in the principle which it respects: no punishment without a preceding penal provision. The nature of the criminal law requires a limitation of the offence. Legal certainty, to which can always be appealed when rejecting analogy, has a special meaning in criminal law, because there it also serves the protection against the arbitrariness of the judge.118 The injustice that arises when two cases which are in principle the same, are treated differently, will have to be accepted in the criminal law, if this certainty would be endangered too much in the opposite case.280
There is therefore a good reason why people have scruples about analogy in the criminal law. That one cannot do without, is proven by the examples which I quoted. The difference is only gradual: one will only be allowed to climb up to a higher rule with the utmost care; the new rule will have to contain nearly all the elements of the given existing rules, the generalization has to be kept within boundaries which are as narrow as possible. One can formulate this as severely as one wants, a fundamental difference doesn’t exist here. 281
The private law has a different position in all this. Here we are not allowed to say, as in the criminal law: injustice if needs be, provided that it is injustice in the interest of the suspect. Here we do not have two unequal magnitudes facing each other, community and individual, of which the latter finds protection in the fixedness of the written text of the law. Here the individual faces another individual and even if the written law, like any law, limits the power of the judge and aims to keep him therefore from using analogy, then the Law containing General Provisions, which obliges him to do justice in every case, forces him in another direction. It is out of place to deliver the judgment here: in the text of the law I do not find a reason for a conviction, therefore I give acquittal. It would mean injustice to the plaintiff. 282
Yet also here there is a reason for an attempt to keep analogy and extensive interpretation apart from each other. It lies in the system of cassation. Cassation is only possible when the law is violated, the institute is supported by the conception — we have already remarked this often — that all law is laid down in the written law, that finding law means application of legal rules and that this happens by subsuming, by the use of the logical figure of the syllogism. The consequence is that the analogy falls outside this ambit, and that the cassation-judge withdraws from the decision whether analogy is admissible or not. Cassation is still deemed possible if an article which doesn’t permit extension according to the judgment of the Supreme Court, is applied analogically. But when the judge has refused the analogy, the judgment of the correctness of this decision is not subjected to the Supreme Court. 283
One cannot appeal in cassation about non-analogical application, it is said: an article of the law cannot be violated through such a non-extension.119 The annulment of a trade mark has to be demanded by request according to the Trademark Law). In the proceedings of such a case, which is opened with a request, an appeal in cassation is not possible if one thinks that various rules of procedural law, written down in the code for civil actions for a lawsuit that starts with a writ of summons, are not observed as they should be. The application of the rule would have been an application by analogy and a violation through non-analogical application of articles of the law cannot be stated successfully in cassation.120 On the other hand, the refusal of the Court of Appeal to extend the tenant's protection in the event of transfer of ownership of the rented property to capital put into a company was seen as a violation of the law. 284 Like the authors the Supreme Court gives no criterion as to how to demarcate interpretation from analogy. The court thinks however that it has to separate one from the other and we should not be hard on it, as it is imprisoned in the system of cassation. Analogy is never compatible with this system because the system takes as point of departure that by simply subsuming one finds the solution for every case in the text of the written law. The half-heartedness and inconsistencies in the administration of justice stem from this. They will not disappear unless the cassation is extended to every violation of justice. As long as this has not happened, the judge will feel himself forced to make a separation between that which cannot be separated: analogy and extensive interpretation. But this does not make the separation scientifically less untenable. And what is theoretically incorrect, cannot, in the end, be imposed by the legislator.121285
But now something more about the analogy itself.286
We argued in the preceding section, that the creation of law through analogy happens by the detection of the general rule, which can be abstracted from a provision, by extrapolating the principle that determines it. Sometimes it is clear what the general rule is. For the legal provision that purchase does not break rent, as far as I know, no one disputes it. One should realize however, that this self-evidence only becomes clear afterwards, that always a decision is needed to take the step towards analogy, which is never taken without hesitation, because with every analogy— and also with every extensive interpretation — one abandons the easy support which lies in an interpretation according to the words and which seems so self-evident.
It is always scientific work to point out the general legal rule that can be abstracted from a legal provision: scientific work and valuation. Every inquiry, which leads to analogical application, starts purely intellectually, but finishes with a decision, which partly rests on valuation. 287
Some examples. Firstly one, where the element of valuation still stays in the background, although it is easy to point out. It concerns the legal rule, which states that stolen or lost goods sold in a market or public auction can be recovered from the buyer by the owner when he reimburses the purchase price. We ask whether this rule can be applied by analogy when the recovery pertains to a pledged property instead of a purchased one. If one sees the relevant provisions as loose provisions, there is reason to answer this question in the negative, as the Supreme Court did. However, if the statutory regulations are related to the principle that “possession counts as a full title”, as expressed and elaborated in the law, one sees a coherent statutory regulation in which, in general, the acquirer of movable property in good faith is protected, but that an exception is made in the event of loss and theft and that then this exception is reverted back to the general principle when buying at markets or public auctions, by allowing reclaiming the property from the owner, but only subject to a refund of the price paid.
Then the legal provision, that the lack of competence of the pledger cannot be held against the pledgee, is nothing more than a consequence of the same general principle and there is every reason for an analogical interpretation. This means that also in the case of goods that have been pledged without authorization the owner is allowed to reclaim his property under conditions as specified for purchased goods. The rule on the refund of the price paid, as contained in the civil code, is jus commune, to use the classical distinction, not jus singulare. In my opinion, which cannot be developed any further here, — I refer for this to the second part of this Manual122288
— the inquiry into the system of the law insists on this conclusion, which means that there is no room for valuation. Nevertheless, the Supreme Court decided differently: is it audacious to suppose that this bench had on the whole little feeling for the principle of the protection of the purchaser in good faith and that it held the unconditional recovery in the Roman way as the only healthy solution. May it therefore have thought that it had to interpret all provisions which were contrary to this unconditional recovery in a restricted manner?
Another example, where the valuation can be pointed out more decidedly. The Court of Appeal in Amsterdam123 once faced the question whether a legal provision that allows the judge to reduce the penalty stipulated in the contract in the event of default, if the main obligation has been partially fulfilled can be analogically extended by interpreting it in connection to a legal provision concerning the employment contract, by which the judge is allowed to partly or completely ignore a stipulation of punishment, according to which the worker promises to pay a penalty if he contravenes the clause of the agreement that limits his freedom of professional practice after the termination of his employment. 289
Suppose now, that such a clause is not stipulated in an employment contract but in the transfer of a trading enterprise; is the judge allowed then to reduce the stipulated penalty in case of a breach by the purchaser when he thinks that the breach is small, while the penalty stipulated for it is excessive? The court of appeal answered in the positive. It is however impossible to speak of partial non-performance when it doesn’t concern an obligation to act, but rather to refrain from acting. The prohibition is infringed, the penalty forfeited by every act contrary to it. Still there can be reason for analogy. This is what the court of appeal decided. But valuation is clearly involved here.290
The two legal provisions mentioned both confer a power to the judge, which he normally doesn’t have: the possibility to set aside what the parties agreed on. Both have the effect that they limit the fundamental principle of the binding force of an agreement. Are we allowed to see in both these provisions a new rule, which sets its path against the supremacy of that principle? Or are these only exceptions, which have to be applied as restricted as possible? It is clear that this is an issue for valuation. How highly does one value the principle of contract? How does one value the attempts to bring more equivalency in contractual relations? The balancing of these against each other is decisive here.291
We find the same confluence of intellectual inquiry and valuation with the refinement of law. There is a legal provision in the Civil Code, which tells us that a judicial confession in a civil litigation is binding, yields so-called conclusive evidence. An inquiry into the reason for this rule indicates as it’s ground that everybody can freely dispose of one’s private rights, can maintain them or give them up. From this it follows that this rule does not hold in those cases, in which the parties don’t have a right to such a free disposal. The code of civil procedure determines this for the separation of property; it should be accepted also for the divorce, for tutelage, contesting the lawfulness of a child etc. It is a well-known fact that the case law concerning divorce is different.124292 In my view there is no place for doubt here, whereas there was concerning the non-competition clause; here there is no principle that clashes with another principle. But here in 1883 the Supreme Court was critical, as the judge often still is, of the rule that the divorce is withdrawn from the free disposal. The Court doesn’t value this rule highly. The refinement of law, which always has to find a way against the interpretation of the words, is therefore rejected. This has as a consequence that the refinement of law has had difficulty to capture a place, even in other cases where such criticism would play no role.125293 One can see: it is always double work that is done in the case of analogy and refinement. This was already known during the Middle-Ages. As well as the division between ius commune and ius singulare, rule and exception, rule according to and deviating from the principle, there was the division between favorable and odious law. The former had to be interpreted “benigne”, the latter restricted. The codification rejected this distinction. Portalis had wanted to include in the Titre préliminaire of the Code the following provision: 294
Distinguishing between favorable and detestable laws with a view to their broad or narrow application is undermining of law. (trans.lhc)126
The reason that it was not included was probably not because the legislator did not subscribe to it. He considered it superfluous. Nevertheless, the distinction which is generally deemed objectionable has maintained its influence.
But, one can ask, didn’t the 18th century reject it correctly? Doesn’t the distinction lead to arbitrariness? It may indeed do so. It is understandable that a codification which supposedly lays down the whole practice of law in one all-embracing law and controls it with the simple method of subsuming logically, would want to discard it. As soon as analogy and refinement become important methods of finding law, this practice gains esteem, but at the same time there will be the call for the certainty of conclusive legal provisions. 295
This certainty cannot be attained. Analogy and refinement will time and again demand a place, and with these also the liberty of the judge to apply valuation, a liberty which is not arbitrariness, but discretion. We pointed already to some boundaries which have to be drawn here, we must still indicate others; we can summarize all these when we say that a new decision and a new rule, including the one established by the judge, have to find their place in the system of law of a certain people in a certain time.296
§ 17 The open system of the law.
In § 12 we said that the ordering of law forms a system, in other words that the different regulations cohere, that the one is determined by the other, that they can be arranged logically, particularities being reduced to general rules until the principles can be indicated. 297
However this does not mean that for every case which occurs a decision can be deduced from this system by pure logical effort – far from it. This follows from our argument as a whole and doesn’t need further explanation at this moment. A logically closed system of law is out of the question. There has been much fought over this, mostly using the expression: whether there are gaps (Lücken) in the law or not. But often this fight was a verbal dispute, it contained much misunderstanding; people did not always understand the same by gaps.
If the existence of gaps was contested because every dispute should and can find its decision and because the judge is never allowed to say: “there is a gap here, I do not know what to decide”, then one assumed a different concept of gap, than when one argued that the law can have gaps, that even analogy cannot always help and that the judge in those cases will have to supplement the open space himself, as if he was the legislator, as art 1 of the Swiss code says. In the last case people are talking about gaps in the written law, in the first case about gaps in the law as such. It is better however to put the concept of “gap” aside completely. One who uses this concept already has an opinion that has to be abandoned. For he takes as given that the decision can be found by intellectual effort alone, by the ranking of a case under the rule. In that case, difference of opinion only exists as to the question whether this rule has to be sought in the written law alone or also outside of it. A good insight in analogy makes clear why this opinion is objectionable: the analogy is intellectual exertion performed on the existing legislation; at the same time, it leaves space for valuation. 298
Analogical application is application, but at the same time it is the creation of something new. When one realizes, as we saw in the preceding section, that interpretation and (application by) analogy are merging, do not differ from each other fundamentally, and that further on, as was pointed out in the sections 10 and following, we certainly can establish the data of the interpretation and their relative value, but can never give conclusive rules as to when the one method has to be used and when the other, that there is therefore also room for an autonomous judgment of the judge, then it is clear that the same is true for the interpretation. Doubtlessly Burckhardt is right, when he says:
The difference between creating a legal statement, expanding the meaning of a given legal rule by analogy and the interpretation of written law is only gradual. (trans.lhc)127
But we can go a step further: every decision, also those which are so-called done according to the wording of the law, are at the same time application and creation; there is always the judgment of the person who decides, that co-determines the decision. This follows already from the nature of the application itself. The conclusion is only logically compelling as far as both premises, the major and the minor are given. The minor: A. has purchased, which the judge uses if he orders the payment of the purchase price, is formulated by himself. It is his decision that there is a purchase here and the judgment about the rule of purchase is already contained in that decision.128 In every finding of law there is logical exertion, binding to data; there is also always freedom. The difference between one case and another is only a difference in degree. 300
Only he who thinks that decisions can only be found by logical reasoning from a certain point onwards, a fixed given, from where one goes further step by step, can make an objection to this conclusion. Actually, however, we find them by assembling as many data as possible and then making the decision. The decision always involves a leap in the end. 301
Anyone who has this insight understands also that the decision is never a deduction from a closed system. Nevertheless, there is no doubt that the law forms a system, a whole of logically adequate provisions. But this system does not reveal gaps here and there due to the faulty work of human beings, but rather is incomplete by nature and cannot be complete, because it is the foundation of decisions, which themselves add something new to the system. I think this is expressed best when we speak of an open system.
We can clarify this from yet another perspective. 302
The law is a set of norms, not however of norms which are valid independently of time and place — such as for example the rules of logic — but of norms, which derive their authority from particular historical events (the act of legislation, or in the case of customary law, the actions of persons subjected to the law). Furthermore, these are norms which require application and are again in the end dependent on this application. It is thus a norm-system and at the same time a system of actions (legislation, administration of justice, execution by the administration, actions of people concerned, which are oriented at the law). It is a “Sollen”, an “ought”, but an “ought,” connected to a “being”, to historical events. Law is only valid within a certain time, within a certain circle of people.
This double character becomes clear when we speak of an open system. The law is never “complete”, it changes daily. Not only by legislation, the conscious creation of new law, but also by application. We can express this also in this way: the system has to be seen as “dynamic”, not “static”.129 The doctrine of logical closure sees it as a static system, that remains unchanged as long as the legislator doesn’t intervene. There lays its mistake. 303
If this is the case, then it follows from this, that we should not understand the contradistinction between legislator and judge as a sharp demarcation: “the first creates law, the second maintains law, the first is free, the second is bound”, but instead in such a way that for the first the freedom is primary, while for the second the binding is primary. In the creation of the new the first remains always bound to the maintenance of the old, while the second in the maintenance always adds also something new to the existing.
But this is addition, nothing more. The consequence is that he cannot call new things into being arbitrarily but has to seek contact with the existing. This means working historically. If the system is changing continuously, it can only be understood in its change. The one who seeks new law in such a way, must always ask: how did the old come about, can I discover the trend of an evolution in it, do I build upon the existing, does it fit with this? 304
And at the same time he has to ask himself: where do I go when I take this step, what are the consequences entailed by it? He has to take into account the logical nature of our judgment, which continuously compels towards further consequences, precisely because in the law that which is equal always requires equal treatment.
He who has a clear view of the nature of analogy will also understand the place of historical and teleological interpretation. He seeks a principle of gradualness. He looks back, to be able to look forwards. Here are the limits to free judgment when finding law, which I pointed out at the end of the last section. 305
We build upon a system. In legislation the law may seem to show sharp incisions, in the most extreme when these are penetrated by a revolutionary spirit, and the law may consciously strive after the new, still the law remains bound by what the centuries have contributed to it. Conversely, however much it may be bound, law would not be law if it was not oriented toward something, if there was no aspiration toward something which we imagine. Thus, the place of the historical and teleological interpretation become self-evident.
§ 18 Historical interpretation of the law. Tradition. The institution.
It is customary not to distinguish between the interpretation of the law according to the history of its establishment and the truly legal historical one, to take them both together under the name “historical interpretation”.130 Both are seen as an inquiry into the intention of the legislator; the older history, the law before the codified law, is deemed important only because the legislator is supposed to have wanted its preservation. Our point of view, indicated in the sections §§ 9, 11 and 17, is different. The inquiry into the law of an earlier time is of minor relevance for the determination of the intention of the legislator: even if the legislator adopts an older writer’s formula, this doesn’t mean that he gives it completely the same meaning as this writer did, that he also adopts that which this writer has enunciated in the context of this formula. The value which we attach to the historical inquiry rests on another ground; it assumes another view on the work of the legislator. 306
As we pointed out on p. 44, people compare the objective method of legal interpretation with the subjective; objective: the law in itself; subjective: the law as expression of the intention of the legislator. We concluded there: not objective or subjective, but rather objective and subjective. The written law is both the expression of intention of the legislator and at the same time it is a value in itself. Now we have to add to this: it is also something else: it is also a part of the practice of law. This is the ever-changing life of a people, which can only be distilled from the forms of the law by historical research. The law is fixed by legislation and the formula which is used for this gains authority for the future, but this determination is not a creation from nothing, but consciously or unconsciously there is adherence to that which already exists, foundations which were already laid are taken as starting point. Every new law brings a new element into the system of law, but it brings this into the system, the new is never completely new. In my opinion we still are not impressed enough by this truth, brought to light by the Historical School. 307
Even within this view it is possible that the legal historical and the statute historical interpretation merge, but in that case the legal historical is not part of the inquiry into the intention of the legislator, but rather the other way round, the statute historical is part of theinquiry into the historical development. It the statute-historical interpretation is not primarily important then as a determination of the intention of the persons, endowed with authority, who composed the law, but it is a link in a chain, part of an evolution, which sometimes stretches out over centuries. The significance of the history of the realization of the French Code for our civil law has always been like this; the intention of the legislators of Napoleon has no specific relevance for us as such, but the Code has a great significance for the history of our law and therefore the continuance or change of development, which the history of that codification shows, can be important for us. 308
Our opinion has as a consequence that a simple appeal to the history, without indicating what in this history guided the interpretation, is worthless.131 Any appeal to history is also worthless where there is only one antecedent selected from many, and pointed out to the one who seeks law. This was done in the past and it is still done sometimes with Roman rules or German curiosities. It is not one specific antecedent which has meaning, but the trend in a development. Of course, there are points in such a development which are more important, which gained preponderance in the course of time. It is the task of the legal historical inquiry to point these out. Such points for us are the law of obligations of Roman law and of the French law of the 18th century, especially Pothier. 309
The structure of our law of obligations is Roman; largely it is nothing else than the Roman tradition that is continued. However, it is not the Roman law in itself that is important, but the way in which it influenced ours historically. The science of later days has shown that much, that was held as Roman law by the Middle Ages and the Pandectists, till the end of the nineteenth century, actually was not Roman. This doesn’t make it less important for us. On the contrary, to us the way in which Pothier and Voet saw the Roman law is of greater significance than how it should be seen according to the more recent interpolation doctrine and the papyrus-findings. However great the importance may be from a historical point of view, for us in practicing the current law the latter is a phase, which is further away from us than the Roman law as it developed in the reception. It is situated at the start of a line, which we have to draw further, and which gets more important the nearer it gets to our own time. 310
Also concerning Pothier we have to free ourselves from the rather common conception which sees in him a sort of commentary of the law, a commentary that precedes the law and has more authority than any later one. Pothier was the last before the codification to summarize the whole system of law in his Traités. He did this simply and crystal-clear, his work had a great influence on the French Code, especially in the law of obligations. This makes clear why Pothier is important for the historical research, but also Pothier is nothing else than a link in a development. He was not an innovator of the law, but somebody who described it according to the traditional views. Pothier has to be conceived therefore in relation to his predecessors and contemporaries; his statements are not important because they specify the intentions of the makers of the Code, but because they summarized the complete tradition that preceded the codification and could therefore show the connection between that tradition and the Code more than anything else.311
This is why we will always have to engage ourselves with his Traités. Something else can be added. We think Pothier312
’s work is reliable, it is also the high quality of it which determines his authority. What benefit would we derive from the knowledge of the authors who preceded the codification, if it was not an established fact that they were not only held in high esteem, but also deserved this? If this were not the case, there would remain doubt as to whether they described the law correctly. This is why, where the French Code didn’t follow Pothier, the appeal to other authors has so much less meaning. It is not certain that the Code awarded them authority, or whether it did also actually adopt the formula from them which we find with them, and then, we don’t know if they indeed gave a correct picture of the law they described.132
In the first place it is the law that matters; not the opinions of authors. Pothier knew the law of France before the Code better than anyone else and understood the art of how to describe it. I do not dispute that we therefore have to award still another kind of authority to his word, other than that of being an element in a historical evolution, but this touches on something which we will keep for later, the authority of science.133 Here we are concerned with the historical development. 313 An example of legal provisions, which can only be understood historically, is the rule, which pertains to the annulment of contracts on the ground of error. This is possible when there is error concerning the substance of the matter. But what is “the substance of the matter”? What is it in a purchase, to which the words at first sight seem to refer, and what is it in other contracts? In his well-known doctoral thesis.134 Houwing has made an inquiry into the development of the doctrine on error before Pothier and with Pothier and he comes to the conclusion that the mistaken conception which motivated one of the parties to enter into the agreement, only has consequences for the legal effects of the agreement, if one can assume, taking into account all the circumstances, that both parties had made their agreement taking the truth of this conception as a condition for their concord.135 314
It is this formula which he recommends to the judge. Doctrine and case law have accepted it. Houwing certainly didn’t ground his conclusion solely on Pothier or on historical research. On the contrary, he shows that Pothier poorly summarized the principle which he had stated and formulated it incorrectly, but without the historical research he would never have been able to find the freedom to substitute his formula for the one of the law. In Pothier he found the essential element: the relevance of the error being dependent on the conception of the parties, and Pothier ties this to the Roman doctrine of error in substantia; the development from objective to subjective criterion for the distinction whether an error is relevant or not finds its provisional end point with him. The terminology of the Code and our law remained Roman, history gives us the freedom to disengage from the literal meaning of the words.315
The same is applicable for the words “to stipulate for the benefit of oneself)” in one of the provisions of the Civil Code. In the Weekblad van Privaatrecht of 1916136 I have tried to show, that a stipulation for the benefit of a third party only renders a right for this party, if it is bound to a valid agreement between the parties. Of course, I have to leave it an open question as to whether I have succeeded in this argument. I refer to it here because it completely follows the method which I defended here as the historical interpretation; pointing out the historical development of the rule, the very restricted beginning with the Romans, which followed after a principled exclusion, a restriction of the effects of the agreement to the parties alone, the extension of it in the Middle Ages, the factors which began to influence it in the French law from the 16th to the 18th century, Pothier, but not only the Pothier of the Traité des Obligations, but also the elaboration elsewhere, the French Code and then later the Code of Napoleon for the Netherlands, our own history of written law. Again, it was not only the history to which I appealed in my recommendation of the formula, but how could I have found it, from where would I have taken the liberty to substitute it for the narrower words of the law, if the historical argument, the description of the trend in the development of the written law, had not given that liberty. 316 In both cases — and they could be augmented with many from the law of obligations and not only from there— the issue was to get a good understanding of a rule which was poorly formulated by the legislator. The historical inquiry can also serve to posit a rule, about which the law is silent. M. H. Bregstein137 has tried to demonstrate that our written law also contains a revindication of unjust enrichment. There are specific provisions in our law which can be understood as the expression of a principle: that which has been received without grounds should be returned, but this is not explicitly stated and it seems contrary to the formulation of the sources of obligations in the Civil Code. Bregstein nevertheless thinks that he can defend the principle and potential actions founded on it on the ground of the tradition. He demonstrates the development of the doctrine up to Pothier.317 318
It cannot be found in the French Code. There is no reason to believe that it is excluded intentionally. Is it not therefore now permissible to defend the continuance of the old regulation on the ground of this tradition? The Code adopts the old law of obligations completely but doesn’t speak of this part. Isn’t it more correct also here to accept the continuance of the old, rather than the rule that the law abolishes by being silent? This can happen of course, but there is no more reason to think that this is always the case than it is to think that it is always suitable to reason a contrario. Incidentally, one of the authors of the Code, most probably also the most significant, Portalis, understood this already, when he stated:
When the text on a particular issue is not clear, the traditional, well-established custom takes the place of the law. (trans.lhc)138 Such a French tradition is only then really meaningful, if it is supported by an old-Dutch one; Bregstein doesn’t omit to extend his inquiry to this as well.
So the tradition plays an important role in the interpretation, where the written law summarized the existing law, but did not succeed in the attempt to formulate it clearly, and the tradition plays also an important role where the written law remains silent does not explicitly acknowledges it but shows on the other hand no intention to abolish it; next to this finally the tradition plays an important role where the written law raises doubt in its general formulas and doesn’t move always in the same direction in its specific provisions. As far as the error and the stipulation for the benefit of third parties were concerned we could point out evolutionary trends, which were more or less moving in one direction: from objective criteria to subjective in relation to the error, growing recognition of the stipulation for the benefit of third parties. But it also happens that the trend is repeatedly interrupted, that one current dashes against another. According to our law it still is a well-known and undecided issue whether we have a causal or an abstract transfer of ownership, in other words whether the property is transferred by a consensus or whether besides this there is the need for a legally recognized ground for the transfer of ownership.139 Also in respect of such an issue it is impossible to take sides without knowledge of the historical development. 319 But here the history certainly doesn’t follow one trend, on the contrary, both trends, the one of abstraction and the one of binding to a cause, move next to or against each other and sometimes merge. It is understandable that the proponents of both systems appeal to the history, on the one hand van Oven140 defending the causal, and I with him, on the other hand Meijers141 and Cleveringa142 defending the abstract. And one should not say now that one can conclude from this clash of opinions that the history has little meaning for the finding of law. The one who argues this always assumes that it is one factor – in this case the history - which is decisive for the interpretation. History is in itself however no more decisive than any other expedient of the finding of law.320
But how should we find our way, when the words of the law are not conclusive, when the provisions can’t be put together logically, if we do not understand that there is a battle here between legal certainty on the one hand, which is driving at the abstraction in virtue of the fixedness and on the other hand justice, which doesn’t want to sanction anything which happened contrary to the law and — what matters most to us — if we do not understand that this battle is not one that recently arose or which is caused by obscure legal provisions, but that this is the same battle which had been fought for ages, that these legal provisions can only be understood if they guide us in a choice for a standpoint in this never ending discord? 321
If the role of the historical interpretation is pointed out correctly this way, then it can be concluded that it is impossible to specify certain subjects for which it has authority and others for which this is less the case. Everywhere where the tradition can be shown, it is relevant, but the question whether the tradition can be shown can only be decided by historical inquiry.
It is this conception, which was followed by the editors of this manual, when they let the discussion of the rules be preceded each time by an historical inquiry. This is continually done very beautifully by Planiol in his well-known textbook.143
I said that the history is never decisive in itself. This is true for every given finding of law, but especially for an appeal to the tradition. The person who gives authority to it, does so because he believes that there is continuance in law, that our rules and decisions will time and again elaborate on the old and will carry this on. This leads to the conclusion that this continuance doesn’t stop with the establishment of the written law. This is the most important point for the historical inquiry, but there is something else which comes after this.144323 As soon as we speak in terms of development, we are not entitled to stand still somewhere, we have to go on. The tradition is used completely unhistorically, when for example in international private law people defend the thesis that our legislator took the statute-doctrine as point of departure and that when the written law is silent, we therefore have to take this statute-doctrine as our line of action.145 It is certainly therefore impossible to understand our international private law and to apply it, without knowledge of the statute-doctrine, but the one who only takes this doctrine and its development up till the 19th century into account, forgets that international private law took new turns especially in the 19th century, and that in the course of this the statute-doctrine was largely abandoned, which means that a decision which appeals to it is not motivated sufficiently. We can formulate this also more generally thus: the one who accepts the tradition, has to be bold enough to be critical about it. 324
If we understand the value of history for the finding of law in such a way, then it is clear that we are not affected by the much heard objection that whoever appeals to history confuses genealogical and normative inquiry. It is argued that we don’t derive a decision about what has to happen from the assessment of how the existing has come about. This is not correct as far as law is concerned. The decision about what has to count as law is bound by rules, which we encounter as objectively given. This given can only be known historically. There certainly is a difference between the purely legal historical inquiry and ours. The first only ascertains, while the second draws a conclusion for the present.325
Out of everything offered by the mass of facts, the first will make a selection between important and unimportant in a different way, it will ask: did it have influence at that time? the second: what can we recognize of this now? With a purely historical inquiry, we turn around to look from the present to the past, with the historical interpretation we make the turn twice, firstly back to the past, then again to the present. Anyone who doesn’t belief that law can only be found by distilling it from one’s own insight in what ought to happen, is always bound to the history.326
This history of the law is something different from the history of the rule. The history of the rule is of minor importance for the inquiry of the real legal historian; what matters is the law as it actually existed in the decisions and actions. The legal historical interpretation, however, starts with the history of the rule: the Civil Code adopted it from the French Code, the Code from Pothier, etc., but this inquiry always leads to the inquiry into the law itself, in the end the formula is important as the crystallization of the law. The question is “what is the law at present”; for this we have to know what the law was in former times. The history of formulas teaches us whether there was change or continuance (whether the Civil Code was aligned with the French Code or not), but if there was continuance, then it is the law as it was summarized in the formula which matters.327
We give authority to Pothier, because we are confident that he described the law of his times accurately, we use his works to know what the law was in France before the Code. But the inquiry into the case law gives a more exact answer to this question. Therefore the decisions of judges of former times are especially important for our inquiry; the decisions before the written law was established, as well as the ones which immediately followed after this, because in these decisions we can best point out the thread running through the tradition. That thread runs on up till the present, in this way there is a connection between the authority of the history and the one of case law. But more about this in the next section. We first have to deal with something else here. It is not the rule alone, nor the decision of the judge alone in which the law is manifest to the historian, it is the social life itself, and it is also the development of this, which is important for the appeal to the tradition. 328
Law is a regulation of the relations between human beings. When we appeal to tradition we have to ask the question, which relations existed when the rule was established, to be able to determine if that which has remained the same in these relations should make us understand the rule in the same way as formerly, or that a change in these implies also a modification of the rule. What was the economic and technical structure of the society in which the rule had to work, what also the cultural context in which it functioned? In the law we are always bound to the facts. The law can never be derived from the facts alone, but it is impossible to know the law without (knowing) the facts. In this context fact doesn’t only mean that which actually happens between the parties, but also that which happens as a specific social phenomenon. No legal historical inquiry, without an inquiry into the totality in which the law participates. The one who opens a book on legal history will soon observe, that it is a history of legal institutions, which is offered to us, in other words a history of those arrangements of actual events that are kept together by legal rules. 329
The concept of legal institution is seldom analyzed; the legal historian uses it, the jurist in a more narrow sense leaves it aside. However, it is also indispensable for the jurist. Nobody who practices state law will describe the law of the present-day State without outlining monarchy or parliamentarism. He then pictures the institutions of the state. Not only do the rules about the rights of the King and the States-General matter, nor only the practice, but the rules in practice, the whole phenomenon, as it is managed by the rules. Rules are laid down with a certain goal in mind; these rules lead to actions, which are connected to each other and which present themselves as a unity to the observer of social life.146 In the private law it is exactly the same. In an institution people pursue a certain goal in a certain way with the help of legal rules. We can’t say that property is a legal institution; ownership is a form which is used in many institutions, but private property of land and the system of land tenure are legal institutions. 330
Legal person is a category. An association, having legal personality, is a concept of our positive law, but the association as social phenomenon is an institution, which again has its own autonomous parts, such as the trade union and the enterprise. The legal history describes the social development of these institutions, and it conceives in these the legal rules. The historical interpretation is in the first place concerned with the rules, but these rules change as the institutions change; it is impossible to know them without knowing the institution. Therefore, also the development of these in the present-day legal life will be taken into account. Or wouldn’t it be in particular relevant for questions about the law of association, that the powerful trade unions and the companies limited by shares, which take part in the world trade, use the same form, that was primarily used by club houses and philanthropic societies when the law of 1855 was promulgated?331
In this way historical interpretation leads to the sociological or teleological one. When it has been investigated what the relations were which were taken into account in the formulation of the rule and how these relations have developed, then the question “what now?” will be treated in reference to the relations of the present, the goal, which is strived for at this moment. Historical interpretation teaches that the rule, in the end can only be understood in the context of the relations for which it was written, even though in due time it can and has to be viewed autonomously. Sociology looks at the relations themselves, only at the rules as far as they have influenced these relations. We have to inquire what should be, what the rule is, but the rule for and in the relation. 332
Thus we have to treat successively the authority of the case law for the finding of law and the interpretation according to the actual social relations. About this in the next sections.
§ 19 The authority of case law.
It is not so very long ago that it was generally accepted that other than the relations subjected to his decision, no further authority was due to the decision of a judge. Many still have this opinion. The judge applies the law, finds the law in an individual case, it is not his task to formulate rules with a general application. The general set up of our polity, the division between legislative power and judicial power, the system of cassation, all this excludes authority of case law as such. Shouldn't one say with Justinian that one should judge on the basis of law and not on the basis of real or fictitious cases? One may have respect for the judgment of the Supreme Court about a legal question, but this respect is no other than that due to the decision made by anyone who is knowledgeable concerning the issue about which he speaks. 333
One can always leave it aside if one is convinced that it is incorrect; it has authority because of the weight of its argumentation, not because of the person from whom it emanates. This is a principle which is not only inherent in the totality of the institutions of our state and law, but it was also the design of our codification. The previous authority of the case law had to be broken down, the arrêts de règlement, in which the French parliaments declared how they would decide henceforth in a certain legal issue, were forbidden (art. 5 C.c). By imitation of this our Law containing General Provisions prescribes that no judge is allowed to decide cases subjected to his judgment in the form of a general bye-law, disposition or regulation. 334
Even though the design may have been like this — how different the practice has become. Anyone who attends a legal counsel’s closing speech in a civil case will observe that a lawyer never feels stronger than when he can appeal to a decision of the ‘H.R.’ (Supreme Court), that analysis and comparison of judicial interpretation is a common occurrence at the bar. It is the list of case law as part of the closing speech which the judge takes home as most important for his decision. How little time for study the daily work may leave to the judge, it is the publication of case law, which every jurist keeps up to date with as that which is most necessary. Also, science sees the study of the way the case law develops, systematizing its results, as its main task. Following France, the former is pursued by annotations to the decisions, in the Journal of Dutch case law as well as in the Weekly on Law.335
Regarding the latter: compare the place case law takes in a current textbook with the one it took in a book of fifty years ago; one will realize how much it has gained in authority.147 Portalis, who had more foresight than most codifiers, was correct when he stated contrary to the spirit of his age, something we already partly cited above at page 108 (block 317):336
When the text on a particular issue is not clear, the old, well established custom; a series of similar decisions; a generally accepted view or a principle take the place of the law. (trans.lhc)148
He probably didn’t suspect that case law would acquire such influence as it currently has.
Usually people see the doctrine of precedent, that the judge is bound by the earlier decisions of higher judges and to himself, as a specifically Anglo-saxon institution and they put this in opposition to the continental system, which leaves the judge complete liberty in this respect. No wonder that after taking cognizance of the French practice, an English author has defended the statement that the difference is only gradual:149 the English judge is not so bound as is often presented, the continental not so at liberty. We have to let the first rest; the second is certainly correct: he feels bound and acts accordingly.337 Nevertheless — and already a difference with the English conceptions is apparent here — it is seldom spoken out openly by the judge. It hardly happens, that a judge explicitly says that he has decided a certain issue in a certain way, because the Supreme Court has done so. This doesn’t make it less true that he does so. One has to trace it back to a different place, however; one can only deduce it from the case law itself, where the arguments and formulas of the Supreme Court are adopted. As far as the highest court is itself concerned, it never appeals to its own earlier decisions150 but here also one finds repetition (sometimes literally) of arguments and formulas of older decisions. 338 Noteworthy in this respect moreover is, that recently the Supreme Court has sometimes tested a contested decision, not by the formula in the law, but by the one which it formulated itself on an earlier occasion. In the well-known decision of 1919 the Supreme Court gave a new description of a wrongful act; when in 1928 it had to answer the question when an act of the State itself can be called wrongful, the ground for appeal in cassation failed in the face of the interpretation of a component of a formula, stemming from the Supreme Court itself: the requirement to keep from acting in a way which runs counter to the care which is expected in social interaction.151 The Supreme Court treated its own formula here completely as if it were a text from the law. 339
Very carefully the H.R. moves further in this direction. For example, the H.R. in a judgment on the garnishment gave an explanation of a judgment of its own on the same subject from 1929 that was quoted above on page 61 (block 189). This may be important for promoting legal certainty through case law. Legal certainty would certainly be served if the judge stated more openly when and why he follows the H.R. and especially if he got into the habit, when using certain provisions containing formulas such as “contrary to good faith” or “with due care”, to make it in which the conflict with good faith or with due care is found. Within the framework of such formulas, case law would then indicate a not entirely fixed, but still fairly safe guideline152 for interested parties and case law.
The contrast between the original design and what it became in reality is explicable in every sense. For this we don’t even have to appeal to the general tendency in human beings to imitate, to the need we all have to lean on the judgments of others, the cause can be pointed out at closer proximity. A lawsuit costs time and money; who would start it if he knew beforehand that he would lose the case? Once one knows how the judge will decide, one accepts this opinion as the law. The lawyer who is asked what the law says will seek the answer in what the judge will probably decide. And the judge? His attitude undergoes the influence of the system of appeal and cassation. He will not easily give a decision of which he knows that in appeal it will probably be set aside. It is not vanity in the first place, or fear for the destruction of his work, which lets him orient himself towards the Supreme Court, it is primarily the consideration that by doing otherwise, he will needlessly put the parties to great expenses. He also feels called to enforce the certainty of law. More about this later. We must firstly dwell on a fundamental issue.340
It is this one. It may be true that it is explained this way, that the judge awards authority to the decisions of the Supreme Court, the bar and the jurist, awards authority in general to the case law in its totality, but is it also justified this way? Is it not once again confusion between causal explanation and legal norm when we award authority to case law? Shouldn’t we put aside the phenomenon completely, however important it may be from a sociological point of view, when we enumerate the factors according to which the judge should decide? Isn’t it true that case law is no source of law? Isn’t that settled? 341
The one who asks such questions starts from the notion that the written law contains the decision of every case and that the judge can derive a decision from it with perfect precision. He compares the conclusion which is found this way with the one which was made by a former judge on the basis of a clearly mistaken reasoning, and it speaks for itself that the new one must be chosen and not the former one. Everything which we have written till now suffices in my opinion to show that in reality things are different, that the judge doesn’t only make a logical deduction from a rule with a fixed content when he takes a decision, but that it is a conclusion to which he arrives after taking notice of a series of data, of pro and contra.153342
As we said above, the written law has to be viewed partly as the authorized fixation of a formula in order to control the social practice of law. This practice is established by the totality of norms that are actually existent in society. When we realize that at a certain time an authority of a nature different from that of the legislator also exercises influence on this practice, actually also determines what is recognized as law, then we must also bow to that authority and must recognize as law the rules that are part of it. For us there exists the duty to point out the relations between this authority and the one of the legislator and to find out when and to what extent it should be respected, to push it back if possible, when it makes itself too broad, but we are not allowed to deny this authority. 343
In the law we should not simply accept and describe what happens. We have to understand every phenomenon as part of a whole, to inquire into whether it can be in harmony with others, to strive for consonance, and in the end to test it with the desire for justice, which determines the whole. But we are neither allowed to put the historical events aside and negate them as unimportant to the law, just because they don’t match the conception, we have about what should happen. Contrary to the sociology of law, for the science of law the description of what actually happens is never a sufficient answer to the question what counts as law, but the other way around, what has to be acknowledged scientifically can never be determined without taking into account what the facts demonstrate. The recognition of case law as authoritative is forced upon us by the facts. In the end the nature of this authority is no different from that of the written law. The latter is also based on a historical event. It is our task to analyze this authority and to determine it in further detail.344
If it is stated further that in our polity case law clearly is not a source of law, I will answer that this word gives rise to confusion. This is why I haven’t used it till now. 345
The word “source” can mean on the one hand the materials from which one can know the law historically (we know the Roman law from the codification of Justinianus, but also from the institutes of Gajus, from other writings, inscriptions etc.), on the other hand it can mean the regulations which preceded a certain legal system, from which it generated historically (the Roman and French law of obligations are the sources of ours). It can finally also be used in the sense of the authority which determines the law. In that sense only the written law would be a source of law nowadays. For the English law case law would be so as well, for our law this would not be the case.
If these words mean that in our law the highest authority must be awarded to the legislator, nobody will disagree. But it is not correct to conclude from the highest authority, the only authority. The authority of the judge is of a different nature and is lower in rank than that of the legislator. It nevertheless exists. In the domain of private law there is no statement of written law which doesn’t have to go through the judicial machine to become law in actuality. It may be an exaggeration when an American author154 says, that the law is at the mercy of the courts, however the statement demonstrates the autonomous authority of the judge. There are different degrees of authority. Finding law means the establishment of law in actuality on the basis of data which are acknowledged as authoritative. The case law also belongs to this. 346 This clearly stands out if one pays attention to the opinion of the well-known French professor Gény155 on this issue. He takes as point of departure that the French polity as a whole comprises the idea that case law is no source of law and he defends this statement against his opponents convincingly. But then come the reservations, the acknowledgement of the significance of the case law. Gény's conclusion is that precedent not only has moral and practical predominance, but also confronts the judge in its judgment with a power of persuasion analogous to that which in the past French law attributed to Roman law (raison écrite). When faced with standing case law, the judge may refrain from further investigation, because then there is a force of arguments (puissance sérieuse) that can and to a certain extent must keep in check the uncertainties and whims of subjective reason.156 If we have to follow case law, according to Gény, what meaning can still be attached to the statement that it is not a source of law? 347
Here it is also important to pay attention to art. 1 of the Swiss code. In it, the authority of case law is recognized. When the judge, confronted with gaps in the law, searches for law autonomously, he must follow the prevailing doctrine and tradition (bewährter Lehre und Ueberlieferung). The French text says that the judge is inspired by solutions that are appropriate according to doctrine and jurisprudence (Il s'inspire des solutions consacrées par la doctrine et la jurisprudence). The authority is very restricted and “folgen” or “s'inspirer de” only give expression to a marginal authority, nevertheless it is noteworthy that the codification itself mentions case law as authority.348
We must determine that authority in further detail. 349
Firstly, to what is it awarded? Being tied down in the sense of a strict subjection to every decision is out of the question. We award authority to a decision of the judge by recognizing a rule. After all, its authority beyond the specific case lies only in this rule. Sometimes the case law gains its authority through repetition, by the continuance of a series of decisions. Then it is the tradition before which we bow, the tradition which finds its expression in a “constant”, a “settled” judicial practice. It is also possible that authority is awarded to a single decision. This can be caused by the formulation of the decision; — the more generally it is stated, the more it is abstracted from the facts of the case, the wider its purport —; it can also be caused by the conclusiveness of its argument, by the emphasis with which it is written down.
We distinguish between occasional decisions, in which the connection with the case is still strong, and standard decisions, which according to the Supreme Court, obviously have the effect of making a certain opinion known. In this respect we can mention for example the decision about the wrongful act which has been cited already several times, also the decision about the question whether obligations that one has assumed with regard to a particular good are transferred to another when he acquires that good.157 Both can be characterized in this way also, because they deviated from the existing case law. The contradiction with the existing case law makes people aware of the new rule comprised in the decision. It may also be the case that not one single decision, but a few cases supplementing each other formulate a rule or a set of rules, which are accepted as authoritative and are applied. The series of decisions by the Supreme Court about good faith, and the expansion of contractual obligations beyond the words of the agreement to which they led, can be mentioned as examples of this.158350 We only mentioned the judgments of the Supreme Court, it may also be that decisions of the Courts of Appeal and lower law courts attain authority. This authority will be lower in degree naturally; on the one hand we are approaching here the authority of science, on the other hand the authority of an actual practice in society. More about this in the next chapters sections.159351
Now the question is, in which cases does the decision have authority? Can we determine this in more detail; how far does it impose itself versus other information? It is certainly not unconditional. There is the danger, that our case law bows too much before the Supreme Court. There is laziness in this acceptance of case law. Even in the theory this authority is valued sometime too highly in my opinion. Even this will have to yield sometimes, when it leads to unacceptable results. The “breaking down” of a standing judicial practice proves it. Here lies the big difference with the English system. In England the judge faces the precedent as if it is the text of a statute. For us the authority is different. In England it is also possible that a transformation takes place in the case law by a gradual shift — the one case hardly ever being exactly the same as the other — but it is unthinkable that the judge openly rejects what he proclaimed before. For us this is possible, and it happens.
We therefore have to consider in more detail the question when we should award authority to case law, especially to the decisions of the Supreme Court.
In short, this is the case whenever the certainty of law must be valued higher than the content of the law. Law establishes order, it is often more important that order is realized, than how it is acquired. It is completely irrelevant whether people keep the left or the right, but it is very important that all do the same. The calculability of the law is a good which time and again is sought in social life. It was one of the goals of codification, the same is true for the English doctrine of precedent. It is the wish for this certainty that led Blackstone to his famous statement — which is foundational for this entire doctrine — that it is necessary: “to keep the scale of justice even and steady and not liable to waver with every new judge's opinion.160
This importance of legal certainty makes every decision of the Supreme Court valuable for the finding of law. It will always have to be taken into account. What I said about interpretation also applies here, it is simply a matter of weighing; case law is also never without value, neither decisive on its own. But we can say that the certainty of law weighs heavily whenever our conviction about what ought to happen, our moral judgment, is not at stake in the decision. An example of this is given by questions of competence and form. It is necessary that it is established which judge is competent, but it is morally indifferent whether it is the one or the other. One should follow the judgments of the Supreme Court about such issues unconditionally.161 The same holds for the decisions regarding issues of form: whether a case has to be commenced by writs of summons or by request, whether witnesses have to be heard under oath or not and so on.353 Next to these issues of minor weight there are those with a more far reaching importance. It may be, that a rule has been developed by case law with a significance so strong that it can only be changed by the legislative power. This is the case when this rule concerns an issue that attracts a lot of attention from the public opinion and keeps large groups of our people divided. At this moment I know in our country only one example of this. It concerns the authority of the case law162 which established the doctrine that confession and non-appearance in a case of divorce without further proof lead to an allowance of the claim, and which by this ruling in an indirect way introduced divorce with mutual consent. Transformation of this rule intervenes too much, touches such delicate issues, about which there is so much disagreement, that it can be done only by the highest authority, the legislator, in whom the different currents must flow together in one riverbed.354 Although it has already been pointed out here how much the case law can be a significant factor when finding law —the most important is not yet mentioned. That is the case if in reliance on case law, on the rule expressed in it, complete institutions have been developed and certain relations of wide purport are regulated. Then it is not the case law as such to which an appeal is made, but rather the case law as constitutive for patterns of social behavior. German authors such as Gierke163 call the authority of case law, about which we spoke above, the authority of court use (Gerichtsgebrauch); in the cases we have in mind here, it is a part of customary law. 355
Just one example. Nowhere does the written law declare explicitly that it is possible to form a foundation. There were people who doubted it.
Nevertheless, the Supreme Court maintains this possibility continuously. Relying on this, many foundations have been and are formed. It would create a situation of chaos if the judiciary went back on this. All the foundations which have been formed after 1838 would become legally invalid, a new proprietor would have to be assigned for all the possessions they have, which certainly would not be easy, all actions of board members would be contestable. No judge would make such a decision, would destroy in such a way, by means of a change of his own doctrine, that which has been established by complete generations with reliance upon this doctrine. No wonder that when an attempt was again made to obtain a different decision from the Supreme Court, the advocate general Ledeboer, declared:
The doctrine of the Supreme Court can be seen as valid law and the continuity of case law is of such a paramount importance in a matter like this, that already for this reason alone I deem the first ground unacceptable. (trans.lhc)164 165
We have thus quietly arrived from the authority of case law to that of the actual behavior of the persons subjected to the law and the recognition of law inherent in it — which is mostly called customary law. The one is closely connected to the other. We must postpone the further elaboration of this point to the next section. 357
One more remark here. The appeal to case law is one of the factors in the finding of law; it is used alongside others. But it can also cut something off, namely an appeal to the tradition, the historical interpretation. It has indeed the same character: an affiliation to the preceding is advocated in both, simply because it exists. It is because of this that an appeal to tradition cannot suffice if it stands alone, contrary to a standing judicial practice.
One who wants to change existing case law can appeal to an old tradition, from which the case law wrongly deviated, if he gets support from other data, fighting case law by simply referring to history is useless. Once one has deviated from a certain line, why should one bend it back, just because one has deviated? Even the most recent history is history, people forget this too often; When the written law remains unaltered, the genealogy of a rule of law lays in the case law. The court of ’s-Gravenhage166 therefore rightly rejected the statement that the right of priority of the lessor should also apply to the shop supplies, when this statement, contrary to standing judicial practice, was only defended by an appeal to the history preceding the Code.167358
§ 20 The authority of science.
The French text of art. 1 of the Swiss Code aligns solutions under case law with solutions based on doctrine, the German speaks of valid doctrine (bewährte Lehre) and Portalis pointed in the place cited above (block 335) to the “opinion reçue” as a source alongside the uninterrupted series of similar decisions. Therefore, the question arises: should we also award authority to science?168 359
It seems obvious to expect an answer in the negative. Science aims indeed at knowledge of the law, it intends to determine what the law says, how could this determination in its turn be a valid source of law? However, the issue is not so simple. Science — and this time we speak in a general way, not of legal science alone — is never only reproduction, it is always at the same time the creation of something new. The novelty can be accepted or rejected by the colleagues of he who presents his propositions. If this happens, the textbooks say that the science teaches that something is one way or the other. Science is then no longer the conviction of someone or other, but a social phenomenon: the joined opinions of those who are recognized as authorities in a certain period. Science gets authority in the sense that the masses adhere to it and accept it as irrefutable. Anyone who lacks the talents or time to check it, adopts it.360
Regarding legal science this has a special meaning. Not when it limits its inquiry to the search for historical statements or social structures, in that case it is confronted with the same requirements as historical or sociological research in general. But once again by legal science we meant legal science in a more narrow sense, that which only describes the existing law. This science makes rules by uniting legal provisions, legal decisions and whatever else it may process as material and proposes these as law. Just as the legislator it speaks in an abstract way, not like the judge in a concrete way; but it envisages these relations more and more as actual phenomena and tries to find its way in these. It provides guidelines, which the judge should follow in the conjectured cases, and tries to find a further determination when the data are insufficiently clear. In doing this it applies all the methods we describe in this book. 361
By virtue of these methods its description is at the same time creation. It is processing data — bound by these data — but the processing includes the novelty. Its object, the existing law which is external to it, is changing while being elaborated upon by it. Evidently the law is continuously influenced by science. The judge seeks advice in it. What he adds to the system is mostly not his own ingenuity but has been prepared by science. The “prevailing doctrine” is a relevant factor for everyone who wants to know the law; there is no juridical book that does not take it into account, whether we use the word “doctrine” for theory and case law together, or whether we apply it in opposition to case law and as the indication of the mutually concurring opinion of the authors. 362
In this sense science certainly has authority. Nobody can back out here. The one who attempts to do so, stands alone outside the development of the collective mind as an opinionated and self-righteous man. Still it is not this, which we meant when we asked the question about the authority of science in the beginning of this section. What we meant there was not: does one have to take into account the authority of science, but does one have to resign oneself to it? More in particular: is the judge who is placed before a case, which he has to decide, allowed to base his decision on its result, without further inquiry into the data processed by science, and does he have to adhere to it, even if personally he thinks this result not to be right? 363
Put like this, the answer has to be in the negative again. Every scientific opinion is exposed to the criticism of later science, simply because it is scientific.169 As far as science is concerned, no statement has an unconditional authority, however high the value of the one who defends it may be estimated. Science is always critical. And in virtue of his office, the judge is called upon to do scientific research. The judge knows the law, this has traditionally been the starting point (jus curia novit).364
But doesn’t this obligation to have a critical attitude also holds with respect to case law? Where lays the difference? It lies in this: that the judiciary can impose its doctrine, while science cannot. Legislation and case law have authority because they have power; science possesses only authority, and this is why its authority remains of a different nature. For the one who seeks the law, science takes the position of a female counselor, who one would be wise to consult before one sets out on unknown ground, and not of somebody who commands, like the legislator, or who can undo by his decision what was done, such as the highest judge. It is the real power of the judge, his position as the highest interpreter of the law in the communal life, which makes his authority different from that of the counselor. Science lacks this position. 365
The authority of science remains of a different nature than that of case law. The “s'inspirer des solutions consacrées par la doctrine” expresses correctly the relation between science and finding law; for the relation between the judiciary and the finding of law the wording “s'inpirer de” is too weak. There can be a duty to obey the case law, which is lacking in respect of science. To adhere to a scientific opinion against one’s own conviction is completely unscientific. 366
And still in a certain domain people do follow such an opinion without personal inquiry and this happens justly, according to me. But this has to do with the nature of this domain. Whenever the judge deciding cases of private law has to go into the field of international law, we see that the authority of science gets another and higher impact, than it has within national law. This happens in the field of international private law, as soon as we are no longer dealing with the simple application of the few existing provisions about this matter. It also happens once in a while when the judge has to apply rules governed by international law. We do not encounter this phenomenon with the Supreme Court, the system of cassation entails that the Supreme Court sees its task mostly confined to the establishment of the meaning of the legal provisions in question. But with the lower judiciary we certainly find time and again, that some rule is borrowed from science. What is learned from this becomes a foundation of the judicial decision. 367
A good example of this is offered by a decision of the court of Maastricht of 20 Jan. 1921170 containing an explicit rejection of the theory which was held as historical interpretation171 by the doctrine of the time when the statute was established. It says that the theory which divides an estate into movables and immovable property and makes these inheritable according to different rules, is rejected by science as incorrect; it should only be accepted when the law obliges so, but the law gives the interpreter the liberty to “follow science.” And the current science stipulates to treat the estate as a whole. 368
But how do we explain the fact that science has a significance in some domains, which it lacks elsewhere? Different factors collaborate here. Firstly negative: the legislator leaves it to the judge; there exists no statement of the legislator which doesn’t leave room for the authority of science. Furthermore, the judge feels that he is often not knowledgeable enough in these cases. In national law he is allowed and even obligated to say, that he “knows” or at least has to know as much as any author, in international law he is aware that it is already a very demanding job to get acquainted with the scientific theories; he seldom feels competent to have a personal opinion about them. But these are explanations which make it psychologically plausible why it is that the judge leans on science when he has to form an opinion about questions of an international nature. They don’t justify that he is allowed to do so. 369
Why is it science to which authority is awarded? 370
The answer must be: because it is only science which establishes rules in this domain. Time and again we have made it clear that the judge is concerned with the law in actual decisions; but because the law has the function to create order in the community, there is the need to derive this decision from a rule or at least to understand it in terms of a rule. In international private law or international law, it is, at least as far as the legal system of his own country leaves him at liberty, an international community to which his decision is attributed. The only authority, which is recognized there, is that of science. This recognition is based in principle on no other ground than that which makes people follow science everywhere and in every domain. But when there is no other source of authority, this one acquires a higher authority of its own accord, that demands obedience. Because without this authority there will be no order, no rule.
The law demands authority from its very nature. When in the communal association there is no authority respected such as the one belonging to the legislator or the judge, the description of the facts, science, is made into the authority to determine what ought to be. The nature of legal science, at the same time a description and prescription of rules, makes this possible. 371
Before the codification before 1809 in the Netherlands, science possessed this same authority in regard to the received Roman law, which was respected by nations subjected to multifarious state-authorities and legal orders. It was international and was accepted internationally. This explains the fact, which surprises us so much, that our judges awarded authority to the Italian and French doctrine — and even more authority than our own doctrine currently has. Conversely our authors also had authority in France. This was all ended by the codification. But on the international plane it still is like this and it will stay like this, as long as no legislator is active there and no authority is attributed to the judicial statements of a court, whose decisions can actually be implemented.
Only by following science does it become possible for the judge to give his decision the place in the legal system it needs. Without this it hangs in the air, it remains too subjective and isn’t convincing, even if it is enforceable. And the judicial decision also demands the creation of such a conviction. The judge who simply sets aside science in the international domain, goes beyond his power. 372
Therefore “adhering” to doctrine indeed contains an element of obedience here, which is lacking elsewhere. It can be derived from what I argued before that this doesn’t mean that the decision in an individual case is completely dictated by science. For neither is it simply dictated by the written law.
§ 21 The meaning of facts. Customary law. Custom and legal rule in general.
Law is found by determining what has to happen in a certain factual relationship, according to the rule. Is it possible to derive this rule from what is actually done by others in similar relationships and is considered by them to be appropriate? 373
Is the opinion about what is rightfully fit partly determined by what actually happens in society, provided that this precedes the relationship that is presented to be judged and that it insists its importance to the assessor because it happens repeatedly and to a great extent? That is the question which we already touched a few times and which we must now treat.
Usually one formulates the question at issue here thus: does custom create law?172 Objections can be raised to this formulation. In fact it contains two or even three questions which according to us have to be separated: firstly the one we indicated above, next the question: is the judge who must later decide similar relationships bound by the decision which was given before by persons endowed with authority, and then furthermore, is tradition binding, by the way it reveals itself not only in this but also by the spreading of these rules in other places? The question of the binding force of customary law thus contains both the question regarding the authority of case law and science and also the question regarding the value of tradition; it becomes a question about what is generally called the unwritten law. 374 We have treated the authority of case law and science, we have also talked about the meaning of tradition in the present system and will make a few remarks still about the relation of all this to the real customary law. At present we restrict ourselves to the binding nature of actual behavior.173 Here also the answer seems simple. The Law containing General Provisions prescribes that custom is no source of law unless the written law refers to it and that a written law can only lose its force by a later law (and therefore not by custom).375
Therefore no customary law. When the written law refers to custom, it is the law that ties certain consequences to specific behavior; the law, not custom, binds. 376
However, this case isn’t that simple either. We have already explained repeatedly what the arguments are against the doctrine that reduces all law to the written law. We will not do that again here. It is the nature of case law as decision, it is the nature of legal science as an opinion about the content of law i.e. about what rightfully fits, which designates both of these as factors which have authority for the law. In the same way, the reflection about the nature of legal rules teaches us that the actual events partly determine the content of law and must do so.
The law is a set of rules that are in force. Being in force has a double meaning in the law. People speak of prevalent law in the sense of rules which are followed, but also in the sense of rules which must be followed. If only the fact of being followed counted, custom and law would be synonymous. Everybody who recognizes the authority of the written law, rejects this view. Because it is the law who teaches him what is rightfully fit to do, even if people may be acting differently. Still the law is not exclusively determined by actual behavior, neither is it completely dependent on the authority which decides the law. The nature of the law demands implementation, when a regulation is not at all implemented, it will no longer be law in the end. 377
There is always a tension between the legal rule and the actual events in the society. If the actual events were to completely answer to the rule, it would make no sense to impose it: why prescribe what everybody is doing anyway? But conversely, when the actual events are clearly at continuous variance with the rule, the rule is bereaved of its authority, is no longer law. The law is a set of provisions which are imposed; at the same time, it is a regimen which is followed. The twofold character shows itself equally not only in the words “to be in force”, but also in the word “rule”. 378
Legal rule is equivalent to legal prescription, “as a rule” is however synonymous with “usually”. And not only do these words have a twofold meaning, there are several others in which the legal language expresses this peculiar characteristic of the law. One can think of normal (that which answers to a norm, but also that which happens usually), of legal order, of ordinance and so on. Many difficult questions of legal philosophy would have been understood — I do not say “solved”, because there is no solution possible—if people had paid more attention to this twofold character of the law. At the same time this belongs to the province of that which happens and that which ought to happen, of the “Sollen” and the “Sein”, as the Germans call it.174 379
There is a tension here that people can recognize, but not remove. And even less so, because both claim absolute dominance. It is because of this that we see time and again that the one is sacrificed to the other, either the law is subordinated to custom, as sociologists are wont to do, or custom is set aside by the written law — which is typically juridical, at least during the 19th century and in our present time,. This becomes quite clear with the already oft cited Burckhardt. According to him it is impossible for customary law to stand next to the written law. 380
This will lead to a contradiction which cannot be solved. Customary law, which would not derive its force from the written law itself, is ill fitting with a State organization which confers the exclusive power to specific persons to establish statutes, i.e. binding rules of law.
Common law is a feast for the historian researching the facts, but an abomination to the dogmatist, who would not know how to deal with the right to construct common law in his system formation. Law and custom are mutually exclusive as grounds for law, says Burckhardt. (trans.lhc)
It is not possible to contradict this: the written law leaves no room for another authority next to it. But what follows this immediately? The statement:
We do not deny that common law exists(trans.lhc). 175But if customary law exists, isn’t the doctrinal thinker who can’t accept this, simply condemned? Shouldn’t he also accept the fact and isn’t it pernicious for the system when he recognizes that there shouldn’t be, but still is law outside of and in contradiction to the written law, but that he can’t give this a place in his system?
Two powers confront each other here and also in my view there is no solution that points out a place for the one in the system of the other. But this contradiction is bearable, a twofold authority next to each other can be recognized if we understand that we can arrive at one decision in individual cases, which sometimes will enforce the written law over and against custom, and at other times will ensure victory to custom over the written law. This is unbearable only to he who thinks that it should be possible to derive every decision on a legal issue from a closed set of rules. If this were correct, there could only be one source of law. 383
Our entire argument aims to prove the erroneousness of this proposition. If the law were an open system of rules, that we tried to understand logically as much as possible, but could never master logically, that changed daily with a continuous stream of new matter, it would not be difficult to tolerate the break caused by the recognition of customary law in a system which is built from the point of view of the written law. In that case the acceptance of the facts would completely fit in with that which people have perceived as the nature of law.384
However, the human mind tends always to search for one smooth solution of problems, and therefore it is no wonder that people have tried time and again to do away with the contradiction which they had to acknowledge. They never succeeded, and to my mind they never will succeed. The attempts have obscured the contradiction, which could not be gotten rid of. Two of the most well-known of these attempts may be named here. In the first place a statement in the Pandects, which goes by the name of Julianus.176According to it, written law and custom are equivalent, both foundations of law, because the will of the people is expressed in both and because there is no difference whether the people declares its will by voting or “by conduct or resignation” (rebus ipsis et factis). This statement is based on the idea that custom implies a conscious expression of the will of a people, about what should be law, an idea which is contrary to the real world, for an act is not performed because it is lawful, but the legal consciousness develops in the course of and by action. As Regelsberger177 says:385
In the beginning, a standard is not yet right; in practice it proves its legal character and conquers the consciousness of the community. (trans.lhc)
While customary law becomes indirect legislation here, for the proponents of the Historical School the law became the indirect expression of the mind of the people, which expresses itself directly in custom. Leaving aside the objections against the doctrine of a mind of the people in general — how is it possible for the written law to have a significance of itself, when it is nothing more than the formulation of that which expresses itself directly as law in behavior? One or the other: either this formulation brings nothing new, in which case the law has therefore no autonomous value next to custom, or one makes a concession, like Puchta does — together with Savigny the leader of the Historical school —by admitting that the written law sometimes helps to push an opinion across the threshold of the law, which has not yet become a part of the common sense.178 But in that case the doctrine, that the law is enclosed in the mind of the people and is only expressed by the written law, is already abandoned. 386
§ 22 The meaning of facts. Customary law. Custom in the private law of the Netherlands, especially versus supplementary law.
In every legal order customary law stands next to the law which rests upon authority. But with this statement we haven’t made much headway, the demarcations between both can be made very differently; Every legal order will determine these in its own way. Also, here we have to beware of commonplace. We have to elaborate the meaning of custom for private law in the Netherlands in our times. 387
It must then be noticed immediately that custom has a completely different place here than in present-day state law. It was especially state law that made people ask again the question regarding the binding force of the actual events. Whoever wants to see this for himself should read the explanation of this issue given by Struycken in his ‘Staatsrecht388
’179 which is as always very clear. In state law the recognition of custom pertains to the foundations themselves of the organization of our state (parliamentary system), custom clashes with very explicit and coercive legal provisions. In the domain of private law people are mostly capable, at least to all appearance, of forcing the custom to fit within the system of the law, only on a few occasions it breaks through the wall which closes off the system.
How does this come about?
One can enumerate two grounds for this. Firstly, this one: every question of private law can be presented to the judge in the end; in many questions of state law, and even the most important, the possibility to invoke such a judgment is lacking. This has two consequences. In the first place in private law the judge who is called upon to maintain the law, backs up the law and rejects the custom which clashes with it, while in state law the custom easily makes its way, because the persons who are called upon to maintain the law, are the same persons whose actions against the law ask for a recognition of customary law. And in the second place the conflict between the written law and custom as it plays a role in state law, becomes an opposition between the written law and the judge in private law. It is not the behavior of the persons concerned, but the recognition of this in the judicial decision, which put its own authority over and above the authority of the law, in other words, in the private law the issue of customary law often becomes an issue of the authority of the judiciary.180
When in our times married couples separate by common consent in a continuously increasing degree, the question is not whether art. 263 Civil Code is set aside by the change in opinion that is expressed by this, or by the act itself, but the question is about the conflict between the case law of the Supreme Court and the text of the article. The conflict between social action and the law as such doesn’t come up for discussion in the law, however it often forms the background of the conflict between judge and written law.390
This is the first ground of the difference. The second, even more important, is this, that private law, contrary to state law, is primarily supplementary, regulatory law and that the issue of the relationship between custom and written law is for this part of the legislation naturally different from that of compulsory law. When we talk about this relationship in private law, we have to differentiate between supplementary and compulsory law.
We start with the former. According to the Civil Code agreements do not only bind to that which is explicitly stipulated by them, but also to everything which, according to the nature of these agreements, is demanded by equity, custom or the written law. 391
Under the law, lasting customary stipulations are deemed to be tacitly included in the agreement, even though they are not expressed in it. Both of these legal provisions are commonly cited as examples of the way in which the relationship between law and custom is expressed in the system of law in the Netherlands: “Habit does not give right, except when the law refers to it”. In this way custom gains its place in the vast domain of contract law. But is this only a place of minor importance as a result of such reference, as is mostly taught, or does custom have an independent significance? This question leads to another, more practical one: what is the case, when custom deviates from the supplementary law? Will the legal provision be in force or the custom?
This question is hotly debated. The Supreme Court decided in 1874181 that custom derogates from the written law; in 1908182 however it is said that custom cannot give title contrary to the legal provision; in 1932 this position was abandoned; it is not certain whether the Supreme Court then let the use in general prevail over the supplementary legal provision or merely the customary stipulation.183 The lower judiciary is divided.184 Molengraaff185 is on the side of the first mentioned ruling; mostly people pay homage to the second or look for a middle course: Kosters gives preference to custom, provided that it is apparent that the parties were acquainted with this custom186 J. van Kuyk subordinates custom to the written law, but puts the lasting customary stipulation above it.187 Houwing finally sees the intention of the parties as decisive, but not that which the parties actually intended, but what they would have intended if they had deliberated with equity and good faith, in other words he will prefer custom at one time, at another time the written law, according to what equity determines.188 392 As far as we are concerned189393
— we also hold that in a conflict between supplementary law and custom the latter should prevail. I would like to follow custom and not the legal provisions in the examples from case law cited by Houwing: regarding a conflict between the customary place of payment and the place determined in the Civil Code190 and between the custom of a certain form of sublease and the prohibition of this in the Civil Code.191
One may not invoke the legal provision that habit does not give right to the contrary, as was once done by the lower court of Rotterdam.192 The custom derives its force from the written law, it is said, and therefore must yield to it. It can be argued against this, that the “law”, from which the custom derives its force, is different in nature from the “law” with which it is in conflict in the conjectured case. Even if custom would only be binding because the written law says so, this still doesn’t imply that it would be subordinated to supplementary law. Did the legislator, who certainly intended to get rid of all existing customary law by the above mentioned legal provision, and wanted to acquire the monopoly over the formation of law for the future, also have in mind the conflict between generally accepted standards of social and economic life and the provisions of supplementary law? 394
From what can be discovered about the genealogy of the article, it is not very probable. But however that may be— the question whether custom derives its force from the written law cannot be decided by the written law itself — one who thinks that the conflict between custom and written law can be decided by a legal provision, has already made his choice before considering the pros and cons of each. 395
We therefore have to consider the question on its own, apart from the Law containing General Provisions, and then my opinion is based not only on the nature of the binding force of a contract but also on the nature of supplementary law.
Let us elucidate both. At present it is generally assumed that the words of a promise have to be interpreted according to the understanding that one can and may attribute to the person to whom the words were directed. What the person who promised actually intended is not decisive, but that which the other party could think and was allowed to think that he intended. The meaning of the words according to parlance comes first, the expectations based on this have to be fulfilled. One who wants to determine the extent of the obligations brought by a statement, begins by inquiring into the bearing of the words which are used. It is custom which teaches him this. Must not this same custom be a guide to him, when he wants to establish the purport, not only of certain words, but of the statement as a whole? Every promise that is legally binding can be looked upon in respect of its individual meaning (what did the promisor intend) as well as its societal function (what was the nature of this promise as a phenomenon of social interactions?). 396
Both of these together determine its content. The parties are free to arrange things as they want, but as far as they don’t do so, the agreement must be interpreted according to the general meaning of the wording in similar agreements. If this applies to the words, why would this not apply equally to the meaning of the agreement in general? Determination of the meaning of the words, interpretation and decision about a certain consequence that was not taken into account, become merged. If I am allowed to determine the meaning of the word “payment” according to custom just like any other word, would I not also be allowed to determine on the basis of this same custom, that in a given relationship “payment” means “lay out money that will be collected”, not “bring money away” (the example of the Supreme Court in 1908, cited above on p. 135, block 391).397
Interpretation of a promise according to parlance leads to the recognition of custom as something that co-determines the extent of the accepted obligations. And therefore, it also leads to the setting aside of supplementary law by a custom that supersedes it. There is no ground for a distinction between use and customary stipulation. The stipulation only has independent meaning if it has got a characteristic formulation, and as clause de style regularly occurs in written agreements. Then an appeal is made to what is usually agreed, the custom is about the question of what parties are used to do. There is no reason to attach more force to the usual agreement than to the usual action.193 398
Among the authors writing about our subject there are those whose train of thought goes in the same direction. They restrict this conclusion however to the general accepted standards of social and economic life, the behavior, which is specific for trade, and distinguish these (usages conventionnels) from customs (coutumes).
They attribute force to generally accepted standards because the parties wanted it like this but deem custom powerless in the face of the written law.194 I think that this difference doesn’t exist; the foundation of the obligation in both the case of custom and accepted standards, is the actual behavior in similar cases; the accepted standards are binding, not because the parties wanted it like this, but because the content of the statement which binds them can only be determined in relation to the customs according to their social meaning. The will only matters in a negative sense. If the parties do not want usage— they are free to decide so, but this must be apparent.399 The difference in foundation has a practical meaning if one asks the question whether the parties have to know the custom that is invoked. The authors to which I referred, Gény for example, answer in the affirmative.195 I would like to deny it: to refer again to an example from Houwing’s essays — he who rents out a leasehold farm in Zeeuwsch-Vlaanderen, has to tolerate that the local customs of such agricultural tenancy agreements are binding upon him, even if he lives in France and knows absolutely nothing of these customs. Houwing himself corrects the conception which is disputed here by taking into account not what the parties actually intended, but what they would have intended, if they had deliberated with equity and good faith. Equity and good faith guide him then to set aside an appeal to the lack of knowledge of the custom in a case like the one under discussion. 400 It is clear that a superfluous fiction is used here;196 a reference to the intention can be left aside. In agreement with the authors to whom I referred, I see the custom as material for the interpretation of the agreement, but unlike them, to me interpretation is not an inquiry into the will of the parties — the material doesn’t serve to detect their “intention”, but rather the objective meaning of the statement, its social meaning and legal consequence.401
It already follows that custom is binding, not because the written law refers to it, but because it partly determines the content of the binding promise, regardless of whether the law refers to that custom or not. In addition, analysis of the nature of supplementary law also explains that it cannot have force against custom.
We already pointed out above that supplementary law has two functions: bringing order — whether based on the probable intention of the parties involved or not — and giving an indication of what the legislator thinks fit in a certain relationship where the parties do not express themselves, which means giving pressure in a certain direction.
In as far as provisions of supplementary law regulate, they must surely give way to custom. The presumption that the parties would have wanted it this way disappears as soon as the custom differs, and an external regulation lacks its reason for existence when social life has come to order independently. Regulation of contractual relations is always an addition to assure certainty in respect of that which the parties themselves left uncertain— there is therefore no room for regulation when custom offers the certainty. A legislator who drafts rules of supplementary law doesn’t say: thus, I command — but thus it will be, if you didn’t formulate a rule yourself. 402
And we may supplement the latter: if the rule was not given from elsewhere by custom. The function of supplementary law to constitute order in social life, makes it subordinate to those rules which are offered by this life itself. Whoever argues that custom cannot do away with a rule, forgets that the rule is not set aside by custom, but restricted. The rule of the written law is general, plenty of space remains for it next to the more specific regulation by custom. Custom gives rise to differentiation in the application of the rule, to refinement of law. 403
But isn’t this different, when and as far as this regulation by supplementary law also implies a judgment? We argued above197 that by his prescriptions the legislator also indicates what seems fit to him for a certain relationship. Is it possible that such a prescription, which we must surely respect, is set aside by simple non-compliance, provided that it is extensive enough? 404
In this way the question comes close to the issue of custom versus compulsory law. We will talk about this directly. As far as the supplementary law is concerned, the answer to it can be found in the deliberations above about contract law and the meaning of the supplementary legal provisions.
The promise is not binding because the written law says so, but because the promise-law stands next to statute-law — the latter puts limits on the obligation by promise; it does so in the compulsory law. This implies that when the social meaning of the promise is indeed determined by that custom, in the end every supplementary law will give way to that custom. But also here we have to beware of the one, easy, conclusive answer. It is far from true that every rule of supplementary law may be set aside whenever it is infringed repeatedly in a certain stated case. 405
We must distinguish. When the rule is new, the custom should have come into existence after the rule was made. Customs which preceded the rule were clearly not respected by the rule, which intended to give a new direction to social life. As soon as we accept the competence of the legislator — and I repeat that this happens in this book a priori — we have to comply with him if he wants to direct social life by his prescriptions. But if this life puts up resistance, if thus a custom develops or holds out after the rule is made, the moment can come that custom prevails. 406
This first and foremost. And secondly: custom is a quantitative magnitude. There are volatile customs, which occur here and there, there are usages which repeat themselves time and again but are not very important, there are customs which are firm as a rock and respected by everyone. In as far as the legal rule— also the one of supplementary law — must be valued higher, has to be seen as expressing something more than just regulative order, or direction, — in the same measure the custom will have to be stronger and more extensive, in order for it to be possible to appeal to it in opposition to the rule. 407
It is no coincidence that it is precisely in a provision of law which is purely oriented at bringing order that the power of the use of custom against the law is so clear. This becomes different when we arrive at the prescriptions of new laws (such as the employment contract and the company limited by shares), where the legislator definitely wants to move the social life in a certain direction and only holds back its compulsory power because of diffidence for intervening too severely. The custom has to have already been very strong, long standing and extensive, to be able to conquer such prescriptions.408
There is a balancing here. This is the correct core of Houwings’ remark that equity and good faith must decide what should prevail: custom or supplementary law. 409
To summarize: supplementary law that is regulation gives way to custom, supplementary law that determines the direction in which the parties involved should go according to the opinion of the legislator, gives way to custom only when this custom is very strong. Custom versus compulsory law will be treated below. First, we will have to consider another facet of our question.
§ 23 Custom and supplementary law (continued). Requirements. Significance of the formulation. Evidence.
When does a custom become law? 410
Firstly there has to be a repetition of facts: in similar relations the same actions must have occurred. The appeal to custom is not very different from the assertion: everybody did as I did, or: I might expect that you would do as everybody else does. Look at the examples in the previous section. In general people in Amsterdam collect the rent of week-dwellings from the tenant, it never occurs that the tenant brings the money to the landlord at his house. Thus it was pleaded as a defense in one legal action; in another legal action: it is common for farmers in the Haarlemmermeer to yield a small patch of land to an employee to plant potatoes for personal use; permission for this from the proprietor is never asked.
However, is the existence of custom already demonstrated when there has been evidence given of the facts i.e. of the repetition of actions, or should there be something else in addition to this? Is it necessary that these actions were the result of the conviction that one should act as one does? People speak in this respect of the opinio necessitatis, which would be required for customary law. This is not a happy expression: a necessity to act as one did is out of the question in respect of supplementary law. If one were to use the expression opinio juris instead, the objection would not be removed: the parties involved do not think of law; the action is neither preceded nor accompanied by the awareness that it should be done in the way it is done. When people act differently from the custom, this strikes nobody as being improper, provided that it is stipulated explicitly; if this is not the case, the opposite party is allowed to suppose that others will find no fault with his compliance with the custom, and that also conversely the others will act according to the custom. The impropriety only comes about when the custom is set aside without any stipulation. 411
There can be no legal conviction on which the action is founded and which accompanies it, but this does not mean that it is always irrelevant what the parties involved have imagined to be the consequences of their actions, that it is always only the series of successive actions which constitutes the custom and by this the law. Acting continuously in the same way, can indeed obligate to continue acting this way, but it is not necessary that this happens, and it will not happen if the parties involved have remained conscious of the fact that their actions were not obligatory and therefore the expectation or trust that the custom would become rule (in the double sense as indicated at p. 130) could not have been given rise to. 412
It could be that year in and year out an office clerk gets a bonus on New Year’s Day, that all clerks in the same position also get similar rewards, and that nevertheless the person concerned, just like his superior, still remains aware of the fact that it is an act of benevolence of the latter when he hands over the envelope. In other words: the opinio juris is not a positive requirement, but in a negative sense, the consciousness not to be bound could prevent the coming into existence of customary law. Law can develop from habits, but habits are acts in their social meaning; this meaning can’t be established without taking into account the assumptions of those who act. However, the assumptions of specific parties do not matter here, but rather the meaning, which is typical for the act, the expectation which it invokes in a certain social context. 413
It is clear that it is impossible to give a general rule that determines when repeated use has gained such intensity and firmness that people in the future can also depend upon a further continuation of the series of successive actions, provided there is no stipulation to the opposite effect. Again, it is the judge who in the end has the decision here. But this does not yet mean that it is the judge here who creates law; people have asserted this for the entirety of customary law, but unjustly so: the judge formulates it and this is very important, but it is not a creation. Here we touch an issue of principle. 414
It is possible to imagine customary law that has never been confirmed by a judge. It is true that the judge can end doubt whether a certain custom is law and that in doing so he adds a new rule to the system of law, but he does so because he is convinced that this rule was already hidden in the system, that the formulation comes from him, but not the content. Moreover, the doubt can be surmounted in another way, i.e. by mutual consultation. It could even be that the doubt never arose, that the rule crossed the threshold separating habits and law, without any deliberate intervention. The latter rules are the strongest, the most self-evident. 415
The old scholars of customary law, who started to record it, knew this already. One of the greatest of them, Philippe de Beaumanoir (1283), observes198 that there are two ways to establish the existence of a coutume; either it is so general that it is followed everywhere without any contestation, or it may be contested and then it can be proved by court ruling. An example of the first is the obligation of somebody of noble birth to pay a recognized debt within 15 days after order, and of the common man to do so within 7 days. 416 At present it is still the same. The customary law can only partly be known from court rulings — only research of social practice itself provides real knowledge.199 When John Austin wrote that customary law was only a type of judge's right, he went against the then prevailing doctrine in England,200417
and forgot that the judge is bound to custom as much as to the law. Were it true, all law would be judicial law. In the end the idea that only the formulated rule is law underlies these conceptions. This belief is sharply stated by a young writer, Alf Ross:201
A habit as such cannot be a source of knowledge for such a thing as law. The custom cannot be understood as a non-independent (valid through recognition by the judge or the legislator, lhc) source of law, as long as no specific, objectively unambiguous criteria can be indicated to determine when something is law, italics PS. (trans.lhc)
In our country B.A. Kahn202 stated to the same effect already before him:418
There is only a rule of law when its prevalence is uncontested and its content unambiguous. (trans.lhc) When put to this test, much codified law could not be called law. There is an overestimation of the formula, the assumption that in every conceivable case the decision was given by the formula, but this is completely refuted by the practice of our case law, as it is based on the written law since the codification in the Netherlands from 1809 on, and also by our understanding of what interpretation means. It is pure circular reasoning (petitio principii) that only the law which is bound to a formula is law.203 The experience of centuries opposes this as much as present practice does. Case law has been built upon custom and it continues to be so.
The significance of the formula is not at all denied thereby. On the contrary, I admit, that as soon as the judge lays down the customary law, it seems he only ascertains the existing, while in reality at the same time he acts formatively. But just as it is incorrect to contest the novelty of the judgment, it is incorrect to fail to recognize that the existing is ascertained by it. The rule existed before the court ruling, the court ruling gives it form and thereby a new meaning. 419
What is the significance of the formulation of the customary law?
Before we answer this question it is necessary to point out that especially in our time a formulation given by others than the judge is recognized and may even be more important. A formulation by a judge is always incoherent, more or less accidental, but it is possible to point out a deliberate, self-contained description of customary law. By this I don’t refer to the fact that large pieces of legislation are nothing other than formulations of customary law. Rather we adhere completely to the common conception that the law is the expression of the will of persons endowed with authority, in opposition to custom.
But not only the state-authority proceeds to make such a description and recording of customary law, also other authorities, to which people freely submit themselves do so. Traders associations draft codes in which the rules, to be followed in their branch of trade are carefully noted down. The insurers from Amsterdam and Rotterdam have done so already for ages. In our time commerce in its proper sense has followed their example on a grand scale. Corn, stock, coffee, and so many other types of trade have gained their own kind of codification in this way, in which the entire purchase and its possible consequences are regulated. The shipping branch has made international regulations: already for years the York-Antwerp rules determine the law concerning the general average; for transport by sea the Hague Rules were established in 1923. 420
Regulations like this contain an element of written law and of customary law. They are neither imposed nor prescribed by a State-authority; the parties submit themselves freely. But often they cannot do otherwise in social reality. These are abstract prescriptions, which apply automatically as soon as the parties enter into a certain type of agreement. Prescriptions by which sometimes new law is called into being, or new solutions to difficulties are aimed for, which are contrary to existing practice. In that case they are already very close to the written law — especially its supplementary part. But we are not talking about this — now we speak about that part of the regulations which does nothing more than lay down that which already exists in formulae that are cut as sharp as possible. 421
If we pay attention to this, we observe the meaning of these formulations clearly, a meaning which also pertains to the formulation by the judge or any other person who describes customary law authoritatively. 422
I see three kinds of consequences:
1°. The formula itself becomes part of the law. In turn it requires interpretation. The actual practice can be an expedient for this, but it is no longer the object of inquiry, rather the formula is, the rule as it is recorded in words. Grammatical and historical inquiry into these will play a role in its application. That which was meant as a record of the facts gains a meaning independent of these facts.
2°. The formula coagulates the law. The development of law may not come to a standstill— that will never happen — but there is certainly a strong slowing down. Law that is not formulated is easily modified; in the face of a rule which is chained to words, every change must be fought for, it always offers resistance. That which is expressed in words, not just vaguely felt, imprints itself in the conscience, and gives support when there is doubt, but at the same time it is not easily given up. 423
3°. Because of the formulation, the requirement of customary law that not only was this action custom in the past, but that it was regular until just prior to the decision, is no longer valid. The formula remains, even if its foundation, the actual practice, lapses, provided this doesn’t turn into its opposite. It could be that during a certain period, the relevant conditions for this practice are lacking, while the rule continues to exist. A rule of customary law regarding war can endure — even though there is no war for years, but this is only possible if it is expressed in a formula. It is then not possible any more to derive the conclusion that there exists a rule of customary law from a practice from decennia ago. 424
Taken together these three consequences are all the result of one: a formulation concerns the assessment of the past, but this is done for the sake of the future. It has influence upon the future. We see that the effects of formulation are important. To this can be added that we can only say that we are familiar with something when we have a clear understanding of it and can therefore summarize it in a formula. We master or know the customary law only when we describe it. There is always the desire to capture it in words, but however important this capturing may be, it is not the customary law itself. 425
Once we have paid attention to the significance of the formulation, we can trace this back to the customary law itself. The contrast between the custom and the constant customary stipulation is no different in the end from the contrast between unwritten and formulated customary law. Provided only that we realize that here, unlike the above mentioned case, the formulation does not come from an authority, either imposed or chosen, but from the parties concerned themselves, and therefore in turn rests on nothing other than custom. 426
Here we see also the differences indicated above. The constant customary stipulation has to be interpreted — even this interpretation is analysis of text, also here there is the need for inquiry into language and history. The stipulation brings consistency. It can continue to exist, even if the conditions for its application are lacking. Yes, the stipulation can become so separate from the actual state of affairs, that it can pertain to a situation which has never occurred during the time that the stipulation was in force. After all, it is not necessary that the customary stipulation regulates an event which regularly happens, it can also pertain to an event that is foreseen as a potentiality. In the same way as the codifications of usages acquire the character of small codes, which regulate the future without taking into account what has happened up to now, so the contractual stipulation can become separate from the actual events. 427
A clear illustration of this contradistinction of custom versus customary stipulation, is given by a court ruling during wartime.204 The conflict concerned the question whether the stipulation: war ends the agreement, was a customary stipulation in the coal-trade. It could be established that the stipulation was regularly made, but not whether war would also make the agreement void when the stipulation had not been made. In our country the question had clearly not presented itself for the coal trade before 1914. There is therefore not a custom, said the Court. The Court of Appeal set this aside. It was not relevant what happened, but what was stipulated. A customary stipulation could be evoked. The stipulation could have become a customary one, although it had never been implemented. 428
Let’s summarize our conclusions once more for the benefit of clearness in this difficult matter: there is unrecorded customary law and described, formulated, customary law. This description can happen in case law, it can also happen in another way. The description has autonomous significance. But also, the undescribed customary law can be law. It exists when there is such a kind of repetition in the way people act that in social practice it is counted upon to be continued. The expectation raised by the actions is decisive in this respect. 429
Herewith the treatment of the significance of customary law is concluded.
In the literature one can find two more questions discussed, which in our view do not merit an independent treatment. Firstly, whether custom can be local or has to be apparent in general use. The answer is not uncertain — custom is regular practice in a certain environment. This environment can be smaller or bigger, local or distinguished according to business and occupation. There is no reason at all to make a distinction. Secondly, whether it is possible to inquire into the reasonableness of a custom and whether irrational customs can be set aside as having no binding force. But what would be the argument to defend the competence to test a certain kind of law for reasonableness, when it has grown irrationally and is based specifically on the fact that it is not devised, but has originated autonomously in practice? Just as when codified law is concerned, when customary law is applied it is of course possible to raise the question whether the individual decision clashes with what is required by our moral judgment. But this certainly doesn’t imply a special inquiry into the reasonableness of the custom. 430
Finally evidence in customary law. It is generally taught, and also shown by previous decisions205 that the judge is free to decide that a custom exists by all the means which he thinks appropriate and that he is in no way bound in this respect by codified forms of evidence. Simply because, as they say, custom is a source of law and jus curia novit. The argument is weak in my opinion and the conclusion itself too general. Whoever invokes customary law (in the real sense, therefore not the case law which has established such law), invokes facts. When these facts are contested, they have to be proven just like other facts: evidence from witnesses offers the pre-eminent means to make them established in law, not interrogation of experts. 431
That this is sometimes superfluous, is caused by the fact that the judge is also allowed to take generally known facts for granted without further evidence. When these are contested this is passed over, not because custom creates law, but because in the face of generally known facts, the argument can be set aside as chicane. When the facts are established, the conclusion as to whether these facts imply the existence of customary law is a conclusion of the judge, not of the parties and also not of the experts or witnesses who are interrogated. The judge is at liberty to decide for himself by whom he wants to be informed about this. To this extent evidence is indeed superfluous. 432
§ 24 Custom versus compulsory law.
We now encounter the question whether in the Netherlands custom can be binding in breach of rules of compulsory law. 433
The answer to this is embedded in the previous sections. However, the reason which explains why custom prevails over supplementary law doesn’t apply here. Contrary to the supplementary regulations of the legislator, his command is not powerless against widespread deviant behavior. The judge is subjected to these commands. It may be custom that play debts are paid and are sometimes even thought to be more binding than other debts, but no judge will order to pay a play debt contrary to written law.
However — it could be that a rule of compulsory law is set aside so much in real life, that such important relationships have slowly institutionalized contrary to this rule, that the rule cannot be enforced. This is the conflict we pointed out in § 21(block 382); what was said there also leads to the conclusion that it is impossible to give a clear line of action to determine when this would be the case; further, that this is and should be very rare in our private law. The codification-system, the position of our judge, the traditional high esteem for the law, this all means that customary law contrary to compulsory provisions should be restricted. Nevertheless, it is always inevitable and exists also among us.434
Still it is not easy to substantiate this with examples. The reason for this is twofold. Firstly, it seldom happens that the history and written text of the law give an unambiguous answer to a question of law, which is settled contrariwise by custom. It is usually the case that there is a conflict about a certain interpretation and that custom is decisive in the battle of arguments pro and contra. The well-known saying that custom is the best interpreter (optima interpres consuetudo) is not only applicable to the interpretation of the written law, which can be found in case law, but also to the interpretation of the actions of the persons concerned. The consuetudo contributes then at least as much to the decision as the sharpest analysis of the text of the law. But secondly, even then the judge mostly doesn’t say this openly— because he thinks himself bound by the law and free with respect to custom, according to his theory.435
Above on page 123 (block 354/5) I gave the example of the foundation. It is established by case law, that it is possible to form a foundation in our country, it is also customary law, when the reasons given by the advocate general Ledeboer, to which I referred there, are accepted. But such a justification is rare, the Supreme Court itself practically never uses it — is it farfetched to maintain in spite of this, that custom is also important according to the court’s opinion? 436
While in the case of a foundation there are good reasons to argue that it is impossible to demonstrate that it is against the written law, there was another case in which the position was much weaker, where the question whether an action was valid was also at stake, and whether it constituted the intended legal effect, or whether a compulsory legal provision ruled out such an effect. I allude to the question whether it was possible before the amending act of 1928 to form companies limited by shares, which did not have acts of commerce as their aims. The texts of the law, the system and history of the code, all these plead in favor of an answer in the negative. Nevertheless, such companies limited by shares were officially allowed by the Ministry of Justice. Many of these were formed (building companies, agricultural enterprises); large funds were invested in them, innumerable legal acts were performed with them.437
This all would become unstable and uncertain, if it were to be decided top down: the company limited by shares doesn’t exist when it does not have acts of commerce as its aims. No wonder that people didn’t dare to take this decision, in spite of the strong arguments which could be derived from interpretation, and that they bowed before the facts: “the actual existence” of these companies limited by shares, which don’t trade in the manner intended by the written law. Molengraaff openly said: “here law has come into being by custom — in deviation of the written law.”206438 Another example from a totally different domain. It concerns the institutional setting of the Dutch Reformed church. In 1816 King Willem I issued a decree about this, of which the legal validity was very questionable, or rather, of which it is now certain that it was invalid. There are numerous jurists and church authorities who assume that he had no competence at all for this intrusion.207 Nevertheless there are only a few208 who at this moment still deny that the Royal Decree is the foundation of this institutional setting. 439 It may be true, that the fact that it has been accepted by the people concerned, as it is often claimed, can be contested, nevertheless it is in my opinion true that, rebus ipsis et factis, to adopt an expression of the Supreme Court209 in this matter, the institutional setting as prescribed by the King has become the one in use by the Dutch Reformed church. The term “accept” is probably too connected with a deliberative decision — in fact people simply have acted for years as if the Royal Decree was valid and on this basis they have created such a widely ramified framework of institutions and regulations, that it is impossible now to allow for a contestation of it. Is this something other than customary law? Customary law in breach of the written law?210 440 More examples like this can be mentioned: to change a mortgage in rank, in order to create the opportunity for a mortgage of a later date to acquire a higher rank, is completely contrary to the codified system of registration of mortgages, nevertheless it happens regularly and a decision now to declare this invalid, while the usage has struck root, would create far reaching difficulties. It can be said to be in breach of the provisions of the Civil Code, when people do not write bonds or mortgage bonds in their own hands or affirm the debt handwritten and although it is possible here to evoke history to contest its literal meaning211 it must be assumed that even apart from this the article is not applicable to these documents. Otherwise the misery would be immense.441 Custom makes law. Time and again there is acceptance of the facts. People acted and did so because they trusted that they were allowed to do so; the widely spread regular course of things is founded on the legal validity of the practice — the law would forget its task to impose moral standards upon reality, if it had no eye for reality and would suddenly deny force to certain actions on the basis of regulations which have probably been forgotten. Just as the prescription exists alongside the title when the acquisition of subjective rights is concerned, the custom exists alongside the written law when the formation of law is concerned. Illegitimacy can turn into law. This is ancient wisdom, discovered already by the Scholastics and Canonists.212442
Although the distinction between supplementary and compulsory law means that the position of custom is in the latter more modest than in the former — there is no difference as far as the nature of custom is concerned and the reason why it is accepted by the law. It is here, just as there, that what actually happens, determines the law. Also, for the compulsory rule, the boundary between habits and law will depend on the question whether that which actually happens has gained such significance that the rule in the end will be carried out in the law. 443
The way the members of the same family relate to each other regarding the use and consumption of what belongs to them together, called by some customary law213 is in its entirety only a habitual way of life; it is impossible to point out a legal conflict in which decisive impact will be attached to this. The custom, however, that the married woman puts the name of her husband before her own, has become law, as soon as it is recognized that such a way of putting ones name can be used to sign judicially. For me this is unquestionable. 444 The rule that the woman is obligated to obey her husband, which shines in our code as a legal rule, is set aside by custom, precisely because it is not possible to demonstrate how to enforce it at law. Theoretically the legal action of judicial separation could serve as a means to enforce this rule — but it doesn’t do so. Not one lawyer tries to turn the fact that the woman has been disobedient into an excessiveness in the sense of the code. Not one judge would declare that he is right. We are allowed here to speak — although there is no judicial decision, which rejects such a claim — of customary law in breach of the written law. There is no doubt about this.214445
Just as with custom in breach of supplementary law, also here the awareness of the actor is only relevant in a negative sense. A specific conviction which accompanies the act cannot be required here just like it couldn’t be there; it can be required however, that when the persons concerned began to act, they didn’t realize that it was contrary to the written law. The doubt about this lawfulness comes only in hindsight, mostly introduced by the jurists: a sharp witted lawyer starts a legal action, in which the validity of what always had been done is contested or an author advances objections in an article in a journal or in a textbook. 446
The people themselves acted guileless, they didn’t know any better whether what they did was allowed or had the effects they assumed. Also here is an analogy with the prescription) and its requirement of good faith.215 It is this good faith, a practice which went on for years as if it was according to the written law, while in hindsight it was contrary to it, which is protected by the judge when he declares that custom makes law, just as with prescription. If something different were to happen, those concerned would call it injustice; they would argue against the opposing party: you are saying now that this is not allowed or not possible, but I acted like this, because a countless number of people acted in a similar way before me and I didn’t know any better or it was allowed. It is this trust which is protected.447 Thus we see a complete parallel between custom in relation to compulsory law and supplementary law. There is no reason for a fundamental opposition as made for example by Gény216and Oertmann.217 To save the usage of social and economic life which deviates from the supplementary law, while they didn’t want to accept the custom which is against the compulsory law, they made the usage of social and economic life out to be something else, ascribed them to the intention of the parties. How this can be contested, I explained already above, here we can only add that the difference between both is merely gradual. The codification (in the Netherlands since 1809) has driven the custom back in favor of the written law; now it has been left only a small place, and it suits our current system of law that even there were custom is important, it stays in the background, while arguments of a different nature are put in in the foreground.448 One should realize once again that it is very rare that a decision depends on only one piece of information and that therefore the opposition between custom and written law, which we adopted here, is in general too absolute. Every decision is determined by factors which differ from each other in nature. This is why we didn’t give custom a special place next to the written law but treated it as one of the expedients for the finding of law on a par with language and history. But as such it is of utmost importance and it is therefore desirable — if only merely for the sake of what B.M. Taverne calls the “truth” in judicial decisions.218 I would rather say sincerity — to bring it more to the fore than has been the case till now. 449
It is — we have finally to repeat this again — the actual practice, which co-determines the law.
§ 25 Requirements of social and economic life. The nature of the subject-matter. Sociological and teleological interpretation.
The facts co-determine the law; what happens in society also plays a role when finding law. This pertains also to a domain other than the one of customary law, a domain which is seldom seen in connection with customary law and yet is really close to it.
People say sometimes that something or other is law, because social and economic life requires it. After being used repeatedly by authors, this legal ground has recently pervaded the case law, yes, is also used by the Supreme Court. It is a phenomenon which certainly asks for attention, one of the points, in which the current method of the Supreme Court differs from the one of twenty years ago.219
It is characteristic for the way the current method has developed within the narrow limits established by the system of cassation. We find the appeal to the requirements of social and economic life in a well-known ruling of the Supreme Court regarding the provision in the Civil Code that possession amounts to perfect title.220 The court gives a whole series of arguments, mainly of a historical nature. At the end of the judgment it says: “that the useful, broad purport of the rule, as required by the social and economic life is this. . .”. Even more noteworthy is the appeal to the requirements of social and economic life in the cases in which the Supreme Court221 decided that the mandator was bound by the actions of the mandatory, even if he had gone beyond his mandate, provided that the third party who traded with him, might have trusted that he had kept within the limits of the competence conferred upon him. 451 The argument stands completely independently here and this requires even more attention since the H.R, after having declared initially in 1926 that this was an application of the law, in 1928 taught us that it made an exception to the article. An exception not acknowledged by the written law itself. There is a refinement of law here,222 which could have been founded on a legal principle,223 but which the Supreme Court bases solely on the requirements of social and economic life. 452 How should we interpret its meaning? Certainly only thus; that regarding certain acts in social life it is generally assumed that one who acts doesn’t act on his own behalf, but on that of another: the manager, the agent, the shop assistant, the managing director, they all perform many acts in their business, which are generally seen as acts on behalf of those who employed them, which they normally are. But if on one occasion these acts are different — because there lacks a mandate — while the outward appearance is present, then people say, that one is allowed to trust the appearance, and the Supreme Court agrees.224 This is required by the social and economic life, in other words without this it is impossible to interact speedily and continuously with all the mentioned persons, to perform a specific inquiry into their competence would not be possible and doesn’t occur. 453
The concurrence with customary law is obvious. Here, just as there, there is a practice in society upon which the law depends, here, just as there, there is reliance upon the legal effects of that practice, which cannot be betrayed because it is so widely spread. Here, just as there, it is an appearance upon which people count. The difference is that in customary law the reliance pertains to the existence of a rule, which cannot be found in the written law, while here it pertains to the actual existence of the factual conditions of a legal rule, a rule on mandate, which in reality is lacking. In customary law that which is done regularly becomes an obligation to follow a rule; here somebody who creates a situation which suggests a rule, is treated as being bound to this rule, although it cannot be applied directly. This is required by social and economic life, whomsoever seeks the law will have to take this into account. 454
There is therefore an acknowledgement of the facts, but at the same time there is a decision about the efficiency of a certain practice. It is possible that the judge would reject the requirement of social and economic life — but in doing so he would cause trouble for this very social and economic life. The goal of the mandate would not be reached in social life if the new rule, expressed by the Supreme Court225 were not accepted. The judge wants to aid in the realization of this goal, because social life itself requires it. Therefore this manner of finding law can be called sociological as well as teleological: it investigates the social practice) and draws its rule from it, but it does so because social life can only function efficiently when it is in accordance with this rule. 455 This method is not only useful when it concerns the influence which is awarded to the requirements of social and economic life, but also in other cases. It is also applied when the judge takes a decision according to the nature of the matter. This is a term which is not very clear, people have interpreted it in very different ways. No wonder that it was completely rejected.226 Yet in Civil Code the written law does refer to the nature of the agreements, when it instructs the judge to determine what is required by custom and equity in agreements. This makes sense when people interpret this “nature” as the type to which the agreement belongs in social life. People can engage in very different relations with each other and they are free to arrange these relationships as they wish, but this doesn’t alter the fact that these relationships can be classified in a certain way, that it is possible to analyze their type and elements. 456
Purchase, rent, mandate, and employment contracts are types of agreements. Supply contract, purchase of non-fungible goods, purchase on approval: these are types of purchase agreements; again, in another grouping: purchase of corn, of cattle and of houses. Every type is fulfilled in a specific way in society. Parties are free to do this in their own way, but there is a certain regularity. 457
When this regularity is seen as binding in and of itself, then there is customary law; when a decision is derived from the goal that type has in social life, because it seems to serve this goal the best, then there is a judgment according to the nature of the agreement. For example, the decision that partial dissolution is possible in the case of supply contracts, is a decision based on the nature of the agreement.227 And it was “the nature” of the agreement between the contractor and the architect, and the social function of the latter, which the Court in the Hague took as a guideline when it decided to what extent the contractor is bound by the acts of the architect.228 458 This nature becomes even clearer when we are confronted with institutions,229 which have developed in social life, such as land- ownership, marriage and so on. These have a function in life which brings about certain legal rules. All this shows the importance of social facts for the finding of law. But it also shows that the judge has a broad discretion to act, broader than with the other methods he uses. Already this fact in itself should lead to an economical use of this method. One who searches for law, does so with the awareness of being bound;230459
“requirements of social and economic life”, “the nature of the matter”, these are terms, which easily lead to arbitrariness due to their vagueness.
But, even as I have pointed out the importance of this, I want to put next to it immediately that in the course of finding law on the basis of those other factors, it is of the utmost importance to take into account what happens in society. Not solely, but rather when using analogy or refinement of law, when searching for the historical line and when reflecting on the question to what extent it is possible to take a step further along this line, the judge will have to examine as carefully as possible what happens in society and the forms which are used for this, while he also will have to enquire into how the currents and endeavors which are expressed in social life can fulfill their goal in the best way.231460 In this way he is bound to the goals which are acknowledged by the system of law. It is not his task, but one of the legislator to change this radically, if needed.232 When there is a conflict between the interests and desires of entire groups in social life, the legislator and not the judge should speak the decisive word. But within the limits which are established by the system in the course of a slow process, one who searches for law must also take into account the changes which take place daily in social life. 461 We have to restrict ourselves to these general remarks. These ideas can only be substantiated with examples in the matter itself. Here we must merely pay attention to a method of teleological interpretation of a somewhat different character. It is one which doesn’t inquire into the goal of social practice, but into the goal of a specific provision. The legislator intervenes in social practice; he wants to direct it. Now one can make an inquiry into the content and extent of his commands, one can also pose the question: what did he want to accomplish with it in general? This question is asked by the interpreter who makes an inquiry into the possibility of analogy, but he can also ask this when he tries to establish the meaning of a certain rule. A good example of this is given by the decision taken by the Supreme Court a few years ago in the context of the Bankruptcy Law.233462
In the case of bankruptcy there can be a clash between the interests of the wife of the bankrupt and the creditors. The wife must be able to enforce the securities against the creditors, which she had stipulated towards her husband, but the creditors have to be indemnified against the consequences of a highly probable conspiracy between man and wife to their disadvantage. The Bankruptcy Law gives a delineation of the rights of both parties in such a situation. The demarcations in this law are not totally clear and sharp. So when the Supreme Court had to further specify these, it began with the exposition of the opposition of interests, the goal of the article and an explanation in general of the competences of the creditors and the wife, in deviation from its usual method, which orients itself immediately towards the grounds for cassation. 463
The judgment certainly is one of the best reasoned of recent years. An elaborate description of the goal of the rule, the weighing of the interests as described by the legislator, which were clashing, and concluding the more concrete decision from this — it is a method one would wish the Supreme Court applied more often. Also, this can be called teleological interpretation — however this doesn’t stand on its own but finds its supplement in deliberations of language and history. 464
§ 26 The meaning of the facts. The case.
We spoke about the facts of the past; we pointed out how that which must be done according to the law depends on what other people did in in the past in similar cases (customary law); we also paid attention to the significance of the social life in which a case is embedded, how in the course of that life requirements arise that call for fulfillment, and aims which can only be realized with the help of the law are pursued. At this moment we must dwell upon the facts of the case itself. These are also important for the finding of law.465
At first sight this seems odd. We have to search for the rule to judge the case, to find the right decision in the battle of arguments, in which one person claims a performance from another on the basis of certain facts. How could this rule lie in the facts? We seek a criterion for the case, how could the case itself procure this criterion?466
The doubt which rises from these questions is well-founded. The judgment is a syllogism, the major – wherever we may find it – cannot be implied by the minor itself.
In this way it is indeed proven that the facts of the case can never procure the rule according to which the case should be judged, but it is not proven that they should only have meaning for the decision as the object of judgment. This would only be true if the decision could be found by simply subsuming the case under the rule. But this is not the case, we pointed this out already many times.234467
In the multiplicity of phenomena that gave rise to a lawsuit, the judge searches for the facts which are relevant for his judgment. He will not be able to do so without taking a rule as point of departure, without a decision in mind — why else would this fact be relevant and that not? In the administration of justice, we can only perceive the facts in light of the rule, in light of the decision. 468
But the other way round, we also understand the rule, according to which we judge, in light of the facts. The person who has to judge a certain complex of events and a litigation that has arisen from it, has to search for the rule which he will apply. This rule doesn’t lie ready for him. The rules are indeed given, but not what the correct rule is for the case. The rules are moreover continuously transformed. In what other way will the person who searches for law be able to find the right rule, other than by taking the case as point of departure?
But when we assume this, we also have to assume that the case itself partly determines the decision, that the one who takes note of the facts has a solution in mind which he deems right at first sight, a solution which has to be tested and cannot be accepted as long as a place for it in the system has not been found, a logical justification in terms of a rule, but which for the time being satisfies him, fits the case so to speak. How else would we be allowed to say that the case has come into its own right? In my eyes this is the true core of the so-called law of reality. 469
In the past Hijmans raised this fascinating call.235 The term is used in many different ways. There were people who put the law of reality on a par with the positive law in a sociological sense — for others it was a call for the acknowledgement of the real elements in the practice of law, of the meaning that the social practice, the social and economic life and similar elements have for the development of law. All this is comprised by the term also as it is intended by its author, but this still does not make clear, if I am right, what he really intended to say. For Hijmans law of reality is also in the first place an appeal to the intuitive understanding of the case, a decision according to this insight.236470 He called this: judging according to one’s sense of justice and distinguished this explicitly from the conscience of law. I would rather avoid the term “sense of justice”, it is ambivalent and what matters here is not only to “sense”, but also to perceive and to judge intuitively. We have to “thoroughly investigate all sides” of the case, which means that we have to inform ourselves as best as possible about what has happened, try to understand as much as possible what the parties concerned did and intended — then in one way or another a decision will force itself upon us. A decision— and here lies the element of feeling — which we deem fair, which brings us appeasement.237471 But don’t we judge according to a rule in legal practice? Isn’t it exactly this which marks the difference from a decision according to equity, and from a moral judgement?238 Certainly — in the law the intuitive judgment is not enough, it calls for an account, a rational account. We always search for both: intuitively a decision which we deem rightful because it satisfies our understanding about what actually ought to be done in this case, and intellectually a justification of the decision in terms of authoritative sources. When we are unable to find the latter, we begin to doubt the former, but when the reduction to those factors is reached, an argument is made which is rationally well conceived — and for the educated jurist this is usually not so very difficult— but something is wrong with the former, the intuitive acceptance, in that case it remains unsatisfactory and we search for something else. 472 473
We always judge while fumbling our way from case to case and at the same time according to readymade rules. This becomes clear when we recall what happens in, for example, the case of analogy or refinement of law:239 the judge expands a rule beyond the content it has according to its literal meaning, or he restricts it. What makes him do this? He sees the case and he knows the rule, he cannot apply the rule according to its literal meaning, still he wants to take a decision in this case as if the rule were applicable, therefore he expands the rule. We indicated above why and when he is allowed to do so. But he doesn’t act like this in abstracto, apart from the case, but in view of the case. The same is true for the refinement of law.
Here lies the meaning of the facts of the case. They wouldn’t be very important from our perspective if the rule were laying ready, immutable, absolutely set and had only to be “applied”, as people say. But the rule transforms by itself, application is formation of law and therefore this formation is partly happening on the basis of the case. Doesn’t everybody know that new rules always gain ground in the practice of law on the basis of cases that speak strongly? 474
What else does this mean, other than that the case itself was pressing so much for a certain solution, and that a decision in the opposite direction was felt as so unfair that the new decision therefore had to be taken in violation of the old rule? Had the unfair competition of the book printer, who bribed the employee of his rival, not been so extremely indecent — who knows if we would have got the ruling of 1919? For the one who sees it, the case itself can present the solution. It is to Hijmans’ credit to have been the first to emphasize this.475
” For the one who sees it” — not everyone, indeed, has this capacity to see and nobody acquires it without pains. The cases that “speak”, in which everybody hears what they ask for, are rare. Experience, acquired in the best way by comparing the multitudinous nuances offered by reality, sharpens the insight. 476
How often it happens that a case which presents itself as a simple example of a certain type, like so many that have already been adjudicated, for which the rule is laying ready, and that nevertheless suddenly the doubt arises: would this indeed be right, isn’t there something in the case which is different and which rules out application? Then science starts a further inquiry and tries to justify the deviation by looking for help in other rules which explain the exception. The one searches this way, the other that way. But all have the same goal. How could this be possible if not the case had pointed this out to them? The examples are evident. We refer to § 2.
The facts of the case partly determine the rule. This applies more strongly than usual when the judge has been given the liberty to decide “according to the circumstances” “according to fairness”. The more general the term, the more room for individual judgment. Such room is most extensive when, similar to the instruction given to arbiters, the judgment according to fairness is put in opposition to the judgment according to legal rules. The law takes this opposition as point of departure.240 But even then, it is the task of the person who searches for law to find out if his decision can stand generalization. A legal decision is never purely individual, as opposed to a moral judgment.477 Every decision seeks generalization, based on its nature. If something is law for A, it must be so for B as well in the same relationships. The difficulty concerns the distinction between what is the same and what is different in such cases. It is the task of the jurist to analyze which aspects of the judgment can stand generalization and will therefore also be important in other cases, and which aspects must be seen as purely individual. For the one who studies case-law, this is the most important part of his effort. For the English jurist this is the central task.241 In our country, too, this becomes more and more important with the frequent appeal to courts. 478
The ruling of 1919 about the wrongful act (block 15) had a strong general tendency in outline and formulation, the facts are completely forced into the background away from our attention, but this doesn’t alter the fact that the judge, when facing the decision, had to make a leap from the old to the new interpretation, had to look at those facts, and that then those facts became meaningful for his decision. To what extent this was the case can’t be stated in general without knowing what happened in the chambers; in this case the ruling itself doesn’t give a clue. 479
We said that we always try to reduce a case to a rule. Still it happens that the judge doesn’t succeed in this. This is most apparent where the written law gives the judge a lot of latitude with concepts like guilt, good faith etc. It is possible that the judge finds a rule or forms one and derives from it that the case has to be decided this way or that way. It also occurs that he enumerates the facts and then concludes that whoever acts like this has guilt, didn’t act in good faith, acts contrary to good morals. He then doesn’t point out which elements of his decision are general and which particular. Maybe he can’t indicate it, he only feels his decision as being necessary. People coming after him, can then find out which elements of it can lead to a formula with a more general tendency.480
It is especially important to pay attention to the individual aspects of the decision, where the judge doesn’t use general norms, but the concrete rules, stated by the parties concerned. Interpretation of a contract or last will is a search for law in which not only the actual course of events is particular, but also the rule. But we cannot elaborate on this further here. It is a subject which belongs to the doctrine of contracts and last will. Here in this general introduction, there is another issue which demands our attention. 481
§ 27 The conscience of law.
Until now we have been silent about one factor in the process of finding law, which according to some people ought to have the most central place, the conscience of law. Since we treated all factors which determine the decision, we now have to dwell on this one. The term conscience of law is not used to indicate the judgment in any specific case, but the active awareness in every human being of what law is and should be, a specific category of our spiritual life, by which we distinguish with immediate evidence between right and wrong, independently from the way one finds this expressed in existing institutions, in the same way as we do between true and untrue, good and bad or beautiful and ugly. This conscience of law is, according to the authors I have in mind, the source of all law. For example, Krabbe.242482 483
One of those, who follow him, Kranenburg, even thinks that he has discovered the “law”, according to which this conscience functions.
Pertaining to the distribution of the conditions for pleasure and pain, every member of the legal community is equal and equivalent, as long as he himself does not create the conditions from which specific pleasures or pains originate: as much pleasure and pain as for which he has created the conditions are his due. This is the ultimate law of the conscience of law; the determination of the merit of interests happens according to this criterion; according to this it is measured what belongs to each person as his due; this weighing and attribution is the real function of the law. (trans.lhc)243
I have many and preponderant objections against this conclusion as well as against the method according to which it is found, the “empirical-analytical”, which assumes that it is possible to derive from the content of a great number of legal judgments a greatest common divisor, which covers all these judgments as a “law”. Already the idea that such a general regularity exists — for Kranenburg not the result of research but point of departure and axiom— is untenable in my opinion. 484
It rests on the assumption that we can determine completely by intellectual inquiry what we ought to do and that the highest truth can be found in a general idea or law, from which the actual truth can be derived by deduction. — assumptions that are part of an intellectualist and rationalist conception of life, which I wholly reject. But it is not the place here to elaborate this and neither is it the place here for a criticism of the legal philosophy of Kranenburg in general.244 I only had to touch on this, because I felt obliged to explain to Kranenburg why I can’t give his law the place he claims for it, because I have a point of departure which differs from his. Here we only have to find out what the real meaning is of this law and of the requirement of proportionality for the finding of law, the law in actuality. 485
Shortly summarized it is this: it is a principle of law and even a principle of high value and extensive reach, that has the meaning which we attached above to principles of law in general, not less, but also not more. In my opinion it is vain to try to find this principle of proportionality, of “do ut des” everywhere as foundation. I think that it “explains” neither the authority — how to explain the value of that which is historically given, how to find the possibility to choose those who are “eligible” for authority? — nor the matrimonial law — doesn’t marriage last and shouldn’t it last when the “pain” surpasses the “pleasure” by far? 486
Certainly, the equivalency of man and woman has to be acknowledged, but what benefit does this have when I have to answer the question as to who should decide when there is a difference of opinion, the man or a third party? — nor does it explain property — for which production seems the only justificatory argument — nor the law of succession, for which Kranenburg himself doesn’t know the right way, and about which he says that it cannot be accepted easily according to his conscience of law and probably that of many of his contemporaries, but does not say that it is impossible according to the conscience of all times — nor in the end does it explain the obligation to fulfill the agreement. 487
The difference between Kranenburg and myself maybe stands out most clearly in this last case. I agree with my colleague on the significance of the principle of proportionality in the law of contracts. But far from being the foundation of the obligation to fulfill the agreement, the principle indicates in my opinion the limit to the obligation. The principle of proportionality requires equivalency of performance — the principle of the obligation to hold one’s word demands one to keep it, even when the equivalency is lacking. In general, contracts bind in our system of law — only very rarely they do not bind if the equivalency of the parties is violated. 488
Previously in the law of the past, the principle of proportionality was the basis for the nullity of agreements when one of the parties was favored too strongly; even now it is important for the doctrine of the causa, of good faith or of error, but the obligation to keep one’s word can never be derived from a principle that removes this obligation in certain cases. Here, as so often, the inclination to reduce all phenomena to a single one and to see this as the only possible contribution of science, has hindered the unbiased view on the law and has led to untenable consequences.489
It is a plurality of principles which we follow in the formation of law, it is continuously the task of the person who searches for law to weigh the one against the other in his actual decision. The history of law shows a sequence of continuously changing decisions, in which now the one and then the other principle weighs heavier. An instructive example is the law of contracts, and the importance there of the equivalency of the performances for it in the various systems of law. 490
But does this rejection of the law of the legal conscience also mean the denial of this legal conscience as an important factor for the finding of law? It speaks for itself that this question must be answered in the negative. We now have to find out what its meaning is.
The term legal conscience is ambivalent. Firstly, it signifies a category of the spiritual life of the individual, but it serves at the same time to signify the common element in the judgments of a certain group in society. When I see injustice and offer resistance to it, I say that my conscience of law revolts against it — but I use the word in the second meaning, when I say, that the conscience of law demands an amelioration of the conditions of the working class. It is easy to understand this double meaning. The individual conscience of law differs from the moral judgment specifically in this way, that it not only disapproves of a certain act or social condition, but also demands of the community to act against it.245 The appeal to the judgment of another person, a member of the same community, is contained in the nature of the legal judgment. It is therefore understandable that people look for a shared judgment and also that people ascribe both to the same conscience of law. 491
However, in the context of our argument we have to keep both apart. Through generalization the term loses its essential emotional content. 492
When we ask which value should be attributed to the individual conscience of law for the formation of law, this question is none other than how people arrive at the decision that something is according to the law, a question to which the next section is dedicated. Here is the place to ask what the meaning is of the judgment of a social group, the conscience of law in the second, above mentioned sense, for the finding of law.
In my opinion it is certainly not true, — as Krabbe teaches — that the content of this legal conscience simply is the law. This is already not true, because the existence of such a general content of the legal conscience of a certain nation cannot be demonstrated. We do not have the right to say that the conscience of all requires this or that and neither of the majority. We know nothing about this. What we call “conscience of law” is in this context nothing other than a more or less vague conception about what ought to be law, not much more than public opinion. The parliamentary system tries to find a method to discover it and to distill legal rules from it. How poorly it succeeds in this. But apart from this we know only very little about the conviction of the nation or of the majority. 493
We can never declare that the legal conscience of the ‘volk’ (nation) demands some decision about an actual case. Such a statement requires too much knowledge of all circumstances, a weighing of all factors which point in the one or the other direction. This can only be done after mature deliberation, a cursory judgment by the very first man you meet is meaningless in this respect. We do not get any further than a general, vague conviction about what ought to happen in general. And even then, it is very difficult to determine whether these are shared by many and especially if these are convictions about law and not rather statements dictated by private or group interests or by prejudices. 494
Generalization of the reaction of the individual legal conscience in a certain case into a general rule of the conscience of law is out of the question, already because the legal conscience speaks only then when a person who is aware of his responsibility forms his judgment. Noteworthy in this respect is the information given by B. ter Haar Bzn., that the European judges in Indonesia, in their search for the unwritten law which is present in the conviction of law, so often were confronted with the objection that the local chiefs were not able to communicate the content of the local law, when they could not empathize in an actual case and were not required to decide it.246 The idea that when searching for law we should lean on the legal conscience of a nation about a certain issue, fails to appreciate the nature of the decision, residing in every legal judgment; a decision, which can only be taken when responsibility is felt.247 It is the task of the jurist to make himself aware of this.495
This does certainly not mean that the conscience in this sense — from now on I rather speak about public opinion — is completely irrelevant for the finding of law. Whoever searches law, searches for a rule of the community. From this it does not follow that he has to ask the community what the content of the rule should be, but certainly whether the community can tolerate the rule and accept it. The conscience of law is especially an awareness of injustice. The requirement can be put forward that the parties concerned do not revolt against a decision because it affects them as an injustice. 496
We have to restrict ourselves here to this negative formulation. The public opinion, the desire of the nation, as it is also called, is not a clear-cut conviction about what ought to be, but a vague urge for that which is seen only in twilight. Maurice Hauriou248 describes it as497
a will focused on ideals, attachment and submission. (trans.lhc)
Such will is not a foundation of law, but is important for the question whether a created rule can become permanent law.
When the public opinion doesn’t accept it, does revolt, then the rule will in the long run become untenable.249 In the gospel of Mattheüs there is a story, that after having posited that marriage is in principle not dissolvable, when asked why then Mozes admitted divorce provided that a letter of divorce had been given to the wife, Jesus answered: “because of the hardness of your hearts, but from the beginning of creation it has not been like this “(XIX: 7). Whoever is called upon to search for law, has to ask himself whether the hardness of the hearts of the community can cope with the rule which he has in mind as the one which is in principle right. 498 All this all is especially relevant for private law, because the written law leaves the judge a lot of liberty. For example, concerning the nullity of agreements which are contrary to good morals. Ch. Petit states in his important dissertation about this subject250 that according to the doctrine of Krabbe, the decision is procured here by the conviction of law that is dominant in the legal community. He indulges in the naive illusion that the judgment of the majority does away with the differences of the individual variation and that the objective element, the factor of justice, remains as the common element. The objections I have against this teaching follows from above. But just before the passage I referred to251 the same author says that the legal judgment should satisfy those who are subjected to it. This is right in my view; a rule, against which a large group would revolt because they see it as injustice, cannot be imposed. This is something completely different from deriving a rule from general conceptions. 499 The agreement in which contractors organize their offers for a certain tender and arrange that the one with the lowest bid, who is awarded the work, will give the others a payment, is or was quite customary in the practice of contractors. It may be doubtful whether the contractors themselves understand the illicit nature of this; as far as it is possible to predict something about this, an arbitration tribunal for the profession would not have decided that it was contrary to good morals. But the Supreme Court decided that it was.252 The question is, however: can the group of professionals concerned accept this? Or is the decision so far removed from their point of view, is the contrary so generally practiced, that they simply go on and ignore the decision? 500
The judge is always an agent of the community — his decision is not an individual moral judgment, but a statement given by somebody with power that binds the community. This implies that he has to be well informed about the conceptions held by those who are subjected to his jurisdiction, that there are limits to his capability to oppose these. He has to take these limits into account, but within these he is free. Moreover, there is still the distinction between what is thought generally and what is thought only in certain circles of society. The more generally the public opinion is accepted, the stronger it is. 501
When it only concerns a specific group, there remains the possibility that the formation of law, supported by the larger community, imposes a rule on the group, which it would not have tolerated if it would have had sovereignty. It is therefore possible that the judge keeps calling this contractors agreement contrary to good morals, while the contractors nevertheless continue on using it; however, when such a battle arises, it will be necessary in the long run that either the larger community, in this case the State, suppresses these acts by measures which are more forceful, or that the judge gives way and acknowledges that what he declares to be contrary to good morals cannot be imposed on those who do not accept the rule. 502
In this respect the public opinion is important for the finding of law.
§ 28 The decision.
It is time to bind together the threads we have spun. We have discussed the different things that have to be considered when finding law: firstly the law in the meaning it has according to parlance, then the genealogy of the text, the tradition, the custom, the analogy and refinement and so on and so forth. Again and again we arrived at the conclusion that it is impossible to give a general conclusive scheme about their significance for the finding of law, an internal hierarchical order between them. We — and all countries with a codification — have lived for years under a notion which only accepted the grammatical interpretation as valid, with difficulty we have freed ourselves from it, or maybe I should say, we are freeing ourselves from it. 503
But no more than we are allowed to attribute absolute value to the written law in its meaning according to parlance, are we allowed to do so with the tradition as does the Historical School, or with the case law as does the doctrine of precedent. The value of all of this remains relative. A fixed hierarchy, such as art. 1 of the Swiss code253 tried to establish, doesn’t exist. Custom doesn’t come after interpretation but contributes in the interpretation. Sometimes an interpretation that would be preferable from a historical or systematic point of view has to yield to established case law and the judge takes into account which rule he would formulate if he were legislator, not only in situations in which he seems to have nothing to go by, but continuously in all his work. 504
But if it is impossible to derive a decision from certain facts according to a logical scheme, how then it is found? An old image can help here to find our way: that of the scales of Themis. The judge weighs, but not — as it is sometimes suggested nowadays — is the claim in the one scale, while the other contains the weight, marked by the written law or the legal conscience, but rather both claims together are balanced in relation to each other. Both parties throw into the scale that which can turn the scales in their favor, that which they can contribute to the richness of arguments; the one whose claims is the heaviest wins. Although this image makes clear how every claim is valued — it falls short in one respect. It doesn’t show that the one who searches for law, let’s say in this case the judge, is personally involved in the job, that the balancing is not impersonal. 505
The judge does something other than observing in favor of whom the scales turn, he decides. That decision is an act, it is rooted in the conscience of he who performs the act. That which is expected of a judge is a deed. It is not without meaning that in our judicial decrees, after much thinking and weighing, after sometimes infinite “re-weighing” of that which is advanced pro and con, the words “delivering judgment” are inserted before the dictum. 506
After the long chewing-over of the deliberations, there is this word, which demands attention for the decision and thereby defines its nature— and then the ruling itself: short and decided. It is the task of the judge to deliver judgment. I think that there is more than merely observation and logical argument in every scientific judgment, but in any case, the judicial judgment is more than that — it can never be reduced to those two. It is not a scientific proposition, but a declaration of will: this is how it should be. In the end it is a leap, just like any deed, any moral judgment is.507
“Thou shalt” or “thou shalt not”, “thou may” or “thou may not”, this is the core of any judicial judgment, even of the judicial decrees which are declaratory or constitutive. Such words can only be uttered by him, who is convinced of it in his own conscience. The legal judgment is rooted in the moral part of our spiritual life; a good judge always desires to impose that which he can justify in his own conscience. In this respect every legal judgment is irrational.508
But at the same time it is a judgment that is declared by someone who is charged with a function by the community. This implies two things: it has to rest on authority — it therefore has to be possible to justify it logically. Such justification can only be given by a reasoning that creates a relationship between the judicial decree and the factors which have authority in a certain community. In this respect every legal judgment is rational. This side of the administration of justice finds its full expression in the obligation to formulate rational grounds for the judgment.509
But if this authority is only relative, as we have argued time and again, which means that there are different factors next to each other none of which is subordinate to another, is it then not pure arbitrariness when one is preferred above another? if the judge seizes at one moment upon history, at another moment upon the text in its literal meaning in order to invalidate the historical argument? 510
These things, we spoke about, have authority. But “authority” doesn’t require, as the Germans call it “Kadaver”-discipline, by which the one who obeys makes himself into an instrument in the hands of the one who commands, but rather it demands respect. Law can only be found when there is first of all respect for the law and moreover for everything that has authority.
A judicial decision is certainly never “arbitrary”. I can refer here to everybody who has taken part in the administration of law; if they took their job seriously, they will never have experienced it as arbitrary. In any case there never will be arbitrariness in the actual decision about a legal dispute. This becomes especially clear when one pays attention to the fact that part of the task of the judge in our society does have some arbitrariness — in all those cases in which that which cannot be measured quantitatively has to be formulated by him in numbers, there is some arbitrariness involved. 511
One can think of the determination of the punishment, also of the calculation of the damages in those cases in which the money is not equivalent to the suffered loss, but rather compensation and reparation. The damage is then estimated based on fairness and justice (ex aequo et bono). The expression is typical, the judge feels that he leaves the domain of law. “I say now f l00.—, but I could also have said f 150”. But also here the arbitrariness is limited. f 1000.— would no longer be law, and f1.— is certainly also not law. 512
There is binding: externally and internally. A legal judgment must always fit into the legal system; the new, the peculiar, is limited by all the elements of this system. The new can only be stated with hesitation — there has to be room for it. It is possible indeed that the one who searches for law points out the direction in which the development of law should go in his opinion. In this respect his values, his conception of life determines partly the law and the more his decision touches on fundamental issues, the stronger this is.254513
But the external freedom is always a limited one. The obligation to give rational grounds is a guarantee that this is not abused. Because of this the judge is obligated to account for his decision to himself and to others, he has to ask himself if his motives were professional, i.e. whether he was led by considerations based on the case and not on his sympathy or antipathy versus the parties, he is forced to point out if and to what extent his decision can be generalized into a legal rule. It is because of this that it is so important that the reasons which really persuaded the judge are mentioned in the judicial decree, that he doesn’t content himself with mere silencers or clichés. 514
How easily people err in this respect is shown by Hermann Isay, in his Rechtsnorm und Entscheidung255 He tells the following story about the presiding judge, for whom he worked as a young trainee. In the break between lessons schoolboys were playing on the playground of the school; by accident one of them hit another with a stone in the face; the result was that this boy lost one of his eyes. The father of the victim asked the father of the imprudent boy for compensation of the damage. The civil law was invoked. 515
The members of the court agreed that the claim had to be rejected. During the break the boys were under the supervision of the teacher and due to this the responsibility of the father was exempted. But just before the pronouncement of the decision the presiding judge hears that the defendant is a man at the age of 65, who married only 8 years ago. This is for him a reason to change his mind: he argues that if a man still begets children when he is so old, he has to bear the consequences. He re-opens the deliberations and the decision is taken in the reverse.516
I am less amazed about the judge, than about the assent with which a man like Isay relates this specimen of court dealings. He calls it an example of the way the “sense of justice” often determines the decision — I would rather use it as an illustration of the statement that unprofessional motives sometimes corrupt the decision. This judge lets himself be guided by his aversion to marrying at an advanced age. I leave aside to what extent this aversion is in itself justified; in any case it shouldn’t have had influence here. 517
It had nothing to do with the issue submitted to the judge in this case. This would have become immediately clear if the justification had been made explicit. A justification like: “a father is not liable if his child causes damages by his imprudence on the playground of a school under the supervision of a teacher, but he is liable when he is elderly and was already so when he begot the child”, is simply impossible. There is no conceivable relationship between the issue of liability and age. A decision like this, sins against the first principle of justice, to treat equals equally — an elderly and a young father are completely equal in this respect. 518
In the argument of Isay the case is used to show that in the end feeling determines the decision, that the reasons only have a secondary significance. He refers to the experiences of many judges, who all testify they had a clear decision immediately in mind, they later collected the reasons for it. This may be true for many judges, but it doesn’t mean that these reasons had not already played a contributive role within the decision, or intuitive glance, the judge immediately had. It is possible to distinguish analytically between arguments of the intellect and the emotion in the final decision, in reality they exist only intertwined. 519
In the emotional facet of our spiritual life the legal judgment touches on the intuitive distinction between right and wrong, the moral judgment, and at the same time on the awareness of the community in which this law must be realized — in the intellectual facet it touches on the account given to the community and to the authority that resides in it, and also to one’s conscience. 520
With respect to the community the intellectual element is in the foreground, while the intuitive is in the background. Internally the relation is precisely in the reverse. The intellectual justification of the conscientious decision, however necessary it may be for us, doesn’t pertain to its essence — in the reverse it may be possible to testify of a “sense of justice”, but it is impossible to transfer it to others, let alone to prove it.
To find law is always at once an intellectual and an intuitively moral job. It is a decision about what is and what should be at once, and precisely because of this it is distinguished from the moral as well as from the scientific judgment. 521
Because externally the intellectual aspect attracts the most attention, it often looks as if the decision can be reduced completely to the “source”, from which it is said to be deduced. By now it may have been clearly demonstrated that this is only appearance. But the other way around we are not allowed to say that a sense of justice dictates the decision and that one looks for the textual arguments afterwards. Also the judge, who intuitively ‘sees’ the decision immediately after the case is presented to him, even though he doesn’t know precisely yet, how he will motivate it, uses his knowledge of law – his complete experience – in this intuitive view.
It is also said about scientists that they see solutions for problems before they can prove them. But this doesn’t do away with the fact that these solutions are found solely through study. Here it is the same. The experience of the judges, to which Isay refers, is indeed enough to refute the common ‘subsumption’-doctrine, but it shouldn’t lead to the opposite one-sidedness, as if within the intuitive there aren’t also strong intellectual elements comprised. The person who administers the law bows before the authority to which he is answerable. He has to know that authority. 522
And the requirement to also justify that which is found intuitively not with pretenses, but with arguments which can carry the decision, which have authority and are accepted, shows in every case how strong the externally oriented obligation is in the process of finding law.
But this obligation is also internally oriented. Precisely because the decision is a conscientious decision, it is completely free from arbitrariness. The decision is only accounted for when the judge can testify “I cannot do otherwise”. But how can this be defended— people will argue — when in every litigation of some importance there are also arguments which support the standpoint of the other party, while in the judge’s chambers there is sometimes a long and fervid dispute, while there is hardly any publication of a relevant ruling which is not criticized and attacked? Doesn’t this speak much more in favor of the view of those who argue that in many cases the judge cannot decide, but should mediate?256523 People should distinguish. There is mediation and mediation. Certainly, it can be prudent to advise the parties to reach a settlement in which both compromise. However not because such a settlement would be law, but because sometimes peace is a higher good than law and the settlement must be preferred above the battle because this will save time, money and nerve-racking dealings.257 But the merit of such a settlement resides in the acceptance by the parties. 524
This is quite something other than a settlement by court ruling. 525
Neither is there a settlement in many of the cases to which people refer in this respect. It is of course very well possible in a complicated lawsuit, that the judge arrives at the conclusion that A is right in some respects and B in other; it is also possible that he takes a decision in which he shares neither the point of view of A nor that of B, but in which he holds an opinion in between.It could even be the case that the in-between opinion is new law in the sense of a refinement of law. This was the case in the doctrine of the compensation of guilt, which was accepted in the years 1910—1920; the fault of the victim in a case of wrongful act doesn’t abolish the liability of the offender, nor does it allow it to continue in its full extent, but it reduces it.
Decisions like this are not settlements by court ruling. The decision of the judge is a settlement by court-ruling when the judge says: there are arguments in favor of both, I do not know who is right, therefore I solve your dispute by granting that both of you are partly right and partly wrong. I don’t hesitate to say, that this is injustice. Hartzfeld’s point of departure - that it happens in any science, that somebody who is faced with a problem answers: I don’t know the answer - shows that he ignores the nature of a judicial decision; it is not a scientific proposition. The judge is expected to act. He has to have the courage to bear the responsibility: in the end I say a or b, not a and b. The judge who hovers in doubt and can’t arrive at the act of taking a decision, isn’t fit to be a judge.258 526
And hereby I return to the questions I have just raised: how is it possible that there is so much difference of opinion concerning legal issues and that still the decision of the judge is the only one possible? The answer resides, in my opinion, in his responsibility. The decision is not the only one possible in the context of the legal system and probably somebody else would have decided differently, but for him every other decision is ruled out, because it is a conscientious decision. But such a conscientious decision can only be passed by the one who is aware of his responsibility, by the judge who takes his job seriously. It is this difference in responsibility which marks the difference between a judge and a lawyer. 527
If one can accept the argument in this section in its full bearing, one can understand that in so many cases there are arguments in favor of the standpoints of both parties: the reasoning of both sides has value, relative value. The law recognizes the value of both but asks in the end for a decision. The responsibility of the lawyer is a different one, less burdensome than the one of the judge. He doesn’t have to be convinced that his decision as a judge would be the same as that which he asks as a lawyer, although it is psychologically comprehensible that while he is working on a case he convinces himself that the only possible decision is the one which is favorable for him. The judge however has to decide — he has to hear both sides, but in the end, it is his task to choose. 528
From the lawyer an argument is asked. From the judge a deed. And like every deed that is something other than play,259 this deed must be that which is called for at this moment, the only possible thing for him to do. A bad judge, or more generally, a bad jurist is the one who says: “I think it is like this, but it also can be otherwise.” A good judge cannot act otherwise. And every jurist, when judging, formulates a decision, which he would take “potentially” as a judge. His choice is a choice in freedom, but exactly because of this it is obligatory, externally and internally. It is his duty. It is not unjust that in the end the ideal judge is not the one who is sharp witted or learned, but the one who is wise. Wise is the judge who has both understanding and is empowered to act, who knows and can, who subordinates his knowledge to his acts. 529
Still there remains one last objection. In spite of all restrictions you finally end up with the conscience of the judge. You don’t name a certainty above it. And the conscience can err. The judge in the example of Isay, whose decision you branded as injustice, wasn’t he maybe also convinced in his conscience that he had administered law? 530
It may be, I don’t know. And certainly, the subjective remains. But one shouldn’t think that pure intellectual work offers more certainty. The one and the other remain the work of humans, it is defective and fallible. Others will judge different from the way I did as a judge, much of what presents itself as a decision on law, and which was also conceived of by the person who took it as in all respects the only possible one, appears not to be able to hold out. There is no demonstrable truth here. But it is better to accept that which is defective and subjective, than to gape at an appearance of objectivity and certainty, which is nothing more than show and doesn’t hold out against criticism. None of this alters the fact that the person who pronounced the decision is objectively bound by it.
And finally: even I believe that the individual conscience doesn’t speak the last word here. But the inquiry into what is capable of giving guidance here is not the business of the science of law, and anyway it falls outside the framework of the book.260 In my opinion there are only two options: either an idea, the idea of law, one of the forms in which the world spirit realizes itself, can be guiding here, or the conscience is subordinated to a higher power, who, revealed as Person in Creation and History, confronts the individual and the community with his unconditional claims. 531
The first is the conception of idealism, especially in its Hegelian-pantheistic forms; the second is the demand of the Christian belief.
Allen, Carleton Kemp. Law in the Making. Oxford: Clarendon Press, 1927.532
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Montesquieu, De l’esprit des lois.
, XI, 6 (404)
: “Les juges de la nation ne sont que les bouches, qui prononcent les paroles de la loi, des êtres inanimés, qui n'en peuvent modérer ni la force ni la rigueur.
Codex Justinianus, Code of Justinian. I, 17, 2, 21.
, Paul Krüger (ed.) 1877.
3“und es soll. . . kein Collegium, Gericht oder Justizbedienter sich unterfangen . . . das neue Landrecht nach besagten aufgehobenen Rechten und Vorschriften zu erklären oder aus zu deuten am allerwenigsten aber von klaren und deutlichen Vorschriften der Gesetze, auf dem Grund eines vermeintlichen philosophischen Raisonnements oder unter dem Vorwande einer aus dem Zwecke und der Absicht des Gesetzes ab zu leitenden Auslegung, die geringste eigenmächtige Abweichung, bei Vermeidung Unsrer höchsten Ungnade und schwerer Ahndung, sich zu erlauben.” Allgemeines Landrecht für die Preußischen Staaten. https://opinioiuris.de/quelle/1622
4Le mot de jurisprudence doit être effacé de notre langue. Dans un pays, qui a une constitution, une législation, la jurisprudence n'est autre chose que la loi.Cited according to Renard, La valeur de la loi (1928), p. 138.
fléaux destructeurs de la loi” , Fenet, Recueil complet des travaux préparatoires du Code Civil 1. 1.
, p.534 .
Suijling, Inleiding tot het burgerlijk recht 1e stuk. §5, no 34. (first print 1918).
H.R. 9 Nov. 1906, W. 8453, (Amsterdamsche Bar Compagnie /Vogelzang).
H.R. 2 Nov. 1922, N. J. 1923, 87, W. 10978 (van Boven/ Vrachtvaart).
H.R. N.J. 1916, 450, W. 9949 (Hollandsche Spoor/Morré) .
H.R.15 Juni 1928, N.J. 1928, 1604, W. 11856 (Carp’s Garenfabrieken) .
Court of Appeal Hof Colmar, 2 Mei 1855, Dalloz, Recueil périodique 1856, 2, 9.
Cf. Suijling, Inleiding tot het burgerlijk recht 2e stuk, no 105.
French: Code Civil Suisse, German: Schweizerisches Zivilgesetzbuch, Italian: Codice Civile Svizzero, 10 December 1907, Art 1”. “Das Gesetz findet auf allen Rechtsfragen Anwendung, für die es nach Wortlaut oder Auslegung eine Bestimmung enthält. Kann dem Gesetze keine Vorschrift entnommen werden, so soll der Richter nach Gewohnheitsrecht und, wo auch ein solches fehlt, nach der Regel entscheiden, die er als Gesetzgeber aufstellen würde.
Er folgt dabei bewährter Lehre und Ueberlieferung.”15Organization der Rechtsgemeinschaft., 263 et seq, 275.
16Die Organisation der Rechtsgemeinschaft., 259.
Adolf Julius Merkl, Die Lehre von der Rechtskraft. belongs to the Austrian School of Hans Kelsen, so much spoken about lately, and further discussed below. One can accept the doctrine of the “Stufenbau” in law i.e., the hierarchy of legal norms, without accepting the school of thought in its totality.
18This opinion finds its sharpest formulation with
Ernst Zitelmann, Irrtum Und Rechtsgeschäft.
Cf. Zevenbergen, Encyclopaedie der Rechtswetenschap., blz. 121.
Binding, Die Normen und ihre Übertretung
21This occurred in August Thon, Rechtsnorm und subjectives Recht. Many authors have followed him.
22En réalité il n'y a pas de droit subjectif’”,
Duguit, Traité de droit constitutionnel
. Compare my publication in W.P.N.R.. 2802 et seq.
Zevenbergen, Encyclopedie der Rechtswetenschap., p. 276. Zevenbergen himself accepts the autonomous meaning of the entitlement in the law. See also
Kelsen and Jestaedt, Allgemeine Staatslehre Studienausgabe der Originalausgabe 1925
, 2019. § 12.
24When elaborated a differentiation will be needed again. In the law of the promise, the real promise has to be put in a juxtaposition to the disposition. See
Wilhelm Schapp, Die neue Wissenschaft vom Recht.
Rousseau, Du Contrat Social
.26“Einbruch der Willkür in das Gebiet des Rechts.” Die Organisation der Rechtsgemeinschaft
, p. 9.
27Cf. Somló, Juristische Grundlehre. §69. Reinach, Zur Phänomenologie des Rechts., blz. 702. See also my “Convenances Vainquent Loi.”
28It is remarkable how in the law of our time new forms emerge, in which promise and order are foundational for law in a new connection. Examples can be found in association law, collective labor agreement and in work regulations. Cf. about this Marius G. Levenbach in Beneditty and Scholten, Rechtsgeleerde Opstellen. blz 301 et seq.
29Different on the distinction between compulsory and supplementary law, van Apeldoorn Inleiding tot de studie van het Nederlandsch Recht (1933), blz. 94. He believes that the court is bound in the same way by the rules of supplementary law as by compulsory law. Supplementary law is in his view only oriented at realizing order and he relies for this on art. 11 A.B.: The judge is not allowed to judge the fairness of the law. I would argue against this, first of all, that it is always questionable to deduce the nature of the bondage to the law from the law itself, but moreover that the judge does not assess the fairness of the law when he gives priority to custom above supplementary legal provision, nor when he in law-finding appreciates the authority of the supplementary provision in general less than that of the compulsory provision. Cf. also my “Recht En Billijkheid.”, 253.
30Un acte juridique est nul s'il est contraire soit aux lois qui intéressent l'ordre public, soit aux bonnes moeurs”.
Marcel Planiol, Georges Ripert, and Jean Boulanger, Traité élémentaire de droit civil de Planiol Tome I
. (original edition 1901, I, 293).
31“Jus publicum privatorum pactis mutari non potest” (Digesten II, 14, 38).
32The case of Vrouw Elske, H.R. 29 Mei 1896, W. 6817.
33The case of the Rhedensche koe, H.R. 21 April 1898, W. 7116.
Cf. Praag Op de grenzen van publiek- en privaatrecht
Opzoomer et al., Het Burgerlijk Wetboek verklaard
. I, p. 3. This was also already the opinion of Ulpianus: Publicum jus est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem (D. I, 1, 2). One can wonder however, whether “status rei Romanae” doesn’t mean constitution, whether therefore the real ‘staatsrecht’ (State Law) isn’t put here in opposition to the private law.
Compare also Apeldoorn, Inleiding, 1954. blz. 81 vgl.
Burckhardt, Die Organisation der Rechtsgemeinschaft
., p. 17 et seq.
37De augm. scient. VIII, 3, cited from
Georg Jellinek and Walter Jellinek, Allgemeine Staatslehre
, 2017. blz. 385. Jellinek refers to
Francis Bacon et al., Collected Works of Francis Baco., original edition 1857-1859, Volume I, 804 and Volume VII, 731.
Buys, De Grondwet, II, 335 et seq
Röell and Oppenheim, Bijdrage tot regeling der administratieve rechtspraak
.”, 66 et seq. Typical for this school and extremely one-sided is
Loeff, “Publiekrecht tegenover privaatrecht.” See also the designs for a codified Administrative Jurisdiction submitted later by the same author, when he had become Minister of Justice.
40Die Lehre der Rechtssouveränität., 31 et seq.
Dicey, Introduction to the Study of the Law of the Constitution
. In the eight edition, p. 324 et seq. The statement is still important although there is a tendency at this moment towards the continental views.
42Lecture for the Royal Acadamy of Sciences, departm. Letterkunde, 1894. Verspreide Geschriften VII, 134.
43Hamaker doesn’t take this sufficiently into account. In general, the confusion partly results from the unification of many heterogeneous elements in the concept “public law”. I differ from Hamaker because I do accept public law as a form of law (block 128), while I also give a different meaning to the law in the domain of private law.
44See especially Meijers' remarks about the decision of 20 Nov. 1924,
ECLI:NL:HR:1924:AG1795 (Ostermann I), N.J. 1925, 89 in W.P.N.R.. 2883, 4.
45Zevenbergen Encyclopedie der Rechtswetenschap
. p. 310; PH. Heck, Gesetzesauslegung und Interessenjurisprudenz., p. 23 et seq.
46People will not look forward to posterity who never look backward to their ancestors.” (Reflections on the Revolution in France (1790)). The citation is taken from Houwing,Rechtskundige Opstellen., p. 166.
47The same view can be found with Suyling, Inleiding tot het burgerlijk recht 1e stuk., n°. 24.
48Especially relevant for this E. Lask, Rechtsphilosophie., p. 305.
49Cf. about authority in general Ph. Kohnstamm, Het waarheidsprobleem., p. 311.
Laurent, Avant-projet de revision du Code Civil I., p. 183.
51Das Juristische Denken (1904) p. 41.
Jhering, Civilrechtfälle Ohne Entscheidungen, Zu Akademischen Zwecken Herausgegeben.
53Cf. Wurzel, t.a.p. p. 40.
Opzoomer, Wet houdende algemene bepalingen
55Court of Appeal Leeuwarden 21 April 1915, N. J. 1915, 405, W. 9766.
Opzoomer, Wet houdende algemene bepalingen
. p. 222.
57Quamvis sit manifestissimum Edictum Praetoris, attamen non est negligenda interpretatio ejus”
Mommsen, Krueger, and Watson, Corpus Iuris Civilis, Digesta.D XXV, 4, I, 11.
Scire leges non hoc est verba eorum tenere, sed vim ac potestatem”. Mommsen, Krueger, and Watson. D I, 3, 17.
Paulus D.1,3,29 “qui salvis verbis legis sententiam ejus circumvenit.”
60H.R. 26 Mei 1926, N. J, 1926, 723, W. 11515 (Oppen /Ontvanger der Successierechten (collector of inheritance tax)).
61Tien jaren rechtspraak van den Hoogen Raad, p. 92.
Heck, “Gesetzesauslegung und Interessenjurisprudenz.”, p. 121 opposes here the rejected “normative” meaning of the words with the “heuristic”, which is also accepted by me.
Paul Scholten adds in Latin “praeter legem (the judge supplements what is not covered by the law), non contra legem (in opposition to what is stated in the law).” In the note he refers to the formulation of
Tuhr, Der Allgemeine Teil des deutschen bürgerlichen Rechts.
I, 38: “An der unzweifelhaften grammatischen Bedeutung der Worte findet die Auslegungstätigkeit ihre unverrückbare Schranke.
” (The activity of interpretation finds its definite limit in the undoubted grammatical meaning of the words.).
Asser et al., Asser Serie
. V, 3e edition (by Anema), 225.
65Ruling of H.R. 22 Mei 1908, W. 8721; See
Asser et al., Asser Serie
. Volume I, sixth edition (by Scholten), 271.
66See about the subject of this section and the following sections also
Gruijs, “De Strijd over de Historische Interpretatie.”
Bierling, Juristische Prinzipienlehre. Bd.
IV (1911) p. 275.
Rechtsgronden en rechtsmiddelen.”.
69Cf. for this question Hof (Court of Appeal) Amsterdam 8 Mei 1930, W. 12150 and H.R. 27 Maart 1931, N. J. 1931, 701, W. 12311.
Fockema Andreae, Tien jaren rechtspraak van den Hoogen Raad
., p. 138.
71This is fundamentally denied by Hijmans. See De tweesprong der rechtswetenschap
. In his view systematization has only paedagogical value.
Bergbohm, Jurisprudenz und Rechtsphilosophie
73Ruling H.R. 17 June 1909, W. 8947, see Asser Serie
.: I, 6th edition (by Scholten), p. 623.
74H.R. 7 June 1929 N.J. 1929, 1285, W. 12009 (Staat/ Buitenlandsche Bankvereniging).
Zevenbergen, Encyclopedie der Rechtswetenschap
., p. 318/9 and the authors cited on those pages.
76Cf. my articles in W.P.N.R.. volume 1922, No. 2741 et seq.
Scholten, Verzamelde Geschriften
75 and 76 Over Rechtspersonen I and II.
77See W.P.N.R.. 2742, 3029. Reprinted in Verz. Geschr., no
75. Over Rechtspersonen I.
78See Geist Des Romischen Rechts
. Cf. also Unsre Aufgabe (1857) in
Jherings, Jherings Jahrbucher
. I., also in Gesammte Aufsätze Bd. I.
Asser et al., Asser Serie
. I, 6th edition (by Scholten), p. 621.
. II, 7th edition (Scholten), p. 56.
81Rechtskundige opstellen p. 132 and Asser et al., Asser Serie.,
III, (van Goudoever), p. 131.
. IV, 3e edition (Meijers), p. 229.
. V, 3e edition (Anema), p. 144.
84Verspreide Geschriften. II, p. 72 et seq., and Asser Serie
. II, 7th edition (Scholten), p. 171.
. II, 7th edition, p. 6 et seq , p. 425 et seq.
86H.R.19 January 1889 W. 5666 and H.R. 25 February. 1898 W. 7090 (assignment).
Sauer, Grundlagen des Prozessrechts
., 58 et seq.
1915, blz. 625, Suijling, Inleiding tot het burgerlijk recht 2e stuk
89H.R. 4 Maart 1926 (Wijnen / Tilburgsche Bont-weverij) N. J. 1926, 504, W. 11489 and H.R. 11 Maart 1926, N.J. 1926, 509, W. 11485. (Duysen/ De Eewal ).
Leeuwen and Hijmans, Is het gewenscht hem, die door zijn niet onrechtmatig handelen gevaar voor schade doet ontstaan, aansprakelijk te stellen, indien de schade werkelijk intreedt?
91It is noticeable that the deficiency of this way of putting things became already clear in the case itself in which the Supreme Court applied the fiction of the intention of the parties to introduce the doctrine of partial dissolution. See my annotations in the N.J.
Tourtoulon, Les principes philosophiques de l’histoire du droit
., p. 440 et seq.
Kohnstamm, Het waarheidsprobleem
., 72 et seq.
Kelsen, “Rechtswissenschaft und Recht.”,p. 192 vlg. Vgl. ook
Moor, “Das Logische Im Recht.”, p. 185.
95Thus was the conception of a “General Jurisprudence”, especially propagated by A. Merkel and by many who were influenced by him.
Merkel, “Ueber das Verhältnis der Rechtsphilosophie zur Positiven Rechtswissenschaft.”
Stammler, Theorie Der Rechtswissenschaft (Origineel 1911)
. passim. Also
Somló, Juristische Grundlehre., vooral § 5.
Die a priorischen Grundlagen des bürgerlichen Rechts.”, 840.Reprinted in 1953 as Zur Phänomenologie des Rechts
98Theorie Der Rechtswissenschaft (Origineel 1911)
., 190 et seq.
Tourtoulon, Les principes philosophiques de l’histoire du droit
., p. 625. Moreover, I advise anyone who wants to get a better insight in the problems treated here to read the chapter about “Le droit pur
” p. 480 et seq
100Cf. W.P.N.R.. 2754 et seq.
(Reprinted in Verz. Geschr. 76. Over Rechtspersonen II.”) and 3052 (81. Het Vermogen Der Commanditaire Vennotschap).
101See the criticism of Binder, Philosophie des Rechts.,p. 149 et seq. Binderdoesn’t observe that his criticism on the way the principle is elaborated doesn’t affect the indication of the logical basic forms in itself.
102According to Tertullianus in D.I, 3, 27. Cf.
Gény, Science et technique en droit privé positif
., No. I, No. 53, 157.
103Cf. also van Goudoever in Asser Serie. III, p. 154 et seq.
104One should not conclude that there is a contradiction here with p. 6, where it was argued that to take into account that the injured party is partly to blame, cannot be seen as a simple application of the relevant legal provision in the Civil Code. In the principle: where the guilt is, there the damage should be, guilt means blameworthy behavior, while in the legal provision, where guilt is an element of the obligation to pay damages, it means: attributable deficiency in care for another’s person or property.
Thiel, “De Goede Trouw van Derden En Haar Bescherming Tegenover de Handelingen van Partijen.”
106Asser Serie. II, 7th edition, (by Scholten) p. 180 et seq.
Heller, Die Souveränität
Wijnveldt and Vrij, Algemeen Beginsel Betreffende Uitsluiting van Strafbaarheid Bij Gebreke van Schuld
109See especially the speech made by Vrij at the Dutch association of jurists, Proceedings, II, p. 46.
Bergbohm, Jurisprudenz und Rechtsphilosophie
. In our country the main part of the legal science of the 19th century.
See Stammler, Die Lehre von dem richtigen rechte
. Cf. Scholten, “Wijsgeerige En Juridische Rechtsbeschouwing.”
112According to the Roman-Catholic conception not only principles, but even rules are invalid when they are contrary to natural law. That they lack “validity” doesn’t mean however that the Roman-Catholic judge in public service is not allowed to take account of them. Cf. Duynstee, Burgerlijk Recht En Zielzorg., p. 32.
Cf. my essay “2. Recht En Levensbeschouwing.” and my book Beschouwingen over recht
See Asser Serie
. I, 6th edition (by Scholten)., 52.115According to M. Mendels, ‘Handel. Jur. Ver.
’ (proceedings Dutch association of Jurists) 1922, 1, p. 3 cf.also II p. 220.
., I, 292.
Windscheid and Kipp, Lehrbuch des Pandektenrechts
., 1. § 22.
the Proceedings of the Dutch association of Jurists of 1922, G. van Slooten Azn en M. Mendels. The examples are taken from the ‘non-paper’ of Van Slooten, p. 10.
118Van Kan is using here the term “legal safety”; see his Inleiding tot de rechtswetenschap
Praag, Rechterlijke Organisatie
, II p. 587.
120H.R. 31 Dec. 1920 N.J. 1921, 275, W. 10711.
121See block 234.
123Court of Appeal in Amsterdam 31 Mei 1919, N. J. 1919, 608, W. 10437.
I, 6th edition (by Scholten), p. 244.
125H.R. 7 Nov. 1930, N.J. 1931, 91, with annotations and discussion in N.J.B. 1931.
126La distinction des lois odieuses favorables faite dans la vue d'étendre ou de restreindre leur disposition est abusive.I borrow this from de
Tourtoulon, Les principes philosophiques de l’histoire du droit
., p. 431. He doesn’t mention the citation place of Portalis’ proposal.
127Zwischen Ergänzung eines Rechtssatzes, Ausdehnung eines gegebenen Rechtssatzes nach Analogie und Auslegung ist nur ein Unterscheid des Grades.”
Burckhardt, Die lücken des gesetzes und die gesetzesauslegung
128Cf. Horvath, Gerechtigkeit und Wahrheit, p. 9.
129Further about this Kelsen, Die philosophischen Grundlage der Naturrechtslehre und der Rechtspositivismus., p. 15/16. Horvath, Gerechtigkeit und Wahrheit.
130The distinction is made however by J. P. Fockema Andreae t.a.p. p. 11. He compares interpretation according to origin with interpretation according to the genealogy of the law. Also by P. van Bemmelen, Rechtsgeleerde Opstellen. I p.6: historical and legislative interpretation. See about historical interpretation in general
Gruijs, “De Strijd over de Historische Interpretatie.”
131An example: H.R.12 Maart 1926, N.J. 1926, 777, W. 11488, in the case (Koolen /Gemeente Gouda) about the natural obligation.
132See a discussion by the writer of this with L. C. Hofmann about Bourjon and his authority for the interpretation of art. 2014 ‘B.W.’ (Civil Code) in W.P.N.R.. 2060 and 2075.
133See below Block 358 et seq.
Houwing, Dwaling bij overeenkomsten
136No. 2427—'31 Reprinted in Verz. Geschr.
Scholten, “Het Beding Ten Behoeve van Derden.”
Bregstein, “Ongegronde vermogensvermeerdering.”
138A défaut de texte précis sur chaque matière un usage ancien, constant et bien établi, tient lieu de loi.” Locré, Legislation civile.I, 157.
139Asser Serie. II, 7th edition (Scholten) p. 149 et seq.
140Praeadvies’ (nonpaper) for the Brotherhood of the junior civil-law notaries (1924).
2452—6 (Volumes 1916 en 1917).
Cleveringa, “De Zakelijke Werking Der Ontbindende Voorwaarde.”
143Traité élémentaire de droit civil de Planiol Tome I
144Gény fails to appreciate this, Methode d'interprétation I No.99. This will be discussed further below.
Opzoomer, Wet houdende algemene bepalingen
. p. 151.
146Cf.the definition of Stahl, Die Philosophie des Rechts 113 (1854) p. 293. “Rechtsinstitute sind Komplexe von Tatsachen und tatsächlichen Beziehungen und ihren rechtlichen Normen, die sammtlich durch ihre Einheitder ihnen innewohnenden Bestimmung ein unauflösliches Ganzes bilden.” (L
egal institutions are complexes of facts and factual relationships and their legal norms, which together form an indissoluble whole through the unity of their inherent determination., trans. lhc) Also Savigny, System. I § 5. The concept is used in another sense by G. Renard, La théorie de I'Institution.,see p.26.
147See the extensive indication of similar phenomena in France in
Perreau, Technique de La Jurisprudence Pour La Transformation Du Droit Privé
. I, 17 et seq.
à défaut de texte précis sur chaque matière un usage ancien, constant et bien établi; une suite de décisions semblables; une opinion ou une maxime reçue tiennent lieu de loi.” Locré.I, 15.
Allen, Law in the Making
., 118 et seq.
150The ‘Openbaar Ministerie’ (Public Prosecutions Department) does so often.
151Strooppot-decision, H.R. 29th June 1928 N.J. 1928, 1138, W. 11864.
Hedemann, Die Flucht in Der Generalklauseln
.153See above block 45 or 296.
154Gray, The nature and the sources of law., p. 171.
. II. n. 146 et seq; Cf. also n. 194 et seq.
. II , p.
H.R. 3 Maart 1905, W. 8191 (Blaauboer/ versus Berlips and versus van Aalst).
Cf. Hofmann, Het Nederlands Verbintenissenrecht
., p. 226 et seq.
., p. 76 et seq.
Blackstone, Lemmings, and Prest, Commentaries on the Laws of England. Book I
. I , 6th edition (Scholten), p. 295.
162Asser Serie. I , 6th edition, p. 243.
Gierke, Deutsches Privatrecht. I, p. 179. The first is law of jurists, the second law of the people.
164Asser Serie. I , 6th edition, p. 628.
165Conclusion for H.R. 11 Dec. 1914, N.J. 1915, 238, W. 9755 in the case Koning against Wijsman and Sigling. In the N.J. this conclusion is mistakenly attributed to proc.-gen. Noyon. The conclusion of the adv.-gen. Besier at H.R. May 10, 1929 N.J. 1929, 1585, W. 11985, is noteworthy. Besier states that “personally he feels much for the appeal in cassation ”, but that he nevertheless concludes that it should be rejected as it is contrary to the settled case law of the H.R. about art. 1223 B.W.
166Court of Law the Hague 27 Mei 1915, N.J. 1915, 646, W.P.N.R. 2374.
167Asser Serie. II, 7th edition (Scholten), p. 358.
., p. 76.
Huber, “Recht und Rechtsverwirklichung.”, p. 438 et seq.
H.R. 20 Jan. 1921 N.J. 1921, 1084, W. 10681; more examples: Court of Appeal Hof Den Haag 15 Maart 1910, W. 8984; Hof Den Bosch 22 Jan. 1901, W. 7555; Court of Law Amsterdam 17 April 1925, N.J. 1925, 861, W. 11391 etc.
171See above p. 111. Block 323.
172More recent literature about cunstomary law: Lebrun, “La Coutume.” and Mokre, Theorie des Gewohnheitsrechts.
173Cf. the opposition in the English law between common law (tradition-case law) and custom.
174Cf. my essays
8. Recht En Gerechtigheid. and my
10. Beginselen van Samenleving., part II.
175Das Gewohnheitsrecht ist dem Historiker, der die Tatsachen nachgeht, ein Schmaus, aber ein Greuel dem Dogmatiker, der mit dem Recht, Gewohnheitsrecht zu bilden, in seinem System nichts anfangen kann. Die beiden Geltungs-gründe Gesetz und Gewohnheit schliessen sich aus.” and “Wir leugnen nicht, dass Gewohnheitsrecht vorkommt” in Die Organisation der Rechtsgemeinschaft., p. 223, compare especially 233 et seq. Also Kelsen: “Wie ein Rechtssatz, den dauernd nicht angewendet wird, aufhört Norm zu sein, wie eine langjährige Pflichtverletzung allmählich anfangt ihren Charakter zu verlieren, wie ein Sollen durch ein Sein verstört, oder aus einem Sein ein Sollen wird, das ist eine für die juristische Konstruktion nicht fassbare Tatsache, ist juristisch ein Mysterium”. (How a legal proposition that is constantly not applied ceases to be the norm, how a longstanding breach of duty gradually begins to lose its character, how an ought is disturbed by a being, or a being becomes an ought, is for the legal construction an intangible fact, a legal mystery, trans. lhc). Hauptprobleme der Staatsrechtslehre. p. 334.
Mommsen, Krueger, and Watson, Corpus Iuris Civilis, Digesta , D I. 3. 32. I.
177Als Nichtrecht beginnt die Norm ihr Leben; in der Uebung erprobt sie ihre Berechtigung und erobert das Bewusstsein der Gemeinschaft”, Pandekten (
1893) p. 94.
Puchta, Das Gewohnheitsrecht
., I, 144. Mutatis mutandis the same can be said about the legal consciousnous of Krabbe. About this see below §27.
Struycken, Het staatsrecht van het Koninkrijk der Nederlanden
., § 39 et seq.
180“often”: it leaves a remainder. See below.
181H.R. 5 June 1874, W. 3735.
182H.R. 26 June 1908, W. 8729 (Barzilai / Grossman).
183H.R. 7 April 1932 N.J. 1932, 1613, W 12463 (Kamps/ Heilbron. See annotation to the ruling in N.J.
184See references in
., p. 12.
Kosters, De Plaats van Gewoonte
187Proceedings of the association of Dutch Jurists 1916, I, p. 188.
Houwing, Rechtskundige opstellen
., p. 292.
189See also my book Beschouwingen over het recht, p. 163 et seq, reprinted in Verz. Geschr.
Scholten, “6. Recht En Billijkheid.”
190The ruling of 1908 cited above.
Court of Appeal Amsterdam 5 March 1915, N.J. 1916 p. 987, W. 9868.
Court of Law Rotterdam 19 April 1890, W. 5865 (assignment).
193See annotation to the ruling of 7 April 1932 N.J. 1932, 1613, W 12463 referred to above. The difference is caused by the tendency to reduce the custom to the will of the person concerned, which is easier with the customary stipulation than with the actual custom.
194In this sense
Gény, Méthode d’interprétation
. n. 130 et seq,
Kosters, De Plaats van Gewoonte
., p. 102.
196See above p.67 et seq, block 214 .
197See p. 25 et seq. Block 95-99.
Beaumanoir and Salmon, Coutumes de Beauvaisis
., n. 682, 683.
199We owe this understanding especially to
Ehrlich, Grundlegung der Soziologie des Rechts
. However he made the mistake of identifying this practice as law, and in this way failed to appreciate the significance of the written law as well as the normative element which is conceived in all law.
200Lectures on Jurisprudence
., p. 560.
Eine Gewohnheit als solche kann nicht Erkenntnisgrund für etwas als Recht sein. Auch nicht einmal als eine unselbständige Quelle lässt die Gewohnheit sich verstehen: denn es werden hiermit nicht bestimmte, objectiv eindeutige Kriterien angegeben wenn etwas Recht ist”. Ross, “Theorie der Rechtsquellen.”, p. 425.,
Kahn, “Conventions” of Politieke Stelregels.”
203Our contradistinction to Kahn becomes clear in a felicitous comparison made by this author. The development of law he says, is like a clock of which the hands don’t glide along invisibly, but from time to time jump forward. I deny this: they glide along, but we can only precisely indicate where they are, when they have reached the mark of a minute.
204Court of Appeal Leeuwarden 12 Juni 1918, (Hoven en Zoon/ Sannes' IJzerhandel) N.J. 1918, 1104.
205See the references to literature and judicial decisions in
Praag, Wet Algemene Bepalingen
., ad art. 3, n. 6. Compare also § 293 Deutsche Zivil Prozess Ordnung.
207Van Apeldoorn,De synode en de predikantstractementen(1925) p. 7, gives a long list.
208Between whom however somebody as knowledgeable about our churchlaw as Mr. Van Apeldoorn.
Assumption of acceptance based on resignation and behavior. H.R. 2 Jan. 1846, W. 674.
210Something similar applies to the restoration of the old hunting rights by the sovereign decree of March 26, 1814, a decree dated at a time when the Sovereign Prince was authorized to take them but promulgated in the Official Gazette after the promulgation of the Constitution, which cancelled his authority. See Kosters about this Oud Nederlandsch jachtrecht
., p. 102 et seq.; cf. in particular his statement: “Even if the restoration decisions were declared non-binding, one would be inclined to assume that constant jurisprudence and established practice had created customary law here.”
211Law Court in Amsterdam 13 March 1907, W. 8567.
Gény, Méthode d’interprétation
. I, 346, n.116 and Suárez, Tractatus de Legibus Ac Deo Legislatore, Etc., Lib. VII, cap. I, n. 5, further cap. 15.
213Ehrlich, Grundlegung der Soziologie des Rechts., p. 70.
214See above p. 88.(block 262/3)
215Asser Serie., II, 7th edition (by Scholten), 199.
216Méthode d’interprétation. I, n.129 en n. 133. Gény retracts much of the distinction, by his recognition of custom as source in the domain of trade.
217Rechtsordnung und Verkehrssitte
., 349 p. 349 et seq.
Taverne, De taak van den strafrechter
. 219Fockema Andreaeat least mentions nothing of this in his Tien jaren rechtspraak van den Hoogen Raad
. See above p. 53 (block. 165).
H.R. 3 Febr. 1922, N.J. 1922. 388, W. 10864. (Veltman / Kooper).-#-221
H.R.18 Juni 1926, N.J. 1926, 1021, W. 11529 (Altena / v. d. Horst); H.R. 23 Maart 1928 N. J. 1928, 730, W. 11837 (Huidenmaatschappij /Disconto Bank).
222See above p. 82 (block 248/9).
223See above p. 86/7
224See Van der Heyden in Rechtsgeleerd Magazijn1928 p. 1 et seq.
225The “new” rule; here also the judge, determines the formulation and the same is true regarding this formulation as we remarked about customary law.
Windscheid and Kipp, Lehrbuch des Pandektenrechts
., 23 noot 1a;
Gény, Méthode d’interprétation
227Cf.the annotation to H.R. 11 March 1926, N.J.1926, 508 W. 11485.
H.R. 25 Nov. 1926, N.J. 1928, 1006, W. 11712.
229See above p. 113 (block 328 en 329).
230See above § 21.
231See above p.107
232See above p. 122 (blok 353).
233H.R. 23 Mei 1924, N. J. 1924, 817, W. 11292 (Smalhout/ de Haan).
p. 13 (block 45), p. 100 (block 296), p. 113 (block 324/5). Cf. also Moor, “Das Logische Im Recht.”, 193. 235Het recht der werkelijkheid.
236This is emphasized more in Hijmans' De tweesprong van de rechtswetenschap., cited on p. 60 (blok 187).
Hijmans, Het recht der werkelijkheid.
, p. 17.
book Beschouwingen over recht
., 200, reprinted in Verz. Geschrift.: “6. Recht En Billijkheid.”, p.267 and “7. Recht En Moraal.” 239See above. I said “for example”, because this applies also in the case of interpretation according to language or tradition, but is most obvious in the case of analogy and refinement of law.
240Cf. my Beschouwingen over recht
., 184 et seq., reprinted in Verz. Geschrift : “6. Recht En Billijkheid.”, 256.et seq. 241Cf.
Goodhart, Essays in Jurisprudence and the Common Law., p. 1 et seq., especially p.10 en 19.
242De moderne Staatsidee. p. 42 et seq.
Kranenburg, Positief recht en rechtsbewustzijn
., p. 130.
244Cf. the review of the 2nd print of the indicated book in W. P. N. R.3091/2 by G. Scholten and in the Ned. Juristenblad1928, p. 761 and 783, by J. H. Carp.
Cf. my essay “7. Recht En Moraal.” p. 294.
246De rechtspraak van de landraden naar ongeschreven recht
., p. 11.
247This is not only of psychological importance, as Hoetink argues in his important essay “Rechtsregel En Rechtsbeslissing.” It reveals the nature of legal decision. In my opinion, the sharp separation, which Hoetink makes between a paedagogical-psychological and theoretical conception of law, does not exist.
une volonté d'aspiration, d'adhésion, de sujétion” Principes de droit public
, p. 274.
249Think about the American codification about the use of alcohol.
Overeenkomsten in Strijd Met de Goede Zeden.”, p. 47.
H.R. 8 Juni 1923, N.J.1923, 1031, W. 11071 in the case Kadt versus Prins.
See p. 9. (block 32).254See my essay
2. Recht En Levensbeschouwing.” en my book Beschouwingen over recht
255Rechtsnorm und Entscheidung
, p. 61.
256C. A. J. Hartzfeld, at this moment judge of the subdistrict court in Amsterdam, has energetically pleaded for this way of administering the law. See Rechtsverfijning(1919), Proceedings of the Dutch association of Jurists, 1916 non-papers of Loderand G. Kirberger. See also my
257See the openings-speech of Jhr. D. R. de Marees van Swinderenfor the meeting of the ‘Juristenvereeniging’ (Dutch association of Jurists) of 1931.
Hymans gives a different opinion about settlements in court in De tweesprong der rechtswetenschap
, p. 10.259
Compare my “10. Beginselen van Samenleving.”, p. 357/8.
Rengers Hora Siccama has made two critical reviews of the first edition of this essay in respectively W.P.N.R. 3306/7 and in Themis 1933, p. 328 et seq.
In rede “8. Recht En Gerechtigheid.” en in mijn “10. Beginselen van Samenleving.” I have elaborated the deeper foundations of these thoughts.