Law and Philosophy of Life, English Translation of Paul Scholten's First Legal Philosophical Publication (concept)

Liesbeth Huppes-Cluysenaer
Paul Scholten

DPSP Annual Article in Progress
ISSN: 2667-2790

Digital Paul Scholten Project

Article Info

Category: new translation
Article in Progress

Foreword by editor

Law and Philosophy of Life is first published in Synthese in 1915. It is also included in ‘Beschouwingen over Recht’ (Reflections on Law) in 1924 and in the ‘Verzamelde Geschriften’ (Collected Papers) in 1949 (Volume I, no. 2). An adaptaion of the Dutch original text was made as a prepatory step for the English translation and will be published alongside. It is possible to compare the original text with the Dutch adaptation and the English translation on the Dutch part of the website The numbers in the text refer to the textblock-numbering which is made to enable such comparison. The adaptation and translation were made by Liesbeth Huppes-Cluysenaer and further edited with the help of native speaker Jacqueline Schoonheim. The endnotes included with the text have been provided by the translator and edited by the native speaker. When Scholten himself had made such a note, this is indicated in the note.


§ 1 Law and codified law

   The old notion that all law can be found in codified laws and that law and codified law are synonymous is today rejected.
   It seemed so simple and obvious. The legislator determines what is law. One can argue about how he arrives at the rules he proclaims and whether he follows ethical standards or merely expresses what the existing power relations entail. Opinions may also differ as to whether those who deal with legislation merely write down what is in the interests of their principals, and whether it is the arbitrariness of those principals that determines whether a rule of law is issued or their attempt to formulate the commands of a law of higher order. It seemed without doubt though that only those who contribute to legislation determine what the law will be . Only the legislator makes a rule into a legal rule: 'positive law' was often said, but according to most people this was not necessary, because all law was positive after all. In accordance with the old tradition, in which law and custom always had been designated as sources of law, custom was still given a place in the doctrine of legal sources. But that was usually the only mention; decisions of legal disputes on the basis of custom remained rare. The legislature showed its supremacy by recognizing the custom as a source of law only when the law refers to it. However, there were always people who doubted that supremacy. They raised modest reservations or defended a single tentative limitation of the legislature's omnipotence. The vast majority, however, remained convinced of the legislature's dominating position.
   The legislation in the first place regulated the legislation itself and thus also created new work for the legislator. We have already referred to the provision that custom only counts as law when codified law refers to it. Our conception of codification, that is, the idea that all rules pertaining to a particular subject should be brought together in one comprehensive code of law, was based on this same idea. The Civil Code had to contain all the rules on civil-law relationships, the Commercial Code on commercial law. Such codification was not only intended to give a firmer definition to the existing legal rules, i.e., to create unity of law, but above all to create legal certainty. For the sake of this legal certainty, any rule that was not sanctioned by the code had to be denied binding force. The General Provisions for Legislation Act 1 expressly states that the judge, who claims that he cannot give a decision on a particular dispute because of "silence, obscurity or incompleteness of the law", is guilty of denial of justice and that his criticism of the law is only a “pretext”.
This means that the law proposes to contain the solution to every legal dispute. This view also underlies the institution of cassation. Cassation aims to create unity in case law on questions of law, but only allows the Supreme Court to annul the decisions of a lower court in the event of a violation of codified law. The limitation to cases of violation of the codified law only makes sense if one assumes that every legal dispute can be traced back to a question of application of codified law. More examples could be mentioned. However, I hope this is not necessary to show that the belief that codified law and law are identical was endorsed by our legislature, as it was by many other legislators in early and more recent times.
   By formulating the view that all law can be drawn from codified law as a legal provision, it gained great influence. What more could one want than that codified law should also contain provisions about itself, and that the first of these is that all law should be deduced from codified law. At the same time, however, anyone who doubts the truth of the statement that all law is deducible from codified law will not be convinced by codified law of its correctness. In recent years, precisely this doubt has arisen and the relation between law and codified law has become a problem. The first point about which people came to a different view was the very fact of the absorption of the whole law by codified law. Everywhere the opinion pervaded that there is law next to codified law, that codified law is not without gaps, not "lückenlos", as the Germans say.
   It started with an analysis of the relationship of the judge to codified law. The slow progress of the legislative process led to more freedom of the judge. This raised the question to what extent this freedom was permitted to the judge. People started thinking about the role of the judge. The judge has to apply the codified law, there was and is agreement about this. But how far does this obligation go, is it his only task and what is "application of codified law" actually? Until the publication of Oscar Bülow's fine speech on Gesetz und Richteramt2, which is now thirty years old, little thought was given to such questions in the 19th century. It was taken for granted that the judge did nothing but apply the abstract rule to the concrete case. His task was to sort out the case and then put it in a box, that had been drawn up by the legislator. The desired solution then automatically followed, the decision of the legal dispute. Purely intellectual work, therefore, without any personal judgment or appreciation. No one has formulated this thought more sharply than Montesquieu: 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)3 And what was said of the judge also applied to legal science, the task of which was to provide the judge with information and to solve questions of law, the answer to which could not simply be read from the law. Jurisprudence was supposed to do nothing more than elaborate and elucidate the ideas laid down in the law—interpret the law, so to speak. However, when one came to a more precise analysis of the judge's task, it soon turned out to be different.
   To give an example. The codified law provides that a legal separation from bed and board can be pronounced when there is an excess of one spouse towards the other. What is excess? According to the Supreme Court: "acts discordant with the concept of marital fidelity and with a tolerable coexistence", according to another court: "acts and treatment of such an offensive and injurious nature that further coexistence must be considered untenable", or: "that further good understanding cannot reasonably be expected”. So far this still concerns an interpretation, i.e., a further determination of the legal concept of excessiveness. But what does the judge do in this case when he applies the legal provision? Just establishing what happened and subsuming the facts thus established under the legal rule? Of course not. After all, if he has established that the man, for example, is constantly abusing strong drink, he must also decide whether that behavior is actually contrary to a tolerable coexistence and whether it is offensive and insulting in nature. He must appreciate that behavior, test it against standards that the codified law does not give him. There is an ought — a legal ought — which is not written down in codified law. Between the two parts of the traditional task of the judge slides a third one, which is the most important: the task of establishing the rule with which the behavior of the person concerned should comply.
It often happens that the legislator leaves it to the judge to find the actual law by using broad terms such as excessiveness. Such a flexible content of legal rules does not only occur with some ancillary regulations, but precisely with the fundamental rules of our way of dealing with each other. One can think of the principle of good faith, which governs contract law. The judge will have to determine what good faith demands. Another example is that one is released from an obligation accepted by agreement if one is prevented from fulfilling it by force majeure. Due to the state of war, people are currently often forced to make use of this rule. But, when do we speak of force majeure? 4 According to the prevailing teaching, force majeure is “when one has done all that can reasonably be demanded”. Codified law certainly does not state what can reasonably be demanded in every agreement, nor can this in any way be extracted from it by examining the text or its history.
Finally, the concept of guilt. In connection with a claim for compensation in the event of, for example, a car accident, the court will have to determine whether the collision is attributable to the driver's fault. What is he researching in this respect? First of all, he determines what happened, for example what speed the car was traveling at, whether signals were given, whether the driver remained on the right side of the road, etc. But with all these facts established, the decision is still not given. For this, the behavior of the party addressed will have to be tested and valued. The judge will have to determine what the motorist ought have done. Anyone who understands how fundamental the meaning of concepts such as guilt and good faith is, will see that application of law is always more than mere application of codified legal rules. This applies to private law, but the same phenomenon can also be observed on a smaller scale in criminal law. In addition to intentional manslaughter, causing death through negligence is a criminal offence. However, the codified law contains no rules for the question of when an omission or clumsiness must be so seriously disapproved that the perpetrator must pay with punishment for the result he unintentionally caused.
X-It is important to keep in mind that in all these cases it concerns judge-made law that is requested from the court. The judge has to decide what acts spouses are not allowed to commit towards each other, what the contracting parties are obliged to do towards each other and when they have done what they had to do, what care one generally ought to have for the good and safety of others. Whoever does not want to assume that it is completely arbitrary how the judge answers these questions and that he could say a as well as b must recognize the existence of law next to or behind the codified law.5 Legal norms, which have not been formulated by another body as a command to the judge, but which have to be found. That the judge does not make arbitrary decisions is something one can be convinced of, but that cannot be proven. The one, however, who is convinced that there exists an ought or duty, irrespective of how this is afterwards arbitrarily judged by a third party, will not only be sure that the norms for our actions are not merely based on the codified law, but also that those unwritten norms can be legal norms. In every judicial assessment, the law behind the codified law always shines through the codified law.
   Once one has discovered this, one soon realizes that this is not only the case with the regulations referred to here, but actually everywhere where law is applied. There are, for example, all kinds of questions to which the legislator not only gives a very broad answer, as discussed above, leaving it to the judge to define the meaning in question, but to which he simply does not answer. In criminal law, the rule applies that, if the law is silent, the act is punishable. In short, if there is no legal rule that has been violated, the perpetrator will go free, however objectionable his act may be. In private law, on the other hand, the judge must decide every dispute. He is not free to answer that the law is silent and that he does not know how to decide. A striking example of such a lacuna can be found in our private international law, namely the lack of regulation of the civil-law relations between the nationals of different states. We have several treatises on this subject at present, but these deal with only a few subjects, and by no means all civilized states have acceded. England and the United States are not bound by these treatises.
But apart from these treatises, our law contains only four rather general provisions concerning the many questions of law to which international relations between the citizens of different states give rise, such as their contracts, marriages and inheritance. It states that for the Dutch person the laws relating to his civil status are binding, even if he is abroad. In other words, the question of whether a Dutch person living abroad has reached the age of majority, whether he is allowed to marry, whose consent is required, etc., is decided under Dutch law. It further states that with regard to immovable property, the law of the place where it is situated applies and that the legal form is judged according to the law of the country where the acts were performed. Finally, it is stipulated that Dutch civil law applies to foreign nationals in the same way as to Dutch citizens, as long as the contrary has not been expressly stated. There is nothing else. On the basis of analogy, one can conclude that the provisions of his own country apply to the foreign national in the Netherlands, as far as his civil status is concerned.
The question is therefore how, for example, the content of the contractual obligation should be determined in a purchase agreement between a German and a Dutchman concluded in England. Should the consequences of this be assessed according to German, Dutch or English law? Which matrimonial property law applies if, for example, a Dutchman marries an American girl. Does this marriage have the effects of property as prescribed by our law or by the law of the country to which the woman belongs? And what about inheritance law? All these questions are legal questions to which the judge must find an answer. He cannot draw this answer from the codified law.
   We spoke above of an analogous application of the law. In such a law application, too, there is something different than simply subsuming a case under a rule, there is more going on than simple logical reasoning. It is traditionally assumed that one may resort to analogy if one cannot achieve a result through an interpretation of the law. The case submitted to the court does not fall under the rules laid down by the legislator, but shows a relationship with a particular legal rule and the court believes it has reason to apply that rule by analogy. Analogous reasoning is very common in legal dispute resolution.
An analysis of this line of reasoning shows that in order to arrive at a new rule, the judge must first ascend to a more general one, of which the related legal provision is a corollary, and then descend from there to the new norm which he establishes. For example, the law establishes for Dutch citizens that the question of whether they are of age must be answered in accordance with Dutch law. But suppose the opposite case occurs: before a Dutch judge the question arises whether a Swiss person living here is of age at 20, as determined by Swiss law, or at 21, as stated in our law. The court now assumes by analogy that the provisions of their national law for the determination of their personal status also apply to Swiss citizens, just as it is established by law for Dutch citizens. But what does the judge base this on? No other than that he thinks he has the freedom to extend a rule of our law about the personal status of the Dutch to everyone, of whatever nationality. But whether the judge has that freedom, in other words whether he is justified to do this, is a question for which in the final instance not the codified law — of which we supposed that it does not express itself on the case — will be decisive, but the judge's own assessment. So there is a difference between the analogical way of reasoning and the ordinary application of the law.
In the case of a direct application of the law, the concrete judgment, which is pronounced, was in fact already contained in the abstract rule of the codified law. If a statutory provision declares that anyone guilty of theft is punishable and the judge decides that Jan has stolen, the conclusion of the judge that Jan is punishable is already included in the provision. However, if the judge uses analogy, he is applying a rule that is neither explicitly found in the codified law nor logically inferred from it. Standards other than those of the codified law influence his decision then. The judge will accept or reject the analogy depending on whether the rule he is extending is the result of a general unwritten norm or of a special precept.
    And last but not least. Also in the interpretation, which has always been seen as specific to the work of the judge and the contribution to it from the side of legal science, the testing of the result against standards not formulated by law plays a major role. As soon as one starts to interpret, one basically abandons the teaching that codified law and law are the same thing.
Emperor Justinian—who, like any codifier, was prone to overestimate the significance of codified law—knew what he was doing when he forbade the writing of commentaries on his code. Whoever dared transgress that command was punished and his books were burned. Only for the legislator, that is to say for the emperor himself, would it be appropriate, in case of doubt, to give a more detailed interpretation of the meaning of the law. He knew what he was doing, because after all, every interpretation adds something to the law. There has been a lot of controversy about interpretation methods. This is not the place to go into that discussion. One thing is certain, however: interpretation of the law is not an inquiry into the intentions of those who made the law. That is clearly impossible with today's many-headed legislators. Interpretation involves determining the meaning of the law. It may be the case that some give more and others less room to the judge's judgment, one can feel bound to the language used, to the meaning of the words of the provisions in daily life, the history of their creation, to the tradition, or whatever factor comes into play in the interpretation. However, no one can deny that in weighing the various factors, the judge's own view of the desired result, consciously or unconsciously, exerts influence and that he tests this result against norms, which are not written down in legal provisions, but represent what in the judge’s view ought to be law.
This is because no one is able to indicate a hierarchy between the various factors that play a role in the interpretation. It is not clear to anyone when the words of the codified law should be decisive or when the history of the law or its purpose should be followed. There are quite a few people — especially in the Netherlands — who attach great importance to the wording pronounced in the written provisions. But they too must resort to other means of interpretation if the words are not clear. They must therefore also come to the conclusion I indicated above. The difference between them and their opponents is a matter of more or less, it is gradual, not principled. Also with regard to them it remains true that the interpretation of written provisions is to a large extent something different from intellectual work and that the conviction about what ought to be law plays a major role.
   What we said above about seeking the applicable law in cases in which the legislator expressly instructs the judge to do so, also applies here. This plays a role in every legal application. The judge is merely sometimes more than at other times restricted in his freedom through the norms formulated in the codified law. When the legislator clearly determines what the court should decide, the court has to accept that decision and must stay within the limits set by the written provisions.

   From this perspective on the application of law, the informative task of legal science is different from what is traditionally stated. There is not one single given: the law. Analysis of the codified law is not the only task of legal science. The task is to seek the applicable law, to find the legal norms. Codified law is both a tool and a limit in this respect. Tool, insofar as the opinion which is explicitly expressed by the legislator can be useful in investigating the questions about which he is silent. Limit, insofar as binding decisions of the codified law restrict free research. This is further elaborated below. First, another side of this issue is discussed.

§ 2 Codified law and facts

   The statement that there exists law which is not written down as codified law is also important in another way.
   When we speak of
valid law, this can be understood in two ways. We may refer to the legal norms that should be followed — but we can also refer to the legal norms that are actually followed. It has often been thought that these two views coincided: the written provisions prescribe what should be done and this is enforced by the appropriate authorities. No one denies that legal norms are time and again violated, but acting differently than the codified law commands was seen as an injustice, which can and will be reacted to with the means indicated by the law itself. Recently, however, it has been concluded that this concerns a misrepresentation, however simple and enticing it may seem. There is a lot of law besides the codified law that is recognized, followed and enforced. Conversely, there are many written provisions that have become a dead letter. Once the break between what is written down in provisions and what is actually recognized as law is noticed, it keeps coming back into view.
   We give some examples. The most important thing first. There is nothing in the Constitution about the parliamentary system, which is the basis of our constitution. We are all convinced that there should be agreement between the government and the representatives of the people on the main lines of state policy. And yet, where does it say in the Constitution? Since the parliamentary struggle of 1868 it has been established that as soon as there is no agreement between the House of Representatives and the government as a result of the results of the elections or for any other reason and the House withdraws confidence in the government, the government cannot also not allowed to sit. It is also certain that ministers are responsible for the government measures they take and cannot rely on the chamber that they have acted in accordance with the personal wishes of the king. As a result, ministers are never at liberty to withdraw a government act from an assessment by the Chamber on the grounds of the independence of the royal power. These kinds of rules are referred to when we talk about a parliamentary system.
And what does the Constitution say about these issues?6 It is stated that the king appoints and dismisses the ministers as he pleases, that he has executive power, that he is free to sanction or not sanction a bill adopted by the States General. It is clear that the law in force cannot be deduced from these legal provisions. The Constitution was based on the idea of ​​a constitutional monarchy in which the king is sovereign and is restricted in the exercise of his power by the parliament. However, the current reality is different. The codified law kept the old formulas, while the law changed.
   The Constitution offers several examples of such changes. One could still regard the question of whether the Constitution allows the subsidization of special education
7 as a question about the interpretation of art. 192 Gw. However, no one who intends to give a description of the applicable law will close his eyes to the fact that since 1889 the legislature has accepted the practice of subsidization and that it is the general belief that it should be so. In the light of these facts, it cannot be maintained that the Constitution provides otherwise. Besides these examples, which are really not about trifles, there are many others to be given. A series of customs and established beliefs have sprung up around the Constitution, which are outside or even contrary to the letter of it and which are observed and enforced in the same way as the legal precepts themselves. Shouldn't these therefore be regarded as parts of the applicable law?
   If we shift our attention to private law, it appears that our property and family law relationships cannot be known from the law either. For example, look at contract law. The law provides general rules for this and leaves everyone free to determine the concrete content of legal relationships within these limits. The person who wants to describe the existing law will only pay attention to the general rules and consider the contractual provisions unimportant. But this changes when the exception becomes the rule and the rule becomes the exception. Suppose, for example, that the law permits that a certain authority may be stipulated or that a certain rule may be deviated from and that it becomes the custom to include that authority or deviation from the statutory provision in contracts. What then is the applicable law: the statutory provision or what is normally stipulated in a contract? This type of case is especially common when the contract is bound by a specific formal requirement and must for example be drawn up by a notary, so that in practice fixed forms are used. This is the case with the law that determines that the person who has the first mortgage on an asset may stipulate that he will be entitled to sell the asset if the debtor defaults on the payment of principal or interest. The mortgage deed is drawn up by a notary and I suspect that among the thousands of deeds of first mortgage that the notaries draw up, there is not one in which the clause does not appear. What is the current law: whether or not the first mortgagee is entitled to sell?
Another example is when stakeholders unite and draw up a kind of model contract. For their part, they then formulate the rules that they will follow when concluding their agreements. Insurers have done this ages ago and the Amsterdam and Rotterdam stock exchange conditions also contain provisions of their own making. Numerous industries followed in later years, such as trading in securities, coffee, grain, flower bulbs, and oil. Each industry has its own terms and conditions and any contract entered into by a trade association member is deemed to contain those terms. Which source should now be studied for insurance law and commercial law? The conditions included in the contracts or the codified law? There may also be an international arrangement. It is true that our law contains a particularly large number of provisions on general average (which regulate how the costs must be divided when a ship in distress has suffered damage to ship or cargo as a result of rescue operations), but the shipowners decided to make their own international arrangement, which of course does not correspond in all points with that of our codified law. It has subsequently become customary to stipulate in every contract that the distribution of the costs at general average will take place in accordance with these so-called York-Antwerp-rules.
Again, what is the source from which the applicable law regarding general average must be drawn: from the internationally agreed settlement, which never became law, or from the law, which is usually set aside? Finally, there may be an arrangement originally laid down by a certain authority for the benefit of certain relationships in which it acts as a contracting party, but which, because of the authority it emanates, is followed in a much wider circle. For example, the Minister of Water Management has drawn up general regulations that must be observed when tendering works for the State. However, it has become customary to refer to these regulations in other procurement contracts. Do these rules not now belong to the law of procurement contracts? In all these cases we are dealing with norms which govern contractual relations, not however because they are imposed by government, but because parties freely submit to them. Do not these rules have the same meaning for the parties as the rules of supplementary law, which are drawn up by the legislator to be applied when the parties have not deviated from these in their contract? In both cases the parties enter into a special legal relationship with each other on the basis of their free will, whereby they determine for themselves what they will essentially be obliged to do, while for the rest their relationship is governed by a series of abstract regulations drawn up by others, which automatically enter into force upon entering into the agreement without the parties realizing all the details of that arrangement. So are the general rules drawn up on a contractual basis not law in the same way as the statutory rules of supplementary law? And if the contractually based rules are invoked, complied with and enforced and the rules of supplementary law not or only exceptionally, are the contractual rules then not the actually living law?
   In family law we see something similar. No one will claim that the provision of the civil code, that the wife owes her husband obedience, is prevailing law in the Netherlands. Not because the provision is unenforceable. If one wanted to, there could be a way to give the prescription some realism. For example, disobedience on the part of the wife could be regarded as an extravagance, on the basis of which a separation from bed and board could be requested. Yet that has never even been attempted. What was said above about contract law also applies in the field of matrimonial property law. Outside the realm of capital management, little or nothing is noticed of the legally established incapacity of women.8 What does a working-class woman or a woman from the small middle class know about it? The law provides that a general community of property will prevail in the marriage between a man and woman and gives the parties the opportunity to stipulate otherwise. Prenuptial agreements are becoming more and more common even among not very wealthy people. It is not there yet, but it may come to the point that more people get married with prenuptial agreements than without. Would one still think that the legally determined matrimonial property law is the prevailing Dutch law for this relationship?
   Family law also provides a clear example of how the judiciary sometimes deals with codified law. I am not talking now about how the judge should deal with the law, but about how he actually does it. The outcome that one finds when studying the case law is, to say the least, sometimes somewhat different than one would expect when reading the written provisions. For example, the law provides that divorce by mutual consent is not allowed. Yet it is known that it is not difficult in the Netherlands to divorce by mutual agreement, provided one of the parties accepts the accusation of adultery or malicious abandonment. How is that possible? The matter is very simple. In 1883 the Supreme Court ruled that the principle that a confession is complete evidence also applies in divorce cases. So when the wife accuses the husband of adultery, and he confesses the fact, the judge must pronounce the divorce. It is even simpler if the man stays away and the case can be handled by default.. The doctrine of the Supreme Court has been fully accepted by the lower courts. Thus a divorce was even pronounced against a man who expressly protested against the accusation, but at the same time added that he would admit the accusation anyway, since he wanted to get rid of his wife as much as she did from him.
One may find this case law regrettable and be convinced that this is a technically incorrect interpretation of the law. However, it must be recognized that the view has become so well established that it can no longer be ignored and that it is impossible to suffice in a description of our divorce law with a summary of the legal grounds and the addition that divorce by mutual agreement is not allowed. It is clear that the actual law cannot be deduced from the law alone. How difficult it is to keep this truth in mind becomes apparent from the explanatory notes to the bill that Minister Regout submitted at the time to put an end to what he also believed to be an abuse of jurisprudence. In this bill he recalled the fact that the case law of the Supreme Court was generally accepted, but when he appealed to foreign countries in support of what he proposed, he described the law applicable there on the basis of merely the codified law and neglected to take into account that also in France, for example, through detours a practice is realized, which the legislator forbids i.e., divorce by mutual consent. The memorandum stated that what applies by law in the Netherlands does not apply anywhere else. In doing so, the minister compared our actually applied law with codified foreign law and not with the law that jurisprudence and custom in these countries base on their codified law. This shows how the doctrine that the codified law is the only source of law is in the blood of lawyers, at least Dutch lawyers. In France it is different. There they are fully aware of the great significance of the judiciary for legal life.
   I have given a few striking examples to show how one cannot know the living real law from the codified law alone and how jurisprudence is a source that can never be neglected. Many more examples could be added. For the lawyer this is not necessary and for the layman it would be boring. I hope that what little I have put forward will suffice to make it clear that anyone who wants to know what the applicable law is cannot limit themselves to studying the codified law. It is necessary to examine what has been made of the law not only by the judiciary and administration, but above all also by the citizens subject to the law. Law is a real phenomenon. It represents a power in society and this is again emphasized today. It concerns a shift in the center of gravity for legal research, a change in the understanding of the meaning of the law. Science will no longer focus on the description and systematization of abstract rules, but on actual research into concrete aspects of society, on the rich reality and not on dry abstraction. Once one has tasted this living water, one no longer longs for the barren region where the concept reigns. The law is then no longer the norm that demands obedience, but the summary of what happens in reality. It is then especially important to check to what extent the summary given in the law continues to correspond to reality, while at the same time it does not coincide with it.9

§ 3 Sociological view of law

-X-The two directions in recent legal science, which I outlined above with some examples, agree on one point: law and codified law are not identical. For both, law is more than a set of rules, to which authority is conferred by a particular authority. In the view of neither direction, legal science can suffice with a description and systematization of codified rules. According to neither view, law is solely made by the legislator. But otherwise both directions are clearly different. They represent two different visions of law. One view sees law as an idea, that is, as a guideline for action and a task to be fulfilled. The other view sees law as a phenomenon, that is, as a relationship between people, through which one exercises power over the other. In the first view the formulation of the law is an attempt to describe the legal idea, in the second view the law describes something that happens. In the first view, the science of law is a normative science, which searches rules for what people should do and which values the goals that people pursue. In the other view, legal science is part of sociology and describes the legal aspect of human society. Any legal issue can be considered in these two ways.

Suppose one wonders whether a decision of the highest court, the Supreme Court, binds the lower courts, i.e., asks about the meaning of a precedent. The person who answers this question from a normative point of view will examine whether the judge should follow the Supreme Court according to the law, to unwritten law, or to any other source of law. From a sociological point of view, however, it will be examined what influence the judgments of the Supreme Court have on lower courts. When asking whether a custom makes the law inoperative, one will try to determine from the normative view what the relationship between custom and law should be, while from the sociological point of view it will be examined whether it actually occurs that laws are overruled by habits. A legal doctrine may have developed on a particular issue, which is generally accepted as correct by judges and authors, and which is maintained in practice. One speaks then of a prevailing doctrine. A sociological jurist will not only establish the existence of such a prevailing doctrine, but will conclude that it is therefore legally valid, while the person who sees the legal rule as a norm is forced to test the doctrine against what he believes to be a true source of law. If he then comes to the conclusion that the prevailing doctrine is incorrect, it cannot be accepted as valid law by him, no matter how many others have decided otherwise.
   It is not the case, however, that one jurist follows the normative approach and the other the sociological one. Anyone who enforces, applies or writes about law, anyone whose actions are relevant to the reality of law, uses both methods interchangeably. Of course, some will be more inclined than others to bow their head to reality, also in legal life. However, no one escapes the existing dualism.10
   The question is, however, whether one would not be obliged to choose one of the two methods over the other and then implement it consistently. This has been defended for both views. The question to what extent, from the normative view of law, account must be taken of what is actually followed and enforced as law, will be discussed in more detail below. I shall first dwell on the conception of those who consider the sociological view the only possible, at least the only scientific one. For them, the codified law is the expression of power relations, while legal science provides a description of the legal side of society. With regard to the description they believe that only if legal science takes merely into account what happens it will rise to a branch of natural science and this is – despite Rickert
11what many still see as the highest ideal achievable by science.
-Many lawyers—certainly not the least eminent ones—have recently defended this view. The view has strong support in both France and Germany and is considered entirely new there. However, we would like to recall that a similar line of thought has already been defended in the Netherlands by Professor Hamaker, who passed away a few years ago. The quote below shows exactly the same denial of the normative nature of law, which can also be found in the works later sociologists and which can be characterized as naturalism in legal science. Just as the laws of nature contain the formulas in which we express our sense of the succession of the connections between phenomena, so the rule of law is the expression of experiences resulting in an insight in the succession and connections of the actions of people in their relationship to each other.12
    I will refrain from a principled fight against the naturalist view, which is expressed in this quote. That is not the issue here and it also makes no sense, because we are dealing here with two different opposing philosophies of life. This creates a struggle in which we can choose one of the two and in which such a choice is also necessary in my view. But we will not be able to convince each other of the incorrectness of the choice we reject.
It may be considered that all that can be said about justice has been said when a description has been given of the customs and practices prevailing in a place, and of the means of power by which the behavior that clashes with those customs is suppressed, and when finally a report is made of the views of those who exercise or undergo power. It is then assumed that there is no possibility to test or value these phenomena, because there is no standard for this. This means that power and law are equated. What should happen is then completely inferred from what happens. Since Kant this has been regarded as the methodical error in the field of ethics. By the way, one of the ancient Roman jurists (Proculus) already taught that one should pay attention not so much to what was done in Rome, but more to what should be done.14 The rejection of the possibility of valuing phenomena results in a denial of the ought, that is, a denial of the concept of duty as representing a worth all of its own. For those for whom that value is a primary fact, which cannot be tampered with, this teaching cannot be accepted. But as I said, I won't go into this. From my perspective I can confine myself to explaining a single point. In my view it is impossible to give a description of the applicable law which is nothing else than description of what actually happens. Any attempt to give a purely factual description will always be influenced to a greater or lesser degree by what according to the author should be done. True objectivity is impossible at this point.15 A description is inevitably supplemented by an unspoken recognition of the normative, as will be elaborated below in more detail.
   In every description there is an appreciation. Since it is not possible and would be useless to reproduce everything, a description always makes a choice from the numerous phenomena that occur. The important must be distinguished from the unimportant, and this requires a yardstick that cannot be inferred from the material that is observed and processed. In addition, in a completely different way and specific to sociology, the description expresses also another kind of appreciation. The author is not indifferent to what is described. It concerns him how this functions and however much he may tell himself that making a description is only about understanding and that it does not matter what he likes or dislikes, what he approves - or disapprove, he will still not be able to avoid that form of appreciation. What an author describes is partly formed by himself, even if only for a small part. He can use his description to influence the structure of society. After all, the author shows what he believes to be the shortcomings of society and with this he will arouse the desire to change and improve society in the ways he suggests, even though basically he has no propagandistic intentions. No one can escape these kinds of influences. That is why there is no sociology that is free from a specific conception of life or a preconceived ideal of life.16
Apparently what has been observed is described strictly scientifically, the observation appears to be impersonal and neutral and reflecting nothing else than what has been observed. In truth, however, in so far as the sociologist does not merely indicate a connection between certain facts, but discovers "laws" and principles that explain social developments, he finds nothing other than what he already assumed when he began his research. Before starting his research, the sociologist already has an intuitive insight into what he believes is fundamental to social life. That fundamental truth is part of his personality17 and is an outgrowth of what he desires and wants. Filled with this light, he starts to investigate society and he sees it reflected in everything, everything confirms it, every research, every investigation yields new facts that support it more firmly. And the researcher thus forgets that it is he who imbues the facts with his truth. Conversely, he thinks that the facts force that truth on him.
   All this can be seen very clearly in Marxist social democracy. As is known, in this view it is assumed that the mode of production is the foundation of all society and that law, art, morality, religion and furthermore the so-called “ideologies” are ultimately determined by this mode of production. In addition, it is believed that this analysis "proves" that the present capitalist society is preparing a socialist one. With the necessity of a natural law, the "turnaround" will come and socialism will be realized. Isn't it very striking that this scientifically constructed doctrine leads precisely to the realization of the result which its adherents so ardently desire and for which they struggle with all the strength that is in them? The authors of the new scientific analysis, Marx and Engels, had already started the battle before developing their theory. Isn't the latter especially striking in view of a doctrine which wishes to describe a development, but at the same time foretells the end of that development, namely — oh wonderful contradiction — at the time when the ideal has been reached, which socialism had defended for centuries, before it was elevated from “utopia” to “science”?
Isn't Marx's primary aim in his scientific work and in his propaganda to make the value of the proletariat absolute and to show that the economic upliftment of the worker is necessary? Historical materialism is nothing more than the view on history of someone for whom the struggle for the proletariat represents a value that cannot be surpassed by anything. That is why this view is adhered to by everyone who takes part in that struggle with heart and soul. Herein lies the explanation for the hard-to-understand fact that even strong and deep minds have been able to find peace in this way of thinking. They have let themselves be carried away by the struggle for the proletariat. Everything else has value only insofar as it contributes to that struggle and is judged in relation to that struggle. They pretend to fight for an ideal, because according to scientific insight this will be the result of a necessary social development. But no one has ever given his life for the realization of a condition because it will be the result of a necessary development and will therefore also occur without struggle. People will only fight for what they want, desire or love.
It was not the scientific result that was primary and the struggle a consequence, but the struggle was paramount, that is, the conviction that socialism should come, that it was wanted and demanded. The theory was only the scientific support that everyone is so fond of using and which people thought they could not do without, especially in the nineteenth century. However, science does not determine wanting and wishing. On the contrary, scientific judgment is influenced by will and desire, that is, by the conviction of what should and ought to be.
   With Marx this has been the case to a very great extent. That is inevitable with a man who has turned social democracy into a major movement. Such a thing is truly not done with colorless theories. The same is true for any sociologist. A few years ago, the Viennese professor Menzel showed in a brochure how every sociology contains a good dose of natural law.
18 This is true even for sociologists, who limit themselves to merely observing a "development" in society. The concept of development always implies that it involves a change from lower to higher, from less to better, in a certain direction, with a view to an end. The facts alone show only a change. The direction in which that change is supposed to go always agrees wonderfully with what the persuasion of the researcher desires.
   This applies in general to every sociology and every description of society. It also applies to a social description, which chooses the phenomenon of law as its object. A neutral legal- sociological description is therefore impossible. In sociology of law, however, there are also specific circumstances that mean that the personal convictions of the researcher play a more important role in scientific work here than elsewhere. Here it is not only the general design of the research, its direction, the main principles and the laws that bear this personal stamp, but the author's conviction of what should be done will permeate the details of his description of the law actually implemented.
   After all, what is being described? Not just the habits, not just the sequence of events, because it is about law, even if it is unwritten law. It is not enough to say: so and so people normally do and this or that happens when they act differently. It should be clear that those actions are done with and are an expression of the belief that such actions should be taken. How else can one distinguish between habits and social use on the one hand and customary law on the other? The researcher must infer compliance with the rules or standards from actions. The jurist has only completed his scientific description task when he has extracted the rule from the facts, when he is able to see the multiplicity of facts as different manifestations of that one norm. And this work is certainly heavily influenced by the researcher's own convictions. This is evident if one notices the difference that there is on this point between a description of the law of the past, or of a foreign people, and that of one's own country and time.{137}
   The relationship between the legal historian and the subject of his research is the same as with any other historian. What the historian writes shows his vision of world events. His personal point of view is reflected in the outline and in the way in which the facts are presented. He cannot describe law without already having an idea of ​​law and using it in arranging his material. If the legal historian, as often happens, focuses on emphasizing relevance for the present, his view of what should be recognized as law inevitably comes to the fore. Yet, in describing the details, the legal historian can be as objective as possible for a human being. The material only interests him as a scientist. His research serves no personal interest. He will apply himself with painful rigor to portray as faithfully as possible and to be as neutral as possible. Recent literature has re-emphasized the importance of such a neutral description. Anyone who wants to know the spirit of the past would do well to be as quiet as possible, also when it comes to legal life, and to examine patiently what the old documents have to say about the legal views of that time, without wondering to ask whether he agrees with those views and whether the people of that time, even according to what they themselves recognized as a source of law, should perhaps have decided differently.
For the historian, the focus is not on the norm, even though it has been preserved in the old formulation, but on the way in which the norm has been implemented in practice. If, for example, one investigates the influence of Roman law in the Dutch republic of the 17th or 18th century, it is indeed important to find out what is stated in this regard in bills and ordinances, but the main thing is what happened in case law and practice. Studying those bills and ordinances is more important for the question of how judges and litigants behaved towards the codified law at the time than for the question of the influence of Roman law. What difference does it make if, in the opinion of today, the courts of that time were not obliged to comply with that law, if they did? It's no use crying over spilled milk. This point has often been overlooked, such as when rules of Roman law were separated from the time for which they were written and people began to wonder how modern relations could be judged according to Roman law. Something like that might be nice, but it's just gimmick without any scientific significance. Such a thing is also not without danger, because people forgot that a legal provision is always the regulation of a certain concrete situation of a certain nation at a certain time and people started to assign universal supratemporal value to something that only had meaning for a specific time. In this way people became blind to the relation of law with social conditions and with culture as a whole.
The legal historian must bear all this in mind. He must above all be a historian. His job is primarily to absorb everything patiently, to wait for the moment that something catches his eye, and to have an interest that aspires to nothing but knowledge.
   For the lawyer, who speaks of his own law, that is, the law of his own country and time, such an attitude is impossible. He himself may at any moment be faced with a relationship such as the one whose arrangement he describes. Would he act like that? Could that be demanded of him? Can you do this to him? These are questions that confront him during his work. Do you think that these questions will leave him indifferent and that he can only be interested in them scientifically? Every question he touches upon yells at him: This may also apply to you
19. And when, for example, he talks about a regulation for a certain profession or industry to which he does not belong, so that the rules themselves will not affect him directly, will it then be none of his business how the rules of his own country are? Is it possible that he not at all interested? There will be people who seem to be indifferent to that, but these people are completely unfit for making a description of law and will not try to do so. However, can the one who does take these rules to heart, limit himself to observing and explaining them and avoid allowing his own judgment to tune in? The one who believes this should consider the following.
There are points where one can indeed say with certainty that a certain rule is followed and enforced as law. But there are also, and not so very few, where no such established usage can be identified and where the legal conviction of someone is opposed to that of somebody else. The one maintains that this, the other that just the opposite not only ought to be right, but also is right. What will the reporter, who wants to give a true description of law, do in such a case? The historian merely announces the difference of opinion. He will tell that a definitive solution to the question has not been reached. But what does today's lawyer do? It is his task to tell what is right. If he were to say that there are supporters of a certain opinion and that there are also people who think otherwise, then he will be asked what he thinks himself. And does one really think that if he had a firm opinion on the matter, he would not have said it already long ago? His opinion would have been proclaimed as the existing law and for the sake of scientific rigor, he would have added that some judge otherwise. Moreover, nowadays, new questions arise over and over again, questions that are in some way similar to previous ones, yet not identical with them. The law has to answer such questions. How can one find such answers by describing the decisions of the judiciary or the rules, which are respected by the administration and followed by those involved. Here a rule is needed, which will never de found by gathering facts, however diligently one may search.
   A science of law, which gives a description of facts, customs and legal convictions and tries to limit itself to such a description can surely be really useful. I'll be the first to acknowledge it. However, such a science cannot be the science of law. It shows one-sidedness if one wants to give a monopoly to this approach. Knowing facts is good and it is fine if one also wants to derive justice from what reality shows. But let's not think that that's all that can be said. One-sided considerations are often the most useful, if one remembers from time to time that they are one-sided. The normative cannot be expelled from the law, if one sends it out the front door, it enters again from behind.
   Just a word about the meaning of the written law in this regard. Those for whom the codified law merely establishes what is already practice in social life, misunderstands that every regulation has not only a past, from which it originated, but also a goal. It comprises a code of conduct, which by its very nature intends to determine the actions of people. It can be admitted that it is not always effective. It can also be important to check to what extent a rule succeeds in this respect. It may be that the significance of codified law for society has often been overestimated, but this does not alter the fact that it is biased to say that such influence will always be lacking. In addition to ineffective provisions, there are also provisions which have an unmistakable influence on society. Such provisions are on the one hand the result of existing customs, but on the other they function as signposts to the future. The law is product of power relations and at the same time norm for human behavior.
It is good to show the legislator the relative nature of his power and to make it clear to him that if he changes the written law this doesn’t imply that the unwritten law changes immediately as well, because the unwritten law can grow and die independently without legislative acts. One will never be able, however, to convince the legislator that his will is irrelevant with regard to law. What applies to the science of law, namely that the determination of what is law will always be influenced by the legal conviction of the person who performs that work, will apply even more strongly to the legislator, who does not try to limit himself establish the facts, but is constantly aware that he is called to be the one in power who makes the rules. If there can be no question of objective observation in the work of the man of science, because will and appreciation break through this, it is much less plausible to assume that the legislator would do nothing more than observe and formulate, now that the latter is precisely aiming at wanting and appreciating. By rejecting the possibility of a purely descriptive legal science, therefore also the view has been rejected that the legislator's task is no more than summarizing existing customs.
   The question then remains whether it is arbitrary what is laid down in the law or whether the legislator also has to obey a norm and therefore has to find law.

§ 4 Finding law, ideal factors

   In §1, it has been explained that there is also law outside the codified law and that the judge must find it. In the struggle for greater freedom of the judge, which was described there, art. 1 of the Swiss Code of 1907 will always remain an important milestone, because here it was openly proclaimed by the legislator that there is law next to and outside the codified law. This was not entirely new, there were older examples, but these had long been considered obsolete. No codification in the second half of the 19th century had contained such a precept. The Swiss code has been a moment of victory for the movement for “freer” justice. Article 1 reads 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)20
The emphasis is mainly on the italicized words. Many who have opposed the traditional submission of the judge to the codified law have greeted them with cheers. However, these words can also be viewed from another angle. The judge is acknowledged as a legislator by them. That is certainly true. But can the text not also be read conversely i.e., that the legislator has the same kind of task as the judge? The judge must not proceed arbitrarily, he must seek the applicable law. Only those who, as an act of desperation, draw the conclusion that merely on the basis of the mood of a certain individual judge a decision is made about the good and the bad and right or wrong, doubts this. Swiss law expressly instructs the judge to seek the applicable law. If, by order of the legislator, a judge applies “free” law (in cases as described above in block 5), because the law leaves a case to his assessment, he must give a decision “in accordance with law and equity” (art. 4). When the judge fills a void in the law, his job is no different. To act according to the rule which the judge would have drawn up had he been a legislator is synonymous in the language of the code of law with deciding according to justice and equity. Doesn't this indicate that also the legislator tries to find law? If the judge is a legislator to a certain extent, isn't the legislator also a judge in a sense? Doesn't it also apply to the legislator that he decides on the conflicting interests, which knock on his door for help? There may be differences between judge and legislator, but does it not in any case also apply to the legislator that there must be a standard by which he determines law? Viewed in this way, the now famous article of the Swiss code is also a milestone in legal history, because the legislator recognizes again that there is a law that binds him.
   But — one might ask — are we not returning to natural law in this way? An accusation of the heresy of natural law per se doesn't bother me much. There was a time when it seemed the gravest reproach to make a jurist. It wasn't that long ago, but that time is over now. We have learned to see again that there is still something to learn from the great men of that movement in our time. It is also clear that the general view that this current has been completely refuted by the historical school is not correct. The idea of a law which can be deduced from human reason or from the very nature of law itself, against which the value of positive law can be measured, is not “refuted” by a theory about the genesis of positive law. Incidentally, apart from this, we are certainly not advocating a return to natural law. That would also be impossible, because there is not only one conception of natural law, but many directions. Usually, when one speaks of a return to natural law, one refers to the idea that there is a set of rules - perfect law - which we could know or at least approach through reason and which should be laid down in our positive legislations. This position is certainly not mine.
I go further, however, because I am neither a supporter of the idea of ​​a natural law of varying content, changeable according to time and place, as vigorously defended by the most important German legal philosopher of our time, Rudolf Stammler, who, curiously enough for a German, especially among the younger French has gained so much following.
   This is not the place to go into detail about Stammler's ideas.
21 However, I don't want to finish it with a single word either. When I mention it here, it is because before setting out how I think law should be found, I want to clarify my point of view by rejecting two views akin to Stammler's view.

   First of all, this concerns the view that through rational thinking an ideal-law can be found, which should be respected unconditionally by all peoples and all times. A law that we can never fully achieve, as almost everyone admits, but that can be approached. For me the changeability of law is an element without which I cannot think law. I accept that changeability, not only as a phenomenon that has always been observed up to the present, but also as something that will not be overcome in the future. I gladly accept, I had almost written, but I stopped myself, because who doesn't hope for peace sometimes, also for society?
However, as long as there is no perfect world, there will be no rest. As long as there are sinful people on earth, the desire for change will remain and the law will always take different forms. Law has no ultimate goal, neither as an ideal to be attained nor as a regulative idea. The ultimate goal would be the abolition of the law. Would a perfect world be achieved, law would be superfluous.
   It follows that not one legal provision can claim unconditional validity, for all times and places. There will be provisions that we can hardly imagine will not be respected in the future. Nevertheless, it is in principle not excluded that changed circumstances will lead to these provisions being abolished or so limited and changed that we would no longer recognize them. The rule: thou shalt not kill may be of all times, each time has its own exceptions and limitations. Unfortunately, it need not be argued now (1915). The exceptions contain what is most important in law.

   But I also do not believe in the objective existence of a codified law that is the only-possible and only-right one for a certain people and a certain time. The judgment of right or wrong with regard to a legal provision can ultimately only be given from a certain philosophy of life and world view and will therefore only apply to those who have the same philosophy of life as the one who gave the judgment.
As will be discussed in more detail below, one can certainly reach agreement with those who adhere to a different philosophy, but one cannot demand that they accept the legal provisions without reservation. Stammler believes that by his method i.e., by pure logical reasoning anyone to whom all factual data have been supplied (with factual data he designates the needs and desires of the people, thereby ignoring their beliefs about what the codified law ought to be), will be able to find the codified law which is the only possible for a certain time. In my view that is an overestimation of what can be achieved by our reason, it is mere intellectualism. Stammler sees the changeable only in the needs and desires, while in my opinion the changeable also lies in the standard by which one judges, or in the guideline one follows. And it is impossible to tell by pure logical reasoning which guideline is better and which less. Proof is not possible here and the guideline can only be accepted or rejected.
   So much for the two views I reject. When I now try to indicate below the factors that should influence the finding of law, I am fully aware that what I stated above also applies to myself. The judgments that I am about to pronounce — the judgments about the way in which law should be sought are, after all, judgments of law — can only be accepted without reserve by those who feel related to me in philosophy of life.
   First the ideal. The inner experience in conscience and sense of justice is, in my opinion, the most important ideal factor. Do not desire to go out, the truth dwells within man.22These words of Augustine indicate what the principle must be for anyone who searches for an "ought" and a "should". If the basis of law lies in inner experience, that is, if law is normative, the one who seeks the applicable law should not ignore it. What is called truth in the sphere of the ethical - the normative - cannot be proved, but only experienced internally.23 There is no higher demand for one's own actions than that of conscience — no more caustic disapproval than that which is inwardly experienced. What conscience absolutely forbids us, we should never do, not even in the context of society. Here lies the limit of the law. Moreover, even if one forms a judgment about the behavior of others, it helps to ask oneself how one's own conscience would react if one acted in this way oneself.
   In addition to conscience, there is the sense of justice, that is, the spontaneous, intuitively born conviction towards the actions of others. The sense of justice is particularly evident when one not only condemns an act and rejects it as morally inferior, but also has the conviction, in addition to this moral disapproval, that that act should not have happened and that those who were authorized to do so should have prevented it.
If we find an act only morally reprehensible and bad, we regard that act only as an expression of a certain person and pay no attention to the consequences of that behavior for others.24 We can pass judgment on an act and say it was bad what someone did, while fully admitting that the perpetrator was completely free to decide what to do or not to do and therefore consider no one to interfere. We speak of injustice when, in our opinion, that act should not be tolerated and, if possible, should have been prevented or, if possible, undone by those authorized to do so. Our sense of justice rebels against certain actions, we say. This expresses that we experience pain and want a response to such behavior.One should not underestimate these kinds of intuitive judgments, even if they certainly entail certain dangers. More about that below. Someone who has experienced something that evoked in him the emotion of an injustice that he does not want to tolerate, knows how this is a truth to him. There is no reason why such a judgment should be of a lower order than a judgment acquired by thought. Using a contemporary example, it can be made clear that it is not so much the morally grave injustice that evokes this emotion, but that which occurs on the largest scale and affects the most vital interests of the general public.25
For example, a few months ago there was great indignation. First as a result of the trial of Mrs. Caillaux,26 in which a group of intriguing politicians of a suspicious nature played a dominant role in the room where justice must be delivered: a room filled with a sensation-hungry audience, a judge, who is afraid to displease those politicians and a jury, which apparently allows the accused (an arriviste, who had been a minister) to dictate an acquittal, contrary to the truth. Wasn't this a painful injustice?Then the invasion of Belgium, I don't need to elaborate on that. Finally, the execution of Fourie.27 There is no gross injustice here and it may have been legally defensible. Yet distressing for our feeling, with those women who rush from one house to another in search of the man who can stop the execution, with that minister who cannot be found, and in the face of all this the victim, so completely calm in faith and filled with the consciousness of having done his duty. Did not our emotion teach us that all this was injustice, shameful injustice? Do we need a code, treaties or other rules to make sure of that?
   It is important to keep these two elements of the intuitive insight into the idea of Law in mind. They should never be ignored. At the same time, it must be borne in mind that an appeal to conscience, especially an appeal to the sense of justice, can be dangerous and lead to less desirable consequences. The conscience sometimes allows itself to be lulled or bribed, and there are people who have exceedingly little trouble with their consciences. Also, conscience does not always say the same thing. For the believer the voice within takes on a different sound, because he thinks he hears the voice of God in it. Does not all this indicate that the judgments of conscience are uncertain and lead to a “bottomless subjectivism”? With regard to morality, I refer in this connection to La Saussaye's treatment of this accusation in Het Christelijk Leven.28 For law, the objection of the uncertainty of the judgment of conscience seems more serious than for morality because law needs more certainty. In truth, however, this uncertainty is less important for law than for morality. The judgment of conscience is never in itself decisive in respect of applicable law. The inner moral judgment may and must guide anyone who in any capacity seeks applicable law, but this moral judgment alone does not bring about a legal judgment. There are so many other elements that must be taken into account in a legal judgment that the danger of bottomless subjectivism is not very great. There is always something subjective in any legal judgment. Sure, good thing, I'd say. It simply cannot be removed. Furthermore, it should be clear that morality and law are very different in relation to an action. Morality judges an action as the expression of a disposition, while in respect of a legal judgment the disposition is considered relevant only in so far as it is expressed in behaviour. Morality judges concretely, a single act is called good or bad, while the applicable law searches for rules, {145} that is, for abstractions.
Morality also has rules and abstractions. In morality, however, these are nothing more than tools, which support the not always easy passage between thorny uncertainties. For the law, on the other hand, these are necessary guidelines, without which one gropes around blindly. Conscience judges without codified law, and in a sense it is true what Novalis says: Gesetze sind der Moral durchaus entgegen.29 Due to the necessity of making rules, the moral judgment in law loses its deepest meaning. The moral meaning becomes obsolete and fades away, and with it the danger of subjectivism also disappears. The danger of the opposite, that is to say that the moral judgment does not show up enough in the formation of law, seems to be greater for the time being.
    A sense of justice also entails the danger of subjectivism. That danger is even greater here. The intuitive judgment that something is unjust is sometimes given lightly. If you feel painfully affected by an alleged injustice, you will sometimes have to admit that you were mistaken later, on reflection. Dislikes and likes have great influence and it is not always easy to exclude such factors. As soon as one becomes personally the victim of an injustice, it is difficult to judge without prejudice. If in a power struggle one of the parties has committed an injustice, it is often difficult to assume that that party is not constantly committing injustice. Later events are then quickly explained to the detriment of that party and condoned against the other party.
In these times of war, everyone knows examples of people who judge biased in this way. Their emotions are probably just as intense in perceived injustice as in real injustice. This can be admitted without question. Even if this is a reason to thoroughly reconsider a judgment given at the first impulse and to guard oneself as much as possible against influence by factors that are not relevant, this will not be sufficient. Yet, despite all this, the great value of inner conviction and unreasoned decision-making in questions of justice remains unaffected. He who doubts too much, while avoiding the danger of making a mistake through too much emotional involvement, remains in limp hesitation, stops making decisions and becomes dulled in his sense of justice. No one benefits from such a fall into scepticism.
   The problematic side of judging on the basis of a sense of justice will play a role more for those who seek concrete law, such as a judge, who fills a gap in the law, than for those who establish regulations. It is true that the former should bear in mind that his statement must also be able to be thought of as the consequence of a rule, because only in this way does he guard himself against the danger of getting blinded by the particulars of the case, but the decision is only binding in the concrete case and therefore the chance of being influenced by secondary circumstances, such as pity for the weaker of the warring parties, is by no means imaginary.
   There is another danger. One should only speak of a sense of justice when it comes to an emotional response to injustice done to others. However, the word is misused. Sometimes the emotional element seems to play a role, while in reality other factors determine the judgment. There are situations in which the person making the judgment identifies so much with the result that he believes is desirable that he experiences a rejection of that result as injustice. In that case, however, there is no question of a purely emotional reaction to injustice. I will clarify this with an example. A few years ago there was a lawsuit that attracted a lot of attention in legal circles. Someone had named an association as heir, which turned out to have let the term for which legal personality had been granted expire without ensuring an extension in time. As a result, the association had lost its legal personality and the question was whether it could nevertheless inherit? Our courts decided against it in three instances.
I do not want to talk here about the technical-legal issues that play a role in this matter. I cite this lawsuit because Hijmans30 has argued that the sense of justice teaches that the association should have won the lawsuit. That seems incorrect to me. I recognize that valuation judgments play a part in this question of interpretation. On the one hand, the importance of respecting the testator's word, that is, his individual will. On the other hand, the importance of regularity and certainty, which underlies the regulation of recognition as a legal personality. I understand that Hijmans wants to uphold the testator's word even if this is at the expense of regularity and certainty — as a judge I would do the same. But I doubt that the sense of justice would be decisive in such essentially technical questions. If one feels the decision of the Supreme Court as injustice — this can only be the result of being affected in one's own scientific conviction.31
   In the search for applicable law, in addition to the intuitive form of appreciation based on a sense of justice, a rational form of appreciation also emerges: valuing interests, weighing values ​​and testing the various means in the perspective of achieving a particular goal. Almost exclusively this rational element will be of significance to the legislator, because with legislation the sense of justice recedes into the background. The injustice that the legislator wants to eliminate is less concrete and therefore affects people less. Because the injustice is more general, it is less emotional and further removed from his work as a legislator. For the legislator, the choice of purposes is the main thing. When a rule is drawn up, it aims at a certain goal, wants to achieve a certain result. However, this end in turn can be regarded as a means to another end. Just as in a causal chain we can go further and further back and ask for the cause of a cause, so as we consider a thing teleologically, we can go up again and again and see each end as a means to a higher end.
The ultimate goals, which can no longer be traced any further, we have to accept as a given. We take them on. They arise from our philosophy of life, or rather: that we experience these goals as our highest is the core of our philosophy of life. It may be of inestimable importance to those who participate in the process of the formation of applicable law to visualize clearly these supreme goals and from that premise to determine the meaning of the secondary goals which constitute the values of life: nature, beauty, art and science.
   This is not about forming a system. Life values cannot be neatly stored in their own place as in a herbarium. As Rickert states:
Science necessarily turns away from life.32If it were to succeed, the value of it would have withered. Also between those who consider themselves related in their vision of the highest goals, there can be, for example, a strong difference in the appreciation of the significance of art for individual and community life. Although it always remains a rough approximation, something of a somewhat coherent view of life values can be achieved, however.
   Closely related to this is the question to what extent the community is called to promote the values of life and to what extent it is better to leave this to the individual. This is again a question of appreciation.
Possibly the individual-community opposition, i.e. the community as something that exists only for the sake of the perfection of the individual or as a value in itself, is not the most fundamental contradiction between the different world views, as the young German writer Radbruch33 claims. For the law, however, this contradiction is of eminent importance and determines the formation of law. The history of constitutional theory from the Greeks to the present day shows this. It is true that in the Gospel the elimination of this contradiction is a given (every human soul of infinite value on the one hand — the absolute requirement of charity on the other), but it is not at all clear how this should be applied in concrete terms. In addition to the choice of ends, the issue here is finding the right means to achieve the chosen goal. At this point the subjective plays a smaller role and it is easier to reach agreement between people who otherwise hold fundamentally different views. If, for example, it has been decided that the worker is entitled to care from the state in his old age, then it is a question of simple legal technology whether this can best be done through a state pension or through compulsory insurance. It seems exaggerated to turn such a contradiction into something principled. It is exaggerated indeed, although it must be admitted, that with a detailed elaboration, fundamentally colored contradictions can arise again. Such arrangements are so complex and have such far-reaching consequences for other areas that problems can always arise which can only be assessed from a certain principled point of view. The simpler the question, the less likely it is. Take, for example, the issue of whether the employer is entitled to compensation under the employment contract in the event of a strike. The one who gives weight to the "pacta sunt servanda", i.e. underlines the ethical meaning of the bondage to the word once given (I won't go back any further), will be more inclined to give this right to the patron, than the one for whom the economic upliftment of the worker does not serve primarily to elevate him morally, but is also an end in itself.34 The question which remains once the principle is accepted that there is no right to compensation, namely whether the contract relationship is broken or suspended, is a question of a legal-technical nature, the solution of which is found by purely scientific reasoning.
On the basis of this brief indication of the ideal elements of law, it should be clear that it is not possible to speak of the idea of law without starting from a certain philosophy of life. It should also be remembered that I have not at all gone into the view of those who, from their world view, recognize completely different sources of norms about the ought than the ones I mentioned: inner experience, sense of justice, rational reflection on life values ​​and the realization thereof. They do not see in the Bible an indispensable means of strengthening and purifying their own inner life - a light on our way, also in the search for applicable law - but a bundle of laws that are also directly applicable in our time or they consider themselves unconditionally bound to the precepts of their church. The search for the treasure of applicable law seems hopeless in the light of all this. How can we find the good and correct applicable law for this time for our people when we are so divided among ourselves in fundamental views? If we turn out to be able to achieve anything in that direction, and our search is not wholly fruitless, it is because legislation — more generally everyone involved in the formation of applicable law — cannot freely create it of its own accord, but is bound by real data, which are objective facts for everyone in the same way.35

§ 5 Finding law, real data

   Until now we have been concerned with the ideal in law, namely with our conviction about what belongs and its intuitive and rational elements. However, we must now realize that a belief can only be thought of as applicable law if it is aimed at implementation in a certain time for a certain people. That is the task of thinking about law. If that implementation does not take place, it will ultimately not be a matter of law. With this we return from the ideal to the facts.
   Eugen Huber recently wrote an important article about
Die Realiën der Gesetzgebung.36 The writer is known among lawyers as the man of the much-praised Swiss Civil Code of 1907, which is his work in every way. We are therefore naturally interested in what he has to say about the legislator's art of seeking applicable law.
Law is a regulation of power relations. The rule of law decides the interests of people when their needs and desires clash. That is the material in which the legal idea operates. Social relations are changeable and in constant flux — the legislator must constantly regulate new matter. In all this, according to Huber, nothing remains the same, except that the legislator is dependent on matter in its regulation. Just as the artist is bound to the material he works on, the marble or the wood, just as he will and must work differently when making an engraving than with an etching, so too is the one who seeks applicable law bound to reality.37 Is it possible to make general statements about that reality?
Huber thinks so. He believes that this can be done in three ways and is successively concerned with man, nature and tradition as matters that are given to the legislator. With man: every legal order is bound by the opposition of healthy-ill, adult-immature, while the intellectual and moral properties must also be taken into account. Huber devotes important considerations to how this should be done. These are not directly relevant here, nor is his discussion of the data arising from the fact that people also have a non-legally regulated natural form of coexistence: sex relations, consanguinity, local connection (nationality and racial idiosyncrasies) and economic cooperation. We will also tacitly ignore his treatment of nature (climate, production method, etc.). What is particularly important to us is what Huber remarks about his third set of data: tradition. He who draws up a legal provision is never faced with a tabula rasa in which he can engrave what pleases him. Every legal order is preceded by an earlier legal order. A people without legal order has yet to be found.
   I will not follow Huber's article closely. In fact, I want to go further than he and treat not only legislation, i.e. the positive law in force as factual, but also the legal convictions of a particular people, because they are important for the possibility to implement new legal provisions. But it may be clear that some of the thoughts which now follow are taken from his essay.
   The law aims at implementation. It is thereby bound by the conditions of that implementation. It has been said that the legislator can do anything except make a man a woman. That is a foolish thought. No legislature turns an agricultural state into an industrial state. He can indeed create legal rules that promote an existing tendency in that direction, but ultimately his influence is of secondary importance. The legislator can never ignore the facts and existing law is part of that factual data.

   Many are so naive as to think that if only men were all sensible and all of good will, it would be extremely easy to create a perfect legal order. A lot of people, who are generally not so naive, think that way too. For example, those who believe that if only women could vote, everything would change instantly. I am certainly not opposed to women's suffrage, but I fear that its introduction will bring nothing but disappointment to those who think so
All utopian thinking is based on this idea that sudden change is possible. Many people believe that if the social democrats only came to power, society would suddenly become completely different. However, I think that even if there were 100 social democrats in the Netherlands in the Second Chamber of Parliament and 50 in the First it would be a long time before (if any) only a part of the means of production was socialized. There is a continuity in the legal order that is never strongly broken. It may be that revolutions can overthrow a state authority, yet society does not look very different the next day than before. Not only factually, but also in terms of legal rules. Perhaps one day after the revolution, the change is even most noticeable. But what is brought about suddenly does not last, and after some years the old returns. One can indeed point to certain periods for the great changes that have taken place in spiritual and social life, when the fountain of new ideas spouted high, but it takes years and years for those views to permeate legal life. The influence of the French Revolution on private law is a striking example of this. It also shows how little of the radical changes they made lasted. Among other things, the entire family law would be overhauled: every inequality in inheritance had to be eliminated, children born in and out of marriage would be treated in the same way by law, the marriage had to be cancellable. Laws were passed that made all this happen—but ten years later, when the Code Civil was redacted, most of it, if not already gone, was removed again. The abolition of the priority of the firstborn in inheritance continued. The matrimonial law of the Code was certainly not entirely identical to that of the ancien régime, but it was nevertheless more similar to it than to the revolutionary legislation of the intervening period: the child born illegitimately was returned to its dark legal position from the past.
   But the continuity of law is not only apparent from the relatively minor significance of revolutions for the development of law, it is also apparent from the adaptation that the existing law undergoes in all sorts of ways when new ideas are breaking through. Old forms acquire new meaning by making them useful for new purposes. The slogan new bottles for new wine does not apply to the formation of applicable law. When the general understanding came about that even if the person who caused the damage was not to blame, there could still be an obligation to pay compensation, the question was how this could be implemented. By greatly broadening the concept of "culpability", by reversing the burden of proof so that the person who was held liable for the damage had to prove his innocence instead of the other party having to prove his guilt, in short: by small means, which apparently mainly leave everything as it was. This is a small example from recent legal life. Do we not see the same happening on a large scale in the relationship between employer and worker? It remains a service relationship, a contractual obligation to perform work for a wage, but through the interference of all kinds of elements, in many cases by mandatory legal rules, such as the obligation of insurance, collective contract and forced arbitration, the legal content of the relationship changes. We are still in the midst of a development here. Also, aren't those cases discussed by me in §2 — where the applicable law changed while the codified law remained the same — all examples to show how new law is obtained by bending the existing law? The new, which would probably have been rejected if suddenly presented ready-made as new, is accepted if it penetrates so slowly.
Then the punishment. Have there not been new punishment goals in the course of time while preserving the old form and new types of punishment while the goal remained the same? Change of principle with retention of form and change of form with retention of principle, but both forms of adaptation taken in themselves. I'm just doing a few grabs. Continuity has a strong effect when foreign law is taken over en bloc. This is not common in the history of law, but the reception of Roman law in Western Europe in the Middle Ages is a striking example. If such an entirely new law has been in force for some time, it appears that a great deal of the original, abolished law has remained. All kinds of new received institutes have then taken over legal ideas from the law that used to apply. A Roman, for example, would not have recognized the Roman law of the 18th century as his own, with a good search a medieval man would have found a lot of indigenous elements in the apparent Roman law. And finally, I want to be brief here, the continuity is apparent in the technology, that is to say in the legal concepts used in drawing up and enforcing the applicable law. Ours are still largely of Roman origin. Those who draw up new law, will have to take them into account as a given fact of importance.
   For the new law, the old law is a given that supplements, modifies, improves, but never completely abolishes it. Consider, for example, respect for acquired rights as a principle of transitional law and the need to proceed partially with each reform, so that the relationship must be worked out with the parts of the existing legal order that will not be abolished. It is clear from these examples that there is continuity.
   This highlights the importance of the way in which law comes about historically. There has been much controversy about the meaning of legal history. Opposite those who preach respect for the "historical" and who want to continue the historical line, are the neo-Kantians,
38 who insist with inexorable consequence that one can never conclude from facts to standards, that it is impossible to infer what has happened what should be done. Perhaps this is correct. Perhaps, but we are not concerned here with the question to what extent a certain fact can have normative significance for a people. In our personal lives a fact can speak so loudly to us that we think we should see it as an indication of God's will and give it normative meaning for ourselves. It is not at issue here whether such a thing can also occur in the life of a people, as the anti-revolutionary political theory argues.39 It is clear that it is difficult to indicate how one could establish this working of God in history. The collective life of a people is something, to which the inner experience, which gives compelling meaning to facts in personal life, does not apply.40
   When one talks about the significance of historical development for the formation of law, something else is of prime importance. In every rule of law two things come together: the concept of law and the relationship to be regulated. The historical development belongs to the second element. The law does not regulate relationships in the abstract, but relationships as they have come about historically. It concerns the concrete relationships between people and these are partly determined by the former law. It is not a question of whether we should break with the past, as Prof. Krabbe tells us, so that we distance ourselves from events and persons, but whether we can break with the law of the past. Consider, for example, the demand for the most desirable form of government in our country at this moment. Could one answer that question without taking into account the historically developed relations between our people and our royal family? Or take the arrangement of our family law. This too cannot be conceived without considering the present arrangement as the result of a development of centuries, or without taking into account biological data of sex drive and maternal love. The one who thinks that he can create from nothing is deceived. In truth he can only mold what already exists. When designing new law, attention must be paid to historical development, not because the genesis in itself is important for the understanding of law, but because that history forms part of the material that must be incorporated into law.
I am not preaching conservatism. It is true that history is often invoked for the sake of conservatism. I don't feel like that. Whether or not the historical line is broken does not depend on us either, but is determined by history itself. We do not know whether what we now want to renew will be permanent or will turn out to have been a delusion of the day. For that matter, we are usually not even able to see for ourselves what is new in a legal provision desired at a given moment and what is merely a continuation or revival of the past. This often only shows up afterwards. I too am usually a little suspicious when invoking that which has grown historical. However, this does not detract from the fact that the information that must be taken into account in the formation of law also includes historical facts and that this can lead to the legislator being forced to mold new views into a traditional form. The legislator would rather seek adaptation in order to achieve a slow preparation for the new than to wipe out the old in order to replace it with a fully developed new law. When he will have to proceed in this way and to what extent that obligation to adapt goes, it cannot be said in general, any more than it is possible to determine in a general way how much influence to the law, for example, nationality should be given.
   Finally, the power to have the rules obeyed is also a reality that must be duly taken into account in the formation of law. At present, this usually means looking for a rule that will be recognized as law by those involved. This means that the convictions about applicable law of those involved must also be taken into account.
   It is important here again to make a distinction between the judgments of morality and of law. The person who morally disapproves of an action with the remark, "That's not right," may not care if the person who performed the action thinks otherwise. If he nevertheless tries to convince that person of his guilt, it will not matter to his judgment whether the attempt succeeds or not. This is different in law. Of course not in the sense that it matters to the judge whether one or both of the parties reject his judgment as injustice. That's their business, not his. But no one who forms rules of law, be it the legislator or the judge,41 can in the long run be indifferent to whether his rules of law can actually be enforced as law. Whoever takes a legal decision, while aware that it will not be complied with, will have to admit that although the judgment reflects his conviction about law, it does not constitute law. Dualism in law forces us to take this element of power into account when looking for the norm. A legal rule aims at implementation. Law is not only a norm, but also a social phenomenon. A norm, which is continuously violated with impunity, is no longer a rule of law after a while. Today, the enforceability of law largely rests on the fact that rules are recognized as law by those who are subject to them. That recognition may concern the rule itself, but also the authority that was competent to issue the rule. That is why the material which is dealt with in the formation of law also includes the question of the probability of such recognition, that is, the question of the legal conception of those for whom the rule is intended. This element is not always equally important, the importance may be different depending on the nature of the arrangements or the actual power of the body making the arrangement. But it always plays a role. Even the strongest power is incapable of imposing a rule on a people that is in flagrant contradiction to prevailing beliefs.
   With the emphasis in this way on the generally prevailing legal convictions, we take a position against two views that conflict with it. As with the question of the importance of legal history, we take a position both against those who attribute a normative meaning to it and against those who completely deny its importance. The latter simply argue that what is good and what ought to be can never depend on how others — no matter how lofty they are — judge it. Stammler, for example, makes a comparison somewhere42 with someone who, when asked if his watch is running well, answers that it is in sync with the clock of the church tower. As common as such references may be, they lack meaning. We would like to add this, especially when one speaks of normative meaning. Nevertheless, the existing legal convictions can be an important fact for thinking about law, which should not be neglected in the search for the applicable rule. Appeals to prevailing opinions, popular convictions, and the like are common in cases where it is the duty of the judge to give a judgment in fairness. It is certainly not possible to conclude from the agreement with those convictions that the verdict is indeed fair. Nevertheless, the judge, who was instructed by the legislator to find a suitable rule for a particular case, is right when he wonders whether his legal view has a chance of being accepted by those involved. If he does not do so, his ruling in the one case that he is adjudicating on will be binding, but will not be law in a more general sense.
   Secondly, we take a stand against those who regard the prevailing legal conviction of the crowd itself as creating norms. Here we come upon the views which have been propagated with strong conviction among lawyers in recent years by Mr. Krabbe. For him, the legal consciousness is the only source of law.
   In recent years, Dutch legal scholars have been arguing about whether there should still be a constitution, i.e., whether there should be a law, which is more difficult to change than others and which is binding for the ordinary legislator. Krabbe, with all the fierceness of his sarcasm and all the fervor of his passion, has tried to impress upon his colleagues the need to remove that special character from the law which is the foundation of our state organization. He argues that making amendments to the constitution subject to special guarantees (absolute majority, new elections) reduces the possibility of the legal consciousness permeating legislation binding the majority to a minority and subordinating the present to past. Legal consciousness here apparently means the majority's conviction about what law should be. However, if one analyzes the arguments for his view, one does not find, as one might expect on the basis of the above, the argument that the legal consciousness of the majority of our people wants that change in the Constitution. Krabbe has not investigated this and it would probably have produced a negative result, as the general public is remarkably indifferent to the issue. So they are just views of Krabbe himself. It is his own legal consciousness and belief, shared only by a minority in this case, on the basis of which he tells his opponents that they have
no right to block the permeation of the majority's legal consciousness. According to Krabbe's own system, he should only have said so if it had been proven that the majority felt the same way.
   Krabbe places a high value on the sense of justice. Being himself a man with a strong spontaneous conviction about what the applicable law should be, he also wants the convictions of others to be respected. It seems to me that this leads him to label their opinion and, where it is not unanimous, that of the majority as the applicable law. According to him, the legal consciousness of the majority must prevail. There are two objections to this. First of all, this: even if the sense of justice is a source of law, this does not mean that every legal conviction, or every wish for new law, originates from this source. Secondly, there is no guarantee whatsoever that where majority and minority are opposed, the former has the applicable law on its side. The term legal consciousness is used both for what we called a sense of justice above and for the majority opinion about law. This is confusing. This leads to the contradictions indicated above. The Leiden professor considers the ethical value of a sense of justice to be high, but then includes the majority's view of law under this. In this way he forgets that this is pure empiricism — in short, a negation of the ethical — to call something right simply because a majority thinks so. Krabbe compares the sense of justice with the sense of beauty43 and argues that just as we cannot call something ugly that we experience as beautiful in our inner self, we cannot call justice and injustice whatever we want. The comparison is dangerous, but since the author makes it himself, it is permissible to ask him if he thinks something is beautiful because a majority thinks so. Even if so many people say that something is beautiful, it still does not give a feeling of beauty.
In this way, the norm is not found, not even in the law. However, one should not indifferently ignore the prevailing opinion. Since the legal judgment is an ethical judgment which, unlike the aesthetic or purely moral judgment, claims the possibility of its implementation in a particular group, the opinion of that group cannot be ignored indifferently. That opinion, however, is not the ground of that judgment, and certainly not the only ground, but belongs to the matter to which the judgment relates.
   The relationship between the person who participates in the process of law formation and the group to which his work relates is similar to that between a party leader and his party. The leader sets the course and decides for himself in which direction he will steer, but at the same time he must know whether the party will allow itself to be steered in that direction. For this it is necessary that he knows what is going on in the party and that he has a “feeling” about the extent to which he will be able to impose his will. But in the end his will is decisive. In modern times, men like Dr. Kuyper and Mr. Troelstra both have this gift to a great extent. They force their parties to follow them, while the party has the impression that it has chosen that direction itself. Even if the legislator uses different means than the party leader, he and others who participate in the formation of the law would do well to follow their example.

   Whoever draws up a legal provision must be aware that the drafted new provision must represent a power in social life. Just as law as a phenomenon cannot be described without supplementing it from the normative point of view, law as a norm cannot be found without taking into account its actual enforceability.

§ 6 Law and philosophy of life

   The above provides an outline of the ideal and real data that play a role in the search for applicable law. Although it is a choice how important one considers the real data, it is also clear that no one should completely dismiss them. While morality expresses an absolute judgment, the applicable law always has something relative because it must apply inter-individually. One can see this relative as a flaw on the one hand, but on the other hand it means that despite our hopelessly divergent choices and fragmented philosophies of life we ​​can still find to some extent an applicable law that everyone should recognize. To a certain extent, because there remain differences on which it is not possible to reach agreement. There comes a point when the argument falters as to why this rule is the proper means to that end, and why this commonly recognized value must be set higher than that. That is the moment when, despite all the bondage to matter, nature, history and general legal convictions, one cannot agree. Judgment then opposes judgment, philosophy of life clashes with philosophy of life. There is no objective truth to the law. To put it better, there is only objective truth insofar as one is willing to accept a fundamental value and take a philosophy of life as a starting point, which cannot be proved rationally nor can be demonstrated on the basis of observation. These philosophies of life are fundamentally opposite, such as, for example, the religious and the empirical, which both have a different conception of law. Neither of them has the right to impose their own legal convictions as applicable law on dissenters. Everyone's opinion must be valued at its proper value. Respect for the convictions of others: true religious tolerance has always had this as its highest aim and highest virtue. 45
   One might wonder if this doesn't lead to a weakening of conviction. If one recognizes that in law there is only objective truth to be found for those who start from the same philosophy of life and world and if one thereby preaches that the convictions of others must be respected, does this not mean that one gives up one's own convictions? ? Isn't it bloodless relativism to see the relative in every view? Has there ever been a legal belief that is generally accepted and has actually become a guideline for action, which stated from the outset that another legal belief might also be correct? These questions are justified, especially when one takes a lot of slack liberal philosophy into account. However, it is not at all intended to promote skepticism or to cast doubt on the certainty of beliefs. He who has struggled to find truth and has experienced that truth overtakes a person more than that he conquers him through his own effort, will not readily admit that what he believes to be true may also be false. He vouches for what he believes to be true, is completely sure of it, and does not think of making any compromises about it. But at the same time, he would not know where to get the right to force others to live his truth. It is not our intention to leave the decision of truth to the future like Lessing's Nathan.46 We have to choose and we do. However, if another has chosen otherwise, we may try to persuade him, but we have no right to impose our own choice on him. Furthermore, the choices that play a role in law are often so subjective that even if agreement has been reached on fundamental points, the parties can always split up again in the elaboration. The law cannot be found simply by deducing a set of rules from a fundamental truth. The relationships are far too complicated for that.
   About law nothing can be established as objective truth. Nevertheless, there is a need to determine what the applicable law is. The function of law in society necessitates legal certainty. One wants to know in advance what consequences the law will attach to a certain act. Abuse of the power relations created by law can only be prevented if the competences of those in power are strictly limited. Uncertainty about the applicable law leads to arbitrariness and weakens decisiveness — one does not know how far one can go. The law cannot exist without formulation, that is, legislation. Just as a ruler imposes his will on a people, so law is imposed as the command of a certain person vested in authority. That in itself is good. There are many situations of little importance in society in which it matters less what we do than that we all do the same and that one can count on each other. But even when it comes to big questions, where views are opposed and one legal conviction clashes with another, there is a need for a decision by the authority. There must be a unity, even if only for appearances. This sometimes leads to the imposition of a view, but in the vast majority of cases to a compromise, especially in today's parliamentary states where legislation is passed through many-headed representative bodies.
   Even though struggle is inevitable, someday peace must come and this can only be realized if both sides give in. The school struggle shows that. One can respect the strength with which the right-wing47 parties have resisted what in their eyes was injustice, but now the moment has come for one more concession, after which the unfulfilled wishes must be put away for later. Not because one is convinced, nor because one knows that one could not have got what one asked for because of the prevailing opinion, but as a concession, for the sake of peace. It is striking that afterwards both parties are often completely satisfied with the compromise obtained and do not want any more changes. The importance of the peace is then ultimately considered higher than the loss suffered by the concession.
   But, as long as that contentment has not yet arisen, every time a majority imposes its view of applicable law on a minority, those whose legal beliefs are not enshrined in law will experience a rift between the applicable law as it ought to be and the codified law. The abstract formulation of rules, which the legislator uses and must necessarily use, increases this rift in a way which can concern all instead of only minority parties or convictions. The abstract formulation makes it impossible to do justice to the rich multiplicity of life and therefore it may happen that although a legal provision is sufficient in ninety-nine out of a hundred cases, in the hundredth case it leads to injustice. However, the statutory provision must also be applied in that case. Confronted with a formulation of the provision, which is inflexible and rigid and the fact that life is constantly changing with its associated legal consequences, the one who applies law may conclude that the law, applicable by virtue of his conviction, is only a personal wish which goes against the codified law and comprises a critique of its content, in other words that applicable and codified law are the same.
Yet it may happen that the person to whom the law is applied or who, as a judge, applies the law, does not experience that application as something that feels like injustice, but as something that not only doesn’t ought to be applicable law, but actually isn’t. Applicable law necessarily includes a duty. It is basically impossible to separate the law that should be applied to a particular case at a given moment from the law that applies to that relationship in general. One can only speak of desirable law if one means law for a more or less distant future. If one claims that a certain rule ought to be applicable law at a certain moment, then one claims that that rule is applicable law, that is, the norm for that concrete relationship. That it is not only a question of desirable but of actual law becomes apparent when the legislator releases the judge or the persons involved. Then the floodgates are opened and legal conviction flows in. It may be that the law erects dykes, preventing the courts from letting the flow find its way, but through “reversal” and “interpretation” the legal convictions penetrate into the application of the law and it is often only a matter of time that the law is overthrown. It is not possible to discuss the extent to which this is allowed and to what extent judges and administrative bodies have to respect the law in their search for applicable law.
   Just two comments. First of all, it is important that judges have to respect the assessments of the legislator, even when the latter has instructed them to find the law themselves. They are to understand the existing law as part of the matter they are working on. Further, closely related to this, it is undesirable for judges or administrators to be left free with regard to questions directly related to fundamental contradictions of opinion in the people. In the present times, such contradictions should be fought out in parliament or settled by compromise and not decided by the courts. The judge is expected to be impartial, to respect everyone's convictions, while such questions can only be answered from a certain point of view, partial, if one likes, but not in an unfavorable sense. The judge's own conviction will generally color his statements, but then it is a matter of a shade or nuance, while he must clearly show color in such contradictions. In such matters, any solution by law is a priori better than no solution, even if it subordinates a particular philosophy of life.
   Legislation is important. Order and security require obedience to the law. Whoever thinks that the decision in the law is not the right one, who feels offended in his legal conviction, will have to follow the law. However, that obedience has limits. The right does not represent the highest value. The tragic conflict between following the applicable law and living according to one's own legal conviction can become so high that the solution can only be found in one's own conscience.
It is impossible to demand that people follow the law unconditionally. The well-known Latin proverb “Summum jus summa injuria” is 48certainly true in the sense Stammler gave it: Justice as the supreme law is the greatest injustice. What I am not allowed to and cannot do in good conscience, I will not do because the law demands it. People will obey God more than men. If this kind of resistance becomes general, it can lead to revolution. Revolution can never be legally founded: the law presupposes and must presume that obedience to the law is the highest duty. But from someone’s legal conviction revolution can be completely justified. Freedom of conscience is the ground and limit of the law. The power of the law has no hold over the conscience.
   However, it is important not to assume that such a conflict exists. It is inevitable that we have to accept that there are rules that count as “law”, while we do not recognize them as “law”. Our philosophies of life are simply too different and our intuitively accepted values ​​and ideals diverge too widely for a person to be able to achieve exactly what he would wish for, even if the deficiencies of the legislation and the slowness of the law-making process were overcome. If one believes that the law should be fundamentally reformed, it is better to strive to instill one's own convictions on others than to try to change the law. The latter would have only external meaning and could involve injustice towards dissenters. It is better to fight for one's own life ideals and values ​​than to try to impose legal rules on others. If the battle for ideals of life is won, they will certainly permeate the law. At the same time, it is important not to lose sight of one's own ideals of life when one contributes to the formation of law. It is understandable if one is hesitant to bring out religious beliefs and prefers to keep such delicate inner feelings indoors. However, if one thinks that religious convictions should not be discussed in society and that they should be ignored in the formation of the law this inevitably will lead damage for those religious convictions themselves. The one who thinks that he can separate the conception of law from the philosophy of life inflicts damage on both. He distorts his legal convictions by systematically avoiding going back to the highest value and making highest another value, which is less important to him, such as, for example, the happiness of the greatest number of people. He thus prevents his philosophy of life from permeating his entire life and from growing like a tree that stretches its branches in all directions. This not only damages the individual, but also the law. It is true that law may never be a propaganda tool for religion, but law that is formed from a religious ideology will be different from law that is formed from an empirical ideology.
   Law and philosophy of life are very closely related. There is only truth to be found in law insofar as one starts from the same conception of life. After all, our ideals of life determine what we recognize as right.
   In the present time there is a call for new law. The legal production is fabulous. However, the demands increase as they are fulfilled. Many people desire a new legal order, a reform of society as a whole. They think that when that reformation is accomplished there will be peace among the people, beauty will be revived and possibly religion too. In doing so, they forget that the legal order is not primary. The question of whether a particular legal order is worth pursuing ultimately depends on what we recognize as the highest value in life. The extent to which the ideal law can be approached or realized depends on the extent to which the associated philosophy of life is accepted in society.

   It is my deep conviction that only a new religiosity
49 can lift us out of today's miserably fragmented culture. If that new religiosity is given to us, then a new lifestyle will also be found for state and society, for business, handicraft and art. Without it, all attempts to develop such a new lifestyle are doomed to fail. Only when such new religiosityit is realized, will it be possible to jointly arrive at a better law, that is, a law in which the rift between what applies and what is generally believed to apply will be smaller than it is now.

   A new religiosity — not a new faith. Whoever has comprehended anything of the truth revealed in the Gospel knows that in Christianity there is inexhaustible riches.

   May that revival be given to us.


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1Art 13 Wet Algemene Bepalingen (1838), still in force.
2Bülow and Braun, Gesetz und Richteramt (1885) ; Ueber das Verhältnis der Rechtsprechung zum Gesetzesrecht (1906).
3Les juges de la nation ne sont que la bouche qui prononce la parole de la loi, des êtres inanimés qui n'en peuvent modérer ni la force ni la rigueur. Montesquieu, De l’esprit des lois.
4Corjo Jansen describes how the topicality of these kinds of questions led to the foundation of the Association for Philosophy of Law in 1918. “In the late autumn of 1918, the end of the First World War.1 the Netherlands had escaped the devastation of the battlefield. Yet the consequences of the war were disastrous for the Dutch population, Dutch industry, Dutch trade and the Dutch money and banking system. E.M. Meijers (1880-1954) and P. Scholten (1875-1946) already wrote on 22 August 1914 in an article in the WPNR that the law seemed to have lost all authority. 'With the magic word 'force majeure' one thinks that one is freed from all his obligations.' They even spoke of 'the reigning anarchy'. The parties unilaterally terminated supply contracts without any justification. Banks refused credit promises, stating that time and circumstances did not permit fulfillment. Injustice supplanted the law and this phenomenon occurred in all aspects of life.” Jansen, ‘Het 100-jarige bestaan van de Vereeniging voor Wijsbegeerte des Rechts’.
5Speaking of a law behind the law introduces a metaphysical/supra naturalistic perspective into Scholten's work and not a sociological perspective.
6In 1915, the formulations have since been adapted.
7For a brief explanation of the constitutional discussion on private schools, see
8In 1956 the legal incapacity of women was abolished.
9This sentence is the prelude to section 3, in which Scholten gives his view on sociological research. Scholten has a great interest in social science. However, he rejects the idea of a sociology of law with an increasing body of common knowledge about the social practice of law. According to Scholten, sociology is based on various worldviews that influence the researcher's view. Unity between philosophies of life arises through compromises for specific concrete situations, not on a general level through empirical research or through a historical process. The search for compromises is an ethical task and not just a pragmatic one.
10Scholten has a dualistic ontology and emphasizes that general statements do not correspond to reality, i.e. that the minor in a syllogism is never evident. Dualism sees the gap between general statements (thinking/speaking/writing) and reality as fundamental and unbridgeable. Acting in specific concrete situations fulfills a bridging function in which mental capacities other than rational ones play an important role.
11Rickert defended Verstehen as new method for the social sciences. This method emphasizes the individual meaning of events as opposed to the general approach of the scientific method. The individual meaning is understood from a values perspective. In § 4 Scholten takes a closer look at sciences that work explicitly from a value perspective and in § 3 he focuses on the naturalistic, i.e. empirical social sciences and humanities that claim to be purely descriptive.
12Reference made by Paul Scholten: Hamaker, Busmann, and Molengraaff, Verspreide Geschriften.Verspreide Geschriften VI, blz. 78.
13At the level of worldviews a choice is necessary, while it is impossible to determine – other than in a purely personal way – which choice is better. This statement is crucial for Scholten's view in which subjectivism does not become relativism, but a requirement to take responsibility for ones choices. He does so in this essay by explicitly stating his choice.
14Scholten uses a Latin quote: Non spectandum est quid Romae factum est quam quid fieri debeat (D.I.18,12). The same quote can also be found in Stammler, Theorie Der Rechtswissenschaft (Origineel 1911), chap. I.
15The reasoning here is the result of experience with legal practice, which shows again and again how easy it is to question facts and how impossible it is then to establish objectively the right of one of the two parties, as long as the parties do not contradict themselves.
16In Scholten’s conception sociology is thus in its core a political science.
17An interview with Dooyeweerd shows how people used the term democrat in his youth to characterize a personal style. Dooyeweerd about Anema in
18Menzel, Naturrecht und Soziologie. According to Menzel, Comte's positive stage of mankind corresponds to Plato's ideal State. See on this also Kelsen, The Natural-Law Doctrine before the Tribunal of Science., footnote 88.
19Tua res agitur in the original text.
20See also General Method’. (block 32); Das Gesetz findet auf alle 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.
21In his farewell speech from 1946 (17. Afscheidsrede’.), Scholten indicates that his inaugural speech from 1907 (64. De Waarde van Het Romeinse Recht’.(The Value of Roman Law)) was based entirely on Stammler's ideas and that he still does not completely reject his ideas. Further references to Stammler in 6. Recht En Billijkheid’.(Law And Fairness') and 7. Recht En Moraal’.(Law And Morality) 15. De Structuur Der Rechtswetenschap’.(The Structure Of Legal Science) show that for Scholten Stammler is the most important representative of the ideal element in law, but also that Scholten consistently rejects his rationalization of the ideal. For Scholten, the recognition of the importance of the ideal element in law means the awareness of the necessarily inadequacy of the applicable law and thus its changeable nature.
22Full quote in De vera religione 72: “Noli foras ire, in te ipsum redi; in interior homine habitat veritas. Do not desire to go out, but return to yourself. Truth dwells within man (trans. LHC).
23That truth in the ethical refers to a source of knowledge other than perception of the outside world and thinking is a key point of Scholten's view. He thus stands in a long tradition that can be traced back to Aristotle, who in his Metaphysics refers to “other mental activities” as the basis for ethics. (M. 981b25). That this source of knowledge is purely individual, cannot be shared or transferred, is the most powerful argument ever for the central position of the individual in law and ethics.
24Scholten makes a distinction here that corresponds to the distinction that Max Weber will make in 1919 between a Gesinnungsethik and an Erfolgsethik in Politik als Beruf. and which was made in 1913 by Max Scheler in Der Formalismus in der Ethik und die materiale Wertethik.
25Scholten develops the concept “sense of justice” as a sociological category. See the great resemblance to Durkheim's mechanical solidarity in chapter 2 of The Division of Labor in Society., from 1893. Scholten does not refer to Durkheim in his work, but to Duguit in "General Method." Block 57/58. Duguit was inspired by the work of Durkheim, his collegue at the University of Bordeaux.
26Joseph Caillaux (1863-1944) was leader of the French Radical Party and Minister of Finance, but his progressive views in opposition to the military alienated him from conservative elements. He was accused of corruption, but was cleared by a parliamentary commission. Henriette Caillaux (1874 –1943) was his second wife. At the age of 19, she married Léo Claretie, a writer twelve years her senior. They had two children. In 1907 she began an affair with Caillaux while both he and she were still married. They married in 1911. Their joint assets were worth around 1.5 million francs, placing them among France's wealthiest couples. The editor of the Le Figaro newspaper, Gaston Calmette, had received a letter belonging to Caillaux in which he appeared to admit having orchestrated the rejection of a tax bill while publicly pretending to support its passage. Henriette Caillaux believed that Calmette would publish other private letters that would demonstrate that Caillaux and she had had an intimate relationship while they were still married. She felt the only way for her husband to defend his reputation would be to challenge Calmette to a duel, which would destroy her and her husband's life. At 5pm on 16 March 1914, she entered offices of Le Figaro, wearing a fur coat with her hands in a fur muff, and asked to see Calmette. When told he was away but would return within an hour, she sat to wait. Calmette returned at 6pm with his friend, the novelist Paul Bourget and agreed to briefly see Madame Caillaux. After being shown into Calmette's office, Henriette Caillaux exchanged a few words with him, then pulled out a .32 Browning automatic pistol she had been concealing within the muff and fired six shots, Calmette was hit four times and was critically wounded. Henriette Caillaux made no attempt to escape and refused to be transported to the police headquarters in a police van, insisting on being driven there by her chauffeur in her own car, which was still parked outside. The police agreed to this and she was formally charged upon reaching the headquarters. Gaston Calmette died six hours after being shot. Henriette Caillaux's trial dominated French public life. It featured a sworn, out-of-court oral testimony from the president of the Republic, an unheard-of occurrence at a criminal proceeding almost anywhere, along with the fact that many of the participants were among the most powerful members of French society. She was defended by the prominent attorney Fernand Labori who persuaded the jury that her crime, which she did not deny, was not a premeditated act but that her uncontrollable female emotions resulted in a crime of passion. She was acquitted in 1914. Information from
27Josef Johannes Fourie (1879-1914), usually known as Jopie Fourie was executed by firing squad during the Rebellion of 1914–1915 against General Louis Botha, the then Prime Minister of South Africa.At the start of the First World War the South African government led by Louis Botha and other former Boer fighters against the English ( such as Jan Smuts, declared support for Britain and agreed to send troops to take over the German colony of German South-West Africa (Namibia). At that time three to four years of drought had devastated farms in parts of the Orange Free State. The government suppression of the 1913 and 1914 strikes on the Witwatersrand had alienated Afrikaner workers. This created a fertile ground for rebellion. Many Boers were opposed to fighting for Britain, especially against Germany, which was for many their ancestry and had been sympathetic to their struggle in the second Boer War. A number of them took part in a revolt known as the Maritz Rebellion. This was quickly suppressed, and in 1916 the leading Boer rebels in this rebellion escaped lightly (especially compared with the fate of leading Irish rebels of the Easter Rising), with terms of imprisonment of six and seven years and heavy fines. Two years later, they were released from prison. The only death sentence had been for Jopie Fourie, an Active Citizens Force (ACF) officer in the Union Defence Force, who without resigning his commission, led a band of rebels that inflicted 40% of the government's casualties. His commando also fired on South African security forces during a brief truce. An Afrikaner delegation that included future prime minister D. F. Malan unsuccessfully petitioned Minister of Defence, Gen. Smuts, to extend leniency. Fourie was executed without a blindfold on 20 December 1914.
28Scholten here refers to page 89 ff of Chantepie de la Saussaye in Het christelijk leven., I. On p. 89 Saussaye gives a reference to Vinet, by whom a new tone had been set in theology and Christian piety. Vinet sees conscience as the bond that connects the center of our personality to God. Vinet makes the comparison that conscience is like the ambassador of God within us. On page 91 Saussaye discusses the reproach of bottomless subjectivism as coming from the "lords of objective truth," who adhere to a strict religion of observation, which he characterizes as strict, stern, and punctual, but inwardly false. In addition to Vinet, de la Saussaye also puts Herrmann and Kierkegaard against these “lords”, and characterizes the three theologians as people who never claim that a man can find truth or can resolve the moral struggle he finds inside. The three limit themselves to what they experience as truth.
29During his life, the early deceased Novalis (Georg Philipp Friedrich Freiherr von Hardenberg (1772 – 1801) did not publish much: Hymnen an die Nacht, the fragment collection Blüthenstaub, some poems that appeared here and there in almanacs and other magazines and the political fragments Blumen and Glauben und Liebe in the Jahrbücher der Preussischen Monarchie The rest of his oeuvre, mostly unfinished, was published posthumously, the most famous being the fragment of the novel Die Lehrlinge zu Sais, the oration Die Christenheit oder Europa, the Geistliche Lieder and Heinrich von Ofterdingen. Novalis's bequeathed work (published in its entirety by Schulz in 1969: Novalis Werke.) consists of letters and diaries, apart from individual notes, thoughts, thoughts, suggestions for essays or fragments, excerpts and comments, ideas and ideas – an astonishingly versatile, often very enigmatic collection that takes up many hundreds of pages. Schulz distinguishes the writings into Lyric Work, Epic Work, Heinrich von Ofterdingen, and Theoretical Work. The quote given by Scholten comes from “Aus der Allgemeinen Brouillon”, p. 561, no 186. To give an impression of the type of text, I give below an anthology from pages 560 to 561, in which I do not venture a translation. Since in 1917 Scholten, like Novalis, deals extensively with Fichte in the essay3. Recht En Liefde’., I assume that Scholten worked in this period from an inspiration by Novalis. (Data partly taken from Heumaker's afterword to the Dutch edition of Heinrich van Ofterdingen: The blue flower.)
30Nog opzoeken
31The terms technical and scientific refer to the sociological-functional approach introduced in the next paragraph.
32Die Wissenschaft ist notwendig wider das Leben”. The context of that quote is: “However, it has certainly not been established that theoretical behavior is the most valuable behavior and that science is therefore the highest cultural asset or even the highest good in general. Perhaps it is a justified 'objection' to the knowledge that it removes people so far from the real, directly experienceable life. The adherents of some philosophies are hostile not only to science, but to all culture, because both are so far removed from life. Whether they are right about that is none of our business in this context, but scientifically they can never be "right". Their objection to science cannot be scientific. All science is necessarily something that goes against bare life as an immediately experienceable reality. He who seeks truth does not stop at life as it is lived, even if he practices the intuitive metaphysics of life or some other science.” (Allerdings ist gewiß nicht ausgemacht, daß das theoretische Verhalten das wertvollste von allen und dementsprechend die Wissenschaft das höchste Kulturgut oder gar das höchste Gut überhaupt sei. Vielleicht ist es ein "Einwand" gegen die Wissenschaft, daß sie den Menschen so weit vom lebendigen und unmittelbar realen Leben entfernt. Die Anhänger mancher Lebensphilosophie sind nicht nur der Wissenschaft, sondern allerKultur wegen ihrer Lebensferne feindlich gesinnt. Aber ob sie recht haben, geht uns in diesem Zusammenhänge nichts an, denn wissenschaftlich könne sie nie "recht" haben. Wissenschaftlich kann ihr Einwand gegen die Wissenschaft nicht sein. Alle Wissenschaft ist notwendig etwas wider das bloße Leben in seiner unmittelbaren Realität. Wer nach Wahrheit sucht, bleibt nicht beim lebendigen Leben allein, gleichviel ob er intuitive Lebensmetaphysik oder eine andere Wissenschaft treibt.) Rickert, Die Philosophie des Lebens., 115.
In this essay, Scholten deviates from Rickert in that he rejects his claim to knowledge of a verstehende sociology or history and emphasizes that it is personal reflection through which one becomes aware of the highest goals and the life values ​​that thereby obtain their further interpretation. People can feel related in vision, but even then there will often be differences. People will also often make completely different choices, which leads to fundamentally different philosophies of life. According to Scholten, no historical process of progress of knowledge is possible to achieve greater unity in philosophies of life. It is possible, however, to bring unity to society in concrete issues by reaching beyond one's own views and entering into compromises. Seeking unity is an ethical task for Scholten and not a theoretical one. Because of the brokenness of the world and the limited possibilities of the people, the search for theoretical unity will always fail. However, this insight into human incapacity makes it possible for people to find each other in concrete terms.
33Nog opzoeken
34Scholten is referring here to the fundamental contradiction between a Gesinnungsethische position and an Erfolgethische position, see endnote 24.
35The moderating effect of a sense of reality as the core of the distinction between theory and practice seems to me to be the core of Scholten's contribution to legal practice.
36Scholten here gives the reference Huber, 'Über Die Realien Der Gesetzgebung'.I, 39.
37Scholten notes in the footnote: This view, as Huber rightly points out, has nothing to do with the view that the relationship between reality and law is one of cause and effect.38Scholten states in the footnote that for the Netherlands in this regard, Mr. Van Vlugt must be thought. For his writings, see Mr. W. van der Vlugt's Most Important Writings.
39Scholten refers in a footnote to the deserving dissertation of A.C. Leendertz (1911), De grond van het overheidsgezag in de antirevolutionaire staatsleer’.,(The fundament of public authority in the antirevolutionary (anti the ideas of the French revolution) constitutional theory) and the critical review thereof by B.C. de Savornin Lohman, De grond van het overheidsgezag in de antirevolutionaire staatsleer, door A.C. Leendertz.
40The distinction made here between personal experience and the collective life of a people is important for the distinction between Scholten's legal and ethical writings (conscience) and his political writings (philosophy of life). Scholten's Political Writings can be found in Volume 2 of the Collected Writings.
41In General Method, Scholten makes a clear distinction between the formation of law through legislation and the finding of law through case law, between the newness of general rules and the newness of decisions. see block 51.
42It has not been possible to find out where this is in Stammler's work.
43Nog opzoeken
44It is interesting to compare Scholten's view on this point with Kelsen's Grundnorm and Hart's rule of recognition. Kelsen and Hart tacitly assume the national unity of law. Scholten emphasizes the difference of fundamental opinion that in the formation of law is a continuous issue and must be bridged. Political leadership is therefore an ethical task towards its own supporters and towards other groups.
45Scholten speaks of true religious tolerance (ware vrijzinnigheid), which raises the question of what false religious tolerance is in the eyes of Scholten. The entry Vrijzinnig Protestantisme in Wikipedia contains a description of liberal/modern versus orthodox Protestantism and does not indicate the distinction between two forms of religious tolerance. The Dutch version contains however a reference to the entry liberal Christianity in the English version of Wikipedia: Liberal Christianity, also known as liberal theology, is a movement that interprets and reforms Christian teaching by taking into consideration modern knowledge, science and ethics. It emphasizes the importance of reason and experience about doctrinal authority. The last sentence shows that this view derives from reason and perception a criterion of truth. The essay Law and Philosophy of Life shows that Scholten rejects such a positivist position. Block 59 of this essay shows that Scholten blames such a positivist attitude on the orthodoxy of scripture and church. Based on the context in which the words 'true religious tolerance' (ware vrijzinnigheid) are used, the conclusion can be drawn that a distinction can also be made in the liberal faction of Protestantism according to Scholten between a positivist false approach and a non-positivist true approach. In the false religious tolerance, in his view, the views of dissenters are framed as contrary to reason and perception, thus preventing those views from becoming properly appreciated in their own non-positivist terms.
46Lessing's Nathan the Wise answers the sultan's question "Which religion is best: Judaism, Christianity or Islam?" with a story: Once upon a time there was a king who possessed a ring with a wonderful power. The ring makes its wearer a good and wise person, loved by God and by people. He has three sons who are all equally dear to him. To whom should he entrust the ring? He has two rings made by a goldsmith and each gives his sons an apparently identical ring. After their father's death, the brothers still want to know who has the real ring. They go to court. The judge said no one knew which was the real ring and ordered them to live as if their ring was the real one. The sultan says, "So, if I understand correctly, Jews, Christians and Muslims have to prove for themselves that their religion is the right one through acts of goodness and peace?" "Exactly," Nathan says. See Lessing and Taylor, Nathan the Wise.
47The school struggle was about whether the public school should be neutral or could be organized according to denomination. The parties referred to by Scholten as “right” (initially led by Groen van Prinsterer) were in favor of organizing the public school according to denomination. It is important to note that a significant part of the orthodox Protestant camp was in favor of the neutral public school, so that through their association with the liberals this became the legal basis in the Netherlands. The law did offer however the option of setting up special schools with private funding. As the design requirements of schools became more stringent, private financing became more and more of a problem and this fueled the school struggle again. A Protestant political party (the first political party in the Netherlands) was founded under the leadership of Abraham Kuyper. A compromise was developed from a liberal angle in seeking the necessary two-thirds support for a constitutional amendment in 1887 for an extension of the right to vote. The compromise consisted of a reinterpretation of the Education Act of 1878 with regard to the regulation of government funding for public education: the fact that in the law funding was regulated only for public education did not mean that special schools could not receive funding. Before this had been interpreted differently by the liberals who were in the majority. Because the first elections after this constitutional amendment led to a large majority of Catholics and Protestants, in 1889 the primary education law was able to establish legal equality between public and private schools. This did not mean equal treatment. Equal treatment was established in 1917 in the same Constitution that also established universal suffrage. Data taken from Boekholt and Booy, Geschiedenis van de school in Nederland. Scholten, who was a supporter of the idea of ​​the neutral public school, tried to realize his ideal as co-founder of the Amsterdam Lyceum, which although a special school was open to all denominations.
48Cicero and Miller, Cicero De Officiis, with an English Translation.,1. 10. 33.;Stammler, The Theory of Justice., chapter 1, 3.
49New religiosity seems to align with Novalis's aspirations. See endnote 29. With what is stated in no. 182 about sin, Novalis focuses on the discussion about it, which is often avoided as much as possible because it is such a bone of contention. This also seems to indicate the close connection with the problem of finding applicable law.

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