§ 1 Law and codified law
The old notion1 that all law can be found in codified laws, and that law and codified law are synonymous, is no longer accepted today. 2
It all seemed so simple and obvious. The legislator determines what law is. One could argue about how legislators arrive at the rules they make and whether ethical standards are followed or whether the laws made merely express what existing power relations dictate. Opinions may also differ as to whether those involved in the legislative process merely draft in the interest of their principals, and whether it is their arbitrariness that determines whether a rule of law is issued, or whether they attempt to formulate the commands of a law of higher order. One thing seemed certain, however, lawmakers determined what law was. It was the legislative act which turned a rule into law, more precisely into positive law. For most people such precision was unnecessary, for them all law was per definition positive. Custom still had a place in the doctrine of legal sources, where in accordance with the old tradition, both law and custom had been defined as sources of law. But in fact, that was usually the only mention made of custom; it rarely formed the basis of a decision resolving a legal dispute. The legislature showed its supremacy by recognizing custom as a source of law only when the law specifically referred to it. There were always those who doubted that supremacy, however. They raised modest reservations or defended a single cautious limitation to the legislature’s omnipotence. The vast majority remained convinced of the legislature’s full supremacy.
Legislation2 was primarily concerned with its own making, and thus itself created new legislative work. We have already noted that custom only counts as law when statute law explicitly refers to it. Our conception of codification, the idea that all rules pertaining to a particular subject should be brought together in a single comprehensive code of law, would seem to be based on this same idea. The Civil Code was to contain all the rules on civil law relationships, the Commercial Code on commercial law. Such codification was intended to not only give a firmer definition to the existing legal rules, i.e., to create unity of law, but above all to create legal certainty. This meant that for the sake of legal certainty, any rule that was not included in the code had to be denied binding force. The General Provisions Act3expressly provides that the judge who claims to be unable to render a decision in a given dispute due to “silence, obscurity or incompleteness of the law”, is guilty of a denial of justice and that his criticism of the law is merely a “pretext”.3 This means that the law claims to have a solution for every legal dispute. This is also the underlying view of the whole institution of cassation. Cassation which aims to create unity in the case law on questions of law, but which allows the Supreme Court to annul the decision of a lower court only if codified law was violated. This limitation makes sense only if one presumes that the resolution of every legal dispute can be traced back to a question of how to apply codified law. Additional examples could be mentioned. I hope that 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 earlier and more recent times.4
Because the view that “all law can be derived from codified law” was incorporated as a provision in the General Provisions Act, the view gained great influence. What more could one want than that codified law should also contain provisions about itself, the first rule being that all law should be derived from codified law? Anyone in doubt of the truth of this statement, however, will not be convinced of its correctness through the law itself. Precisely this doubt has arisen in recent years and has problematized4 the relationship between law and codified law. The first point about which people came to think differently was how the whole of law was absorbed by codified law. The idea began to take hold everywhere that there is law beyond 5 codified law, that codified law is not without gaps - not lückenlos as the Germans say.
This shift began with an analysis of the judge’s relationship to codified law. The slow progress of the legislative process necessarily led to greater freedom for the judge. The question of how much freedom was permitted caused people to start thinking about the judge’s role. All can agree that the judge is required to apply the law. But how far does this obligation go? Is this the judge’s only task, and what does the application of law actually mean? Until the publication of Oscar Bülow’s fine speech on Gesetz und Richteramt6, 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 more than apply abstract rules to concrete cases. The judge’s task was to sort out the case and then put it into a legal framework prepared by the legislator. The desired solution then automatically followed; a decision of the legal dispute was delivered. It was purely intellectual work, without any personal judgment or appreciation. No one has formulated this thought more sharply than Montesquieu:5
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)7 And what was said about the judge was also true for legal science, the task of which was to provide the judge with information and to solve the questions of law that could not be answered by simply reading the law on its face. Legal science had nothing more to do than to elaborate and elucidate the ideas laid down in the law— to interpret the law, so to speak. When the judge’s task was examined more closely, however, things began to look different.
To give an example. Statutory law provides that a legal separation from bed and board can be pronounced when there is an abuse by one spouse of the other. What constitutes abuse? According to the Supreme Court, “acts incompatible 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 a continued good relationship cannot reasonably be expected”. So far this is still interpretation, i.e., a further determination of the legal concept of abuse. But what does the judge do in such a case when applying the legal provision, simply establish what happened and subsume the facts under the legal rule? Of course not. After all, if the judge establishes that the husband, for example, is constantly drunk, he must also decide whether that behaviour is compatible with a tolerable coexistence, and whether it is offensive and insulting in nature. He must evaluate and attach a value to that behaviour, testing it against standards that the codified law does not provide. There is an ought — a legal ought — which is not written down in the codified law itself. Between the two parts of the traditional task of the judge, a third part inserts itself, the most important part: the task of establishing the rule with which the behaviour of the person concerned should comply.6
There are many instances in which the legislator leaves room for the judge to determine what the law is through the use of broad terms like excessiveness. Such a flexible content of legal rules occurs not only with respect to a few ancillary regulations, but with precisely the fundamental rules of our way of dealing with each other. An example is the principle of good faith, which governs contract law. The judge will have to determine what good faith requires. Another example is whether a party should be relieved of a contractual obligation if fulfilment of the performance is frustrated by force majeur. Wartime8 at this moment forces regular use of this rule. But when can we speak of force majeure? According to the prevailing doctrine, force majeure is when one has done all that can reasonably be required. The written law certainly does not explicitly formulate what can reasonably be required in every agreement, nor can this be derived in any way from investigating its text or history.7 Finally, the concept of guilt. In connection with a claim for compensation in the event of a car accident, for example, the court will have to determine whether the collision is attributable to the driver’s fault. What must be determined in this respect? First, the questions of what happened need to be answered, such as the speed at which the car was traveling, whether signals were given, whether the driver remained on the right side of the road, etc. But determination of these facts cannot yet yield a decision. For this, the behavior of the party must be tested and weighed. The judge will have to determine what the motorist ought to have done. Anyone who understands how fundamental the meaning of concepts such as guilt and good faith is, will see that application of law always involves more than the mere application of codified legal rules. This is true for private law, but the same phenomenon can also be observed in criminal law, albeit on a more limited scale. In addition to intentional manslaughter, for example, culpably causing9 death is a criminal offence. Codified law contains no rules, however, for the question of when an omission or carelessness is so seriously disapproved of that the perpetrator must pay with punishment for the result unintentionally caused.8 X-It is important to keep in mind that in all such cases, it is judge-made law that the court is requested to deliver. The judge must decide which acts spouses are not allowed to commit towards each other, what contracting parties are obliged to do for each other, and when they have done what they had to do, the standard of care one generally ought to have for the good and safety of others. Whoever believes that it is not completely arbitrary how the judge answers these questions, and that the judge could just as well say a as b, must recognize the existence of some body of law next to or behind the law.10 We are speaking of 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 a conviction one can pronounce but cannot prove. One who is convinced that an ought or duty exists, irrespective of how this is arbitrarily judged afterwards by a third party, will not only be certain that the norms for our actions are not merely based on the codified law, but also that those unwritten norms can also be legal norms. In every legal decision, the codified law is always connected in some way with the law behind it. 9
Once one discovers this, one quickly realizes that this is not only the case with respect to the rules referred to here but is true everywhere that law is applied. There are all kinds of questions to which the legislator not only gives a very broad answer, as mentioned above, leaving it to the judge to define the meaning in question, but to which the legislator simply provides no answer. In criminal law, the rule applies that if the law is silent, the act cannot be punished. If no legal rule was violated, the perpetrator must be allowed to go free, however objectionable the act. In private law, on the other hand, the judge must render a decision in every dispute. The answer that the law is silent, and that he therefore does not know how to decide, is not a recourse. A striking example of such a lacuna in our private international law is the lack of regulation of the civil law relations between the nationals of different states. We have various treaties on this subject at present, but these concern only a few issues, and by no means all civilized states have acceded to these treaties. England and the United States, for example, have declined to take part.10
But apart from these treaties, our law contains only four rather general provisions concerning the many questions of law that arise in conflicts in the private affairs of the citizens of different states, such as their contracts, marriages, and inheritances. Provided is that for the Dutch person, the Dutch laws relating to his civil status are binding, even if he lives abroad. This means that the questions of whether a Dutch citizen living abroad has reached the age of majority, whether they are allowed to marry, whose consent is required, etc., are decided by Dutch law. Furthermore, regarding immovable property, the law of the place where the property is situated applies, and the legal form is judged according to the law of the country where the acts were performed. Finally, Dutch law provides that Dutch civil law applies to foreign nationals in the same way as to Dutch citizens, if the contrary has not been expressly provided. That’s it. One can conclude by analogy that the provisions of the country of a foreign national apply to the civil status of a foreign national in the Netherlands. 11
But how to determine for example the content of contractual obligations? Should the consequences of a purchase agreement between a German and a Dutch citizen, concluded in England, be adjudicated under German, Dutch or English law? Which matrimonial property law applies if, for example, a Dutch man marries an American woman? Does this marriage have the effects of property as prescribed by our law, or by the law of the country of which the woman is a citizen? And what about inheritance law? To all these questions – legal questions - the judge must find an answer. The answers cannot be drawn from the codified law itself.12
We spoke above of an application of law by analogy. This also involves something other 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 reach 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 another case, which is regulated by law. The judge concludes that there is 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 to arrive at a new rule, the judge must first ascend to a more general rule of which the related legal provision is a corollary, and then descend from there to establish a new norm. For example, the law establishes for Dutch citizens that the question of whether they have reached the age of majority must be answered in accordance with Dutch law. But suppose the opposite case presents itself. A Dutch judge is faced with the question of whether a Swiss citizen living here is of age at 20, as determined by Swiss law, or at 21, as provided 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 in Dutch law for Dutch citizens. But upon what does the judge base this? Upon nothing other than that he thinks he has the freedom to extend a rule of our law about the personal status of Dutch citizens to everyone, of whatever nationality. But whether the judge has that freedom, whether he is justified to do this, is a question which in the end is not answered by codified law —which as we assumed does not express itself on the case —but by the judge’s own assessment. Thus, we see a difference between reasoning by analogy and the ordinary application of law.13
In the case of a direct application of law, a concrete judgment is pronounced which was in fact already contained in the abstract rule of the codified law. If a statute provides that anyone guilty of theft is punishable, and the judge decides that Jan has committed theft, the conclusion of the judge that Jan is punishable is already contained in the provision. However, if the judge uses analogy, he applies a rule that is neither explicitly found in the codified law nor can be logically inferred from it. Standards other than those contained in the codified law then influence his decision. 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 is a special precept.14
And last but not least, also regarding interpretation, which has always been seen as specific to the work of the judge and the legal science informing him, testing the result against standards not formulated by law plays a major role. As soon as one begins to interpret, one basically abandons the teaching that codified law and the law are the same thing.
Emperor Justinian—who, like any codifier, tended to overestimate the significance of codified law—knew what he was doing when he forbade the writing of commentaries on his code. Whoever dared to transgress his command was punished, and his books were burned. Only for the legislator, for the emperor himself, was it appropriate in cases 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 always been 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 legislative bodies. Interpretation involves determining the meaning of the law. It may be the case that some give more and others less room for the judge to decide, one may feel more bound to the language used, or to the meaning of the words of the provisions in daily life, to the drafting history of a given provision, or to tradition, or whatever other 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 he thinks the law ought to be.15
This is because no one can point to a hierarchy for the various factors that can play a role in interpretation. No one knows when the words of the codified law are to be decisive nor when the history of the law or its purpose should be followed. There are those — especially in the Netherlands — who attach great importance to the wording of the text 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 came to above. The difference between them and their opponents is a matter of more or less. It is gradual, not principled. Also for them it remains true that the interpretation of written provisions is largely something different from intellectual work, and that the conviction about what ought to be law plays a major role.16
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 sometimes more and sometimes less restricted in his freedom through the norms formulated in the codified law. When the legislator clearly determines what the court should decide, the court must 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 was traditionally propagated. The law is not a single given, and analysis of the codified law is not the only task of legal science. The broader task is to seek the applicable law, to find the legal norms. Codified law is both a tool and a limit in this respect. It is a tool, insofar as the opinion which is explicitly expressed by the legislator can be useful in investigating the questions about which the statutory law is silent. It is a limit insofar as binding decisions of the codified law restrict free research. This is further elaborated below. First, we turn to another side of this issue.
§ 2 Codified law and facts
The proposition that not all law can be found in the codified law is also true in another way.17
When we speak of binding law, we can understand it in two ways. We can 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 coincide: the written provisions prescribe what should be done, and this is enforced by the appropriate authorities. No one denies that legal norms are violated time and again, but behaving differently from what the codified law commands was seen as an injustice which must and will be responded to with the means indicated by the law itself. Recently, however, it has been concluded that however simple and enticing this may be, it is incorrect. There is a great deal of law in addition to the codified law that is recognized, followed and enforced. Conversely, there are many written provisions that have become a dead letter. Once one notices the gap between what is laid down in provisions and what is actually recognized as law, it keeps coming back into view.
Some examples. The most important thing first. Nothing is said in the Constitution about our parliamentary system, which is the basis of our form of government. We all agree that there should be agreement between the government and the representatives of the people on the main lines of state policy. And yet, where do we find this in the Constitution? Since the parliamentary struggle of 1868 it has been accepted that as soon as there is a failure to agree between the House of Representatives and the government because of election outcomes, or for any other reason, and the House passes a vote of no-confidence against the government, the government cannot legally remain in power. Also agreed upon is that ministers are responsible for the government measures they take and cannot fall back on the claim that they acted in accordance with the personal wishes of the king. As a result, ministers are never free to refuse parliamentary review of a government act on the ground that royal power is independent. We mean this kind of rules when we speak about a parliamentary system. 18
And what does the Constitution say about these issues?11 It provides 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. No one can argue that the law in force was derived 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. The reality is different. Codified law remained the same, while the law changed.19
The Constitution offers several examples of such changes. One can still regard the question of whether the Constitution allows subsidization of denominational education12 as a question about the interpretation of Article 192 of the Constitution (art. 192 Gw). No one intending to describe the applicable law today,13 however, will close their 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. Can it be maintained then that the Constitution provides otherwise? In addition to these examples, which do not concern mere trifles, many others can be given. A series of customs and established beliefs have sprung up around the Constitution which fall outside or are even contrary to the letter of it but are observed and enforced in the same way as the legal precepts themselves. Should these therefore not be included in a summation of the applicable law?
Shifting our attention to private law, we see that our property and family law relationships also cannot be derived from our codified law. Look at contract law, for example. In this area, the law provides general rules which leave everyone free to define within certain limits the concrete content of legal relationships. The person who wishes to be informed about the existing law will only pay attention to these general rules and consider the contractual provisions unimportant. This changes, however, 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 is the applicable law: the statutory provision or what is normally stipulated to 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. The law provides, for example, that the person who has the first mortgage on an asset may stipulate the right to sell the asset if the debtor defaults on the payment of the principal or interest. The mortgage deed is drawn up by a notary and I suspect that among the thousands of deeds of first mortgage drawn up by notaries, there is not one in which the clause does not appear. What is the current law: whether the first mortgagee is entitled or not entitled to sell?20
Another example is when stakeholders unite and draw up a kind of model contract. They formulate the rules they will follow when concluding their agreements. Insurers did this long ago and the conditions of the Amsterdam and Rotterdam stock exchanges also contain provisions of their own making. Numerous industries followed in later years, such as securities trading, coffee, grain, flower bulbs, oil, and so many more. 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? An international agreement may also apply. It is true that our law contains a particularly large number of provisions on general average (which regulate how costs are divided between ship, freight and cargo, when a ship has suffered damage as a result of rescue operations, such as throwing part of the cargo overboard), but the shipowners decided to make their own international arrangement, which of course does not correspond in all points to 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.21
What is now the source of the applicable law regarding general average: the international agreement, which never became law, or the codified law, which is usually set aside? Finally, a rule may also originate from a particular authority, which was originally intended only to define its own relationship to other parties, but because of the authority it emanates, its provisions are followed in a much wider circle. For example, the Minister of Water Management drew up general regulations to be observed when tendering works for the State. It has become customary to refer to these regulations in other procurement contracts. Do these rules now belong to the law of procurement contracts? In all these cases we are dealing with norms that govern contractual relations, not because they are imposed by government, but because parties freely submit to them. Do these rules now 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 them in their contract? In both cases the parties enter into a special legal relationship with each other on the basis of their free will; 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 rules drawn up by others. These rules automatically enter into force when the parties form their contract, without them being fully aware of all the details of that arrangement. Is the one form of law not equally legitimately law as the other? And if the contract-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 actual binding law? 22
We see something similar in family law. 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. The prescription could be enforced if it were so desired. Disobedience on the part of the wife could, for example, be regarded as an excess, 14 upon 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. What does a working-class woman or a woman from the lower middle class know about her legal incapacity? The law provides that a general community of property will govern 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. We are not there yet, but we may reach the point where more people get married with prenuptial agreements than without. Would one still think that the codified matrimonial property law is the prevailing Dutch law for this relationship? 23
Family law also provides a clear example of how the judiciary sometimes treats codified law. I am not talking now about how the judge should treat the law, but about how he does in actuality. The outcome that one finds when studying the case law is, to say the least, somewhat different than one would expect when reading the provisions on their face. For example, the law prohibits divorce by mutual consent. 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 this possible? The matter is very simple. The Supreme Court ruled in 1883 that the legal principle that a confession is complete evidence also applies in divorce cases. So, when the wife accuses the husband of adultery, and he confesses to the fact, the judge must grant the divorce. It is even simpler if the man fails to appear in court 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 granted in a case where the husband expressly denied the accusation, but at the same time added that he accepted the accusation, since he wanted to be rid of his wife as much as she wished to be free of him.24
One may find this case law deplorable and be convinced, like the author of this article, that this is a technically incorrect interpretation of the law. It must be recognized however, that this case law has become so well established that it can no longer be ignored, and that a description of our divorce law with a summation of the legal grounds cannot be complete if it does not include the addition that divorce by mutual agreement is valid. From the codified law alone, it is not possible to know what the actual binding law is. How difficult it is to keep this truth in mind becomes apparent from the explanatory notes to the bill that Minister Regout submitted to put an end to what he believed was 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 referred to the laws of foreign countries to support what he proposed, he described only the codified law and neglected to take into account that also in France, for example, despite the legislator’s disapproval, divorce by mutual consent can also be achieved via a back door. The memorandum argued that what is possible under the law in the Netherlands is not possible anywhere else. In doing so, the minister compared the law actually applied in our courts with codified foreign law, and not with the law that jurisprudence and custom in these countries permit. This shows how deeply the doctrine of codified law as the only source of law is rooted in lawyers, at least Dutch lawyers. In France this is different. There they are fully aware of the great significance of the judiciary for the practice of law. 25
I have given a few striking examples to show how one cannot know the real living15 law from a reading of 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 suffices to make it clear that anyone who wants to know what the applicable law is cannot limit themselves to a study of the codified law alone. It is necessary to examine what has been made of the law not only by the judiciary and administration, but especially by those subjected to the law. Law is a real phenomenon of power in society, as is again emphasized today. There has been 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 factual research of particular 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 terrain of concepts. The law is then no longer the norm that commands obedience, but a summing-up of what happens in reality. It is then especially important to check the extent to which the summary given in the law continues to be in tune with reality. Law and reality are not the same, after all.1626
§ 3 Sociological view of law
The two directions in recent legal science that I outlined above with a number of examples agree on one point: law and codified law are not identical. For both, law is more than a set of binding rules established by a particular authority. For neither direction can legal science suffice with a description and systematization of codified rules. For neither view is law solely made by the legislator. But both directions have clear differences as well. They represent two different views of law. One view sees law as an idea, as a guideline for action and a task to be fulfilled. The other view sees law as a phenomenon, 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 define 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 for rules for what people ought to do, thereby ascribing value to the aims that people pursue. In the other view, legal science is a part of sociology that describes the legal aspect of human society. Any legal issue can be considered in these two ways.27
Suppose one asks whether a decision of the highest court, the Supreme Court, binds the lower courts, asking in effect what the power of a precedent is. The person who answers this question from a normative point of view will examine whether the judge is required to follow the Supreme Court based on the statute, unwritten law or some other source of law. From a sociological point of view, in contrast, the influence of Supreme Court judgments on lower courts will be examined. If asking whether a custom makes a law inoperative, from the normative perspective one will try to determine what the relationship between custom and law should be, while from the sociological perspective one will examine whether it has happened that laws are actually overruled by customs. 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 then speaks of a prevailing doctrine. A sociological jurist will not only establish the existence of such a prevailing doctrine, but will also conclude that it is legally valid, while the person who sees the legal rule as a norm will feel the need to test the doctrine against what they believe to be a true source of law. If the conclusion is drawn that the prevailing doctrine is incorrect, it cannot be accepted as valid law, no matter how many others have decided otherwise. 28
It is not the case, however, that one jurist follows the normative approach and another the sociological approach. Anyone who enforces, applies or writes about law, anyone whose actions are relevant to the reality of law, will use both methods interchangeably. Of course, some will be more inclined than others to bow their head to reality, also in legal life. No one can escape this dualism.1729
The question is whether one should be obliged to choose one of the two methods over the other, and then consistently apply it. |Adherents of both views have defended this. The question of the extent to which, 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 those who consider the sociological view the only possible and only scientific, approach. For them the codified law is the expression of power relations, and legal science the describer of the legal dimension of society. To begin with their view on legal science, they believe that if legal science concerns itself only with what actually happens and nothing more, it will transform itself into a branch of natural science and this – despite Rickert18– is what many still see as the highest ideal achievable by science.
-Many lawyers— and not the least eminent ones—have recently defended this view. This view also enjoys strong support in France and Germany where it is considered entirely novel. However, we would like to recall that a similar line of thought was already defended in the Netherlands by the late Professor Hamaker who passed away a few years ago. The quote below reflects exactly the same denial of the normative nature of law, which can also be found in the works of later sociologists, and which can be characterized as empiricism19 in legal science.30
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 into the succession and connections of the actions of people in their relationship to each other.20
I will refrain from a principled fight against the empiricist perspective expressed in this quote. That is not the issue here and it also makes no sense as we are dealing here with two different, opposing philosophies of life. This creates a struggle in which we may choose one of the two, and where in my view such a choice is also necessary. But we will not be able to convince each other of the incorrectness of the choice we reject.21
Whoever thinks that everything about the law has been said by describing: the customs and practices prevailing in a given place, the means of power used to suppress behaviour that clashes with those customs, the views held by those who wield or are subjected to power, and that there is no possibility of testing or evaluating what is said - because there are no standards for doing so - equates law with power. In this way what ought to happen is completely inferred from what happens in fact. This has been regarded as the methodical error in the field of ethics since Kant. Incidentally, one of the ancient Roman jurists (Proculus) already taught that one should pay less attention to what was done in Rome, and more to what should be done.22 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 value in its own right. Those for whom this value is a primary fact that must not be tampered with, cannot accept this teaching. But as I said, I will not go into this any further. I believe that I can confine myself to explaining a single point. In my view it is impossible to give a description of law which is not more than a description of what factually happens. Any attempt to give a purely factual description will always be influenced to a greater or lesser extent by the author’s opinion on what should be done. True objectivity is impossible here.23 A description is inevitably supplemented by an unspoken recognition of the normative, as will be elaborated in more detail below. 31 Contained within every description is a valuation. One who describes selects from the many phenomena that present themselves. It is not possible and it would be of no use to reproduce everything, so the important must be sifted from the unimportant. This requires a measuring stick 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 yet another kind of valuation. The author is not indifferent to his material. It matters to him, despite his claim that only understanding is important, and not liking or disliking, approving, or disapproving. He cannot avoid being engaged. What he describes is partly informed by his own views, even if only for a very small part. His description can influence the structure of society. After all, he shows what he believes to be the shortcomings of society and this will trigger a desire to change and improve society in the ways he suggests, even though the author has no propagandistic intentions. No one can escape this kind of influence. That is why there has never been a sociology that does not depart from a specific conception of life or a preconceived ideal of life.2432 One would seem to describe in a strictly scientific manner what one observes. The author seemingly disappears behind the material, which dictates the result without him being involved in any way. In truth, the sociologist does not merely point to a relationship between certain facts but discovers “laws” and principles that explain social developments and finds what he already assumed when he began his research. Prior to the start of 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 personality25 and is an outgrowth of what he desires and wants. Filled with the light of this, he starts to investigate society and he sees it reflected in everything, everything confirms it, every study, 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. He thinks the opposite, that the facts force that truth upon him. 33
All of this can be seen very clearly in a Marxist social democracy. As is known, in this view it is presumed that the mode of production is the foundation of all society, and that law, art, morality, religion and whatever else is regarded as ideology are all ultimately determined by this mode of production. In this way it is also considered proven that current capitalist society is already in transition to becoming a socialist society. Driven by the necessity of a law of nature, the turnaround will come, and socialism will be realized. Is it not particularly 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 their strength? The authors of the new scientific analysis, Marx and Engels, began the struggle to achieve the result before developing their theory. Is it not very curious for a doctrine that claims to be teaching about development, to define an end to development— oh wonderful contradiction —and then at the very moment the same ideal is reached that socialism defended for centuries, before it was elevated from utopia to science?34
Is Marx’s primary aim in his scientific work and in his propaganda not to make the value of the proletariat absolute and to show the necessity of improving the economic status of the worker? Historical materialism is nothing more than the view of history of someone who values the struggle for the proletariat above all other values. That is why this view is held by everyone who takes part in that struggle with their 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 relationship to that struggle. They believe they are fighting for an ideal, the realization of which scientific study claims is the inevitable result of social development. But no one has ever given their life for the realization of a condition that has yet to occur, just because they are convinced that the course is inevitable. People only fight for what they want, desire or love.35
It was not the scientific result that was primary and the struggle a consequence. The struggle was paramount. The conviction that socialism should come and that it was wanted and demanded took front seat, and the theory was the scientific support that everyone so happily uses and that especially people in the nineteenth century thought they could not do without. But it is not science that determines wanting and wishing. Rather, it is will and desire, the conviction of what should and ought to be, that influence scientific judgment. 36
This was very much the case with Marx, inevitable for a man who turned social democracy into a major movement. This cannot be done with bland theories. The same is true for any sociologist. For a number of years, the Viennese professor Menzel showed in a brochure how every sociology contains a good dose of natural law.26 This is true even for those who limit themselves to merely observing a development in society. The concept of development always implies change from lower to higher, from less to better, in a certain direction, with a view to an end. The facts alone show only an observed change. The direction in which the change is supposed to go always agrees wonderfully with what the belief 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.37
What is being described after all? Not just the habits, nor just the sequence of events, but the law, even though it is unwritten law. It is not enough to say: such and such people normally do this, and this or that happens when they act differently. It must be clear that those acts occurred and are an expression of a belief that such behaviour ought to have taken occurred. How else can one distinguish between habits and social use on the one hand, and customary law on the other? The researcher infers compliance with rules and norms from actions observed. The jurist only completes his task of scientific description when he distils the rule from the facts and is able to see the multiplicity of facts as different manifestations of this rule. And this work is certainly heavily influenced by one’s own convictions. This is evident if one notices the difference that exists between a description of the law of the past, or of a foreign people, and that of one’s own country and time.
The legal historian relates to his material much like any other historian. From what he writes, he reveals his way of looking at world events. His personal view appears in what he defines as main points and in the outline of his research. He cannot describe the law without already having an idea of it and using this to organize his material. If, as often happens, his aim is to present a lesson for the present, his view of what should be recognized as law will be found in that lesson. Yet, in describing the details, the legal historian can be as objective as is 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 and neutrally as possible. Recent literature has re-emphasized the importance of such a neutral description. Anyone who wishes 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. He should not ask himself if he agrees with those views nor whether the people of that time, even according to what they themselves recognized as a source of law, perhaps should have decided differently.38
For the historian the focus is not on the norm, even if it has been preserved in an old formulation, but the focus is on the way in which the norm was 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 of course important to study the provisions contained in bills and ordinances, but the main thing is what happened in case law and practice. The first is more important for the question of how judges and litigants viewed codified law at the time than for the question of the influence of Roman law. What does it matter if we know that the courts of that time were not obliged to follow that law if we know that they did follow it? It is no use crying over spilled milk. This point has often been overlooked, also when rules of Roman law were taken out of their historical context and people began to wonder how modern relations would be judged according to Roman law. Attractive perhaps for fantasizing, but without any scientific significance and not without danger. 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 supratemporal value to something that only had meaning for a specific time. Forgotten was the relationship of law to social conditions and to the culture as a whole.39
The legal historian must bear all of this in mind. The legal historian must above all be an historian. Patiently observing, waiting for what comes to the fore, with an interest that strives to nothing more than knowing – this is his primary task. 40
Such an attitude is impossible for the lawyer who speaks of his own law, the law of his own country and time. He himself may at any moment get caught up in a predicament like the one to whom the rule applies that he describes. Would he have to act like that as well? Could that be demanded of him? Can you do this to him? These are questions that confront him during his work. Do you think he will be indifferent to these questions and look at them in a purely scientific way? Every question he touches upon shouts to him: This could also apply to you.27And when certain rules don’t affect him directly because, for example, they apply to a certain profession or industry to which he does not belong, will he then not care about this law of his own country? Is it possible that he would not at all be interested? Yes, there are those who do appear to be indifferent, but these people are completely unfit for making a description of law and will not try to do so. But can one who does take these rules to heart, limit himself to observing and presume to speak without a personal judgment? One who believes this should consider the following.
There are points where one can indeed say with certainty that one or other rule is followed and enforced as law. But there are also rules, and not so very few either, where no such established usage can be identified, and where there is disagreement between parties in legal conviction. Both hold opposite ideas about not only what the applicable law ought to be, but also what it is. What will the writer do who wants to know what the law is? The historian limits himself to noting the fact of the disagreement and will say that no definitive solution to the question has been reached. But what does today’s lawyer do? It is the task of the lawyer to say what the law is. If he says that there are supporters of a certain opinion and that there are also people who think otherwise, he will then be asked, what do you think? And does one really think that if he had a firm opinion on the matter, he would not have already expressed it long ago? His opinion would have been proclaimed as the law, and for the sake of scientific rigor, he would have added that a few judges had held otherwise. Moreover, new questions arise continually, questions that are in some way similar to previous ones and yet not identical. The law must answer such questions. How can one find such answers by describing the decisions of the judiciary or the rules respected by the administration and followed by most of those involved? A rule is needed, which will never be found by collecting facts, however diligently one may search. 41
A science of law which gives a description of facts, customs and legal convictions and tries to limit itself to such a description is undoubtedly useful. I would be the first to acknowledge this. However, such a science cannot be the science of law. It shows one-sidedness to give a monopoly to this approach. Knowledge of facts is good, and it is also fine if one wants to distil justice from what reality shows. But let us not think that this is all there is to 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 driven from the law; if one sends it out the front door, it just enters again from the back.42
A word about the meaning of the written law in this regard. Those for whom codified law merely establishes what is already practice in social life misunderstand that every regulation not only has a past from which it originated, but also a goal. The rule comprises a code of conduct which by its very nature aims to determine the actions of people. That it is not always effective is a given. It can also be important to check the extent to which a rule succeeds in this respect. It may be that the significance of codified law for society has been overestimated, but this does not alter the fact that it is biased to say that such influence will always be lacking. Next to ineffective provisions, there are also provisions that 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 a product of power relations and at the same time provides norms for human behavior.
It is good for the legislator to see the relative nature of his power and to realize that if he changes a statute, it does not mean that the law is directly different, that law can grow and die independently of his involvement. One will never succeed in convincing the legislator, however, that his will is irrelevant to the law. What applies to the science of law, that the determination of what law is will always be influenced by the legal conviction of the person who performs that work, applies even more strongly to the legislator who does not try to limit himself to establishing the facts, but is constantly aware that he is called upon as the authority which makes the rules. As will and valuation infiltrate the work of the scientist and his objective observations, it is even less plausible to presume that the legislator does nothing more than observe and formulate, given that his express aim is to will and assign value. With the rejection of legal science as merely descriptive, the view that the legislator’s task is no more than to sum up existing practices must also be set aside. 43
The question then remains if it is arbitrary what the legislator lays down in law, or if he must also obey a norm and thus engage in finding law.
§ 4 Finding law, ideal factors
In chapter 1 we explained that there is law outside the codified law and that the judge must find it. In the struggle for greater freedom for the judge, which we described earlier, Article 1 of the Swiss Code of 1907 will remain a noteworthy milestone, because here it was the legislator himself who openly claimed that there is law alongside and beyond 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 contained such a precept. The Swiss code marked a moment of victory for the movement for freer justice. Article 1 reads44
The law applies to all legal questions 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 none, he must decide according to the rule he would set as legislator. He then follows prevailing doctrine and tradition. (trans. lhc)28
The emphasis lies primarily on the italicized words. They have drawn cheers from the many who opposed the traditional subordination of the judge to the codified law. These words can also be viewed from a different angle, however. The judge and legislator are made equivalent. So much is clear. But can these words also be read conversely, i.e., that the task of the legislator is similar to that of the judge? The judge may not proceed arbitrarily but is required to find the applicable law. This is doubted only by those who have reached the desperate conclusion that it is the mood of a particular individual about good or bad law that decides what the law is. The Swiss law expressly instructs the judge to find 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 room for him to assess a matter according to his own appreciation, he must give a decision “in accordance with law and equity” (article 4). Is his job any different if he fills a gap left by the legislator? Acting according to the rule which the judge would have drafted if he had been a legislator is, in the language of the code, synonymous with deciding according to law and fairness. Doesn’t this indicate that the legislator also tries to find law? If the judge is a legislator in a certain sense, is the legislator not also a judge in a sense? With both judging on the conflicting interests that knock on the door for help? There may be differences between judge and legislator, but the legislator must also apply a standard to determine law. Is the famous article of the Swiss code now in part a milestone in legal history because the legislator again recognizes that there is law that also applies to him? 45
But — one might ask — are we not making a return to natural law here? An accusation of natural law heresy doesn’t bother me much. There was a time when it seemed the gravest reproach one could make against a legal scholar. It was not that long ago, but that time lies behind us. We have learned to see again that there is still something to be gained for our time from the great men of that movement. The general view that this idea was completely refuted by the historical school is incorrect. 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, cannot be refuted by a theory about the genesis of positive law. Apart from this, moreover, we are certainly not advocating a return to natural law. That would be impossible anyway since a single conception of natural law does not exist, but rather many conceptions. When one speaks of a return to natural law, one usually means returning to the idea that there is a single set of rules - perfect law - which we could know or at least approach through reason, and which should be laid down in our positive law. This position is most certainly not mine.46
However, I want to go further as I am not a proponent of the idea of a natural law of varying content, changeable according to time and place, as was 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 such a following.47
This is not the place to go into detail about Stammler’s ideas.29 However, I don’t want to move on after saying just a single word. When I mention Stammler 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 related to Stammler’s view.
First of all I treat the view that through rational thinking an ideal law can be found, an ideal law that should always be respected unconditionally by all peoples at all times; a law that we can never fully achieve, as almost everyone agrees, but that can be approached. For me the changeability of law is an element without which I cannot conceive of law. I accept that changeability not only as a phenomenon that up to the present has always been observed, but also as something that will not be overcome in the future. I almost wrote that I gladly accept, but I stopped myself, because who does not hope for peace sometimes, also for society?
For as long as there is no perfect world, there will be no rest. For 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 abolition of the law. In a perfect world law would be superfluous.48
It follows that not a single legal provision can claim unconditional validity for all times and all places. There may be provisions that we can hardly imagine will not be respected in the future. Nevertheless, in principle it cannot be ruled out that changed circumstances will lead to these provisions being abolished, or being so limited and changed that we would no longer recognize them. The rule: thou shalt not kill, may be of all ages, but each age has its own exceptions and limitations. Unfortunately, this need not be argued today.30 The exceptions reflect what is most important in law.
But nor do I believe in the objective existence of a codified law that is the only possible and only right one for a given people and a given time. The judgment of right or wrong with regard to a legal provision can ultimately only be made from a particular philosophy of life and world view, and will therefore only apply to those who share the same philosophy of life with the one who gave the judgment.
As will be discussed in more detail below, one can certainly reach agreement about legal provisions with people who have a very different philosophy of life, but acceptance of these rules without reservation cannot be demanded. Stammler believes that by his method i.e., by pure logical reasoning, anyone who has been supplied with the factual data (which he defines as the needs and desires of the people, implying that their beliefs about what the codified law ought to be are not relevant), will be able to find the only possible applicable law for a particular time. That is an overestimation in my opinion of what can be achieved by our reason; it is pure intellectualism. Stammler sees the changeable only in human needs and desires, while I think it 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 worse. Proof is not possible here, only acceptance or rejection. 49
So much for the two views I reject. When I now try below to identify 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 — 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 share my philosophy of life.
First the ideal. The inner experience of conscience and sense of justice is, in my opinion, the most important ideal factor.50
Do not desire to go out, the truth dwells within man.31These words of Augustine express the principle to be followed by anyone in search of an ought or a should. If the basis of law lies in inner experience, in other words, if law is normative, 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.32 There is no higher command for one’s own actions than that of conscience — no more caustic disapproval than that which is inwardly experienced. We should never do what conscience absolutely forbids us to do, not in society either. Here lies the limit of the law. Moreover, the reaction of the conscience to one’s own behaviour almost always provides helpful guidance for judging the behaviour of others.
In addition to conscience, there is the sense of justice, the spontaneous conviction born of intuition about the actions of others. A 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 occurred and that those in authority should have prevented it.
If we judge an act to be solely morally reprehensible and bad, this means that we regard that act as an expression of a certain person only and that we pay no attention to the consequences of that behaviour for others.33 It is possible to pass judgment on an act and say, “that act was bad,” while also fully agreeing that the perpetrator was completely free to decide what to do or not to do, and thus considering that no one should have been called upon to intervene. The act is not merely morally reprehensible but also unjust, when we believe that the act should not be tolerated and, if possible, should have been prevented or, if possible, undone by those with the authority to do so. We say that our sense of justice rebels against certain actions. This expresses the pain we experience and the desire we feel for a response to such behaviour.One should not think poorly of these kinds of intuitive judgments, even if they entail certain dangers. More about that will follow below. One who has experienced an event aroused in him the emotion, “this is injustice, I don’t accept it,” knows that for him this is a truth. There is no reason such a judgment should be of a lower order than a judgment reached by thought. Contemporary examples let us personally experience that it is not so much the morally grave injustice that evokes the emotion of injustice, but that which occurs on the largest scale and affects the most vital interests of the general public.3451 Recall, for example, the great indignation of a few months ago. First as a result of the trial of Mrs. Caillaux,35 where a group of scheming politicians of a suspicious nature played a dominant role in the hall where justice was to be delivered: a room filled with a sensation-hungry audience, a judge afraid to displease those politicians and a jury which apparently allowed the accused (an ambitious climber and former minister) to dictate an acquittal, in contravention of the truth. Was this not a painful injustice?Then the invasion of Belgium; I don’t think I need to elaborate on that. The name alone says enough. Finally, the execution of Fourie.36 There is no gross injustice here and it may have been legally defensible. Yet distressing for our feelings, those women rushing from one house to another in search of the man who could stop the execution, a minister who could not 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 our emotion not teach us that all this was injustice, shameful injustice? Do we need a code, treatises or other rules to be certain of that? 52 I believe it is important to keep in mind these two elements of the intuitive insight in the idea of law. They should never be neglected. At the same time, it should be borne in mind that an appeal to conscience, especially an appeal to a sense of justice, can be dangerous and can lead to less desirable consequences. The conscience sometimes allows itself to be lulled to sleep or to be bribed, and there are also people who have exceedingly little trouble with their consciences. Also, conscience changes over time in what it says. For the believer, the voice within takes on a different sound, thinking he hears the voice of God. Does this not all reflect a measure of uncertainty in the judgment of conscience? I do not have to investigate the objection of bottomless subjectivism as far as morality is concerned. In this regard I can refer to La Saussaye’s treatment of it in Het Christelijk Leven.37 The objection seems more serious for law than for morality because law seems to requires more certainty. In truth, however, the subjectivism of conscience is less important for law than for morality. The judgment of conscience is never in itself decisive in respect of law. The inner moral judgment may and must guide anyone who in any capacity seeks to determine 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. Something subjective always remains, and happily so, I would say. It simply cannot be removed. Furthermore, morality and law are clearly very different in relation to an act. Morality judges an act as the expression of an attitude (ethos), while in respect of a legal judgment attitude is considered relevant only in so far as it is expressed in an act. Morality judges concretely; a single act is labelled good or bad, while the law searches for rules, i.e., for abstractions.53 Morality also has rules and abstractions, but in morality they are nothing more than tools to support the not always easy passage between thorny uncertainties. For the law, on the other hand, they are necessary guidelines without which one stumbles around blindly. The conscience judges without codified law, and in a sense, it is true what Novalis says: 54
Laws are quite contrary to morality.38 Due to the necessity of rulemaking, moral judgment in law loses its deepest meaning. The moral significance becomes obsolete and fades away, and with it the danger of subjectivism also disappears. The danger of the opposite, that moral judgment does not show up enough in the formation of law, seems to be the greater danger at this point in time.
Danger is also present in the sense of justice.39 Even more so here. The intuitive judgment that something is unjust is sometimes given lightly. One who feels painfully affected by a perceived injustice will sometimes upon reflection later have to admit to having been mistaken. Likes and dislikes have great influence, and it is not always easy to exclude such factors. As soon as one personally becomes the victim of an injustice, it is difficult to judge with an open mind. If in a conflict one of the parties committed an injustice, it is often difficult to assume that that party does not continue to commit injustice. Later events are then quickly explained to the disadvantage of that party, while suspicions rightly raised about the other party are not taken seriously.
In these times of war, everyone is familiar with examples of people who judge wrongly in this way. Their emotions are probably just as intense regarding perceived injustice as with respect to real injustice. This will happen. It is therefore important to thoroughly reconsider the ground of a judgment of first impulse, and to guard as much as possible against the influence of irrelevant factors. But this does not eliminate the possibility that the judgment is misguided. Yet, despite all of this, inner conviction and unreasoned decision-making remain55
valuable in questions of law. One who doubts too much can avoid the danger of erring because of being too emotionally involved, but in limp hesitation he will stop making decisions and his sense of justice will become dulled. No one benefits from such a fall into skepticism.
The problematic side of judging on the basis of a sense of justice will play a more prominent role for those who seek concrete law, such as a judge who fills a gap in the law, than for those who draft rules. The judge should bear in mind that his decision must also be seen as the consequence of a rule, because only in this way does he guard himself against the danger of being blinded by the particulars of the case. Nevertheless, binding the decision to the specific case makes the chance of influence by additional circumstances, such as pity for the weaker of the warring parties, 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. The term is misused, however. Sometimes the emotional element appears to play a role, while in reality other factors determine the judgment. The person making the judgment can identify so much with the result that he thinks is desirable, that he experiences a rejection of that result as injustice. But that is not a pure response to injustice. Let me illustrate with an example. A few years ago, there was a lawsuit that attracted a great deal of attention in legal circles. Someone had named an association as testamentary heir. But the association had allowed the term for their legal personality to expire and failed to arrange for an extension in time. As a result, the association lost its legal personality, and the question arose if it could nevertheless inherit. Our courts decided in three different instances that it could not. 56
I will not discuss the technical-legal issues that play a role in this matter here, but I refer to this case because Hijmans40 has argued that a sense of justice would dictate 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, you have the importance of respecting the testator’s word, the expression of his individual will. On the other hand, you have the importance of predictability and certainty, the very reason for the recognition requirement. I understand that Hijmans wants to uphold the testator’s word 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 is unjust — this can only be the result of being affected in one’s own scientific conviction.4157
This indicates that next to the intuitive element also the rational element plays a role in the search for the applicable legal norm: valuing interests, weighing values and testing the various means for achieving a particular goal. The rational element will be of almost exclusive significance to the legislator, the sense of justice receding into the background. The injustice that he aims to eliminate is less concrete and therefore has less impact; the injustice is more general; it is less emotional and further removed from his work. For the legislator, defining aims is the main consideration. When a rule is drawn up, it aims at a certain goal, aims to achieve a certain result. This end can in turn 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, in considering a case teleologically we can climb higher and higher and see each aim as a means to a higher aim.
We have to accept ultimate goals as a given, since they cannot be traced back any further. We affirm them. They flow from our philosophy of life, or rather: accepting them is the core of our philosophy of life. It may be of inestimable importance for those involved in shaping law to be clearly aware of these supreme goals, and from them determine the meaning of the secondary goals which constitute the values of life: nature, beauty, art and science. 58
This is not about creating a system. Life values cannot be neatly stored in their own place as in an herbarium. As Rickert states:
Science necessarily turns away from life.42Were one to draw up a system of values, it would have only a verbal significance. Even between those who consider themselves allies in their shared vision of the highest goals, there can still 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 coherent view of life values can be achieved.
Inseparable from the question of values is the question to what extent the community is called upon 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 valuation.
It is possible that the opposition individual-community, 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 opposition between the different world views, as the young German writer Radbruch43 claims. But for the law, this opposition 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 this contradiction is resolved (every human soul of infinite value on the one hand, and 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. Herein lies something clearly less subjective, making it easier to reach agreement between people who hold fundamentally different views. If, for example, it has been decided that the worker is entitled to receive care from the state in his old age, it is then a question of simple legal instrumentation whether this can best be accomplished through a state pension or through compulsory insurance. It seems exaggerated to turn such a difference in approach into something principled. It is exaggerated indeed, although it must be admitted, that with a detailed elaboration, fundamentally principled contradictions can rear their heads again. Such arrangements are so complex and can have such far-reaching consequences for other areas, that problems can always arise that can only be assessed from a certain principled point of view. The simpler the question, the less likely this will happen. Take, for example, the issue of whether the employer or the employee is entitled to compensation under the employment contract in the event of a strike. One who gives more weight to the principle pacta sunt servanda, i.e., underlines the ethical importance of a word once given (I won’t go back any further) and will be more inclined to give this right to the employer, than one for whom the economic wellbeing of the worker is not merely pursued in view of his moral uplift, but also as an end in itself.44 The question that remains once the principle is accepted that there is no right to compensation, whether the contractual relationship is broken or suspended, is a question of a legal-technical nature, the answer to which can be found by purely scientific reasoning. 59
This brief review of the ideal elements of law should make clear that it is impossible to speak of the idea of law without starting from a certain philosophy of life. It should also be recalled 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 of such values. They do not see in the Bible an indispensable means for strengthening and purifying their own inner life - a light on our way, also in the search for applicable law - but a complex of laws that are also directly applicable in our time and consider themselves unconditionally bound to the precepts of their church. The search for the treasure of law seems hopeless in the light of such opinions.45 How can we find the good and correct law for this time for our people when we are so divided among ourselves in fundamental life philosophies? If we turn out to be able to achieve anything in that direction, and not have to stew in our dissatisfaction, it is because legislators — more generally everyone involved in the formation of applicable law — cannot freely make law according to a personal legal view, but are bound by real data, which are objective facts for everyone in the same way.4660
§ 5 Finding law, real data
Until now we have been concerned with the ideal in law, namely with our conviction about what is right and its intuitive and rational elements. We must now realize, however, that a belief can only be thought of as law if it is aimed at implementation in a certain time for a certain people. That is the task of every thought about law. If implementation is not realized, the thought will ultimately not be a matter of law. With this we leave the ideal to return to the facts.4761
Eugen Huber recently wrote an important article about Die Realiën der Gesetzgebung.48 The writer is known among lawyers as the author 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. A legal order must decide on people’s interests when their needs and desires clash. That is the material in which the idea of law operates. Social relations are ever changing and in constant flux — the legislator constantly has new matters to regulate. In all of this, says Huber, nothing remains the same except the legislator’s dependence on matters to regulate. Just as the artist is bound to the material he works with, the marble or the wood, and the artist will and must work differently when making an engraving than with an etching, so too is the seeker of applicable law bound to reality.49 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 entrusted to the legislator. With regard to man: every legal order is bound by the dichotomies of healthy-ill and adult-underage, while also their intellectual and moral properties must be considered. Huber devotes important considerations to how this should be done. These are not directly relevant here, nor his discussion of facts related to aspects of life in society which ask for attention apart from their potential legal regulation, such as gender relations, consanguinity, local connection (nationality and racial idiosyncrasies) and economic cooperation. We also pass by his treatment of nature (climate, production method, etc.) without comment. What is particularly important to us is what Huber says about his third set of concrete data: tradition. A lawmaker is never faced with a tabula rasa in which he can engrave what he pleases. Every legal order is preceded by a previous legal order. A people without a legal order has yet to be found. 62
I will not follow Huber’s article exactly. In fact, I would like to go further than he and not only treat legislation as a fact, i.e., the positive law in force, but also include the legal convictions of a particular people as facts, since they are important for the possibility of implementing new legal provisions. But let it be clear that some of the thoughts which now follow are borrowed from his article.63
The law aims at implementation. It is thereby bound by the conditions created for implementation. It has been said that the legislator can do anything except turn a man into a woman. That was a foolish illusion. No legislature can turn an agricultural state into an industrial state. A legislator can indeed make legal rules to promote an existing tendency in that direction, but ultimately a lawmaker’s influence is of secondary importance. The legislator can never ignore the facts, and existing law is part of such data.
Many are so naive as to think that if only people were all sensible and of good will, it would be easy to create a perfect legal order. Many others who are generally not so naive, believe that too. For example, many believe that if only women could vote everything would change overnight. I am not opposed to women’s suffrage, but I fear that its introduction will bring nothing but disappointment to those who are of this mind.
All utopian thinking is based on this idea that sudden change is possible. Many people believe that if only the social democrats would come to power, society would quickly become completely different. I believe that even if there were 100 social democrats in the Netherlands in the Second Chamber of Parliament and 50 in the First,50 it would be a long time before only a part of the means of production were socialized. There is a continuity in the legal order that is never seriously ruptured. Revolutions may overthrow a state authority, yet the next day society will not look very different from the day before. Not only materially, but also in terms of legal rules. Change is perhaps most evident the day after the revolution, but what is brought about suddenly does not last, and after a few years the old returns. One can indeed point to certain periods in history for the great changes that took 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 shows how few of the radical changes lasted. Among other things, the whole of family law was to be overhauled: every inequality in inheritance was to be eliminated, children born in and out of wedlock would be treated in the same way by law, the institution of marriage could be annulled. Laws were passed to make all of this happen—but ten years later when the Code Civil was drafted51, most of it, if still on the books at all, was removed. The abolition of the priority of the firstborn in inheritance remained, the matrimonial law of the Code was certainly not identical to that of the ancien régime but was more similar to it than to the revolutionary legislation of the intervening period; the child born out of wedlock was returned to its dark legal position of the past. 64
The continuity of law is not only apparent from the relatively minor significance of revolutions for the development of law, but also from the adaptation that the existing law undergoes in all sorts of ways when new ideas break through. Old forms acquire new meaning by adapting them for new purposes. The saying “new bottles for new wine” has not been used in the context of formation of law. When a general understanding was reached that even if the person who caused the damage was not to blame, there could still be an obligation to pay compensation, with the question being how this could be implemented. By greatly broadening the concept of culpability and 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: through small changes, which apparently left most everything as it was. This is a small example from recent legal life. Do we not see the same happening on a larger scale in the relationship between employer and employee? It remains a service relationship, a contractual obligation to perform work for payment of a wage, but through inserting all kinds of elements, in many cases through 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 this development. Aren’t those cases I discussed in chapter 2 — where the law applied changed while the codified law remained the same — all examples of how new law is made by bending the existing law? The new, which would probably have been rejected if presented all at once, ready-made as new, is accepted if it enters slowly in this way.65
And then punishment. Have not both new punishment goals been established over the course of time in old forms, and new forms of punishment arisen while old goals remained the same? Change of principle with retention of form, and change of form with retention of principle, are both forms of adaptation. These are just a few examples. 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. When such entirely new law has been in force for a while, a great deal of the original, abolished law appears to have remained, and all kinds of newly received institutions take 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, but a medieval man would have been able to track down numerous indigenous elements in the apparently Roman law. And finally, I will be brief here, the continuity is apparent in the technique, in the legal concepts used in drafting and enforcing the applicable law. Are our legal concepts still not largely of Roman origin? These forms also have importance and must be taken into account by those who draft new law. 66
For all new law, the old law is a given that supplements, modifies, improves, but is never completely abolished. Consider, for example, respect for acquired rights, transitional law and the need to proceed partially with each reform so that the relationship has to be sorted out with the parts of the existing legal order that will not be abolished. The existence of continuity cannot be denied here.67
Herein lies the significance of history for the formation of law. There has been much controversy about this. Opposed to those who preach respect for the historical genesis and who wish to continue the historical line, are the neo-Kantians,52 who insist with undeviating consistency that there is no bridge between facts and legal norms, that it is impossible to infer what should be done from what happened in fact. Perhaps this is correct. Perhaps, but we are not concerned here with the extent to which 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 we give it normative meaning for ourselves. Not at issue here is whether such a thing can also occur in the life of a people, as anti-revolutionary political theory argues.53 It is clearly difficult to indicate how to recognize this working of God in history. The inner experience, which gives compelling or normative meaning to facts in personal life, cannot have such an effect regarding the collective life of a people.54
Be that as it may, something else is of prime importance with respect to the significance of historical development for the formation of law. In every rule of law two things come together: the idea 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. We are speaking about the concrete relationships between people. These are partly determined by the former law. It is not a question of whether we should break with the past to distance ourselves from events and persons, as Prof. Krabbe tells us, but whether we can break with the law of the past. Consider the question of what the most desirable form of government is for our country at this moment. Could one answer this question without considering 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 over centuries, never mind the biological data of sex drive and maternal love. One who thinks that he can create from nothing is deceiving himself. In truth, one can only mould what already exists. Attention must be paid to historical development when designing new law, not because the genesis in itself is important for the understanding of law, but because history forms part of the material that must be incorporated into law. 68
This is not a sermon for conservatism. It is true that history is often invoked for the sake of preserving the past. This does not have my sympathy. Whether or not the historical line is broken is determined by history itself and not by us. We do not know whether what we want to renew today will last or will turn out to have been a delusion of the day. We are usually not even able to see what new is in a legal provision desired at a given moment, and what is merely a continuation or revival of the past. This often only becomes clear afterwards. I too am usually a little suspicious when an appeal is made to the historical. This does not detract, however, from the fact that historical facts must be included in the information considered in the formation of law. This can lead to the legislator being forced to mould new views into a traditional form, preferring to seek adaptation in order to slowly prepare for the new, than to wipe out the old and replace it with fully developed new law. When he will have to proceed in this way and how far the obligation to adapt goes, cannot be said in general terms, any more than it is possible to determine in a general way how much influence nationality, for example, should be accorded to a law.5569
Finally, the power to have the rules obeyed is also a reality that must be considered in the formation of law. What this usually means in many cases at present is rules 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.
Here again is a difference 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. The success or failure of an attempt to convince the person of his guilt will not matter to his judgment. 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 an injustice. That is their business, not his. But no one who forms rules of law, be it the legislator or the judge,56 can in the long run be indifferent to whether his rules of law can actually be enforced as law. Whoever makes a legal decision, 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. The dualism in law forces us to take this element of power into account when seeking the norm. A legal rule aims at implementation. Law is not only a norm, but also a social phenomenon. A norm that is continuously violated with impunity, is ultimately no longer a rule of law. The enforceability of law today largely rests on the fact that rules are recognized as law by those who are subjected to them. That recognition may concern the rule itself, but also the legal competence of the authority that issues 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 take on the law of those for whom the rule is intended. This element will have differing importance depending on the nature of the arrangements or the actual power of the bodies making the arrangements. But it always plays a role. Even the strongest power is incapable of imposing a rule on a people that flagrantly contradicts existing beliefs. 70 By emphasizing the role of existing legal convictions,57 we take a position against two contrasting views. Just as with the question of the importance of legal history, we take a position both against those who attribute a normative meaning to legal convictions, and against those who completely deny their importance. The latter simply argue that what is good and what ought to be can never depend on the judgment of others— no matter how eminent the others may be. Stammler, for example, makes a comparison58 elsewhere with someone who, when asked if his watch is running properly, answers that it is in sync with the clock of the church tower. As common as such references may be, they lack meaning. Especially when one speaks of normative meaning, we would say. Nevertheless, existing legal convictions with respect to the idea of law can be an important fact which should not be disregarded in the search for the just rule. Appeals to existing opinions, popular convictions, and the like are common in cases where the law instructs the court to give a judgment in equity. It is certainly not possible to conclude from agreement with those convictions alone, however, that the decision is indeed fair. Nevertheless, the judge, who was instructed by the legislator to find a suitable rule for a particular case, is right when wondering whether his legal view has a chance of being accepted by those involved. If it does not, his ruling in the case that he is adjudicating will be binding but will not be law in a more general sense. 71 Secondly, we take a position against those who regard existing legal convictions themselves as norm-creating. Here we stumble upon the views Mr. Krabbe has been propagating this with strong conviction among lawyers in recent years . For him, rechtsbewustzijn 59 is the only source of law.72
In recent years, Dutch legal scholars have debated whether a constitution is still necessary, i.e., whether there should be a law that 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 rechtsbewustzijn from permeating legislation, and effectively binds the majority to a minority and subordinates the present to the past. Rechtsbewustzijn here apparently means the majority’s conviction about what law should be. If one analyses the arguments supporting his view, however, one does not find, as one might expect on the basis of the above, the argument that the rechtsbewustzijn of the majority of our people wishes that change in the Constitution. Krabbe has not investigated this, which would probably have produced a negative result, as the general public is remarkably indifferent to the issue. They seem to be the views of Krabbe himself. It is his own rechtsbewustzijn 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 rechtsbewustzijn. Following 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 very high value on the sense of justice. Being himself a man with a strong spontaneous conviction about what the law should be, he also wants the convictions of others to be respected. This seems to lead him to declare their opinion and, where it is not unanimous, that of the majority, as living law. The majority’s rechtbewustzijn must prevail. There are two objections to this. First: 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 law on its side. The term rechtsbewustzijn is used by Krabbe both for what we called a sense of justice earlier in this text and for the majority opinion about law. This is confusing. This leads to the contradictions I indicated above. The Leiden professor gives great weight to the ethical value of a sense of justice, but then exchanges it for the majority’s view of law. 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 beauty60 and argues that “just as we cannot call something ugly that we experience as beautiful in our inner self, we cannot call just or unjust whatever we want.” The comparison is dangerous, but since the author makes it himself, it is permitted to ask him if he thinks something is beautiful because a majority thinks so. Even if many people say that something is beautiful, this does not arouse a feeling of beauty. 73 The norm is not found in this way, not even in the law. Since a 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 in indifference. The group’s opinion, however, is not the ground of the legal judgment, and certainly not the only ground, but belongs to the matter to which the judgment relates.74
The relationship between the person who takes part in the process of law formation and the group to which his work relates is similar to the relationship between a party leader and his party. The leader sets the course and decides for himself its direction, but he must also know whether the party will allow itself to be steered in that direction. For this he has to know what is going on in the party and have a feeling about the extent to which he will be able to impose his will. But in the end his will is decisive. Today we have men like Dr. Kuyper and Mr. Troelstra, both of whom have this gift to a great degree. They force their parties to follow them, while the party has the impression that it chose the course. Even if the legislator uses different means than those of the party leader, he and others who participate in the formation of the law would do well to follow their example.
Whoever seeks a legal norm must be aware that such a rule must exert a power in social life. Just as the phenomenon of law cannot be described without some normative supplement, law as a norm cannot be found without taking into account the actual force it exerts.61
§ 6 Law and philosophy of life
The above provides an outline of the ideal and real data that play a role in finding law. Although the importance one assigns to the real data is a choice, they may not be completely disregarded. While morality expresses an absolute judgment, law always has something relative about it because it must apply inter-individually. One can see this relativity 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 an applicable law that everyone should recognize to some extent. To a certain extent. Differences remain upon which it is not possible to agree. A moment arrives where 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 unity on 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 for the law. There is only objective truth insofar as one is willing to accept fundamental values which can neither be proved rationally nor are evident via observation. Religious and empiricist philosophies of life are fundamentally opposite, to name just one principal contradistinction, and for neither is there a single law. Both have a different conception of law. Neither philosophy has the right to impose their law as the law on those who think differently. Each should be allowed to arrive at their own law as much possible. Respect for the convictions of others - this has always been the aim and virtue of truly liberal views. 62 75
One might ask if this does not lead to a weakening of conviction. If one recognizes that in law there is objective truth to be found only for those who share the same philosophy of life and worldview, does preaching that the convictions of others must be respected not mean giving up one’s own convictions? Is it not bloodless and lacking in spirit to see the relative in every view? Has there ever been a legal belief that is generally accepted and become a guideline for action which posited from the outset that another legal belief might also be correct? These questions are justified, especially in the face of a great deal of soft liberal philosophy of law. Singing the praises of scepticism or casting doubt on the certainty of beliefs is the least of our aims. One who has struggled to find truth and has experienced finding it as more inspiring than the efforts to find it, 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 dream of making any compromises about it. But he also does not know what would give him the right to force others to live his truth. We do not intend to leave the decision about what is true to the future, like Lessing’s Nathan.63 We must make a choice and we do. But if another has chosen otherwise, we may try to persuade him, but we have no right to impose our own choice on him. And then, with respect to the choices that play a role in law, they are often so subjective that even if agreement has been reached on fundamental points, the parties can always later diverge again in the elaboration. The law cannot be found simply by deducing a set of rules from a fundamental truth. Relationships are far too complicated for that. 76
No objective truth can be established about the law. And yet there is a need to determine what the 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 specific act. Abuse of the power relations created by law can only be prevented if the authority of those in power is strictly circumscribed. Uncertainty about the law leads to arbitrariness and weakens decisive action — one knows not how far one can go. The law requires formulation, that is, legislation. Just as a ruler imposes his will on a people, so is law imposed as the command of a certain person vested with authority. That 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 we can count on each other. But also with respect to the big questions, where opposing views clash, one legal conviction against another, there is a need for decision by an authority. There must be unity, if only for the sake of appearance. This sometimes leads to the imposition of a view, but in the vast majority of cases it leads to a compromise, especially in today’s parliamentary states where legislation is passed through representative bodies consisting of many members. 77
Struggle may be necessary, but at some point, peace must come and this can only be realized if both sides are willing to compromise. The school struggle illustrates this. One can respect the strength with which the right-wing64 parties have resisted what they perceived as injustice, but now the moment has come for one more concession, and the unfulfilled wishes must be stored for later. Not because one is convinced, nor because one could not have gotten what was asked for under the prevailing popular 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 wish for no more changes. The importance of the peace is then ultimately considered greater than the loss suffered by the concession.78
But, as long as that satisfaction has not been had, every time a majority imposes its view of law on a minority, those whose legal beliefs are not written in law will experience a rift between the law as it ought to be and the codified law that is. The abstract formulation of rules that the legislator uses, and of necessity must use, widens this gap. This is true not just for one or other party, or one or other view, but for everyone. It is impossible to do justice to the rich multiplicity of life in an abstraction. In ninety-nine out of a hundred cases a legal provision may be sufficient, but in the hundredth case it leads to injustice. And yet, the statutory provision must also be applied and complied with in that case. The formulation is inflexible, unchanging, but life is constantly changing and with it the law. For one applying the law, it may look as if what he considers the law to be is merely a matter of personal conviction, a wish regarding the law, and a critique of its content means that he is holding on to the principle that the law and the statute are the same.
Yet it is possible that the person to whom the law is applied, or the judge who applies the law, experiences it as an injustice, not only as something that should not be the law, but also is not the law. Applicable law necessarily includes a should. A separation cannot be made between the law that should be applied to a particular case at a given moment and the law that applies to that relationship in general. One can speak of desired law only if one means law for somewhere in a distant future. If one claims that a certain rule ought to be law at a certain moment, then one claims that that rule is applicable law, the norm for that concrete relationship. That we are not talking about merely a question of desired law but instead of actual law becomes apparent when the legislator opens the dam a little, leaving the judge or others involved free. That which is thought to be the actual law can then flow in. It may be that the law erected dykes that prevent the courts from letting the flow find its way, but through bending the law and interpretation legal convictions penetrate into the application of the law, and it is often only a matter of time before that law is overturned. The extent to which this is allowed and the extent to which judges and administrative bodies must respect the law in their search for applicable law cannot be answered here.79
Just two comments. First of all, it is important that judges respect the assessments of the legislator, even in situations in which a statute instructs them to find the law themselves. The existing law belongs to the material they must include in their deliberations. Further, and related to this, it is undesirable for judges or administrators to be left free regarding questions directly related to fundamental contradictions in public opinion. 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 and to respect everyone’s convictions, while such questions can only be answered from a certain point of view, which could be called partial, provided it is not intended in an unfavorable sense. The judge’s own conviction will generally color his statements to some degree in shade or nuance, but in such contradictions he must clearly show his color. Any solution by law is a priori better than no solution in such matters, even if it means that some particular philosophy of life is pushed aside.80
Statute law itself is important. Order and security require obedience to the codified law. Whoever feels that the decision in the law is not the right one, who feels offended in his legal conviction, must still obey the codified law. Obedience does have its limits, though. The law does not represent the highest value in life. The tragic conflict between following the applicable law and living according to one’s own legal conviction can become so pronounced that the solution can only be found in one’s own conscience.
Unconditional obedience of the law cannot be expected. The Latin proverb Summum jus summa injuria 65 is certainly true in the sense Stammler gave it: law as the supreme law is the greatest injustice. What I am not allowed to and cannot do in good conscience, I will not do simply because a statute demands it. People will obey God more than they will men. If this kind of resistance becomes general, it can lead to revolution. Revolution can never be justified by codified law: codified law presupposes and must presume that obedience to it 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.81
One must not assume all too quickly that such a conflict exists, however. The truth is that we must all accept rules that count as law, while we do not recognize them as law. Our philosophies of life are simply too varied, and our intuitively accepted values and ideals too widely divergent, for a person to be able to achieve exactly what he would wish for, even if the deficiencies of our laws and the slow pace of the law-making process could be overcome. One who believes that the law should be fundamentally reformed would do better to try to instil one’s own convictions in others than to try to change the law to conform to his wishes. He would only achieve something cosmetic and visit injustice upon dissenters. It is better to fight for one’s own ideals and values than to try to impose legal rules on others. A victory in a battle for ideals will certainly eventually permeate the law. At the same time, it is important not to lose sight of one’s own ideals when taking part in the formation of law. It is understandable if one is hesitant to bring out delicate personal values such as religious beliefs and prefers to keep them to oneself. However, if one thinks that that such convictions should not be discussed in society, and that they should be ignored in the formation of the law, this will inevitably damage the convictions themselves. One who believes that convictions about law and about life can be separated damages both. He distorts his legal convictions by systematically avoiding going back to his highest value and giving higher priority to another value that is less important to him, such as the happiness of the greatest number of people.￼ He 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 used as ideology.
Law and philosophy of life are very closely related. There is truth to be found in law only when the same philosophy of life is shared. What we recognize as law is always colored by our ideals. 82
Today there is a cry for new law. The production of laws is fabulous.66 However, demands increase as they are fulfilled. Many people call for a new legal order, a reform of society as a whole. They think that when reform is completed there will be peace among people, that beauty will be revived and possibly religion too. They forget that the legal order is not primary. The question of whether a particular legal order is worth pursuing ultimately depends on whether it can be tested against the highest value that we recognize 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 religiosity67 can lift us out of today’s miserably fragmented culture. If that is given to us, then a new lifestyle will also be found for state and society, for business, labor and art. Without it, all attempts to develop such a new lifestyle are doomed to fail. Only then will it be possible to fashion a better law together, a law in which the rift between what applies and what should apply will not be as great as it is now.
A new religiosity — not a new faith. Whoever has comprehended anything of the truth revealed in the Gospel knows that Christianity contains inexhaustible riches.
May that revival be given to us.
* Augustinus, Aurelius. Aurelii Augustini Opera. 4,1: De doctrina Christiana ; De vera religione. Turnholti: Brepols, 1954.
* Borst, Wim. ‘Three Intuitive Concepts in Scholten’s Oeuvre: “Rechtsgevoel”, “Rechtsbewustzijn” and Conscience’. DPSP Annual Volume III (2023 2022).
* Bülow, Oskar, and Johann Braun. Gesetz und Richteramt (1885) ; Ueber das Verhältnis der Rechtsprechung zum Gesetzesrecht (1906). Berlin: BWV, Berliner Wissenschafts-Verlag, 2003.
* Chantepie de la Saussaye, P. D, and K. H Rossingh. Het christelijk leven. Haarlem: F. Bohn, 1922.
* Cicero, Marcus Tullius, and Walter Miller. Cicero De Officiis, with an English Translation. Cambridge, Mass.: Harvard University Press, 1961.
* Durkheim, Émile. The Division of Labor in Society. Translated by George Simpson. New York: Free Press, 1984.
* Groenenboom, Harry. ‘Paul Scholten’s View on the Judicial Decision and the Danger of Bottomless Subjectivism’. DPSP Annual Volume III (2023 2022).
* Hamaker, Hendrik Jacob, Cornelis Willem Star Busmann, and Willem Leonard Pieter Arnold Molengraaff. Verspreide Geschriften ... Verzameld Door Mr. W.L.P.A. Molengraaff En Mr. C.W. Star Busmann. Haarlem, 1911, etc, 1911.
* Hijmans, I. Henri. De tweesprong der rechtswetenschap. Zwolle: W.E.J. Tjeenk Willink, 1933.
* Huber, Eugen. ‘Über Die Realien Der Gesetzgebung’. Zeitschrift Für Rechtsphilosophie in Lehre Und Praxis., 1914, 37–94.
* Huppes-Cluysenaer, Liesbeth, Marjanne Termorshuizen-Arts, Cassandra Steer, and Paul Scholten. ‘General Method of Private Law, English Translation of the First Chapter of the General Volume of the Asser-Serie on Dutch Civil Law, Written by Paul Scholten’. Edited by L Huppes-Cluysenaer. DPSP Annual, II: New Translations, Volume 1 (2020): 306–434.
* Jansen, Corjo. ‘Het 100-jarige bestaan van de Vereeniging voor Wijsbegeerte des Rechts’. Netherlands Journal of Legal Philosophy 48, no. 2 (2019): 165–84.
* Jourdan, A. ‘Politieke En Culturele Transfers in Een Tijd van Revolutie: Nederland 1795-1805’. BMGN - Low Countries Historical Review 124, no. 4 (1 January 2009): 559–79.
* Kelsen, Hans. The Natural-Law Doctrine before the Tribunal of Science. Salt Lake City, Utah: University of Utah Press, 1949.
* Krabbe, H. Die lehre der rechtssouveränität. Beitrag zur staatslehre,. Groningen: J.B. Wolters, 1906.
* Leendertz, A.C. ‘De grond van het overheidsgezag in de antirevolutionaire staatsleer’. De Bussy, 1911.
* Lessing, Gotthold Ephraim, and W Taylor. Nathan the Wise: A Dramatic Poem, 1953.
* Lokin, Jan. ‘Die Rezeption Des Code Civil in Den Nördlichen Niederlanden’. Zeitschrift Fur Europaisches Privatrecht 2004, no. 4 (2004): 932–46.
* Menzel, Ado. Naturrecht und Soziologie. Wien [etc.: Hof-Buchdruckerei, 1912.
* Montesquieu, Charles de Secondat. De l’esprit des lois. Edited by Laurent Versini. Vol. I and II. Paris: Gallimard, 1995.
* Novalis, Ria van Hengel, and Arnold Heumakers. De blauwe bloem. Amsterdam: Athenaeum-Polak & Van Gennep, 2006.
* Novalis, and Gerhard Schulz. Novalis Werke. München: C.H. Beck, 1969.
* Radbruch, Gustav. Grundzüge der Rechtsphilosophie, von Gustav Radbruch, ... Leipzig: Quelle und Meyer, 1914.
* Rickert, Heinrich. Die Philosophie des Lebens, Darstellung und Kritik der philosophischen Modeströmungen unserer Zeit, von Heinrich Rickert. Tübingen: J.C.B. Mohr, 1920.
* Savornin Lohman, Bonifacius Christiaan de, and A.C Leendertz. De grond van het overheidsgezag in de antirevolutionaire staatsleer, door A.C. Leendertz. S.l.: s.n., 1912.
* Scheler, Max. Der Formalismus in der Ethik und die materiale Wertethik (mit besonderer Berücksichtigung der Ethik Immanuel Kants). Halle a.d.S.: Max Niemeyer, 1913.
* Scholten, Paul. ‘1. Kenmerken van Recht’. In Verzamelde Geschriften van Prof. Mr. Paul Scholten, I:1–119. Zwolle: Tjeenk Willink, 1949.
——. ‘3. Recht En Liefde’. In Verzamelde Geschriften van Prof. Mr. Paul Scholten, edited by G.J. Scholten, Y Scholten, and M.H. Bregstein, I:162–87. Tjeenk Willink, 1949.
——. ‘6. Recht En Billijkheid’. In Verzamelde Geschriften van Prof. Mr. Paul Scholten, edited by G.J. Scholten, Y Scholten, and M.H. Bregstein, I:225–81. Tjeenk Willink, 1949.
——. ‘7. Recht En Moraal’. In Verzamelde Geschriften van Prof. Mr. Paul Scholten, edited by G.J. Scholten, Y Scholten, and M.H. Bregstein, I:282–95. Tjeenk Willink, 1949.
——. ‘15. De Structuur Der Rechtswetenschap’. In Verzamelde Geschriften van Prof. Mr. Paul Scholten, I:432–70. Zwolle: Tjeenk Willink, 1949.
——. ‘17. Afscheidsrede’. In Verzamelde Geschriften van Prof. Mr. Paul Scholten, I:493–505. Zwolle: Tjeenk Willink, 1949.
——. ‘19. Krabbe’s Staatsidee’. In Verzamelde Geschriften van Prof. Mr. Paul Scholten, edited by G.J. Scholten, Y Scholten, and M.H. Bregstein, II:9–21. Tjeenk Willink, 1950.
——. ‘64. De Waarde van Het Romeinse Recht’. In Verzamelde Geschriften van Prof. Mr. Paul Scholten, edited by G.J. Scholten, Y Scholten, and M.H. Bregstein, III:170–89. Tjeenk Willink, 1951.
——. Algemeen Deel. Mr. C. Asser’s Handleiding tot de beoefening van het Nederlandsch Burgerlijk Recht 1. Zwolle: W.E.J. Tjeenk Willink, 1934.
Stammler, Rudolf. The Theory of Justice. New York: A.M. Kelley, 1969.
Vlugt, W. van der, Rijksuniversiteit te Leiden and Faculteit der Rechtsgeleerdheid. Mr. W. van der Vlugt’s Belangrijkste geschriften: ter eere van zijn zeventigsten verjaardag verzameld door de leidsche Faculteit der rechtsgeleerdheid., 1923.
Weber, Max. Politik als Beruf, 2020.
1Scholten here refers to 19th century legal positivism that arises in conjunction with the Civil Code that was introduced in the Netherlands in 1838 as a corollary to the process of unification and centralization resulting from the French Revolution, the Napoleonic occupation of the Netherlands (1795) and the new order in Europe after the Vienna Congress of 1814.
2Legislation was a new phenomenon in the new unitary state of the Netherlands. The General Provisions Act (Wet Algemene Bepalingen) was the law which regulated the new phenomenon “legislation”. The act was accepted in 1829, but only came into effect in 1838, the same year in which the Civil Code came into effect. In 1830 the separation between Belgium and the Netherlands was accepted by the great powers in Europe. The separation was not acknowledged by the Dutch King Willem I until 1839.
3Art 13 Wet Algemene Bepalingen (1838), still in force.
4This is an issue to theorize about, not a practical one. In practice, legislation has never worked that way. This is Scholten’s point. In 1948 (two years after Scholten’s death) there was such an enormous overload of case law in derogation from/addition to the codified law that it was decided to draft a new civil code.
5Scholten does not refer here to natural law, nor to the living law of sociology, but to legal rules, which are a necessary part of the enforcement of codified law, see block 5.
6Bülow and Braun, Gesetz und Richteramt (1885); Ueber das Verhältnis der Rechtsprechung zum Gesetzesrecht (1906).
7Les 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. See for a critical remark about this citation the appendix to General Method, annotation no 9.
8The article is written during World War I, in which the Netherlands could stay neutral. Corjo Jansen describes how the topicality of force majeureled 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 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 words force majeureone thinks that one is freed from all his obligations.” They even spoke of the reigning anarchy. Parties unilaterally terminated supply contracts without any justification. Banks refused credit promises, stating that time and circumstances did not permit fulfilment. Injustice supplanted the law and this phenomenon occurred in all aspects of life (trans. lhc).” Jansen, ‘Het 100-jarige bestaan van de Vereeniging voor Wijsbegeerte des Rechts’.
9Art. 307 Dutch Penal Code; this is about mistakes, like a nurse causing the death of a patient by administering the wrong medicine.
10Speaking of a law behind the law introduces a metaphysical/supra naturalistic perspective into Scholten’s work and not a sociological perspective.
11In 1915, the formulations have since been adapted.
12For a brief explanation of the constitutional discussion on private schools, see the biography of the paul scholten on the website
13The article Law and the Philosophy of Lawwas first published in 1915. In 1917 Parliament accepted the financing of denominational education on an equal foot with public education, Article 23 of the Constitution. In this same year, universal male suffrage was accepted. In 1919 universal female suffrage was accepted.
14In 1956 the legal incapacity of women was abolished.
15The expression living lawrefers to the sociological theory of Eugen Ehrlich. In the unfinished work 1. Kenmerken van Recht’., published posthumously , Scholten refers expressly to Ehrlich. In this first work and also in General MethodScholten uses the term law of realitywith a reference to Hijmans (blocks 468/9).
16This sentence is the prelude to chapter 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 purely factual 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.
18Rickert defended Verstehen as a 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 chapter 4 Scholten takes a closer look at sciences that work explicitly from a value perspective and in chapter 3 he focuses on the naturalistic, i.e., empirical social sciences and humanities that claim to be purely descriptive.
19Scholten uses the word naturalism in blocks 29, 72, 74 and 80. Today this term is primarily used to refer to a movement in literature and painting beginning at the end of the nineteenth century. In that period it also referred to a materialist movement in philosophy, acknowledging only the method of natural science as scientific. Today the latter is best indicated by the term empiricism. Data from the lemma naturalism in Wikipedia.
20Reference made by Paul Scholten to Hamaker, Busmann, and Molengraaff, Verspreide Geschriften.Verspreide Geschriften VI, blz. 78.
21At 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 one’s choices. He does so in this article by explicitly stating his choice.
22Scholten 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.
23The 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 truth value of the views of the two parties, as long as it doesn”t concern logical inconsistencies.
24In Scholten’s conception sociology is thus at its core a political science.
25An interview with Dooyeweerd, published online, shows how people used the term democrat in his youth to characterize a personal style.
26Menzel, 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.
27Tua res agitur in the original text.
28See 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
29In his farewell speech from 1946 (‘17. Afscheidsrede’.), Scholten indicated 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 necessary inadequacy of the applicable law and thus its changeable nature.
30Paul Scholten refers to the World War I here.
31Augustinus, Aurelii Augustini Opera. 4,1.Full quotation Noli foras ire, in te ipsum redi; in interiore homine habitat veritas. (do not desire to go out, but return within yourself. Truth dwells within man (trans. Lhc))
32That 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.
33Scholten makes a distinction here that corresponds to the distinction that Weber will make in 1919 in Politik als Beruf. between a Gesinnungsethik and an Erfolgsethik. and which was made in 1913 by Scheler, Der Formalismus in der Ethik und die materiale Wertethik.
34 Scholten develops the concept ‘sense of justice” as a political 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 “Huppes-Cluysenaer et al., ‘General Method’. block 57/58. Duguit was inspired by the work of Durkheim, his collegue at the University of Bordeaux.
35Joseph 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 Henriette and Joseph began an affair 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 newspaper had obtained a letter belonging to Joseph 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 (the journalist) 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 the 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.32Browning 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 wikipedia, lemma Caillaux.
36Josef 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 (https://en.wikipedia.org/wiki/Second_Boer_War) 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.Data from wikipedia, lemma Jopie Fourie.
37Scholten here refers to page 89 ffof Chantepie de la Saussaye and Rossingh, 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 truthwho 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.
38During 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 andGlauben und Liebein 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, theGeistliche Liederand 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, suggestions for essays or fragments, excerpts and comments 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 the Theoretical Work, Fragmente und Studien 1799-1800, p. 561. To give an impression of the type of text, I give below an anthology from Novalis Werke,pages 560 to 561 (no 182-190), in which I do not venture a translation. Since in 1917 Scholten, like Novalis, deals extensively with Fichte in the article‘3. Recht En Liefde’., I assume that Scholten worked in this period from an inspiration by Novalis. Data mainly taken from Heumaker’s afterword in Novalis, Hengel, and Heumakers, De blauwe bloem.
182. Die Moral ist recht verstanden das eigentliche Lebenselement des Menschen. Sie ist innig eins mit der Gottesfurcht. Unser reiner sittlicher Wille ist Gottes Willen. Indem wir seinen Willen erfüllen, erheitern und erweitern wir unser eignes Dasein und es ist, als hätten wir nur unsrer selbst willen, aus innerer Natur so gehandelt. Die Sünde ist allerdings das eigentliche Übel in der Welt. Alles Ungemach kommt von ihr her. Wer die Sünde versteht, versteht die Tugend und das Christentum, sich selbst und die Welt. Ohne dies Verständnis kann man sich Christi Verdienst nicht zu eigen machen - man hat keinen Teil an dieser zweiten höhern Schöpfung. (…)
185. (…) Die Kunst, auf eine angenehme Art zu befremden, einen Gegenstand fremd zu machen und doch bekannt und anziehend, das ist die romantische Poetik. Es gibt einen speziellen Sinn für Poesie - eine poetische Stimmung in uns. Die Poesie ist durchaus personell und darum unbeschreiblich und indefinissabel. Wer es nicht unmittelbar weiß und fühlt was Poesie ist, dem läβt sich kein Begriff davon beibringen. Poesie ist Poesie. Von Rede (Sprach)kunst himmelweit verschieden.
186. In Fichtens Moral sind die richtigsten Ansichten der Moral. Die Moral sagt schlechthin nichts Bestimmtes - sie ist das Gewissen - eine bloβe Richterin ohne Gesetz. Sie gebietet unmittelbar, aber immer einzeln. Sie ist durchaus Entschlossenheit. Richtige Vorstellung vom Gewissen. Gesetze sind der Moral durchaus entgegen.
187. Der Sinn für Poesie hat viel mit dem Sinn für Mystizism gemein. Er ist der Sinn für das Eigentümliche, Personelle, Unbekannte, Geheimnisvolle, zu Offenbarende, das Notwendigzufällige. Er stellt das Undarstellbare dar. Er sieht das Unsichtbare, fühlt das Unfühlbare etc. (…). Der Dichter ordnet, vereinigt, wählt, erfindet - und es ist ihm selbst unbegreiflich, warum gerade so und nicht anders.
188. Das Gefühl der Gesundheit, des Wohlbefindens, der Zufriedenheit ist durchaus persönlich, zufällig und hängt nur indirekt von äuβern Umständen ab. Daher alles Suchen es nicht hervorbringt und vielleicht liegt hier der reale Grund aller mythologischen Personifikationen. (…)
190. Krankheiten besonders langwierige, sind Lehrjahre der Lebenskunst und der Gemütsbildung. Man muβ sie durch tägliche Bemerkungen zu benützen suchen. Ist denn nicht das Leben des gebildeten Menschen eine beständige Aufforderung zum Lernen? Der gebildete Mensch lebt durchaus für die Zukunft. Sein Leben ist Kampf; seine Erhaltung und sein Zweck Wissenschaft und Kunst. Je mehr man lernt nicht mehr in Augenblicken, sondem in Jahren u. so w. zu leben, desto edler wird man. Die hastige Unruh, das kleinliche Treiben des Geistes geht in groβe, ruhige, einfache und vielumfassende Tätigkeit über und die herrliche Geduld findet sich ein. Immer triumphierender wird Religion und Sittlichkeit diese Grundfesten unsers Daseins. Jede Bedrängnis der Natur ist eine Erinnerung höherer Heimat, einer höhern, verwandtern Natur.
39It is important to recall here that Scholten distinguishes two elements in the sense of justice, the moral and the legal. Here the sense of justice seems to refer to that legal element considered in itself.
40This is probably a reference to Hijmans, De tweesprong der rechtswetenschap., 60.
41The terms technical and scientific refer to the sociological-functional approach introduced in the next paragraph.
42Die Wissenschaft ist notwendig wider das Leben”. The context of that quote is: “However, it is certainly not certain that theoretical behavior is the most valuable of all and that science is accordingly the highest cultural asset or even the highest asset in general. Perhaps it is an “objection” to science that it removes man so far from living and immediately real life. The adherents of philosophy of life are hostile not only to science but to allculture because of their remoteness from life. Whether they are right is not our concern in this context; scientifically, however, they can never be “right”. Their objection to science cannot be scientific. All science is necessarily something contrary to the bare life in its immediate reality. Whoever seeks truth does not restrict itself to living life, regardless of whether he pursues intuitive metaphysics of life or some other science.”(trans. lhc: 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 aller Kultur wegen ihrer Lebensferne feindlich gesinnt. Aber ob sie recht haben, geht uns in diesem Zusammenhange nichts an, denn wissenschaftlich können 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 article, Scholten deviates from Rickert in that he rejects Rickert’s 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 life values that guide the interpretation and selection of research materials. 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, there is no such thing as a historical process of progression of knowledge that automatically creates more social unity, because people will continue to differ in their goals and valuations. It is necessary to bring unity to society in concrete issues by reaching beyond one’s own views and entering compromises. Seeking unity is an ethical task for Scholten, which is not interchangeable with a belief in rational progress. Insight into the brokenness of the world and the limited possibilities of people makes it possible for people to find each other in concrete solutions.
43In a footnote Scholten refers to Radbruch, Grundzüge der Rechtsphilosophie, von Gustav Radbruch, ...
44Scholten is referring here to the fundamental contradiction between a Gesinnungsethische position and an Erfolgethische position, see endnote 24.
45Scholten seems to refer here to the orthodox breakaway from the Dutch Reformed Church of 1834. Scholten belonged to the group of Ethical Theologians, which fought against orthodox views as well as liberal views in the Dutch Reformed Church. See also: Groenenboom, ‘Bottomless Subjectivism’.
46In Scholten’s original text: “reëele gegevens die uit den aard der zaak voor ieder hetzelfde zijn”. This indicates facts which are not put up for discussion in society at that moment, which therefore can be called “evidently true”. The 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.
47Scholten uses the concept of fact as it plays a role in legal proceedings, i.e., related to specific practical problems: that which the parties or the court actually assume.
48Scholten here gives the reference Huber, ‘Über Die Realien Der Gesetzgebung’., I, 39.
49Scholten 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.
50From 1888 to 1956, the number of seats in the Second Chamber of Parliament was 100 and in the First 50.
51Scholten seems to refer here to the Enlightenment period in the Netherlands of the Bataafse Republiek (1795 until 1805). In 1806 the Northern Netherlands were transformed into the Kingdom of Holland, a satellite state of France with Napoleon’s brother as king. The Northern Netherlands were formally still entitled then to control their own legislation, which resulted in a Dutch Code Civil, in force from 1809 until 1810, when the Northern Netherlands were fully annexed by France. Data from Lokin, ‘Die Rezeption Des Code Civil in Den Nördlichen Niederlanden’. The third chapter of Scholten’s famous Scholten, Algemeen Deel.(of which only the first chapter is translated into English) treats the history of the Civil Code. In it (block 632) Scholten spends very little attention to the enlightenment ideas of the period 1795 until 1805. More on these ideas can be found (only in Dutch) in Jourdan, ‘Politieke En Culturele Transfers in Een Tijd van Revolutie’.
52Scholten states in a footnote that for the Netherlands in this regard, Mr. Van Vlugt must be mentioned. For his writings, see Vlugt and Faculteit der Rechtsgeleerdheid, Mr. W. van der Vlugt’s Belangrijkste geschriften. (Mr. W. van der Vlugt’s Most Important Writings.)
53Scholten 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.
54The 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.
55Scholten seems to refer here to what he wrote about Huber in block 61.
56In 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 (block 51).
57Scholten speaks in block 69 of “een volk en zijn overtuigingen ( a people and its beliefs) , in block 70 of the “rechtsovertuigingen der menigte” (legal convictions/beliefs of the crowd), also of “heersende meningen” (prevailing views/opinions). What follows shows that Scholten thinks that even if the law conflicts with the convictions of a small minority, it will lose some of its legitimacy. That is why the translators opted for the translation “existing beliefs/convictions or opinions”.
58It has not been possible to find out where this is in Stammler’s work.
59See the fine article by Wim Borst ‘Three Intuitive Concepts in Scholten’s Oeuvre’. for a discussion about the difficulty of describing the concept rechtsbewustzijn and demarcating it from the concepts of rechtsgevoel and geweten. The following can be added to his analysis. While the terms rechtsgevoel(sense of justice) and geweten (conscience) are easy to translate into English, this is unsatisfactory with regard to rechtsbewustzijnbecause the English translation of it withconsciousness/awarenesshas the connotations of feeling, selfreflectionand cognitionand thus can shift in different contexts between empirical, moral and rational interpretations. It was therefore decided to leave the concept untranslated and to treat it as a sensitizing concept that indicates the core of Scholten’s theory.
Scholten’s concept rechtsbewustzijn
is of central importance to understanding Scholten’s “law beyond codified law” (block 3). The question is: how do we know those rules, how do we become aware of them? According to Scholten we not only have a conscience and distinguish right from wrong and not only develop a sense of justice about what is good and necessary for society and should be protected by the authorities, but also know what it means to be part of a moral community and to protect each other in the great good that everyone can live according to their own moral standards. Scholten is concerned with how we should deal with the fact that conscience in a collective does not speak as it does in the inner self of a person (block 66), but is expressed in many conflicts. The meaning of the law is to bridge those conflicts as much as possible. Rechtsbewustzijn
refers to the attitude of searching for these bridges and the experience that comes with it. With this view, Scholten is diametrically opposed to Krabbe, who assumes that there is such a thing as a collective conscience. Scholten can agree with Krabbe that sometimes the opinion of the majority must be followed when seeking law. Law cannot exist without the use of power. But according to Scholten it should be clear that such formal rules of law cannot be accepted as substantial law by the minority ( blocks 48 and 77) and that this weakens the law of a country. Especially in the discussion with Krabbe’s view regarding rechtsbewustzijn
, the English translation of the concept of rechtsbewustzijn
leads to much confusion. In retrospect, it is clear that the translation of rechtsbewustzijn
by conscience of law
used in Chapter 27 of ‘General Method’. does not do justice to Scholten's use of the concept of rechtsbewustzijn
, not even when supplemented into collective conscience of law
. Neither collective sense of justice or law
would have done. The versions supplemented with collective
would refer to Krabbe’s view, the versions without this supplementation, conscience of law/justice
or sense of law/justice
would be purely moral and no longer refer to the experience that comes with the search for the non-codified law in society.
60Scholten is undoubtedly referring here to Krabbe, Die lehre der rechtssouveränität. More in Scholten, ‘19. Krabbe’s Staatsidee’.
61It 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 – vis-a-vis its own supporters and as well as other groups.
62Scholten speaks of true open-mindedness (ware vrijzinnigheid), which raises the question of what false open-mindedness 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 a distinction between two forms of open-mindedness. 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 that reason and experience are more important than doctrinal authority.The last sentence shows that this view derives from reason and perception a criterion of truth. The article Law and Philosophy of Lifeshows that Scholten rejects such a positivist position. Block 59 of this article shows that Scholten blames such a positivist attitude on the orthodoxy of scripture and church. Based on the context in which the words “ware vrijzinnigheid” are used, the conclusion can be drawn that according to Scholten a distinction between true and false open-mindedness can also be made for the liberal faction of Protestantism. Scholten refers then for false open-mindedness to the faction in which 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.
63Lessing’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 he 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.
64The school struggle was about whether public schools 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 public schools 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 for the school system 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 regarding 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 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.
65Cicero and Miller, Cicero De Officiis, with an English Translation.,1. 10. 33.;Stammler, The Theory of Justice., chapter 1, 3.
66The governing period of Pierson (1897-1901) is regarded as the period of the start of social justice: Water Management Act 1900, Compulsory Education Act 1900, Housing Act 1900, Health Act 1901, Accident Act 1901, Children Act 1901, Militia Act 1901. Data from parlement.com on kabinet Pierson 1897-1901.
67New religiosity seems to align with Novalis’s aspirations. See endnote 29. With what is stated in no. 182 about sin, Novalis focuses on a discussion that is often avoided as much as possible because it is such a bone of contention. This also seems to indicate the close connection this discussion has with the problem of finding applicable law.