Keywords
“rechtsgevoel"; "rechtsbewustzijn"; conscience; intuition; sense of justice; psychology-oriented concepts in Paul Scholten's philosophy of law; philosophy of life.Abstract
This essay presents an inquiry into the meaning and function of three psychology-oriented concepts in Paul Scholten’s philosophy of law: “rechtsgevoel”, “rechtsbewustzijn” and conscience. In Scholten, “rechtsgevoel”, “rechtsbewustzijn” and conscience all belong to man’s intuition, which is taken in a rather broad sense as: the irrational side of our spiritual life.
• “Rechtsgevoel” refers to the emotional side of our spiritual life. It is the spontaneous, intuitively born conviction about the actions of others. Above all it speaks when it disapproves of these acts, rejects them as ethically inferior. It doesn’t restrict itself to mere ethical disapproval but goes hand in hand with the conviction: this shouldn’t have happened; the authorities should have prevented it. It expresses a pain we feel and a reaction we desire.
• “Rechtsbewustzijn” is used in two meanings. In Scholten’s first essay (1915), it refers to public opinion as a “real” factor in the finding of law (= the empirical meaning of “rechts- bewustzijn”). In subsequent essays it is (also) presented as a reflection on “rechtsgevoel”. Taken in the latter sense, in “rechtsbewustzijn” elements of observation, of logical assessment and finally of ethical choice are included. It is an inner conviction, it forces us, we feel as if it is imposed on us and are not allowed to avoid it – yet at the same time it is bound to what people, our fellow citizens, feel and think.
• Conscience refers to the moral judgment regarding our own acts, that finds its ground only in the inmost soul. It is an essential part of our human existence and plays a role in all (moral) decisions we humans take – judicial decisions included, even though such decisions, by their very nature, always regard others’ acts.
In decisions about law always all these intuitive elements are involved. Together with reasoning these intuitive elements constitute the ideal elements in the finding of law. Besides these ideal elements Scholten discerns a number of real elements, viz. man, nature and tradition, the history of law and the enforceability of applicable law. The latter encompasses “rechtsbewustzijn” in its empirical meaning. All these elements, ideal and real, are involved in each decision on law, albeit in different degrees, depending on the kind of decision, viz. judicial or legislatorial.
1 Introduction; the essay Law and Philosophy of Life (1915)
The Digital Paul Scholten Project (DPSP, 2010) was aimed at making Paul Scholten's work on legal philosophy available in open access and translating his most famous text into English.1 From 2020 on the scope for producing English translations has broadened to the other texts, which are collected in four volumes Verzamelde Geschriften (Collected Writings). An outstanding feature of the first2 of these volumes, containing his philosophical work, is that, although Scholten was primarily a professor of law, most of these essays originally were not aimed at an audience of legal professionals. Only four out of eighteen essays were aimed at such a legal audience. The other ones were aimed at broader audiences, like for example a conference of theologians or students, readers of Christian journals (part of which were founded by Scholten himself together with fellow Christian scholars)3 or the general community of academics, like the University of Amsterdam, or the Royal Dutch Academy of Sciences (KNAW).4 Another important feature is that these Collected Writings are not a systematic, comprehensive study, written "aus einem Guss", but a compilation of separate papers written and lectures delivered over a period of forty years.5 That brings with it that similar subjects and arguments are scattered across many essays in Volume I of Scholten's Collected Writings (and to a lesser degree also in Volume II). More or less similar statements are repeated many times. That raises the question whether these statements contain similar positions or perhaps show signs of altered positions - which, of course, is a matter of interpretation. Scholten himself never explicitly makes mention of an altered view on any subject. Somewhere he writes:
Thorbecke also was human and so, fortunately, not always consistent in his judgments. (trans. WB)6
Presumably this also applies to Scholten himself. Scholten’s first essay on legal philosophy appeared in 1915 and was entitled Recht en Levensbeschouwing. Recently it is translated into English: Law and Philosophy of Life.7 The essay can be regarded as a program for Scholten's lifelong laboring on the relation between law and his own philosophy of life, which he adopted about 1913 (described by Meijers as "the great turnabout that from 1913 occurred in Scholten's spiritual life")8 and emphatically characterizes in his valedictory speech as a "positively-Christian reformational conviction".9 It opens with a kind of clarion call:
The old notion that all law can be found in codified laws, and that law and codified law are synonymous, is no longer accepted today. (LPL, block 1)10
This legal positivism was the dominant view in the nineteenth century, the age of the large codifications. The fight against it is an ever-recurring theme in Scholten's oeuvre. With a number of arguments Scholten fights this position and rejects it. One of these is the fact that in legislation there are many open norms. Therefore, anyone who interprets and/or applies the law needs - and does use - a standard which is not given in the codified law itself:
There is an ought — a legal ought — which is not written down in the codified law itself. (LPL, block 5)
and so we
(…) must recognize the existence of some body of law next to or behind the law (…) In every legal decision, the codified law is always connected in some way with the law behind it. (LPL, block 8)
Moreover,
(…) 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. (LPL, block 16)
This state of affairs has led some to the position that:
(…) the law is then no longer the norm that commands obedience, but a summing-up of what happens in reality. (LPL, block 25)
In the extreme, this position has led to a (purely) sociological view on law, which
(…) sees law as a phenomenon, as a relationship between people, through which one exercises power over the other. (…) the law describes something that happens. (…) legal science is a part of sociology that describes the legal aspect of human society. (LPL, block 26)
Scholten opposes this view on the ground that it implies a
(…) denial of the normative nature of law, which can also be found in the works of later sociologists, and which can be characterized as empiricism in legal science. (LPL, block 29)
and subsequently rejects this naturalism as a philosophy of life. As a science of law, Scholten opposes the one-sidedness of it, while acknowledging the usefulness of a description of facts, customs and legal convictions. 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. (…) The normative cannot be driven from the law; if one sends it out the front door, it just enters again from the back. (LPL, block 41)
He doesn't rush to the other extreme: a purely normative approach, abstracting from social facts.
It is not the case (…) 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. (LPL, block 28)
This not only counts for the judge, but also for the legislator.
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. (LPL, block 42)
(…) the legislator has the same kind of task as the judge (LPL, block 44)
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. (LPL, block 42)
This is the central question Scholten sets out to answer in his 1915 essay. To put it briefly, Scholten unfolds a mixed view, containing both ideal and real factors. The ideal factors are intuition (split up into conscience and "rechtsgevoel"), and reason (i.e., rational thinking and reasoning). The real factors are man, nature, tradition, the history of law and the enforceability of applicable law. The latter encompasses "rechtsbewustzijn"11 in its social-empirical meaning, i.e., "rechtsbewustzijn" in the sense of public opinion. The ideal factors then seem to relate to the actor (the decision maker) himself, his inner experience, the real factors seem to relate to things or states of affairs outside of the actor. In a 1924 letter from Indonesia to his eldest, then 15-year-old son, he explains this as follows:
(…) in every human being lives the consciousness of a judgment about what ought, about right and wrong (conscience). This is the one starting point. And the other one is: in society rules about that ought develop that require application in certain cases. (…) Between the inner element (conscience) and the outer element (the rule) collision is possible.12 [translation and emphasis added, WB]
In subsequent essays this pair of concepts, viz. ideal and real factors in the finding of law, is not found again, at least not expressly. Yet in my opinion this merely concerns the labels attached to the concepts. The concepts themselves, as a framework of Scholten's thinking on (the) finding of) law, from 1915 onwards always stayed the same.
However, it should be added that in subsequent essays Scholten deals with the concept of "rechtsbewustzijn" not only as one of the real factors, but also in an ideal sense. Therefore in § 3 I will also consider the concept separately as one of the ideal factors in the finding of law.
The aim of the present essay is to explore and clarify the meaning and use of "rechtsgevoel", "rechtsbewustzijn" and conscience in Scholten's view on law. The starting point of my search will be the 1915 essay Law and Philosophy of Life. This will be complemented, where needed, with elements from his subsequent publications.
2 “Rechtsgevoel”
In this essay I deal with "rechtsgevoel", "rechtsbewustzijn" and conscience as the three elements of intuition - and therefore as concepts having a psychological connotation. It should be noted, however, that Scholten did not borrow them from scientific psychology. Hardly any quotations from or references to psychological literature are to be found in his writings. His notions of "rechtsgevoel", "rechtsbewustzijn" and conscience are based on introspection (which, as a matter of fact, was a main method of psychological research in his days),13 daily life experience and common sense (common knowledge). Neither did he define them very precisely.
In the 1915 essay Law and Philosophy of Life, before proceeding to the treatment of “rechtsgevoel” Scholten indicates that the most important ideal factor is conscience (block 49). However, in this essay he is mainly concerned with the concepts of "rechtsgevoel" and "rechtsbewustzijn". Therefore, only after examining how Scholten elaborates on these two concepts I will discuss Scholten's concept of conscience in detail. Scholten describes the "rechtsgevoel" as:
(…) 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. (LPL, block 49)
In one of his last essays this is stated even more emphatically:
Law touches our heart. We speak of our sense of justice. This comes home to us primarily not when we observe justice being done, but when we observe injustice being done. When injustice is done (…) we are filled with indignation, we revolt, and desire action. We want the community to take action.14
By this desire for action, “rechtsgevoel” is contrasted with the concept of moral disapproval.
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. 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. (LPL, block 50)
So, moral disapproval is mere disapproval. The "rechtsgevoel", on the other hand, requires action to be taken against the behavior in question by the appointed authorities:
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 behavior. (LPL, block 50)15
The "rechtsgevoel" is primarily an emotional reaction: "we experience pain". It has its own proper place next to more rational reactions.
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. (LPL, block 50)
It looks as if the force of the emotional reaction according to Scholten is determined more extensively than intensively:
(…) 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. (LPL, block 50)
Scholten seems to take this for granted; the statement isn't explained any further. Perhaps he points to the influence of the media on the opinion of the masses, an influence which he doesn't esteem very positively.16 However, an emotional reaction brings with it certain dangers, "even greater than with conscience" (which I will deal with in § 4); dangers of various kinds:
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. (LPL, block 53)
So, there is the danger of people judging biased. Yet,
despite all of this, inner conviction and unreasoned decision-making remain 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. (LPL, block, 54)
It looks as though skepticism in Scholten's view is a greater danger than bias. There is one more 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. (LPL, block 55)
In this quotation Scholten aims at disputes on technical-legal issues. He refers to a case on legal personality, which by the Dutch courts, up to and including the Supreme Court, was decided to the detriment of the association involved.
(…) Hijmans17 has argued that a sense of justice would dictate that the association should have won the lawsuit. That seems incorrect to me. (…) 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. (LPL, block 56)
So, there is a kind of borderland between technical-legal issues, in which "rechtsgevoel" doesn't play a part, at least not a prominent part, and ethical-legal issues, in which the "rechtsgevoel" plays a prominent part indeed. One final remark is noted in this context.
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. (LPL, block 54)
With legislation, then, the "rechtsgevoel" recedes into the background. This is so because
(…) the injustice that he (the legislator, WB) 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. (LPL, block 56)
Therefore, in the legislator's work the rational comes to the fore:
(…) 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. (LPL, block 56)
For the legislator, then, the choice of purposes is the main thing.
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. (LPL, block 56)
In this way, finally we come to the ultimate goals, which arise from our philosophy of life (block 57).
So far for the 1915 essay. In addition to this, in the General Method (1931) Scholten dilates on the function of the “rechtsgevoel” in the process of finding law. There he states that:
What matters here is not only to “sense”, but also to perceive and to judge intuitively. We have to “thoroughly investigate all sides” of the case, which means that we have to inform ourselves as best as possible about what has happened, try to understand as much as possible what the parties concerned did and intended — then in one way or another a decision will force itself upon us. A decision— and here lies the element of feeling — which we deem fair, which brings us appeasement. (GM, block 470)
Besides,
(…) it is possible to distinguish analytically between arguments of the intellect and the emotion in the final decision, in reality they exist only intertwined. In the emotional facet of our spiritual life the legal judgment touches on the intuitive distinction between right and wrong, the moral judgment, and at the same time on the awareness of the community in which this law must be realized — in the intellectual facet it touches on the account given to the community and to the authority that resides in it, and also to one’s conscience.With respect to the community the intellectual element is in the foreground, while the intuitive is in the background. Internally the relation is precisely in the reverse. (…) To find law is always at once an intellectual and an intuitively moral job. (…) Because externally the intellectual aspect attracts the most attention, it often looks as if the decision can be reduced completely to the ‘source’ (viz.: the codification WB), from which it is said to be deduced. By now it may have been clearly demonstrated that this is only appearance. But the other way around we are not allowed to say that a sense of justice dictates the decision and that one looks for the textual arguments afterwards. Also the judge, who intuitively ‘sees’ the decision immediately after the case is presented to him, even though he doesn’t know precisely yet how he will motivate it, uses his knowledge of law – his complete experience – in this intuitive view. (GM, block 518-520; emphasis added, WB)
In brief: the emotional and the intellectual aspects are intermingled to some extent as are the internal and the external factors; they can be and should be distinguished, but they can't be separated completely. One might compare this with the experience of beauty, as Scholten does in Law and Philosophy of Life block 72, but from a slightly different point of view: one who is a connoisseur of Bach "hears" far more in one of the latter's cantatas, has a far richer experience of its beauty, than one who knows nothing at all about music. Likewise, in "rechtsgevoel": in its intuitive judgment cognitive elements are not completely absent, because "rechtsgevoel" relates to law ("recht").
3 “Rechtsbewustzijn”
3.1 "Rechtsbewustzijn" in the 1915 essay Law and Philosophy of Life
In the 1915 essay Law and Philosophy of Life Scholten deals with the concept “rechtsbewustzijn” under the heading of the real factors in finding law. (As stated before, § 1, the real factors seem to relate to things or states of affairs outside of the actor.) It there flows from the discussion on the importance of implementation of the law. For:
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. (LPL, block 60)
Here Scholten introduces Huber, who is
(...) known among lawyers as the author of the much-praised Swiss Civil Code of 1907, which is his work in every way. (LPL, block 60)
According to Huber18,
(...) 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. (LPL, block 60)
Huber thinks it's possible to make general statements about reality. These relate to man, nature and tradition. Scholten concentrates on the third of these: tradition (and with that he brushes aside the other elements).
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. (LPL, block 61)
At the same time, Scholten broadens the scope:
I want to go further than [Huber] and treat not only legislation, i.e. the positive law in force as factual, but also the legal convictions of a particular people, because they are important for the possibility to implement new legal provisions. (LPL, block 62)
He does so, because
(…) 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. (LPL, block 68)
Here again the distinction between the judgments of morality and of law (cf. § 2) comes in.
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.(…) no one who forms rules of law, be it the legislator or the judge, can in the long run be indifferent to whether his rules of law can actually be enforced as law. (LPL, block 69)
At the end of the day, a legal rule aims at implementation.
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. (LPL, block 69)19
This leads Scholten into a discussion with two views that conflict with his. On the one hand the view of those who
(…) 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. (LPL, block 70)
Scholten takes Stammler as an advocate of this view - and rejects it short and sweet:
Stammler, for example, makes a comparison 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. (LPL, block 70) 20
On the other hand, Scholten as well rejects the view of 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 is the only source of law. (LPL, block 71)
This, then, is the starting point of Scholten's exposition of the concept of "rechtsbewustzijn". The exposition starts with a discussion with Krabbe. 21
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. (LPL, block 72)
The position that the ”rechtsbewustzijn” of the majority must prevail, meets with two points of criticism by Scholten.
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. (LPL, block 72)
To these he adds that
(…) 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. (LPL, block 72)
But these are legal and linguistic objections. There is also a more fundamental objection.
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. (LPL, block 72)
So here a difference in world view comes in. Scholten fundamentally rejected naturalism.22 In his view, "law is a province of the large area of the good"23 - or, in other words, of ethics.
(…) a legal judgment is an ethical judgment… (LPL, block 73)24
Moreover, the existence of such a general content of the "rechtsbewustzijn" of a certain nation cannot be demonstrated.25 Governance by mere majority takes us back to heteronomy, which is exactly the opposite of what Krabbe had in view with his idea of "rechtsbewustzijn".26 In the numerous discussions27 with Krabbe the term "rechtsbewustzijn" seems to receive the sense of the majority's "rechtsgevoel". How, then, can one assess that the majority's opinion actually reflects the majority's "rechtsgevoel"? How can one separate between the majority's pure sense of justice and other, less honorable motives, like for example financial-economic, or political (power politics), or favoritism, or even jugglery?
Likes and dislikes have great influence, and it is not always easy to exclude such factors. (LPL, block 53)28
Scholten concludes:
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. (LPL, block 73)
At this point Scholten makes a comparison with 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. (LPL, block 73)
And this applies not only to the judge, but to anyone who participates in the formation of law:
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. (LPL, block 73)
3.2 "Rechtsbewustzijn" in subsequent essays
In subsequent essays Scholten also used the term, however in a different meaning. In a 1924 essay he holds that law is based on our "rechtsbewustzijn".29 Considering Scholten's position in the 1915 essay, cited before, he doesn’t take this in an empirical sense (as Krabbe did), but in a moral or perhaps rather a metaphysical sense, as an element of his view of man and the world.
In a 1927 essay he rejects Gierke’s view of "rechtsbewustzijn" as a primary, undefinable category of our spiritual life.30
In “rechtsbewustzijn” elements of observation, of logical assessment and finally of ethical choice are included. (…) ”Rechtsbewustzijn” supposes a community, in which the law applies or should apply. That implies that we are tied to all kinds of data, including the purely intellectual element. (…) In the "rechtsbewustzijn" we experience both our moral judgment and the community to which we belong. (trans. WB)31
Here "rechtsbewustzijn" seems to relate to an actor's inner convictions. This is confirmed in a 1942 essay, where Scholten states that
(…) our “rechtsbewustzijn” is an inner conviction, it forces us, we feel as if it is imposed on us and are not allowed to avoid it - yet at the same time it is bound to what people, our fellow citizens, feel and think. (trans. WB)32
The first half of the sentence seems to put "rechtsbewustzijn" on a par with conscience. In the General Method "rechtsbewustzijn" is defined as:
(…) the active awareness in every human being of what law is and should be, a specific category of our spiritual life, by which we distinguish with immediate evidence between right and wrong, independently from the way one finds this expressed in existing institutions, in the same way as we do between true and untrue, good and bad or beautiful and ugly. (GM, block 481)
For "rechtsbewustzijn" in its individual meaning, i.e., as an inner conviction, the same holds as for "rechtsgevoel":
Individual “rechtsbewustzijn” differs from the moral judgment specifically in this way, that it not only disapproves of a certain act or social condition, but also demands of the community to act against it. (GM, block 490)33
A notable statement is further that according to Scholten "rechtsbewustzijn"
(…) speaks only then when a person who is aware of his responsibility forms his judgment. (GM, block 494)
In this respect it seems to differ from "rechtsgevoel" as explained in § 2. The question is, however, what Scholten means by "person who is aware of his responsibility". In this context block 504 of General Method is interesting to read:
(…) the one who searches for law, let’s say in this case the judge, is personally involved in the job. (trans./emphasis added WB)
Not only those who work in the sphere of the administration of law, but also a teacher for example, who grades the tests of her students, is expected to act just and to search for law.
In one of his last essays the term "rechtsbewustzijn" by Scholten is taken as referring to the processing of "rechtsgevoel" intellectually; it is "the reflection on the "rechtsgevoel".34 In this essay the two concepts of "rechtsbewustzijn", viz. the inner element, introspection, which is nearby "rechtsgevoel", and the outward element, the reactions of others, meet:
We become aware of law when we meet injustice. We appeal to introspection, to what everyone feels, when injustice is done to him and to the observation of others' reactions. We know their spiritual life only in our own experience.35 [trans./emphasis added, WB]
3.3 Conclusion on "rechtsbewustzijn"
I conclude that the concept of "rechtsbewustzijn" in Scholten has several meanings. In that respect it seems to suffer from the same shortcoming which Scholten reproaches Krabbe with. But even as such, however, it is not void of meaning.
Before each legal rule lies the "rechtsbewustzijn", after it the decision of the authority, which in its turn rests on his opinion on justice (Dutch: "rechtsoordeel", WB). In both of them the community's and the individual's spiritual life affects the law, even though the law is thought of as a self-reliant entity. (trans. WB)36
Throughout his oeuvre, Scholten uses the word “rechtsoordeel” (literally: “judgment of – or: on – law”) in two meanings: in an objective sense (= decision in law) and in a subjective sense (= opinion on law, or: “rechtsgevoel”). Apparently in the phrase quoted here, the latter is meant.
The same holds for the term “rechtsbewustzijn” in Scholten: the word has (at least) two meanings. Taken as the majority’s opinion on what is or should be the law, it is one of the real factors in the finding of justice. But this has an inner aspect also. For we know this by perception:
We know their [i.e.: others’ – WB] spiritual life only in our own experience. (trans. WB)37
Taken as the inner conviction of those who apply the law, or as the reflection of the "rechtsgevoel", it doubtlessly is an ideal element in his view on law. In the lines quoted here, both meanings meet.
As ideal element in the finding of law, "rechtsbewustzijn" has a place somewhere in between intuition (= "rechtsgevoel" + conscience) and reasoning. Reasoning, the rational element, is described as: logical thinking, weighing of interests, values, aims, and the philosophy of life.38 Intuition and reason stand as the two ideal factors in Scholten's concept of law and in his methodology of finding law. That's why “rechtsbewustzijn” deserves discussion in this essay on the intuitive elements in Scholten's philosophy of law.
4 Conscience
Probably in Dutch legal literature no element in Scholten's philosophy of law has evoked as much discussion as his thinking on the nature of conscience and its function in the finding of law. In this paragraph I undertake to summarize his thinking on the subject. Again, I take the 1915 essay as starting point. This essay contains but a first sketch of Scholten's thinking on the subject. In subsequent essays Scholten dealt with the subject more profoundly.
4.1 Conscience in the 1915 essay Law and Philosophy of Life
4.1.1 internal relationship between conscience and the law
In the 1915 essay it is said that
(…) the inner experience of conscience and sense of justice is, in my opinion, the most important ideal factor. (LPL, block 49)
This is followed by a quote from the church-father Augustine:
Do not desire to go out, the truth dwells within man. (LPL, block 49)
And Scholten continues:
These 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. (LPL, block 49)
The relationship between the words of Augustine quoted and the application Scholten attaches to them, is not immediately clear. In the lines quoted, Scholten more or less implicitly states (in my view):
When he continues, he focuses on conscience first:
What is called truth in the sphere of the ethical - the normative - cannot be proved, but only experienced internally. There is no higher command for one’s own actions than that of conscience — no more caustic disapproval than that which is inwardly experienced. (LPL, block 49)
A bad conscience may induce a bad feeling. This however should not be taken as though conscience could be reduced to emotion, feeling.39 In a subsequent essay Scholten clearly states that conscience transcends both emotion and reason and will:
Conscience is something intangible, hard to describe. It touches on all parts of our mental life: our feeling - who doesn't know the suffering of the accusing, 'gnawing' conscience? - our thinking - conscience judges intuitively, yet in the floating to and fro our entire intellect can be at work, - our will - in the end it is an act, a volitional decision, which our conscience prescribes us. (trans. WB)40
Conscience is something "primary" (basic, fundamental), irreducible to something else.41 This doesn’t mean however, that conscience should or even could be regarded as infallible:
(…) 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. (LPL, block 52)
Conscience can err.42 This is the case, even though
(…) for the believer, the voice within takes on a different sound, thinking he hears the voice of God. (LPL, block 52)
This of course raises some delicate questions. Firstly: how can conscience err if the believer (thinks he) hears the voice of God in it? Should this be taken as though God wouldn’t be infallible? Scholten doesn’t directly answer this question. I’ll return to it in § 4.2.
Secondly:
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 (…) (LPL, block 52)
Scholten's answer is twofold. Firstly,
(…) as far as morality is concerned. In this regard I can refer to La Saussaye’s treatment of it in Het Christelijk Leven. (The Christian Life). (LPL, block 52)43
Besides, concerning law,
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. (LPL, block 52)
By the "many other elements" Scholten probably means the real factors, which were mentioned before. In this 1915 essay, the real factors include "rechtsbewustzijn" in the sense of public opinion (cf. § 3).
The conscience judges without codified law, and in a sense, it is true what Novalis says: Laws are quite contrary to morality. (LPL, block 53)
However,
(…) 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. (LPL, block 53)
Conscience, in contrast with "rechtsgevoel", regards our own behavior. Nevertheless,
the reaction of the conscience to one’s own behaviour almost always provides helpful guidance for judging the behaviour of others. (LPL, block 49)
4.1.2 external relationship between conscience and the law
The foregoing relates to (what I would call) the internal relationship of conscience and law. There is also another, external, relationship between conscience and law, which relates to the way in which law finds its limit in the conscience of citizens. Below three quotations are given which elaborate this relationship.
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. (LPL, block 49)
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. (LPL, block 79)
Unconditional obedience of the law cannot be expected. (…) 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. (LPL, block 80)44
But this doesn't open the door to doing as one pleases. By making it a matter of conscience, Scholten sets the bar high:
One must not assume all too quickly that such a conflict exists, however . (LPL, block 80)
In subsequent essays Scholten on repeated occasions elaborated on the problem of revolution and on the question of exemption from military service on grounds of conscience. In the present essay I don't want to go into this any further. But more needs to be said about the internal relationship between conscience and the law.
4.2 Conscience in subsequent essays
Scholten's most comprehensive account of the notion of conscience was given in the 1924 essay Recht en billijkheid (Law and equity). The discussion starts from the position that the division between right and wrong in law - i.e.: justice and injustice - depends on the division between right and wrong in ethics; and that "this needs no explanation".45 Therefore we should have a look at the nature of the moral judgment.
(When considering moral judgment,) I take the position recently described by Kohnstamm as Personalism. (…) What is conscience? As Kohnstamm rightly observes, there is no room for a definition. (…) Conscience is something very peculiar, defying any comparison and therefore escaping description. But we can describe how we experience it. (…) First of all, in the condemnation that within us can accompany our behavior (…) Perhaps even stronger we experience the operation of our conscience when we meet with a conflict (a clash) of duties (…). In conscience's decision man's personality speaks stronger than anywhere else, never he experiences himself closer to himself and yet he realizes, that the choice he made, is imposed on him by a higher power, that not only he shouldn’t do something else, but also can't. (trans. WB).46
An important issue is the question whether conscience, thus outlined, is an empty category according to Scholten. Soeharno, for example, answers this question in the affirmative in his article on Paul Scholten's intuition theory.
At this point Scholten and virtue ethics go their separate ways. Where Scholten emphasizes the negative function of conscience in intuition and has difficulty with making explicit guiding ideas, there virtue ethics positively gives meaning to the concept of intuition: conscience is a 'filled' concept - it is about knowledge acquired in concrete orientation on the social environment. (trans. WB) 47
There are passages in the pages 268 and 269 of Recht en Billijkheid, in which Scholten seems to support Soeharno’s interpretation, warning against generalizing and systematizing moral judgment, but in his reference to Kohnstamm Scholten seems to conclude that conscience is and should be educated. The quotation below shows the interpretation difficulty.
(…) I refer the interested reader to Kohnstamm's thoughts. There he can find out how this conscience can find its guidance in the contact with other persons, ultimately with the most superior personality in whom God has revealed Himself(…) In ethics, contact with others, and also history and novels teach us more than systems or regulations. One can do no more violence to the most profound wisdom, which is given to us concerning moral life, Jesus' teaching, than by making a system of morals out of it." (trans. WB)48
The source Scholten refers to, is Kohnstamm's 1922 leaflet Persoonlijkheid en Idee (Personality and Idea).49 Regarding conscience in this leaflet Kohnstamm50 writes:
For solving, or, more precisely: carving a conflict of duties, we possess a synthetic organ: conscience. An organ, guiding and supporting us in a number of areas, in scientific or aesthetical matters no less than in moral matters, but which first and foremost we wake up to in the sphere of ethics (…). There is no room for a definition. Of course not, because you can only define something that by addition, without remainder can be won from something else. Something sui generis, that presupposes a real synthesis, by which something really new comes about, can only be shown to him who knows it already, not defined without rest. (…) But how conscience works and what are conscientious decisions, can be specified approximately. (trans. WB)51
And then Kohnstamm refers to - and quotes at length from - Jaspers' book on the psychology of philosophies of life (1919).52 To his reference to Kohnstamm Scholten adds:
Conscience always speaks concretely; it is completely irrational. (…) Conscience teaches me, what is right for me in this moment in these circumstances, it doesn't necessarily also apply to you. As soon as I make my own experience a rule for others, I do violence to them; when I turn for support in the similarity of the circumstances, why the same should apply to you and me, then I appeal to your rational understanding, not to your conscience. In ethics, this never brings truth. (trans. WB)53
"There is no room for a definition". In Scholten's essay Evangelie en recht (Gospel and law, 1939) only a metaphor is given:
Conscience always has been compared to a court, having its seat in the inner man. (trans. WB)54
And in the letter of Paul Scholten to his eldest, then 15-year-old son, cited in § 1, in which he explains the 1924 essay, he writes:
(…) in each man the ‘bewustzijn’ lives of a judgment on what ought, on right and wrong (conscience). (trans. WB)
"The ‘bewustzijn’ of a judgment on what ought, on right and wrong (conscience)". That looks suspiciously like a definition!
"In the end, law is rooted in conscience". (trans. WB)55
In other words:
(…) law is rooted in the parting of good and evil. (trans. WB)56
Or, again in respect of ethics:
(…) law is a province of the large area of the good. (trans. WB)57
Concerning the place (or: function) of conscience as our ethical compass in the finding of law, already in Law and Philosophy of Life we found that conscience is not the only factor. This is confirmed many times, for instance in the essay Recht en billijkheid (Law and equity, 1924), where we read that:
(…) the judge always has to justify his decision two ways: ethically he must answer to his conscience and his "rechtsbewustzijn", intellectually he must answer to the legal rules in force and to the generalization the decision must be able to bear. (trans. WB)58
This is repeated in the General Method.
The legal judgment is rooted in the moral part of our spiritual life; a good judge always desires to impose that which he can justify in his own conscience. (GM, block 507)
And again:
(…) in the emotional facet of our spiritual life the legal judgment touches on the intuitive distinction between right and wrong, the moral judgment, and at the same time on the awareness of the community in which this law must be realized — in the intellectual facet it touches on the account given to the community and to the authority that resides in it, and also to one’s conscience. (GM, block 519)
So, there are always two sides in legal judgment:
With respect to the community the intellectual element is in the foreground, while the intuitive is in the background. Internally the relation is precisely in the reverse. The intellectual justification of the conscientious decision, however necessary it may be for us, doesn’t pertain to its essence — in the reverse it may be possible to testify of a “sense of justice”, but it is impossible to transfer it to others, let alone to prove it. (GM, block 519)
"Internally the relation is precisely in the reverse". That is so because:
(…) the one who searches for law, let’s say in this case the judge, is personally involved in the job, (..) the balancing is not impersonal. The judge does something other than observing in favor of whom the scales turn, he decides. That decision is an act, it is rooted in the conscience of he [him; WB] who performs the act. That which is expected of a judge is a deed. (GM, block 504-505)
This character of the legal judgment as an act (a deed) is emphasized in the following lines:
The judge (…) has to decide — he has to hear both sides, but in the end, it is his task to choose. From the lawyer an argument is asked. From the judge a deed. And like every deed that is something other than play, this deed must be that which is called for at this moment, the only possible thing for him to do. A bad judge, or more generally, a bad jurist is the one who says: “I think it is like this, but it also can be otherwise.” A good judge cannot act otherwise. (GM, block 527-528)
"Like every deed that is something else than play" - this counts eo ipso for every (serious) legal judgment, including the judicial judgment. It has a moral character. In other words,
(…) “thou shalt” or “thou shalt not”, “thou may” or “thou may not”, this is the core of any judicial judgment, (…). Such words can only be uttered by him, who is convinced of it in his own conscience. (GM, block 507)
This, however, doesn't imply that conscience has the final word. As we saw in § 4.1.1, Scholten even emphatically states that:
The judgment of conscience is never in itself decisive in respect of applicable law. (LPL, block 52)
There is no "final word". From the foregoing it should be clear that in Scholten's view there are two such supreme points: the applicable law and the judge's conscience.59 And this is in full conformity with Scholten's dualistic or (as he himself calls it:) dialectical world view.60 One might even say: it necessarily follows from such a world view. For if in a contradiction one of two elements essentially has more weight than the other, then the contradiction is solved - and with that the dialectics (in the sense Scholten uses it) is resolved.
Does this mean that God doesn't have the final word? I here return to the question, raised in § 4.1.1: How can conscience err if the believer (thinks he) hears the voice of God in it. Firstly, it is important to note that the believer, in Scholten's own words, thinks he hears the voice of God in the voice of his conscience. This implies neither a claim (to infallibility of the believer's judgment), nor a pretension (to produce better decisions than non-believers do). It doesn't raise (exalt) a believer above his fellowmen; it lowers (humbles) him before God. It makes or should make him all the more vigilant (concerning the risk of erring) and obedient (concerning the need to obey the voice of conscience). It doesn't pull God down to the level of legal or moral discussion: the one who makes the decision remains fully - and exclusively - accountable for the decision he takes. And if this is true, there is no reason to assume that Scholten's view on intuition shouldn't allow for differences of opinion between lawyers or judges, let alone for judicial errors or mistakes.61
5 Conclusion
According to Scholten, conscience, "rechtsgevoel" and "rechtsbewustzijn" are the three intuitive elements in finding law. As stated in § 2, Scholten didn't define these concepts very precisely.62 I interpret his position thus that intuition doesn't necessarily contradict or contravene reason. It is a contrast only to rational, logical thinking, not a contradiction. Anyway, they are highly personal concepts (perceptions, insights, experiences, drives). On rational grounds one can discuss and (often) reach agreement or persuade others. On intuitive grounds, however, one can only testify to one's own insights and motives, not convince others.
Besides, in Scholten's view on law, law is a province of the large area of the good, i.e.: of ethics. Or, in other words: law is defined as "morals plus" some specific characteristics. And for morals our source of knowledge is conscience. This is part and parcel of his view on man. In this view, conscience is an essential part of our human existence. It follows, then, that it plays a role in all decisions, and of course in all moral decisions we humans take. Also, then, in each judicial decision; and not only so when the judge explicitly refers to it.The judge's decision is a "conscientious decision"63 not because it is a judge's decision, but because it is a decision on law and therefore a moral decision.64 It should be added that of course to a certain extent the role of conscience holds another place in a carpenter's work than in a politician's.65 The term "conscientious decision" is used chiefly to designate those decisions in which conscience holds a prominent place.
Intuition - including conscience - and philosophy of life, the two main concepts in the 1915 essay, are highly personal concepts. If then, intuition and philosophy of life (world view) play such a major part in the finding of law and if we can't intellectually reach agreement on these notions, or, in the words of Scholten: if
(...) No objective truth can be established about the law. (LPL, block 76)
how could we cooperate practically and reach practical solutions to all kinds of legal, social and political questions?
Struggle may be necessary, but at some point, peace must come and this can only be realized if both sides are willing to compromise. (…) 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. (LPL, block 77)
Here at last we meet the solid, sober, practice oriented, ironical, Dutch lawyer that Scholten typically was.
Bibliography
Endnotes
1 Huppes-Cluysenaer et al., ‘General Method’.
2 Scholten, Verzamelde Geschriften. Volumes I (1949), II (1950), III (1951), IV (1954).
3 Cf. Chorus, Om recht en gerechtigheid., 63 (De Schakel), 70 (Synthese), 72 (Onze Eeuw), 206 (Woord en Wereld).
4 Cf. Scholten, ‘8. Recht En Gerechtigheid’. (1932, University of Amsterdam), Scholten, ‘10. Beginselen van Samenleving’. (1934, University of Leiden) , Rechtsbeginselen (1935, KNAW), De structuur der rechtswetenschappen (1942, KNAW).
5 During World War II Scholten made a start on writing a systematic exposé of his views on law; but this wasn't finished. The first chapter of it is published post mortem as Scholten, ‘1. Kenmerken van Recht’.
6 Scholten, ‘20. De Grondwetsherziening’., 15 ("ook Thorbecke was een mensch en dus gelukkig niet altijd consequent in zijn oordeel"). J.R. Thorbecke was an important 19th century Dutch politician and draftsman of the 1848 Dutch Constitution ("Grondwet").
7 Scholten, ‘2. Recht En Levensbeschouwing’. English translation: Huppes-Cluysenaer, Schoonheim, and Scholten, ‘Law and Philosophy of Life’./
8 E.M. Meijers, ‘Herdenking van Paul Scholten’., 474: "(…) de grote ommekeer, die sinds 1913 in Scholtens geestesleven intrad"; likewise Chorus 2022, 60.
9 Scholten, ‘17. Afscheidsrede’., 505 : “Gij weet, dat ik een man ben van positief-Christelijke, reformatorische overtuiging”.
10 The blockreferences to Law and Philosophy of Life use the abbreviation LPL. In the original Dutch the clarion call is even stronger: “De oude waan, dat alle recht in de wet te vinden is, dat recht en wet synoniem zijn, ligt verbroken.”(“The old delusion … lies crushed.”)
11 In General Method "rechtsbewustzijn" is translated as "conscience of law". In Law and Philosophy of Life, in footnote 59 it is explained why the choice has been made to leave the term untranslated.
12 Chorus, Om recht en gerechtigheid., 147: "(…) in ieder mensch leeft het bewustzijn van een oordeel over wat behoort, over goed en kwaad (geweten). Dit is het eene uitgangspunt. En het andere is: in de samenleving vormen zich regels over dat behooren die in bepaalde gevallen toepassing eischen. (…) Tusschen het innerlijk element (geweten) en het uiterlijk (de regel) is botsing mogelijk". [emphasis added, WB]
13 Cf. Bigot, Kohnstamm, and Palland, Beknopt leerboek der psychologie., 20, 360; Flugel and West, A Hundred Years of Psychology., 197.
14 Scholten, ‘1. Kenmerken van Recht’., 5. "Het recht raakt ons gemoed. We spreken van ons rechtsgevoel. Niet direct aan het recht, maar aan het onrecht wordt ons dit bewust. Als onrecht geschiedt, (… ) zijn wij verontwaardigd, komen in opstand en begeeren de reactie. Wij verlangen die van de gemeenschap."
15 In other texts the same is said regarding the relation between mere moral disapproval and law. Cf. Scholten, ‘3. Recht En Liefde’., 180; Scholten, ‘6. Recht En Billijkheid’., 270; Scholten, ‘7. Recht En Moraal’., 294; Scholten, ‘1. Kenmerken van Recht’., 47; Huppes-Cluysenaer et al., ‘General Method’. block 490. I'll return to this in § 3.2.
16 See for instance Scholten, ‘40. Oorlog’., 190; Scholten, ‘43. Christelijke Vrijheid En Nederlanderschap’., 209; Scholten, ‘45. Het Woord Gods in Dezen Tijd.’, 226 and 229.
17 I. Henri Hijmans (1869-1937): one of the earliest sociologists of law in the Netherlands, honoured by the fact that the Dutch Journal for Sociology of Law is named Recht der Werkelijkheid (Law of Reality, like Ehrlich’s living law), a term coined by Hijmans in his inaugural speech of 1910: Het recht der werkelijkheid.
18 Scholten refers to Huber, ‘Über Die Realien Der Gesetzgebung’.
19 Idem in Huppes-Cluysenaer et al., ‘General Method’., blocks 495-498, 502.
20 In LPL blocks 46, 47 and 48 Scholten had already rejected Stammler’s view on “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”. From references in later work (General Method) it becomes apparent that Scholten here refers to Stammler, Die Lehre von dem richtigen rechte., which was first published in 1902 and translated into English in 1925 (The Theory of Justice.) or Stammler, Theorie Der Rechtswissenschaft (Origineel 1911).
21 Hugo Krabbe (1857-1936) was professor of law, first at Groningen University and then at Leiden University. His main work is partly written in German and translated into English: Krabbe, Die lehre der rechtssouveränität.; Krabbe, Die moderne Staats-Idee.; Krabbe, Kritische Darstellung der Staatslehre.; Krabbe, The Modern Idea of the State.
22 Scholten, ‘1. Kenmerken van Recht’., 118 ; Scholten, ‘19. Krabbe’s Staatsidee’., 4. Cf. Knegt, ‘Scholten’s Reflections on Judge’s Practices’., 445
23 Scholten, ‘7. Recht En Moraal’., 288 : "Ik ben overtuigd, dat het recht een provincie vormt van het groote gebied van het goede."
24 Cf. Scholten., 292 : "dat het rechtsoordeel ten slotte in den ethos zijn grondslag vindt".
25 Huppes-Cluysenaer et al., ‘General Method’., block 492-493.
26 Scholten, ‘10. Beginselen van Samenleving’., 370.
27 Scholten, ‘19. Krabbe’s Staatsidee’.; Huppes-Cluysenaer et al., ‘General Method’. § 27; Scholten, ‘1. Kenmerken van Recht’. § 20.
28 See also: Scholten, ‘3. Recht En Liefde’., 183 ;Scholten, ‘15. De Structuur Der Rechtswetenschap’. 449 ; Scholten, ‘1. Kenmerken van Recht’., 46, 110, 114.
29Scholten, ‘6. Recht En Billijkheid’., 280 : "Het recht gegrond in het rechtsbewustzijn, deel van ons ethisch en van ons intellectueel leven".
30 Scholten, ‘7. Recht En Moraal’., 294 : "Uit het vorige volgt wel dat ik niet met Gierke in het rechtsbewustzijn een primaire niet nader te bepalen categorie van ons geestesleven kan zien. (…) "
31 Scholten., 294 : "In het bewustzijn van recht zitten elementen van waarneming, van logische beoordeeling, ten slotte van zedelijke keus. (…). Bewustzijn van recht onderstelt een gemeenschap waarin dat recht geldt of behoort te gelden. Daarmee is de gebondenheid aan allerlei gegevens, ook het zuiver intellectueel element, aangewezen. (…) In het rechtsbewustzijn ervaren we en het zedelijk oordeelen en de gemeenschap waartoe we behooren."
32 Scholten, ‘15. De Structuur Der Rechtswetenschap’., 448 : "Ons rechtsbewustzijn is een innerlijke overtuiging, zij dwingt ons, we voelen ons haar opgelegd en mogen haar niet ontwijken - toch is zij tegelijkertijd gebonden aan wat anderen, onze rechtsgenooten, voelen en denken."
33 The translation is adjusted by me in conformance with what has been stated above in footnote 12: The individual conscience of law is exchanged for individual “rechtsbewustzijn”. Idem in Scholten, ‘3. Recht En Liefde’., 180 ; Scholten, ‘6. Recht En Billijkheid’., 270 ; Scholten, ‘7. Recht En Moraal’., 294 ; Scholten, ‘1. Kenmerken van Recht’., 47.
34 Scholten, ‘1. Kenmerken van Recht’., 5 : "Rechtsbewustzijn is de reflectie van rechtsgevoel"; and 114: "ons rechtsgevoel (wordt) in de overweging tot rechtsbewustzijn."
35 Scholten., 47 : "Het is (…) het onrecht waaraan we ons het recht bewust worden. Wij doen een beroep op de introspectie, op wat ieder gevoelt, als hem onrecht wedervaart en op de waarneming der reacties van anderen. Hun geestelijk leven wordt alleen in de eigen ervaring gekend."
36 Scholten., 80 : "Voor elken rechtsregel ligt het rechtsbewustzijn, daar na de beslissing van den gezagsdrager weder op zijn rechtsoordeel steunend. In beide werkt het geestelijk Ieven van gemeenschap en van individu op het als zelfstandige grootheid gedachte recht in."
37 Scholten., 47: "Hun geestelijk leven wordt alleen in de eigen ervaring gekend."
38 Huppes-Cluysenaer, Schoonheim, and Scholten, ‘Law and Philosophy of Life’., blocks 49-59.
39 To make a comparison: a thorn in one's flesh inflicts pain, but it isn't the pain.
40 Scholten, ‘43. Christelijke Vrijheid En Nederlanderschap’., 215 : "Het geweten is een ongrijpbaar ding, moeilijk te omschrijven. Het raakt al de deelen van ons psychische leven: ons gevoelen — wie weet niet de ellende van het aanklagende, het 'knagende' geweten? — ons denken — het geweten oordeelt instinctief, niettemin kan in het heen en weer dobberen ons geheele intellect aan den gang zijn, — onzen wil — het is tenslotte een handelen, een wilsbesluit, dat ons geweten ons voorschrijft."
41 Scholten, ‘7. Recht En Moraal’., 284; Scholten, ‘10. Beginselen van Samenleving’., 362. By the term "primary" Scholten meant that conscience can't be reduced to another, i.e., a deeper, more fundamental or more original concept. In Dutch, however, the term most often is used in the sense of "most important", or "of paramount importance" - which, of course, is something quite different. This is a source of confusion in the interpretation of Scholten, e.g., in Weerheim, ‘Billijkheid Bij Paul Scholten. Over de Oneindigheid in Het Recht"., 207: "In law the primary thing is the judge's conscientious decision" ("In het recht is het primaire gegeven de gewetensbelissing van de rechter").
42 Cf. also Huppes-Cluysenaer et al., ‘General Method’., block 529; Scholten, ‘5. Gerechtigheid En Recht’., 220 and Scholten, ‘7. Recht En Moraal’., 286
43 Cf. on Scholten and La Saussaye: Groenenboom, ‘Bottomless Subjectivism’., or Groenenboom, ‘Over Het “ethisch” Gehalte van Scholten’s Rechtstheologie’.
44 Cf.Scholten, ‘4. Gedachten over Macht En Recht’., 212.
45 Scholten, ‘6. Recht En Billijkheid’., 267: "Besides the division beautiful/ugly, true/false, we also find that between good and evil as a given of the human mind; without further explanation it is clear that the division of right/wrong depends on this given and cannot exist without that.” (Naast de scheiding schoon/leelijk, waar/onwaar, vinden we ook die tusschen goed en kwaad als een gegeven van den menschelijken geest; zonder nadere toelichting is het duidelijk, dat de scheiding recht/onrecht van deze afhangt, zonder haar niet kan bestaan).
46 Scholten., 268-269: "(Bij die beschouwing) stel ik mij op het standpunt, onlangs door Kohnstamm als dat van het Personalisme aangewezen. (…) Wat is dat geweten? Voor een definitie is, gelijk Kohnstamm terecht opmerkt, geen plaats. (…). Het geweten is iets geheel eigens, dat iedere vergelijking tart en daardoor aan beschrijving ontsnapt. Maar wel kunnen we de feiten aanduiden, waarin we het ervaren.(…) Vooreerst in de afkeuring die innerlijk ons handelen kan begeleiden. (…) Sterker nog misschien ervaren we de werking van het geweten, als we voor een conflict van plichten staan (…). Nergens sterker dan in de gewetensbeslissing, spreekt de persoonlijkheid van den mensch, nooit voelt hij zich nader bij zich zelve en toch beseft hij, dat de keuze, die hij deed hem door hooger macht is opgelegd, dat hij niet alleen niet anders mag, maar ook niet anders kan." Cf. Scholten, ‘7. Recht En Moraal’. 284-287.
47 ‘Over rechterlijke intuïtie. Paul Scholtens intuïtieleer en een alternatief model van Aristoteles’., 242 "Hier gaan Scholten en de deugdethiek uiteen. Waar Scholten de negatieve functie van het geweten in de intuïtie benadrukt en moeite heeft met het expliciteren van richtinggevende ideeën, daar positiveert de deugdethiek het intuïtiebegrip: het geweten is een ‘gevuld’ begrip – het gaat om kennis opgedaan in concrete oriëntatie op de leefwereld."
48 Scholten, ‘6. Recht En Billijkheid’., 268-269: "ik verwijs den belangstellenden lezer naar de beschouwing van Kohnstamm. Daar kan hij nagaan, hoe dit geweten zijn richtsnoer kan vinden in het contact met andere personen, ten slotte met de hoogste persoonlijkheid, waarin God zich heeft geopenbaard. (…) Zedelijk leert aanraking met anderen, leeren ook geschiedenis en romans ons meer dan stelsels of voorschriften. Men kan de diepste wijsheid die ons voor het zedelijk leven gegeven is, Jezus' leering, niet erger geweld aandoen, dan door er een moraliseering van te maken." .
49 Kohnstamm, Persoonlijkheid en Idee.
50 Philip Abraham Kohnstamm (1875-1951), colleague and according to Chorus (Om recht en gerechtigheid.) best personal friend to Scholten; originally a physicist; professor at Amsterdam University in (successively) logic, thermodynamics and pedagogics.
51 Kohnstamm, Persoonlijkheid en Idee., 286-287: "Wij beschikken voor het oplossen of juister voor het trancheeren van het conflict over een speciaal synthetisch orgaan: het geweten. Een orgaan, dat ons op allerlei gebied leidt en ondersteunt, in de wetenschappelijke of aesthetische sfeer niet minder dan in de ethische, maar waarvan wij toch vóór alles juist op zedelijk terrein ons bewust worden (…) Wat dat geweten is laat zich niet definieeren. Natuurlijk niet, want definieeren laat zich alleen iets wat zonder rest door additie uit iets anders kan worden gewonnen. Iets wat sui generis is, wat een werkelijke synthese onderstelt, waardoor iets principeel nieuws tot stand komt, laat zich alleen aanwijzen aan hem die het al kent, niet restloos definieeren. (…) Maar (…) hoe het geweten werkt en wat gewetensbeslissingen zijn, dat laat zich wel benaderend aanduiden." (It seems to me (WB) that "synthetic" in this context should be taken as a contrast with "analytic", instead of anti-thetic.)
52 Jaspers, Psychologie der Weltanschauungen.
53 Scholten, ‘6. Recht En Billijkheid’., 269 : "Het geweten spreekt altijd concreet, het is geheel irrationeel. (…) Het geweten leert mij, wat voor mij op dit oogenblik in deze omstandigheden goed is, het is niet gezegd, dat voor U hetzelfde geldt. Zoodra ik van eigen ervaring regel voor anderen maak, doe ik hun geweld aan; zoek ik in de soortgelijkheid der omstandigheden steun; waarom voor U en voor mij hetzelfde moet gelden, dan doe ik een beroep op uw verstandelijk inzicht, niet op uw geweten. In het ethische brengt dat nooit het ware." I (WB) would - with Kohnstamm, Persoonlijkheid in wording., 59 - rather speak of "super-rational" instead of "irrational", because irrational means: unreasonable, illogical, absurd. In my view that was not what Scholten meant by "irrational". Moreover, conscience doesn't necessarily always contradict or contravene reason; but it transcends reason, it has the power to overrule it.
54 Scholten, ‘14. Evangelie En Recht’., 419 : "Het geweten is te allen tijde vergeleken met een gerecht, dat binnen den mensch zetelt".
55 Scholten, ‘16. Over Spel En Ernst in Het Recht’., 491: "Het recht wortelt ten slotte in het geweten".
56 Scholten, ‘13. Rechtsbeginselen’., 405: "(…) de scheiding van goed en kwaad, waarin alle recht wortelt".
57 Scholten, ‘7. Recht En Moraal’., 288: "Ik ben overtuigd, dat het recht een provincie vormt van het groote gebied van het goede."
58 Scholten, ‘6. Recht En Billijkheid’., 277: "De rechter dus iemand die zijn uitspraak altijd aan twee zijden moet verantwoorden: ethisch tegenover zijn geweten en rechtsbewustzijn, intellectueel tegenover de regels, die hem zijn gesteld en de veralgemeening, die zijn uitspraak moet kunnen verdragen."
59 Cf. Borst, ‘De dialectiek bij Paul Scholten’., 63-65.
60 Scholten's dialectics, however, is non-Hegelian: the synthesis is lacking. He even explicitly rejects the Hegelian dialectics; Scholten, ‘8. Recht En Gerechtigheid’., 315: "as regards Hegelianism: with all esteem for the tremendous intellectual effort of Hegel and his followers: the annulment of the dialectics in the synthesis appears to me as either a play, a delusion, or an overestimation of human power." ("wat het Hegelianisme betreft: het zij met alle eerbied voor den geweldigen denkarbeid van Hegel en zijn volgers gezegd: de opheffing der dialectiek in de synthese schijnt mij òf een spel, een begoocheling, òf een overschatting van het menschelijk vermogen"). See also Borst, ‘De dialectiek bij Paul Scholten’. 2019.
61 As Van Manen seems to assume: Manen, ‘Jumping Judges’., 236-237: "The judge could be wrong. We could add that judges are rather often wrong, (…) For Scholten, the argument does not conclude with his claim that intuition makes the judge ‘see’ the decision immediately. Intuition and the individual conscience have an origin – in his opinion – which gives them an authoritative power, paramount to the individual. (…) For someone who doesn’t have any such faith in an objective, divine power transcending the human, faith cannot be the guide (at least at a conscious level), free from misunderstandings (unless one presumes that ’God’s language and concepts are understandable for humans, without doubt or mistake). There are too many mistakes, too many different solutions, too many different legal cultures. Intuition is not a God-given insight and does not originate in the idea of law."
62 This applies not only to the three concepts I deal with in this essay, but for instance also to the concepts of "law" and "justice"; Scholten, ‘8. Recht En Gerechtigheid’., 309.
63 E.g. in Scholten., 316.
64 In a way, the term "conscientious decision" (Dutch: "gewetensbeslissing") is a pleonasm.
65 Scholten, ‘5. Gerechtigheid En Recht’., 218.