Reviews of From a Legal Order to a Legal System

Scholten’s Contribution to a Theory of Legal Change
by Jean-Louis Halpérin
(3 reviews)

Review by Pierre Brunet on 12-11-2014

-the quality of the contribution. The content of the articles can vary from simple translation or information to fundamental scientific abstraction. This means that the reviewer is asked to judge if the submitted article conforms to the technical and scientific standards suited for the specific type of the contribution.

From my point of view, the paper conforms perfectly to the technical and scientific standards suited for the specific type of the contribution. The bibliography is rich and very well informed. The materials used are relevant and mixing past and present. The demonstration is very easily followed and the conclusion is clear.

-the relation between the article and the research question. Does the article contribute to the research question? This not only asks for a judgment about the article, but also about the research question. The contributive value of the article could be that it becomes clear that the research question should be elaborated or changed altogether.

The research question is about the concept of a legal system and the paper aims at investigating the concept used by Scholten and confronting it to modern concepts (Alchourrón and Bulygin, Grabowski). Then the great question is the one of the identity of legal system. The paper succeeds in clarifying Scholten’s concept. No doubt that the article highly contributes to the research question. Furthermore, it is a very good way of investigating in both history of legal thought and legal theory.

Review by Oliver W. Lembcke on 12-11-2014

The text is a scholarly written manuscript which I have read with pleasure. In general, I think, it will be a valuable contribution to the project. There are only a few comments which may be helpful to improve the text.

The internal structure of the text is somewhat confusing. Obviously, Halpérin intends to introduce, at least, a two part structure (“I propose now, in a second stage…”), but the relation between these two parts should be spelled out more clearly.

This holds also true for the research question. Maybe a helpful indication is the following: The text is quite short but makes nevertheless several references to Kelsen, Gadamer, Hart, Luhmann etc. However, the impression is that, at least, some of these references are rather due to associative thinking than to a powerful argument. It would be helpful to have a guiding line of argumentation that makes each of the comparison (between Scholten and the other authors) more insightful and convincing.

The concept of a ‘legal revolution’ is somewhat vague and not well connected to Scholten. Firstly, the concept itself needs to be clarified, at least, in the sense whether or not it is useful to differentiate between legal and political revolutions. Halpérin seems to think so, but his text provides not evidence for such a claim. And it may be a very difficult undertaking, not the least for the reasons Scholten himself seems to be aware of and which relate, in the end, to the concept of legal change. In other words: what would be valid criteria for defining a ‘legal revolution’ in contrast to legal change. And why is this concept necessary to understand Scholten’s approach (which seems to me well-equipped to deal with the problem of legal change).

The difference between ‘formal categories’ and ‘moral principles’ is announced in the abstract as important for the analysis. But it does not seem to play a prominent role in the argument that follows.

In last word on accuracy: Before publication, I recommend to have it checked in terms of spelling, grammar etc. Already at the level of not-strict scrutiny, it was not difficult to detect some minor mistakes; and some of them may lead to a negative impression on the side of the reader: e.g., it is Merkl (not Merki) and Hans-Georg Gadamer (not Georg).

Review by author's response on 25-11-2020

I am grateful to both reviewers for their useful advice. I have tried to correct the formal mistakes concerning some family names.

It seems to me difficult to develop a sketch about the very pertinent statements I have found in Paul Scholten’s Introduction: the ideas that law is a set of legislative rules and of judgments, that every legal order is changing at any time and that it is difficult to propose a study of legal systems without a kind of simplification.

For this reason I prefer not to change the text with the risk to develop my own conceptions rather than to contribute to the discussion about Scholten.

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