Reviews of 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
by Liesbeth Huppes-Cluysenaer
(2 reviews)

Review by editor on 25-11-2020

Annotations to General Method of Private Law, made by editor(Liesbeth Huppes-Cluysenaer). Mostly the annotations merely indicate the important steps in the argument of Paul Scholten. The numbers refer to the blocks. -#-
0 Preface : Scholten writes that a scholar can only properly understand law, when reflecting on its method. i.e. the problematic relation between language and reality.-#-
9 : The reference to Montesquieu has become standard in the Netherlands. For a defense of the belief that interpretation is merely a pretext of jurists a reference to Kant (Der Streit der Fakultäten) would have been more appropriate. Montesquieu’s main interest is the maintenance and establishment of intermediate powers, such as for example the independent status of towns and the privileges of the nobility. (II,4 (109) Such intermediate powers have an important mitigating function in the state, according to M. M’s description of the task of judges as being the mouth of the law (XI,6 (404), concerns the rules of demarcation between the different competences of the different intermediate powers. In XII M explains that the law concerning citizens should be different, it can rest on usages and morals, on concrete cases and on parts of the civil law (XII, 1 (376) See for a reference to Aristotle’s warning against a state without intermediate powers, his Politics 1261a20-1261b16). The ideas of Scholten and M seem to converge. See especially blocks 118 and 119. -#-
17: a reference can be made to the convergence of language, history and system in the method of the Historical School, especially the work of von Savigny.-#-
18 : Scholten emphasizes the distinction between being capable to do things and knowing why one does it.-#-
26 : Scholten emphasizes here that the application of legal provisions is not sometimes (in hard cases) problematic, but that it is always problematic.-#-
30 : In this block an argument starts to explain that law is not merely a set of rules and that the decision has an independent value, which cannot be reduced to rules.-#-
35 :Scholten rejects the opinion that the law allows the judge in some conditions to create a new rule.-#-
38 : A judicial decision can even be against the rule and can set the rule aside.-#-
39 : To talk in terms of exceptions means to try to maintain the idea of a rule. The rule of exception can lead to a new exception of the exception and so on. The truth is that in the end not the rule, but the facts decide. Jus in causa positum.-#-
43 : Contrary to the idea of law as a set of rules it can be stated that in many cases a plurality of rules is applicable. How is the judge to make a choice? Something other than rules decides.-#-
51 : The practice of law is neither law application nor law creation, but with an old word law-finding. Law exists already but it has to be detected. -#-
59 : The theory, that law is a set of rules, is implied by the view that law is the expression of the will of an organized community, the state. Scholten rejects this theory. In his eyes law concerns the relation between two poles the individual and the community. The theory which sees law as a set of rules does not accept this dualism and only values the community. -#-
83 : Private Law concerns the rules with which the community approaches the individual to indicate the area where he may dispose freely, to establish the guarantees through which the community can be convinced that the declarations of the persons concerned express their will and to make it clear that the individual in his dispositions has to observe certain limits.-#-
109 : Digests (or Pandects) concern a compendium of Roman Law, compiled by order of Emperor Justinian I in the period 530-533. -#-
115 : In all its elements law concerns a balancing of public and individual interests. This means that law does not contain any clear boundaries and is continuous and gradual. But in fights between peoples clear cut boundaries need to be established. It is the authority of the state which then takes care of enforced decisions. In this respect the decision is of a completely different nature (act) than the intellectual part of law (a set of rules and principles).-#-
118 : Scholten makes a distinction between common or people’s law (gemene recht or volksrecht) and state law, which is comparable to the distinction made by Montesquieu (see An. 9). Common or people’s law refers to the judge’s law which was existing in Europe before it was codified and systematized in the 19th century. It is juxtaposed to the ‘colonized law’ of the legal doctrine in legal positivism and of the sociological theory in sociological positivism. This explains the fascination of social-legal theorists for it.-#-
120 : Logically private law is subordinated to state law, but those who have the authority to make law, do no operate in the void, they formulate that which is already existent.
122 : Formulating and enforcing binding rules are not the only goals of the State. From old the State also has goals that concern defense of the state and care for welfare. In this context the State also makes rules and enforces these. This is administrative law.-#-
124 : The power of the state to reach the goals of welfare and the right of the individual to keep a domain where it can dispose autonomously, clash continuously. Both are dependent on each other. Scholten sees this relation as a dialectical interdependency of power and law.-#-
139 : What is the relation between the line of argument followed in the first part of the text (till 52) and the part on the dialectic of power and law (starting at 83)? The part in between (52-83) was about the nature of law as a command, permittance and promise. Scholten does not hide the difficulty but also does not give an answer. The complex relation between language and reality is mirrored in the complex relation between an organized community (language) and a real, natural subject.-#-
147 : People will not look forward to posterity, who never look backward to their ancestors This reference to Burke is characteristic for the view of Scholten, who rejects Hegel’s belief in the progressive development of a collective mind. Scholten accepts the open dialecticism of Cohn (Kenmerken van Recht) in which there is a constant process of integration and disintegration going on. In contrast to Hegel’s dialecticism, the view of Cohn has no practical meaning for law. It is a relativist view, in which the development of mind is a personal process of learning. Experiences and thoughts of people in the past are as relevant as contemporary experiences. Scholten agrees with Cohn but is interested in developing a view on the consequences of such a theoretical view for legal practice. See further 156. -#-
157 : About Digests, Ulpianus and Celsus. Gardini gives the following explanation in his article in DPSP Annual, vol 2020, Ulpianus is a Roman jurist who lived between the second and third centuries AD. The Digest of Justinian (abbreviated as ‘D’) is composed of 50 ‘books’. (the number of the book is indicated by the first number after ‘D’) Each book is divided into ‘Titles’. (second number after ‘D’) Each Title is divided in ‘Fragments’ -in the past referred to as ‘Laws’. (third number after ‘D’) Each ‘Fragment’ is divided into ‘Blocks’. (fourth number after ‘D’) The abbreviation ‘D136514’, therefore, pinpoints the fourteenth block, of the fifth fragment, of the sixth title of the thirteenth book of the Digest. In the Digest each fragment is preceded by a summary indication of the author and the work from which the fragment was extracted. ‘Ulp 28 ad ed’ indicates that the fragment was extracted from the 28th book ‘Ad Edictum’ of Ulpianus (‘Ulp’). Celsus a Roman jurist who lived between the first and second centuries AD. -#-
162 : Julius Paulus (222–235 AD), Roman jurist.-#-
174 : The text of a legal provision is at the same time an expression of the subjective will of certain persons, who lived in the past and an objective guideline for present time. Still it can only have this objective meaning on the basis of the fact that it once was willed by certain persons. See elaboration in 180.-#-
182 : There is no fixed ranking of methods of interpretation.-#-
187 : Pedagogical value of systematization.-#-
190 : If the legislator issues different regulations for attachments concurrently, then it is certainly possible to derive from these the nature of attachment according to Dutch law. However, when one deduces a rule from this “nature” and applies this to the attachment by garnishment, one assumes that the attachment by garnishment has to be considered according to the general rules for attachments in this respect as well, and yet this is clearly not a logical necessity. -#-
197 : The use of the logical-systematical method is fine, but it is a mistake to use it exclusively.-#-
205 : Obligation/obligatio/verbintenis, Bond/vinculum/band.-#-
209 : “Praesumptio juris and praesumptio juris et de jure”, added Paul Scholten between brackets. Legal presumptions are either refutable (juris tantum) or irrefutable (juris et de jure).-#-
213 : Every construction is allowed to have an element of fiction, it is never allowed to become a fiction, and this happens as soon as it assumes certain facts. The actual situation is the point of departure for law, it is not produced by it. It is noteworthy, however, how often such feigning happens. See also An. 216.-#-
216 : Fictions have been of great importance for the development of law and they will continue to be so. They solve the continuous clash between new requirements and the existing system. It is impossible however to use a fiction consciously. As soon as it is pointed out as such, it has to be rejected.-#-
221: Gezamendehandsche gemeenschap: an association of which the partners are each fully entitled to the property of the community, while respecting the equal right of the other.-#-
222 : Convergence of justice and logic. One needs logic to be able to fulfill the principle that the same cases should be treated in the same way. The limits of this principle.-#-
230 : Crucial distinction between basic forms of thought and concepts. See also block 231.-#-
239 : Besides the logical a priori in the basic forms of thought, there is a social and an ethical a priori in the basic forms of acting.-#-
241 : Limits of systematization.-#-
251 : Distinction between analogy and principle, why a principle is not a rule. Principles can only be applied after an applicable rule is derived from them. Deriving such a rule is not a logical but an evaluative process, not thinking, but acting through judging.-#-
256 : This part (also 257) has been re-written extensively to get rid of juridical details, which refer to old legislation. -#-
260 : The ethical character of the principle implies judging and this entails the possibility of gradation. See also 266. -#-
263 : Distinction between legal principle and legal rule.-#-
268 : Crucial block for Scholten’s argument. He does not merely attack positivism, but also the types of idealism, which hold that a general idea of justice can be known and used to criticize existing law and as guidance for the creation of new laws, but do not accept its use in concrete cases. He uses the words highly objectionable in this context.-#-
270 : Block is also important for the primary place of conscience and conviction. For those who adhere to the Christian Belief, the conviction will be a Christian conviction. -#-
271: In ethics, just as in every science, we in the end have to acknowledge the important role of personal conviction, when we only dig deep enough in our inquiry. This is Scholten’s personalism. -#-
275 : Separation between analogy and extensive interpretation is impossible.-#-
Annotation: Scholten rejects the opinion that in penal law extensive interpretation should be avoided.-#-
278 : Scholten rejects the opinion that in penal law extensive interpretation should be avoided.-#-
287 : The distinction between jus commune and jus singulare refers in this block to the jus commune as the Christian mitigation of contract law in the Middle Ages, compared to the Roman view.-#-
297 : understanding analogy means rejecting the idea of a gap. Every application of rules is partly intellectual and partly evaluative.-#-
299 : Every decision, also those which are so-called done according to the wording of the law, are at the same time application and creation; there is always the judgment of the person who decides, that co-determines the decision. The conclusion in a syllogism is only logically compelling as far as both premises, the major and the minor are given. The minor is formulated by the judge. It is this formulation, which determines the outcome.-#-
300 : This block is crucial for Scholten’s conception of the judicial decision as a leap and the system of law as an open system. -#-
301 : Definition of system. The law is a set of norms, not however of norms which are valid independently of time and place — such as for example the rules of logic — but of norms, which derive their authority from particular historical events (the act of legislation, or in the case of customary law, the actions of persons subjected to the law). Furthermore, these are norms which are in the end dependent on application. It is thus a norm-system and at the same time a system of actions. A theory or sociology of law which separates these two sides is therefore contrary to the view Scholten defends.-#-
302 : The system has to be seen as “dynamic”, not “static”. It follows from this, that we should not emphasize the contradistinction between legislator and judge as a sharp demarcation: the first being free, the second bound”, but instead that in the creation of the new the legislator remains always bound to the maintenance of the old, while the judge in the maintenance of the old always adds also something new to the existing.-#-
306 : The written law is both the expression of intention of the legislator and at the same time it is a value in itself. Now we have to add to this that the written law is a part of the practice of law. This is the ever-changing life of a people, which can only be distilled from the forms of the law by historical research. Every new law brings a new element into the system of law, but it brings this into the system, the new is never completely new. In Scholten’s opinion we still are not impressed enough by this truth, brought to light by the Historical School.-#-
309 : Historical relevance and legal relevance is not the same. See also block 324. -#-
320 : Scholten holds a dualist view. The clash between the wish for predictable law and the wish for justice will be everlasting.-#-
332 : Scholten refers indirectly to Justinian by citing in Latin ‘Non exemplis sed legibus judicandum est’, C7, 45,13. -#-
346 : Gény “the precedent not only has “un ascendant moral et pratique” but “s’impose à son jugement (of the judge) avec une force de conviction analogue à la force de la raison écrite, que connaissait notre ancien droit” The judge may refrain from doing his own research against established case law ; there is “une puissance sérieuse qui peut et dans une certaine mesure doit tenir en échec les incertitudes ou les caprices de la raison subjective”.
350 : Differences between the Dutch and the English system. See also blocks 336/337 and 344. -#-
351 : The value of computability of law. It has been one of the main reasons for codification and for the development of the doctrine of precedent. -#-
358 : The meaning of doctrine, the smooth transition from science to the social phenomenon of public opinion. Compare this block with 317, 335 and 347. -#-
360 : The difference between doctrine and social science. See also block 361.-#-
364 : The judiciary can impose its doctrine, while science cannot. Legislation and case law have authority because they have power; science possesses only authority, and this is why its authority remains of a different nature. See also block 365.-#-
367 : In this block part of the text is skipped, because it was too dependent of knowledge of the Dutch context of that time. It refers to a decision of the Supreme Court which could be read as adding jus receptum as a source which is different from approved doctrine. Scholten rejects this view. -#-
369 : In this block Scholten connects the universality of science with the context of international law. In a certain sense international law is natural law. Scholten: “Why is it science to which authority is awarded? The answer must be: because it is only science which establishes rules in this domain. (…) This recognition is based in principle on no other ground than that which makes people follow science everywhere and in every domain.” See also block 370-372 which explain why legal science loses its function with the codification. -#-
376 : Scholten states that law is necessarily both custom and written law. -#-
378: The equivalence of rule and that which usually happens. One can think of normal (that which answers to a norm, but also that which happens usually)
379: Dualism again. “There is a tension here that people can recognize, but not remove. And even less so, because both claim absolute dominance. It is because of this that we see time and again that the one is sacrificed to the other, either the law is subordinated to custom, as sociologists are wont to do, or custom is set aside by the written law — which is typically juridical, at least during the 19th century and in our present time.” -#-
382 : Crucial block. See also 383. Scholten calls written law and custom two contradictory powers, a twofold authority. He says that his whole argument is oriented at this duality of a system which is set up logically but is at the same time conceived as open to a break by custom. There is no fundamental solution. In individual cases the solution will sometime follow the written law and sometimes custom. -#-
384 : The principle of “rebus ipsis et factis” has played an important role in the history of the protestant church (See block 439). The belief that people declare their will by voting or “by conduct or resignation” (rebus ipsis et factis) assumes that custom implies a conscious expression of the will of a people, about what should be law. According to Scholten this idea is wrong: an act is not performed because it is lawful, but the legal consciousness develops in the course of and by action.-#-
385 : Scholten rejects the idea (Historical School) of the written law as the expression of a collective mind.-#-
400 : Two functions of supplementary law.-#-
405 : Scholten clarifies that the competence of the legislator is accepted as an a priori for the argument in General Method. He points out that this acceptance is not self-evident.-#-
413 : A general rule that determines when repeated use has gained such intensity and firmness that people in the future can also depend upon it, cannot be formulated. It is the judge who in the end has the decision here. The judge formulates the custom and this is very important, but this is not a creation of law.-#-
417 : This block has an important explanatory endnote! See also 419. Scholten rejects the view that only formulated law is law. See also 424.
418 : Scholten refers to forms of law which are nowadays called soft law.-#-
424 : Formulation of customs is establishing the past in a way that is oriented at the future. We only get hold of ideas, when we have a clear understanding of them and this means that we can formulate them. But the custom is not its formulation. -#-
449 : The translation of eisen van het verkeer by ‘requirements of social and economic life’ does not draw attention to the novelty in legal theory i.e., the introduction of the idea that the new discipline of sociology can determine scientifically what is needed (objectively) for social and economic life. It should be questioned whether it is possible to acquire objective knowledge of the functional requirements of social life.-#-
451 : Refinement of law is not simply an exception, but an exception based on an analysis of the law and the formulation of a legal principle. Requirements of social life as used by the Supreme Court is not a legal principle.-#-
454 : Teleological sociological interpretation: There is an acknowledgment of the facts, but at the same time there is a decision about the efficiency of a certain practice. This manner of finding law can be called sociological as well as teleological: it investigates the social practice) and draws its rule from it, but it does so because it is judged that social life can only function efficiently when it is in accordance with this rule.-#-
455 : The teleological method is also applied when the judge takes a decision according to the nature of the matter. In the Civil Code the written law does refer to the nature of the agreements, when it instructs the judge to determine what is required by custom and equity in agreements. -#-
457 : When a regularity is seen as binding in and of itself, then there is customary law. When a decision is derived from the social function (goal) of a certain type, because it seems to serve this function best, then there is a judgment according to the nature of the agreement. -#-
469 : Law of Reality is the name of the current Journal on Socio-legal Theory in the Netherlands. According to Scholten the term is used in many different ways. There were people who put the law of reality on a par with the positive law in a sociological sense. For others it was a call for the acknowledgment of the real elements in the practice of law, of the meaning that social practice, social and economic life and similar elements have for the development of law. All this is comprised by the term as it is intended by its author, but this still does not make clear, if I am right, what he really intended to say. For Hijmans law of reality is also in the first place an appeal to the intuitive understanding of the case, a decision according to this insight: to the sense of justice.-#-
470 : Scholten wants to avoid the term “sense of justice”. He emphasizes that handling a case, is not only to “sense”, but also to perceive and to judge intuitively. 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.-#-
476 : It is the task of the person who searches for law to find out if his decision can stand generalization. A legal decision is never purely individual, in this it is opposed to a moral judgment.-#-
477 : It is the task of the jurist to analyze which aspects of the judgment can stand generalization. This is the most important part of his effort. -#-
478 : Formulation of the sprong or leap the judge has to make to arrive at a decision.-#-
481 : The term conscience of law is not used to indicate the judgment in any specific case, but the active awareness in every human being of what law is and should be, a specific category of our spiritual life, by which we distinguish with immediate evidence between right and wrong, independently from the way one finds this expressed in existing institutions, in the same way as we do between true and untrue, good and bad or beautiful and ugly. -#-
482 : See also 483 and 484. Scholten rejects the view of Jeremy Bentham as propagated by Kranenburg: “It rests on the assumption that we can determine completely by intellectual inquiry what we ought to do and that the highest truth can be found in a general idea or law, from which the actual truth can be derived by deduction. — assumptions that are part of an intellectualist and rationalist conception of life, which I wholly reject.” -#-
490 : See also 491 and 492. Conscience as a legal category has two meanings: individual and general (moral). Concerning the general meaning: It is certainly not true that the content of the general legal conscience simply is the law. This is already not true, because the existence of such a general content of the legal conscience of a certain nation cannot be demonstrated. We do not have the right to say that the conscience of all requires this or that and neither of the majority. We know nothing about this. -#-
494 : The individual legal conscience speaks only then when a person who is aware of his responsibility forms his judgment. -#-
497 : See also 498. One should not indulge in the naive illusion that the judgment of the majority does away with the differences of the individual variation and that the objective element, the factor of justice, remains as the common element. Scholten agrees however with the view that the legal judgment should satisfy those who are subjected to it. A rule, against which a large group would revolt because they see it as injustice, can indeed not be imposed. This is something completely different from deriving a rule from general conceptions. -#-
500 : The judge is always an agent of the community — his decision is not an individual moral judgment, but a statement given by somebody with power that binds the community. -#-
504 : Scholten refers to the scales of justice of Themis. Both parties throw into the scale that which can turn the scales in their favor, that which they can contribute to the richness of arguments. The party whose claims are the heaviest wins. Although this image makes clear how every claim is valued — it falls short in one respect. It doesn’t show that the one who searches for law, let’s say in this case the judge, is personally involved in the job, that the balancing is not impersonal. -#-
505 : The decision is an act. -#-
507 : “Thou shalt” or “thou shalt not”, “thou may “or “thou may not”, the command is the core of any judicial judgment, even of the judicial decrees which are declaratory or constitutive. Such words can only be uttered by him, who is convinced of it in his own conscience. The legal judgment is rooted in the moral part of our spiritual life; a good judge always desires to impose that which he can justify in his own conscience. In this respect every legal judgment is irrational. -#-
513 : The judge is obligated to account for his decision to himself and to others, he has to ask himself if his motives were professional, i.e. whether he was led by considerations based on the case and not on his sympathy or antipathy versus the parties, he is forced to point out if and to what extent his decision can be generalized into a legal rule. It is because of this that it is so important that the reasons which really persuaded the judge are mentioned in the judicial decree, that he doesn’t content himself with mere silencers or clichés. -#-
518 : Many judges testify they had a clear decision immediately in mind, for which they later collected the reasons. This may be true for many judges, but it doesn’t mean that these reasons had not already played a contributive role within the decision, or intuitive glance, the judge immediately had. It is possible to distinguish analytically between arguments of the intellect and the emotion in the final decision, in reality they exist only intertwined. -#-
519 : In the emotional facet of our spiritual life the legal judgment touches on the intuitive distinction between right and wrong, the moral judgment, and at the same time on the awareness of the community in which this law must be realized — in the intellectual facet it touches on the account given to the community and to the authority that resides in it, and also to one’s conscience. 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. -#-
520 : To find law is always at once an intellectual and an intuitively moral job. It is a decision about what is and what should be at once, and precisely because of this it is distinguished from the moral as well as from the scientific judgment. -#-
521 : Comparison with the scientist is possible as far as the externally oriented obligation to give arguments is concerned. It is also said about scientists that they see solutions for problems before they can prove them. It shows that within the intuitive also strong intellectual elements are comprised. -#-
522 : Concerning the internally oriented obligation to justify the decision it can be concluded that precisely because the decision is a conscientious decision, it is completely free from arbitrariness. The decision is only accounted for internally when the judge can testify “I cannot do otherwise”. -#-
524 : It happens in science, that a scholar who is faced with a problem answers: I don’t know the answer. This shows the difference between science and law. A judicial decision is not a scientific proposition. The judge is expected to act. He has to have the courage to bear the responsibility: in the end I say a or b, not a and b. -#-
526 : Again emphasis on responsibility. The decision is not the only one possible in the context of the legal system and probably somebody else would have decided differently, but for him every other decision is ruled out, because it is a conscientious decision. But such a conscientious decision can only be passed by the one who is aware of his responsibility, by the judge who takes his job seriously. -#-
527 : In many cases there are arguments in favor of the standpoints of both parties: the reasoning of both sides has value, relative value. The law recognizes the value of both but asks in the end for a decision. -#-
528 : From the lawyer an argument is asked. From the judge a deed. Every jurist, when judging, formulates a decision, which he would take “potentially” as a judge. His choice is a choice in freedom, but exactly because of this it is obligatory, externally and internally. It is his duty. Wise is the judge who has both understanding and is empowered to act, who knows and can, who subordinates his knowledge to his acts. -#-
529 : Scholten acknowledges that conscience can err. One shouldn’t think however that pure intellectual work offers more certainty. The one and the other remain the work of humans, defective and fallible. Others will judge differently. Much of what presents itself as a legal decision, which seems in all respects the only possible one, appears not to be able to hold out. There is no demonstrable truth here. But it is better to accept that which is defective and subjective, than to gape at an appearance of objectivity and certainty, which is nothing more than show and doesn’t hold out against criticism. None of this alters the fact that the person who pronounced the decision is objectively bound by it. -#-
530 : Scholten believes that the individual conscience doesn’t speak the last word. In his view the inquiry into what is capable of giving guidance here is not the business of the science of law. Therefore it falls outside the framework of General Method. In my opinion there are only two options: either that an idea, the idea of law, one of the forms in which the world spirit realizes itself, can be guiding here, or that the conscience is subordinated to a higher power, who, revealed as Person in Creation and History, confronts the individual and the community with his unconditional claims. The first is the conception of idealism, especially in its Hegelian-pantheistic forms; the second is the demand of the Christian belief. It seems important to compare this block with block 268.-#-

Review by Translation Committee on 25-11-2020

Comments to General Method of Private Law.-#-
-X-The comments concern the translation problems detected by TC (Translation Committee, Liesbeth Huppes-Cluysenaer, Marjanne Termorshuizen-Arts and Cassandra Steer).These were posted on in 2013 and have evoked some reactions, which are comprised below. Some comments are skipped, because they concerned aspects which have lost relevance in the adapted version of the text, which was made recently. The numbers refer to the blocks.-#-
8 : TC has struggled with the translation of regels opstellen. Making, handing down, drafting? There was hesitation about the use of creating. In a reaction Marieke Oderkerk suggested provide.-#-
12 : TC has struggled with the translation of ‘aanvulling’ and ‘aanvullend recht’. The choice has been made for supplementary and supplementation. Marieke Oderkerk has posted a reaction to it: ‘aanvullend recht’ has a particular legal meaning, i.e., ‘non-mandatory rules’ (if I am correct) ‘Aanvulling’ has not a legal meaning. In this context I would suggest the following translation elaboration (and not supplementation).-#-
16. : The words ‘goede zeden’ are usually translated as ‘good morals’. TC has followed this use. There has however been great hesitation, because this translation seems to neglect the behavioral reference of the concept. See especially section 24 with the title Custom versus compulsory law.-#-
17 : Maybe the term genesis as translation for ‘wordingsgeschiedenis’ needs some further explanation. -#-
23 : The choice has been made for wrongdoer instead of tortfeasor to avoid as much as possible legal jargon, like Paul Scholten does himself.-#-
26 : TC has struggled with the translation of misbruik van recht. The choice has been made for abuse of right, but this may refer for an English speaker to human rights.-#-
34 : Fundamental for TC was the question how to translate ordening. Sometimes the translation regulation fits well. But sometimes the word is used in a much broader sense, indicating something like structuring society – using the existing institutions according to their true function. Although TC prefers to use the same translation for the same word, this doesn’t seem possible here. TC has further struggled with the translation of the first sentences of this block. Moreover also the translation of waardering was problematic. Evaluation may for the continental reader refer too much to a concept directly connected with new styles of governing in which the evaluation pertains to success in terms of the chosen goals or other agreed criteria. In Algemeen Deel the word waardering seems to mean assessing the merit or nature of things. Sometimes it can be best translated with judging, mostly the term valuation is chosen, sometimes appreciation would be better.-#-
40 : TC struggled with the translation of aan zich trekken van een beslissing.-#-
47 : TC has struggled with the translation of kracht van gewijsde. -#-
48 : TC Footnote how should one translate geruchtmakend here?-#-
52 : TC has struggled with the translation of the concept ‘sprong’ that made Paul Scholten famous Should it be jump like in jumping to conclusions? Or should it be leap like in leaping forwards?
79 : TC has struggled with the translation of motivering. Is justification better than clarification?-#-
83 : The concept beschikken is difficult to translate. The choice made is ‘acting according to one’s own rules’.-#-
112 : About the word ‘burgemeester’. Mayor is a chosen person The translation used is burgomaster. -#-
143 : About the concept wetshistorisch. Is statutory-historical an acceptable translation?-#-
144 : TC struggled with the translation of het concrete recht. Is law in a concrete case an acceptable translation?-#-
154 : TC discussed the translation of zo ergens, dan is in het recht het denken gebonden aan de taal en wel de taal van een bijzondere formule. The words in (methods of interpretation); (these other) resources (…)that is, the letter (of the law) are added by TC as it was clear that the native speaker didn’t understand the sentence without these additions.-#-
155 : TC (In conflict) with or With (respect to)?-#-
156 : TC has discussed whether image is a good translation of ‘voorstelling’ or idea is better? See also 147. Many theorists of PS s’ time have developed insights which after WWII have been especially disseminated by Wittgenstein’s book Philosophische Untersuchungen. Specific for Scholten is his interest in developing the consequences of such a view for legal practice.-#-
157 : TC has discussed about the translation of het komt niet op de woorden afzonderlijk aan: it is not the individual words separately that or it is not the individual separate words that matter? Further: Not every word separately produces an image or not every word produces a separate image? TC has further discussed about voert vanzelf tot: of its own accord or naturally?-#-
158 : TC struggled with the translation of en dat de toehoorder van zelf bij het in zich opnemen van de woorden die hem bereiken aanvult.-#-
163 : TC discussed the translation of hoewel naar letter en uitlegging de toepassing is uitgesloten. Aldus de HR.-#-
172 : The words in bold be added or not? Firstly it is said that the intention (of the legislator), maybe could have been established if we had been confronted with the legislation of one single person, but that it cannot be known with our many-headed one.-#-
177 : TC has struggled with the translation of ‘ambtshalve aanvullen’.-#-
178 : TC struggled with the translation of al moet worden bedacht, dat zij bij het omzetten van wenschen in werkelijkheid den doorslag gaven. Also problematic was the translation of daarmee is niet alles uitgemaakt.-#-
179 : Should some words be added to clarify the meaning of someone in the phrase then his word concerning the interpretation will have more weight than the word of someone who only reproduces what his functionaries have put before him? Something like some other Minister?-#-
181 : TC thinks that there is a mistake of Paul Scholten here in the text. Proposal to translate Gene with the words the new one, and deze with the words old one.-#-
185 : Problem concerning translation of de aard van het recht als bevel en ordening.-#-
190 : TC found it difficult to translate als de wetgever enige bijzondere uitspraken geeft, hij nu ook wil, dat, wat aan deze gemeen is, als algemene regel geldt.-#-
193 : Question how to translate het essentieele daarin aan te wijzen and dat feiten ter beoordeling worden voorgelegd.-#-
198 : How to translate dat het “bestaan” van natuurlijke en rechtspersonen op één lijn kan worden gezet?-#-
201 : How to translate Bepalen we ons tot de stof in de wetgeving zelf, dan liggen de voorbeelden van verwerping van vroegere en opstelling van nieuwe leerstukken in het recht der laatste tijden voor het grijpen. It seems important to use the distinction between form and matter consistently.-#-
210 : How to translate dat wie een recht op eens anders goed beweert te hebben?-#-
212 : Discussion in TC about maar ook wat men laat doen.-#-
215 : Native speaker is not happy with ‘conception’. Corrects time and again with concept.-#-
224 : Discussion by TC about translation of de rechtswetenschap altijd tegelijk is systematiseering van hetgeen is en voorbereiding van hetgeen zijn moet.-#-
229 : TC struggled with the translation of We komen daarmee juridisch geen stap verder, kunnen met het zoo gevonden begrip niets uitvoeren.-#-
240 : How to translate dat met de aanwijzing der categorieën op zich zelf omtrent de inhoud van het recht niets is gezegd.-#-
241 : There has been discussion in the TC about de betekenis van de constructie … kan niet buiten de constructie …… niet buiten de theorie. Is it the construction and the theory or simply construction and theory?-#-
249 : TC questions whether it should be damages instead of damage.-#-
258 : TC The word tacitly is chosen because of the use of the concept ‘tacit knowledge’ in contemporary language theory.-#-
261 : Here the word ‘waardering’ seems best translated by judging.-#-
263 : TC had difficulty to translate this passage: Is ‘a legal principle however will not be law as long as it is not applied, since an authority other than the legislator has to formulate the rule’ a good choice?
266 : TC hesitated about this translation There are different levels in the merit we give to principles.-#-
270 : Is categorize a good choice here as translation?-#-
278 : TC struggled with the translation of the last sentence of this block. -#-
307 : TC struggled with the translation of this block.-#-
328 : Very difficult block to translate. -#-
340 : The translation of ‘juridisch behoren’ caused trouble. Native speaker thinks ‘juridical ought’ is not possible and proposes ‘legal expectation’ or ‘legal norm’. -#-
342 : TC discussed how to translate ‘rechtsleven’ Chosen is ‘social practice of law’ Alternatives proposed were ‘life of the law’ or ‘the application of law’. -#-
352 : Unclear what is meant by ‘details of interpretation’. Should it be ‘methods of interpretation?-#-
354 : Very difficult to translate the sentence “Dat is het geval………zijn geregeld”.-#-
355 : TC had difficulty with the translation of ‘reactie op zijn eigen leer’. -#-
369 : Difficult to translate the sentences “We hebben telkens doen uitkomen …herleiden” and “In international private law…… attributed.
372 : TC has discussed the translation of behoorlijk and rechtens behoren. See also block 375 and 376 Solution chosen ‘behoorlijk’ = appropriate or proper and ‘rechtens behoren’ = rightfully fit. -#-
395 : The last sentence of this block was difficult to translate: gemeenschapsverhoudingen. -#-
396 : Translation of niet geregelde gevolg is difficult, because the expression is ambivalent. TC thinks that the meaning is not a consequence which parties decided not to take up in the agreement, but a consequence about which the agreement contains no provisions (for whatever reasons).-#-
412 : The word zeden, which is also used in goede zeden, and which is translated normally by ‘good morals’ has a close relationship here with habits. Maybe ‘social rule’ would be better, but this concept entails a philosophy of language (communication theory), which is contrary to Paul Scholten’s view. -#-
417 : There has been discussion about ‘codification’ or ‘the codification’ referring to the start of the codification process since Napoleon. -#-
466 : Typing error ‘Das Legische’ should be ‘Das Logische’-#-
473 : Sometimes rechtsvorming is translated by development of law, sometimes by formation of law The latter seems best when the law is made in the course of its application.-#-
481 : TC had difficulty with the translation of positieve instellingen.
486 : ‘equality’ or ’equivalency’. -#-
488 : nullity’ or ’voidness’? -#-
505 : It is interesting to compare the concept “sprong” or “leap” of Scholten with the following citation of John MCooper in his book Reason and Emotion (1999, page 184) when he discusses Plato’s dialogue Statesman “A little later (190a) Socrates offers his own account of opinion or belief (doxa) Belief or opinion occurs when the mind, whether after “carrying on a discussion in which it asks itself questions and answers them itself, affirms and denies” or in a sudden leap, arrives at something definite, addressing to itself a “statement”(logos) in which “without divided counsel” it makes a consistent affirmation”. Comment Knegt: Recht doen has been translated as ‘deliver judgment’, which to me seems a bit bleak and local in comparison to the connotation of ‘performing law’ that I hear in the Dutch expression, and which is consonant with his idea of local decisions that together all contribute to the constitution and improvement of the system of law.
508 : TC Difficult to translate ‘motiveren’ See also the comment on block 79

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