Reviews of Kelsen and Scholten on Reason and Emotion in Solving Cases

The article, ‘Kelsen and Scholten on Reason and Emotion in Solving Cases’, by Nuño Coelho, seeks to place the work of Paul Scholten and, in particular, its conception of judicial decision-making, within a framework where it assumes a superior position to Kelsenian positivism. By adopting this underlying structure, the article attempts through the progression of its argumentation, to demonstrate the limits of Kelsenian positivism and the comparative superiority of Scholten. In this manner, the article contains a complex interpretative position regarding the question of the relationship between reason and emotion in judicial decision-making. For it seeks, through this confrontation with Kelsen, to think with Scholten beyond Scholten, in order ‘to become conscious of the method which is used in the science of private law’ (Scholten, General Method of Private Law §1).
For this interpretative position to reveal its full complexity, the presentation of the work of Kelsen and Scholten has to be integrated with a critical framework which, through the demonstration of the limits of Kelsen furnishes the basis for the positive consideration of Scholten’s theory. It is this integration of the presentation and the critical framework that will form the main focus of the review.
In relation to Kelsen, the presentation centres upon the Pure Theory (Reine Rechtslehre) of 1960, and concentrates, in particular, on a critical analysis of Kelsen’s conception of judicial decision-making. Kelsen’s conception of judicial decision-making is, for the article, the point, within this pure theory of law, where the question of the application of norms reveals the acknowledgement of the presence of non-cognitive moment upon judicial decision-making: the exercise of the will to select from among a range of potential decisions. However, while a non-cognitive moment of judicial decision-making is acknowledged by Kelsen, the article considers that it is Kelsen’s excessive emphasis upon cognition which effectively prevents a consideration of the presence of emotion, and beyond this, practical reason as legitimate aspects of judicial decision-making.
It is arguable, however, that the Kelsenian approach to judicial decision-making derives from a prior methodological reflection upon the relationship between a theory of law and judicial decision-making. Kelsen’s seemingly limited interest in the process of legal decision-making flows from the methodological self-understanding of a pure theory of law. The Kelsenian theory of law, as a pure theory, begins not from legal decision-making, but from the question of how one establishes the possibility of elaborating a theory of law from law itself. In other words, legal decision-making is an aspect, which while integral to the pure theory, remains dependent upon establishing this possibility.
This, in turn, opens the question of the ease with which the transition can be made to Scholten’s theory as a theory of judicial decision-making. For Scholten’s theory commences from a different methodological origin, in judicial decision-making itself, and concerns itself with the elaboration of the method of this form of decision-making. This is combined with the introduction and acknowledgement of those elements – emotion and some form of practical reason (‘conscience’) – which, for Kelsen, would render incoherent any attempt to construct a pure theory of law. The question is not one of defending Kelsen, but, rather, of requiring the discussion of the pertinence of Kelsen’s critique of natural law in regard to Scholten’s moral understanding of the law. While Scholten, at the conclusion of General Method of Private Law §530, requires a conception of legal science to remain within the boundaries of individual conscience, and, therefore, only to indicate, but to leave unexamined, the possibility of supra-individual guidance, the notions of conscience, responsibility, justice, introduced and elaborated in the General Method of Private Law, indicate a source of judicial decision-making which is not strictly positivist in character.
The article considers that Scholten offers a form of methodological compromise – an acknowledgement of the ineradicable presence of emotion in judicial decision-making combined with an acknowledgement of a type of ‘bounded’ or limited rationality of judicial decision-making. The methodological compromise is the corollary of the ‘moralization’ of judicial decision-making: the assumption of a role – the judge – which involves the conscious assumption of responsibility. This, in turn, involves the substitution of the Kelsenian project of a legal science of positive law with that of a form of practical reason.
The underlying substitution raises the question of the extent to which the critical comparison of Kelsen and Scholten, and its accompanying primacy accorded to a form of practical reason, can itself remain as the conclusion of the article. For it is arguable that the notion of practical reason has been subject to further and extensive reflection, and has extended to the question of the foundation for a conception of practical reason (Alexy, Finnis, Nino) together with the question of the demarcation a domain within practical reason which is specific to the practice of judicial decision-making (Alexy and Habermas).

General assessment.
The paper addresses a relevant subject in the theory on decision-making by the judge. A comparison between Kelsen and Scholten is potentially very interesting. However, I found the paper difficult to read due to deficiencies in language, style and structure of the argument. For these reasons, I believe the article would benefit from a serious revision and a proper ordering in paragraphs. Moreover, the description of the two positions (Kelsen and Scholten) and their comparison remain on a very basic or elementary level and the central point is not argued for convincingly.

Concerning the content I recommend a clarification of the central concepts and a better substantiation of the general claims.
In more detail:
a) A central research question is lacking. Why are Kelsen and Scholten compared, from which point of view and for what purpose?
b) The author sometimes makes very sweeping and general claims without providing arguments and/or sources, for instance:
“This claim has been attacked by many approaches, in Humanities and beyond;“The self-description that most jurists keep about their activity still obeys to a rationalist- cognitive schema” (section 1): which jurists, in what activity?; Kelsen’s Pure Theory of Law is claimed to provide “an important recognition of emotions of finding law” (section 1): that is not demonstrated in what follows. On the contrary, Kelsen is criticized for not paying enough attention to emotions in his theory.
c) The description of Kelsen’s theory is in general correct, but very basic and elementary. In his criticism of Kelsen, the author seems to regret that Kelsen does not give an empirical description of “what actually happens in courts” (section 3) or does not give normative guidance “to help judges to decide correctly” (section 4). You may regret that, but in his Pure Theory of Law Kelsen delibaretely refrains from doing so. ‘What actually happens in courts’ is, in his view, a topic suited for the sociology of law. Moreover, he does not want to give normative guidelines, because this is, according to him, no scientific matter. Interestingly, the author comes to the same conclusion, after having discussed Scholten: “Of course, there is always the risk of arbitrariness. However, no legal methodology could knock out this risk” (I would prefer to say “cannot exclude” or something instead of “knock out”). Kelsen would fully agree with this, so why is Scholten deemed to be superior to Kelsen when it comes to interpretation theory? Especially when it comes to the role of emotions, I do not see why Scholten offers a better description than Kelsen.
d) The description of Scholten’s theory remains very close to the original text and could be analyzed more deeply and clearly, in particular with respect to emotions and the relation between the emotive and cognitive aspects in decision-making. What exactly is the place of emotions in Scholten’s theory and what exactly are they? Can they be equated with moral intuitions, as the author seems to suggest?

I want to thank the reviewers for their comments.
Concerning the comments of the first reviewer (Langford), I’d like to remark that the article does not intend to make a comparison between Kelsen and Scholten in order to claim the superiority of the latter. I just recall Kelsen’s reduction of legal reasoning to a purely intellectual activity (sharply distinguished from the political aspect/phase of legal decision) in order to clarify how reason and emotion work together in Scholten’s work and to explain why his view persuades me.
Concerning the deficiencies of English language and style found by the second reviewer (Klink), I want to remark that the language policy of the DPSP project accepts Global English, which allows for some mistakes and uncommon ways of expressing. I have concluded though, that in the case of my article the quality of the language has impeded the understanding of the second reviewer. A professional has therefore been asked to give the article a new language edit. Concerning the suggestion of a restructuring of the paragraphs, I did agree with the second reviewer and have done so. As a last step to clarify the content of the article, I have extended the abstract.

In my view, the revised version is a real improvement, both in terms of language and content. I still think that the author criticizes Kelsen for the wrong reasons, that is for not doing what Kelsen deliberately refrained from doing, as I pointed out in my first review. However, I could follow his line of reasoning much better now. I find his description of Scholten’s theory interesting and a valuable contribution to the academic literature on legal interpretation. It would have been helpful, if the author would have included the original research question in his introduction, together with a short problem description (as can be found in the abstract). What is still lacking, is a description of his conception of emotion and its relation to moral intuitions or judgments. Finally, the author states: “The decision does not matter to the science of law.” This is not correct: the decision does matter to the science of law, but only as information on the content of the law. It is true, however, that in Kelsen’s view science could not help the judge to make the right decision. (And neither can Scholten’s theory, I would add.)