Reviews of Law and Context

Scholten’s Open System of Law and Legal Harmonisation
by Jaakko Husa
(3 reviews)

Review by Robert Knegt on 12-11-2014

In his contribution ‘Law and context’, Jaako Husa considers the way in which Scholten’s theory, and in particular his ideas about law as an open system, might contribute to the discussion on ’legal-cultural harmonization’ in Europe. This term does refer, not only to the pursuit of an increased uniformity and coherence of the legal systems of member states (of ‘formal law’), but also to what judges actually do. If we accept both this aim and the ‘open systems’ perspective, then the pluralism of national legal cultures seems to prevent harmonization. By introducing the metaphor of a kaleidoscope, Husa strongly pleads for recognizing pluralism as “a distinctive feature” of European legal culture. Instead of striving for uniform law, we’d better exercise patience and wait for the contexts of law gradually growing more similar.
Departing from the diametrically opposed extremes of theories of the ‘pure autonomy of the legal system’ vs. ‘mirror theories’ (law merely reflects its environment) Husa looks for “some kind of middle way” (p. 8) and finds Scholten’s theory, considered by him to be “an early version of the systems theory”, more readily accessible by its “more down-to-earth, judiciary oriented” character (p. 4,5). The fact that Scholten adheres to law as a system, however, does not bring him very close to what we know as ‘systems theory’, as Husa does suggest. It seems to me that the relative openness of systems is but what they share; from his position strongly based in an interpretative tradition, Scholten would, for instance, most probably have disliked a qualification of the judge as a “functional adapter” (p. 7), as a ‘lens refracting the beams of law’ (p. 7) or as an “actor who injects law’s contextual surroundings into law itself” (p. 4). Instead of these rather mechanical metaphors, he would, I suppose, have preferred the image of the judge as an interpreter of music, reading the score while trying to skillfully give expression to the intentions of the composer.
Husa’s contribution is important in that he calls attention to problematic aspects of the pursuit of legal harmonization in light of the legal-cultural diversity within EU member states, and in his attempt to make use of Scholten’s theory to argue for the essential contribution of judicial activity to the legal system. His analysis, however, remains somewhat enclosed between several sets of bipolar walls: of ‘law’s autonomy’ vs. ‘law as a mirror’, of unity vs. pluralism and of ‘law’ vs. ‘context’. He is repeatedly assuring us that it is not at any of these walls where we should be, but he tells us more about why not to look there than about what there is to be found in between. The legal system is said to be ‘both closed and open’, it is not static but dynamic, etc., in brief: it is incessantly argued that we should distance ourselves from a formal, doctrinary, unitary, decontextualized, and law-centered approach, “that there is more to law than only legal rules or legal institutions and that (…) legal culture requires placing law in societal and historical context” (p. 7). It is the individual judicial intuition, highlighted by Scholten (as well as by Alf Ross, Husa argues, but in a more realist, ‘external’ fashion), that provides for a mode of pragmatic thinking that theoretically allows for a connection between ‘law and context’. It is not quite theoretically satisfying that this connection, and the ‘openness’ that we gain by providing for it, could only be reached by letting the forging of this connection evaporate in the ‘magical moment’ (or should we say ‘black box’?) of the judge’s (in Scholten’s view) irrational intuition. This ‘irrationality’ may be relevant in the framework of an ‘internal’ view on the judicial decision-making process and, thereby, on the dynamics of law as a systematic whole, but much less so for an ‘external’ perspective on an effective legal-cultural harmonization in Europe. In this regard the contribution rather conquers room (from formal legal doctrines) than that it fills in this room with new insights.
I would argue that if we want to study harmonization of (legal) practices, it would be useful to stop opposing ‘law’ ‘and’ ‘context’ and to start off by looking carefully at law in society, at how legal elements pervade almost all social practices and interactions, and at how and to what extent external sources like European treaties and directives do matter for the role of legal elements in these myriads of practices and interactions.

Review by Juha Karhu on 12-11-2014

The essay by Professor Jaakko Husa (University of Lapland, Finland) “Scholten’s Open System of Law and Legal Harmonisation” is of interest for three kind of academic lawyers with different background. Firstly, as the theme of whole volume is signalizing, it gives new perspectives in the theory of Professor Scholten, and especially on the idea of dynamics of a legal system. The new perspectives applied by Professor Husa are built on latest developments in comparative legal scholarship, including themes like legal transplants or transfers, and transculturality, and the possibilities of European legal integration. This is of interest for those who are already familiar with Professor Scholten’s theory. Secondly, and for those more familiar with general legal theoretical analyses, and especially different dimensions of legal realism and pragmatic legal thought, the essay by Professor Husa highlights some key ideas in Professor Scholten’s theory as reference points. Through this Professor Scholten’s ideas, and that part of Dutch legal thinking, can be better understood as a part and parcel of European legal thought. And thirdly, for those with special interest on the rapidly evolving contextualist approaches Professor Husa offers the caleidoscopic interpretation as a compromise in the spirit of Professor Scholten between the systematic nature of legal norms, and their everlasting dynamic interaction with reality through and in the practices of judges.
As clearly stated by Professor Husa he is not giving any elaborated internal new interpretation of the overall general theory of Professor Scholten. Instead the essay is focusing on various possible congruent developments in Nordic and Western legal theory and comparative legal scholarship. Some themes typical of Professor Husa’s recent interest are clearly visible and documented by excellent sources: legal pluralism, various trends in European legal harmonization, multicultural nature of modern law, and pragmatic-contextual tendencies. Professor Husa’s analyses could be recognized to continue the European tradition of “allgemeine Rechtslehre” (jurisprudence, allmän rättslära, yleinen oikeustiede) where various elements of general and comparative understanding of law and legal system are put to “work” together but also against some more concrete and pragmatic phenomenon of legal practices.
Readers with interest in jurisprudential theories will find references to Hans Kelsen and Alf Ross well thought. Especially the comparison between Ross and Scholten sheds light to possible differences in two respects because both share a systemic, realist and pragmatist view of law. Firstly, the scientific approach to which Ross adheres is the analytical philosophy whereas Scholten’s ideas can be placed nearer to logic of norms and to what later became known as systems theory. Secondly both give a role to ethical dimensions as the foundation of law but the content of this fundamental ethics is different – for Ross some form of justice, for Scholten general Christian values. Moreover Scholten’s key insight that law as a legal system can never totally determine the decisions made by judges when applying the law can be seen to shed light to the problems of European legal integration. As Professor Husa writes in one of the key passages in his essay:

“…legal actors like scholars or judges are not only dealing with legal system as a logical and normative (autonomous) creature but also as an open system which receives ethical and mental inputs. Or, put differently, a judge is a kind of a human-lens of the kaleidoscope who transmits and refracts the beam of law.”

The development of legal thinking and legal scholarship has been and is happening unequally in relation to the branches of law. This holds true also in the case of more general theories of law and jurisprudence. Professor Husa’s essay shows clearly that comparative legal scholarship of our time possesses such characteristics and themes that offer more interesting analyses and “second round” perspectives than more traditional analytical legal theory or critical legal studies. Strength of successful topical analyses in law and legal thinking is that they can write also a history of their own, or the capacity to set previous theories in certain framework. So the essay by Professor Husa is balancing between the core ideas taken from Professor Scholten’s theory and the framework through which these ideas are understood as momenta in more general legal cultural developments.

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

I want to thank both reviewers. Juha Karhu for his nice compliments and Robert Knegt for pointing out some issues which ask for further discussion and elaboration.
It is of course always attractive to dig somewhat deeper, but it seems better to do this in a new publication and leave this one unchanged.

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