Reviews of Scholten’s Reflections on Judges’ Practices

An Apology of the Mystery of the Legal Craft
by Robert Knegt
(3 reviews)

Review by Olaf Tans on 12-09-2018

I see this contribution as a sociological, and partly socio-historical, interpretation of Scholten’s account of the judge as pivotal actor in the ongoing development of law. It is a rich interpretation in the sense of using a wide array of prior research to paint a detailed and multifaceted picture of the judge as practitioner. The upshot is well captured in the header of the penultimate section: ‘The General Method as a reflexive account of legal practices’. It is illuminating that this account can be read as a mere reconstruction of what judges actually do, but also as an advice as to what they should do, and as a legitimation of their work. The comparison with the Speculum Regum and the publication of the mysteries of craft is original, but perhaps it would have been more effective to simply make the comparison with the ‘great books’ of the common law by the likes of Albert Venn Dicey and William Blackstone. These book seems to have (had) the same functions and are to a large extent – unlike the used examples – about judicial decision-making, i.e. case-law.
My main point, however, is that the abstract and the introduction create a bit of confusion about what the article is about. At the end of the introduction, it is stated that the piece offers, firstly, a sociological perspective on Scholten’s account of the judicial practice and, secondly, to what extent it is a sociologically adequate account. In my view, the body of the text does not offer the latter, at least not sufficiently explicit so as to warrant this second tenet of the problem formulation. Mind you, to me it seems perfectly fine that the piece ‘only’ offers a sociological interpretation of the General Method. No assessment of adequacy is needed to see the academic relevance. The abstract does not help to get a precise grip on the piece’s upshot, in that its summary of the line of argument seems to be incongruent with the introduction and body of the text. It states, for instance, that the writer aims to evaluate the consequences of the alleged civic duty of judges for Scholten’s legitimation efforts. Apart from the fact that I see no strong evidence of this evaluation in the body of the text, the introduction does not mention that research objective.
My advice would be to align the research focus as formulated in the introduction more precisely with the body of the text, and to align the abstract more precisely with that rewritten introduction. Perhaps the conclusion can be the guideline; in my view it captures the upshot more optimally. To guide the reader even more, it could also be considered to make more explicit in the introduction what type of sociological reading of Scholtens’ work is offered, and why.

Review by Daniel Nascimento on 30-10-2018

In “Scholten’s reflections on judges’ practices: an apology of the ‘mystery’ of the legal craft”, Robert Knegt offers an interpretation of Scholten’s legal theory that approximates it to some of the most important works ever written on political philosophy and to some very interesting recent developments in the so called “social theories” which have led to a greater focus on the analysis of social practices. The article provides a lot food for thought and discussion, but I would like to take this opportunity to ask for a few clarifications.
The first clarification is about the way that theory conceives the relationship between the activities of law-makers, lawyers, judges and legal scientists. At one point, we’re told that everything lawyers and legal scientists do is virtual judges’ work or is derived from judges’ work (p. 5), but we are not told what exactly does that statement mean nor if it also applies to the work of law-makers and, if so, how. At another, we’re told that even though in Scholten’s theory the judge is presented as ‘the primary actor on the scene’, he is ‘in uncomfortable company with law-makers as play-writers and with legal scientists as screenwriters and reviewers’ (p. 10), but we are not told much about how we should take those comparisons.
The second clarification concerns the way the activity of the judge is conceived. Scholten’s theory is alternatively presented as holding that the activity of the judge is (a) ‘doing law’ (p.4-5), (b) ‘doing justice’ (p. 5) and (c) judging and deciding what are the facts about a concrete figuration of human relations and what they ought to become (p. 10). It is not clear that these formulations are equivalent. It seems we could say that, if a judge appropriately sentences a criminal to some sort of punishment for a crime that he did commit, then (b) and (c) are satisfied, but it seems odd to hold that whenever that is so he is also (a) ‘doing law’, if by ‘doing law’ we mean creating a new law.
The third clarification concerns the judgments and decisions which, according to Knegt’s interpretation of Scholten’s theory, judges are expected to make while judging. According to what we are told, in this theory judges are expected to be “perfect mediators” between facts – defined as the particular complexity of a concrete figuration of human relations – and a judgment and decision on both how these relations are and what they ought to be(come) (p. 10). This formulation suggests that the judge makes a judgment and a decision about how the facts are, and a judgment and a decision about how the facts ought to become. But what exactly is this decision about how the facts are that he makes? And how is his judgment about how the facts ought to become different from his decision about what the facts are?
The fourth clarification concerns the duties that this theory attributed to judges’. According to what we are told, Scholten holds that all judges are always bound to argue for the fit between their decisions and the legal system (p . 6); that they have an uncontested duty to justify them in legal-rational terms, which is good for several reasons (p. 8-9); and that they should be attentive to the real complex of relations, including local customs, in which his decision should make sense (p. 5).
But we are also told that if the judges’ conscientious judgment on what ought to be done seems to run up against compulsory legal provisions, these provisions should not beforehand block a judge’s performance of his duty of ‘doing justice’ (p. 6), that it is for the judge to decide on the relevance and weight of different sources of law (p. 5) and that the only test that the judges’ decisions have to stand is the test of giving a legal-rational account of them (p. 8-9, my emphasis). Should we conclude, then, that according to Scholten any legal rational account will do to justify any judges’ decision?
Besides, this theory also claims that the “authority” of a judges’ office charges them “(…) with a personal, individual accountability (Scholten beliefs: ultimately to God) (…)” (p. 8). It seems, then, that according to this theory God bestows a duty on judges. But what does God ask of them? That is not explicitly said. Does God demand that judges get it right or at least do their best to get it right? And, if He asks any of these things of them, are they supposed to aim for what is right according to what source of law? God’s or men’s? Or does He ask only for conviction of ones’ judicial decisions?

Review by author's response on 30-10-2019

A short reply to the comments:
I am grateful to my reviewers for their comments. Olaf Tans’ remarks have given me reason to adjust the summary in line with his suggestions. He argues that the second question, from which I approach Scholten’s work, that is, whether it is a sociologically adequate account of judges’ practices, is not really answered. Although it may have been made insufficiently explicit at the end of the paper, my argument is that social theory has recently advanced toward positions that are reluctant to the importance of rules and that focus on practices, in a way that Scholten had argued for much earlier. Except for his religiously inspired individualistic notion of the duty and conscience of the judge, his account of judges’ practices is thus in many respects corroborated by new insights in social theory.
Daniel Nascimento asks for clarification, among others about the ‘uncomfortable company’ of the judge with lawmakers and legal scientists. This is due mainly to the primacy of the ‘inspired’ deed of the judge and the secondary role of rules that lawmakers and -commenters prioritize. ‘Doing law’ in this perspective is not creating a new abstract rule, but definitively adds to the whole of law as an open system. There is a dialectic relation between the judge’s judgment of the facts of the conflict and the judge’s judgment on how the relation between the parties should be in the future; to Scholten it is impossible to separate these two judgments. The judge’s duty to give a rational account for his decision in legal-systematic terms is not merely a formal exercise but may give reason to reconsider the initial ‘inspirational’ decision.

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