Reviews of Jumping Judges

Judicial discovery of the law
by Niels van Manen
(4 reviews)

Review by Jeroen Chorus on 07-07-2015

1. The Author (M) examines whether his personal experience as a judge tallies with Paul Scholten (PS)’s ideas concerning the way judges reach their decisions, as expressed in his General Method of Private Law (1931). His is not a contribution to legal theory, jurisprudence, or legal philosophy, but, so he states at the outset, a sociological analysis, though not based on representative (quantitative) data but on his own personal experience. This reviewer is not a qualified sociologist of law but a senior judge, of over 30 years’ experience, and a legal historian.
2. The article is divided into seven parts. In the first two parts M sketches the international (and Dutch) background and PS’s own personal background of his, PS’s, theory of the judicial activity of ‘finding the law’ (rechtsvinding), not as mechanically applying legal rules, without any interference of personal views of the judges. M explains PS’s version of ‘law as an open system’ , stressing particularly that judges – assuming that the ‘maior’ in the syllogism, ‘if A, then B’, is provided by an already recognized rule of positive law – must inevitably ‘jump’ in order to establish the ‘minor’ (‘A’) itself, and in doing so add something new to the positive law. M then, in parts 3 and 4, discusses first H.L.A. Hart’s ideas concerning ‘judicial discretion’ and ‘secondary’ rules, intended to remedy the defects of ‘primary’ rules, and the more recently introduced concept of ‘informal’ rules, and then PS’s view that ‘general principles’ are not suitable to predict the ‘jump’. Part 5 first summarises PS’s theory of the judicial ‘jump’ being rooted in the judge’s intuition and in his conscience, and of the origin of both that judicial intuition and that judicial conscience in something beyond the law, either an ‘idea of law … in which the ‘world spirit’ realizes itself’, or the requirement of Christian faith (or, as M adds, of some other divine faith). M then rejects such an origin, as he thinks it is contradicted by the existing differences as to what is regarded as a felony (etc.) in various countries and times, and by the lack of stability of prevailing legal opinions. M discusses, in part 6, the every-day occurrence of conflicting opinions of individual judges within the same panel deciding a case, which in system as the Dutch one (no dissenting opinion) remains invisible but for these judges themselves. He describes four, rather divergent, sources from which such conflicts may arise, at the same time four causes which may make judges jump in a particular direction: the use of legal knowledge (esp. analogy, refinement, argumentum a contrario); the personal background of the individual judges; the social impact of the case; uncertainty of evidence. Part 7 concludes with the submission that the origin of the judges’ intuition and conscience need not be sought in the ‘world spirit’ or a divine power. A human origin should be enough. At any rate, it is better to accept the jumping of judges, defective and subjective though it may seem to be, than gaping at a false appearance of objectivity and certainty; so M, in accord with PS.
3. The main question to be answered appears to be: does the article contribute to the research question ‘focusing on ‘intuition’, one of the main elements in PS’s theory’? I do not hesitate to answer that question in the affirmative. Parts 5-7 provide both an argued critique and a substantiation of PS’s concepts of ‘intuition’ and, closely bound up with that, ‘conscience’ of the judge. New is, to my knowledge, most of the content of part 6, which will offer a useful starting point for further research, possibly to be based on quantitative data.
4. On the question with regard to the quality of the contribution, in view of technical and scientific standards suitable for its specific type, I regard – judging within my own competence (see supra, 1) – the argument, developed in the article, as important and sufficiently sustained by secondary literature and facts (esp. A’s personal experience as a justice in the Amsterdam Court of Appeal, an unique source). On the technical point, when geared to clarity of expression, correctness of the use of the English language and absence of spelling mistakes, some remarks must be made. This is an important and interesting article, and it is worth the effort of improving its English style and spelling.

Review by Luciano Penteado on 07-07-2015

The article is good, describing clearly Scholten´s point of view concerning intuition. The tittle fits well to the text itself, and the argumentation denotes a contribution to the question proposed. The option for empirical approach, rather than normative one is in accordance to the elected theoretical framework. The analysis of Hart´s work is comprehensive and correct. The author compares Scholten´s, Hart´s and informal rules theories to propose that law reasonament is finding rules. The text analyses four steps that jumping judges use, because they do not simply use syllogism: legal knowledge, personal history of judges, social impact and uncertainty of evidences. The comparisons to German Law seems adequate. Maybe the intuition itself could be more carefully analyzed, because this aspect is used in examples or refutations by the author, rather than described or investigated itself, as a single category.

Review by author's response on 07-07-2015

Due to many (inexcusable) circumstances my priorities have not been in finalising my Jumping Judges. However, now I found time to pay seriously attention to your commentaries. Especially the very extensive review by Jeroen Chorus made me, initially, hesitant in rewriting my article, but then, having started, I realized the value of his remarks. I have asked, as Jeroen Chorus had suggested, a native speaker to correct my article. A scientist friend often uses the services of the professional who was willingly to work for me. I am convinced that due to your comments, her work and my rethinking my contribution has become considerably stronger.
Thank you so much.

Review by reaction to revision on 14-08-2015

Although both reviewers were positive about the first version of the article, the administrator has sent them a notification of the revision with the question whether they wanted to comment on it.
Jeroen Chorus underscored his initial appreciation of the article and had no further comments.
Luciano Penteado wrote: “The article is original, clear, clever and well written. The ideas are well organized, the reader, therefore, must thank the author for his work. It is a guide to Scholten’s work, as well as a map to use his great ideas in contemporary societies”.

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