Reviews of Paul Scholten and the Founding of the Batavia Rechtshogeschool

by Upik Djalins
(3 reviews)

Review by Bas Hengstmengel on 20-12-2019

Upik Djalins has done a great job in exploring an under-researched part of Paul Scholten’s work: his role in the founding of the Batavia Rechtshogeschool. I have to admit I knew little about it and I think I am not the only one. Scholten proves to be a man of practical wisdom with cultural sensitivity.
The historical (second) part of the article is the strongest and most innovative part, in my opinion. It is based on thorough archive research. The philosophical (first) part however needs more elaboration, I think. I will focus on this philosophical part, partly because I think I am insufficiently qualified to criticize the second part, but also because there is less to comment on in the second part.
Scholtens essay Recht en levensbeschouwing is taken as more or less representative for his work. Of course, it is wise to have some focus, but one has to keep in mind that Recht en levensbeschouwing (1915) is the first legal-philosophical essay Scholten has ever written. His thought has strongly developed since then, especially in a personalistic direction. It developed through Recht en liefde (1917), Gedachten over macht en recht (1917), Gerechtigheid en recht (1918) and Recht en billijkheid in 1924, the year Scholten was involved in the founding of the Batavia Rechtshogeschool. However, in his opening speech there are again some remarkable Kantian (although not specifically neo-Kantian) elements popping up.
Rickert is mentioned only twice in Scholten’s Verzamelde Geschriften, both times in Recht en levensbeschouwing (1915, volume I). Only his name is mentioned, not a specific work. The only other Baden neo-Kantian author mentioned in Scholten’s work is Emil Lask. Lask is mentioned three times in the Verzamelde Geschriften, each in De structuur der rechtswetenschap (1942, volume I). All three references are to his small work Rechtsphilosophie (1905). The number of mentions is not so significant however in Scholten’s work.
Scholten is quite sparing in mentioning the sources of his thought. His thought is also quite eclectic, or ‘multifaceted’ if you like. Therefore, it is not easy to trace the influence of diverse authors and schools of thought in Scholten. It is true there are clearly neo-Kantian elements in Recht en levensbeschouwing. However, the emerging study of the sociology of law (e.g. Eugen Ehrlich, Grundlegung der Soziologie des Rechts, 1913) may be at least as important as neo-Kantianism to Scholten. Notice that Scholten prominently mentions authors like H.J. Hamaker and H. Krabbe who are also characterized by a sociological (or psychological) approach to law.
The link between the first and the second part of the article seems to be the influence of Scholten’s philosophical outlook on the curriculum and the pedagogy of the Batavia Rechtshogeschool. Unfortunately, Scholten is not very explicit about this himself. It seems to be insufficiently substantiated in the article how the neo-Kantian influences inform Scholten’s pedagogy. There may for example very well be a personalistic influence in Scholten’s emphasis on the need to develop a certain amount of autonomy in judgment. One is born with personhood, but one has to become a Person. Conscience has to be developed, although Scholten’s work in general does not offer much text about how this development has to take place.
One point in the article needs correction in my opinion. Scholten’s emphasizing of the importance of tolerance and freedom of conscience is explicitly informed by his Christian and personalistic persuasion, not by the neo-Kantian influences on his thought. It is essential to study his Gedachten over macht en recht (1917) to understand his position.
My suggestion is to disconnect both parts of the article and make two separate articles of them. The historical (second) part of the article can very well stand on its own and be a valuable contribution in itself. The philosophical (first) part of the article can be a separate and more elaborated article, going into more detail.

Review by Hendrik Wagenaar on 20-12-2019

In hindsight Paul Scholten’s efforts towards the creation of the Batavia Rechtshogeschool are a remarkable example of what in today’s academic parlance would be called a postcolonial attitude. As described in Upik Djalins’ important article, Scholten not only went against the grain of his Dutch colleagues in providing a rationale for the curriculum and philosophy of an Indies law school, he also showed remarkable sensitivity to the specific knowledge needs – and perhaps I should add, knowledge claims – and cultural environment of local jurisprudence – in this way trying to compensate for some of the structural epistemic injustice (Fricker 2007) that the Dutch colonial elite inflicted upon the population of the Indies. Djalins also shows that Scholten engaged in what we would now call anthropological ‘field work’ – visiting “many segments of the Indies population” – before he formulated a philosophy of law that he deemed suitable for the Indies and designed a law curriculum on the basis of this. In using the term postcolonialism I do not want to engage in concept stretching. My purpose in using the term is to indicate a sensibility on the side of Scholten that is remarkably similar to the postcolonial sensibility as a willingness to understand the way of life of the indigenous population from their own perspective instead of that of the coloniser.
How did Paul Scholten come to occupy such a presciently progressive position towards the lifeworld and culture of the Indies? Here Djalins’ article shows some of the ambiguity that characterizes much of the literature on Paul Scholten. Djalins commences to explain Scholten by evoking his philosophical position. She delves into the finer points of Scholten’s neo-Kantianism. Much can be learned from this exercise in philosophical genealogy. Most importantly for our purposes, Scholten concluded that there are no universal legal principles, to be attained by a careful process of rational reasoning, that will function as the foundation of law. Law is not the application of such timeless principles to concrete cases. If legal reasoning is not rule application, then what is it? According to Scholten legal decision making is inherently contextual. That is, the legal agent is compelled to take the situation at hand into account to arrive at just and fair decisions (Djalins 2020, 6). That doesn’t mean that legal reasoning can be reduced to sociology or history. Law needs a conception of law that is guided by values. In the end, according to Scholten, the legal actor needs to be immersed in a ‘form of life’ to be able to arrive at satisfying legal decisions. In effect, the legal actor is the agent for the “engagement between … abstract-level ideals and the concrete day-to-day life of the people in which the ideas of law … become law in force.” (Djalins 2020, 7) – today we would say ‘law in action’. This process of reconciliation between a concrete form of life and abstract values is guided by the actor’s conscience (ibid.)
We owe Djalins a great debt for her careful analysis of Scholten’s philosophical position, and it adds greatly to our understanding of Scholten’s progressive position towards the creation of a law school for the Indies. Yet, as Rogier Hartendorp and I argued in an article on Scholten’s theory of legal judgment (“rechtvindingstheorie”) there is something awkward in the language of Scholten’s supporters and critics (Hartendorp and Wagenaar, 2004). On the one hand, and despite the status of Scholten magnum opus Algemeen Deel (Scholten 1931), Scholten’s pragmatist and realist stance was largely interpreted in a positivist way by Dutch legal scholars (Hartendorp and Wagenaar, 2004, 63). On the other hand, we argued that Scholten’s own language, with its frequent referrals to “conscience”, unavoidable “irrational factors” and the “leap” between argument and action to arrive at a legal decision, was antiquated. What was wholly modern was Scholten’s insistence that in legal judgement and decision making we should never confuse argument with action, or knowledge about objects with the object itself. That is, we tend to project the structure of our knowledge of the world onto the world and assume that the two are identical and then valorize the first over the second. This is a central theme in pragmatist philosophy (Hildebrand 2003, 64) which Hartendorp and I used to reframe Scholten’s theory of legal judgement in terms of practice theory. Using insights from practice theory as developed in the policy sciences (Wagenaar 2002; Wagenaar 2004), we concluded in our article that there were many similarities between Scholten’s theory of legal judgement and a pragmatist understanding of practice and knowing (2004, 66).
I do not want to rehearse the argument of our earlier article, in which we reframed central planks in Scholten’s theory of legal judgement (such as the ius in causa positum, the leap from judgment to legal decision, and the primacy of values) in terms of a pragmatist derived practice theory (Hartendorp and Wagenaar, 2004, 67). I just want to draw one implication from our pragmatist re-interpretation of Scholten that is beautifully illustrated in Djalins’ article and that goes a long way in explaining Scholten’s “postcolonialist” attitude in setting up a law curriculum for the Indies. A key concept in pragmatist philosophy is ‘experience’. Experience is not conceived as an ephemeral, exclusively personal, psychological phenomenon, but instead as an ongoing, purposeful and value-laden relationship between the organism and the world in which both undergo modification through their responses (Hildebrand 2003, 36; see also Wagenaar and Cook 2011). While Scholten was somewhat captured by the subjectivist language of ‘conscience’, he simultaneously embraced the notion of life form and drew the correct implication that this required detailed attention to the empirical context of the issue at hand. Djalins’ article is full of references to Scholten’s attention to the specific “socio-cultural conditions” and the “concrete real world” of the Indies, with regard to their need for a relevant and effective law system (2020, 8, 9). This deep immersion in the culture of the Indies allowed him to chart an independent, pragmatic course in the “tug of war between inclusivity versus exclusivity, context versus tradition, relevance versus “authenticity,” true justice versus formality“ that surrounded the founding of an autochthonous Indies Rechtshogeschool. In particular Scholten’s insistence that the curriculum in the new Rechtshogeschool be based on one of the Indonesian languages, instead of Latin, follows from his at heart pragmatist conception of law. Legal judgment requires an immersion in the life forms of a particular society. This, in turn, requires proficiency with the local language as these are an expression or carriers of such life forms. For law to become living, functioning, authoritative law and not a dead letter or an empty elite ritual, it has to be rooted in the everyday world of its subjects (Djalins, 2020, 14).
When we conceived our 2004 article, our purpose was to make Scholten’s legacy more accessible and resolve some of its internal inconsistencies by emphasizing its pragmatist roots. In this way we wanted to demonstrate the continuing relevance of Paul Scholten for the contemporary theory of law. We could not have foreseen that our re-interpretation would be confirmed in the story of Scholten’s involvement in creating a law curriculum for the Indies. Upik Djalins is to be recommended for her detailed and sensitive reconstruction of that history that allows contemporary readers to appreciate the relevance and foresight of Scholten in his interaction with the Indies. In this he is a lasting example for a humane, empathic and respectful interaction with our colonial past.

References.
Cook, S.D.N. & Wagenaar, H., 2012, Navigating the Eternally Unfolding Present; Toward an Epistemology of Practice”. American Review of Public Administration, (42) 1: 3-38

Djalins, Upik., 2020 “Paul Scholten and the Founding of the Batavia Rechtshogeschool.” DPSP-Annual, III: Research, Volume 1.

Fricker, M., 2007. Epistemic Injustice. Power and the Ethics of Knowing. Oxford: Oxford University Press

Hartendorp, R.C. and Wagenaar, H., 2004, “De Praktische Rechter. De opmerkelijke relevantie van Paul Scholten voor een eigentijdse rechtsvindingstheorie, Nederlands Tijdschrift voor Rechtsfilosofie & Rechtstheorie, 33, 1, 2004: 60-89

Hildebrand, D. L., 2003. Beyond Realism and Anti-Realism. John Dewey and the Neopragmatists, Nashvile, TN: Vanderbilt University Press

Wagenaar, H. & Cook, S.D.N., (2011) “The Push and Pull of the World: How Experience Animates Practice”, Evidence and Policy, (7), 2: 193-212

Wagenaar, H. 2004, ‘Knowing’ the Rules. Administrative Work as Practice, Public Administration Review, 64, 6: 643-655

Review by author's response on 19-01-2020

I am grateful for Hendrik Wagenaar and Bas Hengstmengel for their thoughtful and insightful reviews. Their comments help expands my understanding of Paul Scholten philosophical position pre-1924; the references provided offer a basis for a further research—and debate—on Scholten’s outlook and relevance for our contemporary conditions.

Wagenaar accurately points out the ambiguity in the literature on Paul Scholten. The direction of my article was shaped partially by this ambiguity and partially by my frustration of the oft-repeated but hardly proven claims that Paul Scholten was influenced by Marburg Neo-Kantianism. Only Herman Dooyewerd offered some references that Paul Scholten leaned more towards Baden school, which became a starting point in my project. Perhaps this ambiguity is caused by the difficulty of pinpointing Paul Scholten’s philosophical genealogy that Hengstmengel acknowledges, due to the former’s sparing use of references and his engagement with eclectic strands of philosophy. Precisely because of these two-pronged challenges, I saw that my task was to bring to the foreground and make explicit the philosophical elements that are subtly woven into his ideas.

Response to Hengstmengel:
In light of this challenge, my strategy was to focus on only one article while putting on hold other no-less influential articles. Using this strategy, I’d like to think I have achieved one of my goals, that is to identify which of the two Neo-Kantian schools was more meaningful to Scholten. By providing comparative references and by teasing out how Baden school’s philosophy of value was interwoven in Paul Scholten’s outlook, I demonstrated that Paul Scholten was not a Marburg Neo-Kantian; rather, he was leaning more towards Baden school Neo-Kantian, but that indeed he was so much more than just a Baden-school philosopher, as Dooyewerd has rightly argued, and which I agreed with (see my article section 2.4 paragraph 2). I presented Scholten’s engagement with Baden school philosophy of value and how it colored his work on Batavia Rechtshogeschool in section 4.2 of my article. The first paragraph of the section offers a summary of his approach, which –if not explicit—linked back his approach to Baden school’s underscoring of value and culture.

My defense notwithstanding, Hengstemengel’s critique and references will undoubtedly enable a deeper and richer exploration of Paul Scholten’s philosophical outlook that informed his engagement with Batavia Rechtshogeschool founding. I do think that this would be a valuable project to pursue.

Response to Wagenaar:
When I first unearthed an archival treasure trove of Paul Scholten’s work on Batavia Rechtshogeschool, I hardly knew who he was. Cornelis van Vollenhoven was more of postcolonial Indonesia hero courtesy of his works on adat law. As I delved more into Scholten’s work, he emerged as a no less important figure than van Vollenhoven; a sympathetic, relatively progressive scholar who was sensitive to the conflicting needs of the colony. It was thus a delight to learn that my findings support an earlier argument that Wagenaar and Hartendorp proposed about Scholten’s approach being parallel to “pragmatist derived practice theory.” I am struck by yet another facet of Scholten represented in pragmatist philosophy, and how foundational it is for theory of legal judgment to spring forth from “experience” per Hildebrand. Looking back into Batavia Rechsthogeschool curriculum and pedagogy, and looking into contemporary Indonesia legal education, I come to understand how Scholten indeed offered a point of deep reflection for the latter.

Bas Hengstmengel and Hendrik Wagenaar have generously presented us with more angles to observe Paul Scholten. It is my hope that their responses and my paper can become a springboard for a continued research on Scholten’s thoughts and ideas, particularly those that touch upon colonial and postcolonial Indonesian legal education.

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