Reviews of The Reception of the Work of Paul Scholten in the Netherlands

by Marjanne Termorshuizen-Arts
(3 reviews)

Review by Rogier Hartendorp on 20-01-2019

Termorshuizen describes Scholten’s contribution to the development of legal theory in The Netherlands. The author’s central thesis is that Scholten’s work about legal interpretation is unique and should be considered as an intermediary position between the 19th century’s positivist/legalist tradition and nowadays’ pragmatic/hermeneutic based theory. After she has introduced the main elements of Scholten’s work (section 1), the author gives an overview of the development of interpretation methods (section 2), the development of positivism/legalism (section 3) and the reception of different elements of Scholten’s work in Dutch doctrine after World War II (section 4).
I endorse Termorshuizen’s conclusion that Scholten’s most important contribution to the development of legal theory is his thoughts about different interpretation methods and the fundamental reframing of the relationship between judicial decision making and the law. The law cannot be considered as a closed system, as legal positivists do. It is an open system which is constantly under the influence of social developments. Therefore, in the process of legal interpretation and decisioning, the law is not simply applied, on the basis of fast and hard rules. Instead, a judge finds the law, and in this process, he or she is oriented on the meaning of the law in a concrete case and on the effect of his or her decision for the parties involved and society in general.
Termorshuizen demonstrates convincingly that Scholten’s non-radical ‘in between’ position is the innovatory aspect of Scholten’s theory. The following quote of Scholten is exemplary for this approach: “In every finding of law there is logical exertion, binding to data; there is also always freedom. The difference between one case and another is only a difference in degree. Only he who thinks that decisions can only be found by logical reasoning from a certain point onwards, a fixed given, from where one goes further step by step, can make an objection to this conclusion. Actually, however, we find them by assembling as many data as possible and then making the decision. The decision always involves a leap in the end.” In Scholten’s vision, legal interpretation is logic and intuition; legal norms and social context.
Termorshuizen adverts to the striking similarity between Scholten’s theory on legal decisioning, more specifically his idea about the leap (sprong), and Wittgenstein’s semantic theory, which is also very valuable for legal interpretation. “How am I able to obey a rule?”, wonders Wittgenstein. “[I]f this is not a question about causes, then it is about the justification for my following the rule in the way I do. If I have exhausted the justifications I have reached bedrock, and my spade is turned. Then I am inclined to say: “This is simply what I do.”” Wittgenstein is considered to be one of the most influential philosophers of his time. It is not clear whether Scholten was familiar with his philosophy. In any case, Scholten did not refer to Wittgenstein’s early work, and, more important, Wittgenstein unfolded his ideas about the application of (semantic) rules in Philosphical Investigations. This work was published in 1953, almost a decade after Scholten’s death. One may wonder how Scholten was influenced by Wittgenstein. Or, that’s also an option, could it be that both theories were developed independently? It would be interesting if the author would have shared her ideas on this issue in her article.

It is overly clear that the author has a great admiration for Scholten’s work. I share this esteem, with many others. The plain language that Scholten used makes that his writings, and especially Algemeen Deel, is nowadays still read by scholars, students and legal practitioners. The risk of such admiration is that some thoughts are unjustly attributed to Scholten. I have some hesitations about Termorshuizen’s proposition that Scholten’s theory also includes hermeneutics. She does not clarify which part of Scholten’s thoughts should be considered as hermeneutical. The reference in footnote 50 is not specific enough and can, therefore, not be considered as a source for this claim. Scholten did argue, like hermeneutic thinkers do, that the law is not self-clarifying and always subject to interpretation. But that does not make his theory hermeneutic. In my humble opinion, the element Vorverständnis, in different forms presented by Gadamer, Esser, Larenz and, in our country, Van Dunné and Vranken in 60’s and 70’s, distinguishes hermeneutics from other (earlier) interpretation theories. Putting forward such a strong claim, Termorshuizen should have provided more substantiated arguments.

Review by Klaas Rozemond on 01-02-2019

In her article The Reception of the Work of Paul Scholten in the Netherlands Marjanne Termorshuizen-Arts shows the great influence of Paul Scholten’s General Method on Dutch legal thinking, first and foremost on legal thinking in private law, but also in criminal law. Scholten’s ideas on grammatical, historical, systematic and teleological interpretation are common knowledge for every lawyer and legal scholar in the Netherlands, as are his ideas on the importance of the facts of the case in legal reasoning (ius in causa positum) and his ideas on the role of normative principles and the conscience of the judge in legal reasoning.
The importance of Paul Scholten’s ideas can first of all be found in his anti-positivistic idea that the meaning of the law cannot be restricted to the literal meaning of the text of the law and the historical purposes of the legislator. The meaning of the law is a matter of interpretation of the law from the perspective of the judge and the principles he or she believes in on the basis of his or her conscience. From that perspective Scholten’s views can be called hermeneutic in the sense that interpretation is not a matter of establishing objective facts about the literal meaning of the law and the historical purposes of the legislator. It is also a matter of attributing meaning to the law on the basis of the moral principles of the judge.
There is, however, a problematic aspect in Scholten’s idea of meaning. According to Scholten attributing meaning to the law is in its final moment a matter of the conscience of the judge. Scholten is of the opinion that the judge has to choose between a Christian and a Hegelian view on the meaning of the law. That choice is problematic in a society which is based on the separation between church and state. In such a society the law should be based on secular principles like the principle of equality or equal worth of persons (perhaps this principle can be deduced from Christianity or Hegelianism, but such a deduction should not be its most basic foundation).
In her article Marjanne Termorshuizen-Arts does not confront this problem in Scholten’s work, but she could do this by analyzing the recent reception of his work in Dutch legal theory by legal philosophers such as Bob Brouwer, Arend Soeteman, Cees Maris, Pauline Westerman and Carel Smith. This reception consists of a comparison between the work of Paul Scholten and the legal philosophy of Ronald Dworkin. The works of Scholten and Dworkin show a remarkable similarity on the importance of moral principles in legal reasoning and the hermeneutic approach of judges in attributing meaning to the law on the basis of these principles. Dworkin’s idea of constructive interpretation can be compared to Scholten’s idea of construction as the expression of this process of attributing meaning to the law.
The most important difference between Scholten and Dworkin is the fact that Dworkin does not think that the final meaning of the law can be found in the conscience of the judge and her or his belief in Christian principles or Hegelian philosophy. According to Dworkin the most basic principles of the law are political principles that can be found in the legal constitution of a society. Legal reasoning is a matter of attributing meaning to the law on the basis of these principles which are shared by the members of a society with a constitution expressing these principles.
The comparison between Scholten and Dworkin is an important part of recent work in Dutch legal theory. Through the work of Dworkin the ideas of Scholten are revalued in Dutch legal thinking and this comparison forms a link between modern legal theory and the work of Scholten. It shows the modernity and actuality of his work, but also the problematic aspect of his Christian thinking and his ideas on the conscience of the judge (see for instance De actualiteit van Paul Scholten, Ars Aequi 1995 and the articles of Soeteman and Brouwer in Rechtbeginselen, Ars Aequi, oktober 1991).
So this is my main point of critique on the article of Marjanne Termorshuizen-Arts: she does a wonderful job in showing the roots of Scholten’s work in the legal thinking of the nineteenth century and the influence of his work on the Dutch legal thinking of the twentieth century, but she could add to her article a review of his influence on recent legal philosophy in the Netherlands in the form of a comparison of his work with the legal philosophy of Ronald Dworkin and the way Dworkin and Scholten are linked in recent work by Durch legal philosophers.

Review by author's response on 07-11-2019

I am grateful to the reviewers for their comments and would like to indicate how they inspire me.
Rogier Hartendorp asks for more detailed information on the putative influence of Wittgenstein’s language theory on Scholten. As already suggested by Hartendorp himself, I think that the new ideas about the meaning of concepts as ascribed to Wittgenstein in particular, were fruits of the new philosophy of those days. Paul Scholten was an authentic and independent thinker who certainly not only intuited, but also studied the new aspects of semantics which became apparent as a – I would almost say – logical suit of previous approaches, which were no longer sufficient and convincing in the nineteenth and first half of the twentieth century. Further research of this heritage would be very interesting.
As to the role of hermeneutics in Scholten’s work, I quote the other reviewer’s remarks on the sense of hermeneutics i.e. the attribution of meaning to the law: “on the basis of the moral principles of the judge”. The latter is a reference to the second aspect of hermeneutical Vorverständnis namely the task of finding a just and ethical solution, pointing to Sache Recht or Gerechtigheid. The first aspect I would describe – in line with Vranken (1978:240) – as the knowledge on the basis of which the judge operates as a consequence of his legal training and practical experience. The reviewer, Klaas Rozemond, points at Scholten’s personal religious completion of his understanding of the Sache Recht and the possible draw backs of such a stance in scientific discourse. I think this is not the place to elaborate this, even though it is of great importance for the contemporary relevance of Scholten’s view. Here I only want to emphasize that in my opinion the religious completion does not impair Paul Scholten’s thoughts on the value and importance of ethics. A comparison with the work of Dworkin could be attractive to elaborate this further. This would particularly be so when also other important modern Dutch legal theorists, like Smith, Maris, Soeteman, Brouwer, Westermann and Rozemond himself as adherents of Dworkin’s ideas could be included in that comparison. Maybe I will save this for a new article!

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