Conference PaperPDF Available

THE RECEPTION OF PAUL SCHOLTEN IN INDONESIA: FACTS AND THE FUTURE

Authors:

Abstract

The article illustrates how the eminent jurist and thinker Paul Scholten played a paramount role in the development of the Netherlands-Indies' legal education system. Secondly, it focuses on Scholten's influence on present Indonesian legal education and legal theory through the translation of his works by prominent Indonesian scholars. When properly applied, Scholten's theories and opinions might solve some of the enormous practical problems in maintaining the Indonesian rule of law. In Indonesia , the role of the judge is highly underestimated and frequently even falsely interpreted. The author proposes a few remedies to cope with these immense difficulties.
THE RECEPTION OF PAUL SCHOLTEN IN INDONESIA: FACTS
AND THE FUTURE
Full article can be expected: -
Marjanne Termorshuizen-Arts
Digital
Paul
Scholten
Project
ABSTRACT
The article illustrates how the eminent jurist and thinker Paul Scholten played a paramount role in the development of the
Netherlands-Indies’ legal education system. Secondly, it focuses on Scholten’s influence on present Indonesian legal education
and legal theory through the translation of his works by prominent Indonesian scholars. When properly applied, Scholten’s
theories and opinions might solve some of the enormous practical problems in maintaining the Indonesian rule of law. In
Indonesia , the role of the judge is highly underestimated and frequently even falsely interpreted. The author proposes a few
remedies to cope with these immense difficulties.
KEYWORDS
Paul Scholten, legal education, legal theory, finding of the law, comparative law, Netherlands-Indies’ law, Indonesian law.
CITE AS
Concept, do not cite
Introduction
In this paper I will present some thoughts on Paul Scholten, his personality, his ways of thinking, his influence on legal
thinking, in the Netherlands but in particular also in Indonesia. My overall aim is to position his thoughts in the context
of the modern Indonesian legal discourse, and thus, to contribute to a more integrated Indonesian law system in which
the role of the judge in finding the law is of paramount importance. Also Paul Scholten was convinced of the important
role of the judge in the legal system. The Indonesian judge, however, has lost that paramount position.[1] The reasons
THE RECEPTION OF PAUL SCHOLTEN IN INDONESIA: FACTS
AND THE FUTURE
Full article can be expected: -
Marjanne Termorshuizen-Arts
Digital
Paul
Scholten
Project
ABSTRACT
The article illustrates how the eminent jurist and thinker Paul Scholten played a paramount role in the development of the
Netherlands-Indies’ legal education system. Secondly, it focuses on Scholten’s influence on present Indonesian legal education
and legal theory through the translation of his works by prominent Indonesian scholars. When properly applied, Scholten’s
theories and opinions might solve some of the enormous practical problems in maintaining the Indonesian rule of law. In
Indonesia , the role of the judge is highly underestimated and frequently even falsely interpreted. The author proposes a few
remedies to cope with these immense difficulties.
KEYWORDS
Paul Scholten, legal education, legal theory, finding of the law, comparative law, Netherlands-Indies’ law, Indonesian law.
CITE AS
Concept, do not cite
Introduction
In this paper I will present some thoughts on Paul Scholten, his personality, his ways of thinking, his influence on legal
thinking, in the Netherlands but in particular also in Indonesia. My overall aim is to position his thoughts in the context
of the modern Indonesian legal discourse, and thus, to contribute to a more integrated Indonesian law system in which
the role of the judge in finding the law is of paramount importance. Also Paul Scholten was convinced of the important
role of the judge in the legal system. The Indonesian judge, however, has lost that paramount position.[1] The reasons
THE RECEPTION OF PAUL SCHOLTEN IN INDONESIA: FACTS
AND THE FUTURE
Full article can be expected: -
Marjanne Termorshuizen-Arts
Digital
Paul
Scholten
Project
ABSTRACT
The article illustrates how the eminent jurist and thinker Paul Scholten played a paramount role in the development of the
Netherlands-Indies’ legal education system. Secondly, it focuses on Scholten’s influence on present Indonesian legal education
and legal theory through the translation of his works by prominent Indonesian scholars. When properly applied, Scholten’s
theories and opinions might solve some of the enormous practical problems in maintaining the Indonesian rule of law. In
Indonesia , the role of the judge is highly underestimated and frequently even falsely interpreted. The author proposes a few
remedies to cope with these immense difficulties.
KEYWORDS
Paul Scholten, legal education, legal theory, finding of the law, comparative law, Netherlands-Indies’ law, Indonesian law.
CITE AS
Concept, do not cite
Introduction
In this paper I will present some thoughts on Paul Scholten, his personality, his ways of thinking, his influence on legal
thinking, in the Netherlands but in particular also in Indonesia. My overall aim is to position his thoughts in the context
of the modern Indonesian legal discourse, and thus, to contribute to a more integrated Indonesian law system in which
the role of the judge in finding the law is of paramount importance. Also Paul Scholten was convinced of the important
role of the judge in the legal system. The Indonesian judge, however, has lost that paramount position.[1] The reasons
1Digital Paul Scholten Project
are manifold. I will come back to that later.[2]
First, I will illustrate my thesis that Paul Scholten was quite an extraordinary jurist in that he might be called a pioneer
in de vrije rechtsvinding, the free finding or making of law. More and earlier than others Paul Scholten took a distance
from legal positivism or legalism which had been the classical way of juridical thinking in his era and in the era before
him.[3]
In the second part of my article, I will focus on the legal discourse in the Netherlands-Indies, in the Netherlands and in
Indonesia, after independence until now. In this part the reception of Paul Scholten’s work will be the core, starting
with his role in establishing the Rechtshogeschool (the first genuine law faculty) in Batavia in 1924, his influence on
the curriculum of that faculty of law, the reception of his work through Indonesia’s famous jurists, the founders of the
free Indonesian state, and - later still - his influence on contemporary Indonesian legal discourse by means of former
and recent translations of his works , in particular through his method of rechtsvinding.
In the third part of my article, I will return to the person of Paul Scholten, and to his ways of thinking, in my search
to formulate some ideas on how his work and his personality might be of use in adressing the problems of
contemporary legal Indonesia, particularly the problems with the interpretation of the law and the role of the judge .
1. Law, ratio and emotion in the work of Paul Scholten
When reading the work of Paul Scholten, one cannot escape the feeling that he had a very unique and personal way of
writing and thinking. While most juridical language is very rational and intricate, Paul Scholten is easy to read and the
most complex matters seem to become simple and directly understandable through his wording.[4] In another study, I
have tried to find a reason for this. I think that I have found the answer - or part of an answer - in discovering that his
way of arguing starts from a rational attitude – quite common of course in juridical work - that is at the same moment
full of emotion and in both ways (via ratio and emotion) connected to reality. His discourse is not a high floating
construction above and apart from empiricism but is part of it. It is in this way, I think, that in his famous
interpretation(al) method, Scholten comes to his well known formula that it is always the gerechtigheid (keadilan,
justice) that has to be included in every legal decision. This gerechtigheid has a direct link with emotion, and emotion
with conscience. And it is these two notions that are of special importance in his work.
1.1. Ratio and emotion
are manifold. I will come back to that later.[2]
First, I will illustrate my thesis that Paul Scholten was quite an extraordinary jurist in that he might be called a pioneer
in de vrije rechtsvinding, the free finding or making of law. More and earlier than others Paul Scholten took a distance
from legal positivism or legalism which had been the classical way of juridical thinking in his era and in the era before
him.[3]
In the second part of my article, I will focus on the legal discourse in the Netherlands-Indies, in the Netherlands and in
Indonesia, after independence until now. In this part the reception of Paul Scholten’s work will be the core, starting
with his role in establishing the Rechtshogeschool (the first genuine law faculty) in Batavia in 1924, his influence on
the curriculum of that faculty of law, the reception of his work through Indonesia’s famous jurists, the founders of the
free Indonesian state, and - later still - his influence on contemporary Indonesian legal discourse by means of former
and recent translations of his works , in particular through his method of rechtsvinding.
In the third part of my article, I will return to the person of Paul Scholten, and to his ways of thinking, in my search
to formulate some ideas on how his work and his personality might be of use in adressing the problems of
contemporary legal Indonesia, particularly the problems with the interpretation of the law and the role of the judge .
1. Law, ratio and emotion in the work of Paul Scholten
When reading the work of Paul Scholten, one cannot escape the feeling that he had a very unique and personal way of
writing and thinking. While most juridical language is very rational and intricate, Paul Scholten is easy to read and the
most complex matters seem to become simple and directly understandable through his wording.[4] In another study, I
have tried to find a reason for this. I think that I have found the answer - or part of an answer - in discovering that his
way of arguing starts from a rational attitude – quite common of course in juridical work - that is at the same moment
full of emotion and in both ways (via ratio and emotion) connected to reality. His discourse is not a high floating
construction above and apart from empiricism but is part of it. It is in this way, I think, that in his famous
interpretation(al) method, Scholten comes to his well known formula that it is always the gerechtigheid (keadilan,
justice) that has to be included in every legal decision. This gerechtigheid has a direct link with emotion, and emotion
with conscience. And it is these two notions that are of special importance in his work.
1.1. Ratio and emotion
are manifold. I will come back to that later.[2]
First, I will illustrate my thesis that Paul Scholten was quite an extraordinary jurist in that he might be called a pioneer
in de vrije rechtsvinding, the free finding or making of law. More and earlier than others Paul Scholten took a distance
from legal positivism or legalism which had been the classical way of juridical thinking in his era and in the era before
him.[3]
In the second part of my article, I will focus on the legal discourse in the Netherlands-Indies, in the Netherlands and in
Indonesia, after independence until now. In this part the reception of Paul Scholten’s work will be the core, starting
with his role in establishing the Rechtshogeschool (the first genuine law faculty) in Batavia in 1924, his influence on
the curriculum of that faculty of law, the reception of his work through Indonesia’s famous jurists, the founders of the
free Indonesian state, and - later still - his influence on contemporary Indonesian legal discourse by means of former
and recent translations of his works , in particular through his method of rechtsvinding.
In the third part of my article, I will return to the person of Paul Scholten, and to his ways of thinking, in my search
to formulate some ideas on how his work and his personality might be of use in adressing the problems of
contemporary legal Indonesia, particularly the problems with the interpretation of the law and the role of the judge .
1. Law, ratio and emotion in the work of Paul Scholten
When reading the work of Paul Scholten, one cannot escape the feeling that he had a very unique and personal way of
writing and thinking. While most juridical language is very rational and intricate, Paul Scholten is easy to read and the
most complex matters seem to become simple and directly understandable through his wording.[4] In another study, I
have tried to find a reason for this. I think that I have found the answer - or part of an answer - in discovering that his
way of arguing starts from a rational attitude – quite common of course in juridical work - that is at the same moment
full of emotion and in both ways (via ratio and emotion) connected to reality. His discourse is not a high floating
construction above and apart from empiricism but is part of it. It is in this way, I think, that in his famous
interpretation(al) method, Scholten comes to his well known formula that it is always the gerechtigheid (keadilan,
justice) that has to be included in every legal decision. This gerechtigheid has a direct link with emotion, and emotion
with conscience. And it is these two notions that are of special importance in his work.
1.1. Ratio and emotion
2Digital Paul Scholten Project
At present, we know that there is no ratio without emotion. New neurological research has ascertained this and in this
piece I will not elaborate on this scientifically well proven fact.[5] What I can say, however, is that I think that Paul
Scholten was ahead of his time in the sense that he already knew or intuited these things, when the researchers in
neurosciences who were to discover it still had to be born. In another piece, a short homage to Liesbeth Huppes-
Cluysenaer in her Festschrift a few years ago[6] I have linked this - my insight - to McGillchrist’s book on the work
division of the two cerebral hemispheres. Paul Scholten possessed the peculiar ability to switch almost automatically
from the left (rational) part to the right, where the unconscious is situated and which is the domain of artists and poets
and other more creative minds. That Paul Scholten first intended to study literature rather than law, and that he has
been the secretary of the literature department of the Royal Dutch Academy of Sciences during more than twenty years,
is a striking detail in his biography which I find highly intriguing. Like William James (the older brother of the famous
author), psychiatrist and philosopher, and Sigmund Freud, also well known, Paul Scholten intuited things that still had to
become (rationally) known.
That he connected these insights to religion is important, but I have to stress that it is not religion as such that forms
the essence of his teachings on this subject. More important is the direction his teachings go: to the knowledge that law
alone and particularly the language of the law cannot bring us where we want to be. Unlike his friend Hijmans,[7] who
expressed the view that law should be liberated from language, Paul Scholten more pragmatically held the standpoint
that language should only be one of the factors the legal decision maker should keep in mind before deciding, next to
other, sometimes even more important, criteria like the system of the law, its history, the aim that had been foreseen by
the legislator when he formulated the legal provision and so on. It is here that we come to his famous leap (or sprong):
before deciding a case with all the various criteria as the background, the judge has to make a jump : a jump into
incertainty, into intuition, into our moral guiding principles, into ”religion”.
It is also in this connection that I refer to William James in his book on the varieties of religious experience (VRE) [8]:
“The truth is that in the metaphysical and religious sphere, articulate reasons are cogent for us only when our
inarticulate feelings of reality have already been impressed in favor of the same conclusion[…] Our impulsive belief is
here always what sets up the original body of truth, and our articulately verbalized philosophy is but its showy
translation into formulas. The unreasoned and immediate assurance is the deep thing in us, the reasoned argument is but
a surface exhibition.” [9]
In a replique on the work of Kelsen, Paul Scholten himself argued that the logical thinking in legal science is not pure
in itself:
“Legal science is only partly logical. Its structure is far more complicated than that”.[10]
But apart from this and as a conclusion to this subchapter, I would like to stress that Paul Scholten was only able to
write his works and hold his views because he was a part of the legal community of his time. He had himself enjoyed
a good legal education. He was intelligent. His character was charismatic in the sense that his ideas were easily
accepted by others because of his superior moral standing. Everyone who met him was almost immediately convinced of
that superiority which was based on his rational intelligence and on that moral superiority . [11]
1. 2. The legal discours in Indonesia and the Netherlands
At present, we know that there is no ratio without emotion. New neurological research has ascertained this and in this
piece I will not elaborate on this scientifically well proven fact.[5] What I can say, however, is that I think that Paul
Scholten was ahead of his time in the sense that he already knew or intuited these things, when the researchers in
neurosciences who were to discover it still had to be born. In another piece, a short homage to Liesbeth Huppes-
Cluysenaer in her Festschrift a few years ago[6] I have linked this - my insight - to McGillchrist’s book on the work
division of the two cerebral hemispheres. Paul Scholten possessed the peculiar ability to switch almost automatically
from the left (rational) part to the right, where the unconscious is situated and which is the domain of artists and poets
and other more creative minds. That Paul Scholten first intended to study literature rather than law, and that he has
been the secretary of the literature department of the Royal Dutch Academy of Sciences during more than twenty years,
is a striking detail in his biography which I find highly intriguing. Like William James (the older brother of the famous
author), psychiatrist and philosopher, and Sigmund Freud, also well known, Paul Scholten intuited things that still had to
become (rationally) known.
That he connected these insights to religion is important, but I have to stress that it is not religion as such that forms
the essence of his teachings on this subject. More important is the direction his teachings go: to the knowledge that law
alone and particularly the language of the law cannot bring us where we want to be. Unlike his friend Hijmans,[7] who
expressed the view that law should be liberated from language, Paul Scholten more pragmatically held the standpoint
that language should only be one of the factors the legal decision maker should keep in mind before deciding, next to
other, sometimes even more important, criteria like the system of the law, its history, the aim that had been foreseen by
the legislator when he formulated the legal provision and so on. It is here that we come to his famous leap (or sprong):
before deciding a case with all the various criteria as the background, the judge has to make a jump : a jump into
incertainty, into intuition, into our moral guiding principles, into ”religion”.
It is also in this connection that I refer to William James in his book on the varieties of religious experience (VRE) [8]:
“The truth is that in the metaphysical and religious sphere, articulate reasons are cogent for us only when our
inarticulate feelings of reality have already been impressed in favor of the same conclusion[…] Our impulsive belief is
here always what sets up the original body of truth, and our articulately verbalized philosophy is but its showy
translation into formulas. The unreasoned and immediate assurance is the deep thing in us, the reasoned argument is but
a surface exhibition.” [9]
In a replique on the work of Kelsen, Paul Scholten himself argued that the logical thinking in legal science is not pure
in itself:
“Legal science is only partly logical. Its structure is far more complicated than that”.[10]
But apart from this and as a conclusion to this subchapter, I would like to stress that Paul Scholten was only able to
write his works and hold his views because he was a part of the legal community of his time. He had himself enjoyed
a good legal education. He was intelligent. His character was charismatic in the sense that his ideas were easily
accepted by others because of his superior moral standing. Everyone who met him was almost immediately convinced of
that superiority which was based on his rational intelligence and on that moral superiority . [11]
1. 2. The legal discours in Indonesia and the Netherlands
At present, we know that there is no ratio without emotion. New neurological research has ascertained this and in this
piece I will not elaborate on this scientifically well proven fact.[5] What I can say, however, is that I think that Paul
Scholten was ahead of his time in the sense that he already knew or intuited these things, when the researchers in
neurosciences who were to discover it still had to be born. In another piece, a short homage to Liesbeth Huppes-
Cluysenaer in her Festschrift a few years ago[6] I have linked this - my insight - to McGillchrist’s book on the work
division of the two cerebral hemispheres. Paul Scholten possessed the peculiar ability to switch almost automatically
from the left (rational) part to the right, where the unconscious is situated and which is the domain of artists and poets
and other more creative minds. That Paul Scholten first intended to study literature rather than law, and that he has
been the secretary of the literature department of the Royal Dutch Academy of Sciences during more than twenty years,
is a striking detail in his biography which I find highly intriguing. Like William James (the older brother of the famous
author), psychiatrist and philosopher, and Sigmund Freud, also well known, Paul Scholten intuited things that still had to
become (rationally) known.
That he connected these insights to religion is important, but I have to stress that it is not religion as such that forms
the essence of his teachings on this subject. More important is the direction his teachings go: to the knowledge that law
alone and particularly the language of the law cannot bring us where we want to be. Unlike his friend Hijmans,[7] who
expressed the view that law should be liberated from language, Paul Scholten more pragmatically held the standpoint
that language should only be one of the factors the legal decision maker should keep in mind before deciding, next to
other, sometimes even more important, criteria like the system of the law, its history, the aim that had been foreseen by
the legislator when he formulated the legal provision and so on. It is here that we come to his famous leap (or sprong):
before deciding a case with all the various criteria as the background, the judge has to make a jump : a jump into
incertainty, into intuition, into our moral guiding principles, into ”religion”.
It is also in this connection that I refer to William James in his book on the varieties of religious experience (VRE) [8]:
“The truth is that in the metaphysical and religious sphere, articulate reasons are cogent for us only when our
inarticulate feelings of reality have already been impressed in favor of the same conclusion[…] Our impulsive belief is
here always what sets up the original body of truth, and our articulately verbalized philosophy is but its showy
translation into formulas. The unreasoned and immediate assurance is the deep thing in us, the reasoned argument is but
a surface exhibition.” [9]
In a replique on the work of Kelsen, Paul Scholten himself argued that the logical thinking in legal science is not pure
in itself:
“Legal science is only partly logical. Its structure is far more complicated than that”.[10]
But apart from this and as a conclusion to this subchapter, I would like to stress that Paul Scholten was only able to
write his works and hold his views because he was a part of the legal community of his time. He had himself enjoyed
a good legal education. He was intelligent. His character was charismatic in the sense that his ideas were easily
accepted by others because of his superior moral standing. Everyone who met him was almost immediately convinced of
that superiority which was based on his rational intelligence and on that moral superiority . [11]
1. 2. The legal discours in Indonesia and the Netherlands
3Digital Paul Scholten Project
2.1. The Netherlands-Indies. Reception of Paul Scholten in the Indies.
Not only in the Netherlands but also in the Netherlands-Indies Paul Scholten proved to be a leading figure. He was the
founder of the Rechtshoogeschool, the predecessor of the Law Faculty of Universitas Indonesia, in former Batavia in
1924. He wrote his famous method on legal decision-making, his Algemeen Deel or General Part or Metoda Umum
Hukum Perdata in 1931. This book was revised in 1934 and immediately introduced into the curriculum of the
Rechtshoogeschool in 1935. Together with the work of one of Scholten’s pupils, Professor Eggens, and also the work of
Van Kan, Logemann, Resink and other stars of the Indies, it played an important role in the education and training of
Indonesian jurists mainly in the era preceding , but also in the first decades after Indonesian kemerdekaan or
independence (and, as I recently discovered, even until now). It is certain now that Scholten’s teachings on legal
interpretation have been an important part of the juridical knowledge of several generations of Indonesian legal students
who for the most part became paramount scholars and judges after graduating at the Rechtshoogeschool and later the
Faculty of Law of University of Indonesia (UI) in Jakarta. [12] When they became judges, many of their decisions were
published, for instance in the Indisch Tijdschrift van het Recht (the Netherlands-Indies’ Law Magazine) and their
successors like the magazine Hukum (Law) and Hukum dan Keadilan (Law and Justice). Professor Mardjono
Reksodiputro has described the legal education programs of the various generation of Indonesian jurists and published
articles on legal education programs from the early periods until recently.[13]
Paul Scholten’s importance, in the curriculum and through the recommended reading of his book by the students at the
Rechtshoogeschool, and later by the use of the translations of his works in Bahasa Indonesia by firstly Siti Soemarti
Hartono and later on Prof. Arief Siddharta and Prof. Sudikno Mertokusumo cannot be overestimated. The latter two also
wrote several books on legal interpretation in which they elaborated on Paul Scholten’s teachings (ajaran). Scholten’s
methodology on interpretation has become a very important tool for the interpreting work of many Indonesian judges,
just the same as in the Netherlands, albeit with the remark that after independence and particularly after the decline of
the courses in Dutch, in Indonesia the reception became far more diverse and restricted, depending on the different
directions taught by the faculties of law of state universities and other universities and particularly dependent on the
mazhab or school of the professor in charge .[14]
2.2. Development in the Netherlands. Reception of Paul Scholten in the Netherlands
After World War II and particularly after the ninety -seventies, Dutch legal doctrine came more and more under the
influence of pragmatist thinking. Paul Scholten was already a pioneer in the sense that he found that for a judge to
decide well in his judging he should be open for general guiding norms and principles, like the principle of or justice (
keadilan or Dutch : gerechtigheid), morality (kesusilaan or zedelijkheid) and of course fairness and equity (kepatutan
dan keadilan or redelijkheid en billijkheid) in order to reach a decision that would be good for the legal community and
for society as a whole.[15][16] But after his death, Dutch legal doctrine developed further in the way he had already
prepared. So much has it developed, that a modern Tilburg legal scholar, Schoordijk, even thinks that Paul Scholten was
still a kind of legalist. I do not agree with him. It is easy to apply new insight in hindsight. In Paul Scholten’s time
society was still not that far. Of course not!
In his book on the finding of law, however, Schoordijk[17] points out, that Paul Scholten was generally admired in his
time and also in the decades after his death because of his methodology of interpreting and particularly also his method
of construction.[18] Noted admirers were Eggens, Hijmans, Van Vollenhoven (this was reciprocal)[19], Van Dunné, to
mention a few great names. In these decades, the influence of legal theorists from the United States and Germany began
2.1. The Netherlands-Indies. Reception of Paul Scholten in the Indies.
Not only in the Netherlands but also in the Netherlands-Indies Paul Scholten proved to be a leading figure. He was the
founder of the Rechtshoogeschool, the predecessor of the Law Faculty of Universitas Indonesia, in former Batavia in
1924. He wrote his famous method on legal decision-making, his Algemeen Deel or General Part or Metoda Umum
Hukum Perdata in 1931. This book was revised in 1934 and immediately introduced into the curriculum of the
Rechtshoogeschool in 1935. Together with the work of one of Scholten’s pupils, Professor Eggens, and also the work of
Van Kan, Logemann, Resink and other stars of the Indies, it played an important role in the education and training of
Indonesian jurists mainly in the era preceding , but also in the first decades after Indonesian kemerdekaan or
independence (and, as I recently discovered, even until now). It is certain now that Scholten’s teachings on legal
interpretation have been an important part of the juridical knowledge of several generations of Indonesian legal students
who for the most part became paramount scholars and judges after graduating at the Rechtshoogeschool and later the
Faculty of Law of University of Indonesia (UI) in Jakarta. [12] When they became judges, many of their decisions were
published, for instance in the Indisch Tijdschrift van het Recht (the Netherlands-Indies’ Law Magazine) and their
successors like the magazine Hukum (Law) and Hukum dan Keadilan (Law and Justice). Professor Mardjono
Reksodiputro has described the legal education programs of the various generation of Indonesian jurists and published
articles on legal education programs from the early periods until recently.[13]
Paul Scholten’s importance, in the curriculum and through the recommended reading of his book by the students at the
Rechtshoogeschool, and later by the use of the translations of his works in Bahasa Indonesia by firstly Siti Soemarti
Hartono and later on Prof. Arief Siddharta and Prof. Sudikno Mertokusumo cannot be overestimated. The latter two also
wrote several books on legal interpretation in which they elaborated on Paul Scholten’s teachings (ajaran). Scholten’s
methodology on interpretation has become a very important tool for the interpreting work of many Indonesian judges,
just the same as in the Netherlands, albeit with the remark that after independence and particularly after the decline of
the courses in Dutch, in Indonesia the reception became far more diverse and restricted, depending on the different
directions taught by the faculties of law of state universities and other universities and particularly dependent on the
mazhab or school of the professor in charge .[14]
2.2. Development in the Netherlands. Reception of Paul Scholten in the Netherlands
After World War II and particularly after the ninety -seventies, Dutch legal doctrine came more and more under the
influence of pragmatist thinking. Paul Scholten was already a pioneer in the sense that he found that for a judge to
decide well in his judging he should be open for general guiding norms and principles, like the principle of or justice (
keadilan or Dutch : gerechtigheid), morality (kesusilaan or zedelijkheid) and of course fairness and equity (kepatutan
dan keadilan or redelijkheid en billijkheid) in order to reach a decision that would be good for the legal community and
for society as a whole.[15][16] But after his death, Dutch legal doctrine developed further in the way he had already
prepared. So much has it developed, that a modern Tilburg legal scholar, Schoordijk, even thinks that Paul Scholten was
still a kind of legalist. I do not agree with him. It is easy to apply new insight in hindsight. In Paul Scholten’s time
society was still not that far. Of course not!
In his book on the finding of law, however, Schoordijk[17] points out, that Paul Scholten was generally admired in his
time and also in the decades after his death because of his methodology of interpreting and particularly also his method
of construction.[18] Noted admirers were Eggens, Hijmans, Van Vollenhoven (this was reciprocal)[19], Van Dunné, to
mention a few great names. In these decades, the influence of legal theorists from the United States and Germany began
2.1. The Netherlands-Indies. Reception of Paul Scholten in the Indies.
Not only in the Netherlands but also in the Netherlands-Indies Paul Scholten proved to be a leading figure. He was the
founder of the Rechtshoogeschool, the predecessor of the Law Faculty of Universitas Indonesia, in former Batavia in
1924. He wrote his famous method on legal decision-making, his Algemeen Deel or General Part or Metoda Umum
Hukum Perdata in 1931. This book was revised in 1934 and immediately introduced into the curriculum of the
Rechtshoogeschool in 1935. Together with the work of one of Scholten’s pupils, Professor Eggens, and also the work of
Van Kan, Logemann, Resink and other stars of the Indies, it played an important role in the education and training of
Indonesian jurists mainly in the era preceding , but also in the first decades after Indonesian kemerdekaan or
independence (and, as I recently discovered, even until now). It is certain now that Scholten’s teachings on legal
interpretation have been an important part of the juridical knowledge of several generations of Indonesian legal students
who for the most part became paramount scholars and judges after graduating at the Rechtshoogeschool and later the
Faculty of Law of University of Indonesia (UI) in Jakarta. [12] When they became judges, many of their decisions were
published, for instance in the Indisch Tijdschrift van het Recht (the Netherlands-Indies’ Law Magazine) and their
successors like the magazine Hukum (Law) and Hukum dan Keadilan (Law and Justice). Professor Mardjono
Reksodiputro has described the legal education programs of the various generation of Indonesian jurists and published
articles on legal education programs from the early periods until recently.[13]
Paul Scholten’s importance, in the curriculum and through the recommended reading of his book by the students at the
Rechtshoogeschool, and later by the use of the translations of his works in Bahasa Indonesia by firstly Siti Soemarti
Hartono and later on Prof. Arief Siddharta and Prof. Sudikno Mertokusumo cannot be overestimated. The latter two also
wrote several books on legal interpretation in which they elaborated on Paul Scholten’s teachings (ajaran). Scholten’s
methodology on interpretation has become a very important tool for the interpreting work of many Indonesian judges,
just the same as in the Netherlands, albeit with the remark that after independence and particularly after the decline of
the courses in Dutch, in Indonesia the reception became far more diverse and restricted, depending on the different
directions taught by the faculties of law of state universities and other universities and particularly dependent on the
mazhab or school of the professor in charge .[14]
2.2. Development in the Netherlands. Reception of Paul Scholten in the Netherlands
After World War II and particularly after the ninety -seventies, Dutch legal doctrine came more and more under the
influence of pragmatist thinking. Paul Scholten was already a pioneer in the sense that he found that for a judge to
decide well in his judging he should be open for general guiding norms and principles, like the principle of or justice (
keadilan or Dutch : gerechtigheid), morality (kesusilaan or zedelijkheid) and of course fairness and equity (kepatutan
dan keadilan or redelijkheid en billijkheid) in order to reach a decision that would be good for the legal community and
for society as a whole.[15][16] But after his death, Dutch legal doctrine developed further in the way he had already
prepared. So much has it developed, that a modern Tilburg legal scholar, Schoordijk, even thinks that Paul Scholten was
still a kind of legalist. I do not agree with him. It is easy to apply new insight in hindsight. In Paul Scholten’s time
society was still not that far. Of course not!
In his book on the finding of law, however, Schoordijk[17] points out, that Paul Scholten was generally admired in his
time and also in the decades after his death because of his methodology of interpreting and particularly also his method
of construction.[18] Noted admirers were Eggens, Hijmans, Van Vollenhoven (this was reciprocal)[19], Van Dunné, to
mention a few great names. In these decades, the influence of legal theorists from the United States and Germany began
4Digital Paul Scholten Project
to have followers in the Netherlands. Realist and pragmatic thinking became paramount in the Netherlands from 1970
onwards. This process started with the introduction of the general principles of decent government (algemene beginselen
van behoorlijk bestuur) in administrative law, finally culminating in the Netherlands in The General Act on
Administrative Law (the Algemene Wet Bestuursrecht ), in 1992. After 1970 the liberal rule of law became gradually a
more social rule of law where principles of good faith (itikad baik, goede trouw ) and its derogating force (daya kerja
derogatif or terugwerkende kracht) became gradually the standard. According to Schoordijk (page 49 ff.) it was of great
importance that Dubbink became the president of the Supreme Court, a pupil of Hijmans, whose views could be
summarized as a belief in the social reality as the most important source and aim for deciding legal cases.
In Germany the era of the Wertungsjurisprudenz began as the successor of the first Begriffs- and later
Interessenjurisprudenz. In the United States the famous Karl Llewellyn became a pioneer in the realist movement.
According to Schoordijk, after 1970, the Dutch judge said goodbye to Paul Scholten [sic] who thought that he could
“apply the law (in the sense of statutes and provisions MTA), which is impossible!” [sic again]. As I argued above,
Schoordijk appears to be rather obsessed by the figure of Paul Scholten. When I read his recent book I was wondering
why. Was Schoordijk still highly influenced by the linguist Wittgenstein whose ideas on semantics he reiterates
everywhere in his book as comprised in this sole sentence: “the meaning of language becomes only apparent in its
use”? Maybe Schoordijk only recently discovered Wittgenstein and has now to convince himself of his (Wittgenstein’s)
for jurists indeed new and overwhelming ideas, which Paul Scholten in my view had already been aware of far before
his time as a consequence of his own thinking. Whatever the reason might be, Scholten seems to be one of the main
targets of Schoordijk’s book and the latter blames him for many things, mostly – I feel - unrightfully. Schoordijk seems
also surprised to find that Van Dunné, - who defended Scholten wholeheartedly against his critics, has always
maintained that for Scholten the redelijkheid en billijkheid was the final and highest means to achieve just decisions,
more than language or whatever matter. So here again we can conclude that Paul Scholten was ahead of his time and
one of the first “realist” thinkers who stressed the importance of reality (virtually free from the paper work or ‘black
letter law’) in deciding a case.
Paul Scholten and criminal law
Paul Scholten, thus, was ahead of his time in several ways. Notably was this so in his methodology in which he
positioned the role of the context of the case, reality, with its guiding principles for the judicial decision. In my
dissertation on semantics and the meaning of legal concepts,[20] I have emphasized that Paul Scholten’s ideas were also
new concerning other parts of law than private law. To illustrate this I make a side step to criminal law, because in
criminal law I think Paul Scholten’s views are brought to a summit-testing. This testing has to do with the principle of
legality of which we all know that it is a paramount although not easily interpretable principle. [21]
Principle of legality
In the Netherlands the principle of legality has been expressed in the Dutch Criminal Code (KUHP Belanda or Wetboek
van Strafrecht) article 1 (compare RUU KUHP article 2) and in article 16 of the Constitution. We can also find it in
article 7 of EVRM (ECHR) and article 15 of IVBPR (ICCPR) which has also been ratified by Indonesia. The principle
is based on the conception that strictly construed legal provisions (peraturan perundang-undangan) can provide legal
certainty and the second conception is that those legal provisions have democratic value because provisions based on
statutes imply that the citizens through the parliament have assented to it.
to have followers in the Netherlands. Realist and pragmatic thinking became paramount in the Netherlands from 1970
onwards. This process started with the introduction of the general principles of decent government (algemene beginselen
van behoorlijk bestuur) in administrative law, finally culminating in the Netherlands in The General Act on
Administrative Law (the Algemene Wet Bestuursrecht ), in 1992. After 1970 the liberal rule of law became gradually a
more social rule of law where principles of good faith (itikad baik, goede trouw ) and its derogating force (daya kerja
derogatif or terugwerkende kracht) became gradually the standard. According to Schoordijk (page 49 ff.) it was of great
importance that Dubbink became the president of the Supreme Court, a pupil of Hijmans, whose views could be
summarized as a belief in the social reality as the most important source and aim for deciding legal cases.
In Germany the era of the Wertungsjurisprudenz began as the successor of the first Begriffs- and later
Interessenjurisprudenz. In the United States the famous Karl Llewellyn became a pioneer in the realist movement.
According to Schoordijk, after 1970, the Dutch judge said goodbye to Paul Scholten [sic] who thought that he could
“apply the law (in the sense of statutes and provisions MTA), which is impossible!” [sic again]. As I argued above,
Schoordijk appears to be rather obsessed by the figure of Paul Scholten. When I read his recent book I was wondering
why. Was Schoordijk still highly influenced by the linguist Wittgenstein whose ideas on semantics he reiterates
everywhere in his book as comprised in this sole sentence: “the meaning of language becomes only apparent in its
use”? Maybe Schoordijk only recently discovered Wittgenstein and has now to convince himself of his (Wittgenstein’s)
for jurists indeed new and overwhelming ideas, which Paul Scholten in my view had already been aware of far before
his time as a consequence of his own thinking. Whatever the reason might be, Scholten seems to be one of the main
targets of Schoordijk’s book and the latter blames him for many things, mostly – I feel - unrightfully. Schoordijk seems
also surprised to find that Van Dunné, - who defended Scholten wholeheartedly against his critics, has always
maintained that for Scholten the redelijkheid en billijkheid was the final and highest means to achieve just decisions,
more than language or whatever matter. So here again we can conclude that Paul Scholten was ahead of his time and
one of the first “realist” thinkers who stressed the importance of reality (virtually free from the paper work or ‘black
letter law’) in deciding a case.
Paul Scholten and criminal law
Paul Scholten, thus, was ahead of his time in several ways. Notably was this so in his methodology in which he
positioned the role of the context of the case, reality, with its guiding principles for the judicial decision. In my
dissertation on semantics and the meaning of legal concepts,[20] I have emphasized that Paul Scholten’s ideas were also
new concerning other parts of law than private law. To illustrate this I make a side step to criminal law, because in
criminal law I think Paul Scholten’s views are brought to a summit-testing. This testing has to do with the principle of
legality of which we all know that it is a paramount although not easily interpretable principle. [21]
Principle of legality
In the Netherlands the principle of legality has been expressed in the Dutch Criminal Code (KUHP Belanda or Wetboek
van Strafrecht) article 1 (compare RUU KUHP article 2) and in article 16 of the Constitution. We can also find it in
article 7 of EVRM (ECHR) and article 15 of IVBPR (ICCPR) which has also been ratified by Indonesia. The principle
is based on the conception that strictly construed legal provisions (peraturan perundang-undangan) can provide legal
certainty and the second conception is that those legal provisions have democratic value because provisions based on
statutes imply that the citizens through the parliament have assented to it.
to have followers in the Netherlands. Realist and pragmatic thinking became paramount in the Netherlands from 1970
onwards. This process started with the introduction of the general principles of decent government (algemene beginselen
van behoorlijk bestuur) in administrative law, finally culminating in the Netherlands in The General Act on
Administrative Law (the Algemene Wet Bestuursrecht ), in 1992. After 1970 the liberal rule of law became gradually a
more social rule of law where principles of good faith (itikad baik, goede trouw ) and its derogating force (daya kerja
derogatif or terugwerkende kracht) became gradually the standard. According to Schoordijk (page 49 ff.) it was of great
importance that Dubbink became the president of the Supreme Court, a pupil of Hijmans, whose views could be
summarized as a belief in the social reality as the most important source and aim for deciding legal cases.
In Germany the era of the Wertungsjurisprudenz began as the successor of the first Begriffs- and later
Interessenjurisprudenz. In the United States the famous Karl Llewellyn became a pioneer in the realist movement.
According to Schoordijk, after 1970, the Dutch judge said goodbye to Paul Scholten [sic] who thought that he could
“apply the law (in the sense of statutes and provisions MTA), which is impossible!” [sic again]. As I argued above,
Schoordijk appears to be rather obsessed by the figure of Paul Scholten. When I read his recent book I was wondering
why. Was Schoordijk still highly influenced by the linguist Wittgenstein whose ideas on semantics he reiterates
everywhere in his book as comprised in this sole sentence: “the meaning of language becomes only apparent in its
use”? Maybe Schoordijk only recently discovered Wittgenstein and has now to convince himself of his (Wittgenstein’s)
for jurists indeed new and overwhelming ideas, which Paul Scholten in my view had already been aware of far before
his time as a consequence of his own thinking. Whatever the reason might be, Scholten seems to be one of the main
targets of Schoordijk’s book and the latter blames him for many things, mostly – I feel - unrightfully. Schoordijk seems
also surprised to find that Van Dunné, - who defended Scholten wholeheartedly against his critics, has always
maintained that for Scholten the redelijkheid en billijkheid was the final and highest means to achieve just decisions,
more than language or whatever matter. So here again we can conclude that Paul Scholten was ahead of his time and
one of the first “realist” thinkers who stressed the importance of reality (virtually free from the paper work or ‘black
letter law’) in deciding a case.
Paul Scholten and criminal law
Paul Scholten, thus, was ahead of his time in several ways. Notably was this so in his methodology in which he
positioned the role of the context of the case, reality, with its guiding principles for the judicial decision. In my
dissertation on semantics and the meaning of legal concepts,[20] I have emphasized that Paul Scholten’s ideas were also
new concerning other parts of law than private law. To illustrate this I make a side step to criminal law, because in
criminal law I think Paul Scholten’s views are brought to a summit-testing. This testing has to do with the principle of
legality of which we all know that it is a paramount although not easily interpretable principle. [21]
Principle of legality
In the Netherlands the principle of legality has been expressed in the Dutch Criminal Code (KUHP Belanda or Wetboek
van Strafrecht) article 1 (compare RUU KUHP article 2) and in article 16 of the Constitution. We can also find it in
article 7 of EVRM (ECHR) and article 15 of IVBPR (ICCPR) which has also been ratified by Indonesia. The principle
is based on the conception that strictly construed legal provisions (peraturan perundang-undangan) can provide legal
certainty and the second conception is that those legal provisions have democratic value because provisions based on
statutes imply that the citizens through the parliament have assented to it.
5Digital Paul Scholten Project
I will confine myself to the first aspect.
Legal texts cannot provide absolute clarity and security because every text has to be interpreted. Reasons are that many
legal provisions comprise general concepts and terms that are not clear of its own; the legislator cannot foresee which
cases will come up in practice and society is always confronted with changing circumstances also of the legal system.
Therefore, there has to be a mediating institute of persons who can formulate criteria to elucidate the general concepts
in every day practice.
In most civilised countries that mediating institute nowadays is the judge. He is the one who has to interpret the law,
the UU, in such a way that it is in accordance with the text of the law and the legal system involved but also with
developments in society and changing views in that society, views about justice(keadilan or gerechtigheid) for instance.
And in the case of Indonesia we could sometimes also apply principles of adat law.[22] We could not do without
judges as legal interpreters and automatically therefore creators of law.[23][24]
In criminal law, as in civil law, we use the tools of the so-called interpretation methods that were also used by Paul
Scholten in his methodology. These are the grammatical, historical, systematic and teleological or functional
interpretation, the latter of which may also be called the sociological interpretation. For criminal law there exists the
special prohibition of analogical interpretation while extensive interpretation is allowed. Both the analogical and
extensive interpretation-modes are actually linked to the grammatical method and are considered in present European
doctrine as more and more obsolete (here again Paul Scholten was a pioneer). When seen from the result, one may
discern the contextual or creative method and here too criminal law in European context is following different paths
compared to the past.
Thus, time after time, Paul Scholten proved to be a visionary. In my dissertation, when discussing the extensive
interpretation method and analogy, I have quoted him as follows :
«Nevertheless it is, I feel, completely wrong to draw a line of principle, - as do most legal thinkers – between
interpretation, which can be termed ‘broad’ or ‘extensive’ and analogy. Such a division is possible on the basis of the
data when interpreting. One can set against the other: use of language, system, the history of the law, reasoning. A
distinction according to method is also possible. But whether one looks to the method, to the data, in both cases
analogy and interpretation are both totally equal. With both of them one is looking for a decision by determining the
reasoning, the higher rule, whereby the rule of law can be traced and from this the new rule deduced. There is only a
difference in degree. If one says that interpretation is outlining, determination of the area that a legal provision covers,
by analogy the applier consciously goes outside the border, then one is forgetting that the area is not in itself outlined
but with both a link is laid between a legal provision and the facts of the case, that with both the application to the
circumstances is not given by the words of the provision, that these are with both sought by generalisation (…). The
defence that is produced, - namely that analogy should base itself on the seekers’ for justice own point of view,
extensive interpretation on that what the legislator, would, had he thought of the particular case, have expressed as the
interpretator does, - wrongly identifies in the legal historical explanation the all-decisive moment and moreover makes
use of an unnecessary fiction. We know nothing of what the legislator might have done, had he thought of something,
over a matter he in reality did not consider.»
Stubbornly adhering to this ‘non-existent difference’’, has according to Paul Scholten a dual origin :
«In the first place it is the interest which it should have for criminal law. It is said that in criminal law analogy is
I will confine myself to the first aspect.
Legal texts cannot provide absolute clarity and security because every text has to be interpreted. Reasons are that many
legal provisions comprise general concepts and terms that are not clear of its own; the legislator cannot foresee which
cases will come up in practice and society is always confronted with changing circumstances also of the legal system.
Therefore, there has to be a mediating institute of persons who can formulate criteria to elucidate the general concepts
in every day practice.
In most civilised countries that mediating institute nowadays is the judge. He is the one who has to interpret the law,
the UU, in such a way that it is in accordance with the text of the law and the legal system involved but also with
developments in society and changing views in that society, views about justice(keadilan or gerechtigheid) for instance.
And in the case of Indonesia we could sometimes also apply principles of adat law.[22] We could not do without
judges as legal interpreters and automatically therefore creators of law.[23][24]
In criminal law, as in civil law, we use the tools of the so-called interpretation methods that were also used by Paul
Scholten in his methodology. These are the grammatical, historical, systematic and teleological or functional
interpretation, the latter of which may also be called the sociological interpretation. For criminal law there exists the
special prohibition of analogical interpretation while extensive interpretation is allowed. Both the analogical and
extensive interpretation-modes are actually linked to the grammatical method and are considered in present European
doctrine as more and more obsolete (here again Paul Scholten was a pioneer). When seen from the result, one may
discern the contextual or creative method and here too criminal law in European context is following different paths
compared to the past.
Thus, time after time, Paul Scholten proved to be a visionary. In my dissertation, when discussing the extensive
interpretation method and analogy, I have quoted him as follows :
«Nevertheless it is, I feel, completely wrong to draw a line of principle, - as do most legal thinkers – between
interpretation, which can be termed ‘broad’ or ‘extensive’ and analogy. Such a division is possible on the basis of the
data when interpreting. One can set against the other: use of language, system, the history of the law, reasoning. A
distinction according to method is also possible. But whether one looks to the method, to the data, in both cases
analogy and interpretation are both totally equal. With both of them one is looking for a decision by determining the
reasoning, the higher rule, whereby the rule of law can be traced and from this the new rule deduced. There is only a
difference in degree. If one says that interpretation is outlining, determination of the area that a legal provision covers,
by analogy the applier consciously goes outside the border, then one is forgetting that the area is not in itself outlined
but with both a link is laid between a legal provision and the facts of the case, that with both the application to the
circumstances is not given by the words of the provision, that these are with both sought by generalisation (…). The
defence that is produced, - namely that analogy should base itself on the seekers’ for justice own point of view,
extensive interpretation on that what the legislator, would, had he thought of the particular case, have expressed as the
interpretator does, - wrongly identifies in the legal historical explanation the all-decisive moment and moreover makes
use of an unnecessary fiction. We know nothing of what the legislator might have done, had he thought of something,
over a matter he in reality did not consider.»
Stubbornly adhering to this ‘non-existent difference’’, has according to Paul Scholten a dual origin :
«In the first place it is the interest which it should have for criminal law. It is said that in criminal law analogy is
I will confine myself to the first aspect.
Legal texts cannot provide absolute clarity and security because every text has to be interpreted. Reasons are that many
legal provisions comprise general concepts and terms that are not clear of its own; the legislator cannot foresee which
cases will come up in practice and society is always confronted with changing circumstances also of the legal system.
Therefore, there has to be a mediating institute of persons who can formulate criteria to elucidate the general concepts
in every day practice.
In most civilised countries that mediating institute nowadays is the judge. He is the one who has to interpret the law,
the UU, in such a way that it is in accordance with the text of the law and the legal system involved but also with
developments in society and changing views in that society, views about justice(keadilan or gerechtigheid) for instance.
And in the case of Indonesia we could sometimes also apply principles of adat law.[22] We could not do without
judges as legal interpreters and automatically therefore creators of law.[23][24]
In criminal law, as in civil law, we use the tools of the so-called interpretation methods that were also used by Paul
Scholten in his methodology. These are the grammatical, historical, systematic and teleological or functional
interpretation, the latter of which may also be called the sociological interpretation. For criminal law there exists the
special prohibition of analogical interpretation while extensive interpretation is allowed. Both the analogical and
extensive interpretation-modes are actually linked to the grammatical method and are considered in present European
doctrine as more and more obsolete (here again Paul Scholten was a pioneer). When seen from the result, one may
discern the contextual or creative method and here too criminal law in European context is following different paths
compared to the past.
Thus, time after time, Paul Scholten proved to be a visionary. In my dissertation, when discussing the extensive
interpretation method and analogy, I have quoted him as follows :
«Nevertheless it is, I feel, completely wrong to draw a line of principle, - as do most legal thinkers – between
interpretation, which can be termed ‘broad’ or ‘extensive’ and analogy. Such a division is possible on the basis of the
data when interpreting. One can set against the other: use of language, system, the history of the law, reasoning. A
distinction according to method is also possible. But whether one looks to the method, to the data, in both cases
analogy and interpretation are both totally equal. With both of them one is looking for a decision by determining the
reasoning, the higher rule, whereby the rule of law can be traced and from this the new rule deduced. There is only a
difference in degree. If one says that interpretation is outlining, determination of the area that a legal provision covers,
by analogy the applier consciously goes outside the border, then one is forgetting that the area is not in itself outlined
but with both a link is laid between a legal provision and the facts of the case, that with both the application to the
circumstances is not given by the words of the provision, that these are with both sought by generalisation (…). The
defence that is produced, - namely that analogy should base itself on the seekers’ for justice own point of view,
extensive interpretation on that what the legislator, would, had he thought of the particular case, have expressed as the
interpretator does, - wrongly identifies in the legal historical explanation the all-decisive moment and moreover makes
use of an unnecessary fiction. We know nothing of what the legislator might have done, had he thought of something,
over a matter he in reality did not consider.»
Stubbornly adhering to this ‘non-existent difference’’, has according to Paul Scholten a dual origin :
«In the first place it is the interest which it should have for criminal law. It is said that in criminal law analogy is
6Digital Paul Scholten Project
forbidden, extensive interpretation is allowed. The examples of extensive interpretation which the proponents of this
view give, however, can be called with just as much accuracy examples of analogy. In pure linguistics telephone is not
telegraph, garden produce is not field crops, a sleeping person is not an unconscious person, etc. The attempts of the
Conference of Lawyers of 1922, to decide whether the theft of electricity is punishable under Article 310 W.v.S.
[Criminal Code MTA] or a forbidden analogy, showed nothing more than hopeless confusion. And one cannot claim
against this that a distinction cannot be rejected because there are marginal cases, where the concepts which are
distinguished touch each other. This is only true if in principle a distinction can be made, a criterion can be shown.
This is absent here.[25]«
I think his conclusion is clear.
Not accidentally, Paul Scholten was one of the leading figures in changing the case law of the Dutch Supreme Court
(he was one of the annotators) in challenging the distinction between the so-called “ automatically clear” and
“automatically unclear” [op eigen kracht duidelijke resp. op eigen kracht onduidelijke ) elements of legal provisions.
This distinction was false, argued Paul Scholten and in the New Code of Private Law it has indeed been annulled.[26]
And there are many other examples.[27]
When suggesting in my dissertation that the so called principles and policies should be regarded as guiding tools for a
judge to decide well (and in practice they have been used and are being used under other names in the case law of all
Europe and the US), I found Paul Scholten again on my way as the guide who had already applied these principles
more than seventy years ago, albeit in terms of justice (gerechtigheid ) and also love or charity (liefde). By these he
meant ethical standards, ethical principles and policies as playing the major role in the rule of law and now almost
eighty years later to be applied over all: in Europe and Indonesia. In the Netherlands when interpreting legal provisions
with the steering guide of e.g. the EVRM, the ICCPR and other human rights treaties, in Indonesia in the interpretations
of the Constitutional Court with those and other general principles for upholding the rule of law.
2.3. Indonesia after independence. Reception of Paul Scholten in today’s Indonesia
The reception of Paul Scholten’s ideas in Indonesia has apparently never stopped as we also can conclude from the
papers submitted to the Paul Scholten symposium New perspectives on law and reality of November 2015. Particularly
in Bandung and Yogyakarta the translation of the works of Paul Scholten by Arief Shidarta and Sudikno Mertokusumo
respectively and their teachings as professors at their respective universities (Parahyangan and Gajah Mada) appear to
have warranted Paul Scholten’s influence forever, or so it seems. It is in these rather restricted because region-dependent
way that the former methodology is still fully alive and might become even more alive when the purpose of this
symposium would be met.
There is, however, an important theme that is directly related to Paul Scholten’s method and problems of the Indonesian
legal culture after independence:
Stare decisis
In most countries and also in the Netherlands, the Supreme Court has a supervisory task and in this way directs the
decisions of lower courts. Though not literally obliged, the lower courts follow the decisions of the Supreme Court and
this guarantees the unity of law and the certainty of law in the Netherlands and other European countries. Unlike in
common law systems, civil law countries like the Netherlands and Indonesia do not have a strict stare decisis system
forbidden, extensive interpretation is allowed. The examples of extensive interpretation which the proponents of this
view give, however, can be called with just as much accuracy examples of analogy. In pure linguistics telephone is not
telegraph, garden produce is not field crops, a sleeping person is not an unconscious person, etc. The attempts of the
Conference of Lawyers of 1922, to decide whether the theft of electricity is punishable under Article 310 W.v.S.
[Criminal Code MTA] or a forbidden analogy, showed nothing more than hopeless confusion. And one cannot claim
against this that a distinction cannot be rejected because there are marginal cases, where the concepts which are
distinguished touch each other. This is only true if in principle a distinction can be made, a criterion can be shown.
This is absent here.[25]«
I think his conclusion is clear.
Not accidentally, Paul Scholten was one of the leading figures in changing the case law of the Dutch Supreme Court
(he was one of the annotators) in challenging the distinction between the so-called “ automatically clear” and
“automatically unclear” [op eigen kracht duidelijke resp. op eigen kracht onduidelijke ) elements of legal provisions.
This distinction was false, argued Paul Scholten and in the New Code of Private Law it has indeed been annulled.[26]
And there are many other examples.[27]
When suggesting in my dissertation that the so called principles and policies should be regarded as guiding tools for a
judge to decide well (and in practice they have been used and are being used under other names in the case law of all
Europe and the US), I found Paul Scholten again on my way as the guide who had already applied these principles
more than seventy years ago, albeit in terms of justice (gerechtigheid ) and also love or charity (liefde). By these he
meant ethical standards, ethical principles and policies as playing the major role in the rule of law and now almost
eighty years later to be applied over all: in Europe and Indonesia. In the Netherlands when interpreting legal provisions
with the steering guide of e.g. the EVRM, the ICCPR and other human rights treaties, in Indonesia in the interpretations
of the Constitutional Court with those and other general principles for upholding the rule of law.
2.3. Indonesia after independence. Reception of Paul Scholten in today’s Indonesia
The reception of Paul Scholten’s ideas in Indonesia has apparently never stopped as we also can conclude from the
papers submitted to the Paul Scholten symposium New perspectives on law and reality of November 2015. Particularly
in Bandung and Yogyakarta the translation of the works of Paul Scholten by Arief Shidarta and Sudikno Mertokusumo
respectively and their teachings as professors at their respective universities (Parahyangan and Gajah Mada) appear to
have warranted Paul Scholten’s influence forever, or so it seems. It is in these rather restricted because region-dependent
way that the former methodology is still fully alive and might become even more alive when the purpose of this
symposium would be met.
There is, however, an important theme that is directly related to Paul Scholten’s method and problems of the Indonesian
legal culture after independence:
Stare decisis
In most countries and also in the Netherlands, the Supreme Court has a supervisory task and in this way directs the
decisions of lower courts. Though not literally obliged, the lower courts follow the decisions of the Supreme Court and
this guarantees the unity of law and the certainty of law in the Netherlands and other European countries. Unlike in
common law systems, civil law countries like the Netherlands and Indonesia do not have a strict stare decisis system
forbidden, extensive interpretation is allowed. The examples of extensive interpretation which the proponents of this
view give, however, can be called with just as much accuracy examples of analogy. In pure linguistics telephone is not
telegraph, garden produce is not field crops, a sleeping person is not an unconscious person, etc. The attempts of the
Conference of Lawyers of 1922, to decide whether the theft of electricity is punishable under Article 310 W.v.S.
[Criminal Code MTA] or a forbidden analogy, showed nothing more than hopeless confusion. And one cannot claim
against this that a distinction cannot be rejected because there are marginal cases, where the concepts which are
distinguished touch each other. This is only true if in principle a distinction can be made, a criterion can be shown.
This is absent here.[25]«
I think his conclusion is clear.
Not accidentally, Paul Scholten was one of the leading figures in changing the case law of the Dutch Supreme Court
(he was one of the annotators) in challenging the distinction between the so-called “ automatically clear” and
“automatically unclear” [op eigen kracht duidelijke resp. op eigen kracht onduidelijke ) elements of legal provisions.
This distinction was false, argued Paul Scholten and in the New Code of Private Law it has indeed been annulled.[26]
And there are many other examples.[27]
When suggesting in my dissertation that the so called principles and policies should be regarded as guiding tools for a
judge to decide well (and in practice they have been used and are being used under other names in the case law of all
Europe and the US), I found Paul Scholten again on my way as the guide who had already applied these principles
more than seventy years ago, albeit in terms of justice (gerechtigheid ) and also love or charity (liefde). By these he
meant ethical standards, ethical principles and policies as playing the major role in the rule of law and now almost
eighty years later to be applied over all: in Europe and Indonesia. In the Netherlands when interpreting legal provisions
with the steering guide of e.g. the EVRM, the ICCPR and other human rights treaties, in Indonesia in the interpretations
of the Constitutional Court with those and other general principles for upholding the rule of law.
2.3. Indonesia after independence. Reception of Paul Scholten in today’s Indonesia
The reception of Paul Scholten’s ideas in Indonesia has apparently never stopped as we also can conclude from the
papers submitted to the Paul Scholten symposium New perspectives on law and reality of November 2015. Particularly
in Bandung and Yogyakarta the translation of the works of Paul Scholten by Arief Shidarta and Sudikno Mertokusumo
respectively and their teachings as professors at their respective universities (Parahyangan and Gajah Mada) appear to
have warranted Paul Scholten’s influence forever, or so it seems. It is in these rather restricted because region-dependent
way that the former methodology is still fully alive and might become even more alive when the purpose of this
symposium would be met.
There is, however, an important theme that is directly related to Paul Scholten’s method and problems of the Indonesian
legal culture after independence:
Stare decisis
In most countries and also in the Netherlands, the Supreme Court has a supervisory task and in this way directs the
decisions of lower courts. Though not literally obliged, the lower courts follow the decisions of the Supreme Court and
this guarantees the unity of law and the certainty of law in the Netherlands and other European countries. Unlike in
common law systems, civil law countries like the Netherlands and Indonesia do not have a strict stare decisis system
7Digital Paul Scholten Project
but although many jurists in Indonesia disagree on this point, this does not mean that the judge does not have to relate
his decision to earlier case law, in particular that of the Supreme Court. As expressed by Sudikno Mertokusumo 1971,
page 5:
“Menurut Mr. Paul Scholten yang sepenuhnya disetujui oleh penulis, maka sifat terikatnya pada precedent, yang oleh
teori hukum dianggap ciri khas peradilan Anglo Sakson, pada hakikatnya adalah sifat setiap peradilan “ (According to
Mr. Paul Scholten with whom I completely agree, the working of precedent which marks in legal theory a specific
feature of Anglo Saxon case law, is in reality inherent to all case law).
By creating and supporting this unifying role, the judge (all judges) next to maintaining legal certainty and legal unity,
enhances the trust or confidence of the citizens in the legal system the judge, all judges are representing. Both the judge
and the legislator are therefore irreplaceable and very important factors in creating that certainty, unity and trust. Of
those two the judges are likely to be the most decisive institutes in making the law. Because what would happen if we
did not have them? I assume that legislative bodies would have to change the legal provisions all the time, - maybe
even every year approximately - to catch up with all the changes in society and all the new crimes and new
circumstances which would make their task an almost impossible one! A task like that would not be what we are
craving for, to put it mildly.[28] And certainly not the legislator of the Draft Criminal Law Code who has been working
on it for thirty years now!
So legality and case law and case law is the condition sine qua no legality could exist.
But what to say then about the opinion of many Indonesian jurists, that stare decisis in their country does not exist?
What about the work of Paul Scholten? What use will it have when the case law is highly underestimated? Of course
the reasons are known. Starting with the era of Suharto, Indonesia’s Supreme Court was gradually annihilated.
According to Sebastiaan Pompe there has not been one single case adjudicated to the Supreme Court in which the
government did not win. Only after the Reformasi (1998) there was democracy (Indonesia is now the third democracy
in the world with its population of 250 millions) and things started to change. Particularly the Constitutional Court is
likely to also change the views on the judge, but what about the Supreme Court and the lower courts? They have been
held in custody for a very long time (during the Guided Democracy Period until Reformasi so let us say about fourty
years). Apart from their lacking of free expression their judicial education was deficient and they had lost the link with
the former high qualified although colonial education which was all in Dutch, the language in which they had become
well-versed and that they used for their legal decision-making and to express themselves in their legal discourse.
I referred to these matters on a recent trip to Indonesia where my colleagues and I were invited to attend meetings of
and to advise the Indonesian parliament on the recodification of the Indonesian Code of Criminal Law. Again I found,
that the role of the judge in interpreting the law appeared to be rather neglected. As I argued above, the stare decisis
system was also hugely underestimated, not to say that it was taboo in the eyes of many a member of parliament and
other participants. On the other hand, judges who attended the meetings confessed that they felt very insecure on the
interpretation of “all those different acts and provisions ” and expressed that they needed good guidelines. This also has
to do with the virtual absence of a good case law publication system so that even if they wanted, judges would have
great difficulty in finding decisions that could help them further. The exception is the case law of the Constitutional
Court and that of Islamic Courts.[29] Hopefully the new wind that blows in the democratic era will also change the
Supreme Court and the courts that should follow its lead.
but although many jurists in Indonesia disagree on this point, this does not mean that the judge does not have to relate
his decision to earlier case law, in particular that of the Supreme Court. As expressed by Sudikno Mertokusumo 1971,
page 5:
“Menurut Mr. Paul Scholten yang sepenuhnya disetujui oleh penulis, maka sifat terikatnya pada precedent, yang oleh
teori hukum dianggap ciri khas peradilan Anglo Sakson, pada hakikatnya adalah sifat setiap peradilan “ (According to
Mr. Paul Scholten with whom I completely agree, the working of precedent which marks in legal theory a specific
feature of Anglo Saxon case law, is in reality inherent to all case law).
By creating and supporting this unifying role, the judge (all judges) next to maintaining legal certainty and legal unity,
enhances the trust or confidence of the citizens in the legal system the judge, all judges are representing. Both the judge
and the legislator are therefore irreplaceable and very important factors in creating that certainty, unity and trust. Of
those two the judges are likely to be the most decisive institutes in making the law. Because what would happen if we
did not have them? I assume that legislative bodies would have to change the legal provisions all the time, - maybe
even every year approximately - to catch up with all the changes in society and all the new crimes and new
circumstances which would make their task an almost impossible one! A task like that would not be what we are
craving for, to put it mildly.[28] And certainly not the legislator of the Draft Criminal Law Code who has been working
on it for thirty years now!
So legality and case law and case law is the condition sine qua no legality could exist.
But what to say then about the opinion of many Indonesian jurists, that stare decisis in their country does not exist?
What about the work of Paul Scholten? What use will it have when the case law is highly underestimated? Of course
the reasons are known. Starting with the era of Suharto, Indonesia’s Supreme Court was gradually annihilated.
According to Sebastiaan Pompe there has not been one single case adjudicated to the Supreme Court in which the
government did not win. Only after the Reformasi (1998) there was democracy (Indonesia is now the third democracy
in the world with its population of 250 millions) and things started to change. Particularly the Constitutional Court is
likely to also change the views on the judge, but what about the Supreme Court and the lower courts? They have been
held in custody for a very long time (during the Guided Democracy Period until Reformasi so let us say about fourty
years). Apart from their lacking of free expression their judicial education was deficient and they had lost the link with
the former high qualified although colonial education which was all in Dutch, the language in which they had become
well-versed and that they used for their legal decision-making and to express themselves in their legal discourse.
I referred to these matters on a recent trip to Indonesia where my colleagues and I were invited to attend meetings of
and to advise the Indonesian parliament on the recodification of the Indonesian Code of Criminal Law. Again I found,
that the role of the judge in interpreting the law appeared to be rather neglected. As I argued above, the stare decisis
system was also hugely underestimated, not to say that it was taboo in the eyes of many a member of parliament and
other participants. On the other hand, judges who attended the meetings confessed that they felt very insecure on the
interpretation of “all those different acts and provisions ” and expressed that they needed good guidelines. This also has
to do with the virtual absence of a good case law publication system so that even if they wanted, judges would have
great difficulty in finding decisions that could help them further. The exception is the case law of the Constitutional
Court and that of Islamic Courts.[29] Hopefully the new wind that blows in the democratic era will also change the
Supreme Court and the courts that should follow its lead.
but although many jurists in Indonesia disagree on this point, this does not mean that the judge does not have to relate
his decision to earlier case law, in particular that of the Supreme Court. As expressed by Sudikno Mertokusumo 1971,
page 5:
“Menurut Mr. Paul Scholten yang sepenuhnya disetujui oleh penulis, maka sifat terikatnya pada precedent, yang oleh
teori hukum dianggap ciri khas peradilan Anglo Sakson, pada hakikatnya adalah sifat setiap peradilan “ (According to
Mr. Paul Scholten with whom I completely agree, the working of precedent which marks in legal theory a specific
feature of Anglo Saxon case law, is in reality inherent to all case law).
By creating and supporting this unifying role, the judge (all judges) next to maintaining legal certainty and legal unity,
enhances the trust or confidence of the citizens in the legal system the judge, all judges are representing. Both the judge
and the legislator are therefore irreplaceable and very important factors in creating that certainty, unity and trust. Of
those two the judges are likely to be the most decisive institutes in making the law. Because what would happen if we
did not have them? I assume that legislative bodies would have to change the legal provisions all the time, - maybe
even every year approximately - to catch up with all the changes in society and all the new crimes and new
circumstances which would make their task an almost impossible one! A task like that would not be what we are
craving for, to put it mildly.[28] And certainly not the legislator of the Draft Criminal Law Code who has been working
on it for thirty years now!
So legality and case law and case law is the condition sine qua no legality could exist.
But what to say then about the opinion of many Indonesian jurists, that stare decisis in their country does not exist?
What about the work of Paul Scholten? What use will it have when the case law is highly underestimated? Of course
the reasons are known. Starting with the era of Suharto, Indonesia’s Supreme Court was gradually annihilated.
According to Sebastiaan Pompe there has not been one single case adjudicated to the Supreme Court in which the
government did not win. Only after the Reformasi (1998) there was democracy (Indonesia is now the third democracy
in the world with its population of 250 millions) and things started to change. Particularly the Constitutional Court is
likely to also change the views on the judge, but what about the Supreme Court and the lower courts? They have been
held in custody for a very long time (during the Guided Democracy Period until Reformasi so let us say about fourty
years). Apart from their lacking of free expression their judicial education was deficient and they had lost the link with
the former high qualified although colonial education which was all in Dutch, the language in which they had become
well-versed and that they used for their legal decision-making and to express themselves in their legal discourse.
I referred to these matters on a recent trip to Indonesia where my colleagues and I were invited to attend meetings of
and to advise the Indonesian parliament on the recodification of the Indonesian Code of Criminal Law. Again I found,
that the role of the judge in interpreting the law appeared to be rather neglected. As I argued above, the stare decisis
system was also hugely underestimated, not to say that it was taboo in the eyes of many a member of parliament and
other participants. On the other hand, judges who attended the meetings confessed that they felt very insecure on the
interpretation of “all those different acts and provisions ” and expressed that they needed good guidelines. This also has
to do with the virtual absence of a good case law publication system so that even if they wanted, judges would have
great difficulty in finding decisions that could help them further. The exception is the case law of the Constitutional
Court and that of Islamic Courts.[29] Hopefully the new wind that blows in the democratic era will also change the
Supreme Court and the courts that should follow its lead.
8Digital Paul Scholten Project
With the rather recently established Mahkamah Konstitusi (Constitutional Court or MK) things appear to have changed a
lot indeed:
“Though established within a highly dysfunctional legal system with almost no history of judicial professionalism [!]”
says Butt (2015, p. 291), “the Court is largely respected by government and citizens.”
Part of the legal vacuum has thus been filled. One of the MK’s main functions is ‘constitutional review’. This involves
the Court assessing whether statutes enacted by Indonesia’s national parliament comply with the Constitution and
striking down legislation that does not. Besides, a Bill of Rights has been inserted into the constitution which includes
many internationally recognized principles. Indonesia has ratified the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Social and Economic Rights (ICSER). There is now a Human Rights Law
(1999) and Human Rights Court Law (2000)[30]. The Human Rights Law gave the Supreme Court power to invalidate
government regulations for breach of its human rights protection. However, this mechanism has provided only limited
protection and in practice there has not been a case of the Supreme Court invalidating a regulation for breach of
statutory human rights provisions. Neither has the review (peninjauan kembali )[31]task of the MA been a great success.
So the functioning of the Supreme Court is still problematic.
Back to the future
Nevertheless, In contemporary Indonesia, legal debates are more alive than ever. In the era after the Reformasi freedom
of expression has reached its summit and particularly young legal students and members of important NGO’s are
constantly trying to keep democratic standards high; let alone journalists who are daily involved in politics and eagerly
follow the activities of the KPK (Komisi Pemberantasan Korupsi, Committee to fight corruption) e.g., in yet another
corruption scandal of high or half-high politicians and other persons whose careers seem rightly or not to have been
advanced by black or black-and-white profits. I t is also not by accident, that the participants of the November
symposium on Paul Scholten and his teachings are driven more or less by the wish to use Paul Scholten’s writings for
their own goal: the amelioration of the legal system in Indonesia.
How wonderful would it be if the person and the work of Paul Scholten might in the end appear to be a tool for filling
the gap of poor legal education – in the sense of deficient training in legal method and lack of attention to ethical
values - . His interpretation methods, for instance, might be of use for the judges who now sometimes seem at a loss
about how to apply the law. Besides, the books on interpretation, although not very prolific, appear to be there:
Sudikno’s books on the method of law finding or making ( penemuan hukum), the books of two of his students,
Bambang Sutiyoso’s Methode Penemuan Hukum on law in general and Eddie O.S. Hiariej’s work on criminal law. The
books of Arief Siddharta and his students Shidarta and Anto Soesanto. The translation of Remmelink’s handbook on
criminal law by Tristam Moeliono, recently republished and revised and there are more. So the books are there. It is up
to the law faculties to use them.[32]
Conclusion
Now political conditions have become better and huge improvements are to be seen in several parts of the legal world
we may conclude that Indonesia can embrace the future. The law is there, the books are there, one court is already
there and the methodology (Paul Scholten’s for instance) also seems to be there albeit maybe partly. What we need then
is a further elaboration on these various themes, in which in particular the judges and the courts will get a more
important and even a central role. They will have to deserve that by improving their knowledge, their methodological
With the rather recently established Mahkamah Konstitusi (Constitutional Court or MK) things appear to have changed a
lot indeed:
“Though established within a highly dysfunctional legal system with almost no history of judicial professionalism [!]”
says Butt (2015, p. 291), “the Court is largely respected by government and citizens.”
Part of the legal vacuum has thus been filled. One of the MK’s main functions is ‘constitutional review’. This involves
the Court assessing whether statutes enacted by Indonesia’s national parliament comply with the Constitution and
striking down legislation that does not. Besides, a Bill of Rights has been inserted into the constitution which includes
many internationally recognized principles. Indonesia has ratified the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Social and Economic Rights (ICSER). There is now a Human Rights Law
(1999) and Human Rights Court Law (2000)[30]. The Human Rights Law gave the Supreme Court power to invalidate
government regulations for breach of its human rights protection. However, this mechanism has provided only limited
protection and in practice there has not been a case of the Supreme Court invalidating a regulation for breach of
statutory human rights provisions. Neither has the review (peninjauan kembali )[31]task of the MA been a great success.
So the functioning of the Supreme Court is still problematic.
Back to the future
Nevertheless, In contemporary Indonesia, legal debates are more alive than ever. In the era after the Reformasi freedom
of expression has reached its summit and particularly young legal students and members of important NGO’s are
constantly trying to keep democratic standards high; let alone journalists who are daily involved in politics and eagerly
follow the activities of the KPK (Komisi Pemberantasan Korupsi, Committee to fight corruption) e.g., in yet another
corruption scandal of high or half-high politicians and other persons whose careers seem rightly or not to have been
advanced by black or black-and-white profits. I t is also not by accident, that the participants of the November
symposium on Paul Scholten and his teachings are driven more or less by the wish to use Paul Scholten’s writings for
their own goal: the amelioration of the legal system in Indonesia.
How wonderful would it be if the person and the work of Paul Scholten might in the end appear to be a tool for filling
the gap of poor legal education – in the sense of deficient training in legal method and lack of attention to ethical
values - . His interpretation methods, for instance, might be of use for the judges who now sometimes seem at a loss
about how to apply the law. Besides, the books on interpretation, although not very prolific, appear to be there:
Sudikno’s books on the method of law finding or making ( penemuan hukum), the books of two of his students,
Bambang Sutiyoso’s Methode Penemuan Hukum on law in general and Eddie O.S. Hiariej’s work on criminal law. The
books of Arief Siddharta and his students Shidarta and Anto Soesanto. The translation of Remmelink’s handbook on
criminal law by Tristam Moeliono, recently republished and revised and there are more. So the books are there. It is up
to the law faculties to use them.[32]
Conclusion
Now political conditions have become better and huge improvements are to be seen in several parts of the legal world
we may conclude that Indonesia can embrace the future. The law is there, the books are there, one court is already
there and the methodology (Paul Scholten’s for instance) also seems to be there albeit maybe partly. What we need then
is a further elaboration on these various themes, in which in particular the judges and the courts will get a more
important and even a central role. They will have to deserve that by improving their knowledge, their methodological
With the rather recently established Mahkamah Konstitusi (Constitutional Court or MK) things appear to have changed a
lot indeed:
“Though established within a highly dysfunctional legal system with almost no history of judicial professionalism [!]”
says Butt (2015, p. 291), “the Court is largely respected by government and citizens.”
Part of the legal vacuum has thus been filled. One of the MK’s main functions is ‘constitutional review’. This involves
the Court assessing whether statutes enacted by Indonesia’s national parliament comply with the Constitution and
striking down legislation that does not. Besides, a Bill of Rights has been inserted into the constitution which includes
many internationally recognized principles. Indonesia has ratified the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Social and Economic Rights (ICSER). There is now a Human Rights Law
(1999) and Human Rights Court Law (2000)[30]. The Human Rights Law gave the Supreme Court power to invalidate
government regulations for breach of its human rights protection. However, this mechanism has provided only limited
protection and in practice there has not been a case of the Supreme Court invalidating a regulation for breach of
statutory human rights provisions. Neither has the review (peninjauan kembali )[31]task of the MA been a great success.
So the functioning of the Supreme Court is still problematic.
Back to the future
Nevertheless, In contemporary Indonesia, legal debates are more alive than ever. In the era after the Reformasi freedom
of expression has reached its summit and particularly young legal students and members of important NGO’s are
constantly trying to keep democratic standards high; let alone journalists who are daily involved in politics and eagerly
follow the activities of the KPK (Komisi Pemberantasan Korupsi, Committee to fight corruption) e.g., in yet another
corruption scandal of high or half-high politicians and other persons whose careers seem rightly or not to have been
advanced by black or black-and-white profits. I t is also not by accident, that the participants of the November
symposium on Paul Scholten and his teachings are driven more or less by the wish to use Paul Scholten’s writings for
their own goal: the amelioration of the legal system in Indonesia.
How wonderful would it be if the person and the work of Paul Scholten might in the end appear to be a tool for filling
the gap of poor legal education – in the sense of deficient training in legal method and lack of attention to ethical
values - . His interpretation methods, for instance, might be of use for the judges who now sometimes seem at a loss
about how to apply the law. Besides, the books on interpretation, although not very prolific, appear to be there:
Sudikno’s books on the method of law finding or making ( penemuan hukum), the books of two of his students,
Bambang Sutiyoso’s Methode Penemuan Hukum on law in general and Eddie O.S. Hiariej’s work on criminal law. The
books of Arief Siddharta and his students Shidarta and Anto Soesanto. The translation of Remmelink’s handbook on
criminal law by Tristam Moeliono, recently republished and revised and there are more. So the books are there. It is up
to the law faculties to use them.[32]
Conclusion
Now political conditions have become better and huge improvements are to be seen in several parts of the legal world
we may conclude that Indonesia can embrace the future. The law is there, the books are there, one court is already
there and the methodology (Paul Scholten’s for instance) also seems to be there albeit maybe partly. What we need then
is a further elaboration on these various themes, in which in particular the judges and the courts will get a more
important and even a central role. They will have to deserve that by improving their knowledge, their methodological
9Digital Paul Scholten Project
technique and the confidence that a rule of law is highly dependent on the way they perform their job. Hopefully the
work but perhaps even more -the character, mind set and integrity of Paul Scholten may be a guidance here.
[1] With the exception, I think, of the judges of the Constitutional Court who are doing quite well. This is however a
breach with the system before 2003 when the Constitutional Court was established.
[2] See for a thorough study: Sebastiaan Pompe 2005.
[3] There are various definitions of positivism. See for instance Van den Berg 2011, who even called Paul Scholten a
trouble maker in that he would have raised or increased the uncertainty of the concept.
[4] This is not to say that his work has no depth. Schoordijk (2014) to whose work I will return later, seems to be
hooked on Paul Scholten’s role in the Dutch legal discourse of the twentieth and twenty first century. This obsession is
rather negatively colored, I feel, but he also writes that he knows from his own study and also by writing his
(Schoordijk’s) book, that it needs perhaps a man’s life to get Scholten’s Algemeen Deel “in de vingers” (to completely
understand it) if ever.
[5] I refer to the work of Edward O. Wilson, Vilayanur Ramachandran, Antonio Damasio, Iain McGllchrist. There are
many others.
[6] Drosterij, G., 2012 pp. 31-38.
[7] I.H. Hijmans, 1910.
[8] William James, 2002 p. 61-62.
[9] Again thus the relation between the left and right hemisphere, read: the conscious and the unconscious.
[10] Paul Scholten, Rechtsbeginselen, p. 5: “Voorop wil ik stellen, dat de rechtswetenschap door dat logische slechts
naar één zijde is gekarakteriseerd, dat haar structuur een oneindig meer gecompliceerde is”.
[11] It is also no coincidence that in the debate on the founding of the Rechtshoogeschool and the curriculum that had
to be introduced by it, adversaries on various controverses, like the use of Latin in the courses, were in the end
convinced by his views, whereupon the controverses ended. And let us also not forget his eminent role in the resistence
against the German occupation during World War II partly founded on his belief in the personal relation of man with
God and its ensuing responsibilities, if necessary even leading to a full- fledged revolt!
[12] Jaarboekjes Rechtshoogeschool, 1934-1938. See literature.
[13] Mardjono Reksodiputro, see literature.
[14] In Yogyakarta e.g. Sudikno Mertokusumo was thoroughly influenced by the views of Paul Scholten. He translated
his work and until his recent death taught Scholten’s ideas to his students and promovendi, even students in criminal
law. Compare for instance the work of Eddy O.S. Hiariej on the legality principle in criminal law to which Sudikno
wrote a foreword.
[15] Compare in Indonesia principles that are also mentioned in the draft of the Criminal Code, RUU KUHP: hukum
yang hidup dalam masyarakat (the law that lives in society) which also can be a source for interpreting the law, the
asas-asas Panca Sila, (the principles of Panca Sila i.e. the state ideology after 1945), hak-hak asasi man usia (human
technique and the confidence that a rule of law is highly dependent on the way they perform their job. Hopefully the
work but perhaps even more -the character, mind set and integrity of Paul Scholten may be a guidance here.
[1] With the exception, I think, of the judges of the Constitutional Court who are doing quite well. This is however a
breach with the system before 2003 when the Constitutional Court was established.
[2] See for a thorough study: Sebastiaan Pompe 2005.
[3] There are various definitions of positivism. See for instance Van den Berg 2011, who even called Paul Scholten a
trouble maker in that he would have raised or increased the uncertainty of the concept.
[4] This is not to say that his work has no depth. Schoordijk (2014) to whose work I will return later, seems to be
hooked on Paul Scholten’s role in the Dutch legal discourse of the twentieth and twenty first century. This obsession is
rather negatively colored, I feel, but he also writes that he knows from his own study and also by writing his
(Schoordijk’s) book, that it needs perhaps a man’s life to get Scholten’s Algemeen Deel “in de vingers” (to completely
understand it) if ever.
[5] I refer to the work of Edward O. Wilson, Vilayanur Ramachandran, Antonio Damasio, Iain McGllchrist. There are
many others.
[6] Drosterij, G., 2012 pp. 31-38.
[7] I.H. Hijmans, 1910.
[8] William James, 2002 p. 61-62.
[9] Again thus the relation between the left and right hemisphere, read: the conscious and the unconscious.
[10] Paul Scholten, Rechtsbeginselen, p. 5: “Voorop wil ik stellen, dat de rechtswetenschap door dat logische slechts
naar één zijde is gekarakteriseerd, dat haar structuur een oneindig meer gecompliceerde is”.
[11] It is also no coincidence that in the debate on the founding of the Rechtshoogeschool and the curriculum that had
to be introduced by it, adversaries on various controverses, like the use of Latin in the courses, were in the end
convinced by his views, whereupon the controverses ended. And let us also not forget his eminent role in the resistence
against the German occupation during World War II partly founded on his belief in the personal relation of man with
God and its ensuing responsibilities, if necessary even leading to a full- fledged revolt!
[12] Jaarboekjes Rechtshoogeschool, 1934-1938. See literature.
[13] Mardjono Reksodiputro, see literature.
[14] In Yogyakarta e.g. Sudikno Mertokusumo was thoroughly influenced by the views of Paul Scholten. He translated
his work and until his recent death taught Scholten’s ideas to his students and promovendi, even students in criminal
law. Compare for instance the work of Eddy O.S. Hiariej on the legality principle in criminal law to which Sudikno
wrote a foreword.
[15] Compare in Indonesia principles that are also mentioned in the draft of the Criminal Code, RUU KUHP: hukum
yang hidup dalam masyarakat (the law that lives in society) which also can be a source for interpreting the law, the
asas-asas Panca Sila, (the principles of Panca Sila i.e. the state ideology after 1945), hak-hak asasi man usia (human
technique and the confidence that a rule of law is highly dependent on the way they perform their job. Hopefully the
work but perhaps even more -the character, mind set and integrity of Paul Scholten may be a guidance here.
[1] With the exception, I think, of the judges of the Constitutional Court who are doing quite well. This is however a
breach with the system before 2003 when the Constitutional Court was established.
[2] See for a thorough study: Sebastiaan Pompe 2005.
[3] There are various definitions of positivism. See for instance Van den Berg 2011, who even called Paul Scholten a
trouble maker in that he would have raised or increased the uncertainty of the concept.
[4] This is not to say that his work has no depth. Schoordijk (2014) to whose work I will return later, seems to be
hooked on Paul Scholten’s role in the Dutch legal discourse of the twentieth and twenty first century. This obsession is
rather negatively colored, I feel, but he also writes that he knows from his own study and also by writing his
(Schoordijk’s) book, that it needs perhaps a man’s life to get Scholten’s Algemeen Deel “in de vingers” (to completely
understand it) if ever.
[5] I refer to the work of Edward O. Wilson, Vilayanur Ramachandran, Antonio Damasio, Iain McGllchrist. There are
many others.
[6] Drosterij, G., 2012 pp. 31-38.
[7] I.H. Hijmans, 1910.
[8] William James, 2002 p. 61-62.
[9] Again thus the relation between the left and right hemisphere, read: the conscious and the unconscious.
[10] Paul Scholten, Rechtsbeginselen, p. 5: “Voorop wil ik stellen, dat de rechtswetenschap door dat logische slechts
naar één zijde is gekarakteriseerd, dat haar structuur een oneindig meer gecompliceerde is”.
[11] It is also no coincidence that in the debate on the founding of the Rechtshoogeschool and the curriculum that had
to be introduced by it, adversaries on various controverses, like the use of Latin in the courses, were in the end
convinced by his views, whereupon the controverses ended. And let us also not forget his eminent role in the resistence
against the German occupation during World War II partly founded on his belief in the personal relation of man with
God and its ensuing responsibilities, if necessary even leading to a full- fledged revolt!
[12] Jaarboekjes Rechtshoogeschool, 1934-1938. See literature.
[13] Mardjono Reksodiputro, see literature.
[14] In Yogyakarta e.g. Sudikno Mertokusumo was thoroughly influenced by the views of Paul Scholten. He translated
his work and until his recent death taught Scholten’s ideas to his students and promovendi, even students in criminal
law. Compare for instance the work of Eddy O.S. Hiariej on the legality principle in criminal law to which Sudikno
wrote a foreword.
[15] Compare in Indonesia principles that are also mentioned in the draft of the Criminal Code, RUU KUHP: hukum
yang hidup dalam masyarakat (the law that lives in society) which also can be a source for interpreting the law, the
asas-asas Panca Sila, (the principles of Panca Sila i.e. the state ideology after 1945), hak-hak asasi man usia (human
10Digital Paul Scholten Project
rights), prinsip-prinsip hukum umum yang diakui oleh masyarakat bangsa-bangsa (the general principles of law that
have been recognized by the nations of the world) even (which are also being mentioned in e.g. penjelasan pasal 2 ayat
2 RUU KUHP, the elucidation on article 2, paragraph 2 of the Draft of the Criminal Code).
[16] In the doctrine this was later called: constructivism (Dworkin and others).
[17] Schoordijk, Rechtsvinding, WLP, 2014
[18] On construction, see also the work of his famous colleague in the United States, Karl Llewellyn, who like Paul
Scholten wrote his most important work in the thirties. I think that both have much in common.
[19] Compare the short review by Scholten of Van Vollenhoven’s booklet on land law for the natives/bumiputera.
[20] Marjanne Termorshuizen-Arts, 2003.
[21] Marjanne Termorshuizen-Arts, 2003: p. 268 ff .
[22] E.g. adat law principles that are generally sustained in the Indonesian Criminal Code like decency (kepatutan or
fatsoen), harmony ( perdamaian or harmonie), peace (asas kerukunan or vrede), proportionality (keselarasan or
proportionaliteit), consultation (musyawarah or onderling overleg), helping each other (gotong royong or samenwerking).
[23] Compare Scholten’s successor in writing the handbook or general method J. Vranken, in his book of 1995 on
objective and subjective views (in paraphrase: there is no objective view without subjectivity) and Llewellyn 1976.
[24] Also see consideration (pertimbangan or overweging) 34 in the principle of legality decision of the European Court
for Human Rights (EHRM 22 november 1995, NJ 1997, 1 with annotation by Knigge).
[25] Scholten, P., Algemeen Deel 1974, p. 69 ff as quoted in Marjanne Termorshuizen, 2008: 117-118.
[26] M.C. Blokhuis-Scholten and A.G. Lubbers: `Uit PS in NJ’, Centenary-edition on PS’s birthday, August 26, 1875,
WPNR, 1975.
[27] Another example we find on page 491 of the WPNR (Weekly magazine for civil law, the profession of the notary
public and registration) 1975: the elements of contracts are only `clear’, if circumstances provide that clarity (
de duidelijkheid is slechts in verband met de omstandigheden te beoordelen).
[28] And here again Paul Scholten was a pioneer in that he came to a conclusion that was also found by noted
philosophers like Wittgenstein and Gadamer, that is, that language has no fixed meaning. The meaning of a special
phrase or case can only be constructed when seen by its background and context and also with certain aims in view.
[29] Adriaan Bedner, Indonesian legal scholarship and jurisprudence as an obstacle for transplanting legal institutions
(in this form unpublished).
[30] Butt, 2015: 18, note 15; Indonesia ratified the ICCPR by Law 12 of 2005 and the ICSER by Law 11 of 2005. In
1999 the Indonesian national parliament had already issued two statutes concerning human rights: the 1999 Human
Rights Law, which sets out various human rights standards, many of which are also included in the Bill of Rights; and
2000 Human Rights Courts Law, which defines and criminalises gross violations of human rights and crimes against
humanity, establishes human rights courts as a branch of Indonesia’s general court system, and allows the national
parliament to establish an ad hoc tribunal to hear human rights abuses allegedly perpetrated before the 2000 Human
rights), prinsip-prinsip hukum umum yang diakui oleh masyarakat bangsa-bangsa (the general principles of law that
have been recognized by the nations of the world) even (which are also being mentioned in e.g. penjelasan pasal 2 ayat
2 RUU KUHP, the elucidation on article 2, paragraph 2 of the Draft of the Criminal Code).
[16] In the doctrine this was later called: constructivism (Dworkin and others).
[17] Schoordijk, Rechtsvinding, WLP, 2014
[18] On construction, see also the work of his famous colleague in the United States, Karl Llewellyn, who like Paul
Scholten wrote his most important work in the thirties. I think that both have much in common.
[19] Compare the short review by Scholten of Van Vollenhoven’s booklet on land law for the natives/bumiputera.
[20] Marjanne Termorshuizen-Arts, 2003.
[21] Marjanne Termorshuizen-Arts, 2003: p. 268 ff .
[22] E.g. adat law principles that are generally sustained in the Indonesian Criminal Code like decency (kepatutan or
fatsoen), harmony ( perdamaian or harmonie), peace (asas kerukunan or vrede), proportionality (keselarasan or
proportionaliteit), consultation (musyawarah or onderling overleg), helping each other (gotong royong or samenwerking).
[23] Compare Scholten’s successor in writing the handbook or general method J. Vranken, in his book of 1995 on
objective and subjective views (in paraphrase: there is no objective view without subjectivity) and Llewellyn 1976.
[24] Also see consideration (pertimbangan or overweging) 34 in the principle of legality decision of the European Court
for Human Rights (EHRM 22 november 1995, NJ 1997, 1 with annotation by Knigge).
[25] Scholten, P., Algemeen Deel 1974, p. 69 ff as quoted in Marjanne Termorshuizen, 2008: 117-118.
[26] M.C. Blokhuis-Scholten and A.G. Lubbers: `Uit PS in NJ’, Centenary-edition on PS’s birthday, August 26, 1875,
WPNR, 1975.
[27] Another example we find on page 491 of the WPNR (Weekly magazine for civil law, the profession of the notary
public and registration) 1975: the elements of contracts are only `clear’, if circumstances provide that clarity (
de duidelijkheid is slechts in verband met de omstandigheden te beoordelen).
[28] And here again Paul Scholten was a pioneer in that he came to a conclusion that was also found by noted
philosophers like Wittgenstein and Gadamer, that is, that language has no fixed meaning. The meaning of a special
phrase or case can only be constructed when seen by its background and context and also with certain aims in view.
[29] Adriaan Bedner, Indonesian legal scholarship and jurisprudence as an obstacle for transplanting legal institutions
(in this form unpublished).
[30] Butt, 2015: 18, note 15; Indonesia ratified the ICCPR by Law 12 of 2005 and the ICSER by Law 11 of 2005. In
1999 the Indonesian national parliament had already issued two statutes concerning human rights: the 1999 Human
Rights Law, which sets out various human rights standards, many of which are also included in the Bill of Rights; and
2000 Human Rights Courts Law, which defines and criminalises gross violations of human rights and crimes against
humanity, establishes human rights courts as a branch of Indonesia’s general court system, and allows the national
parliament to establish an ad hoc tribunal to hear human rights abuses allegedly perpetrated before the 2000 Human
rights), prinsip-prinsip hukum umum yang diakui oleh masyarakat bangsa-bangsa (the general principles of law that
have been recognized by the nations of the world) even (which are also being mentioned in e.g. penjelasan pasal 2 ayat
2 RUU KUHP, the elucidation on article 2, paragraph 2 of the Draft of the Criminal Code).
[16] In the doctrine this was later called: constructivism (Dworkin and others).
[17] Schoordijk, Rechtsvinding, WLP, 2014
[18] On construction, see also the work of his famous colleague in the United States, Karl Llewellyn, who like Paul
Scholten wrote his most important work in the thirties. I think that both have much in common.
[19] Compare the short review by Scholten of Van Vollenhoven’s booklet on land law for the natives/bumiputera.
[20] Marjanne Termorshuizen-Arts, 2003.
[21] Marjanne Termorshuizen-Arts, 2003: p. 268 ff .
[22] E.g. adat law principles that are generally sustained in the Indonesian Criminal Code like decency (kepatutan or
fatsoen), harmony ( perdamaian or harmonie), peace (asas kerukunan or vrede), proportionality (keselarasan or
proportionaliteit), consultation (musyawarah or onderling overleg), helping each other (gotong royong or samenwerking).
[23] Compare Scholten’s successor in writing the handbook or general method J. Vranken, in his book of 1995 on
objective and subjective views (in paraphrase: there is no objective view without subjectivity) and Llewellyn 1976.
[24] Also see consideration (pertimbangan or overweging) 34 in the principle of legality decision of the European Court
for Human Rights (EHRM 22 november 1995, NJ 1997, 1 with annotation by Knigge).
[25] Scholten, P., Algemeen Deel 1974, p. 69 ff as quoted in Marjanne Termorshuizen, 2008: 117-118.
[26] M.C. Blokhuis-Scholten and A.G. Lubbers: `Uit PS in NJ’, Centenary-edition on PS’s birthday, August 26, 1875,
WPNR, 1975.
[27] Another example we find on page 491 of the WPNR (Weekly magazine for civil law, the profession of the notary
public and registration) 1975: the elements of contracts are only `clear’, if circumstances provide that clarity (
de duidelijkheid is slechts in verband met de omstandigheden te beoordelen).
[28] And here again Paul Scholten was a pioneer in that he came to a conclusion that was also found by noted
philosophers like Wittgenstein and Gadamer, that is, that language has no fixed meaning. The meaning of a special
phrase or case can only be constructed when seen by its background and context and also with certain aims in view.
[29] Adriaan Bedner, Indonesian legal scholarship and jurisprudence as an obstacle for transplanting legal institutions
(in this form unpublished).
[30] Butt, 2015: 18, note 15; Indonesia ratified the ICCPR by Law 12 of 2005 and the ICSER by Law 11 of 2005. In
1999 the Indonesian national parliament had already issued two statutes concerning human rights: the 1999 Human
Rights Law, which sets out various human rights standards, many of which are also included in the Bill of Rights; and
2000 Human Rights Courts Law, which defines and criminalises gross violations of human rights and crimes against
humanity, establishes human rights courts as a branch of Indonesia’s general court system, and allows the national
parliament to establish an ad hoc tribunal to hear human rights abuses allegedly perpetrated before the 2000 Human
11Digital Paul Scholten Project
Rights Court Law came into force.
[31] Dutch: revisie or herziening, the possibility to reopen a case because of new facts, stemming from the Dutch
legislation though interpreted in a very special way.
[32] I would also strongly recommend the translation of the book of J. Vranken, Asser-Vranken 1995, in which the
author, among other things, gives a practical overview of the work of the judge. Marvellous guidelines for Indonesian
judges, I would think.
Literature
Bedner, Adriaan, Indonesian Legal Scholarship and Jurisprudence as an Obstacle for Transplanting Legal Institutions,
(in this form not published 2015).
Berg, G.C.J.J. van den, Geleerd Recht, een geschiedenis van de Europese rechtswetenschap in vogelvlucht , 6e druk,
bewerkt door C.J.H. Jansen, Kluwer, 2011.
Butt, Simon, The constitutional court and democracy in Indonesia, Brill/Nijhoff, Leiden/Boston 2015.
Claes, Erik, Legaliteit en rechtsvinding in het strafrecht. Een grondslagtheoretische benadering, Samenleving,
criminaliteit en strafrechtspleging. 24, Universitaire Pers Leuven, 2003.
Damasio, Antonio, Self comes to mind. Constructing the conscious brain, Vintage Books, London, 2012.
Dewey, John, Experience and Nature, Dover Publications, New York, 1958.
Drosterij, Gerard (red), Behulpzaam bij het creëren van orde en vrede (niet gerechtigheid): opstellen voor Liesbeth
Huppes-Cluysenaer, [Festschrift], 2012.
Eggens, J., Iets over de ontwikkeling van het privaatrechtelijk denken in de laaste halve eeuw. Rede uitgesproken bij de
aanvaarding van het Hoogleeraarsambt aan de Rechtshoogeschool te Batavia, 16 mei 1935, G. Kolff & Co. Batavia.
Hiariej, Eddy, O.S., Asas legalitas dan penemuan hukum dalam hukum pidana, dengen kata pengantar oleh Prof. Dr.
Sudikno Mertokusumo S.H., Erlangga Jakarta, 2009.
Hijmans, I.H., Het recht der werkelijkheid. Rede uitgesproken bij de aanvaarding van het hoogleeraarsambt aan de
Universiteit van Amsterdam, op den 31sten October 1910, Erven Bohn, Haarlem 1910.
Jaarboekjes der Rechtshoogeschool te Batavia, 1925-’40(particularly 1934-1938), Batavia Kolff/Landsdrukkerij.
James, William, The varieties of religious experience. A study in human nature, Centenary edition, Routledge London
and New York, 2002.
Llewellyn, K. N., The Bramble Bush. On our law and its study, Oceana Publications, New York 1951.
Llewellyn, Karl N., Jurisprudence. Realism in theory and practice, The University of Chicago Press, 1962.
Mardjono Reksodiputro, Miscellaneous.
Rights Court Law came into force.
[31] Dutch: revisie or herziening, the possibility to reopen a case because of new facts, stemming from the Dutch
legislation though interpreted in a very special way.
[32] I would also strongly recommend the translation of the book of J. Vranken, Asser-Vranken 1995, in which the
author, among other things, gives a practical overview of the work of the judge. Marvellous guidelines for Indonesian
judges, I would think.
Literature
Bedner, Adriaan, Indonesian Legal Scholarship and Jurisprudence as an Obstacle for Transplanting Legal Institutions,
(in this form not published 2015).
Berg, G.C.J.J. van den, Geleerd Recht, een geschiedenis van de Europese rechtswetenschap in vogelvlucht , 6e druk,
bewerkt door C.J.H. Jansen, Kluwer, 2011.
Butt, Simon, The constitutional court and democracy in Indonesia, Brill/Nijhoff, Leiden/Boston 2015.
Claes, Erik, Legaliteit en rechtsvinding in het strafrecht. Een grondslagtheoretische benadering, Samenleving,
criminaliteit en strafrechtspleging. 24, Universitaire Pers Leuven, 2003.
Damasio, Antonio, Self comes to mind. Constructing the conscious brain, Vintage Books, London, 2012.
Dewey, John, Experience and Nature, Dover Publications, New York, 1958.
Drosterij, Gerard (red), Behulpzaam bij het creëren van orde en vrede (niet gerechtigheid): opstellen voor Liesbeth
Huppes-Cluysenaer, [Festschrift], 2012.
Eggens, J., Iets over de ontwikkeling van het privaatrechtelijk denken in de laaste halve eeuw. Rede uitgesproken bij de
aanvaarding van het Hoogleeraarsambt aan de Rechtshoogeschool te Batavia, 16 mei 1935, G. Kolff & Co. Batavia.
Hiariej, Eddy, O.S., Asas legalitas dan penemuan hukum dalam hukum pidana, dengen kata pengantar oleh Prof. Dr.
Sudikno Mertokusumo S.H., Erlangga Jakarta, 2009.
Hijmans, I.H., Het recht der werkelijkheid. Rede uitgesproken bij de aanvaarding van het hoogleeraarsambt aan de
Universiteit van Amsterdam, op den 31sten October 1910, Erven Bohn, Haarlem 1910.
Jaarboekjes der Rechtshoogeschool te Batavia, 1925-’40(particularly 1934-1938), Batavia Kolff/Landsdrukkerij.
James, William, The varieties of religious experience. A study in human nature, Centenary edition, Routledge London
and New York, 2002.
Llewellyn, K. N., The Bramble Bush. On our law and its study, Oceana Publications, New York 1951.
Llewellyn, Karl N., Jurisprudence. Realism in theory and practice, The University of Chicago Press, 1962.
Mardjono Reksodiputro, Miscellaneous.
Rights Court Law came into force.
[31] Dutch: revisie or herziening, the possibility to reopen a case because of new facts, stemming from the Dutch
legislation though interpreted in a very special way.
[32] I would also strongly recommend the translation of the book of J. Vranken, Asser-Vranken 1995, in which the
author, among other things, gives a practical overview of the work of the judge. Marvellous guidelines for Indonesian
judges, I would think.
Literature
Bedner, Adriaan, Indonesian Legal Scholarship and Jurisprudence as an Obstacle for Transplanting Legal Institutions,
(in this form not published 2015).
Berg, G.C.J.J. van den, Geleerd Recht, een geschiedenis van de Europese rechtswetenschap in vogelvlucht , 6e druk,
bewerkt door C.J.H. Jansen, Kluwer, 2011.
Butt, Simon, The constitutional court and democracy in Indonesia, Brill/Nijhoff, Leiden/Boston 2015.
Claes, Erik, Legaliteit en rechtsvinding in het strafrecht. Een grondslagtheoretische benadering, Samenleving,
criminaliteit en strafrechtspleging. 24, Universitaire Pers Leuven, 2003.
Damasio, Antonio, Self comes to mind. Constructing the conscious brain, Vintage Books, London, 2012.
Dewey, John, Experience and Nature, Dover Publications, New York, 1958.
Drosterij, Gerard (red), Behulpzaam bij het creëren van orde en vrede (niet gerechtigheid): opstellen voor Liesbeth
Huppes-Cluysenaer, [Festschrift], 2012.
Eggens, J., Iets over de ontwikkeling van het privaatrechtelijk denken in de laaste halve eeuw. Rede uitgesproken bij de
aanvaarding van het Hoogleeraarsambt aan de Rechtshoogeschool te Batavia, 16 mei 1935, G. Kolff & Co. Batavia.
Hiariej, Eddy, O.S., Asas legalitas dan penemuan hukum dalam hukum pidana, dengen kata pengantar oleh Prof. Dr.
Sudikno Mertokusumo S.H., Erlangga Jakarta, 2009.
Hijmans, I.H., Het recht der werkelijkheid. Rede uitgesproken bij de aanvaarding van het hoogleeraarsambt aan de
Universiteit van Amsterdam, op den 31sten October 1910, Erven Bohn, Haarlem 1910.
Jaarboekjes der Rechtshoogeschool te Batavia, 1925-’40(particularly 1934-1938), Batavia Kolff/Landsdrukkerij.
James, William, The varieties of religious experience. A study in human nature, Centenary edition, Routledge London
and New York, 2002.
Llewellyn, K. N., The Bramble Bush. On our law and its study, Oceana Publications, New York 1951.
Llewellyn, Karl N., Jurisprudence. Realism in theory and practice, The University of Chicago Press, 1962.
Mardjono Reksodiputro, Miscellaneous.
12Digital Paul Scholten Project
McGilchrist, Iain, The master and his emissary. The divided brain nd the making of the western world, Yale University
Press, New Haven and London, 2010.
Massier, A.W.H., Van recht naar hukum. Indonesische juristen en hun taal 1915-2000, 2003.
Papers of the participants to the 3thrd Seminar of the DPSP, November 2015 UvA.
Pompe, Sebastiaan, The Indonesian Supreme Court. A study of Institutional collapse, Cornell University, New York,
2005.
Remmelink, J., Pengantar Hukum Pidana Material 1. Inleiding tot de studie van het Nederlandse strafrecht, oleh,
Tristam Moeliono (penerjemah), dengan bantuan dan penyeliaan dari Agustinus Pohan, Maria Ulfah, R. Budi Prastowo,
Widati Wulandari, Maharsa publishing, Yogyakarta 2014.
Sahetapy, J.E. (ed), Hukum pidana, oleh Prof. dr. D. Schaffmeister, Prof. dr. N. Keijzer, Mr. E. Ph. Sutorius,
Konsorsium Ilmu Hukum, Departemen P&K, Liberty, Yogyakarta, 1995.
Schoordijk, H.C.F., Realistische en pragmatische rechtsvinding. Taak en taakopvatting van de rechter in de westerse
wereld, WLP 2014.
Scholten, P., Rechtsbeginselen Mededeelingen der Nederlandsche Akademie van Wetenschappen, AfdeelingLetterkunde,
deel 80, serie B, No. 6, tweede druk, Uitgave van de N.V. Noord-Hollandsche Uitgevers Maatschappij, Amsterdam 1941.
Scholten, Paul, De structuur der rechtswetenschappen, Mededeelingen der Nederlandsche Akademie van Wetenschappen,
Afd.Letterkunde, Nieuwe reeks deel 8, No. 1., Noord-Hollandsche Uitgevers Maatschappij, Amsterdam 1945.
Sudikno Mertokusumo Sejarah peradilan dan perundang-undangannya di Indonesia sejak 1942 dan apakah
kemanfaatnya bagi kita bangsa Indonesia, diss, Universitas Gajah Mada, 1971; cetakan ulang Universitas Atma Jaya,
Yogyakarta, 2011.
Sudikno Mertokusumo, Bab-bab tentang penemuan hukum (deels vertaling Pitlo), Citra Aditya Bakti, Konsorsium Ilmu
Hukum, Departemen Pendidikan dan Kebudayaan, Asia Foundation, Yogyakarta 1993.
Sutiyoso, Bambang, Metode penemuan hukum. Upaya mewujudkan hukum yang pasti dan berkeadilan, UII Press,
Yogyakarta, 2006.
Rozemond, Klaas, Strafvorderlijke rechtsvinding, diss VU, Amsterdam, Gouda Quint, Deventer 1998.
Termorshuizen-Arts, M.J.H.W.,Legal semantics. A contribution to the methodology of legal comparison, jurisprudence
and legal translation, WLP 2003 (Dutch version), 2008 (English version). For the English version also see Researchgate
(downloadable version).
Van Vollenhoven, Cornelis, De Indonesiër en zijn grond, E. J. Brill, Leiden 1919.
Vilayanur S. Ramachandran, The emerging mind, The Reith Lectures, Profile books, London, (2003) 2010.
Vranken, J. or: Asser-Vranken 1995, Tjeenk WIllink, Zwolle 1995.
Wilson, Edward O., Consilience. The unity of knowledge, Little, Brown and Company, London, 1998.
McGilchrist, Iain, The master and his emissary. The divided brain nd the making of the western world, Yale University
Press, New Haven and London, 2010.
Massier, A.W.H., Van recht naar hukum. Indonesische juristen en hun taal 1915-2000, 2003.
Papers of the participants to the 3thrd Seminar of the DPSP, November 2015 UvA.
Pompe, Sebastiaan, The Indonesian Supreme Court. A study of Institutional collapse, Cornell University, New York,
2005.
Remmelink, J., Pengantar Hukum Pidana Material 1. Inleiding tot de studie van het Nederlandse strafrecht, oleh,
Tristam Moeliono (penerjemah), dengan bantuan dan penyeliaan dari Agustinus Pohan, Maria Ulfah, R. Budi Prastowo,
Widati Wulandari, Maharsa publishing, Yogyakarta 2014.
Sahetapy, J.E. (ed), Hukum pidana, oleh Prof. dr. D. Schaffmeister, Prof. dr. N. Keijzer, Mr. E. Ph. Sutorius,
Konsorsium Ilmu Hukum, Departemen P&K, Liberty, Yogyakarta, 1995.
Schoordijk, H.C.F., Realistische en pragmatische rechtsvinding. Taak en taakopvatting van de rechter in de westerse
wereld, WLP 2014.
Scholten, P., Rechtsbeginselen Mededeelingen der Nederlandsche Akademie van Wetenschappen, AfdeelingLetterkunde,
deel 80, serie B, No. 6, tweede druk, Uitgave van de N.V. Noord-Hollandsche Uitgevers Maatschappij, Amsterdam 1941.
Scholten, Paul, De structuur der rechtswetenschappen, Mededeelingen der Nederlandsche Akademie van Wetenschappen,
Afd.Letterkunde, Nieuwe reeks deel 8, No. 1., Noord-Hollandsche Uitgevers Maatschappij, Amsterdam 1945.
Sudikno Mertokusumo Sejarah peradilan dan perundang-undangannya di Indonesia sejak 1942 dan apakah
kemanfaatnya bagi kita bangsa Indonesia, diss, Universitas Gajah Mada, 1971; cetakan ulang Universitas Atma Jaya,
Yogyakarta, 2011.
Sudikno Mertokusumo, Bab-bab tentang penemuan hukum (deels vertaling Pitlo), Citra Aditya Bakti, Konsorsium Ilmu
Hukum, Departemen Pendidikan dan Kebudayaan, Asia Foundation, Yogyakarta 1993.
Sutiyoso, Bambang, Metode penemuan hukum. Upaya mewujudkan hukum yang pasti dan berkeadilan, UII Press,
Yogyakarta, 2006.
Rozemond, Klaas, Strafvorderlijke rechtsvinding, diss VU, Amsterdam, Gouda Quint, Deventer 1998.
Termorshuizen-Arts, M.J.H.W.,Legal semantics. A contribution to the methodology of legal comparison, jurisprudence
and legal translation, WLP 2003 (Dutch version), 2008 (English version). For the English version also see Researchgate
(downloadable version).
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13Digital Paul Scholten Project
ACKNOWLEDGEMENTS
Keynote speech delivered at the Third Paul Scholten Symposium on Law and Emotion on 26/27 november 2015 26 November
2015
ACKNOWLEDGEMENTS
Keynote speech delivered at the Third Paul Scholten Symposium on Law and Emotion on 26/27 november 2015 26 November
2015
ACKNOWLEDGEMENTS
Keynote speech delivered at the Third Paul Scholten Symposium on Law and Emotion on 26/27 november 2015 26 November
2015
14Digital Paul Scholten Project
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