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HR 7 Maart 1980, NJ 1980, 353, Nt GJS (Stierkalf) Cultural values and legal reasoning in property cases* ‘There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property’ William Blackstone, 1765 1. A discussion of the role of cultural values in legal reasoning, may easily turn into an abstract, esoteric exercise, so in this paper an effort is made to come to a more down-to-earth approach, and look for trite illustrations. And what could one find better than private property? There is little exaggeration in saying, that cul- tural values are best reflected in the concept of property, be it that of civilized or less civilized people. And on the legal side, it may be observed that leading schol- ars over the centuries, from Grotius, via Hegel and Duguit into our times, have built a system of private law with at the core three concepts: property, contract and tort. So both philosophers and lawyers find a common ground in property; being a bit of both, the choice for this author is obvious. So far for credentials. As we first look at the traditional view of property in civil law and common law, based on 18th and early 19th century thought, we find a striking resemblance. Compare the conception of property as the ‘droit inviolable et sacré’ of the French Civil Code with Blackstone’s words: property is ‘that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe’.1 This unity in thinking has disappeared in the first decades of our cen- tury. Due to the efforts of the ‘Freirechtler’, Eugen Ehrlich, Karl Renner and oth- ers, property was put in a new, society-oriented perspective, ‘the social function of property’. This even led to a section in the German Constitution of 1919: ‘Eigen- tum verpflichtet. Sein Gebrauch soil zugleich Dienst sein für das gemeine Beste’ (‘Property obliges. Its use should also be in the common good’). A comparable * In: Reason in Law. Proceedings of the Conference Held in Bologna, 12-15 December 1984, Volume Three, 1988, Milano, p. 147-159. Let op: Originele paginanummering ont- breekt. 1 Compare, Kenneth J. Vandevelde, The New Property of the Nineteenth Century: the De- velopment of the Modern Concept of Property, 29 Buffalo L.R., 325,1980. Compare also for a survey of the concept of property, in different legal systems: R. S. Bhalla, The basis of the right of property, Anglo-American L.R., 1982, 57; idem, 1981, 180; Margaret Jane Radin, Property and Personhood, 34 Stanford L.R., 957, 1982; Thomas L. Shaffer, Men and Things: The Liberal Bias Against Property, Am. Bar Ass. J. 1971,123. In general, the text- books on Legal Theory, e.g. W. Friedmann, Legal Theory, 5th ed. 1967. 2 ZAKENRECHT, ERFRECHT, HUWELIJKSVERMOGENSRECHT movement is known in France in the same period, characterized by the famous phrase of Duguit, following Comte: ‘the only right which any man can possess is the right always to do his duty’, which still is moderate compared to Proudhon’s ‘property is theft’. In the American sphere, in the same period, however, all is quiet on the Western front. Roscoe Pound, drafting his ‘legal values of civilized society’ (1919) is taking property in Blackstonian sense with an all-American fla- vour.2 The same holds true for another innovator of American jurisprudence, Jus- tice Holmes; compare his opinion to the rescue of private property, in Pennsyl- vania Coal Co. v. Mahon (1922): ‘The general rule at least is that while property may be regarded regulated to a certain extent, if regulation goes too far it will be recognized as a taking’.3 It is only after the last World War that the call for ‘a new property’ (Reich) is heard;4 the development of a new trend in property thinking is going fast, leading to numerous essays over the last years by American authors, dealing with the theme of the decline of property, although usually still followed by a question mark.5 Comparison between legal thought in civil law and common law seems more worth while than ever, these days. 2. Before going into that, by comparing a Dutch and an American case in this field, both landmark-cases, I would first like to state the jurisprudential starting point of this author, and give an indication of the route followed in the field work ahead. To give the reader some support in this respect (and, I must add, the author, short of time, as well) the following exposé of my view on legal reasoning and the role of personal values is given, which appeared earlier.6 It is done in the form of 9 theses, which cannot be elaborated here. 1. General norms in private law, or as I would call them, open norms, are basically norms of conduct, that is to say, they can always be concre- tisized into norms of conduct in a specific case. In disputes concerning rights (in the realm of property or of contracts) one finds a similar ten- dency to deal with rights as a problem of rules of conduct. In this sense the judge is not taking rights seriously. 2. A person asked to judge a situation and the legal controversy arising from it, in establishing the concrete norm(s) of conduct for the party or parties in questions, is basing his judgment on his own value-system. This means, that he is taking his own personal norms of conduct as 2 Compare Friedmann, at p. 340. 3 Compare James L. Oakes, ‘Property rights’ in Constitutional Analysis Today, 56 Wash. L.R., 385, at 604, 1981. 4 Charles Reich, The New Property, 73 Yale L.J., 733, 1964. 5 From the abundant literature, I studied: Oakes, supra; Joseph L. Sax, Some Thoughts on the Decline of Private Property, 58 Wash. L.R., 481, 1983 (compare also his: Takings, Pri- vate Property and Public Rights, 81 Yale L.J., 149,1971); Philip Soper, On the Relevance of Philosophy to Law: Reflections on Ackerman’s Private Property and the Constitution, 79 Col.L.R., 44,1979; Michael B. Metzger, Private Property and Environmental Sanity, 5 Ecology Law Q., 795, 1976; Gregory S. Alexander, The Concept of Property in Private and Constitionat Law: The Ideology of the Scientific Turn in Legal Analysis, 82 Col.L.R., 1545, 1982. 6 The role of personal values in legal reasoning, paper IVR-congres Helsinki 1982, Rechts- theorie 1986, Beiheft 10, p. 13j; also in: De dialektiek van rechtsvinding en rechtsvor- ming.Opstellen over rechtsvinding, Serie Rechtsvinding, Deel la, 193, 1984 (in English). CULTURAL VALUES AND LEGAL REASONING IN PROPERTY CASES 3 standard for the decision (‘what would I, as a reasonable man, do in this situation?’). 3. The personal value-system of the judging person regarding rules of conduct is derived from two sources, which are being tapped in the dynamic process of decision making: a. Person-originated values: values provided by his subjective value-system, taken as part of an inter-subjective system of his social group or society. b. Situation-originated values: values provided by the situation, the facts and circumstances of the case presented for judg- ment to him. 4. In the process of judging a legal controversy, of deciding legal ques- tions, the process is essentially a two-way process, characterized by dialectics: in a confrontation of the person and the case, the concrete norms for decision stemming from the person judging, on the one hand, and from the case, on the other hand, are inter-related and inter- dependant, influencing each other. (It thus is hard to say what comes first or what is dominating).From this fusion the concrete norm(s) for the instant case is born. 5. The finding of the concrete norm as a product of Persona and Res oc- curs in the confrontation of the judging person with the facts and ar- guments of the presented case, and can be seen by him in one flash, in an intuitive vision of the solution of the legal controversy. This insight can be characterized as a Gestalt. Thus, a basic similarity may be observed between the judging person and an artist, or a scientist, a manager (or perhaps any person), looking for a solution of a complicated question. The Roman maxim, law as an ‘ars aequi et boni’, may hold a profound truth. 6. Intuition plays a central role in legal decision making, but is no antip- ode of reason. The separation of reason and intuition is an apriorism, arbitrary and unnecessary. Reason cannot do without intuition. (Com- pare the relation, etymologically, between ‘reason’ and ‘reasonable’, the latter being the common description of normative rules of con- duct). 7. The solution found by the joint operation of reason and intuition, seen at the initial stage of the process as a Gestalt, does not have to be final. In addition to the flash-insight, further scrutiny is necessary, in a sys- tem of checks and balances. For the need for this procedure two rea- sons may be submitted: a. The average judging person is no philosopher-king or kadi, and usually is not accepted as such by society. He needs to give argumentations to support his decision, in order to live up to the expectations in regard of his role in the community. The character and extension of this legal argumentation de- pend on culture and traditions (compare the continental style, e.g. Cour de Cassation, France, contra the anglo-american style, e.g.
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