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Law and Philosophy Library 129

H. D. S. van der Kaaij

The
Juridical
Act
A Study of the Theoretical Concept of an
Act that aims to create new Legal Facts
Law and Philosophy Library

Volume 129

Series editors
Francisco J. Laporta, Autonomous University of Madrid, Spain
Frederick Schauer, University of Virginia, USA
Torben Spaak, Stockholm University, Sweden

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Aulis Aarnio, Secretary General of the Tampere Club, Tampere, Finland
Humberto Ávila, University of São Paulo, São Paulo, Brazil
Zenon Bankowski, University of Edinburgh, Edinburgh, UK
Paolo Comanducci, University of Genoa, Genova, Italy
Hugh Corder, University of Cape Town, Cape Town, South Africa
David Dyzenhaus, University of Toronto, Toronto, Canada
Ernesto Garzón Valdés, Johannes Gutenberg University, Mainz, Germany
Riccaro Guastini, University of Genoa, Genova, Italy
Ho Hock Lai, National University of Singapore, Singapore, Singapore
John Kleinig, City University of New York, New York City, USA
Claudio Michelon, University of Edinburgh, Edinburgh, UK
Patricia Mindus, Uppsala University, Uppsala, Sweden
Yasutomo Morigiwa, Meiji University, Tokyo, Japan
Giovanni Battista Ratti, University of Genoa, Genova, Italy
Wojchiech Sadurski, University of Sydney, Sydney, Australia
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The Law and Philosophy Library, which has been in existence since 1985, aims to
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More information about this series at http://www.springer.com/series/6210

H. D. S. van der Kaaij

The Juridical Act

A Study of the Theoretical Concept of an Act
that aims to create new Legal Facts
H. D. S. van der Kaaij
University of Maastricht
Maastricht, The Netherlands

ISSN 1572-4395     ISSN 2215-0315 (electronic)

Law and Philosophy Library
ISBN 978-3-030-15591-9    ISBN 978-3-030-15592-6 (eBook)
https://doi.org/10.1007/978-3-030-15592-6

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For Jasper
Contents

1 Introduction and Method������������������������������������������������������������������������    1

1.1 Introduction��������������������������������������������������������������������������������������    1
1.2 Concepts in Law��������������������������������������������������������������������������������    3
1.2.1 Legal Concepts����������������������������������������������������������������������    4
1.3 A Working Knowledge of the Theoretical Concept��������������������������    7
1.4 Method: Exchange Between Theory and Practice����������������������������    7
1.5 Two Theoretical Stepping Stones�����������������������������������������������������    8
1.5.1 Institutional Theories of Law������������������������������������������������    9
1.5.2 Speech Act Theory����������������������������������������������������������������   16
1.6 The Theoretical Concept of a Juridical Act��������������������������������������   18
1.7 The Value of a Theoretical Concept of a Juridical Act ��������������������   21
1.7.1 The Value of a Theoretical Concept in General��������������������   21
1.7.2 The Value of a Theoretical Concept of a Juridical Act����������   22
1.7.3 The Value of the Creation of This Theoretical Concept
of a Juridical Act ������������������������������������������������������������������   23
References��������������������������������������������������������������������������������������������������   24
2 The Delineation of the Theoretical Concept of a Juridical Act������������   27
2.1 Introduction��������������������������������������������������������������������������������������   27
2.2 Delineation����������������������������������������������������������������������������������������   27
2.2.1 The Type of Juridical Act Needs to Exist������������������������������   28
2.2.2 Competence��������������������������������������������������������������������������   31
2.2.3 A Juridical Act Is a Constitutive Speech Act������������������������   41
2.2.4 The Juridical Act Is Not Defined by Its Consequences��������   53
2.3 The Delineation of the Theoretical Concept of a Juridical Act��������   55
References��������������������������������������������������������������������������������������������������   56
3 The Juridical Act as a Speech Act in the World of Law ����������������������   59
3.1 Introduction��������������������������������������������������������������������������������������   59
3.1.1 The Process of Performing a Juridical Act����������������������������   59
3.1.2 Nullities��������������������������������������������������������������������������������   62
3.1.3 Upcoming Issues������������������������������������������������������������������   63

vii
viii Contents

3.2 The Function of Rules in the World of Law��������������������������������������   63

3.2.1 MacCormick on Law as Institutional Facts��������������������������   63
3.2.2 Counts-as Rules��������������������������������������������������������������������   65
3.2.3 Attached-to Rules�����������������������������������������������������������������   67
3.2.4 Leads-to Rules����������������������������������������������������������������������   68
3.3 The Speech Act Can Count as a Juridical Act����������������������������������   70
3.3.1 Counts-as Rules��������������������������������������������������������������������   71
3.3.2 Counts-as Rules and How-to Rules��������������������������������������   72
3.3.3 Non-existence ����������������������������������������������������������������������   74
3.4 The Juridical Act Can Lead to Primary Legal Consequences����������   75
3.4.1 Illocutionary Force, Propositional Content and the Primary
Legal Consequences of the Juridical Act������������������������������   76
3.4.2 Interpretation of the Juridical Act ����������������������������������������   91
3.4.3 Leads-to Rules����������������������������������������������������������������������   94
3.5 The Juridical Act Does Not Lead to (All) Legal Consequences ������ 106
3.5.1 Can There Be a Juridical Act Without Legal Consequences?���   106
3.5.2 The Juridical Act Has No Legal Consequences�������������������� 110
3.6 Secondary Legal Consequences�������������������������������������������������������� 115
3.6.1 The Difference Between Primary Legal Consequences
and Secondary Legal Consequences������������������������������������ 117
3.6.2 Different Functions of Secondary Legal Consequences ������ 120
3.6.3 Secondary Legal Consequences Are Attached to the Primary
Legal Consequences������������������������������������������������������������������ 127
3.6.4 The Argument in Favour of the Distinction Between Primary
and Secondary Legal Consequences ���������������������������������������� 132
3.7 The Juridical Act as a Speech Act in the World of Law�������������������� 132
References�������������������������������������������������������������������������������������������������� 134
4 The Value of the Theoretical Concept���������������������������������������������������� 137
4.1 Introduction�������������������������������������������������������������������������������������� 137
4.1.1 The General Value of Theoretical Concepts ������������������������ 138
4.1.2 The Value of a Theoretical Concept of a Juridical Act �������� 140
4.1.3 The Value of the Particular Theoretical Concept as Created���  142
4.2 The Dutch Concept Rechtshandeling������������������������������������������������ 143
4.2.1 The Rechtshandeling in the Dutch Legal System ���������������� 144
4.3 Juridical Acts in the English Common Law System������������������������ 147
4.3.1 Offer and Acceptance������������������������������������������������������������ 148
4.3.2 To Make a Statutory Law������������������������������������������������������ 149
4.4 Ambiguity in the DCFR�������������������������������������������������������������������� 150
4.4.1 Two Contractual Models������������������������������������������������������ 151
4.4.2 The DCFR���������������������������������������������������������������������������� 153
4.5 A Comparison Between the Competence Needed for a Beschikking
and for the Verwaltungsakt���������������������������������������������������������������� 153
4.5.1 The Competence Needed for a Beschikking as Compared
to the Theory on Competence as Developed������������������������ 155
Contents ix

4.5.2 The Competence Needed for a Verwaltungsakt

as Compared to the Theory on Competence as Developed ���  158
4.5.3 The Competence Needed for a Beschikking as Compared
to the Competence Needed for a Verwaltungsakt
with the Help of the Concept of Competence as Developed���  159
4.6 Can Computers Perform Juridical Acts?������������������������������������������ 161
4.7 The Value of the Theoretical Concept���������������������������������������������� 166
References�������������������������������������������������������������������������������������������������� 166
5 Conclusions���������������������������������������������������������������������������������������������� 169
5.1 Introduction�������������������������������������������������������������������������������������� 169
5.2 The Delineation of the Theoretical Juridical Act������������������������������ 169
5.2.1 Four Characteristics�������������������������������������������������������������� 170
5.3 The Performance of the Juridical Act and the Connection Between
Act and Consequences���������������������������������������������������������������������� 171
5.3.1 A Speech Act Counts as a Juridical Act�������������������������������� 172
5.3.2 The Juridical Act Leads to Primary Legal Consequences���� 172
5.3.3 Secondary Legal Consequences�������������������������������������������� 174
5.4 The Value of the Theoretical Concept of a Juridical Act������������������ 176

Bibliography ���������������������������������������������������������������������������������������������������� 179

Chapter 1
Introduction and Method
Introduction into the Book and Method

1.1 Introduction

It is generally accepted that within Western legal systems there needs to be a pos-
sibility to perform an act which has the purpose of changing the set of legal facts.
Not only can an act have that purpose, but also, because it has that purpose, the act
can change the set of legal facts. Some examples of this type of act are: the possibil-
ity for an agent to intentionally enter into a contract, to make a statutory law, to
transfer ownership of his property, to grant a licence, or to start a limited liability
company. It is this group of acts that are the focus of this work.
The possibility to intentionally create legal consequences is deeply rooted in the
Western legal tradition.1 In most civil law systems, these acts by a (legal) person are
classified as ‘juridical acts’. In Germany, although it is restricted to private law, the
concept of the ‘Rechtsgeschäft’ is used.2 In France, the concept of the ‘acte juridique’
is hardly codified, but it plays a role in legal private law discourse.3 In the Netherlands
the ‘rechtshandeling’ is codified and deemed to be present in both private and
administrative law.4 Some countries have not codified the juridical act at all, even
though the concept plays a role in legal doctrine. This is the case, for example, in
Italy, where the ‘negozio giuridico’ is a central concept in legal doctrine.5 In com-
mon law systems, like England, the concept of a juridical act as such is not used or
accepted, but juridical acts can be compared to the ‘exercise of a Hohfeldian p­ ower’6

1
The western legal tradition includes but is not limited to continental Europe, the Nordic countries,
Latin-America and the Anglo-American legal systems.
2
See e.g.: Flume (1979), pp. 1–363; von Savigny (1840), pp. 1–7, 98–306.
3
See e.g. Lokin (2004), pp. 63–83.
4
Title 3.2 Dutch Civil Code and art. 1:3 of the General Administrative Law Act.
5
Schmidt (2012).
6
Halpin (1996), pp. 129–152.

© Springer Nature Switzerland AG 2019 1

H. D. S. van der Kaaij, The Juridical Act, Law and Philosophy Library 129,
https://doi.org/10.1007/978-3-030-15592-6_1
2 1 Introduction and Method

or Harts ‘acts-in-the-law’.7 The English term ‘juridical act’8 is used in the Principles,
Definitions and Model Rules of European Law, the Draft Common Frame of
Reference, where the act is defined in DCFR art. II. – 1:101(2). This article reads:
‘A juridical act is any statement, whether express or implied from conduct, which is
intended to have legal effect as such.’9 If the term ‘juridical act’ is used in the DCFR
it is limited to the concept as it can be found in the DCFR. For the general readabil-
ity, it is necessary to use a single term for the type of acts described above. These
acts are most often referred to as ‘juridical acts’ in the English language, I will also
use the term ‘juridical act’ for the acts addressed in this work.10 Other terms used are
‘legal act’ or ‘legal transaction’, the last of these brings to mind mostly sales trans-
actions, whereas the first is also used as a contradiction to an ‘illegal’ act. For those
reasons I felt they were less suitable terms, this in combination with the fact that in
Europe, on the basis of the DCFR, the term ‘juridical act’ has become the most
prevailing term used. Therefore I have decided to use the term ‘juridical act’.11
However, it is important to note that I do not refer to the juridical act as can be found
in the DCFR or any other pre-existing concept of a juridical act. The goal is to craft
a new (theoretical) concept of a juridical act, and it is to that act, the one I will craft,
that I refer to when I use the term ‘juridical act’.
This juridical act is an act:
–– which aims to create new legal facts,
–– the legal consequences of which, the new legal facts, are at least partially repre-
sented in the content of the act, and
–– the legal consequences of which come about because the act was performed with
the aim of creating exactly those consequences.
By creating new legal consequences one can influence one’s own legal status, but
also the status of someone else, or even the legal status of a whole group of people.
For example: when Jasper sends in his resignation, he changes his own legal status,
simply put, from being employed to being unemployed (including the myriad of
legal changes that this new status brings about). On the other hand, when the legisla-
tor changes the law on the legal age for drinking alcohol from sixteen to eighteen
years old, it creates a new valid law. This law changes the legal status of large
groups of people, most notably the sixteen and seventeen-year olds, who will go
from being ‘allowed to drink alcohol’ to ‘not allowed to drink alcohol’. Both Jasper
and the legislator performed a juridical act in order to create these legal changes.

7
See a.o.: Hart (1983), pp. 88–120, 265–277.
8
I will use single quotation marks (‘…’) for terms, both to denote that it is a term and when an
unusual term is used, for concepts and quotes and I will use, what I call, square quotation marks
(˹…˺) for facts.
9
DCFR 2009 art II. – 1:101.
10
Schmidt (2012).
11
Obviously this is a personal choice, the connotations people have with words are highly colored
by their use and experience of the words in combination with their legal culture. However, a choice
had to be made, and therefore it became ‘the juridical act’ for the reasons stated.
1.2 Concepts in Law 3

The goal is to develop a new concept of a ‘juridical act’, a concept which is not
a part of any existing national legal system, but that represents commonalities and
ideas that stem from the Western legal tradition. The definition given above is a
mere starting point for the research into this concept.
I will first give some insight into different types and functions of concepts, and
thereby I will explain in Sect. 1.2 exactly the scope of the concept researched. In
Sect. 1.3 it is explained that a working knowledge will be tried to be amassed. After
that, in Sect. 1.4, I will discuss the method used. Then in Sect. 1.5 I will introduce
the two main theoretical stepping stones for the research done. In Sect. 1.6 I will
give a short overview of the theoretical concept as it is developed in this work and
finally, in Sect. 1.7, I will briefly introduce some of the arguments why the work
done is valuable.12

1.2 Concepts in Law

In the introduction it was stated that the goal is to craft a new (theoretical) concept
of a juridical act. However, before a concept can be crafted, it is important to address
concepts, what they are and the roles they can play in law and legal research.
Many terms in legal rules and legal doctrine, such as contract, licence, owner-
ship, judgment, tort, juridical act, jurisdiction, and thief, express concepts. Concepts
play an important role in law; they are used in various functions, both practical and
theoretical. In legal practice, discussions often involve the question whether a cer-
tain state of affairs is an instantiation of a legal concept, for example: ‘Is this man a
thief’? However, concepts often play a role in theories about the law too.13 I will
elaborate: for the physical world, natural sciences develop theories that describe and
explain this world. For example, part of biological theory is concerned with the
inner workings of the human body. In the same vein, the world of law14 and its facts
and objects are the subject matter of legal doctrine and legal theory and possibly
other forms of legal science.15 This can be represented schematically in Fig. 1.1.
Concepts can also play a role in legal theory, for example, in order to classify and
describe the objects in the world of law.
An example of a concept that is used in legal theory is Kelsen’s concept of the
Grundnorm, which is used as part of his (pure) theory of law.16 Because legal

12
I will argue this point more extensively later, in Chap. 4.
13
Both in practice and in theory, concepts are used in many ways. These are just examples.
14
The term ‘the world of law’ will be explained more fully later. For now I will give Hage’s defini-
tion of the world of law: ‘the world of law in a broad sense consists out of everything the existence
of which is based on the application of legal rules. This includes real estate, mayors, cars, but also
certain kinds of events, acts, states of affairs and rules.’ See: Hage (2011).
15
There also exist forms of legal science that are not concerned with the world of law as their
object, but they have a different object, such as e.g. legal psychology and legal sociology.
16
Kelsen (1960) (2009), pp. 193–220.
4 1 Introduction and Method

World of Law Theories of the

- Legal rules World of Law: legal
- Institutional facts is described by doctrine, legal theory,
- Rule-based objects etcetera.

Fig. 1.1 Schematic overview of theory and its subject matter

c­ oncepts can serve different functions it is necessary to establish the function and
goal of the concept that is the subject of this research. For that reason, this section
will include a classification of concepts in law. When that classification has been
carried out, the type of concept that will be researched can be understood as one of
the types of concepts that can be found in law and legal discourse.

1.2.1 Legal Concepts

Legal concepts can have various functions, for example: concepts can be used to
state the law, but they can also be used to help to formulate theories about the law.17
A distinction can be made between three types of concepts based on two factors: the
first factor concerns the function of the concept, its role in law and legal theory and
the second concerns whether a concept is dependent on a specific legal system or
not. Regarding the first factor, the function of the concept, a division can be made
between concepts that either state the law, the concept is used in a law-stating func-
tion, and concepts that are used to formulate theories about the law, the concept is
used in order to be juridical-operative.18 This division has to do with the manner in
which a certain concept is used. It is important to note that these characteristics are
functions of, possibly, one and the same concept. For example, the concept ‘tort’
can be used as a law-stating concept: when a judge rules that a specific action was a
tort. However, the same concept ‘tort’ can also be used in a more descriptive func-
tion, for example when a British lawyer formulates theories about the differences
between tort (English law) and delict (Scots law). In both cases the concept is used
in a different function.
A second division can be made between concepts that are based completely on
the laws or rules of one system—such as, for example, a national legal system or the

17
The fact that a concept can be used with different ‘meanings’ dependent on what its function is
can be compared to Wittgenstein’s later ideas concerning how the meaning is dependent on ‘gram-
matic rules’. For an overview of Wittgenstein and his importance for legal concepts and meaning
see: Fleuren (2015).
18
This distinction comes from the work of Frändberg on concepts: Frändberg (2009).
1.2 Concepts in Law 5

Table 1.1 Matrix of concepts

Law-stating function Juridical-operative function
System-dependent Constitutive Descriptive
System-independent – Theoretical

laws of the European Union—and concepts that are independent of any specific set
of rules. This division concerns different concepts. Even though the terminology
may be the same, the concept is different. For example, in English law the term
‘claim’ is used to denote a system-dependent concept, which concerns demanding
or asserting a right (in court). Hohfeld, in his work on fundamental legal concepts,
also used the term ‘claim’ for one of his concepts and here the concept ‘claim’ cor-
relates to his concept of ‘duty’.19 A Hohfeldian duty is something which ought or
ought not to be done. The claim correlates with this duty: if a claim is violated a
duty is violated. For example, if Annie has a claim that Jan stays off her land, Jan
has the corresponding duty towards Annie to stay off her land.20 This Hohfeldian
concept is system-independent; it is not based on the specific legal rules of a certain
system, as opposed to the term ‘claim’ as used in English law.21 The same term
‘claim’ here denotes two different concepts: the English claim, which is system-­
dependent and the Hohfeldian claim, which is system-independent. On the other
hand, in the first example the term ‘tort’ referred to the same concept twice, but the
concept was used in a different function in each situation.
With the help of these distinctions it is possible to draft a matrix, as shown in
Table 1.1, in which we can find three types of concepts.
System-dependent concepts can be both law-stating and juridical-operative in
function, while system-independent concepts are by nature juridical-operative.
After all, if the concept does not belong to a specific system or set of legal rules, it
cannot state the law, but it can only be used to formulate theories about the law in
general. On the other hand, law-stating concepts are always system-dependent: in
order to be law-stating they need to function within a certain system.
In order to facilitate easy reference to the different kinds of concepts, I will use
the following terminology: A constitutive concept is defined by the rules of a spe-
cific legal system and plays a law-stating role within that system. An example of
such a concept is the German concept of ‘Mörder’,22 as (partially) defined by art.
211 Strafgesetzbuch.23 The concept of Mörder determines which states of affairs are

19
Hohfeld (1913); in his earliest work he still used the term ‘right’.
20
Hohfeld (1913).
21
Hohfeld does not make a distinction between system-dependent and system-independent
concepts.
22
Comparable to murder.
23
211 StGB: (1) Der Mörder wird mit lebenslanger Freiheitsstrafe bestraft. (2) Mörder ist, wer aus
Mordlust, zur Befriedigung des Geschlechtstriebs, aus Habgier oder sonst aus niedrigen
Beweggründen, heimtückisch oder grausam oder mit gemeingefährlichen Mitteln oder um eine
andere Straftat zu ermöglichen oder zu verdecken, einen Menschen tötet. <http://www.gesetze-im-
internet.de/stgb/__211.html> (last checked 20-08-2018).
6 1 Introduction and Method

categorised as murder and what the consequences are. As such, the concept is used
in a law-stating, constitutive function. A different example is the concept of ‘chat-
tel’24 in English law. Even though the definition of the concept is not codified as
such, chattel is used in English law for a category of goods and, in that role, ‘chattel’
is constitutive.25
However, it is also possible to use a concept in order to formulate theories about
the law. If this concept is used purely for the law of one country and bases itself
completely on that set of rules, it could be argued that the resulting concept is
system-­dependent and it is a descriptive concept. Its content is determined com-
pletely by the rules and principles of one legal system. It is possible, for example, to
develop an extensive definition of the French concept ‘propriété’,26 based on French
rules and principles concerning propriété and not merely on the codified rule in art.
544 Code Civil.27 This concept would be limited to a description of French law and
could be used to formulate theories about French law, but as such it is not constitu-
tive as it does not state the law. The function of this concept is to describe the French
law. Another example could be the Dutch concept of ‘bestuurlijke boete’.28 When
this concept is used in a discussion of whether it is desirable to have a sanction out-
side of the domain of criminal law, the concept is used in a descriptive function.
Theoretical concepts are used to formulate theories about the law in general.
Theoretical concepts are not limited to the rules and principles of a specific legal
system. Hart, for example, identified ‘rules of adjudication’.29 This concept is used
to formulate theories about law, but, as such, it is not defined by specific legal rules.
It is system-independent in the sense that it is not linked to any specific set of legal
rules or any specific legal system. Another example might be a concept of ‘property’
that is not based on the rules of a specific legal system. Philosophical ideas about
what property is and what can be owned could be the basis for such a theoretical
concept of property.
In order to study a concept, it is important to know the type of the concept that is
under investigation. After all, one term can be used for several types of concept. For
example, the term ‘juridical act’ can be used to stand for a constitutive concept, for
instance when it is used in the DCFR to state law. An enquiry into this concept will
differ from the study of the theoretical concept of a ‘juridical act’, because constitu-
tive concepts only concern the internal legal rules of the system they belong to. The

24
Movable property.
25
E.g. in the Law of Property Act 1925, 87(3): Such declaration shall not affect the priority of the
mortgage or his right to retain possession of the documents, nor affect his title to or right over any
fixtures or chattels personal comprised in the mortgage. <http://www.legislation.gov.uk/ukpga/
Geo5/15-16/20> (last checked 20-08-2018).
26
Comparable to the concept ‘property’.
27
Art 544 Code Civil: ‘La propriété est le droit de jouir et disposer des choses de la manière la plus
absolue pourvu qu’on n’en fasse pas un usage prohibé par la loi ou les règlements’.
28
Literal translation by the author: administrative penalty. It is a pecuniary sanction that can be
executed by a public body such as a.o. the local government. It is therefore a sanction that is not
part of the domain of criminal law.
29
Hart (1961) (2012), pp. 94–99.
1.4 Method: Exchange Between Theory and Practice 7

study of a theoretical concept necessitates an enquiry outside the confines of a spe-

cific legal system. The object of my research is the juridical act as a theoretical
concept. This theoretical concept is not defined by legal rules, nor is it tied to one
specific legal system.

1.3 A Working Knowledge of the Theoretical Concept

The goal is to amass a ‘working knowledge’ of the theoretical concept of a juridical

act. Put differently, I do not try to formulate a precise definition, but instead I aim to
find common characteristics of juridical acts. A definition for a concept that encom-
passes so many different acts can easily end up as either a very broad definition, as
given in the introduction, or it can be bogged down by too many slightly differing
variables. Neither of these two options adds much to the general body of legal
research. What can be done however is to research the common characteristics of all
these acts and to look at the relationship between the act and its consequences. If
that is done, many aspects of the concept of a juridical act will have been clarified,
which can be valuable.30 The knowledge gained by researching these aspects will be
referred to as gaining a ‘working knowledge’ of the concept. A working knowledge
of the theoretical concept of a ‘juridical act’ thus consists of knowledge concerning
the characteristics of the act and knowledge relating to the performance of the act
and the relationship between the act and its legal consequences. In order to keep the
terminology more simple at times, hereafter I will also speak of ‘crafting a theoreti-
cal concept’ and of the ‘theoretical concept of a juridical act’, when it concerns the
working knowledge and the studies and theories compiled.

1.4 Method: Exchange Between Theory and Practice

The method used is an exchange between theoretical knowledge and practical

knowledge. Between the knowledge gained from these two points, a reflective equi-
librium will be sought, so that the final theoretical concept will contain a balance
between theory and practice.
More precisely this means the following: a basic idea for the theoretical concept
of a juridical act comes from knowledge of national legal systems. For example, in
the Netherlands, Germany and France a kind of juridical act can be found.31 The
knowledge of these system-dependent concepts can form a basis for the general idea
of a juridical act. In order to be able to fully form a precise and clear definition of a
theoretical concept, these system-dependent concepts are insufficient. Clarity can
be gained through the use of certain theories from (legal) philosophy. The use of

30
More on the value in Sect. 1.7 and Chap. 4.
31
Most examples will be derived from Dutch law.
8 1 Introduction and Method

these theories makes it possible to gain insights into the concept of a juridical act
that are unrelated to system-dependent legal rules. For example, according to Dutch
legal rules the will is a necessary component of the rechsthandeling, however, in
practice, there is a rise in the incidence of computers who seem to perform recht-
shandelingen, while they lack a will and therefore should be unable to perform these
acts. An example of this, the Dutch student grants32 are issued completely automati-
cally, by computers. It is assumed that computers cannot act intentionally, as they
lack the necessary will to perform a juridical act. Philosophical theories about action
and intention can help in delineating whether or not computers can perform juridi-
cal acts. Thereby a more precise concept of ‘juridical act’ can be extracted.
The goal is to develop a theoretical concept of a ‘juridical act’ that fits within the
Western legal tradition. In order to accomplish that, an exchange between knowl-
edge of system-dependent rules and practices and system-independent legal and
philosophical theories is necessary. Through that exchange a theoretical concept can
be found that is based on the Western legal basic lexical meaning of the term ‘juridi-
cal act’. Due to the different concepts within the Western legal tradition—such as
rechtshandeling, Rechtsgeschäft, acte juridique, etcetera—the lexical meaning of
the term ‘juridical act’ in the Western legal world is vague. For example, the Dutch
concept rechtshandeling is present in both private and administrative law, while the
German concept Rechtsgeschäft is limited to private law. Is the concept ‘juridical
act’ then limited to private law or not? In order to answer that question and develop
a theoretical concept, I will use knowledge from both system-dependent legal rules
and philosophical theories. The resulting definition will thus be rooted in the
Western legal tradition, but it will also be clear and precise.
The aim is to create a reflective equilibrium,33 where the concept is formed partly
by ‘intuitions’, ideas from theory, and partly by knowledge of what acts are in legal
practice indeed classified as juridical act, and what legal consequences acts can have
in practice. To bring about this result, there will be an exchange between theoretical
ideas and knowledge gained from legal practice in different existing legal systems.
Both intuitions should reach equilibrium; they should be balanced. This is shown
schematically in Fig. 1.2.

1.5 Two Theoretical Stepping Stones

In the section above, the use of philosophical theories was mentioned as an impor-
tant part of the method for creating a clear theoretical concept of ‘juridical act’.
Much of the theoretical framework relies on two theories that form the foundation.

32
Studiefinanciëring, I have translated this as student grants. DUO (the institution that grants these)
uses ‘student finances’, but I believe ‘students grants’ is a better translation. <https://duo.nl/par-
ticulieren/international-student/student-finance/how-does-it-work.asp> (last checked
20-08-2018).
33
See a.o.: Daniels (2013); Rawls (1971), pp. 17–22, 46–53.
1.5 Two Theoretical Stepping Stones 9

T heoretical
concept

Intuitions based on Intuitions based on

philosophy & legal legal practice
theory
Ref lective equilibrium

Fig. 1.2 Reflective equilibrium

The views represented in these theories can be found as a common theme all through
this work. Hereafter I will introduce these two stepping stones.

1.5.1 Institutional Theories of Law

The first stepping stone concerns the view of the law that is adopted for this research.
There are different views on the law, and the view on the law which is held influ-
ences the research and thereby the opinions formed on the law and its concepts. For
that reason, I will explicitly express what my view of the law is, since it is of great
influence in developing the theoretical concept. I will distinguish between two dif-
ferent views that are diametrical opposites, even if in legal practice they often seem
to overlap in our reasoning.34 I believe the views generally put forward make up the
two main views and most other views consist of derivatives of these two views. This
opinion is in line with the work of Hage; the law can be seen either as an institu-
tional fact or as a discursive practice.35 I will shortly address these two differing
notions and reveal that I rest my theory on the view that the law is institutional.

34
Hage (2011), in order to see how differences that are close to this distinction can create differ-
ences in legal discourse see Smith (2014).
35
Hage (2011).
10 1 Introduction and Method

1.5.1.1 Legal Constructivism; The Law as a Discursive Practice

It is possible to view the law as a discursive practice, where arguments determine

what the legal facts in a certain case are. In this view, legal facts do not come into
existence directly on the basis of legal rules. Instead, legal rules are viewed as
guidelines and reasons that can help in deciding and in constructing an argument as
to what the legal facts in a certain case are. Some legal arguments are better than
others and, if that is the case, it is on the basis of that argument that the legal facts
are constructed. This view can, among others, be found in the work of Dworkin, but
also in the work of Scholten, and implicitly it seems to be the basis of the work of
Van Dunné.36 Legal rules and principles can be used in arguments, and the outcome
of these arguments is what constructs legal facts. This view of the law sometimes
seems to be more prevalent in common law systems, where legal facts do not exist
unless a judge has constructed and declared them. Contrary to that, in civil law sys-
tems the judge often does not create or construct legal facts but merely discovers
them, or declares or establishes what was fact all along.37 In a discursive or con-
structivist view there are no legal facts that can be discovered, since they first need
to be constructed. In this model, rules play a role as tools to be used for reasoning.38
On the other hand, in an institutional view of the law, as will be explained below, the
facts come into existence because the legal rule created the fact and, as such, the
facts can be discovered by a judge, similar to the discovery of the fact by a child
that: ˹there are three children in the playground˺.39 The child did not argue that there
were three children, he merely discovered an independently existing physical fact:
˹there are three children in the playground˺.

1.5.1.2 Law as Institutional Fact

In the section above the parallel was drawn between the discovery of legal facts and
the discovery of so-called ‘brute’ or ‘physical’ facts. At first this may seem strange,
since the fact that there are three children in the playground is physical, a brute fact,
and legal facts are not.40 However, when the law is viewed as institutional, both the
fact: ˹there are three children in the playground˺ and legal facts are, prior to their
‘discovery’, existing facts. There are differences between both facts, but they share
similarities. However, as opposed to the fact ˹there are three children in the play-
ground˺, legal facts are not brute, but institutional. I will explain shortly.

36
Dworkin (1986), pp. 52, 90; Asser-Scholten (algemeen deel) (1974), pp. 1–129; van Dunné
(1971).
37
Smith (2014).
38
Hage (2011).
39
These ‘square’ quotation marks are used to denote facts.
40
For this work, I accept that there is such a thing as a physical world existing independently of
human influence and I do not entertain any other ontological notions.
1.5 Two Theoretical Stepping Stones 11

For facts in the physical world, such as the number of children present, it can be
assumed that they, for a large part, exist independently of their observation by
human beings. Even if there are no human beings counting, or no one will ever
discover the number of children, there will still be a certain number of children pres-
ent. The existence of a fact about the number of children in the playground can
therefore be seen as a ‘brute fact’. However, in the world there exist also many facts
that are dependent on human beings. Certain facts are based on beliefs people have.
These types of facts are ‘social facts’, such as the fact that: ˹diamonds are valuable˺.
As a special category of social facts there are institutional facts, which are depen-
dent on human beliefs, but they come into being on the basis of a rule. Legal facts
can be an example of institutional facts. Because legal rules—which are dependent
on human beings; humans created them and believe in their power—exist, it can be
a fact that ˹Jaap owns this watch˺. This legal fact then is an institutional fact, as it
came into being because certain conditions of certain legal rules were fulfilled. If a
judge then has to determine whether or not Jaap is the owner of the watch, the judge
merely needs to discover a pre-existing fact, which came about on the basis of
rules.41
This is a very short and simple explanation of social facts and institutional facts
and rules. Institutional theories of law—that conceptualise the law as rule-based—
emphasise the role of rules in creating legal facts. This view corresponds with the
views of Hart, and MacCormick & Weinberger.42
Institutional theories of law, as a group of theories on law, were put on the map
by MacCormick and Weinberger, and the extensive foundations upon which they
built their theory can be found in their work.43 I will not discuss all of those founda-
tions. However, I will discuss one of the more important aspects: the difference
between so-called ‘brute’ and ‘institutional’ facts, which was mostly taken from the
analytical work of Anscombe and Searle.44 Hereafter the concept of a social reality
next to a physical reality and the different types of facts—brute (or physical), social,
and institutional—one can then distinguish will be introduced. It will be argued that
the law is a part of social reality and that it is ultimately based on social recognition
and acceptance. For that reason, the notion of the ‘world of law’ will be introduced
in Sect. 1.5.1.3.

41
Hage (2011).
42
Hart (1961) (2012); MacCormick and Weinberger (1986).
43
MacCormick and Weinberger (1986), pp. 1–30. A good introduction to institutional theories of
law can be found in: Hage (1998).
44
Anscombe (1958); Searle (1969), pp. 33–37, and in later work from Searle: Searle (1996),
pp. 31–57; Searle (2010), pp. 42–123.
12 1 Introduction and Method

Social Reality; Recognition and Acceptance

It is possible to make a rough distinction between physical reality, which consists of
all material things, and social reality.45 One of the cornerstones of social reality is
collective recognition and acceptance; social reality is that part of reality that exists
through the recognition and beliefs of people.46 For example, if it is a fact,47
˹Diamond is the hardest natural material˺ is a fact in physical reality. This fact exists
independently of what people accept regarding the hardness of the stone. Such a fact
can also be termed a brute fact (or a physical fact).48
However, not all facts are physical, as many facts do not exist without human
acceptance and recognition. For example, the fact ˹gold is valuable˺ is a fact in
social reality. It is based on what people recognise and accept concerning the value
of gold. None of the physical properties of gold (e.g. shiny, soft)49 cause the material
to be valuable. Of course these physical properties can contribute to the recognition
of gold’s value. In that case, the natural properties form the basis for the recognition
by people. But the properties do not make gold valuable by themselves. The value
of gold depends on human thoughts and ideas. If we look at these differences, it can
be argued that facts can be brute or they can be social.
If there is such a thing as a social reality, as argued above, it is apparently pos-
sible to believe together. My beliefs can be part of a larger common group of beliefs.
Social facts, such as ˹gold is valuable˺, come into existence when a sufficient num-
ber of people in a social group accept and recognise them, and, in addition to their
own recognition, believe that a sufficient number of people in that group also accept
and recognise them. Furthermore, the part of the social group that does not accept
or recognise the fact nevertheless does believe that a sufficient number of people in
the group does recognise and accept the social fact.50
Within the study of social reality and social groups and their believes and atti-
tudes different theories exist.51 In this work I have accepted the idea that it is pos-
sible within social groups that a common group of believes exist. These convergent

45
In all future cases I will use the term ‘reality’ instead of ‘world’. The only exception is the
expression ‘world of law’, since this is an existing term. There is no difference between ‘reality’
and ‘world’ in this sense; the terms can be used interchangeably.
46
For more on social reality see e.g. Searle (1996, 2010), Tuomela (2002) and Gilbert (1992).
47
Facts can be denoted by a descriptive sentence. For example, the descriptive sentence: the dog is
barking, describes a certain state of affairs in the world. If that state of affairs exists, the sentence
is true, then it is a fact. If the state of affairs does not exist (the dog is not barking but silent), the
sentence is false, and it is a non-fact. Terms in sentences (such as ‘dog’) can denote an object, I use
the term ‘object’ for anything that is an entity; that exists by itself, an object however does not need
to be material.
48
Anscombe (1958).
49
With physical properties I mean all properties that are part of a physical reality that exists inde-
pendent from human acceptance, they can usually be determined through sensory perception.
50
Tuomela (2002), pp. 122–155.
51
I will hereafter not extensively argue and explain these different theories, since that it outside the
scope of this work. For a good overview see: Epstein (2018).
1.5 Two Theoretical Stepping Stones 13

believes can then lead to the existence of certain social facts within that group. It can
also be argued that certain practices can manifest themselves within a social group.
For example, it can be argued that Hart in his work on the concept of law put a large
emphasis on these legal practices that exist within a certain social group and that put
his ultimate ‘rule of recognition’ in place.52 It can be argued then that, from a social
ontological perspective, these practices ‘ground’, or ultimately form the ‘anchors’
for the social facts.53 In such a way it is possible to metaphysically ground social
facts in brute facts, since the existence of certain (outward) practices of the group
can be described in the form of brute facts. A combination of these theories is also
possible, where one argues that it is on the basis of social acceptance and recogni-
tion, social believes, within a group that certain practices come into being.54 It is
outside the scope of this work to fully consider and justify whether social facts need
to be metaphysically grounded in brute facts, in practices, or whether the collective
social acceptance and recognition within a group is ‘enough’ for their existence. I
merely am trying to show that either way, the end result is the same: it is possible
that within a certain social group social facts come into existence. I personally feel
that in order for a certain practice to exist in a social group, there need to exist cer-
tain social believes as well, concerning that exact practice. Without a common set of
believes, there can never be a social practice. For that reason I will in this work refer
to social acceptance and recognition as the reason for the existence of social facts.
It is furthermore possible through social acceptance and recognition to attribute
a particular social status to objects.55 Such a status is usually represented by a label
which is attached to these objects. The ‘brute’ object now has an extra social layer,
as it were. For example, a piece of paper, a brute object, is regarded as a piece of
money. Similarly, Barack Obama was the President of the United States of America,
‘President of the USA’ was the label that was attributed to him. It is therefore a
social fact that ˹Barack Obama was the president of the USA˺. It is also possible that
powers, rights and duties are attached to such a status. For example, the President of
the USA has the power to nominate federal judges.56 Attribution of the status of
President therefore also involves the attribution of the power to nominate federal
judges.

52
Hart (1961) (2012), pp. 100–110.
53
For such a study that focuses on Hart’s theory see: Epstein (2015), pp. 88–100.
54
I personally feel that this is what Hart was aiming at, he seems to put an emphasis on the recogni-
tion of certain practices and rules (by the officials of a system): Hart (1961) (2012), pp. 100–110.
55
Moreover, objects themselves can be social (or institutional). Rules for example are objects and
they can be social in nature.
56
For more on labels and statuses see e.g. Searle (1996), pp. 13–23, 31–126; Searle (2010),
pp. 58–60.
14 1 Introduction and Method

Social Reality; Institutional Facts

The existence of such social facts, labels and statuses lies at the foundation of a
special kind of facts, labels and statuses which exist within a certain ‘institution’. In
this sense, an ‘institution’ should be regarded in a similar way as to how MacCormick
uses the term ‘institution of law’, as signifying legal constructs that are regulated by
rules, which instances can exist over time.57 It is after all often the case that social
facts are not only accepted and recognised, but also based on rules. The status
‘President of the USA’ is attributed on the basis of rules. There are rules that state
when and under what circumstances a person can become the president. Other rules
specify when a piece of paper counts as money. If the piece of paper satisfies the
conditions stated in these rules, it is a fact that ˹this piece of paper is money˺. Facts,
such as ˹Barack Obama was the president of the USA˺ or ˹this piece of paper is
money˺ exist as a result of the application of rules rather than merely due to accep-
tance and recognition. These kinds of facts are called ‘institutional facts’. The fact
that these rules exist mean that these facts are, so to say, instantiations of a certain
‘institution’, which is in turn governed by a certain complex set of rules, such as the
law, or money, or chess, or etiquette.
The rules on which institutional facts are based are a part of social reality. It is
possible that the rules are based directly on social acceptance and recognition. For
example, it is widely accepted and recognised that it is ‘polite’ or ‘right’ to greet
one’s acquaintances upon meeting them. The social convention that we greet
acquaintances when we meet them is based on pure acceptance and recognition.
This convention underlies the institutional fact that Betty should greet Piet when she
meets him or that it is polite if she does so.
However, it is also possible that the rule underlying an institutional fact is based
on another rule. The existence of the rule is in that case an institutional fact in
itself.58 This is usually the case in law.
For instance, the rules assigning legislative authority to the Dutch government
and parliament can be found in the Dutch Constitution. Written rules of Dutch law
are ultimately based on these rules in the Constitution. For example, the Dutch art.
289 Sr. (concerning murder) is valid since it was approved by the government and
the parliament of the Netherlands, which, on the basis of art. 81 of the Constitution,
have the power to make laws. The rules of the present Dutch Constitution are also
valid as a matter of institutional fact. The Constitution was created in accordance
with the rules formulated in (an earlier version of) the very same Constitution. The
validity (existence) of that ‘original’ Constitution as a whole was not a matter of
institutional fact. It could only exist as a source of Dutch law because it was and is
collectively accepted and recognised as such.

57
In the case of MacCormick, he explicitly means institutive, consequential and terminative rules.
MacCormick and Weinberger (1986), pp. 53–54. I will hereafter adapt his taxonomy of rules in
Sect. 3.2.
58
Not only is the existence of the rule an institutional fact, the rule itself is an institutional object.
1.5 Two Theoretical Stepping Stones 15

As this example of Dutch law illustrates, rules can either be directly or indirectly
based on social acceptance and recognition. In the latter case, the rules that are
based on other rules, which are possibly based on again other rules, are, at the end
of the chain, based on social acceptance and recognition. Institutional facts, includ-
ing facts of the type that a rule is valid, therefore ultimately derive their existence
from social acceptance and recognition.59

1.5.1.3 The World of Law

Law as a whole can be seen as a part of social reality. Its existence ultimately
depends on social acceptance and recognition. One way to look at the law is as a
system, a network of rules and facts connected by legal rules. Viewed in this way,
we can call this network ‘the world of law’. The world of law is a termed coined by
Hage; he uses it to denote an institutional legal reality:
the world of law in a broad sense consists out of everything the existence of which is based
on the application of legal rules. This includes real estate, mayors, cars, but also certain
kinds of events, acts, states of affairs and rules.60

The world of law is then a view of the law as an institutional, rule-based part of
social reality.
The operation of rules in the world of law is in a sense ‘autonomous’; legal rules
can create new institutional facts without being applied by human beings. It is even
possible that legal facts come into existence while no man knows about them (yet).
The reason that this is possible is because it is accepted and recognised that the law
is capable of functioning ‘autonomously’ in this manner.61
Assume for example, that Marleen and Nicoline are two sisters. Marleen is a
wealthy and eccentric lady who hardly ever speaks to anyone. In order to be sure
that her house will go to Nicoline when she dies, she transfers the ownership of the
house to Nicoline, but reserves a usufruct for herself. For the rest of her life Marleen
can enjoy and live in her house, but the house is formally owned by Nicoline. If
Marleen dies, the usufruct will end and Nicoline will be able to fully possess her
property. The sad day arrives when Marleen actually passes away. However, due to
the fact that she has had barely any contact with other people, her body is not dis-
covered until a week later. Since the usufruct ended at the moment Marleen died,
during that week, the usufruct did not exist anymore and Nicoline was already the
full owner of the property. This is the case even though nobody was aware of the
fact. This means that the law created new legal facts, even before there was knowl-
edge of these facts. The facts did not become known until Marleen’s body was

59
This idea of law as a system that contains rules and is ultimately based on social recognition and
acceptance stems from Hart’s work. Hart described the law as ultimately resting on the ‘rule of
recognition’, the rule that states what is the law, which is accepted by officials. Hart (1961) (2012),
pp. 100–123.
60
Hage (2011).
61
Hart (1961) (2012), pp. 79–123.
16 1 Introduction and Method

d­ iscovered. Even though it was unknown to Nicoline or anyone else in the world,
Nicoline would be liable for the real estate taxes incurred during that time and
would bear all other legal responsibilities that are attached to ownership.62
When I refer to the law I will hereafter refer to the world of law: the world of law
is rule-based, it comprises all objects, facts and rules that are rule-based themselves.
Ultimately the world of law is a part of social reality; it owes its existence to the
collective acceptance and recognition by people. As such, rules can, autonomously,
create new institutional facts.
For the creation of the theoretical concept of a juridical act, one of the founda-
tions is the view of the law as an institutional fact. I choose to study the law as an
institutional fact. If one views the law as constructive, the possible existence of any
and all new facts would have to be argued. This would leave little room for juridical
acts as tools to create new facts.63 The creation of a theoretical concept of a juridical
act makes more sense when the law is viewed as an institutional fact. Furthermore,
the law does not only play a role when it comes to settling disputes. It enables and
guides many aspects of our lives that do not involve a court of law. For example the
existence of a new company, a house that has a new owner, a licence that has been
granted, all these new facts can be established through legal rules. The fact that all
that is possible without needing a court of law to ‘construct’ for example the exis-
tence of the company is another reason why the law is best studied as institutional.
Moreover, institutional theories of law seem better equipped to explain those occur-
rences where the law acts ‘autonomously’.

1.5.2 Speech Act Theory

The second foundation of the theoretical concept is speech act theory. For the cre-
ation of the theoretical concept of a juridical act, it is of importance to realise that it
is indeed an act. To be more precise, it is not just any act but an act that is used to
communicate a certain goal to the outside world. As such, it can be argued that all
juridical acts are acts of communication, or as they are more commonly called,
‘speech acts’.64
The possibility to act through the use of communication, to use language to act,
is explored in speech act theories. These theories are concerned with the different
uses of language, for instance with the difference between describing something,

62
This example closely resembles and is inspired by the example that can be found in: Hage (2013),
pp. 277–304.
63
This might explain Van Dunné’s theory, where juridical acts are all acts that are, by a judge,
normatively interpreted as having legal consequences. This means that all acts that have legal
consequences are juridical acts, and whether they have legal consequences or not is dependent on
normative interpretation. See Van Dunné (1971).
64
This is indeed a commonly held belief, see a.o.: Nieuwenhuis (1979), pp. 23–32; Hage (2011);
Ruiter (1992, 1993); Tiersma (1986); Schane (2012); Trosborg (1991); Hart (1983), p. 276; Kurzon
(1986); Hogg (2011); Charnock (2009).
1.5 Two Theoretical Stepping Stones 17

e.g. ‘the table is white’, and performing other acts with language, e.g. ‘congratula-
tions on your birthday’. In the second example, communication is used to act, to
congratulate someone. This possibility to act with language is an essential precondi-
tion for the performance of a juridical act. All juridical acts need to be communi-
cated. After all, if the juridical act does not reach at least one other person, at any
given point in time, its effects will never be noticed by anybody and could just as
well not have existed at all.65
Communication is possible both through language utterings, which are most
readily associated with communication, and by means of other meaningful acts. For
example, through the wave of a hand we can communicate various things. Depending
on the situation, it can be a greeting (e.g. while walking along the street when one
meets an acquaintance), a bid at an auction (e.g. when in an auction room during
bidding), or a plea for help (e.g. when one is drowning).
Apart from the simple fact that communication is necessary for a juridical act, it
is important to note that the juridical act is an act, aimed at creating legal conse-
quences. Speech act theory, a branch of philosophy of language, is concerned with
the use of language as a means to act. One of the main observations that started
speech act theory is, roughly speaking, that a speech act can either be used to
describe the world or as a means to bring about a change in the world. For example,
when a couple says ‘I do’66 when they marry, they change their legal and marital
status by means of that speech act. However, when at the wedding it is said that ‘the
wedding dress is white’ this speech act describes the existing set of facts in the
world.67 As will be shown, speech act theory can give many insights into the com-
munication that takes place when a juridical act is performed.
The idea that juridical acts are speech acts is well established in legal science.
Many authors have used insights from speech act theory to gain a better understand-
ing of how the law and juridical acts operate.68 In the Netherlands, for example,
Nieuwenhuis recognised juridical acts as speech acts in his thesis on principles of
contract law.69 In addition, it has been studied how contract, and offer and ­acceptance

65
I explicitly say ‘could just as well not have existed’, since it seems possible in law that the legal
consequences can come into existence even if they do not reach anybody. If for example Ivo offers
his car for sale on his website, this would seem to be a valid offer, even if nobody ever visits his
website (it therefore seems to be the case that in law communication can be successful when
uptake is theoretically possible). However, the offer will not be very effective if it never reaches
anybody. I would like to thank Prof. Mr. I. Giesen for this example.
66
I use ‘I do’ here as an example. In reality couples rarely say ‘I do’, often they have lengthy vows
or they simply say ‘yes’. However, due to pop culture the sentence ‘I do’ has become the standard
expression when one talks about people marrying. For the simplicity of the examples I will use the
term ‘I do’ hereafter when I refer to the speech act that is used to marry.
67
What a speech act does and means is always dependent on the situation and the circumstances in
which it is performed.
68
The following examples are only the tip of the iceberg. For our present purpose it is not useful to
give a comprehensive overview of all work on speech acts in legal science.
69
Nieuwenhuis (1979), pp. 23–32.
18 1 Introduction and Method

in particular, are speech acts.70 Speech act theory has not only been used to study
juridical acts in private law. Among others, the creation of laws and the passing of
judicial verdicts have been studied from the perspective that speech acts are
involved.71 Ruiter has studied various public and administrative law juridical acts
extensively from a speech act perspective.72 On a more general level, speech act
theory can be used to highlight the difference between rules and the acts that create
rules.73 Law has its own language, the use of which can be studied with the help of
speech act theory, so that more can be learned about complex judgments and the
constitutive nature of language in law.74 The exchange works both ways: legal
examples are very common in speech act theory, due to the special place that legal
language has within our communicative discourse. Austin, in particular, seems to
have been inspired by legal examples in his famous work ‘How to do things with
words’.75
However, as far this author is aware, none of this work has aimed at developing
a theoretical concept of a juridical act, nor has it focused upon the perspective that
speech act theory offers on juridical acts and the conditions under which a juridical
act does indeed change the set of facts in the world of law.
Speech act theory, and theory of language in general, is quite vast. I will, in this
work, mostly use the work of Austin and Searle, two of the most authoritative
authors with regard to speech acts.

1.6 The Theoretical Concept of a Juridical Act

In Sect. 1.3 it was stated that in order to gain a working knowledge of the theoretical
concept of the juridical act it is possible to denote common characteristics of this
group of acts and to look at the relationship between the act and its consequences.
When the theoretical stepping stones, as introduced above, are combined with the
intuitions gained from legal practice one will come to the theoretical concept of a
juridical act that will follow hereafter in this book. As an introduction I will provide
a quick overview of what the common characteristics of the juridical act are and
present the schematic overview that is the end-result of the research conducted.

70
A.o. Tiersma (1986), Schane (2012), Trosborg (1991) and Rijgersberg and van der Kaaij (2013).
Reinach, in his work on social acts in private law, seems to anticipate speech act theory while
describing similar ideas, Reinach (1913) (1983); see Crosby for a discussion on speech act theory
and Reinach’s social acts: Crosby (1983).
71
Kurzon (1986).
72
Ruiter (1992, 1993).
73
Matczak (2013).
74
A whole journal has been dedicated to these lines of enquiry: Journal of Pragmatics 41 2009.
75
Austin (1955) (2009), a.o. pp. 5, 22, 137.
1.6 The Theoretical Concept of a Juridical Act 19

Four different characteristics of juridical acts will be defined in Chap. 2, of which

the fourth characteristic will be a ‘negative characteristic’, it concerns the absence
of a characteristic that might have been thought to be present.
The first characteristic is that every juridical act needs to be a certain type of
juridical act. A juridical act is never simply ‘a juridical act’ but always a juridical act
of a certain type. Within law, different types of juridical acts exist. Examples of
these types of acts are to contract, to legislate, to marry, to testate, to grant a licence,
and many more. For such a type of juridical act to exist there needs to be a back-
ground of legal rules that govern that type of act. This is explored in Sect. 2.2.1.
The second characteristic concerns the fact that competence is needed for the
performance of a juridical act. For all juridical acts, competence is a necessary
­condition for the performance of the act. The agent needs to be competent. Acts that
can be performed by an agent who is not competent are not juridical acts. The term
competence is used to denote various different concepts, for that reason I will clar-
ify what is meant by the term competence in this work, and distinguish it from terms
such as ‘power’ and ‘capacity’. This is explored in Sect. 2.2.2.
Thirdly, a juridical act is a constitutive speech act. Constitutive speech acts will
be defined as speech acts that have a propositional content and a world-to-word
direction of fit. Juridical acts are not aimed at describing the world, instead they
have the purpose of changing the world and of creating new legal facts. The content
of these new legal facts will be, at least partially, represented in the propositional
content of the act. This is explored in Sect. 2.2.3.
Finally, as a fourth characteristic, it will be argued that the act is not defined by
its consequences. It is possible to have performed a juridical act even though there
are (temporarily) no consequences. This is explored in Sect. 2.2.4.
Apart from these characteristics this research will delve into the connection
between the act and its consequences. If a juridical act is performed, what rules play
a role and how does this lead to new legal consequences, and what types of legal
consequences can be distilled? The end-result of that research can be shown in a
schematic overview, as depicted in Fig. 1.3.
In Fig. 1.3, a ‘master speech act’ to contract is represented that has two lower
speech acts: ‘to contractually appoint’ and to ‘contractually obligate’. Attached to
that on the basis of legal rules is an extra contractual obligation. In Fig. 1.3, I have
used letters, due to restraints because of the size of the figure. ‘A’ represents ‘X is
the manager’ and ‘B’ represents ‘Y pays X 2500 euro a month’. ‘C’ represents ‘X
can resign with a resignation period of at least one month’.
In Chap. 3 all these steps and the reasoning behind them will be discussed in
detail. In short it can be stated that it is through a counts-as rule that the speech act
simultaneously is a juridical act and, as it were, crosses over into the world of law.
If a certain speech act does not fulfil the conditions of any of the different counts-as
rules that exist for a certain type of juridical act, that speech act will not count as a
juridical act. In that case, the juridical act is non-existent. There will have been a
speech act, an event took place, but it is not regarded as a juridical act.
A juridical act can then lead to new legal consequences, it does so through a
leads-to rule. There is one leads-to rule that is the same for all juridical acts. This
20 1 Introduction and Method

Speech act

‘We hereby agree that

A&B’

Reality
World of law

Counts-as rule Primary

legal consequences

Contract
Juridical act Leads-to rule
Contractual Contractual
appointment obligation
To contract
B (legally)
A (legally) ought to be
is done

Attached-to rule

Secondary
legal consequence

Contractual obligation

C (legally) ought to
be done

Fig. 1.3 Schematic overview of a juridical act that has both primary and secondary legal
consequences

leads-to rule reads as follows: if the juridical act exists it will lead to primary legal
consequences of the type (illocutionary force of the juridical act) with the content
(propositional content of the juridical act). It is thus the meaning, defined as both
illocutionary force and propositional content, that determines the primary legal con-
sequences of the juridical act. Apart from that attention will be given to the fact that
legal consequences can, in my opinion, inherently be a ‘legal is’ or a ‘legal ought’
and, in conjunction with that, on what this ‘legal is’ or ‘legal ought’ is based.
It will also be studied how the juridical act can lead to legal consequences that
are not represented in the meaning of the act. These legal consequences are what I
will call the ‘secondary legal consequences’. As opposed to primary legal conse-
quences, secondary legal consequences are not based on the meaning of the ­juridical
Another Random Scribd Document
with Unrelated Content
intestines were found closely adherent together. Another
monomaniac thought the devil had stretched a cord across her
stomach;—her heart was adherent to its bag. Another believed that
her body was stolen by the devil;—she was in reality paralytic, and
insensible to blows or pricking.
To explain some of these illusions, Jason Pratensis very gravely
asserts, that “the devil being a slender incomprehensible spirit, can
easily insinuate and wind himself into human bodies, and, cunningly
couched in our bowels, terrify our souls with fearful dreams.”
I may add that we see, in some, a delirious transmigration of
sensation. Parkinson relates these cases. One referred his own
sensation to others, telling his nurse that his visitors were hungry,
while his own voracity plainly indicated that the hunger was in
himself. Another, in a fit of intoxication, insisted on undressing all his
family, as they were drunk, and could not do it themselves.
Now we certainly move ourselves unconsciously in our sleep as a
relief from painful positions. If, however, these uneasy sensations
are increased from stagnant blood about the heart and lungs, the
oppression is extreme, and loads the moving powers; producing a
transient agony and an intense effort. If this were unsuccessful on
the limbs and speech, the result would be often destructive.
The night-mare dreamers are usually lethargic, and their ideas
are often wild and visionary.
Polidori, the author of the “Vampire,” was a prey to night-mare;
he died with a laudanum bottle in his bed. And Coleridge might have
thus left a sad and pointed moral; blazoning his wretched suicide to
that world, which unconsciously has pored with a thrill of admiration
over those fruits of his delinquency, the romantic and unearthly
stories of Christabel and the Ancient Mariner.
The grand feature of night-mare, then, is impediment: but how
can I record all its varieties of miserable struggles; of attacks and
manglings from wild monsters: of the rolling of mountains on the
heart: or the unhallowed embraces of a witch?
The young lady who reads mythology, will fancy herself a syrinx,
and struggle to escape from the amorous clutches of Pan. If we
have been thinking of Chamouni and her giant peaks of snow, we
may be overwhelmed in our sleep by the fall of an avalanche; or we
may be dashed off a precipice, and feel ourselves falling into
interminable space without a hope of resting.
A lady whom I know, and who is a frequent subject of night-
mare, is very uniform in this dreamy occupation. She is shaken to
and fro in her bed by fiends, and the process seems to her to occupy
considerable time. And there are many who are tortured by the
feeling that they are buried alive, and attempt to cry out, and beat
against their coffin-lid in vain. Aurelian writes, that the epidemics in
Rome were premonished by incubus.
These, and thousands of a similar kind, might be cited; but a
vivid imagination, with a hint or two, will readily create them at its
pleasure.
“A battalion of French soldiers, during the toils and dangers of a
campaign, were marching on a certain point on a most oppressive
day, and at double the usual speed; their strength was eight
hundred men, all hardy, seasoned, and courageous; careless of
danger, despising the devil, and little occupied with the thoughts of
ghosts and phantasmagoria. On the night of the occurrence in
question, the battalion was forced to occupy a narrow and low
building at Tropœa, barely calculated to accommodate three
hundred persons. Nevertheless, they slept; but, at midnight, one and
all were roused by frightful screams issuing from all quarters of the
house; and to the eyes of the astonished and affrighted soldiers
appeared the vision of a huge dog, which bounded in through the
window, and rushed with extraordinary heaviness and speed over
the breasts of the spectators. The soldiers quitted the building in
terror. Next night, by the solicitations of the surgeon and chef-de-
bataillon, who accompanied them, they again resumed their previous
quarters. ‘We saw,’ says the narrator, ‘that they slept. We watched
the arrival of the hour of the preceding panic, and midnight had
scarcely struck when the veteran soldiers, for the second time,
started to their feet. Again they had heard the supernatural voices,
again the visionary hound had bestrode them to suffocation. The
chef-de-bataillon and myself heard or saw nothing of these events.’ ”
 The superstitious thought this spectre to be the devil; but the
heat and carbonic acid gas were, I believe, enough for the
excitement of the phantasm and the feeling.
There can scarcely be imagined a more terrific feeling than this
sense of extreme danger, or difficulty, this intense impediment,
without a power to avert it. The constant labour of Sisyphus, with
his rolling-down stone, and the punishment of Tantalus, would yield
in severity to the agony of night-mare, but for its transient existence.
It seems to me, that this want of balance between will and
power influences human nature so much, that life itself may be
termed one long and painful incubus. The actions we perform
seldom reach the perfection which the will desires. Hence arises that
constant dissatisfaction, which even the close approach to perfection
of some of the most accomplished professors of art and science
cannot avert.
We must confess, with Socrates, that the extent of our
knowledge is indeed but a conviction of our ignorance. The
metaphor of Sir Isaac Newton, on the insignificance of his own
scientific attainments, is well known. Sir Joshua Reynolds so highly
appreciated perfection in his art, that he was ever discontented with
his own paintings; and frequently, as I have heard, by repeated
touches, destroyed the effect of a picture, which had been in its
early stages beautiful. And Dr. Johnson, after astonishing the world
with his perfect specimen of lexicographical composition, confessed
that he “had not satisfied his own expectations.” May I add to these
the frequent discontent of the unrivalled Paganini?
Ida. The desire of the mind is, indeed, unlimited; and when this is
intense, it wishes to appropriate to itself all which it can
comprehend. But disappointment must ensue; for all wish to be the
whole, when they form but a part. Thus will ever be proved the
futility of worldly ambition,—it is never satisfied. But the desires of
religion are not a phantom, or an incubus. True devotion, which
aspires to heaven, as the hart panteth for the water-brooks, will
never fail. Its fervent hopes and devout prayers, we believe, will be
blessed by their accomplishment.
 Cast. Then the visitations of the incomparable Mab are nought
but the infliction of the night-mare? Gentle Master Evelyn, how
should I be aweary of your philosophy, but that I am half won over
to believe it true? In good faith,

“The Gordian knot of it you do unloose

Familiar as your garter.”

Ev. Then, I pray you, let me counsel you not to court such visits,
dear Castaly. There is some peril in the touch both of Mab and Mara;
for although rare and transient cases of night-mare excite no alarm,
yet its repetition, in a severe form, is not to be slighted. It
sometimes has been the forerunner of epilepsy; its immediate cause
being obstruction to the course of the blood by which the brain
especially is surcharged, and the action of the lungs and heart
impeded, as we prove by the extreme labour of breathing at the
time we awake.
I believe that there is usually a fulness of blood, also, in the
vessels of the spinal marrow; as, although nightmare may occur in
the sitting, it is far more frequent in the recumbent position. Thus
the marrow is oppressed, and there is then no force transmitted by
the nerves to put the muscles into action.
Distention of the stomach should be prevented, as the diaphragm
is thus pushed up against the lungs, and the gas is accumulated in
the cavity. All these conditions often occur in our waking moods, but
then our judgment tells us how to relieve them speedily; whereas, in
sleep, the load accumulates. All indigestible substances, therefore,
should be avoided, as nuts, cucumbers, shell-fish, &c.
Early and light suppers we advise to those whom Madame Mara
so unmercifully overlies. A mattress should be our couch, and we
should endeavour to compose ourselves on one side, having,
previous to our rest, taken gentle exercise.
 SOMNILOQUENCE.—SOMNAMBULISM.

“It is a sleepy language; and thou speak’st

Out of thy sleep.”
Tempest.

“Doct. You see, her eyes are open.

Gent. Ay, but their sense is shut.”

“Doct. A great perturbation in nature. To receive at once the benefit of sleep, and
do the effect of watching.”
Macbeth.

Ev. In the common dream, ideas float through the mind, but the
body is passive. When the power of expressing these ideas by
speech is added, it is somniloquence. When there is the conscious,
yet powerless, will to move, it is incubus. When the unconscious
power of moving in accordance with the ideas or wishes of the
dream exists, it is somnambulism.
The common dreams of sleep are not unfolded to us until the
waking recollections of the dreamer relate them; but the matter of a
dream may be half developed during its existence, by the curious
propensity to unconscious talking and walking in the sleep.
Sleep-talking is the slightest of these phenomena, and, indeed,
closely resembles the speaking reveries of some absent people, and
the raving of a maniac. The sleep is, at this time, little deeper than a
reverie.
The voice of the somniloquist is usually natural, but as again, in
the cases of mania and of delirious excitement, a common voice may
become sweetly melodious, and there will be an imparted fluency
allied to the inspiration of the improvisatore.
Indeed, in some young ladies, subject to hysteria, I have known,
at certain periods as it were, a new accomplishment—a style of
singing which was far beyond their power in waking moments. Dr.
Dewar relates a case of a girl who, when awake, discovered no
knowledge of astronomy or the sciences in any way; but when she
was asleep she would define the rotations of the seasons, using
expressions the most apt to the subject, such as “the globe is now
set agee.” It is probable that this was the memory in slumber of
some geographical lesson which she had heard, but did not
remember while her senses were active, that is, in her waking
moments. And an American lady, during a fever, commenced a
course of nocturnal prating, composing most eloquent sermons,
chiefly made up, however, of remembered texts of Scripture.
I am informed, too, that a lady of Edinburgh, during her
somnolent attacks, recited somewhat lengthy poems; and it was
curious to notice that each line commenced with the final letter of
the preceding.
These sleep-talkings are sometimes the mere lispings of an idiot;
although Astrophel, perchance, may contend that the following,
written down from the lips of a servant-maid, is a proof of special
inspiration, converting a rustic girl into an improvisatrice.

“You may go home and wash your hose,

And wipe the dew-drops from your nose,
And mock no maiden here.
For you tread down grass, and need not;
Wear your shoes, and speed not,
And clout leather’s very dear;
But I need not care, for my sweetheart
Is a cobbler.”

I have heard this trash cited as a proof of facility of composition

in slumber. You do not believe it such; like other specimens, it was a
ruse of a wanton girl to excite admiration. In the magnetic
somnambulism of Elizabeth Okey, that cunning little wench, who was
the prima buffa of the magnetic farces enacted at the North London
Hospital, would often skip about and sing snatches of equal
elegance:
 “I went into a tailor’s shop
To buy a suit of clothes;
But where the money came from,
G—— Almighty knows.”

These are indeed the very burlesque of somniloquence. And yet

Okey was an invalid, and presumed on the credulity of those who
ministered to her.
True somniloquence is often preceded by a cataleptic state; and
in girls like this, the senses are often so dull, that the firing of a
pistol close to the ear does not rouse them, until the poetic fit is
over.
Cast. Were sleep-talking more common, it would indeed be a
very dangerous propensity. If the confessor were to prate in his
sleep of the peccadilloes of the fair penitents that kneel at his
confessional; if the minister on his couch were to divulge his state
secrets or his fine political schemes; where would be the tranquillity
of domestic or national society? Yet the lips of the love-sick maiden
have not seldom whispered in sleep her bosom’s secret; and
sometimes the unconscious tongue has awfully betrayed even the
blood-stain on the hand.
Thus did the ill-mated Parisina of Byron:

“Fever’d in her sleep she seems,

And red her cheek with troubled dreams;
And mutters she, in her unrest,
A name she dare not breathe by day.”

The fate of Eugene Aram, I believe, may be imputed to such an

unfortunate propensity; and in Lady Macbeth’s “Out, damned spot!”
was confessed her participation in the murder of Duncan and the
grooms.
Somewhat like this, too, was the half-sleeping exclamation of
Jarvis Matcham, after he had committed the murder of the drummer
boy. Starting from his bed, when roused by the waiter, his first words
were: “My God! I did not kill him.”
 Ev. A dream will sometimes half wake even a child to a state of
terror, although children are with difficulty completely roused. I have
known instances in which children would sit up in bed, with their
eyes open, sobbing, and talking, and staring, in a sort of trance; nay,
they will sometimes start from bed, but still asleep, and, after a time
becoming calm, they have again composed themselves to slumber.
I have known sleep-talkers, who have not remembered one iota
of their wanderings when awake; and even the ecstatic
somnambulist, who pretends to prophecy wisdom, recollects nothing
when the ecstacy is over. It is clear also, that the mind varies in
sleep and waking, in regard to its memory; for it has been proved
that persons who often talk in their sleep, have renewed the exact
points of a subject which terminated their last sleep-talking,
although, in the waking interval, it was to them oblivion.
Somnambulism is the most perfect paradox among the
phenomena of sleep, as it exhibits actions without a consciousness
of them; indeed, so complete a suspension of sensibility, that
contact, nay, intense inflictions, do not produce that mental
consciousness which is calculated to excite alarm, or even attention.
There is a somewhat remote analogy to this, in the want of
balance between the judgment and volition of ambitious minds. In
the campaign of Russia, Napoleon’s march was a sort of
somnambulism, for he must have been madly excited to action
against his better judgment. In this he forms a curious contrast with
his royal predecessor; for in Louis XVI. we observe a mind that
might conceive great things, but which volition hesitated to
accomplish.
The points of the mystery of somnambulism were never more
forcibly illustrated, to my own mind, than in the following cases:
In 1833, a man was brought before Alderman Thorp, who had a
parcel cut from his arm, although he had strapped it tightly on to
prevent this, as he was often falling asleep, even during his walk.
Yet, even then, he usually took the parcels to their proper directions.
The crew of a revenue boat on the coast of Ireland, about two
o’clock in the morning, picked up a man swimming in the water. He
had, it appeared, left his house about twelve; and walked two miles
over a most dangerous path, and had swum about one mile. After
he was taken into the boat, he could not be persuaded that he was
not still in his warm bed at home.
In 1834, Marie Pau was admitted into the hospital at Bordeaux,
her left hand and arm covered with deep and bleeding gashes, its
tendons projecting and the bones broken. She had, in her sleep,
gone into a loft to cut wood with a hedging bill. Thinking she was
cutting the wood, she had hacked her fore-arm and hand, until she
fainted away, and fell bathed in her blood. She had felt no pain, but
merely had a sensation as if the parts were pricked with pins.
Some time ago, (I believe in the year 1832,) a journal thus
records a case analogous in its nature, although less unhappy in its
effects:
“Some fishermen at Le Conquest, near Brest, were surprised at
finding, at two o’clock in the morning, a boy about twelve years old,
up to his waist in the sea, fishing for flounders, of which he drew up
five or six. Their surprise however was increased to wonder, when,
on approaching him, they found that he was fast asleep. He was
taken home and put to bed, but was immediately afterwards
attacked with a raging fever.”
Ida. These walkers were of low degree; I presume philosophy is
not altogether exempt from the fault.
Ev. Oh no: Galen was a somnambulist; and Franklin assures us,
that in a warm bath at Southampton, he floated on his back nearly
an hour in his sleep.
Now that there is an apathy of the senses during somnambulism
is clear, for the eyelids are unclosed, and if a candle be held to the
eye of the somnambulist, the actions of the iris are seen, but there is
seldom aversion of the head to avoid the glare. Was Mrs. Siddons
aware of this, when she smelt to her bloody hand, but did not look
upon it? In sleep-walking, indeed, there is always one at least of the
five senses asleep. The actions of somnambulists often appear
almost automatic without a reason for them; somewhat resembling
instinct, as the beaver will still build his dome for shelter, even under
a roof; or as monomaniacs will do a work in three or four different
places, forgetful of their previous labour. It is evident, too, that there
is a dulness of reflection when the progress is impeded. The
somnambulist will try to move on in a straight line, overturning
things in his course: thus Mathews, in Somno, overturned the tables,
but had not the judgment to go round them. Under very great
obstruction to their progress, the somnambulists will sometimes
burst into tears.
Gall relates the case of a miller, who every night got up and
worked in his mill, asleep; and Martinet, of a saddler, who also
worked nightly in his sleep; and Dr. Pritchard, of one who had been
subject to epileptic fits, thus: “They ceased entirely until the
nineteenth year of his age, when he became a somnambulist,
working during the night at his trade as a saddler, getting out on the
roof of the house, going out to walk, and occupying himself in a
thousand various ways. Soon after this the fits of epilepsy
reappeared, occurring every five or six days, increasing in duration,
and commencing from that time only with a sensation of heat, which
from the epigastrium rapidly extended to the head, and produced
complete insensibility. He was, at various times, relieved by
bleeding; and, in the twenty-fourth year of his age, being then a
soldier, he escaped three months without a return of his epilepsy. In
the following year, he was astonished to find himself one night on
the roof of the house, wet with rain; the impression which he thence
conceived, produced, some time afterwards, an attack of epilepsy,
followed by contraction of his fingers and toes.”
In many cases, however, there is some predeterminate motive for
the walk, which excites the memory in the sleep. The somnambulist
has been thinking deeply, ere he retires to rest, and the walk occurs
early in the night; so that we might believe a mood of musing had
really prevented sleep, and itself been the cause of the phenomena.
Thus may be explained the miracle recorded by Fulgosius.
Marcus, the freedman of Pliny, dreamed that a barber, sitting on his
bed, had shaved him, and awoke well trimmed;—Marcus had
unconsciously shaved himself.
And also other cases related by Dr. Pritchard, of which I will offer
you a fragment.
 “——He is just recovering from a singular state of reverie, in
which he has passed twenty-four hours. It began in the evening,
with a rigor, which continued more or less the whole night. From
that time he remained constantly in motion, walking up and down
the room or about the house. He kept his eyes open, but was
unconscious of external impressions; sometimes he muttered to
himself, and by his gestures and the motions of his hands it
appeared that he fancied himself to be working in his usual
occupation. In this state he remained all the ensuing night and a
part of the following day. During that time, he never ate or drank
any thing in a natural manner; he sometimes caught hold of a piece
of bread, and, having bitten it hastily, threw it down, and drank in
the same way, immediately continuing his work. If he was spoken to,
he was some time without taking any notice, and then would reply
hastily, as a person does who is disturbed by a question when in a
reverie.”
Our study of these curiosities of mind teaches us how intimately
combined in their essence are all the species of illusion.
Somnambulism is a very common feature in epileptic idiots. In
confirmed insanity also, we observe in an intense degree that
fearless daring and almost preternatural power which characterise
somnambulism. A Highland woman, in a state of puerperal mania,
which was increased by a terrific dream, escaped to the gorges of
the mountain, and herded with the deer. She became so fleet of foot
that it was impossible to overtake her. One day, an awful tempest
drove her and her “velvet companions” to the valleys, when she was
secured. Providence, which “tempers the wind to the shorn lamb,”
had covered her body with hair.
The dreamer walks and talks with imaginary people,—spectral
illusion. The following is a perfect illustration of this night-fantasy. It
is a story told to Sir Walter Scott by a Lisbon trader: —
“Somnambulism and other nocturnal deceptions lend their aid to
the formation of such phantasmata as are formed in the middle state
betwixt sleeping and waking. A most respectable person, whose
active life had been spent as master and part-owner of a large
merchant vessel in the Lisbon trade, gave an account of such an
instance, which came under his observation. He was lying in the
Tagus, when he was put to great anxiety and alarm by the following
incident and its consequences:—One of his crew was murdered by a
Portuguese assassin, and a report arose that the ghost of the slain
man haunted the vessel. Sailors are generally superstitious, and
those of my friend’s vessel became unwilling to remain on board the
ship; and it was probable they might desert, rather than return to
England with the ghost for a passenger. To prevent so great a
calamity, the captain determined to examine the story to the bottom.
He soon found that, though all pretended to have seen lights and
heard noises, and so forth, the weight of the evidence lay upon the
statement of one of his own mates, an Irishman and a catholic,
which might increase his tendency to superstition; but in other
respects a veracious, honest, and sensible person, whom Captain S.
had no reason to suspect would wilfully deceive him. He affirmed to
Captain S., with the deepest obtestations, that the spectre of the
murdered man appeared to him almost nightly, took him from his
place in the vessel, and, according to his own expression, worried
his life out. He made these communications with a degree of horror,
which intimated the reality of his distress and apprehensions. The
captain, without any argument at the time, privately resolved to
watch the motions of the ghost-seer in the night, whether alone, or
with a witness, I have forgotten. As the ship-bell struck twelve, the
sleeper started up with a ghastly and disturbed countenance, and
lighting a candle proceeded to the galley, or cock-room, of the
vessel. He sat down with his eyes open, staring before him, as on
some terrible object which he beheld with horror, yet from which he
could not withhold his eyes. After a short space he arose, took up a
tin can or decanter, filled it with water, muttering to himself all the
while, mixed salt in the water, and sprinkled it about the galley.
Finally, he sighed deeply, like one relieved from a heavy burden,
and, returning to his hammock, slept soundly. In the next morning,
the haunted man told the usual precise story of his apparition, with
the additional circumstances that the ghost had led him to the
galley; but that he had fortunately, he knew not how, obtained
possession of some holy water, and succeeded in getting rid of his
unwelcome visitor. The visionary was then informed of the real
transactions of the night, with so many particulars as to satisfy him
he had been the dupe of his imagination. He acquiesced in his
commander’s reasoning, and the dream, as often happens in these
cases, returned no more after its imposture had been detected.”
The case I am about to relate occurred within my own
experience.
A butcher’s boy, about sixteen years old, apparently in perfect
health, after dosing a few minutes in his chair, suddenly started up,
and began to employ himself about his usual avocations. He had
saddled and mounted his horse, and it was with the greatest
difficulty that those around him could remove him from the saddle
and carry him within doors. While he was held in the chair by force,
he continued violently the actions of kicking, whipping, and spurring.
His observations regarding orders from his master’s customers, the
payment at the turnpike-gate, &c. were seemingly rational. The eyes
when opened were perfectly sensible to light. It appears that
flagellation even had no effect in restoring the patient to a proper
sense of his condition. The pulse in this case was 130, full and hard;
on the abstraction of thirty ounces of blood it sunk to 80, and
diaphoresis ensued. After labouring under this phrenzy for the space
of an hour, he became sensible; was astonished at what he was told
had happened, and stated that he recollected nothing subsequent to
his having fetched some water and moved from one chair to another,
which indeed he had done immediately before his delirium came on.
Cast. In the monastery of ——, this story was told to a party of
Alpine travellers, to beguile our winter’s evening.
A melancholic nobleman of Italy, Signor Augustin, walked usually
at the waning of the moon. The walk was always preceded by his
lying on his back, with eyes fixed and open. At this time the beatings
of his heart were scarcely perceptible. During this state, he noticed
none of his companions around him; but if any noise was made by
them, his steps were hurried and agitated, and if the noise was
increased, a sort of maniacal state was induced. In his sleep he
would saddle and mount his horse, he would listen at a key-hole if
he heard noises in another room, and, if he entered his billiard-
room, he would seem to be playing with the cue. On returning to his
bed, he usually slept for ten hours after his walk. Tickling would
always rouse him.
In a Gazette of Augsburg, I have read this sad story: “Dresden
was the theatre of a melancholy spectacle on the 20th ult. As early
as seven in the morning a female was seen walking on the roof of
one of the loftiest houses in the city, apparently occupied in
preparing some ornaments as a Christmas present. The house stood
as it were alone, being much higher than those adjoining it, and to
draw her from her perilous situation was impossible. Thousands of
spectators had assembled in the streets. It was discovered to be a
handsome girl, nineteen years of age, the daughter of a master
baker, possessing a small independence bequeathed to her by her
mother. She continued her terrific promenade for hours, at times
sitting on the parapet and dressing her hair. The police came to the
spot, and various means of preservation were resorted to. In a few
minutes the street was thickly strewn with straw, and beds were
called for from the house, but the heartless father, influenced by the
girl’s stepmother, refused them. Nets were suspended from the
balcony of the first floor, and the neighbours fastened sheets to their
windows. All this time the poor girl was walking in perfect
unconsciousness, sometimes gazing toward the moon, and at others
singing or talking to herself. Some persons succeeded in getting on
the roof, but dared not approach her for fear of the consequences if
they awoke her. Towards eleven o’clock she approached the very
verge of the parapet, leaned forwards, and gazed upon the
multitude beneath. Every one felt that the moment of the
catastrophe had arrived. She rose up, however, and returned calmly
to the window by which she had got out. When she saw there were
lights in the room she uttered a piercing shriek, which was reechoed
by thousands below, and fell dead into the street.”
Such would have been the result, according to poetical justice, in
the beautiful romance of “La Sonnambula.” Had Amina been
awakened while she was descending, she would probably have
toppled down headlong!
 Ev. Custom would render these wakings less formidable perhaps.
There was a family alluded to by Dr. Willis, in which the father and
many sons jostled each other nightly in their sleep-walk. This was
probably but a cheerful recognition and to sleep again.
In Fraser’s Magazine is recorded a very curious story of this sort.
If I remember right, an individual had the mortification of
discovering every morning when he awoke, that the shirt in which he
had slept was gone. Some trick was supposed to have been played
upon him by an inmate of the house; and, thinking that the practical
joke would soon be abandoned, he went on day after day, till his
stock of linen was completely exhausted. The individuals of the
family were now anxiously examined, but no tidings of the stray
linen could be obtained. It was at last suspected that some
depredator had entered the house and unswathed his sleeping
victim, and a strict watch was made on the following night. At a
suitable hour the somnambulist was seen to quit his bed, to pass
through a skylight window to the roof of the house, to enter by
another window a garret that was always locked, and to return
shirtless to his lair. The garret was examined, and the thousand and
one shirts were found carefully wrapped up and deposited in a
pyramid.
Something like this is the story of the spectre of Tappington, in
the Ingoldsby legends.
The actions, therefore, unlike the ideas of a dream, are often
neither heterogeneous nor inconsistent, and it is astonishing to
observe the exactness with which the work is executed.
Dr. Pritchard tells the case of a farmer who arose, saddled his
horse, and rode to market in his sleep: the Archbishop of Bordeaux
the case of a student, who composed both theological essays and
music thus unconsciously.
Now if the dreamer be awakened, he will relate the
circumstances of his dream clearly; but the somnambulist, if roused,
will generally express himself unconscious of what he intended, or of
what he had done. It is, by the bye, often dangerous, on another
account, to wake the sleep-walker; indeed, we have recorded the
case of a young lady who was walking in a garden in her sleep; she
was awoke, and almost instantly died.
But in some future somnambulism the same actions will be again
performed unheeded. And if there be memory of the sleep-walk, the
somnambulist, I believe, always relates his actions as the mere ideas
of a dream, and is long a sceptic of the fact, even if there are visible
signs of his exertions.
Cast. I can illustrate this question from the recollection and
knowledge of an ancestor of my own. Early on a morning, an
immense number of foot-prints were observed by the men about a
gate (on a farm in Sussex), which were not there overnight. On their
return the servant girl was relating her dream; that she was told the
cows had got into a wrong field, and that she had gone out, opened
the gate, and driven them back. And I remember reading that a
young gentleman of Brenstein was seen to rise, get out of his
window on the roof, and take a brood of young magpies from their
nest, and wrap them in his cloak. He then returned quietly to his
bed, and in the morning related his dream, to his two brothers. They
had slept with him, and had witnessed this feat, of which he would
not be persuaded until they showed him the birds in his cloak.
I interrupt you, Evelyn.
Ev. It is evident, as in dreams, and in rare cases of disease, that
the mind of the somnambulist is often a contrast to its waking
faculty. The memory will leap over intervals. Dr. Dyce records an
illustration of this. A girl, in a state of somnambulism, was taken to
church, and wept at the subject of the sermon. She never adverted
to this impression when she awoke; nor could she be brought to
recollect it until, in her next sleeping paroxysm, she spoke of it
distinctly.
In delirium, also, we see these intervals of thought. The patient
will commence a subject in the delirious state; when this has
subsided, the subject is dropped. In the next attack of delirium it will
again be started, ay, and at the very point, even the word itself, at
which it was broken off.
We read, in an American journal, that a man, previous to an
attack of mania which lasted several years, had placed his work tools
in the hollow of a tree. To them no allusion was made during the
period of his disorder. When, however, this passed off, he directed
his son to fetch them, believing that he left them only yesterday.
In the same book, too, we learn of that lady who became
maniacal as she was engaged in needle-work. For seven years she
thought not of this; but directly she recovered, she asked for her
needle-work and canvass. The same may occur in intoxication also,
which is but another form of delirium. In Mr. Combe’s work we are
told of a drunken man who left a parcel at a wrong house. When
sober, he recollected nothing of the circumstance; but when again
intoxicated, he soon remembered his error, and reclaimed the parcel.
Astr. These cases form high contrasts with Hamlet’s proof of
insanity:

——“Bring me to the test,

And I the matter will reword, which madness
Wou’d gambol from.”

Ev. Yet if you analyze their nature you will find them even proofs
of derangement; for you thus see that the faculty of memory is
changed according to the state of mind. In the following case, by Dr.
Abercrombie, we shall find the same variation in impression and
taste. A girl, in her early youth, expressed her abhorrence of tunes
played on the violin, which she termed a discordant fiddle. She was
after this introduced into more refined society, and became a
somnambulist. During her paroxysm she imitated the beautiful airs
which she said she had formerly heard on this same violin.
Lieutenant C—— was once my patient, and died a maniac. The
insanity arose from thwarted ambition, and was confirmed by his
notion that he had seen his death-fetch. For some time he walked
and talked in his sleep; subsequently he would walk for an hour
round the table unconsciously. In him, too, was this change of
feeling. He once talked little, and cared less for his child; but now he
would caress it fondly, and expressed the deepest anxiety for it. It
was difficult to decide, at times, whether this gentleman was awake
or not; indeed, these states of mania, which have been termed
“melancholia errabunda” by Bellini and Montalti, are closely allied to
somnambulism, for the walker is absorbed in deep thought, and
totally unconscious of his actions. And the analogy appears to have
been recognised by the law. It is well known that the brother of Lord
Colepeper, who was a great dreamer and somnambulist, shot a
guardsman and his horse. He was found guilty; but he was pardoned
on the ground of his complete unconsciousness in his
somnambulism.
We do not wonder more to see the perfection with which these
unconscious labours of the somnambulist are performed, than at the
ease and power which is evinced, and the very slight fatigue which
ensues; although the occupation might have been most laborious.
As in chorea the most delicate girls will dance incessantly for
twenty-four hours, resting merely for one sole hour; and yet they
will sit down perfectly cool and free from fatigue.
Ida. Is it not wonderful that the somnambulist will incur great
dangers with complete sang-froid? They will walk over

——“Torrents roaring loud,

On the unsteadfast footing of a spear;”

or scale the gigantic precipice, the mere contemplation of which

would fright their mind from its propriety, when awake. I remember
to have read of a French Jew, who walked by chance across a
dangerous pass over a brook, in the dark, without the slightest fear
or harm. The next day, perceiving what danger he had incurred, he
fell down dead.
Ev. It is equally curious that a concentration of nervous energy,
which is here the result of unconsciousness, should also be produced
by fear in some cases, which, in others, paralyses; but this is indeed
a slight degree of heroism, or energy of despair. Thus we leap far
higher, and run much faster, when danger threatens, than we could
believe.
These are all very apt illustrations of somnambulism. I will check
myself in quotations of more, as the phenomena may closely
resemble each other.
 But what is its philosophy, and how can I venture on its
explanation, which involves the most intricate pathology of the
nervous system? unless, with the self-complacency of quaint old
Burton, I cut the Gordian knot by this affirmation,—“There is nothing
offends but a concourse of bad humours, which trouble the
phantasy. These vapours move the phantasy, the phantasy the
appetite, which, moving the animal spirits, causeth the body to walk
up and down, as if it were awake.”
Thus much I may expound to you, if I am again allowed to run
up our scientific scale. The philosophy of the dream and of incubus
refers to the activity of the brain with a passive body; for
somnambulism, we require an active body, with an unconscious
brain.
Now there are four sources of nervous influence:—the brain and
cerebellum, within the skull; the marrow in the spinal canal; and the
nervous bundles in the large cavities, termed ganglia.
It is on the independent or unconscious function of the marrow,
chiefly, that those mysterious actions, which do not seem to be
willed by a conscious mind, depend.
In the day-dream, a thought or form shall present itself, even at
a time when the mind is employed on subjects of a contrasted
nature. These thoughts, or forms, are usually fraught with a high
degree of pleasure or of pain, or refer to events of vital importance,
to the dreamer;—such are the objects of the lover’s idolatry, the
anticipation of misfortune, or subjects of prospective felicity. Under
this excitement, the influence of external objects is often for a time
lost; the retina may be struck by a ray, or the membrana tympani by
a vibration, but the mind shall fail in its perception,—no internal
impression being made. This cannot arise from a point of the retina,
or the expansion of the auditory nerve being pre-occupied, as some
have supposed. The idea of material impression must fail in
explanation; for, on the instant that the mind is awakened, the
external impression is again perceived. The external sense, in this
case, is not in fault; nor is its direct influence on the sensorium
suspended; for we find that a person will continue to read in this
state, as it were mechanically; but the attention is diverted by deep
thought, so that the reader, at the end of his task, may have no
remembrance of what he has been reading.
Let me tell of a curious little episode of Dr. Darwin’s, which will
aid me in my illustration. A young lady was playing on the piano a
very elaborate piece of music. It was correctly and scientifically
performed, although she was agitated during her task; and when it
was over, the lady burst into tears. She had been watching all the
time a favourite canary in the fluttering of death; and with this
catastrophe her mind was almost wholly occupied, but her fingers
did not err in their complicated and delicate motions, which they
undoubtedly would have done, if the will or mind alone had directed
them.
In sanity of mind, and in mania, the most philosophical
distinction is based on the health or disease of memory. The ecstacy
of madness may not seem perhaps more irrational than an ecstatic
vision, but the maniac will not re-word the matter; whereas the
mere visionary will repeat the action of the trance as a dream.
Astr. But there is a sort of somnambulism the reverse of this. In
the retreat to Corunna, many of the soldiers, although exhausted by
a long march, and having actually fallen asleep, continued to move
forwards, leaving their companions behind, who halted and laid
down to repose.
Ev. This is the continued association of that excitement which has
produced muscular motion. The mind was exhausted and sleepy, the
brain was inert; but we believe that the spinal marrow does, of itself,
effect motion, while the will and consciousness sleep; and we may
also stand and sleep. These soldiers did not walk in their sleep, but
slept in their walk.
Astr. I am informed, too, that Richard Turpin, in allusion to his
famous flight to York, asserted that Black Bess appeared to gallop
unconsciously.
Ev. It is true; and when we reflect on this gigantic feat, we may
suppose that the mare gallopped the farther, because her
consciousness of fatigue was not awake, and her muscular energy
was thus concentrated.
 Paralyzed muscles will often quiver when the sound limb is quiet;
the brain’s influence being, in this case too, inert, sensation is
diminished; but involuntary motion continues from a habit in the
muscle, or the excitement of unexhausted irritability, as in chorea,
spasm, &c. And in some cases of post mortem galvanism, Dr.
Dunbar, of Virginia, passed the galvanic aura along the ulnar nerve
of an executed negro, and the fingers instantly quivered, and
assumed the attitude and action of one playing on a flute or the
strings of a violin.
Astr. It is possible, then, to move without our willing to do so, or
being conscious of our act.
Ev. There are believed to be, indeed it is almost a demonstration,
—four sets of nerves, traced along the spinal marrow. Two to the
brain, of sensation and volition, by which the mind feels what the
body touches, and transmits its will to the muscles; two others to
the marrow, by which it also is stimulated by outward touch, and by
which it excites the muscles to motion.
Now when the brain’s influence is kept from muscle, that muscle
will still possess irritability, derived from the spinal marrow; nay, that
irritability will be greater, because it has not been expended by the
acts of that volition, which resides solely in the brain, and which is
now cut off. Thus the excito-motory function, and the influence of
volition, are in these cases antagonists. And this principle of the
incident and reflex spinal nerve is an explanation of the curious
dilemma, regarding the suspension of the will in sleep and dream, to
which Dr. Stewart alludes.—“Not a suspension of volition, but only of
its influence over those organs, which it moves when we are awake.”
Decide for yourselves between the physical and metaphysical
theories.
Yet, do you not see that all this does not essentially require the
direction of mind? If you tickle the palm of a sleeping child, it will
close its hand upon your finger; if you awake it, and engage its
attention, it will often leave its hold. This is a fact proved by the
anencephalous or brainless children. Even the puppy, deprived of its
brain, and also the mammary fœtuses of the kangaroo and
opossum, fix eagerly on the nipple when it touches their lips. There
is a beautiful mechanism in the foot of the roosting birds, adapted to
this physiological law. The tendon of the claws is tightened
immediately they are touched, by which action they contrive to
grasp the bough or perch even when asleep. In cases of paralysis
even, the foot will sometimes be instantly drawn up, although it
does not possess the least sensation; we may assert, then, that
irritability is in an inverse ratio to sensibility.
The polype, in which we trace no brain or nerve, exists and
moves by its irritability, and without sensation or consciousness. We
know also that the vis insita, or vis nervosa of a muscle, that is, its
irritability, exists even after the animal life has ceased. The turtle will
live and move long after its brain has been removed. The heart itself,
an involuntary muscle, is stimulated also to action without sensation.
The heart of the assassin, Bellingham, beat long after he was cut
from the gallows.
If I have made these things clear, I am now prepared to explain,
with some anticipation, those two curious contrasts, somnambulism
and incubus. If the spinal or motive nerves be asleep, and the
cerebral or intellectual, or volition nerves, awake, we shall have
night-mare; if, on the contrary, the motive nerves are in excess,
beyond the sensiferous or volition nerves, we have sleep-walking.
Astr. I believe the philosophy of Leibnitz affirms two perceptions;
one with, and another without, consciousness. I do not recollect if
he distinguishes the seat of these perceptions; but, if the brain be
that which perceives, I presume consciousness will follow that
perception sometimes in so slight a degree as not to excite
judgment or reflection. Am I correct?
Ev. You have adopted the common error of metaphysicians. If, in
the abstraction of waking moments, some persons talk to
themselves, as it were unconsciously, so, from the reflex influence,
may volition and motion occur, with as little self-feeling. That the
immediate impression, however, and a necessity of action, may
combine, is illustrated by Dr. Beattie’s case of the officer who could
be thus excited in his sleep. By a whisper in his ear, he was induced
to go through the whole ceremony of a duel, and did not completely
wake until the report of his pistol roused him. This gentleman was
also told that he had fallen overboard, and he began to imitate the
motions of swimming; then that a shark was following him, when he
would dive off his couch upon the floor; and when he was told that
the battle was raging around him, he proved himself an arrant
coward by running away.
Somnambulism may be induced by congestion or irritation of that
point where the incident nerve blends with the grey matter of the
spinal marrow, producing internal irritation, as the tickling of the foot
does through the cutaneous nerves of a senseless limb.
Cast. We are thankless creatures, dear Evelyn, but all this
reiteration bewilders me, does it not you, Ida? Yet, in my simplicity, I
can but think it unphilosophical entirely to disregard the will as the
spring of our actions.
Ev. If I must EXPLAIN, fair lady, I cannot avoid prolixity. But to your
question I will answer, no; for somnambulism may be excited by the
memory of an intention. In the experiment made by the committee
of the physical society of Lausanne, on the Sieur Devaud, of Vevay, it
was proved that on the evening before the fit of somnambulism, his
head was heavy, and he had a sense of oppression on his eye-lids.
If, at this time, the mind was impressed by some legend, or story, or
incident, the actions of the sleep-walk were perfectly coincident with
such a subject. If a romantic tale of banditti were related, his alarm
would be apparent in his subsequent sleep. In this somnambulist
was beautifully illustrated the effect of permanent impression on the
brain, rendering, for a time, the sense of vision useless; for having
once perused his paper, it was so imprinted on his mind, that the
exact spot for each letter was exactly fixed on by the finger. And we
have heard of one more interesting case, in which the somnambule,
remembering that he had made errors in his writing, traced, on a
blank paper substituted for that written on, the corrections, in the
very places corresponding to the erroneous writing. And that here
was memory was proved in this, that during the time his eyes were
shut, the pen was dropped on the very spot where the inkstand
stood; but this being removed, no ink was obtained, and the writing
was blank.
 Now we believe that there are certain vessels which contribute to
nervous energy, perhaps by secreting a nervous fluid in the brain, or
by concentrating electricity, which Dr. Faraday believes may
constitute the animal portion of the nervous system. This influence
may be profusely accumulated in a waking state; the resolution to
act has been formed; or, there may be a rapid production in sleep of
this energy. Then, when sleep occurs, this impression becomes
uncontrolled. The third form of insanity of Spurzheim, irresistibility,
exists, and the night-walk takes place. And indeed it may form an
interesting analogy to that satiety of the voluptuary, “Childe Harold,”

“Who e’en for change of scene wou’d seek the shades below,”

and to one unhallowed story related in “Salmonia.”

From this excess there is the stimulus of pain to move; one of
the most powerful motives of human action. Cardan, if we may
believe in his “Opera et Vita,” was at least a monomaniac; and he
“was wont instinctively, as it were, to relieve this tendency of his
mind by the excitement of bodily pain.” I may assure you that I
have, during my professional studies, often witnessed (and indeed
have sometimes suggested) a remedy on this knowledge: you may
be aware, that a severe and painful disorder will mitigate, if not
entirely dissipate, that apathetic misery which springs from a vacant
or unoccupied mind.
In contrasting childhood and age, we witness these curiosities in
the restless activity of youth and early manhood, for at these periods
we are very constant somnambulists; not so in the passive state of
old age, in which sleep-walking is very rare. Something of this we
see also in the growing pains and fidgets of girls and those whose
duties are sedentary. Exercise is the relief for all this.
Now when the sleep-walk has exhausted this excess of irritability
or electricity (if it be so), the dreamer returns to bed and sleep. A
hint is here thrown out to us, that if powerful exertion be employed
previous to sleep, the night-walk might not ensue. Lethargy often
terminates in somnambulism.
 If I may for another moment still prose over the intricate, but
deeply interesting question of the pathology of somnambulism, I will
observe, that we often find it one symptom of madness or idiocy,
and we know that somnambulism not seldom terminates in epilepsy.
In the brains of epileptic idiots, who are very determined
somnambulists, we discover changes the most various; effusion,
congestion, ossification of membranes, ramollissement,
indurcissement, bony spiculæ, or points pressing the brain,
tubercles, cysts. In some, the skull assumes the density of ivory. Yet
in those persons who have been known to be sleep-walkers, the
inspection is seldom satisfactory. Plethora of the head has often,
however, preceded the sleep-walk. Signor Pozzi, physician to
Benedict XIV., if he submitted not to depletion each second month,
became a somnambulist; and we have known that in chorea,
previous to the dance, and in some cases of somnambulism also,
pain has been felt from the occiput along the course of the spinal
marrow. This is from immediate excitement; but dyspepsia and other
abdominal derangements may so influence the ganglia and nerves of
organic life, and through them the brain and cord, as to excite sleep-
walking by remote sympathy.
That injuries of the nervous matter about the nape of the neck
are of the highest importance in our studies of these eccentric
actions, is certain. The experiments of Flourens show that the
progressive or forward motion of animals, is influenced by varied
states of the cerebellum. When Majendie cut through the corpora
striata, the animal darted forward; when the pons Varolii was cut,
the animal rolled over sixty times in a minute.
When a soldier is struck by a ball about the cervical vertebræ, he
often springs from the ground and drops dead.
It is our duty, then, not to slight the condition of the
somnambulist. If simple irritation be its exciting cause, much benefit
may be derived from counter-action on the surface, and other
remedial means. Even if there be diseased structure, some palliation
may be afforded. As preventives of the fit, we may inculcate an
abstinence from late meals, exercise in the evening previous to
retirement to rest, a high pillow, &c.
 If the propensity continue in spite of our efforts, it will be right to
have the windows fastened or locked, and the door of the chamber
bolted without; or to confine the ankle or wrist to the bed-post by a
long fillet, which may by its detention awake the sleeper on starting
from the bed.
 IMITATIVE MONOMANIA.

“Men, wives, and children, stare, cry out, and run,

As it were doomsday.”
Julius Cæsar.

There are other very curious analogies of somnambulism, which

are marked by a power of action that appears preternatural. And
here again we witness the irresistibility of motion, which seems to
subvert the laws of gravitation and the principles of mechanics. The
involuntary twitchings and contortions of St. Vitus’s dance present
the slighter form of these eccentric actions, which, in the intense
degree, become like the fury of a raving maniac.
In young girls there often is a proneness to be excited by slight
causes,—to be startled by mere trifles.
Savarry tells us of a man who, at two o’clock each day, was
irresistibly impelled to rap at doors and make very odd noises, and
felt intense pleasure in doing this. If this had occurred in the night, it
would have been termed somnambulism.
Gall also relates of a young man at Berlin, who, after rolling
about in his bed for some time, and jumping out and in repeatedly in
his sleep, at last started up awake, astonished at the crowd around
his bed. And Dr. Darwin writes of a boy, nine years old, who went
through a course of gymnastics, with an occasional song between
the acts. At length he seemed bursting, and soon sank down in a
stupor.
Astr. I have read, (I think in Mezeray,) of an epidemic mania of
this sort, in which the creatures tore off their clothes, and ran naked
through the streets and churches, until they fell breathless on the
ground. Some of them swelled even to bursting, unless they were
bound down by cords. The disease was referred to the agency of
demons, and treated by exorcisms; they even tore their flesh to free
themselves from their possessing devils. I have seen also a confident
story of some nuns, who jumped so high during an hysteric ecstacy,
that they were at length seen to fly; in imitation, perhaps, of the
Corybantes, the priests of Cybele, who, in the celebration of their
mysteries, leaped and raved, like madmen in the midst of their
shrieks and howlings.
Ev. All these eccentricities amount to complete monomania for
the time they last, and they are marked often by a very violent
imitative propensity; like the delirium which came upon the
Abderites, on witnessing the performance of the “Andromeda” of
Euripides, by Archelaüs. Of such nature was the “dancing mania” of
the middle ages; the tarantula of Apulia, in which melancholy was
succeeded by madness; the feats of the Jumpers of Cornwall, and
the Convulsionnaires of the Parisian miracles.
Yet with all this apparent violence, there might be a power of
control by management. On some sudden and extreme mental
influence, there was in the Maison de la Charité, at Haerlem, an
infectious convulsion of this nature, so that the troop of little
scholars, girls and boys, were a mere legion of dancing maniacs; and
nothing appeared to relieve them, until a ruse of the physician
Boërhave put to flight the illusion. With a solemn voice he
pronounced, in the hearing of the little creatures, his decision that
each of them should be burned to the bone of the arm with a red
hot iron. From that moment the mania subsided.
Dr. Hecker, in his account of the Dance of the middle ages,
notices two forms of this national monomania:—“Tarantulism,” and
the “Danse de Saint Guy.”
The first was marked by all sorts of illusions, demonomania,
obscene dancing, groaning, and falling down senseless.
The persons who believed themselves bitten by the tarantula
became sad and stupid. The flute or guitar alone could give them
succour. At the sound of its music they awoke, as if by enchantment;
their eyes opened, their movements, which at first slowly followed
the music, gradually became animated, until they merged into an
impassioned dance. To interrupt the music was disastrous:—the
patients relapsed into their stupidity, until they became exhausted by
fatigue. During the attacks, several singular idiosyncracies were
manifested, contrary to what occurred in Germany. Scarlet was a
favourite colour, though some preferred green or yellow. A no less
remarkable phenomenon was their ardent longing for the sea; they
implored to be carried to its shores, or to be surrounded by marine
pictures; some even threw themselves into the waves. But the
dominant passion was for music, though they varied in their
particular tastes. Some sought the braying sound of the trumpet,
others the softer harmony of stringed instruments.
There was once a woman of Piedmont who was charmed by the
“capriccio,” played by the leader of an orchestra, into an ecstatic
dance. In her, the sensations, as she expressed them, were so
“strangely mingled,” as powerfully to illustrate the fine line of
distinction between pleasure and pain. She gradually became
weaker, and the memory of the music was so intense, that, while
she was irresistibly impelled to this maniacal dance, her expressions
were those of acute pain, and her cries were constantly of those
“horrid sounds.” In six months, this unhappy creature died
exhausted.
The Tigretier, of Abyssinia, is believed in Africa to be the effect of
demoniac influence. Indeed there is in this strange state a complete
metamorphosis of features, and voice, and manner. In the hearts,
even of the women, the affections of nature and of attachment seem
to be annihilated, and they seem overwhelmed by some oppressive
weight, which is dissipated only by almost preternatural exertion,
excited by the charm of music; in which wild dance the female is
dressed in ornaments of silver, like the chiefs of battle. This maniac
movement is often, I believe, kept up from early morning until
sunset, ere the accumulation of energy is exhausted; and even then
the woman will start off suddenly and outrun the fleetest hunter,
until she drops as if dead. But it seems the climax of the cure is not
complete, until she drops all her ornaments, and a matchlock is fired
over her, when she owns her name and family, both having been
previously denied. She is taken to the church and sprinkled with holy
water, and then the spell is broken.
There is another strange monomania, an incitement to suicide,
evinced in that loathsome disease of the Lombard and Venetian
plains, Pellagra. The prevailing fashion is drowning; so that Strambi
has termed this monomania, water-madness.
Others are driven on by still more horrible fancies. Thus Grenier
wrapped himself in a wolf-skin, and murdered young maids that he
might devour them. And, among ourselves, the desire to change the
infant into a cherub, has led the wild fanatic to the murder of the
innocents!
Astr. This, I suppose, is Lycanthropy, or wolf-madness, on which
old Burton so funnily expatiates; and to which the author of the old
play of “Lingua” also points, alluding to the

“Thousand vain imaginations,

Making some think their heads as big as horses,
Some that they’re dead, some that they’re turned to wolves.”

In the woods of Limousin, in France, the belief in the power of

changing from men to wolves is still prevalent. The Loup-garoux, or
Wehr-wolf, was thought to have been in league with Satan.
In my wanderings through Poictou, these monsters seemed to
me to confine their unholy powers to midnight prowling, and the
wolf-howl. Yet Marie, in the “Lai du Bisclavaret,” endows them with
the cannibalism of the goul and the vampire:

“So Garwal roams in savage pride,

And hunts for blood, and feeds on men;
Spreads dire destruction, far and wide,
And makes the forests broad his den.”

Ev. The extraordinary effects of the instinct of imitation in

spreading these epidemics, is but an example on the grand scale of
what we see daily instances of in yawning, hiccoughing, coughing,
and other similar acts, and in the propagation of hysteria and
epilepsy. Some persons, again, possess an irresistible tendency to
imitate others in mere trifling things. Tissot relates a case of a
female, who never could avoid doing every thing she saw any one
else do. She was obliged to walk blindfolded in the streets; and, if
you tied her hands, she experienced intolerable anguish until they
were loosened. There was another girl, that was seen by Dr. Horn, at
Salzburg, who sat cross-legged, like a hog. She had been brought up
in a sty.
Even during the Commonwealth, the religious fanaticism of the
Quakers carried the proselytes to such a pitch, that the preachers
were thrown into excessive convulsions, and seemed possessed of
demons. The churches were broken into, and the ministers insulted
and attacked in the pulpits. Chains, and locks, and the pillory, which
were inflicted on these mad people, failed, as it might be expected,
in restoring their senses, although they bore them with the most
astonishing fortitude. In their worshipping, the same eccentricities
were seen: after a deep and long silence, a number of the devotees
rose at once, and declaimed. The presumptuous imitation of the
Saviour was a favourite illusion; and the forty-days’ fast sometimes
terminated in death. Naylor, convinced of his divine identity, rode in
procession on a mule, while his deluded proselytes spread their
garments, and sang Hosannas to him. Nay, the purity of the female
mind was so grossly perverted, that a Quakeress walked naked into
a church, before Cromwell, as a sign to the people!
There was a letter in an “Aberdeen Herald,” dated Invergordon,
Sept. 9, 1840, from which I quote this story:
“I had the curiosity to go to the church of Roskeen, last night, to
observe the workings of a revival. I was prepared for something
extraordinary, but certainly not for what I saw. The sobs, groans,
loud weeping, fainting, shrieking, mingled in the most wild and
unearthly discordance with the harsh cracked voice of the
clergyman, who could only at intervals be heard above the general
weeping and wailing. I was struck by the cries being all from young
voices; and on examining a little more closely, I found that the
performers were almost wholly children—girls, varying from five to
fourteen years of age; a few young women, perhaps a dozen, but
not a single man or lad. I stood for nearly half an hour by three girls,
the eldest about twelve years of age, who were in the most utter
distress, each vying with the other in despairing cries. Their mother
came to them, but made no exertion to check their bursts of—I don’t
know what to call it. In the church-yard there were lots of children in
various stages of fainting. One poor girl seemed quite dead, and I
insisted on one of the old crones, who was piously looking on, to go
for some water, or to attempt something to give her relief, but was
told, ‘It was no’ a case for water; it was the Lord, and he would do
as he liked with her. She was seeing something we didna see, and
hearing something we didna hear.’ She was lying on the ground,
supported by her father. Indeed the poor ignorant parents have been
worked upon until they believe they are highly honoured by the
Lord, by having such signs of the Spirit manifested in their families.
The service, if it may be called so, was in Gaelic.”
In the reign of the second George, Count Zinzendorf came from
Germany and established the principles of the Hernhutters, or
Moravians. These were debased by ceremonies, which they
misnamed worship, of the most licentious character.
Like Mahomet, Zinzendorf proclaimed himself a prophet and a
king, and in his presumption of an immediate appeal to, and answer
from, the Saviour, in all matters of doubt, made a host of proselytes.
Ida. In our own day, another delirious profanation of the holy
name of the Saviour has been exhibited, in the imitative monomania
of Sir William Courtenay (as he was called), in Kent. In May, 1838,
this wild enthusiast (whose beauty of feature and expression closely
resembled the paintings of Christ by Guido and Carlo Dolce, and
who, to heighten this resemblance, wore his hair and beard in a
peculiar form, and clothed himself in a robe) gained by his art
numerous disciples in Kent, who implicitly believed his divine nature
and mission. His career was, however, soon closed in a very awful
and bloody tragedy—the death of himself, of many of his followers,
and of the military who were called out to secure him. His disciples,
to the last, not only believed in his divine nature, but even after his
interment were watching in implicit belief of his approaching
resurrection!
The mania of the “unknown tongues” has almost equalled this
delusion. If we presume to analyse, on the principles of philosophy
or reason, those religious eccentricities, which seem, even in the
mind of the fanatic, to spring from sincerity or conviction, they must
yet, I suppose, be termed maniacal, and this without the slightest
profanation of the Divine will. Evil, doubtless, is permitted for a wise
purpose, and while we deplore its immediate effects, we must not
hope to reveal its origin or its end.
At Brighton, some time ago, while at one of the Millennium
chapels, the wife of Caird, who was then preaching, uttered a dismal
howling of this unknown language, which paralysed some, and
threw into convulsions many others of the congregation. A young
French lady among them instantly was struck with maniacal
despondency, and, after some infliction of self-torture, became
delirious and died in a hospital.
We learn from Plutarch, that in Milesium there was once a
prevalent fashion among the young girls to hang themselves; while
the same mania once spread among the demoiselles of Lyons, to
drown themselves in the Rhone. The Convulsionists of Paris, in 1724,
not only inflicted self-torture, but in their wild delight solicited the
bystanders to stone them.
The commission of a great or extraordinary crime to this day
produces, not unfrequently, a kind of mania of imitation in the
district in which it happened. I have known incidents, falsely called
religious, to occasion similar events; and what is remarkable, the
scene or place of the first event seemed to favour its repetition, by
other persons approaching it. Thus a supposed miracle having been
performed before the gate of the convent of St. Genevieve, such a
number of similar occurrences happened on the same spot in a few
days, that the police was compelled to post a peremptory notice on
the gate, prohibiting any individual from working miracles on the
place in question. When the locality was thus shut up, the
thaumaturgia ceased. It is not long since we witnessed in Paris two
events of a similar character. About four years ago, at the Hotel des
Invalides, a veteran hung himself on the threshold of one of the
doors of a corridor. No suicide had occurred in the establishment for
two years previously, but in the succeeding fortnight five invalids
hung themselves on the same cross-bar, and the governor was
obliged to shut up the passage. During the last days of the empire,
again, an individual ascended the column in the Place Vendome, and
threw himself down and was dashed to pieces. The event excited a
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