The lawyer and the historical investigation. Litigation over spoliated property

Published in L’Avocat.e, Archives de philosophie du droit (tome 64) in 2023.

Litigation concerning property spoliated during the Second World War relates to the process by which Jewish collections in France were confiscated under the Occupation, both by the Nazis and by the Vichy regime. On the Nazi side, the ERR (Einsatzstab Reichsleiters Rosenberg für die Besetzten Gebiete—Rosenberg’s Reichsleiter Task Force for the Occupied Territories) operated under the direct authority of Alfred Rosenberg, a leading Nazi ideologue, who, under pressure from the Reichsmarschall Hermann Goering, a voracious collector, oversaw this operation. Marshal Pétain's government entrusted the Commissariat Général aux Questions Juives (CGQJ) with organising the elimination of all Jewish influence from the French economy, through the appointment of provisional administrators responsible for the "Aryanisation" of Jewish property.

The unprecedented spoliation perpetrated by the Nazis throughout the European territories they occupied prompted a reaction of seventeen Allied countries whose governments, meeting in London on 5 January 1943, issued a solemn declaration in which they undertook to annul unlawful acts of disposession^[1].

From the Liberation onwards, the principles set out in that declaration were implemented through a series of legislative instruments,^[2] and the musée du Jeu de Paume  requisitioned in the autumn of 1940 by the ERR to serve as a “gare de triage” (clearing house) for works spoliated during the Nazi Occupation^[3], became the seat of the Commission de récupération artistique (CRA), its administrative centre, and the reception point for the first convoys of artworks returning from Germany.

Rose Valland, an assistant curator at the Jeu de Paume Museum, at the risk of her life, meticulously recorded everything she observed of the ERR's activities during the Occupation. After the Liberation, she was sent to Germany with a detachment of art historians and, drawing on her notes, she organised the return to France of a large number of works gathered in the Collecting Points, with a view to restoring them to their spoliated owners.^[4]. Those works repatriated to France which could not be returned to their owners were, to a large extent, sold for the benefit of the State Property Administration (les Domaines), and roughly two thousand of them were placed in the custody of the national museums under the label Musées Nationaux Récupération (MNR)^[5].

Following the restoration of republican legality, many French citizens asserted their rights and claimed their property. However, not everyone was in a position to seek the return of what belonged to them. For many, a series of obstacles prevented any claim: the distress caused by the traumatic loss of relatives and loved ones upon the return from concentration camps; the loss of all traces and archives; and, finally, survivors’ desire to reintegrate into a French society from which they had been excluded throughout the Occupation.

Although the work remained unfinished, the question of restitution of spoliated works of art largely vanished from public debate between the late 1950s and the mid-1990s. Under Allied pressure, West Germany opened compensation procedures for spoliated families,^[6]but restitutions of artworks were, by contrast, very few. More generally, the provenance of works held by museums, whether MNR works[7] or other works in public collections, was not a central concern; nor was it a matter addressed by dealers or auction houses. More broadly still, the memory of the Shoah was not foregrounded, and the traceability of artworks during the Second World War did not constitute a subject of study.

This silence surrounding the looting of artworks contributed to a wider collective amnesia, notwithstanding the principled commitments set out in the London Declaration of 5 January 1943 and the subsequent ordinances.

A paradigm shift occurred in the mid-1990s, driven by new historiographical research, made possible in particular by the collapse of the Soviet bloc and the opening of new archives ^[8].

From that period onwards, the issue of the spoliation of artworks gained prominence within a broader reassessment of France’s role during the Second World War, exemplified, in particular, by President Jacques Chirac’s seminal speech recognising the responsibility of France in the deportation of Jews, delivered at the commemoration of the rafle du Vél’ d’Hiv on 16 July 1995.^[9].

It was in this context that, in 1997, the Mission d’étude sur la spoliation des Juifs de France was launched, entrusted by Prime Minister Alain Juppé to Jean Mattéoli, to conduct a series of inquiries into the various aspects of antisemitic spoliation under the Vichy regime. In its report, the Mattéoli Commission emphasised that the public administration, particularly the Direction des musées de France, should devote greater efforts to identifying spoliated owners.^[10].

Yet during the same period, provenance research, despite significant private initiatives, did not intensify to match the political will asserted in relation to restitution of spoliated property. Some heirs of spoliated owners therefore pursued their claims before the courts, relying in particular on the provisions of the Ordinance of 21 April 1945,^[11], which directly implemented the principles stated in the London Declaration of 5 January 1943.

When instructed by the heirs of Jewish owners dispossessed during the Second World War, the lawyer is required to retrace the trajectory of the property claimed. In doing so, the lawyer gives voice before the courts to spoliated families. Within such proceedings, the demands imposed by rules governing evidence compel the lawyer to conduct a historical investigation in order to assemble precise, serious and concordant indicia of the owner’s dispossession under exceptional measures derogating from ordinary law, adopted by the Vichy government or the occupying authorities. For this purpose, provenance research, namely, the historical documentation of changes of ownership of cultural property between 1933 and 1945, emerges as a new requirement of the art market.^[12]. This work of historical inquiry goes hand in hand with a process of reconstructing the country’s collective memory. The lawyer, criticised in the early 1990s for seeking to “rewrite History” in court, thus in fact intervenes within the adversarial process as a researcher of memory.

Etiam sine lege poena est conscientia^[13]. Drawing on the historiographical research that developed from the 1990s onwards, the lawyer specialising in disputes concerning spoliated cultural property has contributed - not only to the emergence of a renewed memory of the genocide of the Jews - but also to questioning dogmas that had been mechanically settled. The lawyer emphasises that there is never a single, predetermined expected answer at trial, within a pursuit of what is just. By giving voice to families of spoliated owners, the lawyer introduces nuance and humanity into this field of litigation. It is precisely this humanity that is reflected in the doubt raised by the lawyer.

It is these two dimensions of the lawyer’s role in disputes concerning spoliated property - first, as a researcher of memory (I), and secondly, in the search for what is just (II) - that will be examined in the pages that follow.

I. The lawyer as a researcher of memory

The investigation undertaken in the search for memory highlights the lawyer's role within legal positivism and the duality of historical truth and judicial truth.

A. The lawyer's role within legal positivism

Within legal positivism, the lawyer is non-existent. Law is described as a set of norms arranged in a relation of production in the form of a hierarchy.^[14] The judge’s task then consists solely in applying the provisions binding upon him or her, by way of syllogistic reasoning. The normative proposition is the major premise; the case at hand, the minor premise. From applying the former to the latter, a conclusion is deduced, logical and necessary, which becomes the judicial decision and constitutes a particular and concrete rule for the case. The solution is thus presented as entirely neutral.

Yet, with rare exceptions, scholarly doctrine unanimously condemns this mode of scientific approach to law, on grounds relating to science and to values. Legal positivism would be useless, because it claims to describe law in a “pure” manner, on the basis of a questionable scientistic ideology, without being able to account for the real functioning of the legal world. Conversely, it would be dangerous, because its uncritical dimension would serve as a guarantee, stamped with the seal of “scientific objectivity”, for the established order and the values it conveys. The substantial thesis of legal positivism^[15] is sometimes presented as the thesis of the “absence of a necessary connection between law and morality”. Yet there are plainly very numerous and important relations between law and morality that legal positivism does not call into question. It is not insignificant that the content of law is often related to critical or conventional morality, and that law is one of the sources of social morality.

Thus, legal positivism experienced a resounding failure following the Second World War, at a time when higher considerations prevailed over the rules enacted. It appeared that the law could not be reduced to form in this way. The Nuremberg Tribunal judged legal crimes, punishing acts that, on the day they were committed, were ordered by the standards in force.

In this perspective, the aim here is to demonstrate that it is the lawyer who cracks the “positive mythology”^[16]: it shows that it is not possible to rationally discern what is due to others by simply pretending to deduce it, by way of a syllogism, from the positive law^[17].

To do this, two hypotheses should be considered. On the one hand, we distinguish between property confiscated by an unjust law that is, contrary to the positivist thesis, illegitimately seized. However, it is agreed to characterize the confiscation of property by the following syllogism: X was confiscated based on the Y standard, the Y standard is unfair, X was unfairly confiscated.

On the other hand, confiscated property must be different from the case in which an asset was sold at a low price, under pressure, without confiscation. The question then arises whether the sale was really a sale or a disguised plunder insofar as the legal syllogism justifies such appropriation, despite the distortion of the concept of consent. It is in this configuration that the role of the lawyer is essential.

Indeed, before deciding, it is important to choose your bases, and therefore for the positivist syllogism, to establish the facts of the minor.

While in criminal law, the defense lawyer denounces the fragility of the evidence provided, dismantling the elements produced by the public prosecutor, it is his responsibility, within the framework of civil proceedings, to research and establish the facts. We must therefore be careful not to underestimate the role of lawyers in the judicial decision process: it is on the basis of requests and documents that judges decide. Justice rendered thus depends on the quality and loyalty of the lawyer in establishing the facts ^[18].

Finally, for justice to be served, a confrontation between the litigators is necessary. Each part provides a different version of the facts. Lawyers are therefore essential, as they ensure that both points of view have been heard. It is from this uncertainty as soon as the facts are determined that the lawyer plays a key role in legal positivism. Here it is located at the crossroads of the two traditions, that of positivism in the legal sense and that of positivism in the scientific sense (the positivism of Auguste Comte).

This role of the lawyer in determining the facts was underlined by the Cour d'appel de Paris in the judgment rendered in the case Gimpel of 30 September, 2020^[19]. Mr. René Gimpel (1881-1945) was one of the great art dealers of the beginning of the 20th century. A victim of the antisemitic policies introduced by the Germans and the Vichy regime in 1940, he was forced to flee to a so-called “free” zone where he and his three sons actively participate in a resistance network. Arrested and interned for the first time in September 1942, then in 1944, before being deported to Dachau on 15 July, 1944, he died of exhaustion and ill-treatment at the Neuengamme camp on 3 January, 1945.

Three works from his personal collection, painted by the Fauvist Andreï Derain and sold during the war, were recently identified by René Gimpel's beneficiaries in public collections^[20]. After several years of negotiation attempts, the voluntary inertia shown by the Department of the Museums of France in charge of examining the claim file forced the Gimpel consorts to demand in court the return of the works stolen from their grandfather, on the basis of the provisions of the ordinance of 21 April, 1945.

At first instance, the Gimpel consorts were denied their request according to the judgment of the tribunal judiciaire de Paris on 29 August, 2019. In support of its decision, the Tribunal considered that proof of an act of plunder could not be established with certainty for the three works claimed ^[21].

The Gimpel consorts appealed this judgment. In order to make up for the failure of the State, which did not carry out the appropriate research, it appeared necessary for the lawyer in charge of the interests of the Gimpel consorts to conduct an objective and exhaustive search for origins, tending to trace the itinerary of the claimed works from their creation to their exit from René Gimpel's heritage. At the lawyer's initiative, consorts Gimpel commissioned two female researchers, Margaux Dumas and Denise Vernerey-Laplace, who, after extensive research, established a scientific report based on a study of the Gimpel family's archival documents and the various public archives to which they had access. In this source report, they paint a portrait of the Gimpel family's archives and the various public archives to which they had access. of the art market during the Second World War and trace, using the sources and knowledge at their disposal, the itinerary of paintings claimed. Each element put forward in their report is corroborated by a public or private archival document, the testimony of an art market professional or precise knowledge of the history and history of art. The lawyer relied on this report to provide evidence of the existence of a series of serious, precise indications and concordant establishing in a certain way the plundering circumstances of René Gimpel's dispossession of these three works.

Recognizing the existence of this body of precise, serious and consistent evidence, the Paris Court of Appeal condemned the French State and the city of Marseille to return the three works to the heirs of René Gimpel. The Court took care to point out that the State had not carried out the source search and concluded that “this very important work, which the first judges did not have at their disposal, made it possible to rectify previous errors and to specify various elements allowing a better understanding of the fate of the works in question”.

In this sense, the judgment of 30 September, 2020 is a real consecration of the lawyer's role in legal positivism through the determination of historical facts: it is also the recognition of the relevance of the source relationship as judicial evidence.

B. The duality of historical and judicial truths

Through the historical research carried out by the lawyer, the relationship between historical truth and judicial truth emerges, which allows us at the same time to study the comparison between the work of the historian and that of the lawyer.

Carlo Ginzburg describes the processes as “historiographical experiments”^[22] privileged. It identifies, alongside the Platonic paradigm, a mode of production of truth in mathematics or natural sciences, the indiciary paradigm, specific to judicial investigation. While the first relates to the knowledge of the general, the second refers to the deciphering of clues to constitute a story. At first glance, the work of the historian and that of the lawyer would be comparable in that they are both based on this indicative paradigm, namely to infer the existence of invisible causes, from their observable effects. Indeed, and in particular with regard to the plunder of Jewish property, they both study testimonies about past events, while using material evidence independent of the testimonies. For both, it is a question of establishing the factual truth through evidence. Ginzburg laments that the concept of proof is no longer readily used by historians, which he attributes to the rise of a relativistic cultural history, which is more interested in representations than in facts^[23]. Against this trend, which he considers dangerous, we should restore the legitimacy of the notions of proof and truth in history^[24]. However, this revaluation would require admitting the proximity of the work carried out by the historian, to that carried out by the lawyer.

However, some authors, including Ginzburg, refuse to allow this comparison to lead to an identification. To reduce the historian to the lawyer would in fact be to simplify and impoverish historical knowledge, just as to reduce the lawyer to history would be to pervert the exercise of justice, by reasoning similar to the comparison that Ginzburg makes between the judge and the historian ^[25]. The work of the historian cannot be reduced to that of the judge, because his field of investigation remains much broader than that of individual acts, which are exclusively the subject of justice. Conversely, it is impossible to identify the knowledge of the judge with that of the historian, because he cannot, unlike the latter, compensate for the deficiencies in the information he has about particular individuals by drawing on knowledge relating to their sociological profiles and historical contexts, making it possible to conjecture the nature of their acts. This mode of reasoning would be inaccessible to the lawyer, and a fortiori, this is true of the judge in litigation concerning spoliated property, who must have proof that the individual in question did indeed suffer the act at issue in the investigation, namely dispossession during the Occupation. Even if the historian’s relationship to the past is freer and richer than that of the lawyer, and even if the historian is entitled to construct more uncertain interpretations of a broader past, the historian remains bound by the same factual requirement relating to past events, which also constrains the lawyer. This observation has led some authors to conclude that the historian is able to carry out the lawyer’s inquisitorial work, incorporating it into broader research of a more uncertain status, whereas the lawyer is not equipped to carry out the historian’s work, which goes beyond the lawyer’s remit^[26].

Nevertheless, that assessment seems misleading. The strict separation between historical truth and judicial attribution is undermined by the procedures for returning spoliated property to Jewish owners, which, from that perspective, constitute a special case. The difficulties raised by the collective nature of the confiscation of Jewish property during the Occupation go far beyond those generated by the evidentiary problem of proving the dispossession of a specific work. What must be emphasised is the existence of a collective and systematic intent to spoliate on the part of the Nazi and Vichy regimes. Only an analysis of that historical context enables counsel to characterise as dispossession an act which, if viewed in isolation, would be treated as an ordinary transaction.

Before any discussion of the facts of the case, counsel is therefore required, in written submissions, to analyse the historical context of antisemitic spoliations perpetrated during the Second World War. A dispossession cannot be examined without taking account of the very real administrative persecution inflicted upon the Jews of France by the occupying authorities and the Vichy government. Such is the case, for example, with the Statut des Juifs, promulgated spontaneously by the Vichy regime on 3 October 1940, and the establishment of the Commissariat général aux questions juives by a law of 29 March 1941.

The Statut des Juifs thus added a new category of legally incapacitated persons to those recognised under ordinary law, namely minors and protected adults. Above all, those laws gave the notion of incapacity a new content, by perverting the very concept of incapacity. By organising the placing under administration of Jewish property, Vichy’s antisemitic law created an incapacity grounded in generalised distrust towards a category of persons designated within French society, thereby not only exceeding the usual scope of such incapacities but also conferring upon them an entirely new content^[27]. Through historical analysis, counsel thus brings into sharp relief the legal status of Jews under the Occupation, situated midway between legal capacity and civil death^[28].

The law of 22 July 1941 empowered the Commissariat général aux questions juives to appoint a provisional administrator to manage the assets forming part of a Jewish person’s estate with a view to their aryanisation, the Jewish owner being divested upon the administrator’s appointment. Far from acting as the representative of the spoliated owner, the administrator thus became the directing organ of the Jewish person’s estate placed under administration, the owner being unable either to revoke the administrator or to ratify or disavow the acts undertaken by the administrator.

In this context, counsel works in the manner of a historian, incorporating historical context in order to characterise the act and encouraging the court to take that context into account. The comparison between the roles of counsel and the historian no longer concerns the attribution of factual truths relating to individual acts, but the construction of historical narratives offering an understanding of the past grounded in the analysis of large scale social and institutional processes.

In disputes concerning spoliated property, counsel’s use of adversarial procedure contributes to the formation of a liberal collective memory^[29], meaning a dialogical memory grounded in counsel’s ability to express their position freely, enabling counsel to shape a country’s collective memory and, indeed, the writing of History.

Counsel and the historian are both confronted with the task of narrating a shared experience, at a time when the nation is divided between perpetrators and victims. Mark Osiel argues that, to do so, they must proceed from a shared premise, namely the existence of an underlying political community[30]. Judicial truth and historical truth are thus both rooted in the recognition of a shared political truth, the belief in the existence of an established political community^[31].

Beyond the comparison with the historian’s work, counsel also emerges as a force for the advancement of the law, through the pursuit of what is just by defending the interests of successors in title of dispossessed owners.

II. The Lawyer in Pursuit of the Just

If the law aims at justice, the judge’s role in that pursuit is self evident. Counsel’s role, by contrast, appears far more obscure and ambiguous, insofar as counsel is perceived as pursuing only the interests of the client.

Nevertheless, the selection of the applicable rule and the proposal of a solution by counsel underscore counsel’s central role in the pursuit of what is just^[32].

A. The Lawyer's selection of the rule

Although the rule of law is supposed to impose itself, Christian Atias observes that, in reality, it is chosen among other rules, and that this choice determines the legal question put to the court^[33]. The court’s response will, moreover, be confined to the angle from which the question is framed, which will be treated as the primary point of entry. Since a difference in nature entails a difference in regime^[34], the stage of legal characterisation is decisive, as the judge’s decision depends upon it.

In litigation concerning spoliated property, counsel’s role lies first in determining the applicable rule, sought within the body of rules enacted in the highly specific context of the end of the Second World War, when fundamental rights had been withdrawn from all persons designated as belonging to a community excluded from French society. Once the rule has been selected, counsel will challenge its interpretation by the court of first instance and submit it to the Court of Appeal, exposing its shortcomings and its inadequacy in light of the concrete situation.

Thus, in the judgment delivered by the Cour d’appel de Paris in the Gentili di Giuseppe case on 2 June 1999^[35] the court, on the basis of the Ordinance of 21 April 1945^[36], ordered the public establishment of the Musée du Louvre to restitute MNR designated paintings, the owner having been spoliated in 1941 and the museum holding the works on a precarious basis. The judgment is of undeniable historical and legal interest, as it sheds light both on a particular form of spoliation committed during that dark period of persecution and on counsel’s decision, on behalf of the heirs of the spoliated owner, to rely on the legislation governing spoliations and restitutions, which had largely been forgotten at the time of the case^[37]. More broadly, the decision highlights counsel’s sound choice of the ordinance applicable to the dispute, a contextual instrument intended to remedy the consequences of measures enacted or inspired by the occupying authority and which had not been applied for decades. Counsel had to recall that the ordinance applicable in the case was the product of a genuine political will expressed in the London Declaration of 5 January 1943, namely the determination to thwart, by all means, the methods of expropriation practised by enemy governments in occupied countries.

Counsel also intervenes to question the manner in which the rule is to be applied. Counsel first shows that the rule itself is problematic, in that it is far from univocal, due to the "open texture"^[38] of the law. The presence of indeterminate concepts makes uncertainty all the greater as to the meaning to be given to texts.

By way of example, the Ordinance of 21 April 1945 indicates the direction to follow, but the route taken may vary while leading to the same destination, namely restitution of the work to the successors in title of the spoliated owner. The text has always given rise to significant interpretative difficulties. Despite the care taken in its drafting, it was difficult to anticipate, given the infinite variety of spoliation acts committed, the consequences such acts might have entailed. Moreover, the ordinance lays down derogatory rules and does not always clearly delineate the boundaries of its scope as against the ordinary law of nullity from which it draws inspiration^[39]. Finally, the ordinance could not have foreseen that the period of restitution would extend far beyond the end of the conflict, such that the question of the applicable procedure would arise.

Thus, in the context of a claim concerning a work that had reappeared on the art market and whose spoliation was established, the President of the tribunal judiciaire de Paris, seized under the accelerated procedure on the merits^[40], chose to request an advisory opinion from the Cour de cassation^[41].

In its opinion delivered on 14 September 2022^[42], the Second Civil Chamber of the Cour de cassation recalled that Ordinance No. 2019-738 of 17 July 2019, adopted pursuant to Article 28 of Law No. 2019-222 of 23 March 2019 on the 2018–2022 justice programme and reform, did not effect a general substitution of the proceeding on the merits in summary form by automatically transforming it into an expedited procedure on the merits. Rather, it proceeded provision by provision, excluding from the new procedure certain texts that had previously been subject to the proceeding on the merits in summary. However, Article 17 of the above-mentioned ordinance of 21 April 1945 had not been amended by substituting the words “expedited proceedings on the merits” (§ 10) for “proceedings on the merits under the form of summary proceedings”. The Court nonetheless chose to disregard the literal wording of the provision in favour of its purpose and spirit (§ 12), as recalled by counsel for the heirs of the spoliated owner, namely: “to enable, by a procedure as swift and inexpensive as possible, dispossessed owners to lawfully regain possession of their property, rights or interests, through application of the principle that acts of transfer are null and void” (§ 11).

As the growing volume of pending cases prevents judges from engaging with all the subtleties of the matters before them^[43], the deep knowledge acquired by counsel through successive spoliation cases is decisive, and the reasoning of the Cour de cassation’s opinion highlights counsel’s contribution in terms of nuance and humanity.

It is that humanity that emerges through the doubt raised by counsel in the interpretation of the Ordinance of 21 April 1945. Thus, beyond framing the question, a key stage in the making of the judicial decision, counsel also proposes a solution in order to attain what is just.

B. The Lawyer’s proposal of a solution

Beyond the application of the rule of law, counsel has had to confront precedent in order to shape case law favourable to the restitution of spoliated property to lawful owners. To do so, counsel must propose a solution to the court.

Any solution, however established, longstanding or well founded it may appear, remains open to challenge. The authority of res judicata applies only to a case involving the same subject matter, the same cause of action, and the same parties. Counsel therefore seeks to identify the particular detail that distinguishes the case and prevents it from being too hastily assimilated to what is already known. As the privileged interlocutor of the successor in title of the spoliated owner, counsel is best placed to identify such singularities.

The Dorville case provides a telling example. The issue was to have recognised the spoliative character of the post mortem sale of the collection of Armand Isaac Dorville, held at the Hôtel Savoy in Nice from 24 to 27 June 194^[44]. The Commission pour l’indemnisation des victimes de spoliations, first seized by an application brought by Dorville’s successors in title, considered that the sale had taken place "sans contrainte ni violence", meaning without constraint or violence^[45], because it had been organised by the family’s representative before the intervention of the Commissariat aux questions juives^[46]. The CIVS nevertheless issued a recommendation on 17 May 2021, in which it recommended the handover to Dorville’s successors in title of twelve works acquired at the sale by the national museums, on the ground that the representative of the national museums responsible for those acquisitions had met on site the provisional administrator appointed by the Commissariat général aux questions juives to administer the estate.

Dissatisfied with the CIVS’s position, the family turned to the courts in order to have the spoliative character of the sale recognised in proceedings brought on the basis of the provisions of the Ordinance of 21 April 1945.

Counsel for the successors in title intervened to highlight the singularity of the case. Numerous elements in the file show that the executor, a soldier held prisoner in Germany at the time of Dorville’s death and released in November 1941, organised the sale of the entire collection of the de cujus within a very short time, between November 1941 and June 1942, with a manifest awareness of the risk of confiscation due to antisemitic legislation. Yet, from the first day of the most significant part of the sale, during which 450 paintings, drawings and sculptures were offered for auction, a provisional administrator appointed by the Commissariat général aux questions juives took control of the sale and confiscated the proceeds, which is the very definition of spoliation.

It thus appears that, in spoliation litigation, counsel plays a central role in the pursuit of what is just, intervening at every stage of the making of the judicial decision to recall its profoundly memorial dimension. Alain wrote that justice is the doubt as to law that saves the law. If truth must constantly be brought to light, discovered, and uncovered^[47], counsel must bring every legal question back to a question of conscience, a human question.^[48].