THE STRUCTURAL PRINCIPLE OF
THE STATE (3)
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The distinction between the State and the other organized communities according to the scholastic method of the search for a genus proximum and differentia specifica (closest genus and specific difference).
That HELLER's dialectical structural concept of the State-institution is not really oriented to the internal structural principle of the latter, is at once evident when the distinction of the body politic from other human communities is at issue. This problem is crucial in every theory of societal relationships that starts with eliminating the structural principles given in the divine world-order. For lack of an internal structural criterion HELLER again has recourse to the external method of classification found in ARISTOTLE's logic, viz. the method of determining the genus proximum [closest grouping] and the differentia specifica [specific difference]. In our general theory of the modal law-spheres this method has been found to be insufficient, even to give account of the modal structures of reality (1).
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(1) HELLER indeed applies this method also to delimit his concept of law. Cf. op. cit. p. 183.
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'Genus proximum of the State', HELLER writes, 'is consequently the organization, the organized pattern of behaviour planned for the unity of decision and action. Its specific difference from all other organizations is the property of its sovereign command over a territory. This sovereignty and this relation to a territory, inherent in the State's power, give all the elements of its organization their specific character' (2).
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(2) [Op. cit. p. 237: ['Genus proximum des Staates ist somit die Organisation, das zur Einheit der Entscheidung und Wirkung planmässig organisierte Handlungsgefüge. Differentia specifica allen andern Organisationen gegenüber ist seine Eigenschaft der souveränen Gebietsherrschaft. Durch die Souveränität und Gebietsbezogenheit der Staatsgewalt empfangen alle Elemente der Staatsorganisation ihren spezifischen Charakter'.]
In his book Die Souveränität, p. 81, the "genus proximum" and "differentia specifica" were slightly differently formulated: 'The State, according to a statement made by F. J. STAHL, the "realized legal order", is the unified cooperation of definite human actions, and in this respect similar to all other human organized communities. But fundamentally dissimilar to all of them is that the actions realized in the State are the guarantee of the total cooperation in this domain.'['Der Staat, nach einem Worte F. J. STAHL'S die "realisierte Rechtsordnung", ist das einheitliche Zusammenwirken von bestimmten menschlichen Akten, darin alien anderen menschlichen Verbänden gleich, von ihnen aber dadurch grundsätzlich geschieden, dass die ihn realisierenden Akten die Garantie des ge sammten Zusammenwirkens auf diesem Gebiete darstellen'.]
The purport of this formulation is the same, which, moreover, appears from the identification of "universality" and "sovereignty", op. cit. p. 110: 'State is the universal and, therefore, the necessarily unique and sovereign unity of decision in a certain territory. ['Staat heisst die aufeinem bestimmten Gebiet universale, deshalb notwendig einzigartige and souveräne Entscheidungseinheit'.]
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This was the "specific characteristic" by means of which already GIERKE tried to distinguish the body politic from other societal relationships (3).
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(3) Cf. GIERKE, Die Grundbegriffe des Staatsrechts (1915) pp. 99 ff. and my Crisis in de Hum. Staatsleer, pp. 119 ff. on this point.
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Its vagueness is at once evident when we recall that the concepts "organization" and "sovereign territorial power" must exactly receive their internal delimitation of meaning from the eliminated structural principle of the State. Apart from this principle these notions remain perfectly multivocal "analogical concepts", which cannot enrich our insight; let alone that the concept of sovereignty is heavily burdened by a State absolutist tradition.
The problem of the relation between State and law in HELLER's dialectical structural theory.
The fundamental insufficiency of HELLER's structural concept is also evident in his attempt to conceive the relation between State and "law" dialectically.
All individuality structures in the juridical relations are levelled by purposely ("zweckmässigerweise") reserving the term "law" only for the order of such norms which have been formed and sanctioned by special organs of the State-organization (Op. cit. p. 186/7.) This makes it impossible for him to grasp the individuality structure of the internal constitutional law of the body politic. For modern times HELLER does not recognize any other positive law except State-law. Explicitly he calls the State "the formal source of validity of all legal rules" (p. 187). As regards modern Western society he denies the original competence of organized communities of a non-political nature to make their internal legal order, independent of the agreement of the State. He considers the relation between State and law only as an historical problem (4), quite in accordance with the historicistic viewpoint.
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(4) Op. cit. p. 186: 'The relation of the State to law, too, can only be understood historically, and we must in advance suspect any views of this relation which claim a universal validity transcending history.' ['Auch das Verhältnis von Staat und Recht lässt sichnur historisch begreifen und allen Behauptungen über dieses Verhältnis,welche mit dem Anspruch geschichtstranszendenter Allgemeingültigkeitauftreten, muss von vornherein [italics are Dooyeweerd's] mit Misstrauen begegnet werden'.]
This is a clear and unmistakable formulation of HELLER's historicistic prejudice.
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Neither the modal meaning-structure of law, nor the transcendental individuality-structure of the State are in the least taken into account. Positive law is supposed to develop "historically" from an undifferentiated "convention" because of the organization of legislative and administrative juridical organs for the formation of the legal order. In the period of developed economic social life with its increasing division of labour he holds the hierarchical State alone competent to organize a positive legal system (5). This view is entirely in accordance with BODIN'S absolutistic theory of sovereignty, which HELLER had already rehabilitated in his book Die Souveränität (6).
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(5) Op. cit. p. 186: 'In the age of developed social economy only the hierarchy of the State is able to organize a correspondingly functioning normative order. Up till then certainly every organized community was more or less competent to create law, just as in virtue of club law and the law of the vendetta almost everybody was called upon to enforce the law. If for the purpose of determining the concept of law we do not want to orient ourselves to that which is, but to that which "was once and may be again", then we must at all events declare that not only the State but also the Churches, territorial units, nobility, cities, guilds and vocational classes, in a word all organized communities are able to create and to guarantee law.' ['Im Zeitalter der entwickelten Verkehrswirtschaft hat nur die staatliche Hierarchie die Möglichkeit, eine entsprechend funktionierende Normordnung zu organisieren. Bis dahin war sicherlich jede organisierte Gemeinschaft mehr oder weniger zur Rechtserzeugung befähigt, wie kraft des Faust- und Fehderechts fast jeder zur Rechtsdurchsetzung berufen war. Wollten wir uns zum Zwecke der Bestimmung des Rechtsbegriffs nicht daran orientieren was ist, sondern daran, "was einstens war und was vielleicht wieder einmal sein wird", so müssen wir allerdings erklären, dass nicht nur der Staat, sondern auch die Kirchen, Territorien, Geburtsstände, Städte, Zünfte und Berüfsstände, kurz alle organisierten Verbänden Recht zu erzeugen und zu sichern im Stande sind'.]
(6) Cf. Die Souveränität, p. 57, where we read: 'for the juridical view of the present State the positivity of the legal rules of organized communities integrated into the body politic proves to be derived from the positivity of the legal order of the State. ['dass für die juristischeBetrachtung des heutigen Staates die Positivität der ihm eingeordneten Verbandssatzungen abgeleitet erscheint von der Positivität der staatlichen Rechtsordnung'.]
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Thus the problem of the relation between State and law is posited in a levelling way as that of the relation between State and positive law in general ("überhaupt"). Its solution is found by applying the dialectical method in an extremely simple manner, so that the juridical norm ("das rechtliche Sollen") is considered to be indissolubly bound up with the human volition ("das menschliche Wollen") of the legislator. HELLER conceives the will of the State explicitly as a subjective psychical act (p.189), which gives rise to a dialectical, i.e. an intrinsically antinomic concept of law. For here the modal boundaries between the juridical and the psychical aspect are theoretically eradicated (Cf. Vol. II, part I, pp. 37 ff). It is simply impossible to reduce the law-forming will of the legislator to a complex of psychical act-functions.
The concept of law here is used in the sense of a pseudo-concept of function (7), without in the least taking into account the internal structural diversity within the juridical law-sphere as a modal aspect of reality.
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(7) Pseudo- , because the modal, really functional concept of law cannot be oriented to the State as an individuality structure of human societal life.
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As HELLER's concept of "structure" of the State does not really approach its individuality structure, it cannot give us an insight into the internal expression of the latter in the different modal aspects of this societal institution. Modern historicism undermines HELLER's entire conception of the body politic, and prevents him from liberating himself from the relativistic view of the latter's structure. For all these reasons the conclusion is inevitable that in principle HELLER's interesting theory has not at all overcome the crisis in modern theory of the State.
The crisis in the practical political life of modern parliamentary democracies and the new irrationalistic and universalistic idea of the totalitarian State.
The entire crisis in the theory of the State, culminating in a "political theory without a State-idea", was closely connected with the crisis in the practice of western political life and the terrible economical crisis between the two world-wars. It was connected with the symptoms of dissolution that had assumed such alarming proportions in several parliamentary democracies; with the corruption and the subjection of politics to the interests of particular groups and classes. These facts hardly need separate mention. The recent fascist and national socialist reaction, however, which turned against these symptoms of dissolution in politics, and transformed the central and southern European States into authoritarian "Führerstaaten", meant indeed a barbarian "subversion of all values" implied in the Christian and Humanist traditions of Western culture. This reaction found its philosophical background in the modern irrationalistic philosophy of life, which substituted for the ideology of natural law, founded in the Humanistic personality ideal, the vital political mythology and the technical means of mass-psychology. The new idea of the totalitarian or integral State was no longer rooted in the belief in an idealistic metaphysical rational order, but appealed to the vital instincts of the masses. It really aimed at subjecting all the internal spheres of the non-political societal relationships to the "totalitarian State". Such an attempt was not new in the history of the world. But it acquired a really demonic character by its refined methods of mass suggestion, its unscrupulous sacrificing of the individual personality, and its appeal to the spiritually uprooted mass-man.
The dialectical basic problem in the development of the political theories oriented to the immanence-standpoint.
Since the rise of theoretical reflection on the "problem of the State" in Greek philosophy the development of the seemingly diametrically opposed political theories, oriented to the immanence-standpoint, has always centred around one dialectical basic problem. This problem may have been posited from different religious starting-points and in different historical situations, but in the foreground has always been the question about the relation between "right and might" in the structure of the State institution. And on the immanence-standpoint this problem necessarily assumes the form of a dialectical tension between these two factors, because this standpoint makes the insight into the plastic horizon of the individuality-structures impossible.
This dialectical tension on the one hand manifests itself in the sharp mutual antagonism between the various theories, in the fundamental contrast between the idea of the law-State and that of the absolutist power-State. On the other hand, if the attempt was made to reconcile the two factors in one and the same theory, the dialectical tension became evident within such a theory itself.
As early as in ancient Greece the Sophist KALLIKLES, starting from the Greek matter-motive, defended a naturalistic individualistic idea of the political ruler which might be called a prelude to NIETZSCHE's idea of the "Herrenmensch" (super-man). In essence this was the justification of subjecting the weak to a despot, who is bound neither to justice nor to morality. With almost prophetic indignation PLATO opposed to this his idea of the State ruled by justice, in which reigns the idea of τα εαυτού πράττειν ["to do his own things"/ “learn from ourselves”?] in its concentric direction to the divine Idea of the Good.
Nevertheless, PLATO has never overcome the totalitarian view of the body politic: no more has ARISTOTLE. This was due to the fact that their idea of political justice was oriented to the Greek form-motive, which implied a religious absolutization of the cultural aspect. For the modal meaning-nucleus of the latter is power. The result was that the idea of political justice oriented to this form-motive lacked any material limitation of the competence of the city-State in its relation to the non-political societal spheres. In this way there remained a dialectical tension between the idea of justice and the totalitarian State idea, which in principle conceives the body politic as a power-State.
The polar contrast between might and right in the State has also dominated the entire Humanistic political theory from the times of the conflict between the abstract normative law of nature and reason, and the naturalist theory of "Staatsräson" (8),until the most recent antithesis between the individualistic, democratic law-State, and the universalistic authoritarian power-State.
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(8) Compare the ample explanation of the tension between the idea of "Staatsräson" and that of natural law in my In den Strijd om een Christelijke Staatkunde (The Struggle for a Christian Politics), I, XV (in the quarterly Antirevolutionaire Staatkunde,Year I, 127, pp. 142 ff.).
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This conflict was ruled by the dialectical basic motive of nature and freedom, opposing the mathematical or the cultural science-ideal respectively to the personality-ideal of Humanism.
As long as the classical Humanistic science-ideal prevailed, the theory of natural law accepted BODIN's notion of sovereignty, which was devised to construe the State as the supreme power- organization ruling human society in its totality. As soon as, on the other hand, the personality-ideal with its Humanist freedom-motive acquired the precedence, the conception of inalienable human rights was opposed to the sovereign power of the State, without the latter being denied. Generally speaking, the adherents of the idea of the power-State tried to save the appearance of the law- State, although the Macchiavellian theory of the raison d'etat was openly explained in different realistic reflections on the "necessities of politics". Even the fascist and national socialist theories did not wish to give up the ideology of the law-State but tried to adapt it to their totalitarian conception of the power-State. They introduced a deceitful "idea of the material law-State", which was opposed to the 'demo-liberal ideology of the rule of law'.
The absolutist idea of the power-State may then be conceived in a naturalistic positivistic and individualistic way, as well as in an idealistic and universalistic sense (HEGEL, and his adherents). And the idea of the law-State also allows of various conceptions.
Even GIERKE has not overcome this internal dialectical tension between "might and right" in his theory of the body politic, although in other respects he has done great service to the theory of the organized communities. Though being an adherent of the historical school that originated from German romantic idealism, he later on also fully appreciated what the theories of natural and rational law had really done for the development of the legal aspect of Western societal life. He was on principle an opponent of the formalistic positivism in constitutional legal theory that came to the fore in the German school of LABAND and GERBER. And he was unwilling to sacrifice the idea of the law-State, in its material sense, to the "historical reality" of the State as a "sovereign territorial organization of power". Nevertheless, he shut off the reality of body politic in its historical function of "organized power". After having delimited these two from each other antithetically, he had then only an external dialectical connection left between the reality of the State and the legal order. Thus, like RUDOLPH SMEND of late, he viewed the life of the body politic and that of law as "two independent specifically different aspects of communal life" ["zwei selbständige und spezifisch verschiedene Seiten des Gemeinlebens".]
He circumscribed this contrast as follows: "The former manifests itself in the sovereign power to realize the desired common purposes, and culminates in political action. The latter reveals itself in the marking out of spheres of action for the volitions bound by it, and culminates in legal knowledge (knowledge of what is in accordance with the requirements of law)' [Grundbegriffe des Staatsrechts (1915) p. 105: 'Jenes manifestiert sichin der machtvollen Durchführung gewollter Gemeinzwecke und kulminiert in der politischen That, dieses offenbart sich in der Absteckung von Handlungssphären für die von ihm gebundenen Willen und gipfelt imrechtlichen Erkennen ("für Recht erkennen")'.]
In the same way SMEND (Verfassung und Verfassungsrecht, 1928, p. 98), characterizes State and law as two "indissolubly cohering, but nevertheless self-contained provinces of spiritual life, serving to realize two different particular values" ['zwar untrennbar verbundenen, aber doch je in sich geschlossenen, der Verwirklichung je einer besonderen Wertidee dienende Provinzen des geistigen Lebens'].
True, he says that State and law are interdependent, although they are entirely different "aspects of community life". They can find their real fulness of life only if they mutually support one another. But State and law are contrasted here as equivalent and comparable "aspects" of human cultural society. This is due to the view of the Historical School that the State is nothing but the historical form of political organization of a national community. Nevertheless this historical-political "aspect" is identified with the full reality of the organized community which is called a State! This shows that even such a profound thinker as OTTO GIERKE lacked the insight into the individuality structures of human society, and that into the relation of these structures to the modal aspects of reality. And this in spite of the fact that it was especially he who had laid full emphasis on the significance of the structures of the societal organizations.
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