mercredi 18 novembre 2015

(1) Dooyeweerd: Structural Principle of the State

THE STRUCTURAL PRINCIPLE OF 
THE STATE (1)
by Herman Dooyeweerd
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§ 1 - INTRODUCTION TO THE INQUIRY INTO THE STRUCTURE OF THE STATE INSTITUTION. THE CRISIS IN THE THEORY OF THE STATE AND THE DIALECTICAL PROCESS IN THE DEVELOPMENT OF THE VARIOUS THEORIES.

The chaotic confusion in the conception of the nature of the State
     Perhaps there is no other organized human community whose character has given rise to such a chaotic diversity of opinions in modern social philosophy and social science as the State. And the neglect of the study of the internal structural principles of human societal relationships has nowhere been more disastrous than in the general theory of the body politic. In recent times this theory has come to a crisis that the Humanistic views were unable to overcome. But the neglect of the transcendental internal individuality structure of the State in political and social theory is not a recent evil. Already in ancient philosophical political theories the conceptions of the State appeared to be so vague and undefined as to the inner nature of this institution that they were bound to vitiate the entire view of human society.

     In an earlier context we have seen that the Platonic and Aristotelian conceptions of the polis operated with the metaphysical scheme of the whole and its parts, and conceived of the State simply as the totality of human society. The Aristotelian view of the polis as "societas perfecta", as a self-sufficient, "autarchic" community whose aim is the "good life", really lacked any internal structural limitation (1).
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(1) This is erroneously denied by A. MENZEL, Griechische Staatssoziologie (Z.f. öff.R.XVI,1936) pp. 24 ff. The fact that ARISTOTLE treats of territory, nation, and magistrate, and recognizes the important position of the military factor in the State, does not mean that his view is oriented to the real structural principle of this institutional community. Cf. Pol. I, 1280 b,where the only essential characteristic of the State is called: κοινωνία τού εύ ζήν, (community of good life). 
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     Besides, there was no insight here into the typical historical foundation of the State as a non-natural institution. [cf "Wielding of Power"] On the other hand this view remained free from the prejudice of a modern historicistic positivism that looks upon the body politic as a variable historical phenomenon, apart from any normative principle.

     In PLATO and ARISTOTLE a normative idea of the State of a supposed supra-temporal, metaphysical character is recognized as the normative essence of this community, and laid at the foundation of any empirical enquiry into its factual manifestations. PLATO'S ideal State is partly oriented to a constructive idealistic metaphysics, and partly historically bound to the formal patterns of the Doric and Cretan States.

     Nevertheless it is remarkable that notwithstanding the universalistic identification of the ideal polis with the whole of societal life, the inner structural principle of the State proper urges itself upon PLATO, at least in his project of the organization of the typical political functions.

     There are two genuinely political classes in this polis, viz. that of the philosophers, who rule according to the idea of justice, and that of the warriors, in which the State's monopoly of the sword-power is represented. This division implicitly recognizes the two peculiar structural functions that will appear to be radical-typical for the State institution. In itself this fact is important, especially in its contrast with the modern historicist conception, which denies the State an invariable structural principle and considers it to be an absolutely variable historical phenomenon.

The character and the different meanings of a crisis in the theory of the State. The Greek Sophists and the Renaissance figure of MACCHIAVELLI.
     Every time the belief in an invariable structural principle of the body politic has been sapped — in whatever sense this principle is conceived of — there arises a crisis in the theory of the State. A relativistic attitude then gains the upperhand.

     Such a crisis may be the result of a really critical-theoretical attitude with regard to traditional political theories which in an uncritical way hold an existing historical form to be the unchangeable model for every kind of political life. Then the crisis is a necessary transitional stage in the theoretical reflection on the problem of the State, and it may be called useful at least in this respect.Such a theoretical crisis has no doubt been prepared for in the course of time by an internal process of decline in the traditional life of the body politic. This process may simply be a symptom of decadence, but it may also be an unavoidable transition to a new concentration of public life. The first theoretical crisis in the Greek view of the State was started by the radical left wing sophists. It was the result of a decay of the foundations of Athenian democracy after the death of PERICLES. Then the entire Greek city-State passed through a fatal "twilight of the gods" and the once so proud polis was never to see another dawn.

     The naturalistic theory of the absolutist power-State, on the contrary, directed by the Renaissance statesman MACCHIAVELLI against the traditional medieval view, announced a real renaissance of political thought. It was the theoretical precipitation of a crisis which had already found expression in the individualist-nominalistic theory of the later Middle Ages. It announced the transition from an internally decaying medieval idea of the Holy Roman empire to the modern bureaucratically organized and strongly centralized national State. In the hopelessly divided Italian city-States of the Renaissance period the necessity of a powerful national body politic was sharply felt. The modern State-idea was a subject of lively discussion. Here the name "stato" was first used to indicate the body politic as a whole. 


The recent crisis in the Humanistic theory of the State
     The most recent crisis in political theory, culminating in the "theories of the State without a State-idea", has been prepared for by quite a complex of factors to which I have devoted an elaborate analysis in my De Crisis in de Humanistische Staatsleer (The Crisis in Humanistic Political Theory).

     In it the decline of the normative Humanist idea of the civic law-State plays a dominant part. This idea was based on the Humanistic science-and personality-ideal, whose metaphysics has been worn away by relativism and historicism. Western man had become aware of a fundamental historical relativity of the supposed self-subsisting ideas of natural and rational law. In the crisis of a regular "Götterdämmerung" ("twilight of the Gods") of all "absolute" standards, the world of ideas of post-Kantian freedom-idealism had also been unmasked as historically conditioned. Then in political theory, too, relativistic positivism and historicism came to the fore. There was no longer room for an invariable normative structural principle of the State. RICHARD SCHMIDT merely formulated the prevailing relativistic conception in his Allgemeine Staatslehre when he wrote: 'Modern political theory emancipates itself from the speculative view, it leaves alone the metaphysical question about the idea of the State and restricts itself to the empirical world' (2). 
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(2) RICHARD SCHMIDT, Allgemeine Staatslehre (Leipzig, 1901). Bnd. I,p. 117: Die neuere Staatslehre macht sich von der spekulativen Betrachtungsweise los, lässt die metaphysische Frage nach der Staatsidee bei Seite and beschränkt sich auf die Erfahrungswelt'. 
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     CARL SCHMITT also gave expression to the relativistic destruction of the entire ideology of the State founded in the Humanistic faith in reason. About the modern "material" concept of statute law (which nowadays contains no other criterion for its distinction from the statute in a formal sense than its pertaining to a general rule) he says: 'All other properties of the statute law as a substantial-rational, just and reasonable arrangement have become relativized and problematical. The faith in natural law, implying the belief in the law of reason and in reason in the law, has disappeared to a considerable degree. The civic law-State is only saved from completely merging into the absolutism of changing Parliamentary majorities by the still factually existing respect for this universal character of the statute law' (3). 
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(3) CARL SCHMITT, Verfassungslehre (1928), p. 156: 'Alle andern Eigenschaften des Gesetzes als einer substanziell-rationalen, gerechten und vernüftigen Anordnung sind heute relativiert und problematisch geworden; der naturrechtliche Glaube an das Gesetz der Vernunft und die Vernunft im Gesetz ist im weiten Masze entfallen. Was den bürgerlichen Rechtsstaat vor vöIIiger Auflösung in den Absolutismus wechselnder Parlementsmehrheiten bewahrt ist nur der tatsächlich noch vorhandene Respect vor diesem generellen Character des Gesetzes'.
     Cf. also HERMANN HELLER, Der Begriff des Gesetzes in der Rechtsverfassung, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtlehrer, Heft 4 (1928) p. 115: 'Einer klaren Erkenntnis von der Bedeutung des Gesetzesbegriffs im Rechtsstaate steht heute die politische Degeneration des Rechtsstaatsgedankens im Wege'. [A clear knowledge of what the concept of law means in a law-State is made impossible nowadays by the political degeneration of the idea of the law-State].
     A critic of my book De Crisis in de Human. Staatsleer has argued against it that such pronouncements were only to be found in German writings on the State. But this is hardly tenable for anyone who has been acquainted with recent political literature. Not only German but also the French political literature after the first world-war was penetrated by this crisis of the law-State idea. In the Netherlands this crisis found its most striking expression after the second world-war in the remarkable book of H. W. SCHELTEMA, entitled Beschouwingen over de Vooronderstellingen van ons Denken over Recht en Staat (1948). In consequence of the appearance of this work I wrote an article entitled De Vooronderstellingen van ons Denken over Recht en Samenleving in de Crisis van het moderne Historisme (in the juridical quarterly Themis-Rechtsgeleerd Magazijn 1949, pp. 193-249). 
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     A metaphysically conceived normative idea of the State is no longer recognized in modern scientific thought insofar as it has been infected by Historicism (4).
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(4) Of late in Roman Catholic circles an institutional theory has been gaining ground, which tries to give the historical sociological conception of the State a metaphysical foundation. It has been founded by the late French professor of constitutional law, M. HAURIOU, who in his earlier sociological works was strongly under the influence of Comtian positivism but later on underwent the influence of the philosophy of life and ultimately founded his institutional conception of the State in a metaphysical State-idea, conceived of in a neo-Platonic sense. His colleague at the Nancy University, G. RENARD (La théorie de l'institution, Essai d'ontologie juridique 1930), tried to accommodate the institutional theory of HAURIOU to the traditional Thomistic-Aristotelian view. HAURIOU himself, however, was much more oriented to the Augustinian-Platonic metaphysics. The institutional theory lies outside of the cadre of the "Crisis in the Humanistic Political Theory" and, therefore, we need not enter into it in the present context. 
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     Neither can this thought accept the idea of an immutable structural principle of the body politic in our sense. The shibboleth of a scientific political theory was declared to be the elimination of all normative evaluations. Thus the attempt was made to form an a-normative notion of the State on a merely historical and positivist sociological basis.

The supra-historical societal structures of "historical phenomena".
     But in what way could such an a-normative conception be formed on the basis of the infinite multiplicity of "historical forms" of political life? Evidently any historical inquiry into the development of the State-institution must be based on a structural idea of the latter, if we are to be scientifically justified in speaking univocally of a State.

     Is a State an absolutely transient historical occurrence, like e.g., "the battle of Waterloo? Evidently not. On second thought "the battle of Waterloo" itself cannot be grasped in an exclusively modal-historical sense. It is related to the structure of the State insofar as it occurred in a war between the Napoleonic French State and the allied States which had united to put an end to the Napoleonic empire. Outside this relation it cannot be understood in its historical structural meaning. All individual historical phenomena manifest themselves in social individuality structures which as such are not of a modal historical nature, let alone of an absolutely transient individual historical character. The variable social forms in which the State-institution is realized in the course of time should never be confounded with its structural principle, founded in the plastic horizon of experience and reality, which alone makes possible our experience of the transient State formations. This fundamental truth must again and again be imprinted in our readers' minds, in opposition to the prevailing relativistic tendencies of thought.

     The representatives of modern political theory who tried to give a critical account of the structure of the State and did not content themselves with a kind of naïve empirical positivism, were often oriented to a merely methodological neo-Kantianism. The leading part in their epistemological reflection was given to the dualistic separation between sein and sollen (between what is and what ought to be) as methodological viewpoints. Accordingly the general theory of the State was divided into an "empirical" sociological, and a normative juridical part. From this dualistic methodological viewpoint, which in the last analysis was ruled by the Humanist basic motive of nature and freedom, any attempt at a synthesis of the juridical and the sociological conceptions was excluded in principle. The German scholar GEORG JELLINEK, who nevertheless tried to combine these antithetic conceptions, could not indicate any starting-point from which such a synthesis would be made possible. We shall presently return to this dualism in the general theory of the State.

     A result of so-called critical epistemological reflection in the general sociological theory of the body politic was the reduction of this organized community to a subjective synthesis of a multiplicity of socio-psychical relations into a teleological unity ("Zweckverband"), which was supposed to function only in human consciousness, without any correspondence to reality. The so-called pure legal theory of the State, on the other hand, even resolved the body politic as an organized community into a logical system of legal norms, which should be conceived apart from any causal sociological viewpoint. This entire epistemological reflection remained oriented to a naturalistic, merely functionalistic and individualistic conception of reality. All individuality structures in human society were in principle levelled down, and the organized communities were resolved into a formal synthesis of elementary relations. The material content of this formal synthesis was completely abandoned to the historicistic view.

(Herman Dooyeweerd, A New Critique of Theoretical Thought, Vol 3, pp 379-385)


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New Critique of Theoretical Thought 
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