mercredi 18 novembre 2015

(10) Dooyeweerd: Structural Principle of the State

by Herman Dooyeweerd
The civil law-sphere of the State.
     The internal public law-sphere of the State has its typical correlate in the sphere of civil law as a private common law (jus commune). Every communal legal sphere is correlated with inter- individual legal relationships. But in addition to its correlation with the typical international relations of a public law character, the public communal law-sphere of the State has a typical correlate in an inter-individual legal sphere which is unbreakably bound to the structure of the body politic.

     It is true that private common law does not immediately develop within the framework of the State so long as the undifferentiated societal relationships have not yet been completely conquered. The Carlovingian State did not succeed in replacing the ancient barbarian tribal laws by a common private legal order. This body politic lacked stability, and before Charlemagne's organization of the public administration could be followed by the development of a private common civil law, the republican empire collapsed.

     The Roman republic started with an elevation of the primitive ancient inter-gentilitial law of the Quiritian tribes to a civil law bound to Roman citizcnship. The lex duodecim tabularum was nothing but a description of old customary rules and was on the same primitive level as the barbarian lex Salica described under the reign of the Merovingian king CHLODOVECH.

     It was only under the influence of the ius gentium that the idea of a common private law developed. Initially this ius gentium did not exceed the boundaries of a law containing the common ingredients in the legal customs of the old Italian tribes. But gradually it emancipated itself from the primitive tribal inter-gentilitial law. In keeping with the expansion of the Roman city-State into a world-empire, the ius gentium assumed the characteristic of an integrating world-law founded on the principle of the legal equality of all free men, as legal subjects in the inter-individual legal relationships. It was this private world-law which the classical Roman juris consults connected with the Stoic conception of the ius naturale.

     The Stoic idea of natural law in principle broke through the classical Greek idea of the city-State as the perfect natural community. It proclaimed the natural freedom and equality of all men as such. It is true that the Roman ius gentium did not entirely satisfy these principles of freedom and equality, insofar as it maintained slavery; nevertheless, it constituted an inter-individual legal sphere in which every free man was equally recognized as a legal subject independent of all specific communal bonds, even independent of Roman citizenship. This was the fundamental difference between the undifferentiated Quiritian tribal law and the private common law.

     It was within this legal sphere that the undifferentiated authoritative proprietorial right, contained in the dominium ex iure Quiritium, was dissolved into a "bonitary" ownership lacking any authoritative character. Under the influence of the ius gentium the term pater familias, which in the ancient Quiritian tribal law meant the quality of domestic chief, was in its civil legal use transformed into a simple nomen iuris designating nothing but the abstract quality of a legal subject, belonging to every free man as such.

     If we consider only the fact that the ius gentium even emancipated the function of legal subject from Roman citizenship, the question may arise as to whether this common law had anything to do with the structural principle of the State. One might suppose it was much more related to the Stoic idea of a temporal community of the whole of mankind. But we have seen in an earlier context that this universalist idea did not correspond to any structure of individuality in which a temporal community can only be realized.

     To answer the question asked above, we should consider that the ius gentium could only become a real common private law by abstracting the legal relationships regulated by it from any specific non-juridical qualification. It may be that the Roman societas, as a contract of common law, took its origin in the Roman familia, later on oriented itself to occassional contractual cooperations for the purpose of economic profit or speculation, and finally to durable economically qualified undertakings. Nevertheless, its common law rules neither interfered with the internal sphere of the family, nor with that of industrial or commercial life. The same thing can be observed with respect to the other contracts regulated by the ius gentium, to the jura in rē of the latter, to the common law rules concerning family law and hereditary right, etc.

The inner nature of the Roman ius gentium.
     The common private law was only led by natural law principles of justice, the "nature of the matter", legal security, and equity, in their application to the inter-individual legal relationships of men as such. In this respect it was indeed the typical private legal correlate of the public communal law, which equally lacks a specific non-juridical qualification and is ruled by the principle of public interest. In addition, the ius gentium was a typical system of legal rules destined for the decision of law-suits by the common courts of the State. As to its formal juridical source it was praetorial law during the classical era of Roman jurisprudence. In its typical character as an integrating private common law it could not develop outside of the framework of the res publica, which was only able to realize the typical principles of the ius gentium. This realization was doubtless a matter of public interest, although the Roman lawyers emphatically established that, as to its inner nature, the common private law did not pertain to the res publica but to the interest of the individual legal subjects in their inter-individual relationships. The public interest was concerned with the private common law insofar as the res publica, by means of an impartial common jurisdiction, could prevent a complete disintegration of private law and a revival of the ancient undifferentiated legal spheres; for the latter were incompatible with the State's monopolistic organization of the sword- power and the public legal authority.

     In this respect the sharp distinction between public and private law was a vital concern of the res publica. By controlling the jurisdiction over all private law-suits, in as much as they pertained to the sphere of common private law, the State was able to prohibit any attempt on the part of private power-formations to usurp an exclusive authority over the subjects of the body politic. Since the common private law was also sharply distinguished from all internal private legal spheres of a typical non-juridical qualification, its formation was by the nature of the case to the res publica. Outside of the latter there was not any room for an inter-individual common legal sphere based upon the natural law principle of equality of all free individuals as such. As to their inner nature the non-political societal relationships nowhere corresponded to this principle. But with respect to the State this principle was the natural correlate of the principle of the public legal equality of its subjects as to their common subjection to the public authority.

     The distinction between jus civile and jus gentium was doomed to disappear, since under the influence of the praetorial law the former lost its material coherence with the archaic Roman tribal law and was almost completely accommodated to the jus gentium. In addition, Roman citizenship was to an ever increasing degree attributed to peregrines. In the classical period of Roman jurisprudence the victory of the jus gentium over the jus civile was already decided. JUSTINIAN's codification abolished the last remnants of the ancient civil law, which had long lost any practical significance.

     It is true that, as to its material content, the formation of the private common law, at least in the classical period of Roman jurisprudence, was not due to the legislator but to the Roman lawyers. In this sense it was doubtless "Juristenrecht". But the work of the jurisconsults was bound to the system of actions formed by the praetor. And it was by means of these actions that the State retained the legal control over the private common law-sphere, which apart from the res publica was doomed to disappear.

     Legal history shows that this bond between the idea of a private common law, in the sense of the jus gentium, and that of the res publica is not an exclusive peculiarity of the Roman legal system. There is not any instance to be found of a private common law, in the sense defined above, which has developed outside of the State.

     It may be that the Roman legal tradition has exercised a considerable influence upon the development of private common law in the modern continental States of Europe where the legislator has codified its rules. But in England the influence of Roman law was only small. Nevertheless here, too, a civil law-system has developed based on the essential principles of juridical equality and freedom of all individuals in their inter-personal civil legal relations. Here this development took place by means of a material transformation of the feudal law into a common private law. And it was brought about by the formative activity of judicial organs of the State, viz. the common law courts and the supplementary equity jurisdiction of the chancellor. The classical English jurists considered this common civil law as the expression of natural justice, just as the Roman lawyers had looked upon the jus gentium as the expression of the jus naturale.

     We could also point to the Scandinavian States whose common civil law has not undergone the influence of the Roman ius gentium[Roman Law in Scotland by Wm M. Gordon (pdf)] 

The radical difference between common private law and the undifferentiated popular or tribal law.
     Under the influence of the Historical School the erroneous conception arose that common civil law was nothing but the ancient folk- or tribal law, developed in a technical sense by the jurists. This view was opposed to BODIN's idea of the sovereignty of the legislator with respect to the formation of civil law. The truth is that there is a radical difference in nature between primitive folk- law and the highly differentiated common private law; the latter could only develop after the material destruction of the undifferentiated primitive society of which the popular or tribal law was a juridical expression. And this destruction was due to the rise of the State as a real res publica.

     Irrespective of the question as to whether the common private law has been codified by the legislator or has been preponderantly formed by the courts of the State, it is by its inner nature a legal sphere bound to the body politic. And the original competence to its formation cannot belong to any other organized community but the State. By means of this common private law the body politic can bind in an enkaptical way any specific (non-juridically qualified) private law to the principles of inter-individual justice, legal security and equity. But the internal spheres of these specific kinds of private law, qualified by the non-juridical leading function of the societal relationships to which they belong, remain exempt from the competence of the State. In the introduction to the general theory of the enkaptic structural interlacements we shall show that this thesis is not an arbitrary assumption due to a subjective political conviction. It will appear that it is rather founded in the structural conditions of every differentiated human society, which cannot be disregarded with impunity.

The State as an instrument used by the ruling class in human society to oppress the other classes. The depreciation of the classical idea of public interest and the civil legal principles of freedom and equality in positivistic sociology.
     That the classical conception of the private common law was dependent on the classical idea of the State as a res publica, is also indicated by the fact that a denial of the latter was always accompanied by a denial of the former.

     The Humanist natural law doctrine of the XVIIth century, insofar as it was oriented to the Roman legal tradition, absolutized the State's common private and public legal sphere. Starting from BODIN's concept of sovereignty, the adherents of this doctrine strove after a new legal order in which no law should be recognized that was not to be subsumed under one of these two legal orbits. The result was that this view of law lost contact with social reality. As soon as it is forgotten that the civil legal principles of freedom and equality make sense only in that relatively small sector of the private legal relationships which lacks a specific non-juridical qualification, these principles seem to be nothing but the result of metaphysical speculation. And as soon as it is forgotten that the principle of public interest has a typical juridical qualification bound to the inner structure of the State institution, it seems to be nothing but a mask for the interests of a ruling social class.

     This may appear from the view of the French founders of positivistic sociology. Radically breaking with the natural law doctrine, they at the same time abandoned both the classical conception of the State as a res publica and the classical conception of the ius gentium. How did they arrive at this negative conclusion?

     We have seen that the classical Greek and Roman view of the res publica identified the latter with the whole of human society, as it presents itself within the territorial boundaries of the State. This was the reason why all sociological problems were treated in the framework of political theory. This tradition was continued in the political works of BODIN and MONTESQUIEU.

     It was the liberal economical theory which, allied with the Lockean natural law doctrine, broke with this traditional conception, and made a sharp distinction between the State and the non- political civil society. The latter was exclusively considered from the economical viewpoint as a system of free market relations. But its foundation was the private civil property, whose organized maintenance and protection was viewed as the chief aim of the political association of individuals. The State should not interfere with this "civil society", unless to prevent the formation of monopolist market positions, which disturb the natural operation of economic laws.

     It was this "civil society" which drew the special attention of ST. SIMON and AUGUSTE COMTE. But they fully realized that the economical viewpoint embraces only an abstract aspect of human society. The latter does not only display economically qualified relationships but also such of a so-called "ideal" character, as science and philosophy, the fine arts, "religious" communities, etc., and its foundation is the family. What is the place of the political organization in this society as a whole? This was the first question that intrigued the French founders of positivist sociology.

     ST. SIMON was struck by the fact that since the beginning of the French revolution until 1815, France had been provided with ten different constitutions, whereas society cannot change so rapidly. From this he concluded that the constitution, which regulates the political form of government, cannot have the essential and central position in human society assumed by the natural law doctrine. In his opinion the real political changes are much rather dependent on the economical factors in "civil society", which are the real foundation of the political relation of authority and subordination, and on a change of the ideas, to which perhaps ST. SIMON (and in any case COMTE) ascribed a leading and integrating role in human society.

     This meant a complete reversion of the classical view about the relation between the State and human society. According to ST. SIMON and COMTE, the body politic is only a secondary product of "civil society" in its economically qualified relationships. The "leading ideas" of societal life are by no means the natural law ideas of the classical and modern political theories, which had no inner coherence with the factual condition of society. The latter does not exhibit that natural freedom and equality of all men which the speculative jurists supposed to lie at the foundation of the civil legal order. Nor can there be any truth in the classical conception of the State, with its military foundation, as an institution of the public interest. The truth is that civil property gives rise to class differences and class contrasts and that political authority always belongs to the ruling class.

     In order to give politics a scientific foundation, it was deemed necessary to extend the natural scientific method (so successfully applied by GALILEO and NEWTON to the natural phenomena), also to the investigation of the societal relationships. The latter should, therefore, be taken in their rude factuality, apart from any normative viewpoint. Only by tracing the general natural laws to which society is subject, both in its relatively static condition and in its dynamical process, can sociology provide politics with a scientific basis. In itself this was completely in keeping with the science-ideal of the Enlightenment in the so-called empiricistic trend.

     But the new sociology (this name was introduced by COMTE) intended to synthesize the natural scientific method with the universalist historical mode of thought of the Restoration. Society should be viewed as an organic whole, all of whose parts are interrelated, in contradistinction to the individualistic conception of societal relationships. According to COMTE, the historical method is the specific sociological method; but it is not to be conceived in the irrationalist sense of Romanticism. It is much rather the highest specification of the general natural-scientific mode of thought. Its aim is the discovery of the general empirical law of societal development. And this law was supposed to be that of the three stages, viewed as a law of continuous social progress. From a military type ruled by "theological" ideas, human society proceeds to an industrial type whose truly leading ideas will be developed by positivist sociology. The intermediate stage is that of the dissolution of the theological ideas by metaphysical concepts which lack any coherence with the beginning industrial development and its intrinsically positivist mind. As during this metaphysical stage society is deprived of integrating leading ideas, there arise revolutionary tensions culminating in the bloody French revolution.

     According to COMTE, States arise during the theological stage when the theological ideas have assumed a polytheistic character. They display a strongly organized military type. Especially the Roman State was an organization of conquerors. The prisoners of war are no longer killed since the economical interest of the conquerors is better served by making them slaves. Thus the legal order of the military State sanctions the distinction between rulers and slaves, which is also the foundation of the economic process of production. The relative significance of the military State is that it accustoms its subjects to discipline and division of labour.

     Christian monotheism brought about the medieval separation between the priestly and the secular power [according to COMTE], which in classical Greco-Roman antiquity had been united. So the spiritual power of Christianity could penetrate the whole of medieval society. It restricted war to a defensive function, whose social organisational form was the rule of the knight over the domain he could protect, i.e. feudalism. At the same time the spirit of Christianity succeeded in bringing about a gradual transformation of slavery into a colonate, and finally its influence led to the complete abolition of the latter in the medieval towns.

      The personal freedom guaranteed by the towns gave rise to industrialism, i.e. a system of free production of commodities, which in the metaphysical stage initially developed independently of and in opposition to the military State, until since the latter part of the 17th century the latter begins to favour industry as well as the fine arts and science. The condition of society during this metaphysical period is "inorganic", for lack of a central spiritual power and truly integrating leading ideas. It is, however, the positivistic stage which will bring about a new organic condition of society. Positivistic philosophy will become the new spiritual power which will lead society by its integrating ideas. The political power will lose its military character and be transferred to the industrial entrepreneurs. ST. SIMON had already predicted that in this third stage of societal development politics would completely turn into economics: government, i.e.the rule over men, will be replaced by an "administration of the common interests", i.e. a conscious direction of the economic process of production according to an organisational plan (1). This is to say that the State in its proper sense will disappear.

     But together with the State the civil legal order, as a private common law, will lose its proper meaning. COMTE emphatically argues that positivistic philosophy will introduce moral principles into the relations between labourers and employers which have until now been lacking. Social duties will take precedence of private rights (2). Though COMTE rejects communism, he conceives private property exclusively as a social function bound to the aim of an organized and directed economic production (3). In the positivistic stage the capitalists will consider themselves exclusively as administrators of the social capital (4). The political organization corresponding to the industrial type of society in the positivistic stage will be no longer a national State but a universal European political community (5), whose "political" character will gradually be replaced by a moral bond of solidarity (6)
(1) Oeuvres de St. Simon et d'Enfantin (Paris, 1865-1876). Vol. XXI 
(2) Cours de phil. pos. (3th ed. E. Littré, Paris 1869) t. VI pp. 268 ff., p. 151; Vol. XXXIX pp. 129 ff., 136 ff., 143, 154, 511, 515, 520, 522. 
(3) Discours préliminaire, p. 147. 
(4) Cours VI, p. 511. 
(5) Cours V, p. 446; VI, p. 169. 
(6) ib. V, pp. 304 ff.; VI, p. 446. 
     There is not any room in the future industrial society for a civil law order in its classical sense, because there is no room for the State with its intrinsically public legal relation between government and subjects. The disappearance of the latter necessarily implies that of the former.

The Marxian view of the State and of civil law.
     From a dialectical historic-materialist standpoint orthodox Marxism arrived at the same conclusion. The State, viewed as an instrument of the struggle between the classes, will disappear in the future communistic phase of social development, when all class-distinctions have been abolished. Society will arrive at this ultimate condition after a transitional phase of socialism in which, by means of the power apparatus of the body politic, the united world-proletariat will destroy the capitalist class and enforce the socialization of the means of production. And the expiration of the State will imply the expiration of the legal order of the body politic, both of its public law order and of its private civil law, which are nothing but the precipitation of the economic class-interests of the bourgeoisie.

     MARX was completely aware of the essential role which the idea of the "public interest" plays in the classical conception of the State. He was strongly influenced by Hegelian philosophy whose dialectical-idealist view of the relation between the "civil society" and the State he only reversed in a so-called historic-materialist sense. In his Philosophy of History, HEGEL had already shown a deep insight into the inner tensions of "civil society" in its economically qualified relationships.

     In this society the antithesis between the particular economic interests of the classes cannot be reconciled into an ultimate synthesis. It is only the State, as the highest revelation of the "objective spirit", in which all particular interests can be integrated into the real communal interest of the societal whole as "ethical substance".

     In MARX the State, in the sense of res publica, becomes an ideological supra-structure of the only real, economically qualified "society". In his work on Historical Materialism he parallels the State with religion. The latter devises a kingdom of heaven to escape from the misery of earthly life. Similarly the State, as an institution of the public interest, is an ideological escape from "civil society" torn by its class struggle (7).
(7) Der Historische Materialismus I, p. 244. (Die Frühschriften hrg. von S. Landshut und J. P. Maijer, Leipzig 1932) : Religiös sind die Glieder des politischen Staates durch den Dualismus zwischen dem Leben der bürgerlichen Gesellschaft und dem politischen Leben; religiös indem der Mensch sich zu dem seiner wirklichen Individualität jenseitigen Staatsleben als seinem wahren Leben verhält, religiös, insofern die Religion hier der Geist der bürgerlichen Gesellschaft, der Ausdruck der Trennung und der Entfernung des Menschen vom Menschen ist.'
     ENGELS argues that when in primitive society a conflict between classes presents itself for the first time, it becomes necessary to separate a sphere of the general interest, distinguished from that of the particular concerns. This separate sphere is the State. But since in the economic struggle of the classes the idea of a common interest is illusory, the State is necessarily an ideological whole. Seemingly concerned with assuring equal rights to its subjects, it can in fact only be serviceable to the particular interests of the ruling class (cf F. ENGELS, Ludwig Feuerbach, Stuttgart 1903, p. 51).

     It is true that neither MARX nor ENGELS have denied that the State, as an ideological supra- structure, can to some degree influence the historical-economic process of society. Dialectical Historical Materialism does not reduce the State to a mechanical product of the economically qualified societal relationships. It leaves some scope to ideological factors. But this does not detract from the Marxian view that the State, as a res publica, and its civil legal order, with its principles of freedom and equality, are mere ideologies. The real social infra-structure of the latter is nothing but an organization of coercive power serviceable to the ruling class and the private property of the bourgeoisie. From this historic-materialistic viewpoint ENGELS, too, announced the inevitable extinction of the State in the communist society of the future: 'The management of things and the direction of the processes of production will replace the government of men. The State will not be abolished, but it will die out' [F. ENGELS, Herrn Eugen Dühring's Umwälzung der Wissenschaft (1878), p. 302/3: 'An die Stelle der Regierung über Personen tritt die Verwaltung von Sachen und die Leitung von Produktionsprozessen. Der Staat wird nicht "abgeschafft", er stirbt ab'.]

     That according to the orthodox Marxian view the disappearance of the body politic necessarily implies the disappearance of any civil legal order cannot be doubted. Civil law was generally considered to be unbreakably bound to the capitalistic system of production and the economic interests of the bourgeoisie. It was based on private property. And Marxism completely accepted the doctrine of LOCKE that the State was founded for the purpose of an organized protection of this "innate human right" (8).
(8) BEBEL, Die Frau and der Sozialismus, p. 340. Here it is argued that the State only came into existence with the rise of private property and its concomitant, the contrast beween social classes. The State is the organization and power for the protection and maintenance of private property ("das Eigenthum schützende und aufrecht erhaltende Organisation und Gewalt"). When distinctions of class and relations of power have vanished, the State will disappear as a matter of course. 
     LOCKE ascribed to this right such a central position that he even subsumed under it the other innate rights to freedom and life. In his earlier period ROUSSEAU, too, defended the opinion that the body politic was only founded for the sake of protecting private property, although his appreciation of the latter was quite different from LOCKE's. In his Discourse on Inequality (1754), he argued that the right of property arises from a sanctioning of the crime of forceful seizure, and that therefore the State is the source of the increasing inequality of men and of the class-contest between the poor and the rich. This thesis reappeared in PROUDHON's initial qualification of property as "theft". It was due to the liberalist economic theory that the common private legal order of the State was considered to be unbreakably bound to the economically qualified relationships of civil society. This meant a complete denaturation of this legal sphere, which, as such, appeared to be characterized by its very lack of a specific non-juridical qualification.

     And the French, Dutch and other codes of civil law had indeed initially deviated from the essential legal principles of this private common law by an extremely poor regulation of the labour contract which gave the employers a privileged position and sanctioned the economic exploitation of the labourers.

     No wonder, therefore, that Marxian sociology considered the private and the public legal sphere of the State as an ideological supra-structure of the economically qualified infra-structure of "civil society".

(Herman Dooyeweerd, A New Critique of Theoretical Thought, Vol 3, pp 446-458)

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