mercredi 18 novembre 2015

(11) Dooyeweerd: Structural Principle of the State

by Herman Dooyeweerd
The dispute about the possibility of a socialist civil law in the Bolshevist legal theory.
     In the Bolshevist legal literature the question has been amply discussed as to whether civil and public law is in the nature of the case of a bourgeois character, or if a socialist civil and public law is possible. In truth this discussion concerned law as such because law and State-law were identified. The question had become acute since the N.E.P., which temporarily again allowed private commerce, had given rise to the civil law code of 1923 and other codes. The older Bolshevist legal school denied the possibility of a really socialist law. Its most prominent representative, PASJOEKANIS, had emphatically argued that law, and especially civil and penal law, is unbreakably bound to commodity exchange from which it derives its determining principle of equivalency. This implied that the transition from the equivalent distribution (everybody receives the equivalent of his labour) to the communist distribution (everybody receives what he needs) necessarily leads to the expiration of law.

     The State arises when the class-organization of power embraces a market community of sufficient extent. As protector of the exchange relations it becomes public power. State and law are consequently forms of "civil society". The proletariat is urged to use them as long as there is not yet one single planned economy. As long as there exist market-relations between the State industries, civil law and public law cannot disappear. But they can never be transformed into a socialist law. The technical rules for the coordination of the Soviet-economy which will replace them are sometimes called "economic law". But when they lose any public coercive character it makes no sense to retain this name. This view of PASJOEKANIS' was indeed in accordance with the "Leading Principles" of the Penal Law of the R.S.F.S.R. of 1919, which emphatically declared that law, as a function of the State, will in the last instance be destroyed by the proletariat.

     Nevertheless, the conception of this prominent Soviet-jurist and his adherents was fundamentally rejected in the standard-work The Law of the Soviet State (1938), written under the guidance of WYSJINSKIJ, and apparently inspired by STALIN's policy of intensification of the Soviet State and its law. WYSJINSKIJ argues that all Soviet law is ruled by the same socialist principle, and that it is perfidious to divide it into a bourgeois sector of civil law and a socialist sector of economic ordering law. The civil law which protects the property of the toiling labourers is as much socialist as the economic law. This meant a decisive turning point in the bolshevist theory of civil law, and the adherents of the old theory were urged to revoke their theses (cf. the interesting thesis of G. KUIJPERS, De Russische Problematiek in het Sowjet-Staatsbeleid (1954), pp. 135 ff).

The Soviet civil code of 1923 and its ruling principle. The influence of DUGUIT.
     This dispute is very interesting from the viewpoint of the inner nature of civil law and its intrinsical relation to the State as res publica.

     The first article of the civil code of 1923 contains the fundamental principle which rules this Soviet code. It establishes that civil rights are protected by the State insofar as they are exercized in conformity to the socio-economic aim for which they have been granted by society. This introductory article betrays the indirect influence of the famous French jurist, LEON DUGUIT, whose sociological theory of law and of the State was strongly dependent on EMILE DURKHEIM's positivist view of social development explained in his work De la Division du Travail Social.

     DUGUIT vehemently attacked both the classical conception of the sovereign State and the "individualistic" classical idea of civil law as a private common law founded on the natural legal principles of the freedom and equality of men. In keeping with SAINT SIMON and COMTE, he denies the human rights of the natural law doctrine. The entire idea of subjective rights is, according to him, of a metaphysical origin. It should be replaced by the positivist sociological concept of "social function". There exists only "objective law" which is not the creation of the State, but has its real origin in the laws of solidarity which rule human society.

     DURKHEIM was of the opinion that in primitive societies this solidarity is of a mechanical character and reveals itself as a solidarité par similitude, i.e. a uniform pattern of socio-psychical feelings, representations and social behaviour urging itself upon the individuals by the mechanical pressure of the "collective consciousness". In differentiated societies, on the other hand, this solidarity assumes an "organic" character as a solidarity caused by division of labour ("solidarité par division du travail"). The "solidarity by uniformity" finds expression in a so-called "segmentary" pattern of societal organization whose articulation displays similar parts. The "solidarity by division of labour" gives rise to an "organic" pattern of differentiated societal organization according to different industrial and occupational syndicates, each of which fulfils a particular social task or function. Whereas the legal order of a primitive society displays a preponderantly penal type, that of a differentiated society assumes a preponderantly contractual and restitutional type. The process of social development is realized along lines of differentiation. The territorial division of the State is nothing but a residue of the primitive segmentary type of social organization. It will be replaced to an increasing degree by a functional division according to the different branches of socio-economic service.

     On the basis of this view of societal development which he accepts without taking over DURKHEIM's idea of a collective consciousness, DUGUIT developed his theory concerning the transformation of the State and of civil law. According to him the State is not a res publica, in the sense of an organized sovereign community endowed with a legal personality. It is nothing but a factual relation of force between stronger and weaker individuals. The former impose their will on the latter by means of mechanical coercion. As such they have no single legal authority or competence nor can they lay claim to obedience in a non native sense. Rulers and subjects are equally subject to the objective law, which is exclusively social law ("droit social") originating from the solidarity of societal life, independently of their will. In a society whose solidarity is dependent on division of labour this law is composed of socio-economic rules, and customs of propriety (moeurs) or "moral" norms of human behaviour. Because of their preponderant import for the maintenance of social solidarity, such rules may be elevated to the "highest" level of social norms, viz. to legal norms. It is the feeling of justice which gives them this legal normative character. This axiological feeling, though subjectively expressing the individual's autonomy, is nothing but the psychical reflex of objective laws of solidarity deserving sanction. The legislator cannot create any legal norm. He can only establish existing standards of objective law.

     Thus DUGUIT proclaims the "sovereignty of law" from a naturalistic sociological viewpoint, just as the Dutch jurist KRABBE had done from an ethico-psychological, and KELSEN from a normological point of view.

     The juridical problem of competence seemed to have been completely eliminated. If law is a spontaneous reflex of the societal relations of solidarity, it does not need human formation by competent organs. Then there can no longer be a fundamental problem concerning the mutual relation between the original spheres of competency that the traditional legal theory had eliminated by attributing sovereignty to the legislator.

     The Historical School had already taught that law is not made by men after a rational pattern of natural law but that it is an organic product of historical development, having its original source in the national mind and the people's conviction of juridical propriety. But it had restricted its romantic doctrine concerning the spontaneous growth of law to the primitive stage of folk-law ("Volksrecht"). As to the further phases of development it recognized the necessity of formative organs, viz. the jurisconsults and the legislator. The Germanist wing of this school (BESELER and GIERKE) added to this the organs of the free corporations, which form an "autonomous social law" distinct from traditional private civil law and from public law.

     In fact the conception concerning the spontaneous growth of law is a romantic or (in its positivistic turn) a naturalistic misinterpretation of the nature of legal norms. We have shown in the general theory of the modal spheres that the necessity of human formation by competent organs is already implied in the modal structure of the legal norms. And the fundamental problem concerning the mutual relation between the original spheres of competence to law making, urges itself upon a correct observation of the legal phenomena by the structural diversity displayed by any differentiated society. In his voluminous work Traité de droit constitutionel, DUGUIT was obliged to recognize the formative factor in law. He did so by distinguishing between normative and constructive legal rules: 'Legislation', so he observes, `...does not create objective law, but it is doubtless an important factor in its formation'. And the problem of the relation between the civil legal sphere and the non-civil legal sphere of industrial life reappears in its full importance when DUGUIT, in line with his program of law reformation, engages in outlining the necessary transformation of the traditional civil private law and public law, resulting from his view of the sovereignty of "social law". 

     He does so in the deceptive form of a simple description of the factual tendencies which are to be observed in the legal development since the latter half of the XIXth century. Then it appears that, notwithstanding DUGUIT's view concerning the merely metaphysical character of the classical ideas of the jus naturae et gentium and the State, there did exist an individualistic civil law and a public law, based upon the "metaphysical" principle of human rights and upon the classical idea of the State as an authoritative res publica, respectively. Then the collective contracts, the customary stipulations, and the standard agreements in industrial law are alleged to prove that the private autonomy in contractual legal intercourse, which was a basic principle of the French code civil, has been gradually transformed by the factual evolution of human society.

     Thus DUGUIT's view of the "sovereignty of law" turns out to mean nothing but the sovereignty of the typical industrial legal sphere which should replace the genuine civil legal sphere of the State. And the "transformation" of the State, which he conceives in accordance with the view of DURKHEIM, is tantamount to the abolition of the body politic in its proper sense.

     DUGUIT's idea concerning the social function of law implying the denial of subjective civil rights of men was not generally accepted by the sociologically oriented students of civil law without reserve. They realized that the abandonment of the concept of subjective right would mean a frank abandonment of civil law itself. Thus they strove after a compromise. The egoistic civil rights should be viewed as private rights granted by society on the condition of their being exercized in accordance with the socio-economic function to which they were considered to be subservient. This conception was amply elaborated by the famous French jurist LOUIS JOSSERAND in his work De l'Esprit des Lois et de leur Relativité (1924), and laid at the foundation of his theory concerning the abuse of rights (1).
(1) It is true that he accepted a small category of rights (les droits non causes) which were supposed to have no social function. But this is not relevant in this context, because this category does not pertain to real subjective rights. The same holds good as to his third category of "droits à esprit altruiste". 
     It is this conception which had already found expression in the first article of the Russian civil code of 1923 before JOSSERAND published his book. Is it compatible with the essential fundamentals of civil law as a common law? Certainly not. We have seen that the latter does not permit itself to be bound to a specific non-juridical purpose which is supposed to qualify its inner character.

     In this respect it is important to note that the Dutch Supreme Court (Hoge Raad der Nederlanden) in a constant judicial view has rejected the criterion of abuse of civil rights assumed by JOSSERAND. The negative criterion handled by this Court, according to which an abuse is present when a civil right is exercized without any reasonable interest only with the intention to hurt another person, is the only criterion compatible with the inner nature of civil law, as an inter- individual jus commune.

     The first article of the Russian civil law code indeed binds private rights to the socialistic economic politics of the State. Insofar it is really a socialist code, which has transformed civil law into a social law with a specific economic qualification. The inner nature and structure of a typical legal sphere is beyond human disposal. Meanwhile the Soviet State continues to exist (1969). It has neither been transformed into a communist society nor into a syndicalistic organization in the sense of DUGUIT. The State industries are real industrial organizations enkaptically bound by the body politic in the most narrow way, since it is the State itself which is the proprietor of the means of production and which has assumed the function of entrepreneur. But they are no more intrinsical parts of the State than the private enterprises whose existence the N.E.P. has allowed. We can only say that this State follows a totalitarian policy which has no room for civil freedom as supposed by a private common law.

     The socialist State, however, can only exist so long as it remains bound to the structural principle of every body politic, i.e. as long as it is qualified as an authoritative public legal community typically founded in a monopolistic organization of the power of the sword. A public legal order remains essential to it even when a private common law with its fundamental principles of civil freedom and equality is lacking.

     For this very reason both LENIN and STALIN fully realized that a really communistic community in the orthodox Marcian sense is incompatible with the State institution. In this future comunity, in which indeed the economical function of a planned production will replace the public legal function, in its typical leading and qualifying role, the State is necessarily doomed to disappear. When by a perfect plan of coordination of all its branches the process of economic production will have reached such a level of intensity that everybody can gratuitiously get what he needs and the bourgeois mind will be completely replaced by a real communist spirit, there will be no need at all of a coercive State apparatus.

     This is Utopia; it is alien to reality, because it does not know the real root of all evil. But it is at least a consistent Utopia.

The so-called political pluralism.
     On this point orthodox Marxism is theoretically much more distinctly alive to its consequences than "political pluralism". The latter wants to dissolve the State into a federation of mutually independent syndicates or corporations, each administrating a particular branch (function) of public services according to an economical viewpoint. These corporations are to stand up for the particular interests of their own separate services. The "political function" proper which has to weigh the interests of the whole against each other, would have to be organized separately (cf. my Crisis in de Humanistische Staatsleer, [The Struggle for a Christian Politics] p.155, and the literature quoted there). This pluralism keeps talking of a "State" (2), although in principle it wants to eliminate the structure of the latter from the internal administrative activity of the projected syndicalist federation.

     There is no awareness of the inevitable "economic monism" (3) that will result from its principles which leave no room for a real State. The opinion of the French syndicalist EDOUARD BERTH: "l'Etat est mort" (4) is the inescapable consequence for every "political pluralism" in the sense meant here.
(2) Cf. LASKI, A Grammar of Politics (1925), pp. 72 ff. This writer criticizes the political pluralism of guild-socialism. His critique is, however, not fundamental since, from his socialist point of view, he also strains the economical aspect in the structure of the body politic. He defines the State as "the body which seeks so to organize the interests of consumers that they obtain the commodities of which they are in need" (p. 69). The State is distinguished from other "associations" only by the coercive nature of its membership, and by its territorial character. Notwithstanding the addition of these specific characteristics, this view continues to seek the typical leading function of the body politic in the economical aspect. This fact appears from the argument adduced for the territorial criterion: "The interests of men as consumers are largely neighbourhood interests; they require satisfaction for the most part in a given place(!)".

(3) This term is from Prof. KUNG CHUAN HSIAO in his excellent book: Political Pluralism. A Study in Contemporary Political Theory (1927), pp. 122 ff.
(4) i.e. "The State is dead". Cf. LEON DUGUIT, Le droit social, le droit individuel et la transformation de l'Etat (Paris, 1908), p. 38/9. DUGUIT is also an adherent of "political pluralism".
The fundamental importance of our structural theory for the theory of constitutional law, the general theory of the State, and practical politics. The structural idea of the State cannot be used in a rationalistic deductive way.
     We cannot use the theoretical idea of the structural principle of the State, as it has been explained above, in a rationalistic deductive way. Neither can we do so with that of the structural principles of the other societal relationships. For in an actually existing body politic the invariable structural principle assumes a relatively variable positive shape. We can understand the positive realization of the structure of the State only in its coherence with the variable historical political situation, and never apart from its enkaptic structural interweavings.

     It is only in the latter respect that the relative truth of the view can be recognized that the body politic is always liable to the influence of class interests. But it is certainly incorrect to reduce the State to an instrument of these particular interests. The truth is that no real body politic can exist if it would indeed completely set aside its inner nature as a res publica. The famous German sociologist LORENZ VON STEIN, who was at first strongly influenced by the theory of ST. SIMON and the French socialists, realized this when he remarked later on that by its inner nature the State will always try to elevate itself above class interests. If not, it would dissolve itself into the economically qualified societal relationships of "civil society".

     The insight into its invariable structural principle is therefore fundamental both for the special sciences investigating the body politic in its different modal aspects, and for the general theory of the State; it is also of fundamental importance for practical politics.

     In my book De Crisis in de Humanistische Staatsleer [The Struggle for a Christian PoliticsI have shown that the theory of constitutional law was led astray by eliminating the structural principle of the State-institution. The introduction of the formal-juridical method into this theory was bound to result in an empty juridical scholasticism.

     A large number of fundamental problems can only be theoretically elucidated with the help of a real structural theory of the State, e.g., the problem of sovereignty; that of the juridical sense of the parliamentary system; the theory of the basic rights; the juridical conception of administrative law; the difference between administrative and civil jurisdiction, etc.

     I pointed out that the "sociological political theory", insofar as it tries to study the real life of the State with the aid of naturalistic methods, eliminates the real structure of the body politic. This "sociology of the State" is therefore no theory of the State. As to practical politics I tried to show that the influence of a wrong view of the body politic is evident in many a conception of "organic representation" and of "organic suffrage". In a separate treatise devoted to the latter subject I examined the appeal to the political position of the medieval craft-guilds as an example of "organic representation" (5).
(5) Het Vraagstuk van het organisch Kiesrecht in een nieuw Stadium. (Almanak van het studentencorps N.D.D.D. aan de Vrije Universiteit, 1935, pp. 105-122). 
     Then it appeared that any such appeal to these guilds is based on a lack of insight into their fundamentally different internal structures as industrial organizations, and as political components of a medieval town. In the latter capacity the guilds had political domination founded in military power. This fundamental structural difference was in most cases apparent in the distinction between industrial members and political members. Different categories of the latter had nothing to do with the industrial community of the craft-guilds. We shall revert to this subject.

(Herman Dooyeweerd, A New Critique of Theoretical Thought, Vol 3, pp 458-467)

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