mercredi 18 novembre 2015

(13) Dooyeweerd: Structural Principle of the State

by Herman Dooyeweerd
The expression of the structural principle in the juridical forms of organization of governmental authority. The typical foundation of the different constitutional forms.
     As to the expression of the structural principle in the juridical aspect of the State we have to add some remarks with respect to the typical juridical forms of the organization of governmental authority. The different constitutional forms depend on the latter. The distinction between autocracy and democracy is the most fundamental of all. These forms have a typical historical basis, and their character is determined by the manner in which the political power is organized; viz. either by the free initiative of the nation itself, which by suffrage and political representation (or eventually in a direct way) retains a continuous control over the government, or by an authority which has imposed a certain governmental form upon the people (cf. HELLER, Staatslehre (1934), p. 246). But the variable positive juridical forms of organization of governmental authority remain absolutely determined by the internal structural principle of the State. This means that, e.g., an economic form of power as such can never be the typical foundation of the juridical form of organization of a government's authority. Only in the pheno-type [variability type] of a constitution can a government's authority be typically interwoven in an enkapsis with types of authority founded in economic types of power. The insight into this state of affairs is also of fundamental importance for an enquiry into constitutional history, as well as for the theory of constitutional law, and for the general theory of the State.

    In v. HALLER'S patrimonial theory of the State, e.g., monarchy was viewed as the normal and the oldest form of political organization, which was supposed to be always exclusively founded in large-scale land-ownership (1)
(1) Cf. Restauration der Staatswissenschaft (2e Aufl.) Bnd. 3, p. 157: "Die ganze Geschichte bestätigt unwidersprechlich, was sich schon durch die blosse Vernunft beweisen lässt, dass nicht nur die Monarchien die ersten, ältesten and häufigsten Staaten waren, sondern dass die meisten Fürstentümer ursprünglich auf dem haus- oder grundherrlichen Verband oder dem sog. Patriarchat beruhen, alle anderen aber rich in der Folge nur durch dieses Verhältnis befestigen konnten". [All history confirms beyond contradiction what can already be proved by mere reason, viz. that monarchies are not only the first, the oldest and the most frequent forms of the State, but that most principalities were originally based on the domestic community or on the seignorial relationship of an estate, a so-called patriarchy. All the others could only establish themselves later on by means of this relationship.]
     This view has had a great influence on the interpretation of the facts of medieval legal history, as v. BELOW has convincingly proved. V. HALLER'S patrimonial view of the State has also penetrated into the famous work Ongeloof en Revolutie of the Dutch Christian historian and statesman GROEN VAN PRINSTERER. In his description of the patrimonial conception of a kingdom under the feudal regime, and of the foundation of the political rights of the old estates on landed property, he thought he had detected the real historical fundamentals of the "Christian- Germanic State-idea". And he opposed the latter to the classical republican idea of the body politic defended by the a priori natural law doctrine. Fortunately he abondoned this erroneous and reactionary view when he became acquainted with the writings of F. J. STAHL.

     We have already remarked that the so-called democratic form of government of a "medieval town" (2), in its later stage of development, and the dominant position often occupied in it by the craftguilds, was not typically founded in economical forms of power.
(2) Of course this terminology is not quite justified historically; we cannot really speak of "the medieval town" in a general way. But we are discussing the general phenomenon of the guild- movement and its political importance for the city governments. This revolutionary movement displays, at least in its main traits, a fairly common character and is everywhere characterized by the same anti-aristocratic tendency. 
     When these guilds acquired political power, the latter was indeed founded in their military organization; their political structure was merely enkaptically interwoven with their structure as industrial organizations. Their temporary dominating influence in the city-government was the result of political action, often of an actual revolution directed against an existing aristocratic régime, from which they extorted the control of the town. During the period of their greatest power, the Utrecht guilds acted as independent potentates, and entered into negotiations with foreign sovereigns. But the political and the industrial structures of these guilds were kept distinctly apart, notwithstanding their mutual interweavings: all the citizens of a town had to join one of the guilds, no matter what was their occupation or trade. They thus became "political members" for the sake of their political rights (cf. J. C. OVERVOORDE en J. G. CH. JOOSTING, De gilden van Utrecht tot 1528, le deel (1897) in the collection "Oud-Vaderlandsche Rechtsbronnen". An excellent description of the Italian and German medieval guild-movement is to be found in H. LENTZE, Der Kaiser und die Zunftverfassung in den Reichsstädten, 1933).

     Naturally it cannot be denied that, irrespective of the specific form of constitution, particular economically qualified classes may gain a temporary hegemony in the government of the State. In the same way the franchise may be dependent on a property qualification. But these political privileges are never of a typically economical foundation, as was erroneously assumed by ARISTOTLE when he characterized democracy as the rule of the poor. Economic types of power are never qua talis really political in character; they are at most interwoven with types of political power. The modern view of a social democracy, as it was especially propagated after the first world-war, uncritically assumed that we can apply the political forms of government to the family, the Church, the school or to an industry. But it levelled all the differences of the internal structures of human societal relationships (3).
(3) This has been vividly described by G. GUY GRAND in his book La démocratie de l'après- guerre, published after the first world-war. 
The expression of the structural principle in the aesthetic aspect of the State.
     The typical harmonious integration of the interests of nation and country, manifest in the leading public juridical function of the State's structural principle, refers back to the aesthetic function of the latter.

     In antiquity Greek political philosophy paid special attention to this aesthetic structural aspect. The idea of public justice was mostly conceived aesthetically. In PLATO's ideal State the idea of the τά έαυτού πράττέιν was aesthetical rather than juridical. According to this idea every citizen had to remain in his own social class in order to cooperate in his own sphere to the harmony of the whole.

     In the second book of his Politica ARISTOTLE requires politics to be a "symphony". It is an art, and, as such, it must not contain any dissonance and should continue in the same key which produces harmony. In the time of the Romantics the exaggeration of the aesthetic motif reappears. This aestheticist view of the body politic would never have arisen, if the structure of the body politic did not have an aesthetic aspect making disharmony possible as well.

     CALVIN has also emphatically pointed out this aesthetic structural aspect. He calls the societal relationship of the State a "well-ordered condition" and opposes it to the anarchical άταξία "confusum et dissipatum chaos". The State is a "pulcherrimus ordo", in which prevails "symmetria, proportia" (C.R. 49, 503). Anarchy is no tonly objectionable in an ethico-political sense, as disturbing the community, it is also unaesthetical, because it is offensive to our aesthetic sense (cf. BOHATEC, Calvin und das Recht, 1934, Teudingen in Westphalia,p. 64). But the State is not a work of fine art, it is not qualified by its aesthetic aspect. The typical foundation of its structure betrays its institution on account of sin. And this tragic trait is also inherent in the aesthetic aspect of the State.

(Herman Dooyeweerd, A New Critique of Theoretical Thought, Vol 3, pp 477-480)

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