mercredi 18 novembre 2015

(5) Dooyeweerd: Structural Principle of the State

by Herman Dooyeweerd
     If the State, as a differentiated societal institution, really has a typical historical foundation, its historical "form" as such must play a special foundational role in its radical type.

     Naturally "form" is to be understood here in an internal structural-typical sense, not in the sense of a variable, only more or less durable result of human formation. In our discussion of the "social forms" we have seen that the latter, as forms of realization of the societal structural principles, are necessarily of a phenotypical character and are real nodal points of enkaptic interlacements. In the present context, however, we consider the typical internal historical form of the State, and such only in its pre-positive, internal structural function, as the foundational structural aspect of the State's radical type. As such it does not have any factual duration but is a structural condition of any possible body politic, irrespective of its variable societal form. A typically historically founded community like the State implies such a typical historical form as its internal structural basis. And this same statement must be valid for all radical types of historically founded communities. This explains the special importance of "organization" as the form of their unity of will and action. Their internal unity in multiplicity is not typically founded in a pre-logical aspect of reality. Therefore their structural principle requires an historical organization, a formation, as the original foundation of the internal unity of the societal relationship.

     For this reason it is incorrect to conceive "organization" as a "universal property" of all temporal communities. In a family we have also discovered the essential structure of a community. But the latter here lacks a form of organization as its typical foundation. The relation between parents and children is that of the bearers of authority to those who are subjected to this authoritative office. This relation is "founded in nature" and as such is not in need of organization.

     In itself the concept "organization" is not at all a real structural concept of individuality. In HELLER it becomes a vague, undefined, "general concept", a "genus proximum" [closest group] in the traditional sense. Before HELLER. it had been deprived of all internal structural meaning in PLENGE's theory of organization (1), which HELLER himself admitted to be "much too general" ("all zu allgemein"). 
(1) Cf. PLENGE'S book Drei Vorlesungen über Organisationslehre (1919) 
Organization and Organism.
     The origin of the term in its prevailing, structurally undefined sense betrays a certain polemical commitment in the conflict between two tendencies in the Humanistic theories of human communities. For this word assumed a certain polemical connotation in its contrast with the term "organism", by means of which the romantic organological philosophy of human society had signified its peculiar irrationalistic metaphysical conception of community (Cf. WALDECKER, Allgemeine Staatslehre, 1927, p. 86).

     In the second part of his Naturrecht (1798) FICHTE on purpose replaced the Schellingian term "organism" by "organization". Thus he opposed the entire organological view of the State as a supra-individual being which historically develops from a natural community after the pattern of the growth of a natural organism (naturwüchsig), in contradistinction to all revolutionary artificial work.

    After this, under the influence of MARX, the concept organization was taken in the sense of an artificial, so-called "mechanistic" social whole. This was a conception which in the nature of the case could not contribute anything to clarifying our insight into the structure of the organized societal relationships. Nevertheless, the sharp distinction between "organization" and "organism" was a gain, insofar as the fundamental difference was realized between the so-called "natural" and the historically founded communities.

     For even GIERKE conceived all organized communities indiscriminately as "personal spiritual organisms". Under the influence of SCHELLING's organology he wrote: 'The individual State is not the free creation of individual men but the necessary product of the social powers working in the individuals. Originally States arise and grow without any cooperation of a conscious creative will, as a natural product of the unconscious social impulse' [Die Grundbegriffe des Staatsrechts, p. 97: Der einzelne Staat ist keine freie Schöpfung des Individuums, sondern das notwendige Produkt der in den Individuen sich bethätigenden gesellschaftlichen Kräfte. Ursprünglich werden und wachsen die Staaten ohne jede Mitwirkung eines bewusst schaffenden Willens, ein naturwüchsiges Erzeugnis des unbewussten(!) Gesellschaftstriebes']

Organization and ordering.
     In "organization" the present-day positivistic sociology generally seeks the unifying principle of an organized community. This concept is fairly generally identified with that of "social ordering" by the positivistic tendencies. They mean a certain regularity in social behaviour brought about by particular psychical representations of convention or norms. Jurists preferably understand the term in a functional juridical sense (2)
(2) Cf. among many others AFFOLTER Arch. f. öffentl. R. 20, 374 ff., CARREDE MALBERG, Contribution a la théorie génerale de l'Etat II nr. 373, KELSEN, Allgemeine Staatslehre (1925) p. 268; H. J. WOLFF, Organschaft und Juristische Person Vol. I, Juristische Person und Staatsperson (1933) pp.164 ff. 
     There is a necessary correspondence between this functional psychological or juridical conception of "organization" and the individualistic and naturalist view of reality which is considered to be the only empirical basis of the supposedly fictitious unity of an organized community.

     HELLER considers "organization" to be the real structural unity of the State and in principle rejects the individualistic view of societal relations. It is therefore understandable that he sharply opposes the identification of organization and ordering. Starting from the socio-psychological concept of "ordering", as the factual regularity of social behaviour (3), he observes that in this sense every human societal relationship is "ordered". 
(3) Allgemeine Staatslehre (1934) p. 86: 'Sowohl die bloss tatsächlich regelmässigen wie die auch regelgeforderten" (i.e. those that have been caused by the feeling or the representation of what ought to be) "Regelmässigkeiten des gesellschaftlichen Verhaltens fassen wir also zusammen unter dem Begriff der gesellschaftlichen Ordnung". [Both the merely factual regularity in social behaviour and the regularities which are demanded by norms we include in the concept of social ordering.]
     But such an "ordering" in itself implies no more than the possibility of "unified" ("einheitliche") collective cooperation. 'However, from ordering to organization, from the unity of social behaviour to the comparative durable unity of action it is still a far cry' [Op, cit. p. 88: 'Von der Ordnung zur Organisation, von der Einheitlichkeit des gesellschaftlichen Verhaltens bis zur relativ dauernden Einheit der Aktion ist aber noch ein grosser Schritt zu tun'.]

     Organization is a collective unity of action to him and is only constituted by the "category of collective ability to decide and to act" ("Kategorie der kollektiven Entscheidungs- und Aktionsfähigkeit"). A unity of collective activity in the multiplicity of individual centres of activity is only possible when the actions of the many have been caused to cooperate by the "organ" (or "the organs") of the organization according to a conscious, carefully considered plan. Every organization, therefore, needs at least one "organ" and when it has assumed certain proportions it also requires a rationally formed "ordering".

     On account of its members and organs cooperating according to an "ordering" and arriving at a "unitary result", the real unity of the organization is brought about as the "unity of action" ("Wirkungseinheit"Op. cit. p. 231).

The antithesis between "organization" and "organism" in SIEGFRIED MARCK and FR. DARMSTAEDTER.
     Of late the concept "organization" has assumed a special meaning in connection with TÖNNIES' distinction beween "Gesellschaft" and "Gemeinschaft" (cf. Vol. III pp. 184 ff). In this connection "organization" is deemed to be characteristic of the associations formed by "Kürwille" (arbitrary volition), whereas a "Gemeinschaft" is considered as a social "organism", in which a "Wesenswille" (natural volition) reveals itself. An organization is characterized by its rational aims, which are to be realized by organizational cooperation ("Zweckrationalität" in MAX WEBER's sense). An organism, on the other hand, is characterized by the irrational consciousness of a member's having grown into the whole (4). 
(4) Cf. SIEGRIED MARCK, Substanzbegriff und Funktionsbegriff in der Rechtsphil. (Tübingen 1925, p. 99 ff.). More or less in the same sense: STANISLAUS DNISTRYANSKI, Zur Grundlegung des modernen Privatrechts in Jherings Jahrbücher f. d. Dogmatik des bürgerl. Rechts, Bnd. 43, Jena 1928 p. 1 ff.
     FR. DARMSTAEDTER gives a peculiar turn to this modern conception by relating the contrast between "organization" and "organism" to KANT's distinction between autonomy and heteronomy. He says: 'An individual person joins an organization as something existing outside of himself, as an apparatus or an heteronomous mechanism imposed on him from outside, laying hold of the individual by means of duties imposed on him from outside and secured by force. An organism, on the other hand, has grown in the individual himself. It confronts him as a duty from outside only because he accepts it autonomically, because he knows he is a member of the organism, because he consciously becomes integrated into the organism' [Die Grenzen der Wirksamkeit des Rechtsstaates, Heidelberg, 1930, pp. 139 ff.: 'In die Organisation fügt sich das Individuum ein als in einen ausserhalb seiner selbst vorhandenen, von aussen her ihm heteronom aufgelegten Apparat oder Mechanismus, der das Individuum in Form von äusserlich auferlegten, durch Zwang gesicherten Pflichten ergreift. Der Organismus dagegen ist gleichermassen im Individuum selbst gewachsen, er tritt dem Individuum nur darum von aussen als Pflicht entgegen, weil dieses ihn autonom billigt, weil es sich als Glied des Organismus weiss, weil es sich wissend dem Organismus eingliedert'.]

     This distinction is then applied to the contrast between the law-State and the power-State. The former is considered to be preponderantly supported by "the willingness of the individual to be integrated into the whole" whereby it is characterized as an organism, whereas the "power-State" is nothing but a "mechanical organization". This conception is very characteristic of the lack of insight into the internal structure of the State. It again rests on the fallacious way in which the problem of the relation between State and law has been posited. The State is considered as a self-contained "organization of power" and dialectically brought into an external relation with an individualistically conceived legal order. This view has very little to do with TÖNNIES' conception of a "Gemeinschaft" since it has been inspired by a liberalistic idea of liberty.

     DARMSTAEDTER considers both State and law to be a piece of "natural reality" which must be related to the "values" regulation of a community and governmental power, in order to become the "cultural objects(!) State and law". This view is oriented to the South Western German school of neo-Kantians (WINDELBAND, RICKERT, LASK). The "natural reality" that State and law are supposed to have in common is that they are "a multitude of people"(!): 'This multitude of people is the only available reality for the State as well as for law, the total available reality to which the appropriate moment of value can be attached' [Op. cit. p. 119: 'Diese Menschenmenge ist sowohl für das Recht wie für den Staat die einzige verfügbare Wirklichkeit, die gesamte, zu Gebote stehende Wirklichkeit, an welche Sich das ihnen zugehörende Wertmoment knüpfen kann.]

     In other words, State and law only differ according to the "specific values" that can be attached to a "multitude of people" (as a "natural reality"). Law in the sense of "value" is then defined as a "regulation for a community by which certain behaviours of one individual towards another are commanded or prohibited". According to its "validity as a value" the State, on the other hand, is characterized in such a way that it brings man into relation with the original power of the supreme magistrate, who 'takes up his position outside of and beyond the human individual' [Op. cit. p. 120: "ausserhalb and jenseits der einzelnen Menschen ihre Stelle hat."].

     Thus also DARMSTAEDTER arrives at a sharp formulation of the dialectical basic antithesis operative in the entire Humanistic theory of the State, as an internal antinomy between "right and might": 'Behaviour corresponding with the axiological validity of law, and such that satisfies the axiological validity of the State, are mutually exclusive. The axiological validity of law demands from men a behaviour that excludes the axiological validity of the State, and vice versa. The value law and the value State are opposed as mutually exclusive and contradictory, as opposite values with regard to the same reality' [Op. cit. p. 121: 'Das der Wertgeltung Recht entsprechende Verhalten und das der Wertgeltung Staat genügende Verhalten schliessen derart einander aus. Die Wertgeltung Recht fordert von dem Menschen ein die Geltung des Wertes Staat ausschliessendes Verhalten und umgekehrt. Der Wert Recht und der Wert Staat stehen als gegenseitig sich ausschliessende und verneinende, als Gegenwerte an der nämlichen Wirklichkeit einander gegenüber."] Both are reconciled when the State relinquishes its claim to its own absolute value and is prepared to do duty as a "Mittelwert" (instrumental value) with regard to law as a "Selbstwert" (value in itself)'.

     I only mention this development of the concept "organization" to show how little in itself it is able to account for the internal unity of the historically founded organized communities. The functionalistic attitude is in evidence wherever this notion is handled as a levelling "general concept", apart from the internal individuality structures. HELLER's "dialectical structural idea" proved to labour under the same defect.

The relation between organization and the structural principle.
     The truth is that the word "organization" must derive all its structural determination of meaning from the individuality-structure of an organized community. This relation is reversed in the prevailing functionalistic tendencies, and the attempt is made to derive the internal unity of the State from the general concept "organization". But this levelling way of thought makes it impossible to gain an insight into the internal structural principle of the body politic.

     An organization of power as the foundational historical form of a radical type of communal structures only acquires its internal determination from its structural coherence with the typical leading function. For this reason we must emphatically reject the view that the internal structure of an organization can be conceived according to one and the same functional or dialectical "specific" schema for all types of organized communities. It is immaterial whether this schema is functional- juridical, or socio-psychological or a dialectical synthesis of these two. The internal organization of a Church is not merely specifically but radically different from that of a State or that of a modern industrial enterprise. The insight into the internal structural principles is made impossible beforehand, if one tries to approach e.g., the "Church-organization" from a functional juridical, or a psycho-sociological viewpoint, or from HELLER's dialectical point of view.

     If "organization" is really related to the internal structure of an historically founded community, it can only be seemingly a genus proximum. As a "general concept" which is supposed to refer to a genus proximum it is nothing but a multivocal word. When in our preliminary distinctions we introduced the term "organized communities", we did not use it in this undefined sense. Rather we intended to indicate by it only a transcendental difference between the natural and the historically founded communities as to their typical structural foundation, a difference whose transcendental significance as a "social category" will be explained later on. But since the term implies nothing with respect to the typical qualification of the organized communities, it can never signify an ultimate genus of the latter,which indeed is not to be found in the structural temporal horizon of our experience. For there are different (secondary) radical types of such communities notwithstanding the fact that all of them prove to be typically founded in the historical aspect. And we have seen that the radical types are the ultimate genera of the structures of individuality.

     In order to find the radical type of the State, the obvious method is for us to concentrate on those two functions in the structure of the body politic whose mutual relation proved to be the dialectical basic problem in the theories rooted in the immanence-standpoint. We cannot possibly believe that in this dialectical basic problem the historical function of power and the juridical function would have been so constantly emphasized, if they did not really have the meaning of radical typical functions of the State-structure. And this supposition appears to be confirmed by the empirical data concerning the realization of the latter.

The empirical data concerning the State's character.
     The radical typical and geno-typical structural principle of the body politic cannot be traced apart from its realization in the development of human society. In this respect we must establish that a real State-institution does not appear before the destruction of the political power concentrated in the primitive undifferentiated tribal and gentilitial organizations. There is a radical difference between the latter and a real body politic appearing from the undeniable fact that they are incompatible with one another. Wherever a real State arose, its first concern was the destruction of the tribal and gentilitial political power or, if the latter had already disappeared, the struggle against the undifferentiated political power-formations in which authoritative, and private proprietary relations were mixed with each other. Irrespective of its particular governmental form, the State- institution has always presented itself as a res publica, an institution of the public interest, in which political authority is considered a public office, not a private property.

     In this respect there appears to be a fundamental and radical difference between a real body politic, and the ancient Asiatic empires, the Merovingian kingdom and the medieval feudal kingdoms, which lacked the republican character.

     It is extremely confusing that the term republic is used to indicate a non-monarchical form of government. In common speech it is unavoidable that the same words have very different meanings But in the general theory of the State this is indefensible. The erroneous opposition between republics and monarchies is here only caused by the fact that the rise of a real State- institution in Greece and Rome occurred in a non-monarchical form and our political terminology is of a Greco-Roman origin. In addition, the undifferentiated conception of political authority, as the personal property of the rulers, mostly maintained itself in monarchies. But these historical facts cannot justify a scientific use of the term republic in a sense which has nothing to do with its proper meaning. A real State with a monarchical form of government is by nature a monarchical republic. A kingdom like the Merovingian empire which was nothing but a res regia lacks the character of a real State-institution. The historicistic view, which levels out these radical differences and speaks of gentilitial, tribal and feudal "States", may not be called "empirical" since it ignores undeniable empirical states of affairs in order to carry through its historicist prejudice.

     Even from a logical point of view this use of the concept State is indefensible since it is contradictory to subsume under one and the same notion characteristics which exclude one another in an analytical sense. It is true that the State belongs to a particular radical type of societal relationships which may also include organized communities of a different geno-type. But in this case the term State may not be applied to this radical type but only to a specific geno-type of the former.

     The adherents of MAX WEBER's ideal-typical method will readily agree that their ideal-typical concept of the State is only applicable to the modern bodies politic. But this by no means implies an abandonment of the historicist prejudice concerning the changeable character of the State's inner nature. The geno-type State cannot be defined from an historical point of view only, since it is a real structure of individuality, which, as such, embraces the integral horizon of modal experiential aspects.

(Herman Dooyeweerd, A New Critique of Theoretical Thought, Vol 3, pp 404-413)

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