mercredi 18 novembre 2015

(8) Dooyeweerd: Structural Principle of the State

by Herman Dooyeweerd

Above are three example aspectual schemas illustrating the supratemporal modal kernel (also called "moment" or "nucleus") along with the accompanying anticipatory and retrocipatory analogies integral to each aspect. Please use in conjunction with the chart above to help clarify role and position of each aspect.
Historical Modality: Founding Function of STATE
Juridical Modality: Leading Function of STATE
     We will now examine the typical leading function of the State's structure in its indissoluble coherence with the foundational function analyzed above [see previous posts in this series].

     At the outset we warned against identifying the leading or qualifying structural function of a thing with the purposes it is to serve. We have repeated this warning with reference to the inner structure of natural communities. Similarly, the leading or qualifying function of an organized human community should not be misinterpreted as the end or ends that human beings try to reach in this relationship by means of their organized endeavours. This warning is especially to the point in the case of the typical leading function in the structure of the State.

The theories of the "purposes of the State" bear no reference to the internal structural principle of the body politic.
     The theory of the purpose of the State is as old as political philosophy. It is burdened with the great diversity of meanings implied in the word "purpose", which is used now in a metaphysical-realistic, now in a subjectivistic-nominalistic sense, now in an absolute, then in a relative way. In immanence-philosophy the theory of the purpose of the body politic sometimes contained an a priori rational construction, serving to justify the State, and thus assumed an explicit axiological character.

     Realistic scholasticism used this theory to prove that the institutional Church is of a higher value than the State. The Humanistic doctrine of natural law and that of "Vernunftrecht", in their subjectivistic-teleological constructions of the body politic, made the latter into a mere instrument in the service of the individual or into that of a national cultural community. Then the "purpose of the State" was conceived in the sense of the classical liberal idea of the law-State (1)(LOCKE, KANT, V. HUMBOLDT) or in the eudaemonistic [ie right action is seen as that which leads to "well-being"] sense of the "welfare State" (the police-State of CHR. WOLFF and his pupil JUSTI). Or again in the idealistic sense of a culture-State (FICHTE is his last phase) (2).
(1) The term law-State is used here in the sense of the German term "Rechtsstaat", which is not to be adequately rendered by "rule of law".

(2) FICHTE defended his idea of a culture-State in his Staatslehre (1813). 
     But this teleology never had any inner relation to the real structural principle of this societal institution. From an historical standpoint the different theories of the subjective "purpose of the State" propounded in the Humanistic doctrines of natural law prove to be only the expression of a political tendency at the time of their inception. This explains why they became untenable as soon as the historical situation changed. Hence the futility of every attempt to grasp the intrinsic structural limits to the task of the State in such a teleological way.

The old liberal theory of the law-State as a theory of the purpose of the body politic.
     We shall once more consider the Humanistic theory of the law-State (3). 
(3) My view of the development of this theory has been amply elaborated in the standard work of Prof. Dr. J. P. A. MEKKES, Proeve eener critische Beschouwing der Humanistische Rechtsstaatstheorieën (Utrecht-Rotterdam, 1940), 752 pp. 
     In its first stage, viz. the classical natural-law stage (LOCKE, KANT, VON HUMBOLDT), this theory aimed at limiting the "purpose of the body politic" construed in the social contract. The State was supposed to have no other aim than the organized protection of the "innate absolute human rights" of all its citizens to freedom, property and life. It should not interfere with the non-political society which by the liberal economic theory was viewed under an exclusively economical aspect and sharply distinguished from the body politic. Thus this theory was the expression of the old-liberal programme of non-interference ("laisser faire, laisser passer"). But its starting-point was an individualist-nominalistic view of reality and could not but eliminate the structural leading function of the State-institution. "Law" itself was conceived in the individualistic natural-law sense of "innate subjective rights" and supposed to be a "purpose" lying outside of the State. In an earlier context we called LOCK's "law-State" a limited liability company continuing the "state of nature" under the protection of governmental authority (1 Vol. I, part. II, p. 318).

     In KANT's idea of the law-State, public law and civil law are materially identified. Civil law "guarantees the external 'mine' and 'thine' by means of State-laws" (Metaphysik der Sitten, 1er Teil, W.W. Grosh. Wilhelm Ernst Ausg. V, p. 425). KANT's "concept of law" (in his way of thought it should be called his normative Idea of law) is nothing but an a priori idea of civil private law, the principle of civil-legal co-existence: 'Law is the totality of the conditions under which the arbitrary will of one individual with the arbitrary will of another can be united according to a general law of freedom' [Op. cit. p. 335: "Becht ist der Inbegriff der Bedingungen, unter welchen die Willkür des Einen mit der Willkür des Andern nach einem all-gemeinen Gesetze der Freiheit zusammen vereinigt werden kann."]

     This idea was further defined by applying THOMASIUS' criterion of law as a coercive regulation, as "the possibility of a mutual universal constraint which is in agreement with everybody's freedom according to general rules" [Op. cit. p. 337: ..."die Möglichkeit eines mit jedermans Freiheit nach allgemeinen Gesetzen zusammenstimmenden durchgängigen wechseldeitigen Zwanges."]

     The classical liberalistic idea of the law-State finds its pregnant expression in KANT's pronouncement on the contents of public law: 'The latter does not contain any more or any other duties of men to one another than can be thought of in the former (i.e. in the natural state of private law); the matter of private law is exactly the same in both. The rules of the latter are therefore only concerned with the legal form of its union (constitution), with respect to which these rules must necessarily be considered as public' [Op. cit. p. 425/6: "Dieses enthält nicht mehr, oder andere Pflichten der Menschen unter sich als in jenem (i.e. in dem Zustand des Privatrechts) gedacht werden können; die Materie des Privatrechts ist eben dieselve in beiden. Die Gesetze des letzteren betreffen also nur die rechtliche Form ihres Beisammenseins (Verfassung), in Ansehung deren diese Gesetze notwendig als öffentliche gedacht werden müssen." Compare also the extremely vague definition of public law in § 43 (p. 431) op. cit.: 'Der Inbegriff der Gesetze, die einer allgemeinen Bekantmachung bedürfen um einen rechtlichen Zustand hervorzubringen, ist das öffentliche Recht. Dieses ist also ein System vom Gesetzen für ein Volk, d.i. eine Menge von Menschen, oder far eine Menge von Völkern, die im wechselseitigen Einflusse gegen einander stehend, des rechtlichen Zustandes unter einem sie vereinigenden Willen, einer Verfassung (constitutio) bedürfen, um dessen, was Rechtens ist, teilhaftig zu werden.' (The totality of the rules that require general publication in order to create a legal order, is public law. This is, therefore, a system of rules for a nation, i.e. a multitude of people, or for a multitude of nations who mutually influence each other and are in need of an organization (constitution) under one will that unites them, if they are to obtain that which is law.)]

     In the "trias politica" (op. cit. pp. 433 ff.) postulated by this idea of the State, in which according to MONTESQUIEU's prescription, the legislative, the executive, and the judiciary powers ought to be kept strictly part and equilibrated, the "executive authority" is merely an alien element ("Fremdkörper"). There is no room for an "administrative authority" with an independent positive task in this civil-law idea of the body politic. The State has become a form ("Verfassung") for private juridical life.

     The only thing in this idea of the law-State reminiscent of the internal structure of the body politic is the coercive character of the legal order. It has been conceived in an undefined "general concept" of "coercion", and is connected with the idea of freedom, as the supposed normative essence of justice, in a characteristic logicistic-dialectical way: Legal coercion is the negation of a negation of freedom (injustice), according to general rules, and according to KANT it is thus consonant with freedom.

     It is important to note that KANT thinks he must restrict this civil law idea of the law-State to the internal relations of the latter. In the external relations to other States he conceives of the body politic only as a "power", as a "potentate" (4). In KANT's definition of the State, as the "union of a multitude of people under legal rules" (5), the foundational function has been ignored, almost on purpose. He apparently derived this definition from CICERO. But even KANT's critical freedom-idealism could not carry this disregard through consistently.
(4) Metaph. der Sitten (the edition cited), p. 431. Cf. also FR. DARM-STAEDTER: Die Grenzen der Wirksamkeit des Rechtsstaates (Heidelberg,1930), p. 2. HEINRICH RICKERT's pronouncement in his Kant als Philosoph der modernen Kultur (Tübingen 1924), p. 113, that KANT would have held the view "the State is power", is to be restricted to the international relationships as long as no international jurisdiction has been instituted. Besides, KANT could only conceive of power in an empirical naturalistic sense.

(5) Metaph. d. S. (the edition cited), p. 433. 
The theory of the law-State in its second phase as the theory of the merely formal limitation of the purposes of the State. The formalistic conception of administrative jurisdiction.
     In its second phase (STAHL, OTTO BÄHR, RUDOLPH GNEIST) the theory of the law-State was not really a theory of the purpose of the body politic any longer. It assumed a formalistic character: the old liberal idea of the law-State was transformed into that of the rule of statute law. Law, in the sense of a civil legal order protecting the subjective innate rights of man, was no longer considered to be the purpose of the body politic. Instead, the idea of the law-State was now related to a public administrative legal order as a formal limit to which the magistrature would have to be bound in its administrative activities, when promoting cultural and welfare purposes. 

     This formal legal limitation was required in the interest of the legal security of the citizens. This "legal restriction" of the "executive authority" was found by subordinating the administrative organs to legislation. The statute law was to protect the citizens from administrative arbitrariness. In this sense the modern idea of the law-State was formulated by FR. JULIUS STAHL in his statement: 'The State should be a law-State... It should accurately determine the roads and boundaries of its activity as well as the free spheres of its citizens in a legal way... and it should not realize the ethical ideas any further than insofar as they belong to the legal sphere. The concept of the law-State is not that the body politic only maintains the legal order without any administrative purposes, or accords only complete protection to the rights of individuals; it does not mean the aim of the State but only the mode and character of realizing its political ends' [FR. JULIUS STAHL, Philosophie des Rechts nach geschichtlicher Ansicht (3e Aufl.) Bnd. II, I, pp. 137-138: "Der Staat soIl Rechtsstaat sein...Er soIl die Bahnen und Grenzen Seiner Wirksamkeit wie die freie Sphäre seiner Bürger in der Weise des Rechts genau bestimmen... und soIl die sittlichen Ideen von staatswegen nicht weiter verwirklichen als es der Rechtsphäre angehört. Dies ist der Begriff des Rechtsstaates, nicht etwa dass der Staat bloss die Rechtsordnung handhabe ohne administrative Zwecke, oder vollends bloss die Rechte der Einzelnen schütze, er bedeutet nicht Ziel des Staates sondern nur Art und Charakter, dieselben zu verwirklichen."]
     In itself this utterance seems to be quite acceptable. But in the context of STAHL's view of law it implied that public administrative law was depreciated to a merely formal law and opposed to (civil) material law in a dualistic way. According to STAHL the principles of material law are to be found in the Decalogue, and the subjective private rights are in principle grounded in the latter.

     It is evident that in this conception of the law-State the legal order is connected with the power of the body politic only in an externalformal way. STAHL, and all the adherents of this idea of the law-State look upon administrative law only as a formal limitation ("Schranke") within which the government can operate free of material legal principles when pursuing the "cultural and welfare purposes".

     The non-juridical "purposes of the State" are not given any internal structural delimitation, if their administrative realization is only bound to the formal limits of legislation. This formalistic conception of public law is closely connected with the equally formalistic, and essentially civil juridical view of administrative judicature, represented as a requirement of the modern constitutional State by the Hessian jurist OTTO BÄHR (6) and RUDOLPH GNEIST (7)
(6) O. BÄHR, Der Rechtsstaat, p. 134, explicitly demands that "the power of the government... in its application..., just like private rights, shall be subordinate to the law" [die Regierungsgewalt... in ihrer Betätigung...gleich den Privatrechten unter dem Rechte" stehen soll].

(7) R. GNEIST, Der Rechtsstaat
     Even at the present time it is customary to distinguish between legal questions and utility questions in the theory of administrative judicature. The merely formally conceived legal questions are subjected to the decision of the administrative judge; but the material, internal legal questions are not, because the latter are qualified as "questions of utility". This is really a consequence of the formal idea of the law-State, and shows a lack of a really structural conception of the internal law of the body politic. We shall return to this point in a later context.

     In its second phase the theory of the law-State is the expression of a political tendency that has radically broken with the old-liberal programme of political non-interference with the free (non-political) society. The "executive" is here subjected to the formal limits set by the legislature as far as the State's administrative task is concerned. This task is supposed to be the peculiar domain in which the body politic has to promote the prosperity and the "culture" of the national community.

The third phase in the development of the theory of the law-State. The uselessness of any attempt to indicate fundamental external limits to the State's task by the construction of limited subjective purposes of the body politic.
     The extreme denaturing of the idea of the law-State is seen in its third stage of development. Then it no longer purports to be a political idea of the legal delimitation of the State's task but is viewed to be nothing but a logical consequence of methodical purity in the general theory of the body politic. This conception has found expression in the theory of KELSEN and his school. In this theory State and law are identified at the expense of the entire content of both the idea of the State and that of law.

     In the logicist formalism of this school even the "dictatorial absolutist State" formally becomes a "law-State", in which the executive has only gained absolute priority over the legislature. For, according to KELSEN, every State must be "logically" conceived as "law" (cf. my De Crisis in de Hum. Staatsleer, p. 45 and KELSEN's statement quoted there). Thus this concept of the law-State also embraces the totalitarian absolutist State and thereby loses any material normative meaning.

     Indeed, even the national socialist and fascist power-States laid claim to the qualification of true or material law-States. Yet their ideology did not recognize any material juridical limits to the competence of the authority of the body politic (8).
(8) Cf. for the fascist ideology of the stato giuridico (law-State) MENZEL, pp. 73 ff., GIUSEPPE LO VERDE, Die Lehre vom Staat im neuen Italien (Berlin,1934) pp. 54 ff. and S. PANUNZIO, Allgemeine Theorie des fascistischen Staates (Berlin und Leipzig, 1934) pp. 78 ff. For the German national-socialist ideology of the law-State cf. KOELLREUTER, Deutsches Verfassungsrecht, p. 12, CARL SCHMITT, Nationalsozialismus und Rechtsstaat (J.W. 1934, 63 Jg., Heft 12/13) and G. HAVESTADT, Der Staat und die nationale Gesamtordnung (Arch. d. off. R., N.F. 27 Bnd., I Heft, 1936, pp. 76 ff.
     This fact in itself is important insofar as it shows that these political ideologies could not completely ignore the structural principle of the body politic, notwithstanding their overstraining the idea of power. For in this structural principle the juridical function has indeed the typical leading role.

     Another fact, too, is evident, viz, how little the traditional idea of the law-State was oriented to the invariable internal structure of the latter. The classical individualistic liberal idea of the body politic ignored the typical public communal law of the State in the sphere of public administration, but claimed the monopoly of being "an idea of the law-State". The same privilege was claimed by the formal idea of the law-State with its formalistic conception of public law. But we fail to see what entitled these views to such an exclusive claim. Also the Italian fascist State formally bound its organs to the prevailing legal norms and allowed for a certain administrative judicature. This State, just like the German "third Empire" (Dritte Reich), pretended to realize a material, universalistic conception of law, in contradistinction to the formalistic and individualistic legal idea.

     From the outset the old liberal theory of the law-State lacked the insight into the typical internal structure of the legal function as the leading function of the body politic. This explains why it could not really stem the rising tide of the idea of the totalitarian State. For the historical development made fresh demands on public life incompatible with the earlier political conceptions of the State's purposes.

     The attempt to curtail political absolutism by means of the construction of restricted "purposes of the State" was doomed to failure. The political ideas about the external extent of the State's task are necessarily dependent on historical development. They should not be confounded with the invariable normative structural principle of the body politic (9). 
(9) This confusion also occurs in G. JELLINEK, Allgemeine Staatslehre (3eAufl. 1919), pp. 235 ff. He posits that only such a definition which takes the State's purposes into account, can offer a well-defined criterion to distinguish the body politic from other societal structures (e.g., the Church). This thesis is closely connected with his subjectivistic individualistic conception of an organized community as a "purposive unity" (Zweckeinheit) in a socio-psychological sense. Cf. op. cit. p. 179: 'Eine Vielheit von Menschen wird für unser Bewusstsein geeinigt wenn sie durch konstante, innerlich kohärente Zwecke mit einander vereinigt sind'. ['To our consciousness a plurality of people are united when they are combined by constant, internally cohering purposes']. Therefore in his opinion the sociological theory of the State should point out 'those purposes by means of which the multiplicity of people united in the State appear to us as a unity' (op. cit. p. 234). Meanwhile JELLINEK has not succeeded in showing an inner coherence between the different political aims of the modern State so that they are to be conceived as a unity. 
     KELSEN must undeniably be credited with having detected this weak spot in the anti-absolutist theory of the restricted "purposes of the State". He opposed the introduction of "political postulates" in the general theory of the State. But his own "normological" theory resulted in the theoretical negation of both State and law.

     The question what concrete subjective purposes a body politic has to realize at different times and in different places, presupposes the internal structure of the State as such. This is the first insight to be gained if we want to grasp the internal leading function of this societal institution. A State cannot serve any "purposes" if it does not exist as such. And it can have no real existence except within the cadre of its internal structural principle determining its essential character.
The objective-metaphysical ideology of the State, and the theory of the State as an absolute "Selbstzweck" are equally objectionable.
     But this insight implies a fundamental rejection of any attempt to derive the essential nature of the State from an "objective" cosmic purpose the latter is supposed to serve. What we have remarked with respect to such a metaphysical teleological view of the institutions of marriage and family, is equally valid for the body politic. Of course, this does not imply that we reject the inquiry after an essential purpose of the State on positivistic grounds. Neither do we make any concession to HEGEL's political philosophy which rejects the idea of an essential purpose of the State because the body politic is supposed to be an absolute end in itself ("Selbstzweck"). In his view, just as in the organo-logical theory of the State of Romanticism, this societal institution is the highest revelation of the "objective Spirit", the totality of morality ("Sittlichkeit"), "the absolute unmoved end in itself", in which freedom attains to its highest rights. This final purpose has in its turn the highest claim on the individual whose highest duty is being a member of the body politic (cf. on this KARL LARENZ, Staatsphilosophie, München and Berlin,1933, p. 177).

     No Christian conception of the State can deify this institution to a self-contained "absolute end in itself", if it wants to grasp the typical meaning-structure of the body politic.

The typical leading function of the State in its indissoluble coherence with its foundational function.
     As soon as the confusing totalitarian identification of the State and the whole of human society is abandoned and the nature of the body politic as a differentiated republic is acknowledged, the tracing of its typical leading function becomes indispensable. This typical leading function as a structural qualification of the State-institution is only to be found in the juridical law-sphere.

     It is in vain to seek for another qualifying aspect. That a real body politic cannot be qualified by its territorial military power-formation must be evident as soon as we consider that, as a res publica, it is always in need of the subordination of its armed force to the civil government in order to guarantee that stability of its public legal order which is characteristic of a State. A temporary delegation of the governmental authority to a military commander has in the nature of the case an exceptional character. It is an emergency measure to which a body politic has only recourse in times of war or revolutionary disorder. But in its internal structure the monopolistic military organization is always subservient to a stable territorial public legal order, which also in international law is the ultimate criterion of the existence of a State. This order is only founded in a monopolistic organization of armed force.

     KELSEN has convincingly shown that every attempt of a naturalist or cultural-scientific sociology to gain a concept of the State apart from the normative legal viewpoint, is doomed to fail. His erroneous identification of the body politic with a system of legal norms can only be explained by the fact that the juridical aspect [or "law-sphere", "modal function", "modality" etc] has indeed a qualifying position in the structural principle of this organized community. This is precisely the difference between the State and all differentiated communities of a non-political character. It is true that the latter also have an internal legal sphere. But they are never qualified by this internal juridical function.

     A real State cannot find its qualifying function in any other than the juridical aspect, and without this leading function it would degenerate into an organized military gang of robbers, because of its very foundation in armed force.

     This is not merely a specific difference, but it distinguishes the body politic radically from the non-juridically qualified organized communities, such as a Church, an industrial community, a family, a school, a club, etc. But the State's qualifying function can only be grasped in its structural coherence with its typical foundational function. The indissoluble, typical-internal structural coherence between "right and might" in the State-relationship is first of all expressed in the structure of its authority.

     In contradistinction to this structure in all non-political communal relationships, authority in the State, according to its inner nature, is governmental authority over subjects enforced by the strong arm (cf. on this KARL LARENZ, Staatsphilosophie, München and Berlin,1933, p. 177).

     The government does not carry the sword in vain. It has been invested with the power of the sword, and as soon as the sword slips out of its hands, it is no longer a government. But according to the structure of its divine office this power is internally directed to the structural guidance by that typical legal communal function whose type of individuality is founded in this sword-control. All internal communal law of the State-institution in a structural sense is public territorial law imposing itself with governmental legal authority and maintained with the strong arm. Its sphere of competence will appear to find its internal limits in this structure itself.

     That is why GIERKE's elaborate discussion (10) of the "Obrigkeitsstaat" in contrast with the "Volksstaat", oriented to the "Germanic associational mind", is misleading, at least terminologically, and also historically
(10) The Dutch text has "overheidsgezag over onderdanen" (German: "Obrigkeitsgewalt über Untertäne"). These pregnant terms are not to be rendered by adequate English words. 
     Every true State is essentially an "Obrigkeitsstaat", according to the internal structure of its authority. But governmental authority is certainly not identical with some bureaucratic, centralistic and absolutist form of organization, excluding any active participation of popular organs in governmental affairs. MAURICE HAURIOU has rightly observed that the State-idea, which initially only influences a small elite undertaking its realization, has the natural tendency to incorporate itself in the whole of a people. What is really meant in GIERKE's contradistinction between "Obrigkeitsstaat" and "Volksstaat" is the contrast between the autocratic Roman imperium-idea and the democratic form of government. But the latter should not be brought in connection with the old Germanic and medieval Germanic associations which in their undifferentiated character were rather opposed to the State-idea.

     All the pre-legal internal modal functions of the State should be guided by and directed to the territorial public legal community qualifying the body politic. A military usurper who does not perform the typical duties of the public legal office of the government can never be an organ of the State, but remains the leader of an organized gang of robbers. But on the other hand it must be emphatically repeated that the legal organization of the body politic, in its typical authoritative character, remains indissolubly founded in the historical organization of territorial military power.

     Apart from the latter, the internal public legal order of the State cannot display that typical juridical character which distinguishes it from all kinds of private law. It would be erroneous to suppose that this internal public law order lacks an inner juridical type of individuality and is only characterized by its external connection with the coercive apparatus of military power. We shall show in the sequel that it is rather characterized by typical legal principles. It was the disregard of the latter that led to the formalistic view of administrative jurisdiction mentioned above.

     Only within the framework of its invariable structure can a real State-community be formed with an organized communal will. The "will of the State" is by no means a fictitious legal abstraction, but the real organized will of a communal whole. It is true that this will is qualified by the juridical relation between the government and its subjects, and founded in historical territorial military power. But it asserts itself in all the aspects of our social experience as an organized unity of volitional direction, realized in the organized actions of a societal whole. And it is fundamentally wrong to oppose this typical organization as a one-sided "mechanical" organization of governmental functions, to the people, as if the latter had an independent existence opposite to that of the government. After the definitive dissolution of the primitive popular and tribal organizations, no people of a differentiated cultural level exists otherwise than in a public community, by which it is indissolubly united with a government, as the bearer of authority. In the national State there does not exist a people apart from a government, and there is no government apart from a people. The people become a political unity only in the territorial organization of government and subjects. This truth must be strongly upheld against the romantic theory of the "people" as a mystic "natural organism".

     The difficult question concerning the relation between a State and a national community which is not identical with the political unity of a State's people, will demand our attention in a later context. 

(Herman Dooyeweerd, A New Critique of Theoretical Thought, Vol 3, pp 425-436)

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