THE STRUCTURAL PRINCIPLE OF
THE STATE (4)
The dialectical tension between the juridical and the sociological conception of the State. The dualistic theory of the body politic.
Since the rise of a formalistic juridical method in the science of constitutional law (the School of LABAND and GERBER, represented in the Netherlands by BUYS), the internally contradictory dualism of "right and might" also led to a dualistic theory of the State, viz. a sociological so-called "empirical", and a normative juridical theory, as they were set forth in JELLINEK's Allgemeine Staatslehre (1st ed. 1900), without any successful attempt at an internal reconciliation.
And finally it led to a fierce antagonism between these two, when the naturalistically minded sociology began to deride the "scholasticism of the jurists" and, conversely, the "normological" school of KELSEN caricaturized the efforts of the naturalistic sociologists to conceive the State in a manner different from the "purely juridical" way. Even SIEGFRIED MARCK, though oriented to LITT's dialectical sociology, frankly capitulated to this dualism. According to him, political theory as "an empirical science" (Wirklichkeitswissenschaft), as a "sociology" dealing with "the totality of the State in its empirical configuration", always remains caught in the dualism of "sollen" and "sein" ["what is" and "what ought to be"]. Only a Hegelian dialectical metaphysics would be able to develop a normative idea of the body politic which would be able to give a supposed synthesis transcending the fundamental antithesis between a juridical and a sociological conception of the State (Substanzbegriff und Funktionsbegriff in der Rechtsphilosophie, 1925, pp. 150 ff). But MARCK explicitly rejects this metaphysics.
In contrast to this view we have established that outside of its supra-modal individuality structure the empirical State cannot exist at all. There can simply be no question of juridical and other aspects of the body politic, if we do not relate them consciously or unconsciously to this normative structural principle. But MARCK could not accept this state of affairs on his dialectical phenomenological standpoint. Consequently, like other dualists, he could find no way out of the crisis in the theory of the State.
The primary task of a Christian theory of the State. Rejection of the dialectical view of EMIL BRUNNER.
In contrast with the entire dialectical development of the theories of the State rooted in the immanence-standpoint, Christian theory has to disclose the internal structural principle of the body politic as it is found in the divine world-order. In itself this task is of a theoretical philosophical character, and seems to have no bearing on the burning questions of our time about the State and "society". The elaborate and penetrating analysis of the transcendental structures of reality demanded by the philosophy of the cosmonomic Idea does not belong to the kind of literature that is in vogue among present-day politicians and sociologists.
But I venture the statement that there is nothing of which our time is so much in need with respect to the State and society as an insight into the constant transcendental structural principles of societal relationships. They have not been devised by man's reason, but are anchored in the divine wisdom exhibited in the world order. The Christian theory of the State has up to now been unable to undertake its task with all its powers. Again and again it has formed a synthesis with immanence philosophy and thereby blunted the point of its Christian basic thoughts, so that after their elaboration the result was often their very opposite.
In advance we must warn against the recent error propagated under the influence of the "dialectical theology" to the effect that a Christian theory of the State is impossible on a Reformed Christian standpoint. In the structure of the State the factor of constraining power is held to be an intrinsically demonic and radically sinful element. As such it is supposed to remain necessarily caught in a dialectical tension with the Christian commandment of love and the idea of true communion.
Especially EMIL BRUNNER in his repeatedly quoted book Das Gebot und die Ordnungen (1932) defends this view. He considers it to be a necessary consequence of the essential difference between Roman Catholicism and Protestantism that there is a Roman Catholic but not a really Protestant philosophy of law and of the State. Wherever Protestantism tries to project such a philosophy it has already been affected internally by the Roman Catholic leaven (Das Gebot und die Ordnungen, 1932, pp. 647 ff).
Roman Catholicism bases its philosophy of the State on the Aristotelian natural law which is not of Christian but of pagan origin. Reformed Christianity cannot recognize any form of natural law and has to accept the State in the latter's peculiar dialectical structure. In it there is an irreconcilable tension between three factors, viz. an element of the order of creation in the moment of communion, a constraining legal order related to sin, and an in no way justifiable system of power which is "merely factual, unjust, hungry for power, and half demonic" [Op. cit. p. 432 "schlechthin faktisches, ungerechtes, machtshungriges, halbdämonisches Machtswesen"]. The fundamental nature ("Grundwesen") of the State is considered not to be justice, but power (Op. cit. p. 433.)
This dialectical enigmatic formation ("Rätselgebilde") is supposed to escape any univocal and finished theory, and "Christian theology" does not have the task to propound a Christian theory of the State (footnote: but nobody who is aware of the limits of "theology" will entrust this task to it). For such a theory could not reconcile these dialectical contrasts in the structure of the body politic. Christian theology only has to call attention to the fact that the "riddle of the State" points back to another "riddle", which is as little to be solved in theory, viz. the riddle of creation and the fall into sin within man (Op. cit. p. 430).
It is remarkable here that on his Christian standpoint BRUNNER necessarily relapses into a synthesis with the State-theories of the immanence standpoint by in principle accepting the dialectical basic problem of the latter. Erroneously he thinks he can reduce this basic problem to the "basic antithesis" in the Christian view between creation and fall. At the back of this synthetic standpoint emerges the false contrast between nature and grace which already at an early period infected Christian thought. In BRUNNER this contrast assumes the irrationalistic form of a dialectical tension between the "commandment of love of the moment" and the "law as such" (Cf. my study De Wetsbeschouwing in Brunner's Boek "Das Gebot und die Ordnungen", A.R. Staatkunde, quarterly review, 1935).
We must observe here that a really Christian view of the State, because of its very starting from the Biblical basic motive of creation, fall into sin and redemption, should radically reject BRUNNER's "dialectical basic problem" derived from the immanence-standpoint. The internal structural principle of the State as a supra-arbitrary institution can never be internally antinomic; neither can the function of power in this structure be called "semi-demonic" and "unjustifiable in any sense" on our standpoint. BRUNNER commits the serious error of confusing the factor of power in the structure of the body politic with the subjective way in which States in the sinful world can abuse their power. But when BRUNNER writes: "There has never been and there will never be a Christian State" (Op. cit. p. 449) the question must be asked: Is the word "Christian" intended here in the sense of "without sin"? If so, can this statement then not be applied with equal justice to all the other types of societal relationships, inclusive of the Church, in their subjective manifestations?Then the thesis loses any special meaning. BRUNNER on the one hand derives the power of the body politic from the divine will. But on the other hand he writes: 'The State is a secular ordering; it is not sacred'. This statement shows a serious lack of distinction between the divine structural law and the subjective manifestation of the State (which is subjected to this law) in sinful reality. BRUNNER characterizes the supposed essence of the body politic as power, as an "irrational product of history", which can only be "understood" by faith (not "comprehended" by the intellect) by thinking of the "hidden God" in all history. This merely proves how much this author's conception of power has been infected by modern irrationalism. His conception of law has chiefly been derived from neo-Kantian positivism, and his "idea of community" from irrationalistic phenomenology (cf. my above mentioned treatise on BRUNNER's view of the "Ordnungen").
It is a matter of serious doubt if the task of the Christian should be to lend the Biblical Christian background of creation and sin to this dialectical "mixtum compositum" of Humanistic conceptions.
That the State-institution cannot be understood from creation without taking account of the fall into sin, must immediately be granted to BRUNNER. We shall return to this point in our analysis of the structural principle of this institution. But when BRUNNER tries to combine this really Biblical-Christian insight with a Humanistic-irrationalistic view of reality, the result must be a complete confusion. This should be clear from all that we have said about such attempts at synthesis.
(Herman Dooyeweerd, A New Critique of Theoretical Thought, Presbyterian & Reformed Publishing Company 1969. Vol 3, pp 400-404)
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