lundi, mars 03, 2014

Dooyeweerd: Structural Principle of the State (9)

by Herman Dooyeweerd
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The typical integrating character of the leading legal function in the Structure of the State. The State's people as an integrated whole.
     We have now arrived at the most critical point of our inquiry. The leading function in the structure of the State has proved to be a public legal relationship uniting government, people and territory into a politico-juridical whole. As the structural whole has priority to its constituents, it makes no sense to speak of the latter in terms of separate "elements" of the body politic. This is also to be kept in mind with respect to the leading juridical aspect of the State-institution. That the latter has nothing to do with a particular aim of the State has been shown above in our critical analysis of the old liberal idea of the law-State. A body politic cannot realize specific purposes unless it exists as such. And it cannot exist apart from its structural principle qualified by its leading function. This leading function lacks a typical non-juridical qualification, since the foundational function of power cannot supply this. In principle this implies the unique universality and totality of the internal legal community of the State, which is not found in any other societal structure.
     The traditional universalistic theory of the State as the integral totality of all the other societal structures seems thus to be justified at least with regard to the legal organization of the body politic. In the internal structure of the State the modal juridical sphere-sovereignty does not seem to be individualized as a typical structural juridical sphere-sovereignty. But is the State, in its internal juridical sphere, really a juridical community with an unqualified coercive legal power, absorbing all the internal juridical relationships of a different radical and geno-type, as its component parts? This is impossible, since the individuality-structures of the non-juridically qualified legal relationships can never assume the structural character of public legal relationships inherent in the State. The relation between the typical universality of the internal public legal sphere of the State, and the qualified juridical spheres in non-political societal structures, cannot be conceived of in the schema of the whole and its parts.
     The problem raised by the leading function of the State will perhaps be brought nearer to its solution if we remember that every body politic organizes a people within a territory into a typical, legally qualified, public community. The State's people is indeed the typical totality of all the citizens irrespective of their family-relations, their Church-membership or their philosophical convictions, their trades or professions, class-distinctions, or their social standing. The State constitutes a typical integrating political unity in spite of any differences or divisions which its people display in other societal relationships.
     How is this integration possible? The State cannot integrate these differences in profession or trade, ecclesiastical or philosophical trends, social classes, etc., into the structure of a totalitarian professional or industrial organization, a totalitarian philosophical or Church community, or in the social structure of a totalitarian class. Nor can the State become an undifferentiated totality of all the "special" societal relationships within its territory. The integration of the citizens into the political unity of a people is in principle bound to the typical structure of the body politic, in which the leading function is that of a public legal community. This is an unparalleled, unique structural principle enabling the State to organize within its territory a truly universal legal communal bond transcending all non-juridically qualified legal societal relations. Neither internal ecclesiastical law, nor internal industrial law can have this typical public juridical integrating function, however large the number of the members of a Church or an industrial community may be. These legal spheres are limited by the typical particularity of their non-juridical qualification and lack the universally integrating character inherent in the internal public legal sphere of the State. In the territorial legal community of the body politic all the specifically qualified juridical interests should be harmonized in the sense of a truly public legal retribution, and integrated into "the public interest".
     This implies that the principle of public interest must itself have a typical juridical qualification which delimits its supra-arbitrary structural meaning. It can never warrant an encroachment upon the internal sphere-sovereignty of non-political societal relationships. For the idea of an absolute competence of the State contradicts the modal meaning of the juridical aspect and is incompatible with the typical structural principle of the body politic. We shall return to this point presently.

The real structure of the internal public law. In the monistic legal theories this structure is ignored and an unjustified appeal is made to legal history.
     It is the principle of public interest which in its leading juridical aspect also gives a typical material legal meaning to the internal public law of the State. Wherever the State-structure, as such, expresses itself as a differentiated res publica, within the juridical aspect of human society, this public law appears. In unbreakable mutual coherence it embraces legal organizational and behaviour norms. The former regulate the organization and competences of the different authoritative organs of the body politic; the latter regulate the public legal relations between the authoritative organs and the subjects. In spite of any enkaptic structural interlacements with civil private law, and with the non-political communal or inter-individual legal spheres, this public law retains its internal structure. True public communal law is never non-juridically qualified, although under the lead of the principle of public interest the legislator may pursue different political aims. Besides, the general principle of public interest will be differentiated in its material content by the different branches of the State's task, which varies with the historical development of a differentiated society.
     The functionalistic juridical theories do not know what to do with the concept of "public law" in its classical contradistinction to private law. This is not surprizing since they do not take into consideration the internal structure of the State.
     The view implied in these theories must result in the levelling of the individuality-structures. Such may be due to a formalist (logicistic) conception of law (KELSEN) or to a historicist-psychological view of the latter (KRABBE v. IDSINGA). Insofar as such monistic theories make an appeal to medieval legal conditions (1), to prove that the distinction between public and private law cannot be fundamental, we should be on our guard.
(1) In addition an appeal is often made to the modern British legal system, which is supposed to lack a distinction between public and private law. But this is simply a misinterpretation of the "rule of (common) law" which could maintain itself in England almost until the end of the XIXth century. This "rule of law" had nothing to do with an elimination of the classical distinction between public and private law as such, which is as old as the State itself. It only meant that since the Glorious Revolution there was no longer a specific royal administrative jurisdiction exempt from the courts of common law. DICEY praised this system and erroneously supposed that the French system of administrative jurisdiction had no other aim than to provide the organs of public administration with a privileged position. The truth was that in the long run the common law jurisdiction could not provide the citizens with a sufficient legal protection against administrative acts implying an undue encroachment upon their legal interests. The French Conseil d'Etat gave this protection in an exemplary way by applying typical public legal principles to the State's responsibility even when the latter might not be grounded on civil law rules which before 1912 were applied to unlawful acts of public administration by the Cour de Cassation (Cf. PAUL DUEZ, La Responsabilité de la Puissance Publique). And the British system of the "rule of common law" has long since been broken through by the introduction of a continually increasing administrative jurisdiction. 
     It is necessary then to lay bare the structural-theoretical conditions of a really scientific historical inquiry into the human societal relationships, to unmask the petitio principii in this supposed "objective" historical demonstration. If the feudal medieval society lacked a fundamental distinction between public and private law, this can only be due to the fact that the undifferentiated condition of this society had not yet room for a real State. It can never prove that the distinction mentioned is not essential to the State as such.
It is not critical to seek for a fundamental distinction between public and private law in the Middle-Ages without considering the preliminary question whether medieval society, as long as the feudal system prevailed, had any room for a real republican idea of governmental authority. In this connection we mention VON BELOW's studies of the "medieval German State". They are of special methodological importance, in as much as he has pointed out the erroneous absolutization of the economic-historical viewpoint in various monistic interpretations of the legal historical material. He has tried to deprive the monistic theory of one of its most cherished arguments, viz, the lack of a fundamental difference between public and private law in the Middle-Ages (2). Other German legal historians have followed him in this attempt. 
(2) Cf. Von BELOW, Der deutsche Staat des Mittelalters, Bnd. I (2e Aufl.1925). We would especially refer to the critical methodological remarks against straining the economical viewpoint: pp. 75 ff. Cf. also his: Die Entstehung der deutschen Stadtgemeinde (1889); Der Ursprung der deutschen Stadtverfassung (1892) and Territorium und Stadt (1900), especially pp. 303 ff. Cf. also H. MITTEIS, Lehnrecht und Staatsgewalt (Weimar,1933) pp. 198 ff., pp. 300, 321, 406, 516, 520, 575, etc. 
     But to my mind VON BELOW has not been able to free himself from the prejudice that the question as to whether we can speak of a real State in the Middle-Ages, can be answered in a purely historical way. He also holds that we must not base our inquiry on structural theoretical insights into the essential character of the body politic (cf. Der deutsche Staat des Mittelalters, 2e Aufl. 1925, p. XXV). This shows a lack of critical insight. Moreover, this historian has most certainly based his investigations on some structural theoretical insight into the nature of the State. This appears from the emphasis he has laid on the necessity of a juridical training of historians who want to examine the medieval political conditions (4).
(3) Cf. especially op. cit. p. 84. Here Von BELOW blames NITSZCH for a fundamental lack of insight into the medieval political conditions on account of the fact that "notwithstanding his absorbing interest in the enquiry into the facts NITSZCH lacked that juridical intuition or training without which a description of constitutional history is simply unthinkable." ["dass ihm bei all seinem verzehrenden Interesse für die Erforschung der Realien die juristische Beanlagung oder Schulung gefehlt hat, ohne die nun einmal die Darstellung der Verfassungsgeschichte... undenkbar ist."
     In this context he could only mean that the legal historian should have an insight into the fundamental difference between public and private law inherent in the structure of the State. But this insight is not sufficient. The legal historian should also be aware of the danger of interpreting the medieval feudal system in terms of legal structural distinctions which only fit to a differentiated condition of human society. He should have a theoretical insight into the fundamental difference between undifferentiated and differentiated societal structures. How is the historian to gain such an insight from the changing historical facts if the latter are not included in supra-historical structures? These structures must first be clearly seen if the historian wants to interpret his legal material correctly.
     From the historical viewpoint one should fight shy of a generalizing conception of the medieval political conditions. The political conditions of the late Middle-Ages were very different from those of early and High medieval feudalism. And as to the Frankish kingdom there is a fundamental difference between the Merovingian patrimonial regnum and the Karolingian State, founded on the idea of the res publica. These differences are not duly considered by VON BELOW. Compare, for instance, his generalizing characterization of the public legal foundation of the Frankish empire (Der deutsche Staat des Mittelalters, pp. 210 ff. with an appeal to WAITZ, ROTH and SOHM).

The real meaning of the absolutist idea of the State and the true idea of the law-State.
     A real public legal integration of a country and people is therefore only possible within the internal limits set by the structural principle of the State-institution itself. This integration can only be accomplished within the juridical limits set by this structural principle to the competence of the body politic, and with due regard to the internal sphere-sovereignty of the other societal structures. Every political theory denying these limits is in principle a theory of the "power-State", even though it masks its absolutization of the State's power by a law-State ideology.
     In whatever shape the absolutist idea of the body politic is set forth, it does not recognize any intrinsic legal limits to the authority of the State. This idea implies an absorption of the entire juridical position of man by his position as citizen or as subject of the government.
     If we cannot appeal to any law outside of the State, if the body politic has a so-called "Kompetenz-Kompetenz", i.e. a pseudo-juridical omnipotence, then the authority of the State has been theoretically deprived of any legal meaning and has in principle been turned into juridically unlimited political power. Neither a theoretical subjection of this power to some general principles of natural law, nor a theoretical construction of a so-called legal self-restriction of the State-power, can undo the harm implied in the initial absolutization inherent in the idea of sovereignty of the body politic, current since BODIN. But in the true idea of the law-State, the divine structural principle of the body politic limits the peculiar universality of the internal public law to a universality and sovereignty within its own sphere of competence. Every attempt on the part of an absolutist government to exceed the intrinsic boundaries of its legal power results in a despotism which undermines the very fundamentals of its authority. But even such a despotism can only occur within the structural principle of the body politic, which is beyond any human arbitrariness.

The idea of "the public interest" and the internal limits set to it by the structural principle of the State.
     When we have gained an insight into the inner nature of the public legal communal sphere of the State, we can also find the internal limits to the idea of the "public interest" as a guiding principle for the internal State-policy. In the nature of the case this principle cannot be identical with its leading juridical aspect. But it is only the latter which can give to it its inner limitation as the material principle of public communal law.
     The idea of the "salus publica" displays a genuine Protean character in political theory. It was made subservient to the ancient universalistic-organic theory of the State, to the doctrine of the "reasons of State", to WOLFF's natural law theory of the police-State, to HOBBES' and ROUSSEAU's natural law construction of the Leviathan-State, but also to the classical liberal doctrine of the constitutional State (LOCKE and KANT), and to the modern totalitarian political theories.
     For the sake of the public interest PLATO and FICHTE defended the withdrawal of the children from their parents and wanted their education to be entrusted to the body politic. With an appeal to the public interest PLATO wanted to abolish marriage and private property as far as the ruling classes of his ideal State were concerned. ARISTOTLE wanted education to be made uniform in "the public interest"; on the same ground ROUSSEAU wished to destroy all the particular associations intervening between the State and the individual citizen. WOLFF desired the body politic to meddle with everything human and, at least for the Protestant Churches, he wanted the government to fix the confession. The idea of the "salus publica" was the hidden dynamite under the Humanistic natural law theories of HUGO GROTIUS and S. PUFENDORFF (Cf. my In den Strijd om een Christelijke Staatkunde, I, XV, A.R.Staatk. driemaand. orgaan, le jg. pp. 142 ff. [The Struggle for a Christian Politics]). In CHR. WOLFF's doctrine of natural law this idea resulted in a frankly admitted antinomy with his theory of innate natural rights (4). The slogan of the public interest was the instrument for the destruction of the most firmly established liberties because it lacked any juridical delimitation. 
(4) CHR. WOLFF, Jus Naturae VIII, 1, § 117; here he speaks of a real "collisio legum" between his principles of natural law and the basic principle of his theory of the State: "Salus publica suprema lex esto". He cuts the Gordian knot with his construction of an emergency law of the State: "Necessitas non subditur legi".
     The terrible threat of Leviathan is audible in this word as long as it is used in a juridically unlimited sense. The universalistic political theories could conceive of the relation between the State and the non-political societal structures only in the schema of the whole and its parts. This is why they could not delimit the idea of "the public interest".
According to ARISTOTLE the State, as the autarchical "perfect community", has to supply its citizens any good they cannot obtain either individually or in the "lower communities". This is not an inner structural criterion of the legal limits of the public interest but only one for the external extent of the State's task. It is oriented to a metaphysical theory of the purpose of the State, and is entirely in accordance with the ancient totalitarian idea of the body politic. In this conception there is in principle no possibility of freedom outside of the State.
     ROUSSEAU's idea of the "public interest" was only limited by the natural law principle of the equality of all the citizens before the statute law and consequently by the exclusion of any private privileges of individuals. This idea was to be expressed in the "general will" (la 'volonté générale'); it did not imply any material legal restriction of competence of the legislator; it sanctioned the absolutist power of the State over all spheres of life, even over public worship.
     CHR. WOLFF's criterion of the salus publica is based on his eudaemonist theory of natural law, and is identical with his conception of the purpose of the State embodied in the social contract. In his opinion the public interest consists in the vitae sufficientia, tranquillitas et securitas (Jus Naturae VIII, 1, § 2). This view was oriented to the absolutist idea of the police-State that the "enlightened despots" in Prussia and Austria tried to realize.
     As far as I know, KANT was the first Humanist philosopher who tried to give the idea of the salus publica an entirely new meaning, which was anti-absolutist and non-eudaemonistic. The eudaemonistic conception of the public interest was in conflict with KANT's practical idea of autonomy.
     According to WOLFF, who is here in line with ARISTOTLE, the State should procure all the commodities its citizens need for their temporal well-being and perfection, insofar as the smaller communities of family and kinship cannot provide them. This was the only conception of the adage "Salus publica suprema lex esto" which was supposed to guarantee a rationally justified constitution. But KANT breaks with this eudaemonist conception. According to him the idea of the salus publica can have no other meaning than that of a constitutional principle containing the a priori juridical norms which ought to be realized as a duty prescribed by a categorical imperative. The contents of these juridical principles are found in KANT's conception of the law-State and its idea of the trias politica (Met. Anfangsgründe der Rechtslehre 2er Teil, ler Abschnitt § 49 in fine Grossh. Wilhelm Ernst Ausg. V, p. 439). We saw, however, that this idea of the law-State does not approach the internal structural limits to public law but is essentially an individualistic civil law idea. In KANT's conception the internal structure of the State is reduced to a mere organizational form for the creation, the maintenance, and the judicial application of private civil law (the organized form of the legislature, the police and the administration of justice).
     The idea of salus publica should be oriented to the structural principle of the State, else it will become the instrument of an unbridled State-absolutism, or the embodiment of an arbitrary conception of the external content of the State's task. In spite of all theoretical misconceptions of this principle it has a universally valid meaning, internally delimiting all real political activity of the State.
     The positive contents of this principle, however, are dependent on an intricate complex of variable socio-cultural conditions.

The salus publica and distributive justice. 
     In its qualifying juridical aspect the public interest implies the typical public legal measure of distributive justice which requires a proportional distribution of public communal charges and public communal benefits in accordance with the bearing power and the merits of the subjects (5)
(5) KANT, and the Humanistic teachers of natural law before him, did not understand the original Aristotelian sense of the idea of distributive justice. This idea originally bore on the internal communal law of the State, and not on private civil juridical relations as intended in KANT's idea of law as a normative principle of juridical coexistence. We have shown in an earlier context that even the Aristotelian conception of commutative justice is not to be understood in an individualistic sense. KANT, however, understands by iustitia distributiva or "austeilende Gerechtigkeit" only such justice as is administered by a civil judge, as an impartial instance created by the "general will" for deciding private legal disputes. Cf. Met. Anfangsgünde, I §§ 39 and 41.
     In his book La Responsabilité de la Puissance Publique, the French professor of constitutional law PAUL DUEZ has especially pointed to the significance of this public legal standard in the administrative jurisdiction of the French Conseil d'Etat. But it is of a universal import with respect to the whole internal public administration and administrative legislation. And as a legal principle of the public interest it clearly contradicts the erroneous opinion that administrative law is only a formal juridical frame-work for the pursuing of communal aims.
     The salus publica, thus conceived, is a political integrating principle binding all the variable political maxims to a supra-arbitrary standard. It binds the entire activity of the State to the typical leading idea of public social justice in the territorial relations between government and subjects. Externally the task of the State cannot be delimited in a universally valid way, because the body politic, as a real organized community, functions in all the aspects [also] of temporal reality. In principle, it is impossible even to exclude the State from the spheres of morality and faith. The State may promote the interests of science and the fine arts (6), education, public health, trade, agriculture and industry, popular morality, and so on. 
(6) Remember that in case the modern State gives financial support, this is done with revenues from taxation levied from its citizens by means of governmental coercion. State-support is therefore something quite different from that given by a private association for the promotion of sciences or the fine arts, because in associations the members give support out of their own free will.
     But every governmental interference with the life of the nation is subject to the inner vital law of the body politic, implied in its structural principle. This vital law delimits the State's task of integration according to the political criterion of the "public interest", bound to the principle of sphere-sovereignty of the individuality structures of human society.
The internal political activity of the State should always be guided by the idea of public social justice. It requires the harmonizing of all the interests obtaining within a national territory, insofar as they are enkaptically interwoven with the requirements of the body politic as a whole. This harmonizing process should consist in weighing all the interests against each other in a retributive sense, based on a recognition of the sphere-sovereignty of the various societal relationships.
     To give a concrete example, we will consider the administrative juridical regulation of the many-sided concern of public health. This is a real concern of the public legal sphere of the State which, as such, is not qualified by a non-juridical aspect. The particularity of the subject matter of this administrative legal regulation is its concern with the bio-social structural aspect of the national community. Nevertheless, the regulation itself ought to be guided by the public legal principle inherent in the "public interest".
     No doubt such a positive regulation is intended to serve a particular political purpose, viz. the improvement of public health. This purpose in itself does not differ from the aims of private societies for the improvement of national health. But this part of administrative law, as well as all the relevant executive measures taken by the organs of the State, has an internal, public juridical qualification. The internal structure of administrative law makes it obligatory on the government always to weigh the various private legal interests carefully against each other, and against the "public interest", in a retributive sense. These private interests must be harmonized and integrated in the public juridical interest. This is not required in the case of private societies for the promotion of public health, whose structure has a non-juridical qualification, and which are not founded in military power.

(Herman Dooyeweerd, A New Critique of Theoretical Thought, Presbyterian & Reformed Publishing Company 1969. Vol 3, pp 436-446)
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