THE COLLECTED WORKS. Se ries B, Vol ume 2 OF HERMAN DOOYEWEERD. GENERAL EDITOR: D.F.M. Strauss

Transcription

1 THE COLLECTED WORKS OF HERMAN DOOYEWEERD Se ries B, Vol ume 2 GENERAL EDITOR: D.F.M. Strauss

2 Essays in Legal, Social, and Political Philosophy Her man Dooyeweerd The Ed win Mel len Press Lewis ton/queen ston/lam peter

3 Li brary of Con gress Cataloging- in- Publication Data Dooyeweerd, H. (Her man), Es says in le gal, so cial, and po liti cal phi loso phy / Her man Dooyeweerd p. cm. In cludes in dex. ISBN Law Phi loso phy. 2. So cio logi cal ju ris pru dence. 3. Po liti cal sci ence Phi loso phy. I. Ti tle. K474.D662D '.1 dc CIP This is vol ume B2 in the con tin u ing se ries The Col lected Works of Herman Dooyeweerd Se ries B, Vol ume 2 ISBN CWHD Se ries ISBN X A CIP cata log rec ord for this book is avail able from the Brit ish Li - brary. [This is the sec ond print- run of this vol ume which con tains cer - tain ty po graphi cal cor rec tions and changes of an edi to rial na ture made in Oc to ber 1997] Copy right 1997 The Dooyeweerd Cen tre for Chris tian Phi loso phy Redeemer College Ancaster, Ontario CANADA L9K 1J4 All rights re served. For in for ma tion con tact The Ed win Mel len Press Box 450 Lewis ton, New York USA The Ed win Mel len Press Box 67 Queen ston, On tario CANADA L0S ll0 The Ed win Mel len Press, Ltd. Lampeter, Dyfed, Wales UNITED KINGDOM SA48 8LT Printed in the United States of Amer ica

4 Trans la tors and Edi tors Es says in Le gal, So cial, and Po liti cal Phi loso phy Un der the above ti tle this vol ume brings to gether the fol low ing six sepa rately ti tled es says by Her man Dooyeweerd: 1) Cal vin ism and Natu ral Law. This es say ap peared in 1925 un der the ti - tle: Calvinisme en Natuurrecht (Am ers foort: Wijn gen, 32 pp.). Translator: A. Wol ters; Edi tors: John Witte, Jr. & Alan M. Cam eron 2) The mo dal struc ture of ju ral cau sal ity. The Dutch text ap peared as a re - print of a pa per pre sented at a meet ing of the Royal Dutch Acad emy of Sci - ences, Lit era ture De part ment, in 1950: Over druk uit Akade mie dagen III, pub lished in Am ster dam by the N.V. Noord- Hollandsche Uit gevers maat - schap pij. The same ar ti cle ap peared in: Mede delin gen der Kon inklijke Ned er landse Akade mie van We ten schap pen, Afd. Let terkunde, Nieuwe Reeks, Deel 13, No. 5. Am ster dam, N.V. Noord- Hollandsche Uit gevers - maatschappij. It contains references to literature and jurisprudence also in - cor po rated in the sec ond vol ume of the En cy clo pe dia of Le gal Sci ence. Translator: D.F.M. Strauss; Edi tor: Alan M. Cam eron 3) The re la tion ship be tween Le gal Phi loso phy and So ci ol ogy of Law. This ar ti cle ap peared in Dutch as: De ver houd ing tussen Rechts fi lo sofie en Rechts so ci olo gie, in Al bum Pro fes sor Ferdi nand van Go ethem (Leu ven, 1964, pp ). Translator: Rob ert Knud sen; Edi tor: Alan M. Cam eron 4) The re la tion of the in di vid ual and com mu nity from a le gal philo sophi cal perspective. This article appeared in the Algemeen Nederlands Tijd - schrift voor Wijs be geerte en Psy cholo gie, Year 39, Num ber 1, Oc to ber 1946, pp.5-11 un der the ti tle: De ver houd ing van in di vidu en ge meen - schap rechtswijs geerig be zien (The re la tion of the in di vid ual and com mu - nity from a le gal philo sophi cal per spec tive). Translator: D.F.M. Strauss; Edi tor: Alan M. Cam eron 5) The con test over the con cept of sov er eignty. Rec to rial ad dress, de liv - ered on the oc ca sion of the 70th an ni ver sary of the Free Uni ver sity on 20 Oc to ber This ora tion con sid era bly en larged was pub lished in Dutch by J. H. Paris, Am ster dam: De Strijd om het sou vere in iteits be grip in de mod erne Rechts- en Staat sleer (The con test over the con cept of sov er - eignty in mod ern Ju ris pru dence and Po liti cal Sci ence) (62 pp.). Translator: Rob ert Knud sen; Edi tor: Alan M. Cam eron 6) The Chris tian Idea of The State. (De Christelijke Staatsidee.) Pre sented at a day for Anti- Revolutionary youth on Oc to ber 3, 1936 (Apel doorn, Rotterdam- Utrecht, Libertas- Drukkerijen). Translator: John Kraay; Edi tor: D.F.M. Strauss

5 Ta ble of Con tents Foreword:...(vii) I ESSAYS IN LEGAL PHI LOSO PHY Calvinism and Natural Law In tro duc tion:...3 The his tori cal de vel op ment of the law- idea... 6 The Aristotelian law-idea....7 The Christian church comes into the picture The Reformation...13 The Cal vin ist law- idea Sphere- sovereignty as a philo sophi cal con se quence of the Cal vin is tic law- idea...18 Natu ral law in its two fold sig nifi cance The sig nifi cance of pri mary natu ral law The doc trine of author ity as cen tral doc trine of pri mary nat u ral law...22 Po liti cal natu ral law in the light of the Cal vin ist law-idea and of the prin ci ple of sphere- sovereignty...25 The modal structure of jural causality In tro duc tion...39 Le gal cau sal ity a ba sic con cept of Le gal Sci ence The two domi nant theo ries...40 Conditio sine qua non (von Buri) Adequate causation (von Kries) The typi cal causal course (Trae ger) The ob jec tive ex post prog no sis (Rüme lin) Other Con sid era tions...43 Con tin ued re flec tion on the prob lem of ju ral cau sa tion...43 The antinomy in van Eck's approach...44 Four examples...45 The per sis tent preju dice con cern ing causal and nor ma tive perspectives...48 Causality in the deterministic sense of the natural science-ideal The obstacle of freedom (i)

6 Contents The in abil ity to ac count for the mo dal struc ture and na ture of the causal ju ral re la tion...51 An intimate coherence and irreversible order The modal diversity of causal relationships The jural relation of causality within the modal structure of the jural aspect...55 The mo dal struc ture of a causal le gal fact The numerical analogy The spatial analogy...57 The physical analogy...57 The biotical analogy The psychical analogy...58 The logical analogy: subjective and objective imputation...59 Formation of law: the historical analogy Jural interpretation...63 Legal intercourse...64 The economical handling of legal means and interests...65 Jural harmony and disharmony...66 The place of fault within the jural causal relation...68 II ESSAYS IN SOCIAL PHI LOSO PHY The relationship between Legal Philosophy and Sociology of Law In tro duc tion...73 Con fus ing con stant struc tural prin ci ples with chang ing so cie tal forms...73 The im por tant ty pol ogy of le gal spheres...74 The im passe of an ex treme nomi nal is tic ori en ta tion: Gur vitch Mo dal ju ral and typi cal ju ral re la tion ships Transcendental categories of our social experience Con clu sion The relation of the individual and community from a legal philosophical perspective In di vidu al is tic and Uni ver sal is tic con cep tions of Law...91 Civil Law and the idea of the State...93 The State as Pub li c Le gal In sti tu tion...98 (ii)

7 Essays in Legal, Social, and Political Philosophy III ESSAYS IN POLI TI CAL PHI LOSO PHY The contest over the concept of sovereignty In tro duc tion The His tory of the Dogma Bodin's concept of sovereignty and the humanistic doctrine of natural law The historical interpretation of the concept of sovereignty and the doctrine of state-sovereignty The doctrine of the sovereignty of law (Rechtssouveranität) and its presumed victory over the traditional dogma of sovereignty The tra di tional con cept of sov er eignty and the doc trine of sov er eignty in its proper or bit The Christian Idea of The State Emil Brunner rejects the Christian idea of the state National-Socialism and Fascism and the idea of the Christian state The ever new, inspiring idea of the Christian state and the causes of its decline Synthesis and Antithesis Actually, there is but one radical and Scriptural idea of the Christian state The contrast of nature and grace is non-scriptural. Scripture posits the heart as the religious center of human existence The pagan view that reason is the supra-temporal center of a person's being The effects of compromise of Christian and pagan views. The scheme of nature and grace as a result of this compromise Thomas Aquinas on human nature. Nature as portal of grace Aristotle: the pagan idea of the state. The state as the highest bond of human society, of which all other societal relationships are but dependent parts The pagan totalitarian idea of the state and its revival in National-Socialism and Fascism The truly Christian view of the state takes its stance in the supra-temporal root-community of redeemed humanity in Christ Jesus (iii)

8 Contents All temporal societal relationships ought to be manifestations of the supra-temporal, invisible church of Christ The kingdom of God as the all-embracing rule of God The Christian idea of sphere-sovereignty over against the pagan view that the state is related to the other societal structures as the whole to its parts The Roman Catholic view of the Christian state Thomas Aquinas is a falling away from the Scriptural conception Infiltration of the pagan totality-idea in the Roman Catholic concept of the church A false view of the Christian state: the state is subject to the temporal church-institute Penetration of this view in modern denominational political parties The Reformation over against the Roman Catholic view of Christian society Nominalism in Late-Scholasticism The nominalistic conception of the law as subjective arbitrariness and the Thomistic idea of the law as rational order The nominalist dualism of nature and grace This dualism was perpetuated in Luther's law-gospel polarity Melanchthon's synthesis Brunner continues Luther's dualism Calvin breaks with the dualistic nature-grace scheme Calvin's Scriptural view of law The law as boundary between God and creature Calvin's view of the divine creation-order contrasted with Thomas Aquinas The principle of sphere-sovereignty: Calvin and Althusius The greater influence of Melanchthon's synthesis predominates The rise of the modern humanistic world- and life-view The overpowering influence of the new mathematical science-ideal upon modern culture The humanistic ideal of science continues in the modern individualistic idea of the state Relativizing character of modern individualism in its view of society Humanistic natural law over against its Aristotelian-Thomistic counterpart (iv)

9 Essays in Legal, Social, and Political Philosophy Two mainstreams in humanistic natural law and the idea of the Rechtsstaat in its first phase of development The old-liberal view of the Rechtsstaat and the separation of Church and State Tolerance in State-absolutism The Calvinistic view of sphere-sovereignty has nothing in common with the humanistic freedom-idea of natural law The truly Christian idea of the state cannot be separated from a recognition of sphere-sovereignty The radical difference between sphere-sovereignty and autonomy Autonomy is proper only to parts of a whole; sphere-sovereignty does not allow for such a relation Sphere-sovereignty and antithesis go hand in hand in Kuyper Kuyper broke with nature-grace and distinguished between church as institute and as organism Elaboration of Kuyper's views the first meaning of sphere-sovereignty, the sovereign law-spheres Temporal aspects of reality in distinct law-spheres The religious root-unity of the law-spheres As sunlight diffuses itself in prismatic beauty Common grace and the grace of rebirth (palingenesis): no dualistic doctrine Sphere-universality of the law-spheres Succession of the law-spheres and the organic character of sphere-sovereignty Disclosure and deepening of the meaning of a law-sphere The second meaning of sphere-sovereignty: individuality-structures in things and in societal relationships Concrete things function in all law-spheres indiscriminately. The significance of the typical qualifying function The first meaning of sphere-sovereignty (law-spheres) is not voided in the individuality-structure of things. The thing as individual totality The basic error of humanistic science: the attempt to dissolve the individuality-structure of a thing in a pattern of lawful relations within one aspect of reality The individuality-structure of societal relationships The typical founding function (v)

10 Contents The structural principle of the state. The state an institution required because of sin. This Scriptural view not maintained by Thomas Aquinas One-sided action for national disarmament is a neglect of the structural principle of the state The indissoluble coherence of the typical foundational function and the typical qualifying function of the state The common good (public welfare) as jural principle and as absolutistic principle of power The old-liberal idea of the Rechtsstaat proves powerless to control the absolutism of common good The humanistic idea of the Rechtsstaat in its second, formalistic phase Only the Christian idea of the state, rooted in the principle of sphere-sovereignty, is the true idea of the Rechtsstaat The task of the state cannot be limited externally by excluding the state from certain aspects of reality The state, with its function as political faith-community, may not be subjected to an ecclesiastical creed Christian faith deepens the typically political principles of justice. The Roman and the Christian idea of justice The liberal-humanistic and the Fascist views of justice All non-christian theories of the state are essentially theories of power (Machtsstaatstheorieen) The true relation of state and church: not a mechanical division, but sphere-sovereignty The inseparable, interwoven texture of the various structures of society The prophetic task of Christianity in these times Glossary Index (vi)

11 Foreword That these philo sophi cal es says have been ap pro pri ately grouped ac - cord ing to the head ings le gal, so cial and po liti cal can not dis guise the fact that all of them dis play an em phatic ju ridi cal bias. This in turn re - flects the fact that Dooyeweerd's en tire sys te mat ics grew out of re flec - tion on his spe cial ist dis ci pline and that it was the prob lems of le gal the - ory which he had par ticu larly in mind through out all his theo reti cal work. Yet it is Dooyeweerd's great achieve ment that his sys tem atic phi - loso phy is of gen eral ap pli ca tion to every field of theo reti cal in quiry. On the other hand the first es say un der the head ing le gal, Cal vin ism and Natu ral Law, could also have been grouped un der ei ther of the other two cate go ries as the so cial and po liti cal sig nifi cance of the Cal - vin ist and natu ral law the ory tra di tions are at tested to in the es say it self. Nev er the less, the strong con nec tion be tween the ju ridi cal sense of law and the broader sense of natu ral law is more than co in ci den tal and an ac quain tance with ju ris pru dence in its nar rower sense of le gal con cepts is in dis pen sa ble for an un der stand ing of the natu ral law idea in its vari - ous his tori cal mani fes ta tions. This es say is im por tant be cause, al though it was writ ten bef ore his philo sophi cal frame work was sub stan tially in place, there can be no doubt ing even on a cas ual read ing where his thought was head ing. Al - ready in 1925 when this work was pub lished Dooyeweerd was well on the way to de vel op ing a Chris tian philo sophi cal per spec tive that was con sciously at tempt ing to break not only with hu man is tic phi loso phy but with syn thetic Chris tian tra di tions. In so do ing he even tu ally pro - duced a phi loso phy that is pos si bly unique in the his tory of West ern phi loso phy. Yet one can not help but no tice at this stage in his de vel op - ment the strong af fini ties with the natu ral law tra di tion from which even at this stage Dooyeweerd was try ing to dis tance him self. He has yet to find many of the philo sophi cal con cepts and the dis tinc tive Dooye - weerdian ter mi nol ogy to ex press them though the germs of such origi - nal parts of his sys te mat ics as the mo dal the ory and the ory of in di vid u - al ity- struc tures are al ready pres ent. Hence he re fers to the struc ture of the so cial in sti tu tion of the state as grounded in po liti cal natu ral law. The sec ond of the le gal es says, The mo dal struc ture of ju ral cau sal ity, is of quite a dif fer ent or der. Though there was at least still one im por - (vii)

12 Foreword tant re spect in which Dooyeweerd's sys te mat ics had yet to be de vel oped (in tro duc tion of kine matic as an as pect dis tinct from the physi cal in the tem po ral or der of the mo dal law- spheres) we have here in this 1950 ar ti cle the ap pli ca tion of the al most com plete philo sophi cal frame work of the sys te mat ics to a spe cial topic in his spe cial ist field of study. It is for this rea son that the es say on ju ral cau sal ity is pos si bly the most im - por tant not only of this col lec tion but pos si bly of all the es says he wrote. For it seems that Dooyeweerd has taken this ju ris pru den tial topic in par ticu lar to dem on strate the ex plana tory power of his theo reti cal method and his en tire philo sophi cal frame work within his own field. The fact that he had al ready writ ten a long ar ti cle on the same topic in 1928 and that it is also sub jected to ex ten sive analy sis when set ting forth his ac count of the ba sic con cepts of law in his En cy clo pe dia of Le gal Science (to be pub lished in sub se quent vol umes in The Col lected Works) sup ports this view. This es say, how ever, not only pro vides a model of the ap pli ca tion of his sys te mat ics to the con cep tual foun da tions of ju ris pru dence but a model for its ap pli ca tion to every other field of theo reti cal in quiry. Fur - ther more the his tory of his treat ment of ju ral cau sal ity also pro vides firm evi dence of how closely con nected was the de vel op ment of Dooyeweerd's most ac claimed ac com plish ment, the Phi loso phy of the Cos monomic Idea, with the de vel op ment of his rela tively un known le - gal phi loso phy from the very be gin ning of his theo reti cal in quir ies. De spite the gap of al most two dec ades be tween the ap pear ance of the two so cial es says they com ple ment one an other in a con cep tu ally com - pati ble way. Both have the so cio logi cal di men sions of ju ridi cal prob - lems es pe cially in mind. The more sub stan tial es say, The re la tion ship be tween Le gal Phi loso phy and So ci ol ogy of Law, shows how, even in the re cent de vel op ment of le gal so ci ol ogy where there is a rec og ni tion of the im por tance of a philo sophi cal ac count of the na ture of so cial forms for an ex pla na tion of the dif fer ent types of law and their his tori cal mani fes ta tions, there is still lack ing a proper struc tural analy sis of these so cial forms that can be fruit fully ap plied to ju ris pru den tial prob lems. The shorter of the two, The re la tion of the in di vid ual and com mu nity from a le gal philo sophi cal per spec tive, is no less pene trat ing in its in - sight. One could find no more suc cinct state ment of Dooyeweerd's cri - tique of the philo sophi cal foun da tions of the his tory of mod ern so cial the ory and its im pli ca tions for the analy sis of le gal ty pol ogy and its clas si fi ca tions. Nor can there be a more com plete sin gle ex am ple of the close in ter con nec tions be tween gen eral phi loso phy, so cial the ory, le gal his tory and ju ris pru dence which the en cy clo pe dic method of his new critique demands. (viii)

13 Essays in Legal, Social, and Political Philosophy The fi nal two es says un der the po liti cal head ing do not dis play the same de gree of mu tual com pati bil ity at least not in a purely theo reti cal sense. The Chris tian Idea of the State is more a popu lar tract ad dressed to those who share the deep est faith con vic tions on which Dooyeweerd's theo reti cal work was based than a work of pure the ory. Nev er the less it is still of con sid er able theo reti cal in ter est for it draws upon and ex - pounds in some de tail the ele ments of his the ory of state in a man ner which must have stretched the un der stand ing of many of those to whom this ac count was first ad dressed even in the re duced form of a lec ture. It is also sig nifi cant for at least two other rea sons. First, its shows Dooyeweerd's po liti cal the ory to em body a the ory of the state as a com - mu nity of pub li c jus tice where jus tice is given a highly spe cific mean ing but with a very broad so cial rele vance. In this es say the idea of the state func tion ing ac cord ing to the rule of law re ceives a sub stan tive mean - ing by con trast with the idea of for mal le gal pro tec tions of the then pre - vail ing lib eral po liti cal the ory at a cru cial time in world his tory when fas cism and Hit ler's national- socialism were on the rise. Sec ondly, this es say shows how far his thought had al ready de vel oped be tween this col lec tion's first es say of 1925 and the date of this par ticu lar ar ti cle which was pub lished in The other es say, The con test over the con cept of sov er eignty, deals with an as pect of po liti cal the ory which is re ceiv ing as much at ten tion in po liti cal and le gal the ory and prac tice to day as pos si bly it has ever had. Also based on a pub li c lec ture there is no bet ter ex am ple of the prac ti cal rele vance of Dooyeweerd's cri tique of the West ern theo reti cal tra di tions and of his philo sophi cal on tol ogy than this plea for a proper struc tural analy sis of the idea of sov er eignty. Nor is there a more pow er - fully articulated account of the differentiated character of state power and its ju ridi cal de limi ta tion than in this theo reti cal flow er ing of the ref - or ma tional prin ci ple of sphere- sovereignty. For those who re coil at the thought that there could be a dis tinc tively Chris tian po liti cal phi loso phy and that one's deep est re lig ious con vic tions can and should be brought to bear on the de tails of po liti cal life this es say shows why this is not only pos si ble but an ur gent ne ces sity. Alan Cameron (Vic to ria Uni ver sity, Wellington, New Zea land) (ix)