by Alan Cameron *
* Senior Lecturer in Commercial Law, Faculty of Commerce and Administration, Victoria University of Wellington , New Zealand
None of those familiar with the philosophical systematics of the Dutch philosopher, Herman Dooyeweerd can be unaware of the radical political implications of his social philosophy. Though benefiting from the Western intellectual traditions from ancient Greek philosophy to the neo-Kantianism of his day, his philosophy, including its political and social dimensions, was pitted unequivocally in antithesis not merely against contempory thought but against the whole history of Western theorising. What he claimed for his thought was indeed a radically 'new critique of theoretical thought'1 This radical new direction of thought was accomplished by means of a 'transcendental critique'. Through a critical reflection on the deep structure, the basic conditions, of theorising, his critique claimed to have exposed the religious root of the practice of theorising and so laid the epistemological basis for his critique of the different philosophical traditions of Western thought in terms of fundamental religious ground-ideas. The latter are said to lie at the basis of these traditions and express themselves in every branch of the theoretical enterprise, at the foundations of every theoretical discipline from mathematics, physics, biology and all the 'exact' or natural sciences through to the humanities, social sciences, from logic, history, sociology, economics, law, political theory and even including theology.
In observing that Dooyeweerd constructed his thought on an explicitly religious foundation in the Christian 'ground-idea' it is pointless and thoroughly uncritical to throw out the accusation that this approach brings religion or faith into scholarly learning and thereby corrupts any sound notion of the scholarly enterprise. Since his immanent critique of Western thinking the boot now lies on the other foot. It is for the defenders of the objectivity of science and rationalism in particular to somehow avoid the accusation aimed at the heart of their traditions that the assumption of the autonomy of theoretical/scientific thought is nothing other than a dogmatic belief that itself has a non-rational (religious) foundation. I have always found a convincing way of defending this philosophical approach is to ask why it is that in any discipline which can be named you will find fundamental disagreement about the basis and nature of its field of study at some point or other, and then to ask how it is possible to explain such disagreement in solely rational terms. It requires explaining how there are such wildly different theoretical approaches within a supposedly purely rational field of study such as jurisprudence amongst people of roughly equal intellectual ability and accomplishment. Yet the arguments between such schools of thought still proceed as though the answer were a purely logical rational one so powerful is the shared belief in the dogma of autonomous rational thought.
If this transcendental critique has a somewhat familiar postmodern ring then it is true you will find some of the deep issues2 which the modern critics of Enlightenment rationalism and positivism address also tackled in Dooyeweerd. But it would take me too far from the topic of the present paper to begin exploring why, from the perspective of Dooyeweerd's philosophy, postmodernism still remains within the humanist liberal tradition associated with the Enlightenment.3
Dooyeweerd's (religious) transcendental critique is the epistemological side of his thought which on its own is quite remarkable in its breadth and depth. On the constructive side of his thinking lies an equally remarkable ontology. An ontology, however, stripped of any association with metaphysics of ideal (rational) forms, (rational) essences or 'substance'. Yet there is an undeniable 'meta' element in his ontology comprising the cosmic law which is supposed to give to concrete experience of reality a certain inescapable structuring, a natural and non-natural (normative) law-fulness. At the same time his philosophy displays a strong empirical orientation. His theory of the law-spheres and of the structural principles of entities, human, social, physical, etc.,4 are the theoretical postulates for explaining natural and social phenomena. Dooyeweerd's theoretical method accords to everyday experience and to uncontrovertible states of affairs a priority with respect to theoretical explanation. The task of theory is to account for that primary knowing rather than attempt to fit that experience to the theory. This is a sin often committed, for example, in the rationalism of economics and public choice theory which seems quite happy to make social reality fit their rationalist models. Thus it assumes our market actors to be rational self-interested utility maximisers though actual human behaviour time and again refutes this assumption.
II Dooyeweerd's Theory of the State as Law-State
The empirical orientation of Dooyeweerd's ontology is nowhere better manifest than in his theory of the state.5 The 'structural principle' of the state is not a purely rational construction but an articulation of the deep conditions for the realisation in history of any form of the social institution to which we ascribe the description of state. His notion of trans-historical law-like structuring conditions is the means of avoiding the pit-falls of historicism. The notion of structural principle is held to be a necessary presupposition for the explanation of any social entity. The historical form of the state or any entity presupposes something which endures throughout that history, throughout the different historical forms of the entity - the conditions or 'presupposita'. Dooyeweerd is not saying that there always has been a state in some concrete social form; rather that there are enduring law-like conditions which allow its realisation in the first place. Hence there has never been a state, the formation of a political power-institution, which has not been founded on a basis of formative cultural power backed up by a monopoly of physical coercion (military might).6 By the same token there never has been an actual functioning political power-formation (state) that consisted only in military might no matter how dictatorial or impressed by a martial character it is. There is not a single state in existence or that has ever existed which has not possessed a legal structure.
According to reformational political theory it is the legal element which gives to the state's political power-structure a typically legal character, however formal that may appear. Consider the epitome of the power-state, Nazi Germany. Though perverting the state towards evil purposes almost beyond human comprehension, yet it is hardly conceivable that Hitler could have accomplished his campaign of war and genocide without channelling his abuse of power through legal means. The point of passing laws which brutally discriminate against Jews was not merely as a pretence of legitimacy. There was, in a sense, no other way of harnessing the machinery of state power without doing so in a legal manner. The need for justifying one's political exercise of power in public-legal terms is inescapable.
Why is it that megalomaniacs such as Hitler cannot achieve their ends simply by unleashing the martial force at their disposal in the manner of a band of robbers, but are compelled to seize the whole machinery of state? It is precisely because the legal dimension of the state's structure is that which gives to political power its defining structure. Put another way, the power and influence which the state exercises in the life of people in any society is so much more than mere physical force. Even in the most de-regulated society its functions connect to every dimension of society in a legal manner giving them a legitimacy in the eyes of its citizens which is more than simply intellectual assent.
Thus the consistent anarchist is, practically-speaking an impossibility because, as a citizen of a state in a modern society, to espouse such a doctrine means having to acknowledge the legitimacy of the institution which in a legal sense makes possible his or her existence as a member of that public community. No Hitler, Saddam Hussein, Idi Amin, etc can be an anarchist however socially destructive their rule. Their social destruction depends upon harnessing a power-structure that depends for its socially monopolising power upon legally-defined means.
III The Jural Aspect of Social reality: its Political Dimension
An Introduction to the Jural Aspect
Without having examined in detail the contents of the political7 and legal dimensions of reformational theory (Philosophy of the Cosmonomic-Idea), in general terms it now becomes obvious in that theory how law and state are connected and therefore how legal theory and political theory are connected. Even in political theories which do not give to law or the legal dimension such a prominent position as Dooyeweerd it would be hard to conceive of any theory that does not at some point draw upon legal philosophy.
In legal positivism the connection is so close that there is a virtual identification of state and law. For Hobbes, the philosophical father of British legal positivism, law was nothing other than the command of a political sovereign. And though modern legal positivists such as H.L.A. Hart (1961) have turned away from the Hobbesian command theory of John Austin, law still seems to mean something that only manifests itself in advanced societies which possess the machinery of state. In Hart the conjunction of primary and secondary rules which constitute legal systems seem only to be found in state systems. The almost exclusive focus of the studies undertaken by the 'analytical school' of legal philosophy on the rule systems produced by state machinery marks this tendency towards identification of law and state. At this point there is a fundamental divergence of reformational legal theory from legal positivism. For though the jural or legal dimension plays a key role in Dooyeweerd's political theory it is critical for an understanding of the nature of law and the juridical dimension to grasp the universal character of the jural aspect in social reality that extends beyond the purely political realm of state law.
This point also marks a profound difference between reformational legal theory and postmodern legal theory of the Critical Legal Studies8 variety. The latter attacks legal positivism and liberal legal theory at its epistemological foundation - its claim to autonomy and its supposed objectivity. But, with a few exceptions,9 it has little or nothing to offer by way of a substitute for the conceptual empirical analysis that positivist jurisprudence provides. By attacking the epistemological basis of contemporary legal analysis it also seems to destroy the very possibility of legal knowledge. In Dooyeweerd epistemology and ontology are inextricably intertwined. And it is his great achievement largely unacknowledged, until very recently even within reformational circles, 10 to have provided a legal ontology in the form of a remarkably comprehensive conceptual framework for an empirical analysis of law and legal phenomena. This to my mind is an achievement as original as the general philosophical systematics because it provides the test of the latter's practical applicability with reference to a special discipline, the discipline in which he was academically trained and taught as 'professor in the encyclopaedia of jurisprudence, in philosophy of law, and in the history of Dutch law' (Verburg, 1989, p 430) at the Free University of Amsterdam for nearly forty years. At the heart of his legal ontology is the theory of the modal aspects, specifically, the jural aspect of reality.
The Idea of a Jurisprudential Encyclopaedia
That his major legal work, De Encyclopaedie der Rechtswetenschap was never in his life-time published even in Dutch still remains something of a mystery. Yet I have no hesitation on that account in asserting the significance of this work along with other juridical writings some of which have been published.11 The enduring place of Dooyeweerd in the history of Western thinking, in my estimation, will depend to a considerable measure upon the reception of his legal theory when it is finally published. There is no better way to illustrate the wider significance of the legal theory than to draw out some of its implications for political theory.12
Until I had read a translation of the first volume13 of the Encyclopaedia it had never really come home to its full extent how intimately Dooyeweerd viewed the relationship between philosophy as a kind of integrating totality discipline for the specialist disciplines and how this manifested itself in the method of each theoretical discipline. His discussion of the idea of Encyclopaedia provides the methodology of the discipline of law and is the model for the methods of other disciplines. Furthermore it is the philosophical framework for viewing the relationship of jurisprudence or legal science with those other disciplines. Encyclopaedia of law means philosophy of law whereby philosophy is given a specific task in relation to a defined aspect of reality and in relation to the discipline which examines the phenomena functioning within that aspect. Philosophy of economics, or of mathematics or physics or theology would then take on the meaning of Dooyeweerd's encyclopaedia, an encyclopaedia of mathematics, of physics, of economics as well as an encyclopaedia of the study of law (jurisprudence).
So what does this notion of philosophical encyclopaedia entail? What implications does his encyclopaedia of jurisprudence have for political theory? His way of raising the fundamental issues of methodology is to focus on concrete events, processes or 'things' and to ask what it is that a particular discipline is examining in that event, process or thing. He uses a mundane contract of sale to make his point. But for our purposes let us take the social thing we call the state.
No doubt it is the task of political science to provide us with knowledge resulting from an empirical examination of this institution as a totality in all its temporal dimensions. Yet it is evident that the knowledge that political science acquires of political life is quite different from the concrete knowledge which a citizen of the state or the member of parliament obtains from daily functioning as a member of that institution. Political science necessarily draws on studies of that institution from different points of view, from examining different aspects of the social entity. Potentially, there is not a single discipline that cannot be called upon to give insight into the structure and functions of the state. The requirement of a census recording information about citizens of the state for public-legal purposes involves a numerical dimension into which the discipline of mathematics and associated disciplines are called upon to provide insight. A state has physical boundaries which sets the limits to its territorial spatial location, a geo-political dimension if you like. We are familiar with the psychology of politics. There is a logical dimension of political life which is susceptible to analysis by the discipline of logic, for example the logical structure of the arguments and strategy on nuclear warfare and disarmament. There is a language of political life. And it is not difficult to appreciate that the internal organisation and administration of the state is a concern of economic analysis (a different issue from that of the manner and extent to which the state exercises is involved in economic life). We could easily identify other dimensions of political life of the state corresponding to the field of study of different scholarly disciplines. But our focus is on the legal or 'jural' dimension.
The Jural Aspect as a Universal Dimension of Social Reality
In Dooyeweerd's analysis the jural function as the leading or qualifying function is what characterises the state as a typically legal institution, differentiating it from other societal institutions or communities. However, you do not have to agree with this characterisation of the state to appreciate that there is indeed an obviously legal dimension to the state which makes it necessary for political studies to draw upon legal dogmatics14 and legal theory. In fact as already suggested within versions of positivist legal theory (Hobbes, Austin) it almost seems as though jurisprudence is a branch of political science, law being nothing other than a manifestation of political power. But here we encounter a unique feature of Dooyeweerd's entire systematics, a feature which is critical to his Encyclopaedia and of profound importance for political theory. Though we have taken the state as a concrete social phenomenon to illustrate the multi-dimensionality of human temporal reality and experience, an institution in which law or the legal dimension plays an obviously important role, we could in fact have taken any thing, process, event or relationship whatsoever. According to this method of analysis we could identify all the various dimensions we have mentioned, and others besides, as essential aspects of the functioning of that thing, event, etc.15 Take another mundane example: a consumer contract. The event of concluding a contract could as easily be subject to examination by the same diversity of disciplines that were referred to in relation to the state. A contract is a concrete social event or 'thing'. But it is mostly of interest only to the jurist as an object of study16 because it is incontrovertibly a legal phenomenon, that is to say, though it displays many dimensions it is the jural which provides its typically legal character. I will come back to the example of contract to demonstrate another very important feature of the functioning of the jural dimension in17 social life.18
Consider another example. A social club or organisation. That too displays a distinct jural dimension. Few established organisations can function without their own internal rules to regulate disputes and generally to regulate its different functions. The constitution of a club refers to the legal structure of that small society. The club displays many more dimensions than the legal and the legal constitution is not in any way constitutive of the organisation in its full social existence. A club or social organisation is frequently formed before it has obtained a definitive legal structure, which is not to say the jural dimension is not functioning from the very start of the organisations' existence; but it is only one of its aspects.
The Jural Aspect of the State
Now let us return to the jural dimension of the State. Like any other social phenomenon it too displays the full diversity of aspects, ways according to which it functions. It too, in common with the social club, has its internal jural aspect and its legal constitution. But, according to the Dooyeweerdian legal and political theory, there is a real sense in which it is the legal structure, the constitution which defines the state as a social institution, as a 'legal' institution rather than as a merely social organisation or as an ethical, economic, aesthetic or faith community.
To account for this defining or qualifying function of a modal aspect, in this case the legal or jural aspect, requires an explanation of the typical manner in which the different aspects displays themselves, function in relation to the diverse societal entities or human communities I do not propose to do what Dr Chaplin can do much better and provide a detailed description of Dooyeweerd's analysis of the 'individuality-structure' of the state.19 Instead I will explore further the legal dimension of the state, drawing not only upon the systematics of the New Critique, and other works by Dooyeweerd published in English on the state, but also the translations of his jurisprudential systematics contained in the Encyclopaedia.
We have said that the constitution of the state is not simply the concrete manifestation of the state's jural dimension. Because it is the jural aspect which is supposed to give to the body politic its typical character the legal constitution is what gives the entire structure of the state its characteristic shape and defines its central functions. Even a family, as a small 'nuclear' community, has its jural aspect and, if you like, a legal constitution of informal rules. If this is so, it clearly is not definitive of the functions of that community in the same way that a constitution defines the main functions of the state. The generation of rules is central to the functioning of the state which is not true of any other social institution. To repeat, the constitution of the state, therefore, in defining the legal realisation of its structure also defines that aspect of the institution which gives to the institution its typical character. That structure comprises the structure of political authority and power and its distribution and those subject to that authority, its citizens. The legislative, judicial and executive/administrative functions are not simply legal functions. They are the typically political functions of the state. A state may do many things and endeavour to achieve a diverse range of aims but it can do none of those things and attain not one of those goals without expressing them in a typically legal manner. The implementation of government policy in the modern state system can only be achieved through the state's legal machinery.
The State as a Public-Legal Institution
However, Dooyeweerd describes the state not merely as a legally qualified institution but as a public-legal institution. 'Public' here simply refers to the fact that the law generated is the law of the state, the res publica. Well, this does not get us very far towards understanding what it is that differentiates that public legal quality of the state from the jural dimension of non-state communities, apart from pointing out what has already been stated concerning the leading role which the jural or legal dimension takes in this institution. What is distinctive about the jural dimension of the state as public-legal institution? What distinguishes its law from other jural spheres?
The public legal function of the state as qualifying function firstly is exercised by binding the jural spheres of all other societal institutions through its own law. No other institution in society is capable of performing this function in an original manner though in some circumstances a non-state institution may be temporarily associated with the carrying out of public-legal functions,20 or become a vehicle delegated to carry out such functions.21 This gives a clue to an insight of central importance in Dooyeweerd's jurisprudence. Types of laws can only be correctly categorised as such according to the typical manner in which the jural aspect displays itself in different societal structures or relations. And it is the typical organisation of the aspects within a type of individuality-structure that imparts that typifying character to the internal jural aspect of the social structure concerned. We find that our everyday discourse and even the specialised language of the discipline of law often obscures this crucial insight. Let me make this clearer by using again the example of contract law.
Diversity in the Typical Expression of the Jural Aspect: Different Types of Law
I have said that a contract like any concrete social phenomenon is a 'thing' which displays the full diversity of aspects which in turn provide the different perspectives from which the various disciplines view their field of study. But it is of particular interest to the lawyer because it is the typical juridical expression of a type of relationship, namely a commercial or economic relationship. A contract governs that relationship in a legal manner by giving a legal form to an agreement which embodies mutual obligations between two commercial parties who via the contract are pursuing their economic interests. A contract is indeed a legal instrument, a legal institution22 we can even say, but one which serves, is bound to, and is qualified by, the economic dimension. The original competence to form that legal agreement lies in the parties to it as the outcome of an inter-personal economically qualified relationship.
However, when lawyers refer to the law of contract they are not referring to this inner jural dimension of the economic relationship but to state law (statute and in English-derived systems common law) which binds the contractual relationship, the inner jural sphere of the economic relationship, to the (public) norms of the state in the public interest. It does this without interfering with the economic parties' competence to freely form agreements and to determine their contents in accord with the mutual pursuance of their respective economic interests within the agreement. This freedom is only limited or curtailed where it results in the violation of those common legal norms which the state law of contract promotes.
It may well be in the economic interest of one of the parties to breach the contract or one of its terms. And though the innocent party may appeal to the contractual terms to persuade the contract-breaker to comply or offer compensation it will often take the state law and its coercive machinery to provide a remedy for the innocent party. It is in the public interest that commercial agreements should be observed (pacta sunt servanda). The law of contract in this instance protects the party whose economically-qualified jural interests have been violated and by legislative and judicial means protects the public-legal norms such as freedom of contract, sanctity of contract, equity in the relationship and certainty. In a phrase, the law of contract is the embodiment of contractual justice. The same function is performed in relation to other inter-personal relations where jural interests are affected and are not confined to economic relations. Whenever a 'person' (which at law includes an entity such as a company or corporation) is in a sufficiently close relationship to another so that the latter's legal interests may be adversely affected the former is under a legal duty imposed by the state (a 'public-legal') duty to take care not to interfere with those interests.23
Jural Interests and the Public-legal Interest
We have arrived at another critical point in the reformational theory of law and its relation to political theory. I have referred to the function of state law as being to protect the public interest in the context of non-state inter-personal relations such as contract and relationships giving rise to civil wrongs (torts). Here state law provides a service in the public interest by binding and co-ordinating the non-state jural spheres to public legal norms. State law only affects the jural interests of the parties or, in the case of non-state communities, their internal jural sphere in a way which protects those legal interests. But what exactly is a legal or jural interest, and precisely what does the public legal interest comprise?
Jural and Non-Jural Interests
Once again let us return to the commercial contract. It might be thought that in upholding bargains the law of contract is merely protecting the mutual economic interests of the parties embodied in the contract. But there are many ways in which one of the parties to the contract can affect the economic interests of the other in a harmful way. Not every type of economic harm is protected by the state. For example a competitor may damage the economic interests of its rival by simply more efficient economic performance. It is only those economic interests that have attained jural form and thus become economically-qualified jural interests. What else is private property or ownership? The state by its ‘public’ law of property co-ordinates the internal jural aspect in respect of chattels or land by recognising legal rights and entitlements of a legal subject as the owner of the item, i.e., it is his or her property at law. Similarly, even though the innocent party to a contract is not the owner of the subject matter of the contract,24 nevertheless the expression of the parties economic relationship in a jural form of a contract results in the creation of jural interests internal to the relationship which the law of contract will protect against invasion. It is not the economic interests as such that the law protects but its jural aspect in the form of a private legal interest.
The Internal Jural Sphere of the State and its Jural Interests
The nature of jural interests internal to the state as opposed to those internal to an economic institution (corporation or company), a university, a church etc., lie precisely in their public character. Firstly, there is a public interest in binding all other jural norms into a unity by the state's public-legal norms. This only describes the external jural function of the state, that is to say, the manner in which its own law bears upon the internal jural functions of non-state relationships, communities etc. The state itself is a community with its own internal legal norms protecting, and applicable to, its members interests. Now, whilst we find that a contract, though itself a legal institution, is typically qualified by the economic relationship of which the contract is an internal jural expression,25 in the case of the internal law of the state there is no non-jural character that typifies its own law for it is itself an institution typically qualified by its jural function.
The internal law of the body politic in all its branches is known within the discipline of law as 'public law’. It includes the body of rules that constitutes the state itself and defines its typical public legal functions of legislation adjudication and government. Criminal law26, administrative law, all enactments dealing with the public welfare, health, education, town planning, local government administration, state corporations, and so on, are all areas of concern to the state which fall within the rubric of the public interest.
A Digression: Types of Law and the Problem of Legal Classification:
From the standpoint of Dooyeweerd's theory of law and state, use of the terms 'public' and 'private' present difficulties.27 'Public' in his theory is used to qualify the legal aspect of the state in it entirety as a public-legal institution. In this sense, therefore, public law of the state should in principle refer to both the internal state law and external coordinational law applicable to non-state (private) legal spheres. However in his legal categorisation the phrase public law (in contrast to the phrase 'public-legal' in referring to the state itself) is reserved for the internal law of the state which corresponds to its usage in legal discourse and the phrase 'common private law' for state law which binds all (private) non-state legal spheres into a common law according to public legal norms (equity, certainty, security etc). In English and English-derived legal jurisdictions this refers to 'the Common Law' as a particular historical form of that type of state law. It is critical to appreciate that what we are dealing with here is not mere terminological hair-splitting. The discourse of everyday language and legal discourse reflects a positivistic bias towards identifying all law with state law and conceals from view the reality of the inner jural spheres of non-state relationships and entities in the tendency, for example, to treat even highly formal rules of a club as not true law. And insofar as non-state rules are recognised as law it is often in an inconsistent manner. Hence there is a fundamental ambiguity present in the common use of the term 'private law' to refer almost exclusively to the state law which co-ordinates non-state jural spheres (common private law).
Also connected with problem of legal categorisation is the use of the term 'legal' which also betrays a strongly positivist bias in favour of state law to the exclusion of other forms of law. In H.L.A. Hart's Concept of Law a modern legal system is constituted by a conjunction of both primary rules of obligation (e.g. proscription of criminal behaviour) and secondary rules which facilitate the changing of such primary rules, provide for adjudication in case of dispute relating to primary legal norms and state the criteria for the validity of all legal rules sourced in the social fact of their recognition ('the rule of recognition'). This conception of law as rules expresses that same tendency to equate all law with state law and by making a distinction between mere rules and law. In other words it equates the jural dimension with the public-legal function of the state. In particular, the idea of a rule (or criterion) of recognition accepted by 'officials' of the system is a specific indication of this equation of law with state law (not just public law in the narrower juridical sense). The effect of this kind of positivism is to fail to acknowledge the real jural status of non-state rules. In Dooyeweerd's legal philosophy the rule (regula) is virtually a synonym for law; it is simply a way of referring to the embodiment of specific legal norms in an individuated law so we may say that the law of contract comprises its specific rules or rulings. As concrete manifestations of the universal jural dimension of experience the rules that are formed within non-state institutions and relatively enduring co-ordinational relationships (contracts) are no less law in its full juridical sense.
Strange, though it may sound, a rule of conduct that operates within the context of a human family as the realisation of the inner jural sphere of that natural community is as deserving of the epithet 'law' as much as any state rule. What differentiates internal private family law (not to be confused with (state) family law) is not its lack of true legality but its lack of a public-legal qualification. So often, in an attempt to describe the distinguishing features of law, legal analysis is simply describing the defining features of state law. It is owing to its public character that state law attains a highly formal character because, like no other type of law, it is required to promote and protect public-legal interests that bear upon the entire public sphere and all non-state spheres in relation to their own internal jural spheres. It has a society-encompassing jural function which no other societal jural sphere possesses. Sensitivity to these distinctions between different types of state law and between state law and all forms of non-state law makes one cautious in employing the terms 'law' and 'legal'. For this reason I have persistently referred to the aspect or mode of reality we are considering here as the 'jural'28 aspect and the spheres of law internal to the diverse societal communities as the internal or inner 'jural' sphere rather than using the more familiar 'legal'.
There are two reasons at least for not using the latter qualification. First, as already suggested, 'legal' almost invariable connotes both in common discourse and in legal discourse a reference to state law. Secondly, the term 'legal' also carries the connotation of a positivised legal norm, a concrete legal rule. However, whilst the jural normative aspect is a universal dimension of all temporal reality and of all actual human institutions and relationships, not all internal jural spheres attain actualisation in concrete or formalised rules or 'law'. We do not refer to the 'laws of a family' precisely because there is lacking the presence of the definitive shape of formal rules characteristic of, and appropriate to, the form of state law. It does not follow from this lack of formalised rules that the jural sphere is not operative in the family or in other intimate bonds of love. Similarly it is a positivistic mistake to overlook the intrinsically jural character of the rule-systems of indigenous or aboriginal peoples lacking a fully differentiated societal development. This fundamental distinction between public law (in its broad sense) of the state and non-state law has profound implications for how we view the relation of state and its law to non-state spheres of society. Having digressed on the subject of legal classification it is now time to return once more to further elucidate the meaning of law, jural interests and in relation to political theory the importance of the idea of public interest.
An Interim Summary
Before we proceed any further let me attempt to summarise the main points of the paper thus far. The academic discipline that has juridical phenomena as its field of study29 depends for a view of its subject-matter upon an integrating (‘encyclopaedic’) view of the aspect of reality from the stand-point of which it views its subject-matter as distinguished from, and connected with the other diverse modes of reality, that is to say in their diversity, coherence and unity. This integrating view is provided by the philosophy of law which as theory can only proceed on the basis of a theoretical ground-idea rooted in pre-theoretical religious presuppositions. It is out of such a religiously-rooted ground-idea that the reformational legal philosophy of Herman Dooyeweerd posits the idea of the jural ‘law-sphere’ as part of general theory of the modal aspects to explain the fundamental philosophic questions concerning that diversity, coherence and unity encountered in our primary experience of reality. The diverse modes of reality are universal, irreducible conditions of temporal reality which function as cosmic law-like ordering conditions of our experience in its entirety. The jural aspect not only functions as the mode of existence that gives the concrete phenomenon, law, its juridical character, but is an aspect of all kinds of things, events, institutions, processes, etc. However, the jural aspect expresses itself in different typical ways depending on the manner in which the diverse modes of existence are structured within equally diverse structures of thing, events, processes. A contract is the concrete manifestation of the jural sphere functioning in economic relations. As an instrument of commerce, however, it is economically qualified. The jural aspect functioning as a modal ordering condition of the state's structure is itself the dimension that gives to that structure its typical character as a public-legal institution. In the public-legal function of promoting the public interest through its internal communal law ('public' law) and its correlated common (private) law integrating all non-state (private) jural spheres, it displays its distinctive public form that differentiates it from all other types of jural spheres ('laws').
Left unanswered from what has preceded is an insight into the material meaning of the jural aspect itself and its concrete implications for an understanding of the body politic with respect to its typically jural functions. Exactly what is the nature of the jural aspect that functions as a universal condition of our concrete experience? Exactly what is the nature of law-making and adjudication in legal disputes. In what, precisely, does a law consist? What further implications do the answers to such questions have for an understanding of the state and for political theory? The following is a rather sketchy attempt to answer those questions that draws upon the insights contained in Dooyeweerd's Encyclopaedia of Jurisprudence.
IV The Concept of Law and its Significance for Political Theory
Thus far I have only given mere hints as to the meaning of law and the jural aspect within Dooyeweerd's philosophy of law. Indeed, much of what I discussed above can be drawn from his general philosophical work. In the Encyclopaedia we have a more detailed picture of the character of law and the nature of the jural dimension of reality is presented.
Normativity of Law
Dooyeweerd's concept of law is an extraordinarily systematic application of his theory of the modal aspects and the encyclopaedic method to his own specialist field of study. I cannot attempt to describe this concept in its full complexity but will only refer to some of its features that are relevant to the topic of this paper.
We have already seen that Dooyeweerd identifies the jural dimension of our concrete experience as a mode, a way, in which reality functions. It is one of several irreducibly distinct aspects which come explicitly to view through theoretical analysis. What has only been referred to in passing, however, is that the jural aspect is a normative dimension of reality that within its own structure displays a diversity which matches that of the aspects themselves. In bringing to light the nature of this internal diversity of the jural aspect Dooyeweerd also reveals the complex manner in which all the different aspects relate to one another and thereby answering a fundamental question asked by the encyclopaedic method concerning the coherence of the aspects. I will try to briefly indicate the nature of this internal normative complexity of the jural aspect.
There is nothing remarkable in recognising that law is a normative phenomenon. A central concern of any theory of law is to give an account of that normative feature. Laws are made for responsible human beings. They embody norms to govern human conduct (e.g. criminal law) as well as facilitating the self-generation of norms to regulate inter-personal relations (eg. contractual obligations). Reductionist attempts by theories to explain the normative dimension of law and legal phenomena in non-normative terms entangle themselves in irresolvable internal inconsistencies and lack the ability to offer sound insights into legal normativity.30 The approach which tends to predominate in modern Anglo-American jurisprudence, legal positivism, contains within it sophisticated attempts to account for the normative feature of law.31 Dooyeweerd's idea of the jural aspect and its internal complex structure is the key to his account of legal normativity and is the central feature that distinguishes his theory from other theoretical accounts including legal positivism.
The Concept of Law
Dooyeweerd's concept of law is a complex total concept constituted by basic legal32 concepts. The latter correspond to the successive elements or 'moments' within the structure of the normative jural aspect of reality. These elements are themselves reflections of the diverse aspects of reality that precede the jural aspect in the temporal order.33 Just as we were able to discern by theoretical analysis a diversity of different aspects of a concrete social 'thing' such as a contract, so within an aspect itself a similar diversity displays itself. There are, therefore, numerical, spatial, kinematic, physical, biotic, sensory, logical, historical, lingual, social, economic, and aesthetic 'analogies' within the jural aspect which point back to the core meaning of these aspects preceding the jural. These 'retrocipatory' analogies are constitutive of the jural dimension and of law when actualised in concrete legal phenomena such as laws. They are also the 'ontic' basis of the elementary basic concepts of law. Let me try to give a brief description of some of these concepts.
The jural concepts of legal unity and multiplicity are the numerical analogies within the jural aspect. To continue with our contractual example, there are two parties to a typical commercial agreement which results in a jural unity, the contract. Within the realm of state law the function which state law performs of binding a multiplicity of non-state legal spheres into a jural unity through its 'common' law, is another expression of this numerical analogy. The concepts of legal jurisdiction, legal location (e.g. place where the contract was concluded) play an essential role within jurisprudence as spatial analogies within the jural aspect. And so we can continue in identifying other basic jural concepts corresponding to the constitutive moments in the jural aspect.
What is distinctive about all these elementary moments and their respective concepts is their qualification as real normative jural elements that can only be explained from the perspective of that aspect. Such elementary basic concepts, such as, legal life, to take another (biotic) example, are not mere fictions or 'metaphors'. Nor can they be explained by the field of study the task of which is to examine phenomena functioning within the aspect. To give a couple of examples, it means that a biologist can no more explain the dimension of legal life (e.g., legal organ such as the law-generating legislative function) in biological terms than can the jural concept of legal economy (avoidance of excess in balancing legal interests) be explained by the concepts of economics. All of these dimensions of legal life are typically jural in character and can only be explained in jural concepts from the normative perspective of the jural aspect.
But now we have to ask the question, 'what is it that constitutes the core meaning of the normative jural aspect?' The analogical moments within the jural aspect that point back to earlier aspects only acquire their jural qualification from that core or 'nuclear' meaning. In the latter lies the jural meaning of the elementary legal concepts and the complex concepts of law. The core meaning of the jural aspect is described by Dooyeweerd as a retributive mode of harmonising a multiplicity of interests34, avoiding any excessive actualising of special concerns detrimental to others, but weighed according to a well-balanced standard of proportionality (Kalsbeek, 1975, 102, Dooyeweerd, 1954-8, II, 129 ff). Retribution provides the core sense of the jural aspect. Before objections are raised to this characterisation of the jural mode (e.g. 'it only encompasses criminal law') note the attempt to circumscribe its meaning by incorporating either explicitly or implicitly an appeal to all the analogical moments of the aspect. The meaning of retribution in common discourse is re-shaped to accord with its root meaning of re-tribution, that is a restorative mode of bringing disrupted human interests into a balanced harmony. Retribution in this sense extends not only to criminal legal norms but to the whole range of jural phenomena.
In the concept of retribution we have the elements that are constitutive of law in any legal sphere at any particular time in the history of law35. However, in the appeal to the norm of justice we have a 'regulative' idea36 that deepens the core meaning of the jural aspect (retribution). This is brought about by the opening up, or disclosing of, post-jural aspects of reality in analogies that point forward in an 'anticipatory' direction. The post-jural aspects to which we refer are the moral or ethical aspect and the aspect of faith. Moral anticipation in the jural aspect expresses itself in the life of law through the concepts of legal morality and legal-moral duties by which is meant legal duties that have been deepened by the opening up of the moral analogy in the legal aspect. An example of such duties are that of good faith. In law this obtains a typical juridical meaning that is different from its meaning within the moral sphere of life. In the bond of friendship, good faith is a moral requirement without which that relationship cannot be sustained, at least not in any healthy state. But in legal relationships (for example insurance contracts) the law imposes the duty of good faith in a jurally qualified manner, that is to say in a retributive sense. As a moral-legal duty it an expression of the idea of legal justice37.
The Jural Sphere of the State and the Public Interest: an Illustration
Retribution understood in relation to the internal jural sphere of the state, therefore, implies a retributive manner of balancing the interests of the members of the political community to arrive at a harmonisation of those interests which is itself in the public interest. In a state system of law that has been opened up to enhancement of its jural qualifying function by the moral 'analogy' this comes to expression in the idea of public justice. The same difficulties associated with the use of the term public law or 'public-legal' also arise with the use of the term 'public justice'. State legal justice in the context of common private law (e.g. the idea of justice operative in the law of contract) is the performance of the public-legal function of the state in integrating the diverse non-state jural spheres and is a form of public justice in that sense. Equally the internal public law of the state under the influence of an idea of justice is also an expression of public justice. Thus laws which provide for state housing or for regulating the possession and ownership of fire-arms (gun-control), a system of state education, of accident compensation, public health, welfare benefit payment system, a taxation regime - the list is almost endless - are expressions of a concept of public justice within the modern state.
Let us take a specific issue which has recently been debated in the United Kingdom. Parents of children brutally murdered in the Dunblane massacre of March 1995 and their supporters (the 'snow-drop' campaign) campaigned to ban entirely the private possession of all hand-guns. On the other side bodies such as recreational shooters' organisations argued for the right to retain guns in their private possession for the pursuing of a legal recreational activity. This involved fundamental issues of public justice internal to the community of the state. Though each side had private interests affected, the issues at stake were fundamentally concerned with the public interest. Not only the safety of the surviving children of those parents is involved but the safety and welfare of all citizens is involved as a matter of the public interest.
The state already exercises its public-legal function by punishing the killer under the criminal law providing he38 has not committed suicide or been killed in the course of the murderous assault or in the course of his apprehension. Though there is undoubtedly a strong case for some form of state regulation of such potentially lethal weapons in the public interest, there is always a danger that the entirely understandable reaction of those directly affected by such tragic events and the public at large may overreact to the extent of discounting almost entirely the private interests of other citizens and their legitimate pursuits. In other words it is a matter of political judgment as to how the balance is to be struck. All the constitutive analogical moments of the jural dimension come into play. The interests of the public have to weighed and balanced in a jural involving the retributive demands of justice. The reaction of goverments ought not to be excessive (economic) in proportion to the gravity of the matter affecting the public interest so that when they have been duly weighed a retributive harmonisation of those interests is attained.39
In this short paper I have only begun to explore the implications of Dooyeweerd's theory of law for political theory. I have tried to do this by considering his idea of the jural aspect and the concept of law and their constitutive elements. By examining the different ways in which the jural dimension functions in different social contexts we came to see the distinctive nature of the state as an institution that is characterised by its jural function. To say that the state is typically 'legal' in nature is perhaps to miss the fuller political sense of its 'jural' aspect. Legality carries a strong connotation of concrete laws and rules. These laws, however, are only the necessary result of the political process of government response, and, in a democracy, the general populace's response to the jural norm of retributive justice. This applies no matter how defective that response may be, and on whatever conception of political justice or the role of government those responses are founded. It is a positivistic error of legal theory that seeks to confine the jural dimension of political life to the positive legal form of state law and to treat its normative content as being in the realm of political, social and moral values. The jural dimension comprises both substantive-normative and concrete-formal sides which are inextricably connected. This implies that the jurists whose main focus of interest is state law whether in so-called private law or public law lack a full insight into the nature of that law if they do not account for the political-normative dimensions of that jural dimension. Conversely, the political theorist's grasp of the political process and the structural features of the institution is deficient if he or she does not seek from the disciplines of law an insight into the jural character of the political processes and structure. There are many other aspects of Dooyeweerd's legal philosophy and his concept of law that have important implications for political theory. One of those which has also featured in this paper has been his concept of interests40 which is a key component of the central political concept of the public interest and the related conception of public justice. Much more could be said on this topic from the standpoint of reformational political and legal philosophy.
Cameron, A.M (eds), 1994, Voices for Justice: Church, Law and State in New Zealand, Dunmore Press, Palmerston North.
Cameron, A.M, 1996 'Implication of Dooyeweerd's Encyclopaedia of Jurisprudence for Legal Theory and Practice in Common Law Countries: Legal Causality as a Case Study' Proceedings of Dooyeweerd Conference, Ancaster,1996 (forthcoming).
Caudill, D. S, 1989, Disclosing Tilt: Law Belief and Criticism, Free University Press, Amsterdam.
Chaplin, J, 1995, 'Dooyeweerd's notion of societal structural principles', Philosophia Reformata, vol. 60 no.1, 16-36.
Dooyeweerd, H, 1950, 'De modale structuur van het jurisdisch oorzakelijkheidsverband', in Mededelingen der Koninklijke Academie van Wetenschappen, Letterkunde, Nieuwe Reeks, dl 13, no.5, p.93-141.
Dooyeweerd, H, 1954-58, A New Critique of Theoretical Thought, Presbyterian and Reformed, Philadelphia.
Geertsema, H.G, et al, Herman Dooyeweerd 1894-1977: Breedte en
1994, Actualiteit van Zijn Philosophie, Kok, Kampen.
Gordon, R.W, 1985, 'Macaulay, MacNeil, and the Discovery of Solidarity and Power in Contract Law' Wisconsin Law Review vol. 3, 565-579.
Hart, H.L.A, 1961, The Concept of Law, Oxford University Press, Oxford.
Kalsbeek, L, 1975, Contours of a Christian Philosophy, Wedge, Toronto.
MacCormick, D.N, & Weinberger, O, 1984, An Institutional Theory of Law: New Approaches to Legal Positivism, Reidel, Boston.
Skillen, J, 1974, The Development of Political Theory in the Netherlands: with Special Reference to theThought of Herman Dooyeweerd, unpub. Ph.D. dissertation.
Strauss, D.F.M, 1973, Begrip en Idee, Assen.
Strauss, D.F.M, 1995, 'The modern dispensation and the spiritual climate of contemporary postmodernism' Unpub. paper.
Van Eikema Hommes, H.J,
1979, Major Trends in the History of Legal Philosophy,
Verburg, M, 1989, Herman Dooyeweerd: Leven en Werk van een Nederlands Christen-wijsgeer, Ten Have, Baarn.
- The title of the English translation of his major systematic work, Dooyeweerd (1954-58)
- For example his treatment of the concepts of subjectivity and objectivity and his 'de-construction' of the whole Western epistemological tradition. See the discussion by Prof. D.F.M. Strauss (1995).
- In Dooyeweerd it has a lot to do with the relativising effect of historicism which is much older than contemporary postmodern thought but which is one of its most important sources. For his study which directly addresses the impact of historicism on Western thought and predicts its outcome in the postmodern predicament, see In the Twilight of Western Thought, New Jersey: Nutley, 1968 which is in the process of being re-translated from the original Dutch for publication in the Collected Works Project .
- For an introduction to his ontology see Kalsbeek (1975)
- Dooyeweerd (1978).
- Force need not be actually exercised; the threat based on its actual possession is often sufficient.
- For a study of the history of reformational political theory see Skillen (1974).
- For an evaluation of CLS from a reformational perspective see Caudill (1989).
- For example, the work of J.M. Balkin (1986-7).
- See the assessment of this legal philosophy by Arend Soeteman, Professor of Jurisprudence at the Free University of Amsterdam, in Geerstema, et. al. (1994).
- The most notable of these being perhaps an article on legal causality. Dooyeweerd (1950).
- This discussion is based on my research to date on Dooyeweerd's legal theory arising from the role of editor of the English translations. This assessment however, must remain fairly provisional even in the limited context of political theory as the editing even of the Encyclopedia is as yet incomplete.
- The translation is by Robert Knudsen and is now in the process of being edited in preparation for publication.
- Legal dogmatics is the scholarly articulation of legal doctrines and principles.
- Dooyeweerd ended up identifying 15 distinct irreducible 'modal aspects', ways in which reality functions. That the 'modal scale' was not a mere speculative construction can be seen from the fact that as late as 1950 he still only had 14 aspects in the temporal order of experience. Apparently under the influence of discoveries in theoretical physics he distinguished between a distinct kinematic aspect (movement) and that of energy-effect (physical) whereas he had earlier identified movement with the physical. This change in his systems has direct implications for his jurisprudence. See my paper on Dooyeweerd's concept of legal causality: Cameron, 1996.
- However, it has in recent years been the object of study for sociology of law. The results of its empirical findings are of relevance to jurisprudential analysis. For discussion of sociological research including the seminal studies of Macaulay and McNeil see Gordon (1985).
- Jonathan Chaplin is not happy with my referring to the modal aspects functioning 'in' concrete phenomena. He would prefer in conformity with Dooyeweerd's practice for me to speak of things functioning in the aspects. However, it seems to me the latter way of putting this relationship between aspects and concrete phenomena is just as open to objections as the former. The objection arises in connection with that part of the theory of law-spheres which views them as universal transcendental conditions of our experience, the expression of diversity in creational ordering of God's cosmic law. They do not exist in (i.e. inside) things events etc, but are the ordering conditions of their existence. Concrete things, events, etc function in accord with these diverse ordering aspects. A corollary of this surely is that neither do the things, events, etc. function in the aspects, that is, inside the aspects as 'things'. The aspects are only modes of experience which as law-spheres are ordering conditions of that experience. Both uses of the preposition 'in' it seem to me are equally open to misinterpretation and it is not clear to me why the one expression is preferable to the other. Have I missed something important in Dooyeweerd's modal theory?
- It concerns how jurisprudence classifies types of law in particular the problem concerning the distinction between private and public law and more specifically the ambiguity of the description 'private'.
- See Chaplin (1995).
- For example the East India Company in colonial India.
- The source of the legal competence however, still remains in the public legal body.
- For a neo-positivist account of law as institutional fact see MacCormick & Weinberger (1986).
- The principle of law established enunciated in the famous decision English House of Lords decision (an appeal from a Scottish court), Donoghue v Stevenson  A.C. 562.
- The legal property in the subject-matter (ownership) may not have passed to the buyer.
- The same can be said for example of the canon law of the church - it is truly law but as internal church law typified by its faith- confessional function that qualifies the Church as a faith community.
- It is doubtful whether it would always be so characterised however. If it is not 'private' law in the manner of tort or contract then into what category doe it fit? If not public law then a tertium quid?
- Until I have had the benefit of reading that part of the Encyclopaedia which deals with classification of types of law this part of the paper must remain provisional in its conclusions.
- One may argue that a better translation of 'juridisch' in Dooyeweerd is the more common 'juridical' to which I have no practical objection. My reasons for preferring 'jural' will be explained in the introduction to the published translations of his jurisprudential writings. However, they relate to the normative modal sense which, in my opinion, 'jural' more direclty evokes. See also the following discussion in the text above.
- The study of law in principle at least encompasses not only the study of laws but any things, events, processes, etc. qualified by their jural dimension, for example legal institutions such as the system of courts, legislature, etc.
- Dooyeweerd takes the Scandinavian Legal Realist, Ross as an example of a psychological form of this reductionism and the theoretical futility it entails.
- MacCormick and Weinberger (1984) is one such account.
- Although Hommes (1979) for example, refers to them as 'legal' concepts it would probably be more in keeping with Dooyeweerd's intentions to refer to them as 'jural' concepts. The use of 'legal' reflects the primary concern with state law as the most important form of law. It is important, however, to keep in mind that Dooyeweerd's idea of the jural aspect in principle implies that his 'elementary' and 'compound' basic concepts apply to the internal jural sphere of all kinds of institutions, communities, relationships, etc.
- We cannot here examine Dooyeweerd's concept of time. In summary time provides the common "denominator" on the basis of which the aspects may be compared and which ensures their inter-aspectual coherence.
- Dooyeweerd's frequent reference to the retributive mode in its core jural sense as involving the harmonising of jural interests seems to entail circularity. He uses the idea jural interests to explain the meaning of the jural aspect, appealing in his definition to the notion of jurality which is his intention to define. This may be explained, however, from the fact that what he often has in mind is state law in which the term 'legal' is used in two different senses. Hence it is state law which harmonises disrupted jural interests within non-state jural spheres according to public-legal norms, i.e. in the public interest. Interests receive their typical jural meaning only within the jural sphere of the different types of societal structures. And so economic interests within economic relations realise their jural dimension when embodied in a contract. The state law of contract in the public interest harmonises those jural interests according to public legal norms where the parties themselves fail to do so. Thus the interests internal to the political sphere are themselves typically jural in character because of the typical jural qualification of the state as a public-legal insitution. The jural aspect of non-state structures reveal their jural dimension in the harmonization of their internal typically-qualified (economic, aesthetic, social, ethical, etc) interests. So too does the state with respect to its own interests which in its case, however, are themselves qualified in typical jural sense.
- This is not mere speculation on Dooyeweerd's part but is based on a consideration of the relation between law and history involving extensive knowledge of legal history. See for example, the first volume of the soon to be published Encyclopaedia.
- For an analysis and development of Dooyeweerd's distinction between the theoretical concept and the theoretical idea see Strauss (1973).
- ‘Legal justice’ is not a tautology, equivalent to ‘jural justice’, in Dooyeweerd's theory of law. Whereas justice refers to a morally enhanced notion of retribution as the normative meaning of the jural aspect, 'legal justice' usually refers to the embodiment of that idea in the rules comprising state law. See the discussion above concerning the use of 'legal'.
- Are there any instances where the person guilty of such a massacre has been a woman? In any case it appears to be an overwhelmingly male phenomenon.
- I have not had the opportunity to read Lord Cullen's Report which made recommendations with respect to the issue of regulation of the possession of hand-guns. But from paper reports it appeared the Government was prepared to introduce legislation which went beyond the report's proposals to limit access to firearms. Of course, one always remains sceptical as to whether Governments decide such issues purely on grounds of the public interest or whether their decisions are also influenced by party political considerations, that is, by a desire to garner popular support that will translate into votes at an upcoming General Election. It is one thing to assert that the public justice demands some form or regulation; it is another to determine what should be the extent and nature of that regulation.
- I am grateful to Jonathan Chaplin for stimulating reflection on this topic in his comments on my essay in Boston and Cameron (1994: 37-68). I hope the discussion in this paper goes some way towards clarifying this notion in the legal and political philosophy of Dooyeweerd.