The relation of the individual and community from a legal philosophical perspective 1

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1 The relation of the individual and community from a legal philosophical perspective 1 AN AGE OVERESTIMATING the in di vid ual is nec es sar ily fol lowed by one over es ti mat ing the com mu nity. This is also true of le gal life and the phi - loso phy of law. Post- medieval le gal phi loso phy, in its first pe ri od, is char ac ter ized by the mod ern hu man is tic doc trine of natu ral law as it was founded by Gro tius. In re ac tion to this phase the sec ond pe ri od emerged as the His - tori cal School of Law and be came the domi nant trend in mod ern so ci ol - ogy. Individualistic and Universalistic conceptions of Law Theo reti cally seen, the in di vidu al is tic doc trine of natu ral law is strongly in flu enced by the mod ern hu man is tic natu ral science- ideal. This ideal sets out to con trol re al ity by re duc ing com plex phe nom ena to their sim - plest ele ments. Its aim is to ana lyze these ele ments with the aid of ex act mathe mati cal con cepts in or der to un veil the laws de ter min ing re al ity fully. The meth ods of mathe mat ics and oc ca sion ally that of mathe mati - cal phys ics (Hob bes) serve as model in this re gard. The mod ern doc trine of natu ral law simi larly at tempts to ex plain the or gan ized com mu ni ties of hu man so ci ety in terms of their ele ments, the in di vidu als. It per forms this ju ral con struc tion on the ba sis of the so cial con tract the ory. The His tori cal School and to some ex tent also the so cio logi cal doc - trine of law are po si tioned against this in di vidu al is tic and con struct ing ap proach in its ad vo cacy of a uni ver sal is tic view pro ceed ing from the to tal ity in or der to un der stand its parts. This, how ever, is not done in a con sis tent way. The His tori cal School, for ex am ple, does not get be yond the peo ple com pris ing the to tal ity of the na tional cul ture. From the in - di vid ual folk na ture of the lat ter, it as serts, the unique le gal or der, lan - guage, mo res, art, etc. of that peo ple flow as prod ucts of his tory. With this the idea of an or der of natu ral law it self, fit ting all times and peo ples, is re jected. 1 This ar ti cle ap peared in the Algemeen Nederlands Tijdschrift voor Wijsbegeerte en Psychologie, Year 39, Num ber 1, Oc to ber 1946, pp.5-11 un der the ti tle: De verhouding van individu en gemeenschap rechtswijsgeerig bezien (The re la tion of the in di vid ual and com munity from a legal philosophical perspective). Translator: D.F.M. Strauss; Ed i tor: Alan M. Cameron. 91

2 The relation of the individual and community from a legal philosophical perspective The strug gle be tween these two main trends oc cu pies a promi nent place in the di ver gent evalua tion of the Ro man ius gen tium (world law). The Ger man is tic wing of the His tori cal School viewed the re cep tion of the ius gen tium in Ger manic coun tries of the con ti nent as a forg ing of the Ger manic con cep tion of law. The lat ter was sup posed to be per - me ated to a great de gree by a so cial spirit. It viewed all law as dis - play ing in prin ci ple the same char ac ter. Ro man law, by con trast, breathes the spirit of Cain, that of an un bri - dled in di vidu al ism, and pro ceeds from a sharp sepa ra tion be tween pub - li c law and pri vate law. It causes the in di vid ual and the state to stand ir - rec on cila bly over against each other. The same con cern is ex pressed in the domi nant so cio logi cal doc trine of law. This ap proach still uses the (now out dated) de pic tion of the spirit of Ro man law as a spirit of dis ci plined ego ism in the way that it was put for ward dra mati cally by von Jher ing. On the other hand, from its out set, the doc trine of natu ral law of the 17th and 18th cen tury viewed the Ro man ius gen tium as the ra tio scripta and as the residue of the true natu ral law. One can fol low this strug gle in the di ver gent as sess ments of the mod - ern codi fi ca tions of civil law which, as an ef fect of the En light en ment, were in tro duced in Prus sia, France, Aus tria and pres ently also in The Netherlands. The cur rently all- powerful his tori cis tic and so cio logi cal views of law claim to rec og nize in these codi fi ca tions the con tin ual in flu ence of the in di vidu al is tic spirit of Ro man law and a de sire for a radi cal trans for ma - tion of the so cial spirit which is, ac cord ing to this view, al ready in the pro cess of emerg ing. The call for a droit so cial as sub sti tute for the droit in di viduel has be come uni ver sal. Vari ous national- socialistic ju - rists have al ready spo ken about a fare well to the Civil Code. Within the idea of the droit so cial, seen as a com mu nal de mand per - me at ing le gal life in its en tirety, an over es ti ma tion of the communityidea mani fests it self, simi lar to the fash ion in which the idea of a droit na tu rel man aged to push the pen du lum to the other ex treme of an over - es ti ma tion of in di vid ual free dom in the 18th cen tury. For le gal phi loso - phy and for le gal life the strug gle be tween these two trends is a mat ter of se ri ous con cern. If one looks at the hu man is tic doc trine of natu ral law only as an apri - or is tic con struc tion, de signed in a rigid way, as a le gal sys tem to fit all peo ple and times and de duced by ap ply ing a mathe mati cal method, then one views it too one- sidedly ac cord ing to its theo reti cal and le gal philo - sophic pre ten sions. For in this sense both its foun da tion and its method are no longer de fen si ble. But the doc trine of natu ral law also had a promi nent prac ti cal ten - dency some thing mod ern criti cisms of ten have not rec og nized. This prac ti cal ten dency is even pres ent in the work of an author such as Gro - 92

3 Essays in Legal, Social, and Political Philosophy tius who had the in ten tion of de vel op ing his doc trine of natu ral law fully in de pend ent of po liti cal is sues, simi lar to the mathe ma ti cian who con structs his fig ures en tirely di vorced from mat ter. Civil Law and the idea of the State Es sen tially this has ini ti ated the quest of pur su ing the ba sic prin ci ples of civil pri vate law and the mod ern idea of the state. How ever, both these ide als were lost again dur ing the me die val pe ri od since it came into con - flict with in dige nous Ger manic le gal prac tices that were still primi tive in many ways. It also clashed with the feu dal sys tem, a whole com plex of royal rights, privi leges, and a di ver sity of prop erty re la tion ships re - flect ing dif fer ences in so cial rank (old farmer serfs, land lord serfs, church serfs and so on), all of which still strongly re flected the stamp of an un dif fer en ti ated so ci ety. On the other hand, when the Ro man world law was seen as ra tio scripta and as a posi tive ex pres sion of natu ral law, then this view was fully con sis tent with the clas si cal Ro man ju rists, for these lat ter main - tained a close con nec tion be tween the ius na tu rale and the ius gen tium so in ti mately that it some times was iden ti fied in cor rectly. The ius gen tium was the first re ali za tion of a truly civil law within the Ro man world im pe rium. It fun da men tally dif fers from the older primi - tive ius ci vile, i.e. the Ro man folk law. The lat ter can at best be com - pared with the primi tive Ger manic folk laws, as they were de scribed in the le ges bar ba ro rum dur ing the Frankian pe ri od. This kind of folk law still be longs to an un dif fer en ti ated con di tion of so ci ety a phase in which all law still dis plays only one char ac ter be - cause as yet so ci ety did not know dif fer en ti ated spheres such as that of the church, the state, com merce and busi ness firms, free as so cia tional or gani za tions, and so on. Un dif fer en ti ated spheres of life, such as that of the fa milia, neigh bor - hood, guilds (in the sense of broth er hoods or fra ter ni ties), the com mu nal life of the Ro man peo ple and the tribe, still en com passed hu man life to - tally, with re spect to all spheres of life. These spheres take on all tasks that, at a deep ened level of cul tural de vel op ment, are per formed by in - de pend ent dif fer en ti ated so cie tal col lec tivi ties. The un dif fer en ti ated sphere of power of these col lec tivi ties, of ten strongly rooted in a pa gan re lig ion of life, is ab so lute and exclusive. The en tire le gal status of a hu - man be ing, as a con se quence, is com pletely de pend ent upon mem ber - ship in these primi tive col lec tivi ties. Who ever finds him self out side this bond is hos tis, exlex, i.e. with out any rights or peace. The un dif fer en ti - ated com mu nity ab sorbs the in di vid ual ac cord ing to that per son's en tire le gal status. This is also valid with re gard to the old Ro man fa milia where the head, the pa ter fa milias, had an un dif fer en ti ated power over all mem - bers, rooted re lig iously in the ex clu sive power of the house and hearth gods. This power was an ab so lute and ex clu sive do min ium si mul ta ne - 93

4 The relation of the individual and community from a legal philosophical perspective ously in cor po rat ing author ity and the com pe tence to dis pose of prop erty rights. This un dif fer en ti ated con cept of prop erty was not close to an in - di vidu al is tic spirit at all, as was sug gested by von Jher ing. Much rather, it is an ex pres sion of the to tali tar ian primi tive con cep tion of com mu nity. Civil pri vate law is to tally dif fer ent from primi tive folk law. It is the prod uct of a long de vel op men tal pro cess, giv ing birth to a dif fer en tia - tion of so ci ety. As soon as the un dif fer en ti ated spheres of life are tran - scended, it be comes pos si ble for the dif fer en ti ated so cie tal col lec tivi ties to mani fest them selves. Then, ac cord ing to their in ner na ture, no sin gle one of them can any longer en com pass the hu man be ing with re spect to all spheres of life. Thus it be comes pos si ble to ac knowl edge the rights of the in di vid ual hu man be ing as such, apart from all par ticu lar com mu - nal ties such as gen der, race, na tion, church ori en ta tion, so cial rank and status. The hu man be ing as such now wit nesses the al lo ca tion of an in di vid - ual sphere of free dom that em bod ies the pri vate auton omy of that per - son. By vir tue of its par ticu lar na ture civil law does not ac cept a dif fer ence in prin ci ple be tween hu man be ings on the ba sis of race, so cial status or rank they all en joy civil le gal free dom and equal ity. The clas si cal Ro man ju rists un der stood this in terms of their idea of the ius na tu rale. This idea, be cause it is rooted in the in trin sic na ture of civil law, brought to ex pres sion, in a preg nant way, the con stant ba sic prin ci ples of civil law. In do ing that, it sharply dis tin guishes it self from the Ar is to te lian idea of natu ral law which also com prises com mu nal ties evinc ing ine qual ity in po si tion. These clas si cal Ro man ju rists were jus - ti fied in pos it ing this es sen tially civil le gal ius na tu rale as the ba sis of the Ro man ius gen tium. We have seen that they of ten even pre sented the two as be ing iden ti cal. How ever, this iden ti fi ca tion is not valid, since the ius gen tium con tin - ued to ac cept the in sti tute of slav ery and, there fore, in this re spects de vi - ated from the ius na tu rale. Fur ther more, it only gave a com pletely his - tori cally determined posi tive form to the former. The mod ern hu man is tic doc trine of natu ral law ad vo cated this no tion of the ius na tu rale to an in creas ing de gree. Dur ing the En light en ment it crys tal lized in the doc trine of in nate and in al ien able hu man rights. Within mod ern dif fer en ti ated le gal life, civil law con sti tutes only one of the dis tinct spheres of pri vate law. As such it is closely con nected with the state. The mul ti ple spheres of pri vate law are fully de ter mined ac cord ing to the dif fer en ti ated struc tural prin ci ples of hu man so ci ety. For ex am ple, the sphere of internal ecclesiastical law, in its internal jural character and origi nal sphere of com pe tence, is de lim ited by the pe cu liar struc - tural prin ci ple of the church- institute as in sti tu tional com mu nity of 94

5 Essays in Legal, Social, and Political Philosophy Chris tian be liev ers within the or gan ized serv ice of the Word and the Sacraments. Ecclesiastical law unmistakenly evinces a private communal char ac ter and its own ir re duci ble na ture. It can never be de line ated merely on the ba sis of its ju ridi cal ge netic form (ec cle si as ti cal rules of pro ce dure), since within this ge netic form ec cle si as ti cal law may be in - ter laced with le gal spheres of a dif fer ent na ture. Simi larly, there also ex ists the in ter nal le gal sphere of a mod ern fac - tory, which, ac cord ing to its in ter nal char ac ter, is de lim ited by the struc - tural prin ci ple of the firm as one that is quali fied by the eco nomic en tre - pre neu rial or gani za tion of capi tal and la bor. This piece of pri vate law, origi nat ing from the ju ridi cal form of the rules of pro ce dure of the fac tory, also bears a spe cific com mu nal char - ac ter, though it lacks the typi cal in sti tu tional feature of ecclesiastical law since it com pletely rests on a vol un tary ba sis. 1 The same ap plies to the do main of law re lated to the sphere of in ter - ac tion in trade and com merce. This do main is also eco nomi cally quali - fied though it does not share a com mu nal char ac ter. It ex hib its a co or di - na tional na ture since in di vidu als par tici pat ing in this le gal re la tion ship are co or di nated with each other and are not bound to gether into a du ra - ble unity. We may con sid er in this re gard the so- called stan dard clauses regu - larly in cor po rated in sepa rate agree ments reached within the dif fer ent branches of trade and busi ness. In spite of the fact that, as gen er ally ac - cepted stipu la tions, they are ac knowl edged by civil law, these stan - dard clauses have an in ter nal na ture dif fer ent from civil law. Each one of the dif fer ent so cie tal in sti tu tions has its own in ter nal law (con sid er a so cial club, a phil an thropic as so cia tion, a trade or gani za tion, etc., etc.). All of them stand in serv ice of, and are quali fied by, the par - ticu lar quali fy ing func tion of the so cie tal spheres to which they be long. In that way they have a spe cifi cally or gan ized com mu nal char ac ter since the mem bers of a cor po ra tion are or gan ized into a unity. Civil pri vate law is not a specific law in this sense. In other words, it is not fit to serve, and quali fied by, a typi cal in ter nal guid ing func tion which it self lies out side the ju ral as pect. It is a ius com mune, a com mon law, as it is called by the Brit ish. By it self it has no other des ti na tion than to bring to ex pres sion the re quire ments of the ius na tu rale, of natu - 1 Trans la tor's note: Dooyeweerd distinguishes between in sti tu tional and voluntary so - ci etal col lec tivi ties. Com mu ni ties des tined to en com pass their mem bers to an in ten - sive de gree, con tin u ously or at least for a con sid er able part of their life, and as such in a way in de pend ent of their will, are called in sti tu tional (A New Cri tique of The o - ret i cal Thought, 1957, Vol.III:187). 95

6 The relation of the individual and community from a legal philosophical perspective ral jus tice in the clas si cal sense of the word, 1 as we have ex plained above. Ac cord ing to its in ter nal na ture it is built upon the ba sis of in di vid ual hu man rights of free dom and equal ity. This char ac ter pre vents it from hav ing a com mu nal na ture. There fore it has to be dis tin guished from the do main of what is known as so cial la bor rights a do main with its own unique con sti tu tion and des ti na tion. The at tempt to trans form it into a com mu nal law, ac cord ing to the model of the mod ern idea of the droit so cial, in evi ta bly can cels its civil le gal na ture. For the in trin sic na ture of the dif fer ent le gal spheres is not some thing made by hu man be ings, since, to every per son form ing law, it is a given, based upon the or der and struc ture of re al ity. Civil pri vate law, in its na ture, con sti tutes the ju ridi cal asy lum of the hu man per son al ity, the strong hold of in di vid ual free dom and as such it is des tined to pro vide a bene fi cial coun ter bal ance against the ex ces sive pres sure of com mu nal de mands within le gal life. In our mod ern era, due to the reign of his tori cism and a natu ral is tic so ci olo gism, this is hardly un der stood any longer. Both these spiri tual trends are united in their his tori cis tic view of hu man so ci ety, ac cord ing to which eve ry thing is caught up in con tin ual de vel op ment and in a flow ing tran si tion. They do not have an eye for the con stant struc tural prin ci ples that de ter mine the na ture of the dif fer ent spheres of life and that them selves make all his tori cal de vel op ment pos si ble in the first place. The His tori cal School, in a dan ger ous fash ion, starts to link civil law to the in di vid ual char ac ter and spirit of a peo ple (Volks geist) and in do - ing so it at tempts to elimi nate fun da men tal dif fer ence be tween civil law and primi tive folk law. The at tempt is ac com pa nied by a se ri ous at tack on the clas si cal Ro man and the mod ern hu man is tic doc trine of the ius na tu rale. All forms of law are seen as the his tori cal prod uct of the pe cu - liar dis po si tion of a peo ple (volk) which, there fore, in prin ci ple is com - mu nal law, bear ing a typi cal folk char ac ter. The Ro man is tic wing did not pur sue the con se quences en tailed in this ap proach. It con tin ued to adore the Ro man world law in its clas si cal phase of de vel op ment as ra tio scripta, al though it re - jected the doc trine of the ius na tu rale. But in the Ger man is tic wing the ba sic the sis of the His tori cal School ini ti ated an as sault against the in di vidu al is tic ius gen tium of the Ro - mans. And mod ern so ci ol ogy, dis semi nated from France, launched an at tack against the ab stract meta phys ics of the ideas of free dom and equal ity. 1 Ed i to rial note (AC): Nat u ral jus tice in this con text has to be dis tin guished from the same ex pres sion when it is ap plied in ad min is tra tive law. 96

7 Essays in Legal, Social, and Political Philosophy It is re mark able that the at tack against the foun da tions of civil law is al ways ac com pa nied by an as sault in prin ci ple on the mod ern idea of the state, which rests upon a sharp dis tinc tion of pub li c and pri vate law and on the prin ci ple of the salus pub li ca in its clear sepa ra tion from all group in ter est. Leon Du guit, the French scholar in con sti tu tional law, who re quired a trans for ma tion du droit civil 1 ac cord ing to the spirit of a droit so cial, si mul ta ne ously pro claimed the state ment l'état est mort. 2 But al ready in the case of Count St. Si mon (with Auguste Comte the founder of posi - tiv is tic so ci ol ogy), we can see to what an ex tent the bat tle against the meta physi cal doc trine of hu man rights is ac com pa nied by an at tack on the state, which, as the in stru ment of class domi na tion, is des tined to die away. We need not be sur prised by this in ti mate con nec tion in the fight against civil law and the state, since the in ter nal law of the state, as ius pub li cum, shares with civil pri vate law the ab sence of a quali fi ca tion out side the ju ral guid ing func tion. The state is, just as the church, an in - sti tu tional com mu nity, though, through its struc tural prin ci ple, the state radi cally dif fers from the church. Ac cord ing to this struc tural prin ci ple the state is char ac ter ized as a pub li c le gal com mu nity of gov ern ment and sub jects on the ba sis of a mo nopo lis tic ter ri to rial or gani za tion of the power of the sword. The in ter nal des ti na tional func tion of the state is given in the crea tion of a pub li c le gal com mu nity, which stands in an in - dis solu ble struc tural co her ence with a typi cal his tori cal foun da tion in a mo nopo lis tic or gani za tion of the power of the sword. The salus pub li ca as fun da men tal prin ci ple of the pub li c in sti tu tional law of the state es - sen tially has to be con ceived of as an idea of pub li c law. This pre sup poses in the first place that the state can not as sume an ab - so lute sov er eignty over the other so cie tal spheres that dif fer in prin ci ple from the state. Every form of legal power, that of the state also, is struc tur ally de lim - ited by the in ner na ture of the sphere of life within which it is ex er cised. For law finds its sym bol in the scales of Themis. It re quires, ac cord ing to its na ture, de limi ta tion and counter- balance of every com pe tence by an other one. As soon as one as cribes an ab so lute sov er eignty to the state, one has aban doned the bounda ries of law and col lapses into state ab so lut ism, based upon a dei fi ca tion of the state. Then also the idea of the salus pub li ca de gen er ates into a lever for an un ham pered state ab so lut ism, echo ing the fright en ing sound of the Le via than, the Be he moth. 1 A trans for ma tion of civil law. 2 The state is dead. 97

8 The relation of the individual and community from a legal philosophical perspective The in ner de limi ta tion of the le gal power of the state is given by the in ter nal struc tural prin ci ple of this so cie tal in sti tu tion. The ius pub li cum, con sti tu tive of the in ter nal law of the state as pub li c le gal in sti tu tion, does not per mit serv ice to group in ter ests ex ter nal to the ju ral quali fy ing func tion of the state. There fore, the na ture of the state is ir rec on cil able with the al lo ca tion of privi leges to spe cific per sons or groups. Simi larly, no in di vid ual or group may with draw from the pub li c le gal power of the gov ern ment within the sphere of life of the state. The State as Public Legal Institution For that rea son the state had to com mence its en try into the world scene by start ing to do away with the un dif fer en ti ated spheres of author ity of pri vate lords and so cie tal col lec tivi ties which with drew their sub jects from the le gal power of the state. In or der to achieve this aim the pub li c le gal prin ci ple of freedom and equal ity has to be pur sued. It also forms the ba sis upon which civil le gal pri vate free dom and equal ity are to be at tained. As long as it is pos si ble for pri vate lords and for pri vate so cie tal col lec tivi ties, to ex er cise an ex - clu sive and un dif fer en ti ated power over their sub jects, there is no room for a truly ius pub li cum and for a truly civil ius pri va tum. It is only the state, on the ba sis of its pub li c le gal power, that can open up to the in di vid ual per son a civil le gal sphere of free dom, pro vid - ing that per son with a guar an tee against the over ex er tion of power by spe cific pri vate com mu ni ties and also against an over ex er tion of the pub li c le gal power it self, as long as the pub li c of fice bear ers keep alive an aware ness of the in ner lim its of their com pe tence. The state, in view of the in ner na ture of the ius pub li cum, does not have the com pe tence to bind the ex er cise of civil pri vate rights to a spe - cific social-economic destination, simply because the ius pub li cum in - trin si cally lacks any spe cific eco nomic quali fi ca tion. It lacks this com pe tence also be cause civil law leaves it to pri vate auton omy, in the ex er cise of civil pri vate rights, to de ter mine its own spe cific des ti na tion. There fore, the mod ern so cio logi cal doc trine con - cern ing le gal abuse in civil pri vate law, em ploy ing as a cri te rion the use of a sub jec tive right con tra dict ing the social- economic des ti na tion for which it was given (com pare ar ti cle 1 of the so- called Civil Codes of the So viet Re pub lics), can not be rec on ciled with the foun da tions of civil law. It is a cau tion ary ex am ple of the un der min ing in flu ence that the idea of droit so cial, in its over ex ten sion, ex erts on civil pri vate law. 98