It is a trivial truth that legal history is not economic history or art history.
For ontological historicism, however, there is an immediate problem: what criterion would permit the distinction of these several domains of investigation? Whatever way you look at it, the criterion itself can never be just historical. Without a concept of law, one cannot practice legal history. Although that concept, in its subjective theoretical character, will have a history of its own, nevertheless as law concept it inevitably tries to grasp in theory the constant modal structure which guarantees the juridical character of legal phenomena.
Anyone who thinks that the legal historian has constantly to adapt his concept of law to the different popular opinions about law, which arise in the various periods he studies, has not yet understood much of the problem we are examining. In the first place, the concept of law is an articulated scientific concept that depends on theoretical analysis of the different modal aspects of society. Popular conceptions of what is just and unjust are not theoretical concepts about the juridical nature of legal life. Even if it were the case that a given legal system had originated from popular convictions, this could not in any way be true of the modal structure of the law itself.
Besides in the second place reference to different popular standards of what is just and unjust, presupposes the legal historian has a concept of law that he could not have derived from those popular conceptions. Only with the help of his law concept can the legal historian distinguish the legal opinions of a people at a given time from their economic, moral or credal convictions, because in the relatively problematic popular consciousness they are never theoretically differentiated from legal convictions.
– From Law and History, Herman Dooyeweerd
Category Archives: Dooyeweerd
Leslie Green continues his critique of his Oxford colleague John Gardner on the relation between law and morality. Here he engages Gardner’s point about the “inescapability of morality” in relation to law — that law is judged by morality, if law isn’t in some way, a moral norm by itself, or a “near natural law.”
The discussion echoes but couldn’t quite identify, the multi-aspectual view, where “positive law” in fact functions in all aspects of reality — it has a moral, social, economic, aesthetic, lingual or historical sides, and so on.As Alan Cameron, who edited the first volume of HD’s Encyclopedia of the Science of Law, put it to me recently, the process of law forming “is not merely the positivisation of a jural norm. It also requires the positivisation of analytical, lingual, social, economic and possibly aesthetic norms. An individual law has it own ‘individuality’ structure – it is some “thing” jurally qualified but displays all the modal aspects (subjectively and objectively).”
Thus a contract is not merely a legal document, it also has a social dimension, or functions in the social realm, as it has a certain history and an economic value (as the sociologists of law have been trying to show).
It should be interesting to note that in HD’s modal scale, the ethical (moral) aspect comes after the legal aspect. Law is prior and foundational to, and anticipates, morality. So there is some correspondence between HD’s and Gardner’s notion of morality, as the former in fact says that the ethical aspect deepens the legal aspect in the process of disclosure.
1. Political theology is understanding how theological concepts are de-sacralized and then re-sacralized in an analogous/analogical sense (not the Thomist kind, mind you!) by politics and/or the study of statecraft.
2. Political theology is NOT public theology as it is popularized today.
3. One can really sense E. Kantorowicz engage Carl Schmitt here as a conversation partner (well, not in the literal sense, since they weren’t contemporaries). Having read Schmitt ahead of E. Kantorowicz eight years ago, the infamous Nazi constitutional theorist makes more sense to me now. I also understand Dutertismo better, seen from the lenses provided by E. Kantorowicz, Schmitt and Giorgio Agamben (ha!)
4. Reading through E. Kantorowicz’s chapters on the Christ-Centered Kingship, the Law-Centered Kingship and the Polity-Centered Kingship: Corpus Mysticum, I can argue from Dooyeweerdian eyes that what he discusses in these chapters is really what we mean by disciplinary differentiation, if in a rough way. Thus:
Ch. 1: the phrase ‘body politic’ often used by later philosophers (Locke and Hobbes, for instance) apparently finds root in the metaphysical theory of the King’s two bodies familiar to Tudor jurists — the indivisible body natural and the body politic. The theory itself developed out of the Christian doctrine of the incarnation of Christ and the Athanasian two natures. The King is dead, long live the King!
Ch 2. Shakespeare’s King Richard II illustrates the tensions and breakdowns of the theory in a subversive era.
Ch 3. In the Norman tracts, the theory gets further traction, the King becoming, as it were, an imitation of Christ on earth, under the notion of germina persona (something like the Lord President today who could do no wrong for that reason!). It is a liturgical kingship, the earthly ruler as christomimetes, the impersonator and actor of christ no less than priest or bishop celebrating the Eucharist.
Ch. 4 It gets more interesting for lawyers like me — the ground now shifts from liturgy to law, as the King becomes the epitome of equity and justice (as the canon lawyers take over, with their familiarity with Roman and ecclessiastical law). Thus the maxim the King is above the law, but is neverthless servant of the Law. The terms necessarily change –it is now a discussion between privata voluntas and persona publica (or private will as against public person).
Frederick II is its poster boy.
So this secularization is to be taken mostly in a positive sense, also pace Casanova (secularization as societal differentiation, marking out distinct boundaries for each sphere that is sovereign in its own orbit (Kuyper’s sovereignteit in eigen kring). So theologians shouldn’t take it out on jurists/political scientists/philosophers if their ideas were used by the latter in ways different from theirs. Also, they really shouldn’t wish things were back to the time when theology was the Queen of the Sciences.
5. This is what we otherwise understand to be the analogical moments that Dooyeweerd speaks of in the formation of disciplinary concepts as the various spheres open up in the process of societal differentiation (disciplines borrow from other disciplines in forming concepts, without transgressing the integrity of their own disciplinary concerns).
6. If we follow E. Kantorowicz (who was an atheist, by the way) –and now that we’re marking the 500th year of the Protestant Reformation — there’s not much to the often-repeated thesis that modernity (read as BAD secularization) is the fault of Protestants. Well, he does mention the nominalists here, but only in a very tangential way (take that, Milbank et al.) You can blame Dante for that. Or Marselius de Padua, or the Roman jurists. Or Frederick II. Or Paul of Tarsus. Take your pick. Heck, Roman Catholicism could very well have bred the seeds of secularization, if we follow Kantorowicz’s account! (For an alternative reading of secularization in the BAD sense, see Dooyeweerd’s essay on the Secularization of Science).
7. I wish this book were one of the assigned texts, along with Harold Berman’s two volumes on the development of law in the Western tradition, when I was reading legal history in law school.
(Nota bene: This is a slightly revised version of a post I earlier made on my Facebook account).
Politicians, courts and activists invoke the “public interest” at the drop of a hat, the better to marshall it in support of a favored doctrine or project. But consider this:
For the sake of the public interest Plato and Fichte defended the withdrawal of the children from their parents and wanted their education to be entrusted to the body politic. With an appeal to the public interest Plato wanted to abolish marriage and private property as far as the ruling classes of his ideal State were concerned. Aristotle wanted education to be made uniform in ‘the public interest’; on the same ground Rousseau wished to destroy all the particular associations intervening between the State and the individual citizen. Wolff desired the body politic to meddle with everything human and, at least for the Protestant Churches, he wanted the government to fix the confession.
The idea of the ‘salus publica’ was the hidden dynamite under the Humanistic natural law theories of Hugo Grotius and S. Pufendorff. In Chr. Wolff’s doctrine of natural law this idea resulted in a frankly admitted antinomy with his theory of innate natural rights. The slogan of the public interest was the instrument for the destruction of the most firmly established liberties because it lacked any juridical delimitation. The terrible threat of Leviathan is audible in this word as long as it is used in a juridically unlimited sense. The universalistic political theories could conceive of the relation between the State and the non-political societal structures only in the schema of the whole and its parts. This is why they could not delimit the idea of ‘the public interest’.
(“Dooyeweerd 1997–III: pp. 442–443)
One of the things I appreciate about reformational philosophy is the rightful place it gives to our ordinary, naïve experience. Naïve experience does not mean in a pejorative sense, the gullibility of our experience of the everyday, but rather, it refers to the way in which human beings experience things in their seamless totality: Herman Dooyeweerd’s favorite box of Havana cigars, in ordinary experience, is a box of Havana cigars, in the concreteness of reality. But the moment we confront it with theoretical thought, we start abstracting from it certain of its various sides: the aesthetics, the legal, the economic, the social, the historical, and so on. Naïve experience is not dismissed, but properly accounted for, as part of the the task of theorizing about reality.
Thus, in his first major work, Encyclopedia of the Science of Law, he criticizes what Richard Rorty would call the view of philosophy as” the mirror of nature,” for reducing created reality to a matter of sensory perception:
For my untheorized conception of reality, this little table is no longer this little table as soon as theory attempts to reduce what is given to a system to a system of abstract psycho-chemical formulas. The full reality of the thing as we experience it in everyday reality also has its objective-sensory form, its objective coherence of logical attributes by which it is differentiated from other things, its objective meaning in language, its function in social intercourse and interaction, its economic value (I can immediately observe whether it is an expensive or a cheap article), its objective beauty or ugliness, its function as a legal object (it belongs either to me or to someone else), etc.
Insofar as a thing also functions in the normative aspects of reality, naïve experience subjects it without objection to norms, not as a responsible subject, but as an object, as a thing. The table, for example, is well or poorly formed, pretty or ugly, nice or not nice, expensive or cheap, etc.
The peculiarity of naïve experience reveals itself in the fact that our thought does not set its logical-analytical aspect over against the distinguished nonlogical aspects of reality; it does not make an aspect into a problem – into a Gegenstand, as the Germans call it – of knowledge, but reveals itself in the fact that our thought instead remains naively incorporated into full temporal reality, that is to say, it experiences the psychical, logical, and the remaining normative functions of things as indissoluble constituents of an in reality.
Wherever, in some fashion or other, we abstract in our thinking a Gegenstand out of concrete reality, we are not dealing with the naïve but with the theoretical attitude of thought. This is the source of the error in the view which seeks a kind of theory of knowledge in naïve experience, such as, for example, the “copy theory.” Epistemology understands this to be the view that a (physical) thing-reality, enclosed within itself, is reproduced in our consciousness like a photographic image, As if all of temporary reality could be reduced to sensory impressions!
It is scientific thought that initially separates temporal reality into its various aspects and sets the nonlogical aspect as a Gegenstand, as a problem, over against the logical function of concept-forming. To this end it must abstract these aspects out of their given indissoluble coherence by way of theoretico-logical analysis. It should certainly be clear that theoretical thought is indeed thought that subtracts something from full reality. The special sciences have broken up reality into compartments; but all of the special sciences together, in their mutual complementing of one another, cannot bring us to a knowledge of reality in its unbroken unity. Piecing together the slices cut from an apple does not give us back the original piece of fruit (HD, ESL, The Collected Works, 27-28, Series A, Volume 8/1 ed. Alan M. Cameron, 2012) [emphasis supplied].
Other reformational philosophers after Dooyeweerd have of course, taken issue with his discussion of the place of the logical aspect in the Gegenstand relation, but that is for another post. For now, it suffices to note the important implications of Dooyeweerd’s approach to the interdisciplinary approaches to the study of reality: it is not only necessary but inherent to the multi-aspectual nature of reality itself.
for the source of the image, click here.
The Guardian recently published an essay by the American legal scholar Eric Posner on the failure of human rights to live up to its utopic promise. Posner flails at the top-down approach the UN human rights system has propagated around the world, despite the ambiguities and contradictions that the complex of human rights laws are stricken with. He concludes his essay with a plea for a new approach, thus:
It is time to start over with an approach to promoting wellbeing in foreign countries that is empirical rather than ideological. Human rights advocates can learn a lot from the experiences of development economists – not only about the flaws of top-down, coercive styles of forcing people living in other countries to be free, but about how one can actually help those people if one really wants to. Wealthy countries can and should provide foreign aid to developing countries, but with the understanding that helping other countries is not the same as forcing them to adopt western institutions, modes of governance, dispute-resolution systems and rights. Helping other countries means giving them cash, technical assistance and credit where there is reason to believe that these forms of aid will raise the living standards of the poorest people. Resources currently used in fruitless efforts to compel foreign countries to comply with the byzantine, amorphous treaty regime would be better used in this way.
Those familiar with contemporary discussions of the role of international law in the promotion of democratic ideas will recognize many valid concerns in Posner’s essay. Indeed, democratic theory in international law — by extension includes human rights theory — has often drawn criticisms that it is fundamentally a Western, liberal democratic imposition. For example, the Finnish scholar Martii Koskenniemi rejects the universal claim of international law (specifically democratic theory) as rooted in a European tradition and should not and could not speak for humanity.
He warns that such a tradition of liberal democracy may yet end up as another hegemonic imposition on non-Western states, reminding us of his arguments in his book the Gentler Civilizer of Nations about the international lawyers of an earlier era who thought none of the contradictions that came with assigning to international law a civilizing task and at the same time using it as justification for colonialism:
As international lawyers, the only arguments open to us are those provided by our tradition: jus cogens, obligations erga omnes, and all the legal paraphernalia produced by treaties, customs, international institutions. They do not automatically express anything universal: indeed, more often than not they are used as instruments in hegemonic struggles. As soon as we lose sight of this, they turn into kitsch.
For Koskenniemi, there is nothing special about the modern state, or its democratic aspirations. Yet at the same time, he is not about to celebrate the indigenous that easily either. Indeed, Koskenniemi’s has remarked that : the state can either be used for good or bad. But towards the end of his book’s chapter on sovereignty and international law’s supposed civilizing mission, he says that while indeed it may often be suggested from history that “it is better to live in a political society whose administrators speak our language, share our rituals and know our ways of life,” he quickly adds that “there is no magic” about these relationships. Lest we forget, “communities that are closed to outsiders will rot from the inside.”
For me, this somehow stresses Dooyeweerd’s point first of all about the nature of the state as a differentiated public legal community.
Koskenniemi and all his kindred spirits are correct in locating ideas of democracy in the Western tradition. Dooyeweerd’s own account of the development of the theory of the state in its different stages draw from the Western, if largely European experience (with certain Dutch emphases).
A differentiated society, in Dooyeweerd’s systematic philosophy, could only arise from the disclosure of societal structural principles by human positivation. It is a process that is distinctive for its historical embedded-ness. A society could be closed, so that differentiation could not take place. (Koskenniemi seems to realize this as he remarks about the decline communities slide into if they remain in autarkic existence. For all his hesitations, Koskenniemi has implicitly cast his lot with the comfortable choice, that is, his own Western tradition, warts and all. )
We must not lose sight of Dooyeweerd’s argument from history and the directionality of positivations.
The development of a public legal community is so closely bound up with societal differentiation itself that we cannot measure the rest of the world’s pace against the Western experience (or let alone consider the tragic injustices that most of them have suffered in the era of colonization). Skillen had long ago noted that human rights “are tied in with the very meaning of justice and injustice in states and thus cannot be protected or enhanced in abstraction from actual state and interstate structures.”
In other words, if the very character of the sovereign state is part of the problem, every effort to advance human rights without changing the function and identity of states will lead to failure.
There then, is a certain realism to Dooyeweerd’s theory of the state: differentiation is an historical process that demands public commitment. At the same time we must also realize that Dooyeweerd’s theory of differentiation also shines through with a fundamental Christian conviction about the direction societal structures may take: differentiation by itself is not to be equated with development. An integral part of the state’s historical task of disclosure is what the kindred philosopher and economist Bob Goudzwaard has long called the “simultaneous realization of norms,” following his mentor, Dr. T.P. van der Kooy.
This means that the realization of one norm cannot be separated from the others. It also means that the realization of one norm is dependent on those of others. Economic development cannot be pursued for its own sake, independently of the others. The state will have to consider as well considerations of justice and mercy, for example. (For those interested, Goudzwaard discusses the need to simultaneously disclose economic norms with others in his first full-length work, a critique of the Western ideology of progress as embodied in Capitalism, here).
Perhaps, this is Dooyeweerd’s answer to Koskenniemi’s worries that international law is turning into kitsch, (by which he means an imperialistic and racist instrumentalism that looks at the Other as the savage, and the Western self as the epitome of human rights and civilization).
And this does not in any way let off the hook the formers of the cultural way of being from the historical task of building a public legal community. They can only hold it off at the risk of grave injustices to their own constituencies.
The normative view of the state is in fact a strong critique of the supposedly “civilizing” purpose of colonialism. The continuum between power and justice found in Dooyeweerd’s theory of the state suggests that much. No political project can disregard the requirements of justice without risking its adverse consequences. While power is foundational to the state – the monopoly of the sword – it simply cannot survive on that count alone. Power must reach, or anticipate, justice. Power must open up to, and be deepened by, justice.
*human rights themed image taken from the oxfam website.