dimanche 12 février 2017

Herman Dooyeweerd: TAMING LEVIATHAN: State Intrusion in Church, Economy, Family etc

 Image by Fearghas MacFhionnlaigh
(adapted from original engraving "Destruction of Leviathan" 
by Gustave Doré 1865
State Intrusion in Church, Economy, Family etc
Extracts from "The Crisis in Humanist Political Theory" 
by Herman Dooyeweerd (1931) 

Dooyeweerd's 15 "Law-spheres" 
(also called "Aspects", "Functions", "Modalities", "Modes of Consciousness" etc) -

NORMATIVE (post-analytical) 
15. Pistical/ Faith-related  
14. Ethical
13. Juridical / Justice-related
12. Aesthetical 
11. Economical
10. Social
9. Lingual/ Symbolical
8. Cultural/Formational/Historical
7. Analytical/ Logical

NATURAL (pre-analytical) 

6. Sensory
5. Biotical
4. Physical
3. Kinematic
2. Spatial
1. Numerical
STATE (Juridical Law-sphere)
Finally then, I would like to give in conclusion a few practical examples to illustrate our new-found criterion for applying the cosmological principle of sphere-sovereignty to the area of law. Based on my previous comments on the integrating role that the modern state plays in relation to non-state law, I shall also use the opportunity to clear up some misunderstandings that have already arisen in certain quarters about my view of sphere-sovereignty in the juridical field. I shall choose my examples mainly from internal church law and internal corporate law. I must emphasize that I shall not be speaking of what is desirable from a political point of view, but only of the strictly material legal limits to internal state-sovereignty.

[...] Judging the material legal question among the internal differences of organized communities would force the civil judge to take sides in an area of internal law that falls under the meaning-individual guidance of the destination function of such an organized community. [ie, sports team, orchestra, church congregation, book club, vintage car society, etc. (FMF)]

CHURCH (Pistical Law-sphere)
Suppose, for instance that someone would file an action in a civil court based on Article 1401 of the Civil Code, in order to establish the unlawfulness of an ecclesiastical decision to suspend or defrock a minister. Imagine further that the judge would want to go behind the formal juridical question (whether a rule of internal church law had formally been violated) and initiate an investigation into the material question of law (whether the minister had, in fact, deviated from official doctrine). One senses immediately that this would land the judge within the area of internal ecclesiastical law. But that would be impossible without taking sides in a question of faith and doctrine, in which a civil judge is not competent. And a state legislator is even less qualified to get involved in such internal questions of church law. If he does so anyway, the resulting legislation will merely have the subjective form of law but cannot be recognized as binding positive law.

On the other hand, by virtue of its juridical sphere-sovereignty the state is fully competent to guard against the church if she were to assume rights in the public domain the exercise of which would endanger the internal order of the state. This would hold even if such ecclesiastical activities possessed a pistically qualified structure [ie determined by the Faith-related Law-Sphere (FMF)]. The church cannot claim sphere-sovereignty in the internal order of the state [Juridical Law-Sphere].

Far more controversial than the juridical sphere-sovereignty of the ecclesiastical community is that of the enterprise as an economically qualified organized community. How can the criterion as we have defined it apply in this case? The problem is indeed extremely complicated here because the "leading function" [ie the compelling Economical Law-sphere dynamic (FMF)] of the enterprise itself can never guide the process of making positive law. Another reason is that a large modern enterprise with its immense, and often international, concentration of economic power has a massive impact on the internal life of the state, indeed on the whole of human society. 

On the other hand, since the previous [19th] century the modern state has begun to intervene in the world of economic enterprise with mounting intensity by means of social legislation. Moreover, the state, either by itself or via its subdivisions (provinces and municipalities), exploits various enterprises in monopolistic fashion; the state has become a shareholder in large private firms; and so on and so forth.

[...] In short, the life of the state and the life of the economic enterprise have in modern times been intertwined by a thousand fibers. 

Taking all this into account, how are we to give practical application to the meaning-criterion for juridical sphere-sovereignty in the area of economic enterprise? Once more we begin by emphasizing that internal corporate law differs fundamentally from internal church law, internal family law, and the like, in that it is firmly linked to the "leading function" of the enterprise but that this "leading function" can be applied here only as a meaning-individual substrate of organized communal law. Internal corporate law itself can only receive genuine guidance, a deepening of its meaning, from later meaning-functions (the moral and the pistical) while always fully maintaining its meaning-individual foundation.

Thus the state through its social legislation at one time put an end to the legal defenselessness of the economically weaker party which, under the pernicious slogans of the Manchester school, had de facto been reduced to wage-slavery. Similarly, once the ban on "combinations" was lifted, the trade unions, using their increased historical and economic power, de facto terminated the fiction of  individualistic freedom of contract and launched the battle for just working conditions.

On the other hand, it belongs equally to the competence of the state legislator, with his right to govern, to guard against potential excesses of modern trusts and cartels by which consumers unjustly become victims of restricted production, inflated prices, and so on, aimed at making exorbitant profits. Yet we must also realize that we should not exaggerate the danger of such excesses because, thanks to the cosmic coherence of the law-spheres, they could backfire on the entrepreneurs.

However, it can never be part of the competence of the state to interfere in the internal structure of corporate law. The internal authority of an enterprise does not derive from the authority of the state.  Suppose government legislation would make it mandatory for all economic enterprises of a certain size to install employee councils which would share authority in the internal guidance of the enterprise with the employer [...] In such cases the state would overstep the juridical boundaries of its position as government and indeed usurp an economic guiding function, which it cannot possess by virtue of its cosmic structure.

Wherever the state functions as a governing community, it must never allow its actions to be guided by the meaning-individual leading function of the economic enterprise as a free organized community. Ultimately, maintaining the sphere sovereignty of the internal law of organized communities can only lie with the highest authoritative organs of those organized communities themselves. And as we have seen, the criterion for this is not open to their subjective choice but resides in the divine laws for the structures of these communities themselves.

Seen in this light, no subterfuge is acceptable that would once again submit the assessment of the material boundaries for the state's competence versus other communities exclusively to an administrative court of the state itself, in whose decisions the non-state communities would then have to acquiesce. The Leviathan state may for a time factually violate the juridical sphere-sovereignty of non-state communities by brute force. But juridically the state lacks any overriding competence whatsoever vis-à-vis the sphere-sovereignty of non-state communities.

Never can the state coerce non-political communities into compliance in their internal meaning-structures as though they were its subjects, which it can do in their external position as subjects of the government (for instance, in the execution of taxation debts and so on and so forth). The directors of a firm, for example, can never be prevented by the state from closing their enterprise as a consequence of their unwillingness to comply with rules given by the state which interfere unlawfully with the internal structure of the enterprise and which they cannot square with their own independent sphere of responsibility. When this occurs in mutual solidarity, a power struggle is unleashed.

Nor should we overlook the fact that every positive legal order, if it has kept to its divine foundation, by itself offers remedies, one way or another, against such transgressions from the side of the state. This it does by suggesting ways and means to render the enforcement of the substance of such arbitrary decrees impossible.

FAMILY (Ethical Law-sphere, ie "Love/ Troth")
[...] So long as organized communities are a necessary factor in the inner vitality of a nation, the state has indeed the meaning-individual juridical task, by virtue of the leading function of its structure as an organized community, to take measures that support, restore and stimulate the life of non-political communities. Primarily this applies to the natural organized communal life of the nuclear family, insofar as this is threatened in its normal structure by the devastating effect of sin. But in the widest sense of the word, too, this competence of the state is valid for the world of enterprise and for cultural communities.

One must not think, however, that when the state takes measures such as depriving parental rights, appointing a guardian for the children, and so on, it materially interferes with the internal structure of the family bond. For such measures are adopted only when the internal structure of the family community has itself already been disrupted. Nor does the state interfere because it possesses absolute sovereignty over non-state communities in their internal structure, but rather because as state it has to ensure the preservation of the nation, in the life of which the family plays such a basic role. In this emergency situation the state uses its governing authority to provide artificial supports to these communities that threaten to disintegrate, as an emergency substitute for a natural structure that factually no longer exists.

[...] It is a profound fallacy to insist that in this temporal world order there has to be an authority that is capable of overruling absolutely every other authority in a juridical sense, under the pretense that otherwise anarchy would reign. God did not ordain any "absolute power" in time. The truth is that it is precisely the theory of the state's totality of juridical power that rests on an anarchistic, revolutionary basis, because it ignores the divine structural laws of human society.

Everyone acquainted with life knows that there are material limits to the competence of the state. It is unworthy of legal science to ignore the connection between law and life through a sterile formalism. Rather it should base itself on a cosmology that is capable of meaningfully clarifying these limits and indicating an unambiguous criterion for them.

[...] Neither the arbitrariness of a government nor an arbitrary contract is in itself a source of law. In all its individual forms, positive law is always the positivizing of divine jural principles, whose structure is determined by the divine world order.

Extracts from "The Crisis in Humanist Political Theory"
by Herman Dooyeweerd (1931)
(Paedia Press, 2010, pp 152-161, 178-179)

See also:
'Sphere-sovereignty', 'sphere-universality', Christian responsibility to join the struggle of historical 'opening-process' -
Website of pages on Dooyeweerd's identification of the normative parameters of the State,
 ie 'territorial power' and 'pursuit of justice' -