 |
| Klinom Krasnim by El Lisitskiy (1920) |
HERMAN DOOYEWEERD:
We refuse to call chaos a “legal order”
(Extract from Herman Dooyeweerd’s essay ‘The Structure of Jural Principles and the Method of the Science of Law in Light of the Cosmonomic Idea’/“De structuur der rechtsbeginselen en de methode der rechtswetenschapen het licht der wetsidee,” 1930. Translated by D. F. M. Strauss)
Coming back to the example of revolutionary Russia’s marriage law, we first have to point out – as Freund remarks in his well-known commentary on this legislation (H. A. Freund, Das Zivilrecht in der Sowjetunion, Leipzig, 1927) – that the Russian and White-Russian soviet republics, unlike the practice in the Ukraine, have cut all ties between the institution of marriage and church and state alike. Here the state has largely given up its integrating involvement in regulating marriage, particularly with respect to solemnizing or dissolving it. This is similar to what the state intended to accomplish by removing the church from involvement with marriage. The civil solemnization of marriage is unknown; and what happens in the church is of no concern to the state. There is an option to officially register a marriage, subject to certain requirements, but it is purely declarative, not constitutive (as it is in The Netherlands). What is found next to each other with equal rank are common-law marriages,which differ from “free love” by no more than certain features of a communal bond, and registered marriages. Registration has significance only as evidence.
All of this should be kept in mind when interpreting marriage law in revolutionary Russia. The “revolutionary theory” of the framers of law does not make law. It is historically interesting as a subjective cultural phenomenon, but as positive law it has neither validity nor meaning. When a state, partially or totally, abandons its integrating involvement with marriage law, then – if indeed a positive marriage law is to be created at all – its task must be taken over by the natural (in any event non-state) framers of law.
The stipulation that a marriage can be terminated simply on the basis of the mutual consent of husband and wife, or that it can even be terminated in consequence of the unilateral wish of one of the two marriage partners, simply lacks every possible meaning as positive marriage law. Its juridical meaning can only be that of a stipulation directed at magistrates not to bother about grounds for divorce.
Freund, too, understands these stipulations in this sense and he adds the remark that liberating the termination of marriage presupposes a high sense of responsibility among the marriage partners that is lacking at present. For that reason the consequences of this letting go of an important piece of integrating law of marriage can be quite serious when the natural formers of law, for example, fail to understand their task and take the completely negative prescription of the state to entail a carte blanche to act completely arbitrarily.
Freund points out that the relatively short period of time that this revolutionary divorce paragraph has been in force has already caused real chaos in sexual relations in the industrial cities, and that the government has been forced to introduce constraining measures. Because the natural framers of law have failed to regulate marriage in response to the state’s stepping back, no law at all has been created to regulate the termination of marital life, and instead of positive law chaos reigns. […]
Finally, an apparently obvious objection against our view of the relation of jural principles to positive law ought to be considered.
Is it not our theory that is revolutionary in nature, since it takes the liberty to test the validity of statute law as positive law against “principles” that are absolutely not accepted by everyone? We can face this objection with equanimity, since it is really directed at a straw man.
It is not the legislator that determines subjectively what is marriage, what is property, what is a mortgage, and so forth; for all these institutions have a law-conforming foundation transcending human subjectivity in the cosmic order set by God for our temporal world.
If this were not so, if law in its richly differentiated structure is a creation of human arbitrariness, no science of law would be possible. Then the requisitory of Kirchmann would apply: “Three amendments by the legislators, and whole libraries turn into scrap.” (Julius von Kirchmann, 1808-84), ‘Drei berichtigende Worte des Gesetzgebers und Bibliotheken werden Makulatur’).
Judging whether or not human stipulations are indeed positive law is not dependent upon the subjective discretion of the individual human understanding (that would be the consequence of humanism’s individualistic natural law as well as of “critical positivism”!). That judgment lies with the supreme judge of all drab theory: namely, legal life in its cosmic law-conforming structure and its materially competent agencies.
No human society can exist without a true legal order. It is not possible to erect such a legal order by setting aside the divine jural principles in their cosmic-organic structure. “Arbitrary revolutionary legislation” – as witness the historical development of law – has never succeeded in forming [true] law. Any time it lacks the momentary support of brute force it turns out to be a paper construction. The scornful laughter of divine nemesis will ring over such “law” whenever human pride claims to form law other than based upon the jural principles ordained by God. And the sharp point of the bayonet that does not serve the cause of justice can form law as little as the paw of the lion that crushes its victim. As Althusius put it: “There is no civil law, nor can there be any, if it does not contain something of immutable equity natural and divine. If it departs altogether from the meaning of natural and divine law [ius] it is not to be called law [lex] but is actually unworthy of the name.” (Johannes Althusius, Politica Methodice Digesta).
All of this should be kept in mind when interpreting marriage law in revolutionary Russia. The “revolutionary theory” of the framers of law does not make law. It is historically interesting as a subjective cultural phenomenon, but as positive law it has neither validity nor meaning. When a state, partially or totally, abandons its integrating involvement with marriage law, then – if indeed a positive marriage law is to be created at all – its task must be taken over by the natural (in any event non-state) framers of law.
The stipulation that a marriage can be terminated simply on the basis of the mutual consent of husband and wife, or that it can even be terminated in consequence of the unilateral wish of one of the two marriage partners, simply lacks every possible meaning as positive marriage law. Its juridical meaning can only be that of a stipulation directed at magistrates not to bother about grounds for divorce.
Freund, too, understands these stipulations in this sense and he adds the remark that liberating the termination of marriage presupposes a high sense of responsibility among the marriage partners that is lacking at present. For that reason the consequences of this letting go of an important piece of integrating law of marriage can be quite serious when the natural formers of law, for example, fail to understand their task and take the completely negative prescription of the state to entail a carte blanche to act completely arbitrarily.
Freund points out that the relatively short period of time that this revolutionary divorce paragraph has been in force has already caused real chaos in sexual relations in the industrial cities, and that the government has been forced to introduce constraining measures. Because the natural framers of law have failed to regulate marriage in response to the state’s stepping back, no law at all has been created to regulate the termination of marital life, and instead of positive law chaos reigns. […]
Finally, an apparently obvious objection against our view of the relation of jural principles to positive law ought to be considered.
Is it not our theory that is revolutionary in nature, since it takes the liberty to test the validity of statute law as positive law against “principles” that are absolutely not accepted by everyone? We can face this objection with equanimity, since it is really directed at a straw man.
The revolutionary subjectivism of the humanistic theory of natural law consists in (a) its failure to analyze the principles of natural law on the basis of the objective cosmic coherence (the “nature of the matter,” as Roman jurists called it), and (b) its deliberate attempt instead to deduce natural law, more geometrico, from its subjective ideas of reason by embarking on a methodical breakdown of the structure of the jural sphere.
In essence, what is revolutionary is the conception of law present in positivism and political absolutism, because in its aim to set aside the divine structural ordering of jural life it is forced to pass off revolutionary chaos as “law.” The essence of the revolutionary conception of law consists in its rejection of divine ordinances for jural life.
By contrast, our conception rests upon the most solid basis that a theory can have: the cosmic structure itself, as ordained by God’s sovereign creational will. It does not “construe” according to arbitrary premises, but interprets all human formation of law in accordance withits cosmic jural meaning.
No lawmaker – not even one who radically denies the existence of God – can withdraw from the divine law-conforming structure of the jural sphere; for whenever he tramples upon the divine ordinances for the formation of law no law is formed, but only chaos – in a way that is plain for all to see and is convincing to the lawmakers themselves.
In essence, what is revolutionary is the conception of law present in positivism and political absolutism, because in its aim to set aside the divine structural ordering of jural life it is forced to pass off revolutionary chaos as “law.” The essence of the revolutionary conception of law consists in its rejection of divine ordinances for jural life.
By contrast, our conception rests upon the most solid basis that a theory can have: the cosmic structure itself, as ordained by God’s sovereign creational will. It does not “construe” according to arbitrary premises, but interprets all human formation of law in accordance withits cosmic jural meaning.
No lawmaker – not even one who radically denies the existence of God – can withdraw from the divine law-conforming structure of the jural sphere; for whenever he tramples upon the divine ordinances for the formation of law no law is formed, but only chaos – in a way that is plain for all to see and is convincing to the lawmakers themselves.
It is not the legislator that determines subjectively what is marriage, what is property, what is a mortgage, and so forth; for all these institutions have a law-conforming foundation transcending human subjectivity in the cosmic order set by God for our temporal world.
If this were not so, if law in its richly differentiated structure is a creation of human arbitrariness, no science of law would be possible. Then the requisitory of Kirchmann would apply: “Three amendments by the legislators, and whole libraries turn into scrap.” (Julius von Kirchmann, 1808-84), ‘Drei berichtigende Worte des Gesetzgebers und Bibliotheken werden Makulatur’).
That we refuse to call chaos a “legal order” must have the assent of all for whom the concept of “positive law” has not lost all meaning and who can still distinguish between the commands of a band of robbers and the norms of justice! (Augustine, The City of God 4.4: “Without justice, what are kingdoms but great robberies?”)
Judging whether or not human stipulations are indeed positive law is not dependent upon the subjective discretion of the individual human understanding (that would be the consequence of humanism’s individualistic natural law as well as of “critical positivism”!). That judgment lies with the supreme judge of all drab theory: namely, legal life in its cosmic law-conforming structure and its materially competent agencies.
No human society can exist without a true legal order. It is not possible to erect such a legal order by setting aside the divine jural principles in their cosmic-organic structure. “Arbitrary revolutionary legislation” – as witness the historical development of law – has never succeeded in forming [true] law. Any time it lacks the momentary support of brute force it turns out to be a paper construction. The scornful laughter of divine nemesis will ring over such “law” whenever human pride claims to form law other than based upon the jural principles ordained by God. And the sharp point of the bayonet that does not serve the cause of justice can form law as little as the paw of the lion that crushes its victim. As Althusius put it: “There is no civil law, nor can there be any, if it does not contain something of immutable equity natural and divine. If it departs altogether from the meaning of natural and divine law [ius] it is not to be called law [lex] but is actually unworthy of the name.” (Johannes Althusius, Politica Methodice Digesta).
(Extract from: Time, Law, and History, Selected Essays by Herman Dooyeweerd, Paideia Press, Grand Rapids, 2017, pp 149-150, 152-154)
For this and many other free Dooyeweerd book downloads -
