Herman Dooyeweerd: Christian Philosopher of State and Civil Society

Chapter 9: The Just State

nine The Just State in chapter 8 i investigated dooyeweerd’s account of the distinctive, irreducible identity of the state. Secured by the state’s structural principle, this identity is determined essentially by the specific relationship between power and law. I examined how the founding function of the state is subservient to, and can only be analyzed adequately in relation to, its leading function. The coercive power at the foundation of the state exists not for its own sake but only to sustain the state in realizing its definitive normative destination, which is the discharge of its distinctive task of advancing public justice. The notion of public justice is examined in detail in the next chapter. The task of the present chapter is to penetrate further into the nature of the juridical qualifying function of the state. In the first section the intricate and subtle relationship between law and justice will become clear as I trace Dooyeweerd’s general account of the nature of the juridical aspect. The second section clarifies a major pluralist conclusion emerging from this account: since every social structure functions in the juridical aspect there are multiple spheres of irreducible juridical or legal functioning. This is captured in the central principle of “legal sphere sovereignty,” inviting comparison and contrast with Walzer’s idea of “spheres of justice.” These discussions are indispensable to a sure grasp of Dooyeweerd’s account of the state’s leading function, the focus of the third section. The theme of that section is not so much what kind of things the state does—that is addressed in the next two chapters—but what kind of institution it is in order that it can do those things. A treatment of the legal sphere sovereignty of the state then leads into a consideration of Dooyeweerd’s notions of constitutionalism and representative democracy, the theme of the final section. 186 the Just State 187 Law and Justice The state, Dooyeweerd holds, is a juridically qualified community. More expansively, he characterizes it as a “territorial public legal community,”1 and each of these terms requires careful explication. Here the focus is on his account of the irreducible dimension of reality termed the legal or juridical aspect. His analyses of this aspect and of its typical individualizations are extensive, complex, and sometimes abstruse. Dooyeweerd was by profession a legal theorist. After NC his most substantial work was his multivolume Encyclopaedia of Law, the final version of which ran to over a thousand pages.2 This includes, first, an extensive history of Western legal philosophy.3 Then it sets forth his mature systematic legal theory , the culmination of over forty years’ work developed in several books and numerous articles.4 Only a brief indication of its outlines need be presented here.5 This systematic legal theory is organized as an analysis of the “modal structure of the juridical aspect.” Dooyeweerd holds that this analysis yields the fundamental concepts of jurisprudence, just as a similar analysis of, say, the economic aspect would yield the basic concepts of economic theory.6 It is beyond our purpose to explore these here,7 but a grasp of the general nature and core of the juridical aspect is important for understanding his theory of the state as a legally qualified community . The juridical or legal aspect is a universal, normative, and irreducible aspect of reality. First, the juridical aspect is universally valid, a specific instance of the general principle of sphere universality. Juridical or legal phenomena have no privileged relationship to the state or its judicial organs ; all social structures have a juridical aspect and function juridically. I explore this seminal point in detail in the next section. Second, law is an inherently normative phenomenon. The English language is an impoverished medium for rendering this typically Continental notion. The principal Dutch term for “law” is recht. This can also be translated as “right” or sometimes “justice,” terms usually understood as normative concepts, in contrast to “law,” which in modern English legal language is not (partly due the influence of legal positivism). Hence when the adjective rechtelijk is translated as either “legal” or “juridical” 188 h e r m a n D o o y e w e e r D its normative connotation is lost. Dooyeweerd frequently uses these two terms to refer to the legal or juridical aspect, and to the state as qualified by this aspect. He also uses...