civil society and
the public domain
19.1. Actors on the public domain
19.2. Historical views on state and society
19.3. The origin of authority
The generic character of any association
19.5. The organisation of an association
19.6. A strong state and
a strong society
Encyclopaedia of relations and characters. 19. The civil society and the public domain
on the public domain
This book is concerned
with relations and characters. The difference between associations and communities, between the civil society and the public domain reflects this distinction. The public domain will be conceived as the set of public objective and intersubjective relation networks, often forming communities. Here three kinds of actors operate: individual persons; different kinds of associations like enterprises, hospitals, churches or clubs,
each having a specific character, together constituting the civil society; and
the state as the guardian of the public domain, with its generic character of being an association among others, and its specific character as a republic, serving the res publica.
Of old, individual persons were everywhere active in public, but free associations become more and more dominant as social players on the public domain.
social group of people without leadership may be called a community. Instances are a lingual community; a nation or people; a social class or caste; a culture or a civilization;
a party during a reception; or the public during a concert. A community has a social coherence, forming an intersubjective network, often sustained by an objective network,
like a lingual community requires a common language. A lingual community and the public opinion are not active subjects, no more than Christianity, the market, society, a (sub-) culture, or a civilization. Communities cannot work, talk, act, show respect for
each other, or negotiate. They do not bear responsibility and are not answerable. Sometimes a community is objectively determined by an artefact, like a lingual community by a language; sometimes by a common ideology, like communism; sometimes by a connection
with an association, like a nation or people is connected to a state; sometimes it is related to an event, like a party with a birthday. The suggestion that an unorganized community may act as a subject is at most a metaphor.
This does not exclude a peculiar kind of activity within a community, influencing the accompanying objective networks. Fashions, the markets, languages, the public opinion, etc., continuously change
because of irregular subjective interactions between the actors on the public domain, much like a herd of beasts or a swarm of birds behaves communally without leadership. The individual freedom of the actors on the public domain implies that their acts are
to a large extent unpredictable, but it turns out that their collective behaviour is subject to statistical laws, allowing of, for instance, life insurances. This does not mean that communities do not have reality or would be unimportant. The public domain
consists of a variety of communities, each characterized by one of the normative relation frames: the technical infrastructure (10.6); festivities shaping communities (11.5); the language communities (12.7); nations as communities (12.8); fields of science
(13.4); the ecumene (14.1); social relation networks (15.8); and markets (16.6)
Any organized social group with members and leadership may be called an association. Herman Dooyeweerd calls this an organized community, whereas for what I call a community he uses the term ‘interindividual and inter-communal relationship’, later abbreviated to ‘interlinkage’.
It is also known as a corporation, a company, a union, an institute like a church or a nuclear family, a congregation, or a club. As an organized whole an association has authority and discipline. Its board (whether monocratic or collective) determines the
course of affairs within the association and represents it outdoors. For that it is empowered and entitled. It acts on behalf of the association like an individual person. Any association has members, sometimes called citizens (of a state) or employees (of
an enterprise or a school). Some associations, like the United Nations Organization, have associations (in this case, the states) as members.
Because an association
maintains its identity at the leave of members from the association and the resignation of members of the board, it may be considered as a subject itself, with its own character, actively subjected to normative principles and involved with their realization
into norms. As far as it concerns its functioning on the public domain, it is called a ‘legal person’. Usually, the authority is restricted to members of the association (and to the objects possessed by the association) and within
the association by the freedom and responsibility of the members of the association.
An association can act as a subject, like a person, because it has its own continuous
identity, independent of the identity of its members. Members can leave and new members can join the association. An association can remain to exist even if its first members, its founders, have withdrawn their membership or are deceased. Like any individual
an association has a name and an address. A flag, logo, or ideogram, and a mission statement symbolise the association’s identity. It is important if its members can identify themselves with the association, socializing them. In a household any member
should feel at home. As a metaphor this also applies to other associations. Immigrants are supposed to do their utmost to struck root in their new country. This is no less true for new members of any other association.
The governor or governing board of an association has a restricted and temporal competence to act with authority within and on behalf of the association. Its authorization rests on the recognition by its members,
on discipline. ‘Political power is ultimately based on social cohesion.’ The governors cannot long continue to act within the association if they fail to earn the respect of its members, for instance by neglecting to consult them. They are accountable to their members. From the other
side, the members of an association ought to have respect for the leadership, and for each other, expressed by mutual solidarity and a sense of communality, by connectedness, otherwise the association will explode sooner or later. These are normative principles, which not every association satisfies. Sometimes an association only exists by the grace of the exertion or threat of violence. This may occur in a state, a criminal gang, or
a terror group, and also in a marriage or a household.
The republic as the guardian of the public realm and the protector of freedom was always present in one form
or another after humanity became settled, but since the Middle Ages, the public significance of other associations increases explosively, such that the open future of the public domain seems more in the hands of free associations (churches, enterprises, NGO’s)
and associations of states (UNO, NATO) than in those of the various states apart. Their mutual relation is under duress because of widely different views on the relations between the state and other associations; the relations among states and their sovereignty;
the relations among associations and with individuals; and the freedom and responsibility of individuals and of associations. All these mutual relations promote or inhibit their dynamic development, in particular where they meet each other on the public domain.
The necessity to develop forces them to reflect on their characteristic identity, especially if this is threatened by external influences. Structurally, the general trend seems to be that associations become less intertwined with associations of a different
type, contrary to the trend that they get more publicly involved with each other. The church takes distance from the state, enterprises return to their core activities, trade unions discharge activities which are not directly related to the promotion of labourers’
interests, and families suffer the loss of many functions.
The leading motive of chapter 19 will be the freedom and responsibility of citizens and associations acting
in a civil society on the public domain, to be warranted by the state. This requires both a strong society and a strong state.
Encyclopaedia of relations and characters. 19. The civil society and the public domain
19.2. Historical views on state and society
on the meaning of associations as part of a civil society differ widely. Opposite to the Protestant view that each association has a character of its own, with sphere sovereignty independent of the character of a state, one finds the family based society;
Catholic and romantic organicism; liberal individualism; socialist collectivism; and post-modern historism. Section 19.2 briefly reviews these ideologies, finding that associations have strongly influenced the development of the Western civil society, and are starting to do so in the rest of the world, moving toward an
increasingly open future of the public domain. We shall see that the freedom of associations to act on the public domain is strongly connected to the freedom of individuals to do the same.
A tribal society based on a nomadic band or an agricultural tribe rests on subordination; on the distinction of men and women; of close and removed family
members; of masters and servants or slaves; of patrons and clients; of believers and unbelievers. This old social form based on kinship and ancestor worship characterizes an undifferentiated totalitarian society in which someone belongs exclusively to one
community, to wit, the family, band, tribe, or caste, whether or not acting as an association with some kind of authority. When people meet each other, they do so as members of their family or tribe, not as individuals. These communities can be found in the past of all cultures, sometimes still in the Third World, and it is favoured
not only by romantics, but also in some Christian, Jewish, and especially Muslim orthodox circles. In several Muslim countries in the Middle East tribal relations are still dominant. Without these one cannot understand the political situation in Lybia, Lebanon,
Syria, Iraq, Afghanistan, or Pakistan. They often coincide with religious controversies between Christians and Muslims, or between Sunnites and Shiites.
Only in the
Western world tribalism was abandoned in a process which probably started in the sixth century, when and where the Catholic church became dominant. In a tribal society property rights are often determined by kinship. In particular land is not owned by individuals but by a family. After someone deceased their property remained within the family. During the Middle
Ages the church achieved much property, in part because of the tithe of ten percent tax on income. Often it owned up to one third of all cultivated area, being the most important source of income and wealth. The church wanted to keep this property in its own
hand, allegedly because it was necessary to sustain the poor. Therefore it forbade the priests and monks to marry and have children, and it promoted an individualized practice of heritance among the laity, such that after their death they would leave their
property to the church. As a result the tribal society disappeared from Europe much earlier than in other parts of the world.
The relations within an undifferentiated
society may be quite complicated, depending on one’s position in their family and of the family in the tribe. A tribe has many kinds of functions which in a modern society are exerted by other associations or by individuals. By the loss of these functions
the family or tribe has generally speaking no meaning left as an organized group. Only the marital bond and the nuclear family as basis of the education of children remain. The extended family only remains as an unorganized community. This is a relatively
recent Western phenomenon. In many countries family relations still play an important part, for instance in family companies. In a modern society, enterprises in which the employees
consist entirely or mainly of family members are usually very small. Enterprises being the property of a single family are more common.
In the Middle East and elsewhere in Asia and Africa, tribal politics is still common. However, also in the West, ethnicity remained forcefully present. In particular, populism has an ethnic background.
Polis and cosmopolis
In the philosophy of Plato and Aristotle too, the Greek polis is not differentiated.
Their ideal city state (already out of date in their time) is a totalitarian community, a commonwealth, to which everything is subordinated and in which the citizens find their happiness (eudaimonia) and their destiny (telos). In a well-ordered polis, a few rationally trained men govern as philosopher-kings. They direct well-trained spirited
guardians serving as defenders and administrators, whereas the lower classes are engaged in production and commerce. At the city boundaries the political community halts. Only free men have rights, excluding women, slaves, and foreigners. Their mutual connection
is not the family, but friendship. Family ties are subordinated to the polis.
The Roman Empire extended the polis to cosmopolis, in which an increasing number of people
achieved citizen rights, but it still attributed a large autonomy to the familia, including slaves and clients besides family members. The senate consisted of important family heads. The Roman Empire was as totalitarian as the Greek polis, but in both citizens could bring each other to justice.
The assumed, by no means always factual, biotic relationship of the tribe’s members with each other and with their ancestors constitutes
a natural bonding myth for the emergence of the tribe. The ancestors were worshiped as its founders. When tribes were united into a state, a new myth attributed the state a divine origin. The first large empires deified the power of the kings. In order to enhance their authority the rulers were worshiped as God or majesty. Like the Chinese and Byzantine emperors, Charlemagne and his anointed successors believed that they received their authority directly
In the twelfth century the Catholic myth emerged that the state derives its authority from the church and through the church from God. At the end of the Middle Ages, the myth of
the divine origin was weakened by a theory about the right of insurrection. In some countries, hereditary royalty is a remainder of this, in particular if the head of state is simultaneously the head of the state church.
The first association organizing itself independent of family and state was the Christian church, at first repressed, next tolerated, then made into a state organ in the Eastern Roman Empire, and finally in the West
involved in a power struggle with the emerging nation states.
Society as an organism
an organism is originally especially a Western Catholic view, later also contemplated by romantic philosophers. The rise of Christianity stroke at the roots of the totalitarian Roman state. The young church only recognized the emperor’s authority on
worldly affairs. Augustine’s book De civitate Dei assumed the existence of two communities, the city of God and the city of the world, separated because of the
fall into sin.
After in the Roman empire Christianity was elevated to state worship, medieval philosophers and theologians considered society to be an organic bi-unity, consisting of the church
equipped with the spiritual sword, and the subordinated state armed with the secular sword. Martin Luther too adhered to a doctrine of ‘two regiments’. Eastern-orthodox theologians identified the church with the state. If the church is subordinated to the emperor one speaks of caesaro-papism. In many countries, Muslims adopted a similar view, though in Iran the
state is subordinate to the clergy. The relation between the medieval church and state corresponded with that between the human supernatural soul and natural body. The church was concerned with the eternal salvation of people, the state with their worldly
The assumption that the state is subordinated to the church implied first that the state should not be concerned with internal affairs of the church, second
that the church decided which matters belonged to the domain of the church, and which matters belonged to the state’s jurisdiction. According to Thomas Aquinas all communities, except the church, are organic parts of the state, like parts of a body.
This totalitarian view was mitigated by the principle of subsidiarity, stating that each social activity is subsidiary. It ought to support the members of the social
body. The principle of subsidiarity assumes that society exists of a hierarchy of higher and lower communities or organs, of which the state is the highest and all embracing, with the most important norm that a higher organ should not be concerned with what
a lower one can do. In 1931 pope Pius XI confirmed the principle of subsidiarity in the encyclical Quadragesimo Anno, and in particular the Catholic philosopher Jacques
Maritain elaborated it.
Indeed, the principle of subsidiarity is applicable whenever an association as a whole has more or less autonomous parts. Such a relation of
a whole and its parts is found in a state divided into provinces and municipalities; a national or international church with regional dioceses and local parishes; a national party with local branches; a holding company with more or less independent subsidiary
companies; or a chain of shops. The principle of subsidiarity may be considered an important strategy for the internal organization of an association, in which the separate parts receive as much freedom and responsibility as possible. It determines the relation
of both the United States and the European Union (as well as Canada and Switzerland) to its member states. It opposes a centralized government. However, the organicist view on which it is based provides no insight into the relation of mutually independent
associations, because it does not recognize these. At most it tolerates them.
Because the Roman-Catholic Church circa 1965 abandoned the idea of an all-embracing society,
some politicologists now consider the vertical principle of subsidiarity and the principle of sphere sovereignty (also called horizontal subsidiarity, see below) as being slight differences within a converging view that they call communitarism or Christian
pluralism. It is the political philosophy of Christian-democratic and conservative parties in Europe. The principle of recognition of the independence of all kinds of associations is, however, not equivalent to an internal organization principle
within such associations.
Ultimately, in the Western society, the church once more became separated from the state. This led to freedom of faith, the recognition that
any person is free in one’s conscience, being fully responsible for their relation to God. People who are free in their conscience also demand freedom in other respects. The rise of free associations apart from family ties and the state does not accidentally
coincide with the recognition of freedom of faith. It formed the basis of a republican and democratic society, not founded on tribal or nationalistic views, but on free associations.
Medieval European feudalism is a specific form of organicism. It was based on the division of the population into three estates. Nobility and clergy were strongly hierarchical, with the king at the head of nobility and the pope heading the
church. Lacking such a hierarchy, the third estate distinguished free people (especially living in the cities), slaves, and serfs which were bound to the land on which they lived and worked, serving their noble or clerical lord. In North-West Europe
serfdom disappeared in the fourteenth century, perhaps due to the mid-century plague. In Eastern Europe it lasted into the nineteenth century.
Free associations only
existed in the cities. The local guilds were labour associations.
individualism recognizes only individuals to be original members of society. They ought to have as much freedom of acting as possible. Each association is considered to be a voluntary set of individuals, no more than the sum of the members of the set. Individuals may form a union with a determined
goal, based on a contract, which they can break or revise at any time. Liberals reject the specific character of associations. Enlightened natural law scholars like Jean Bodin, Johannes Althusius, Hugo Grotius, Thomas Hobbes, John Locke, Jean-Jacques Rousseau,
and Immanuel Kant, attempted to found the state in the myth of a social contract. (In contrast, John Rawls uses the theory of the social contract to found justice (as did Kant too), not the state.) The state is now legitimized by a voluntary agreement of citizens, a contract in which the citizens transfer their natural rights in part to the collective state. Thomas Hobbes characterized the state of nature
as an unlimited anarchy, but John Locke assumed that people have naturally inalienable human rights, to be respected by any sovereign. The reason for the formation of a state is to warrant these rights. For Jean-Jacques Rousseau not the state, but the community (the people) is the bearer of authority. In the romantic period this became the nation.
Contrary to Bodin, Althusius emphasized that authority should never be an absolute sovereign. At each level in the state, the ruler should be checked by a representation of the
people, a view later developed by Charles Montesquieu. Rousseau propagated the absolute and undivided sovereignty of the people. Hobbes preferred the reign of a single person having the consent of his subjects, because he considered a strong government necessary
to suppress haughty people. For Locke it became a small step to the sovereignty of the parliament. It became a leading motive in British political thought. Because it clashes with the idea of sharing sovereignty in the European Union, it led
to the ‘brexit’ in 2019. The idea of a social contract with checks and balances (5.4) forms the foundation of the constitution of the United States of America.
The theory of the social contract rests on the Enlightenment principle that any individual is autonomous, having primacy above any association. Its critics observed that people
never lived outside a community and contested the view that the state can be seen as a set of autonomous individuals. Anybody is a member of the state without being asked, based on birth, not on a contract. Philosophers defending the idea of the social contract readily admit this to be a theoretical fiction, having no historical
ground. It appears to be more likely that the modern state emerged from a multitribal community. An intermediate form would be a class or caste state, in which people are classified according to their birth status. Both the recognition of individual rights apart from tribe or state and the recognition of the
independence of associations that are not bound to a family or the state, are more recent than the emergence of states apart from tribal ties. The liberation from tribal ties constitutes an important part of the historical development of modern society.
Enlightenment philosophers based the sovereignty of the people on the contract theory. They often overemphasized democracy, without recognizing that this is not characteristic
of the state, with its specific character of being the guardian of the public domain. Rather, democracy is a form of management that can be realized in many associations besides the state. Participation of the members in the leadership confirms the view that
the generic character of any association is founded in relations of keeping company.
the nineteenth century, socialist collectivism arose as a romantic reaction to individualistic liberalism. It too does not allow of much room for independent associations, because it considers society to be the all-encompassing social reality. Collectivism
overemphasizes the public domain, which it often identifies with the state. Calling man a social animal, Karl Marx assumed that whatever a man does has the society as its perspective and should serve the community. According to nineteenth-century romantic
nationalism and twentieth-century fascism, this community was the people, determined by its language and culture. According to national-socialism this was the Volksgemeinschaft,
determined by a common race. According to communism it is the proletariat, represented by the everything embracing communist party. In some Islamic states it is the common faith, laid down in the Koran and in tradition.
For social-democrats, who were usually strongly related to trade unions, the collective is the labour community embracing all institutions and associations, not only the state, factories and companies,
trade unions and political parties, but also families and schools, preparing children for their position in the society conceived as a labour community, as well as clubs, if these fulfil a useful function in society. None of these views has an eye for
the existence of free associations, even if the social-democrats recognize the rights of association and of assembly.
Whereas liberals stress the autonomy and freedom
of any individual, socialists have the tendency to emphasize that human beings are determined by their social environment, as well as by their physical, biological and psychic constitution.
The historistic myth legitimizes the state exclusively on the basis of historical developments, for instance its factual origin from a family or tribe, or a coalition of tribes.
The transition from family groups (for instance of hunters/gatherers) via tribes to states is strongly connected to the increasing population density and the growth of settlements to cities. The people are subordinate to the prince, like the Roman family is subordinated to the pater familias. The monarch is the
owner and his successor the heir of the sovereignty. Therefore there is no clear separation between the fortune and income of the monarch and that of the state. The traditionalist or conservative current within historism (Edmund Burke, circa 1800 and Friedrich Hayek,
second half of the twentieth century) rejects both the theocratic view about the divine origin of authority and the rationalist contract theory. In a long process complex systems like states are made by and for people, ‘results of human action but not
of human design’.
Earlier, Johann Gottfried von Herder, the founder of historism, emphasized that each human community is unique and separate from its neighbours. This
historistic view, denying structural normative principles for associations, has given rise to nationalism (15.8).
From the Reformation to the American and French revolutions,
citizens have liberated themselves from monarchy, nobility, and ecclesiastical hierarchy, taking over the leadership of the network society. In the nineteenth century, when the cities displayed ever more differentiation without much integration, the idea of
a cultural unity transferred from the settlement to the nation. Nationalists believed that the cultural differences within a country could be bridged by an often mystic unity. In the nineteenth century Protestants were more inclined to nationalism than Catholics or Jews, and liberals more than socialists. Often one emphasized the uniqueness of the nation by dissociating from other nations,
getting these in wrong. In Protestant countries one identified the nation with Protestantism, and Catholics and Jews were kept outside the nation, by calling them ‘transmontanists’ and ‘internationalists’ respectively. Nineteenth-century
Austrian-Hungarian and German anti-semitism was initially more nationalist than racist, but it became a fertile breeding-ground for the genocides of the twentieth century. After the rivalries between settlements grew into conflicts between peoples, the search
for the own identity degenerated into the glorification of the nation and atrocious wars. Outside the national borders one only recognized enemies and allies against enemies. Nationalism is a perverse form of historism, because it disdains the history of other peoples, predominating that of its own. Georg Hegel and his adherents have provided this view with a philosophical justification:
‘The self-consciousness of a particular Nation … is the objective actuality in which the Spirit of the Time invests its Will. Against this absolute Will the other particular national minds have no rights: that
Nation dominates the World ...’
The national state, characterized by absolute power, cannot but strive after expansion. This view, influential not only in Germany but also elsewhere in Europe, has led to the
long European war (1914-1991).
Nationalism has proved to be a bad form of integration. It is an attempt to counter the integration of others. It does not contribute
to the historical development of a free society, but is reactionary throughout. Nationalism is a modern form of tribalism, in which one’s own tribe is the measure of society. It does not lead to social integration, but to discrimination and expulsion.
As a competitor of nineteenth century nationalism, the industrial revolution induced the class struggle. Class formation as a social stratification of the poor, middle groups,
and the rich, appears to be a consequence of economic differentiation. However, class distinctions come more to the fore in differences of descent, education, training, use of language, intelligence, faith, habits, wealth, and income. It is expressed by the
popular opposition of ‘the people’ and ‘the élite’.
The twenty-first century saw an upsurge of nationalism, most successfully with rulers
like Vladimir Putin, Recep Tayyip Erdogan, Viktor Orbán, Hugo Chávez, and Donald Trump, but also with Britain’s brexit and several minority populist political parties elsewhere.
Opposed to the social contract theory, a Protestant (in particular Calvinian) tradition maintains the principle that associations are characterized
by normative principles laid down in the creation, and developed in the course of history. In the social differentiation and integration process, neither individuals, nor free associations, nor the state or the church play a primary part. For the formation
of associations people are responsible, and human freedom makes use of the possibilities presented by each character type.
Sphere sovereignty (soevereiniteit
in eigen kring) is originally a typical Dutch term for an unsuspected widespread phenomenon. In particular during the twentieth century, the existence of free associations, having their own administration independent of the republic which only exerts supervision
of the public domain, has become the hallmark of the free Western society, even if it is not always recognized as such. Elsewhere it expands explosively too. The fact that Abraham Kuyper designed his view of sphere sovereignty in the nineteenth century testifies
to his prophetic mind. In fact, this is historically a much more interesting phenomenon than the victory of neo-liberalism proclaiming the end of history, according to Francis Fukuyama.
If in one respect Protestantism collides with Catholic, liberal, collectivist, and totalitarian views, it concerns their insight into associations. Since the sixteenth century,
Protestants argue and practice that associations belong to a character type of their own; that these are irreducible to individual interests or to the interest of a collective; that associations are not subordinate but co-ordinate; that each person belongs
to several associations; that no all-embracing association exists; that nobody is embraced completely by any association whatsoever; and that various mutually irreducible character types of associations exist. There is no better warrant for freedom than this
Protestant view of a civil society. The ongoing discussion of the idea of a ‘civil society’ seems to overlook this Protestant interpretation.
The principle of sphere sovereignty is a societal principle, characterized by the way
people deal with associations and keep each other’s company. It is a political principle too, because it indicates that an association does not derive its authority
from other associations, but from the creational order, from God’s sovereignty, such that authority should never be absolute. It is not an organizational principle.
Unlike the above mentioned principle of subsidiarity, it is not applicable to the mutual relations of the state with its provinces and local communities, as far as these are subordinate parts of the state.
Sovereignty presupposes some kind of authoritative rule. Therefore, the principle of sphere sovereignty only applies to associations, not to unorganized social communities. The view that sphere sovereignty applies to the authority
in associations can be found both in Abraham Kuyper and in Herman Dooyeweerd. Moreover Kuyper also speaks of sphere sovereignty in ‘spheres of life’, like art or science, which Dooyeweerd develops into the ontological principle of creaturely
diversity or mutual irreducibility of modal aspects and character types. In order to
avoid this ambiguity I prefer to limit the concept of ‘sovereignty’ to bearers of authority and authority having instances, and ‘sphere sovereignty’ to the governor or board of an association.
Sphere sovereignty does not imply that associations are autonomous, independent of other associations. In fact, associations form many kinds of networks, in which they cooperate to achieve their goals. The meaning
of sphere sovereignty is that any kind of authority is limited. It promotes the freedom and responsibility of individual persons. Because they belong to various associations, they can be alternatively leaders in one and subordinate members in another association.
The principle of sphere sovereignty does not in the least mean that each association should have an ideological foundation. The typically Dutch phenomenon of the ‘verzuiling’
(the compartmentalization of society from about 1850 to 1980) could make that plausible, but Kuyper’s principle applies to associations having no relation to any world view as well.
Encyclopaedia of relations and characters. 19. The civil society and the public domain
19.3. The origin of authority
The principle of sphere sovereignty implies that society is not an undivided comprehensive whole with a single authority. Also in this respect it differs from all other views discussed above. It depends on the Christian view of the divine
lawful origin of authority, allowing of and even implying a division of human authority. Freedom and responsibility of individuals and of associations in the civil society would be severely threatened if the state or any other institute would have unlimited
power. In fact such a state is not strong but unstable. A really strong state has a strong civil society as its counterpart.
The question of the meaning of the state and other associations is therefore related to the question of the origin of authority. Isaiah Berlin considers ‘the problem of obedience’ to be the heart of political philosophy. In concrete cases the foundation, expansion, contraction, or disappearance of a state, rests on conquest, revolution, rebellion, or liberation from foreign domination. This indicates how a state is historically arisen or disengaged from one or more other states, how a state came to power, but it does not answer the question of the origin of the republic’s or any other association’s
authority. The answer to this question strongly depends on one’s world view and is often expressed in a myth, a faith story legitimizing the authority.
believe that the state is an institution of God and the authority of the government is given by God. This can hardly be valid for any concrete state in its historical form, but it can be true for the general character type of the state and, in fact, for all types of associations. In his often cited letter to the Romans, Paul does not call the state but any government: ‘Every person must submit
to the supreme authorities. There is no authority but by act of God, and the existing authorities are instituted by him.’
In this view the profile of an association originates from God’s laws, not from its historic realization. Nevertheless any board exerts authority by the grace of God, the
supreme sovereign, who does not provide a license to act arbitrarily but lawfully, according to divine normative principles. Each government ought to satisfy the universal political norm that it should not abuse its authority. If a government satisfies this
norm, the members of the association ought to obey the authority within the association’s limits.
There is an important difference between the specific character
type of the state and that of other associations. Whereas each association exerts authority within its own sphere, the state as a republic also exerts authority on the public domain.
In the state as well as in other associations, authority is often conceived in a conservative way: to maintain the existing order at all costs. A more progressive view insists that any authority should display leadership with respect to the
dynamic development of the association and its membership, and as far as the state is concerned, the development of the public domain.
Although political philosophy
is nowadays sharply distinguished from philosophy of law (and politics from the theory of law), it is still controversial to state that politics differs from justice. Until recently, the European part of humanity lived in an era that derived its juridical
concepts entirely from the state, conceiving of the state as a model of political unity. The best way to make this clear is to point to a number of unwanted consequences of their identification.
the rule of law means that justice is bound to laws, not merely to the conscience and insight of judges and others. However, Francis Fukuyama (admitting that ‘... there are as many defintions of “rule of law” as there are legal scholars...’) defines the rule of law such that ‘... the individual holding political power feels bound by the law ... The rule of law is a separate component of political order that puts limitations on a state’s power.’
This may be considered a definition of a ‘constitutional state’ (Rechtsstaat).
moderating principle of equity attempts to prevent unintended consequences of the application of a rule. According to Aristotle, the principle of equity allowed judges to moderate the rigidity of the law, without transcending the limits of the law. The rule of law also means that the juridical process should proceed independent of political rulers. Justice should transcend the specific interests of the parties involved in civil or criminal lawsuits. It should pass judgment neutrally and impartially. Evidently, this is a norm, not to be confused with the fact that judges may be influenced by their class, their education, or by the public opinion, and are sometimes corrupt.
In order to warrant legal security and equality of rights, since the end of the eighteenth century Western states have codified existing law, by systematically collecting and revising laws into comprehensive codes.
The Code Civil (Code Napoleon, 1804) has had a large influence on civil justice,
like the Code Pénal (1810) on criminal law.
The rule of law has a political
meaning as well. The Christian view that human authority is derived from God’s authority implies that it is subject to God’s law, to the normative principles laid down in the creation and known to all. These are the principles of mutual love, justice,
good government, mutual service, respect, trust, reason, clarity, joy and skilful labour. Since the Enlightenment declared humans to be autonomous, they had to take recourse to a legalistic view of law.
From the eighteenth century to the middle of the twentieth century, legal positivism identified justice with the written laws of the country (17.3). According to Mark Tebbit, the nineteenth-century utilist Jeremy Bentham was the first legal positivist, followed by John Austin and in the twentieth century by Herbert Hart in England and Hans Kelsen in Austria. However, Dooyeweerd observes that already in the sixteenth century, Jean Bodin developed a ‘naive legalistic variety of juridical positivism’. Influenced by pragmatism, American judges are more realistic and less legalistic than their European colleagues. For instance, for American commercial life rights and duties are usually not laid down in laws (as in Europe), but in jurisprudence.
According to positivist legalism a rule or law was legal if justified by a higher law. The highest law was the constitution, derived from an earlier constitution and ultimately from a mythical social contract, succeeding the state of nature or ‘original
position’. Romantic optimists like Jean-Jacques Rousseau considered this an ideal situation in which no injustice occurred. Pessimists like Thomas Hobbes believed it was a state of homo homini
lupus, man is a wolf to man, a state in which justice does not exist.
In legalism the lawful order was narrowed
down to legislation. Legal positivists rejected Thomas Aquinas’ rationalist natural philosophy, considering justice to be of divine origin, knowable from human nature, in conformity with Aristotle’s philosophy. Plato derived justice from the unchangeable
world of ideas, and Hugo Grotius from human reason.
Legalism overrated the laws of the state. It held the doctrine stating that nearly all rules of justice are
legal rules, that in principle the law is complete and that a judge has to apply the law without questioning it. Legalism is inspired by utilitarian enlightenment philosophers believing that simple and elementary rules, derived from reason and natural law, had to take the place of intricate traditional law ruling European society
of their time. This implied the separation of political formulation and juridical application of justice. Concerning the first, courts of justice are subjected to law-making organs of the state. Concerning the second, the courts
are independent of the government, whereas the executive organs of the state are subjected to justice administered by the courts of justice. This separation and balance of powers (Charles Montesquieu’s trias politica, 1748) presupposed that the three powers (executive, legislative, and judicial) are all organs of the state. (In fact, Montesquieu did not discuss a separation, but a dispersal of powers, like he found in England.
He also believed that the judiciary should not be an organ of the state.) The separation of the three powers intended to warrant the freedom of the citizens. Emerged from humanist philosophy, it did not even consider the possibility that justice and authority with discipline might be
In the second half of the twentieth century legal positivism came under fire, however, first because courts of justice took the freedom to interpret laws. Jurisprudence became as much a source of justice as the laws of the country, in the USA even more than in Europe. Legalism presupposes that only the legislature
is allowed to interpret its own laws. It is the task of a judge to provide an interpretation of the law applied to the case in question. According to legalism, judges may only administer justice according to the written law. In practice, they also take into
account principles of justice, jurisprudence, influential commentaries, the circumstances and interests of all parties, changing views, and practices. They have a large margin, for instance if the penal law only indicates maximum penalties. Judges may interpret
a law slightly different from the intentions of the legislative. In extreme cases they may even decide against a law. This means that administering justice is not an abstract activity, but a very concrete one. Though it is juridically typified, in principle
judges take into account all aspects of human being.
Legalism has two faces. From a liberal point of view, stressing the individual freedom of citizens with respect
to the state, everything that is not prohibited by law is just and therefore admitted. In the name of this view a lot of injustice has been committed, which new laws had to prevent. For instance, in the nineteenth century slavery and child labour were not
lawfully prohibited and therefore admitted, until slavery was forbidden, and child labour restricted by law. According to the liberal world view, only then child labour was unjust. People defending this variant sometimes say that what is not prohibited by
law is just but not necessarily moral. It is a moral question whether one makes use of the fact that the government allows or tolerates certain matters. It is a moral question whether one accepts slavery or child labour as long as there is no law interdicting
it. ‘For natural lawyers, the legal principles revealed by a purely descriptive account of law are inherently moral; for positivists, the law in its actuality is the practical expression of a political decision, the moral content of which is quite irrelevant.’
This is a consequence of the view that the law determines what is right or wrong. It opposes the view that justice is a universal principle, to be actualized into norms, including state laws. This
means that one makes laws because slavery and child labour are unjust, not to make
them unjust. The distinction between just and unjust action is always part of ethics. It is immoral to act unjustly, whether this act is prohibited by law or not. Legalistic attempts to slip through the meshes of the law, not only popular with tax payers,
are immoral if it leads to behaviour contrary to the principles of justice. Formalistic legalism sometimes means that a judge acquits a criminal because of mistakes made by the police or the attorney. Of course, police and the attorney have to respect the rights of the accused, and the judge ought to penalize trespassers. However, it runs counter the common sense of justice when a criminal is acquitted because
of a formal mistake.
In another variant of legalism everything is prohibited what is not allowed by the state. In practice this leads to an abundance of rules and to
suppression of inevitable resistance. The best illustration is the Soviet-Union, which ultimately collapsed under its top-heavy bureaucracy in 1990. However, this variant not only occurs in a dictatorship, but also in a moderate form in countries influenced
by social-democracy where many kinds of activities are subject to a licence by the government.
Both views identify justice with written law. They consider the state
as the only source of justice. Legalism is a consequence of statism, the overrating of the state, considered as representative of the volonté générale (the
general will, the public interest) exclusively determining what is right. An extreme form is known as Befehl ist Befehl: people having done injustice defend themselves
by saying that they only obeyed a command from a higher level, ultimately from the state. This view, identifying justice with the political principle of authority and discipline, has become notorious since the Nazi-regime and has been abolished by Western
justice. However, it was not restricted to Germany, for it is a consequence of legalism, reducing justice to laws given by the state. It deprives both individuals and associations the freedom and responsibility to act in all circumstances
not only legally, but also just. Even if he finds justice in the laws of the country, a judge ought not to pass a sentence in the name of the law, or of the queen, or of the state, but in the name of justice as a universal value, irreducible to state or politics.
Legalism can be warded off by recognizing that the juridical relation frame is irreducible to the political frame, and that the state as a politically characterized association
does not surpass justice but is subject to it, like any other association and each individual. The distinction of the political from the juridical frame has important consequences for the analysis of the characters of associations, in particular of the state.
In the words of Abraham Kuyper (1880), any association is sovereign in its own sphere. In a civilized and free society, this sovereignty is never absolute. It is restricted both
by the individual freedom of its members and the internal sovereignty of other associations. The authority of its management should not be extended beyond its competence, and only its members are required to observe discipline. The fact that this Protestant
view is effectively dominant in present-day Western society is remarkable, for it contradicts both the humanist ideal of autonomous individual subjects and the Roman-Catholic view on church and state, even with the mitigating principle of subsidiarity (19.2).
Sovereignty presupposes some kind of authoritative rule. Therefore, the principle of sphere sovereignty only applies to associations, not to unorganized social communities, as Kuyper erroneously assumed.
Abraham Kuyper’s political view of sphere sovereignty differs from Herman Dooyeweerd’s, who interprets it as the ontological principle of creational diversity. For example, Dooyeweerd applies the term sphere sovereignty to the mutual irreducibility of the modal aspects, ignoring the fact that no modal aspect is ruled by a sovereign. ‘Whereas for Kuyper sphere sovereignty had been primarily a sociological principle which provided a guideline in practical politics, Dooyeweerd expanded it into a general principle of ontological irreducibility,
applicable also to such categories as life and matter, faith and emotion.’ He puts sphere sovereignty at the law side of reality, applying it both to modal aspects and to types. However, any sovereign is a subject, even if they positivize norms into laws or rules, and the political principle
of sphere sovereignty applies to associations being subjects as well. For instance, according to Dooyeweerd the university (as a type) would have sphere sovereignty with
respect to the state (as a different type), whereas I maintain that the principle of sphere sovereignty implies that any university (as an individual association) should have sphere sovereignty with respect to any state. Contrary to Dooyeweerd’s,
my view has the consequence that two universities have sphere sovereignty with respect to each other. However, I fully agree that the university as a character type is
irreducible to the type of the state.
The relation between authority and discipline
is not a subject-object relation but a normative subject-subject relation. Authoritative rule becomes authoritarian or autocratic if the authorities treat their subjects like objects, if discipline becomes subordination, in the extreme if discipline reduces
to slavery. Being a member implies to play a more or less active part in the association. In any association, the membership should participate in the decisions of the
authority, which ought to consult its members about its decisions. Participation in whatever form is not a peculiar Western cultural phenomenon. Rather, it is a universal political normative principle to which any association should confirm according to its specific character. State democracy differs from the voice of the people in the church or labour co-partnership. Like any normative principle, it can be positivized into norms and rules in many different ways.
It should be observed that this encyclopaedia describes various types of social communities and their characters.
According to the philosophy of dynamic development, these types belong to the law side of creation. Types are given and can be discovered as laws for the creation. A type is determined by a set of invariable natural laws and normative principles like those of justice or love of one’s neighbour. On the other hand, with the exception of natural characters, a character is a set of natural laws and normative principles as well as variable positivized norms. Hence, the character of a particular social community is in part the product of human activity. In my view, the historical development of natural characters
starts from the technical relation frame of human labour, which therefore has a pivotal function in history. For this reason, Dooyeweerd calls the technical relation
frame the ‘historical’ or ‘cultural’ modal aspect of ‘control, command, mastery or power’. By assuming that all associations (except for the natural ones like marriage and family) are founded in this modal aspect, Dooyeweerd
reduces authority to power, control or command over people, in the state to be conducted by justice, in the church by faith, in a business by economical principles. In both respects, I offer a different opinion.
First, the fact that associations are actualized and differentiated in the course of history should have no consequences at all for the characterization of various character types of social groups. It is not an argument against the assumption that the generic character of any association is founded in
the relation frame of social intercourse, and we are free to investigate the foundation frame of its specific character without presupposing that it is invariably the
Second, in my view authority cannot be reduced to power, control or command over people. If some authority has to resort to the exertion of power, it
is a testimonium paupertatis, a testimonial of incompetence, only excusable if the relation of authority and discipline is severely disturbed. The political principle
of sphere sovereignty is not expressed in the secondary foundation, but in the primary qualification of the generic character of associations.
Encyclopaedia of relations and characters. 19. The civil society and the public domain
19.4. The generic character of any
Because human beings always act in relation to each other, political philosophy cannot neglect social philosophy. In
particular the distinction between organized and unorganized social connections turns out to be relevant for understanding the dynamic development of humanity. Besides, the growing number of professional specialists is a condition for the diversification of
social groups. Quite often, associations are formed by professionals sharing a common goal.
Whereas the public domain consists of objective and intersubjective networks,
civil society may be considered the set of free associations and their relations. We shall investigate their character types. The present section discusses the generic character
of any association. The specific character of several association types have been described in the preceding chapters 10-18.
An organized social group with leadership, to be called an association, has a governing person or board with authority over
the group. It is also known as a corporation, a company, or an institute. In Gemeinschaft und Gesellschaft (1887) by the sociologist Ferdinand Tönnies, Gemeinschaft corresponds especially with an unorganized community characterized by social cohesion, like a family or a circle of friends, whereas with Gesellschaft one should rather think of a businesslike organized association like a company. Tönnies assumes that in society an evolution takes place from a Gemeinschaft to a Gesellschaft.
Such an association is the state, the guardian of the public domain. If a state does not tolerate other associations besides itself, one speaks of state absolutism. The recognition
of free associations independent of the state is called pluralism. Free associations have flowered especially since the twentieth century, but some kinds are much older. Because they also act on the public domain, this becomes ever more important.
Like individual persons, but contrary to unorganized communities, associations act as subjects in all relation
frames. An association has its own continuous identity, independent of the identity of its members. It maintains its identity at the leave of members from the association and the resignation of members of the board. It has its own character, it is actively
subjected to normative principles and it is involved with their realization into norms. Usually, the authority is restricted to members of the association (and to the objects possessed by the association) and within the association by the freedom and responsibility of the members of the association,
especially if these are professionals.
Like any individual an association has a name and address. A flag, logo, or ideogram, and a mission statement symbolise the association’s
identity. It is important if its members can identify themselves with the association, which 'socializes' them. In a household any member should feel at home. As a metaphor this is also stated about other associations. Immigrants are supposed to do their utmost
to struck root in their new country. This is no less true for new members of any other association.
It may be questioned whether associations are subjects in the prelogical
relation frames as well as in the normative frames (Jonathan Chaplin doubts this.) However, there are large and small associations (which can be counted), referring to the quantitative aspect; they often act on a restricted region, where they need to have an address (spatial), and from which they
move occasionally (kinetic); they interact in various ways (physical); they grow (biotic) and behave well or badly (psychic). It is true that associations having no bodies cannot be measured or weighed, because as subjects associations are characteristically different from material bodies, acting in their own characteristic way. Therefore I shall assume that associations, like individual persons, act as subjects in all relation frames.
Section 19.4 investigates the supposition that character types of associations, conceived
as sets of normative principles, are recognizable constant factors in human culture and civilization. In contrast, the norms determining the actual characters of concrete associations are formed in history, and therefore culturally different.
Each association appears to have a dual character. The specific character distinguishes
diverse types of associations from each other, each specific type being primarily characterized by one of the relation frames. Often a specific association counts professionals among its members, specialized in the activity deployed by the association. The
generic character is the same for all associations. (In contrast, the generic character of human-made artefacts is primarily characterized either by the technical relation frame, or by one of the other normative frames, when it is secondarily characterized by the technical frame, 10.1.) Before investigating the specific character type of a
number of associations, first the generic profile shared by all associations will be discussed. Establishing an association as an organized whole, it accounts for the many organizational similarities of otherwise widely different corporations.
The governor or governing board has a restricted and temporal competence to act with authority within and on behalf of the association. Their authorization rests on the recognition by the members, on discipline.
The members of the board cannot long continue to act within the association if they fail to earn the respect of its members, for instance by neglecting to consult them. Moreover the members of an association ought to have respect for each other, expressed
by mutual solidarity and a sense of communality, by connectedness. Otherwise the association would explode sooner or later. These are normative principles, which not
every association satisfies. Sometimes an association only exists by the grace of the exertion or threat of violence. This may occur in a state, a criminal gang, or a terror group, and also in a marriage or a household.
Therefore the generic character of an association is primarily qualified by the political relation frame (because it has leadership) and secondarily founded by the frame of companionship (because it has members).
For most associations the specific character is qualified by a different relation frame than the political one, for instance the character of the church by the frame of faith and the character of an enterprise by the economic frame. Only the character of the
republic as the guardian of the public domain appears to be qualified both specifically and generically by the political relation frame.
The authority within an association
is restricted by its generic and specific character, by the values and norms valid for the group. In the first place the authority is restricted to the association itself: no association ought to rule over another one. (This restriction
is only tenable if the two associations belong to different specific kinds.) In a modern, plural society, the state does not rule over the church or the church over the state. Enterprises should be able to display themselves freely. Freedom of associating
and assembling should be acknowledged. Second, in each association the authority ought to be restricted by agreements and rules, by division of authority and members’ participation. Third, the bearers of authority ought to account for their acts. Fourth,
it should be clear how bearers of authority are nominated, how long their term of office is, and how they transfer their office to someone else. In the course of history, these general rules have been developed in various ways, conform the association’s
specific character. It is obvious that in an association the office is to be distinguished from the officers.
It is quite common to interpret the authority in an association in a juridical sense. Yet it seems better to consider the authority as a political form, not characterized by justice but by policy,
by competent decision making, directed to the realization of accepted goals, and on the prevention and solution of conflicts, the maintenance of peace within the association, with other associations, and with individuals the association connects with. In a
football match the referee has a juridical function, whereas the leadership is allotted to the captain and/or the coach. The leadership in an association as policy determining, decision making, executing, and maintaining organ is generically characterized
by the political frame, next by the relation frames characterizing the association’s specific character. The maintaining task of the authority means that it takes care that the members accept and execute the decisions taken. A leadership neglecting this
task soon loses its authority.
Discipline means accepting of guidance and respecting those who are in command. It aims at the integration of the members into an adequately
functioning social group. In some associations discipline is more obvious than in others, compare for instance a jail or a barracks with a hospital, a school, or an enterprise. However, leadership and discipline are both conditions for the existence of any
association. Where leadership or discipline are lacking, the organized group gets lost. Therefore I propose to characterize the generic character of each association primarily by the political relation
frame and secondarily by the frame of companionship, primarily by policy and secondarily by social integration.
Democracy, accountability, or participation, roughly conceived as the leadership’s obligation to consult the association’s members and to account for its deeds, is
not merely a norm for the state, but for every other association as well. It can have many forms, like direct democracy (in which all members of the association partake, for instance in a small enterprise, or in a referendum). More common is representative
democracy based on elections or representation. In the first case the elected is usually not directly accountable to the voters, in the second case this is a possibility. In order to prevent dictatorship, against de view accepting only democracy according
to the principle of one man, one vote, one finds the pluralistic view looking for democracy in a multitude of decisive organs within the state, especially as grown in
Protestant countries. In the Dutch Republic, the Provincial States consisted of representatives of the cities and the States-General assembled representatives of the Provincial States. In the German Bundesrat and in the European Council
of Ministers, the member states are represented. Populists reject this kind of democracy.
The members of an association experience mutual solidarity, a sense of community. This is expressed in mutual forms of social conduct, more specified by the characterizing relation frame of the association’s specific character. Solidarity in a labour group differs from the love between siblings in a nuclear family.
In a church solidarity comes to the fore in a different way than in a football club. In a state solidarity is expressed in civic responsibility and patriotism. Many associations endeavour to promote solidarity, by means of facilities like a canteen, by organising
events like communal festive or memorial days, or by publishing a magazine.
As a tertiary characteristic, an association may be interlaced with other associations.
Many large associations are interlaced with an economically characterized organization, having a bureaucratic character of its own (19.5). Because an association is a
subject in all relation frames, it may assume a specific purpose to act in a relation frame that does not primarily or secondarily characterize it. Several examples will be given below.
The characters of both artefacts and associations are subject to historical development, in two ways. First, characters are sets of laws, to be realized at the subject side in the course of time. Normative characters share this property with natural characters. Second, at the law side these characters consist of natural laws
and normative principles, but also of norms, which may differ widely in various cultures and at different times. In order to delimit the latter diversity, philosophy
is often forced to restrict its investigation to character types, which do not contain variable norms, but only presumed invariable values, besides natural laws.
The assumption of invariable character types does neither imply that states, churches, enterprises, and hospitals, or art products and languages have always existed, nor that
they would not widely differ from each other, and change forever. In fact, the hypothesis of invariable character types allows us to compare these characters as they developed in the course of history.
The purpose of this chapter is to investigate invariant character types for associations. Only these types are apt to be described in a general philosophical framework. The characters themselves develop in history dependent on culture
and civilization. In this sense these are products of human activity. This means that within each given characterization an enormous variation of characters of associations is to be expected. Only if associations satisfy a common invariant profile, a character
type, it will be possible to recognize them, to compare them and to write their history.
In the preceding chapters we have already discussed a large variety of associations.
First of all, people cooperate in their labour (10.5). Next they play together in aesthetically qualified associations (11.4). In the course of history, besides libraries and bookshops typically semiotic associations emerged, like publishers and editors of
books, papers, periodicals, and other informative media. Sometimes these are interlaced with public broadcasting, which is not merely concerned with spoken language, but also with plastic arts or music. Semiotic associations often consist of or rely on professional
authors, journalists, etc.
Enterprises maintaining communicative networks (like the telephone), have an objective function in the semiotic relation frame. They do not
communicate information themselves, but facilitate it. Also associations which do not have a semiotic character communicate with each other and with individuals.
institutes with the purpose of achieving collective scientific knowledge are relatively recent. Until the seventeenth century, scientific research was not organized, but was exerted like a craft by usually isolated individuals. Only during and after the Renaissance
learned societies or academies arose having no other purpose than to perform science. Sometimes they installed observatories or laboratories, usually connected to universities, enterprises, or hospitals. Since the twentieth century, independent enterprises
do contract research. Research is by no means always purely scientific, if we understand thereby the investigation of the lawfulness of nature and society. Many institutes are directed to the collection of data (e.g., for the benefit of hospitals or for forensic
research), or for the development of new technologies. This is called applied research. The members of the board of such an institute and its co-workers are partly scientists, but the supporting staff plays an increasing professional part.
Because scientists specialise, more and more scientific societies arise