The Place of the State in a Differentiated Society: Historical and Systematic Perspectives

Abstract

What used to be called primitive societies may best be designated as traditional societies or as undifferentiated societies. While focusing on the place of the state within a differentiated society, it is meaningful to account for the differences between differentiated societies and undifferentiated societies, because such an analysis will help us to advance important systematic distinctions. Usually, the extended family (Grossfamilie) is seen as the smallest undifferentiated society with a typical undifferentiated form of organization. Even the lowest level of undifferentiated societies contains an ordering and relations of super- and subordination. Paying attention to the sib or clan is followed by a characterization of the tribe and Roman law. Diverse undifferentiated societies of the medieval era are found in the feudal system, guilds, and manors. All of these societies included activities which within a differentiated society are performed by societal entities with their own distinct forms of organization. Therefore, the state was not yet visible as a distinct societal entity. In the absence of tribal punishment, only relatives would take revenge, owing to the fact that there was not yet an integrated monopoly of power on a limited territory capable of enforcing the resolution of legal conflicts. Within early Germanic as well as early Greek and Roman Law, the practical enforcement of liability therefore had to appeal to private execution. After the Renaissance, the idea of popular sovereignty surfaced, but it was only when church and state parted ways that we observe the process of development which led to what we currently experience as differentiated societies. In such societies, the limitations of undifferentiated societies are superseded through an acknowledgment of the fact that every human being transcends any and all societal collectivities in which such a person merely functions without being fully absorbed by these functions. Finally, attention is briefly given to the legal competence of a government and to the nature of cultural–historical power within the state (its ‘sword-power’). As a public legal institution, the state is supposed to integrate all (and only) legal interests on its territory within one public legal order. Just as little as societal entities which are distinct from the state are parts of the state, is it correct to sacrifice the state by surrendering it to any non-political community or collectivity. Only this perspective avoids a totalitarian view regarding the place of the state within a differentiated society.

Acknowledgements

This work is based on the research supported in part by the National Research Foundation of South Africa. Any opinion, finding and conclusion or recommendation expressed in this material is that of the author(s) and the NRF does not accept any liability in this regard.

Notes

1. This means that what Groen van Prinserer, Abraham Kuyper, and Herman Dooyeweerd designated as the principle of sphere sovereignty has not been realized in undifferentiated societies. It was Jean Bodin who introduced, as a distinctive feature of political authority, the term sovereignty (this aspect will get more attention later on in this article).

2. A fealty is a pledge of allegiance of one person to another.

3. ‘Das Mittelalter kennt eine Unzahl von Obrigkeiten und eine oberste, die diese Obrigkeiten bedingende, aber auch von ihnen selbst stark bedingte Gewalt und neben dem das allen übergeordnete geistliche Weltreich der Kirche, das mit seinen belehnten Würdenträgern selbst einen Teil der Obrigkeiten bildet und als Ganzes dann noch obendrein allen insgesamt übergeordnet ist; aber es kennt keinen Staat als einheitliche souveräne Willensorganisation der Gesamtheit, wobei es zunachst gleichgultig ist durch wen diese Souveränität ausgeübt wird.’[The Medieval era knows numberless authorities and an authority which determines these authorities while itself being conditioned by strong forces, and adjacent to them the spiritual world empire of the church super-ordained over all of them, which with its indebted dignitaries constitute themselves a part of the authorities and then on the whole, in addition, is an order embracing all together. But it does not know a state as a unified, sovereign will-organization of the whole, where it is irrelevant who exercises this sovereignty.]

4. In passing, we may note that Kuyper, in spite of his adherence to the idea of sphere sovereignty, at the same time was still influenced by an organic view of human society, revealing ideas advanced in the romantic movement and thought-schemes going back to the thought of Aristotle. This explains why he designated the state as an Ethical Organism (Zedelijke Organisme) and why he advocated an organic idea of the right to vote, which he reserved for the (male) head of households, similar to what Rawls holds in his Theory of Justice (Rawls 1999, 111).

5. The historical roots of the concept sovereignty are amply highlighted in the work of F.H. Hinsley on sovereignty (1989). See in particular Chapters III and IV (45–157). In the research volume edited by Hanns Kurz, the contributions of Harold Laski, Moritz Stockhammer, Hans Kelsen, and Friedrick, August von der Heydte are related to our current discussion. Prokhovnik (2007) focuses on the contemporary situation regarding the idea of sovereignty.

6. More detail about this movement with its historical significance for the rise of the modern idea of the state is found in the work of Waldecker (1927) and in Von Hippel (1955 in particular Chapter 8: Nominalism and the origination of the idea of the state—337–351). See also Von Hippel (1963), 51 ff. For an exposition of the more general philosophical nuances of nominalism, see Von Hippel (1955, 352–365, 1963, 51 ff., 68) and Strauss 2004: (particularly pages 265–272) and Strauss 2009 (particularly pages 370–379).

7. ‘[F]ür die Trennung einer natürlichen und übernatürlichen Welt.’

8. We shall return to the nature of ‘power’ below.

9. ‘ … sowie zwischen diesen und dem Staat verhält es sich ähnlich wie mit dem Unterschied zwischen dem Ganzen und seinen Teilen’ (Bodin 1981, 521).

10. ’Eπϵιδη` πα˜σαν πóλιν κoινωνíαν …  [The translation is in the text.]

11. ‘Teile stehen aber dann in einem rechten Verhältnis zum Ganzen, wenn ein und dasselbe Prinzip sie regiert.’

12. ‘Es gehört der Bildung, dem Denken als Bewußtsein des Einzelnen in Form der Allgemeinheit, daß Ich als allgemeine Person aufgefaßt werde, worin Alle identisch sind. Der Mensch gilt so, weil er Mensch ist, nicht weil er Jude, Katholik, Protestant, Deutscher, Italiener usf. Ist’ (Hegel, 1821, 349; § 209).

13. Dooyeweerd distinguishes 15 aspects: number, space, movement, the physical, biotic, sensory, logical–analytical, the cultural–historical, the lingual, social, economic, aesthetic, jural, ethical, and certitudinal.

14. Object-functions are latent, they depend upon the activity of a subject to make them patent. A stone cannot identify and distinguish, but a human being can open up its latent analytical object-function. It cannot name itself, but when it is named by a lingual subject, its object-function within the sign-mode of reality is disclosed. Note that expressions such as an analytical object or a lingual object are denoting function concepts, they concern particular object-functions. The concept of a legal object is therefore also a function concept (e.g. the property right on a diamond ring).

15. The latter are manifest in the capacity of the free, formative human fantasy to produce all kinds of tools. Initially humans were considered to be unique in the use of tools. Since animals also use tools, the criterion shifted to the manufacturing of tools, but even in this case, a qualification was needed, because animals also produce tools. What is absent in the case of animals is an inventive formative imagination which provides account for practically useful archaeological criteria in terms of which typically human tools can be distinguished (Narr 1988, 280–281). For example, producing tools should not be suggested by what is given (e.g. in distinction from a stick from which irritating leaves and twigs need merely be removed). A tool should not merely function as extended bodily organs and likewise the mode of production should also not be suggested.