Encyclopedia

In my translation, I have joined together some shorter paragraphs. I have also shortened some longer sentences for ease of reading. I have translated the terms that Dooyeweerd uses in this work, even though in some cases, Dooyeweerd later substituted other terminology for those terms. For example, he substituted ‘modal aspects’ for the term ‘side’ [zijde] that is used here.

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Introduction

The Encyclopedia has a peculiar ambivalent character.[6] If we look at it according to its Idea (but not in its historic-etymological sense), then in its foundations it undoubtedly belongs to philosophy. This is so insofar as it gives an encyclopedic account of the inner structure of [legal] science, and of the coherence in which this science stands in relation to the sciences that are situated around it.

But in its goal and tendencies, the Encyclopedia really has a practical-pedagogical nature. Its task is to give a preliminary and general orientation regarding the concrete subject matter of [legal] science. The concept ‘egkuklios’ therefore expresses the philosophic basis of the Encyclopedia, and the concept ‘paideia’ expresses its pedagogical task.

We want to give an account of both of these elements in this Introduction, in order to provisionally set out our plan for these lectures on Encyclopedia.

Insofar as the philosophical basis of Encyclopedia establishes the general inner structure of science, and the coherence with the other sciences, it is of course formal and not material.

Here, however, we must already warn against a misunderstanding of the distinction between formal and material.

In our view, ‘formal’ does not mean “externally logical” [uitwendig-logisch]. It merely refers to a limitation to the determination [fixeeren], by means of scientific-logical analysis, of the general a-logical meaning-structure [7] of the domain of law within the inexhaustible particularity of meaning of concrete legal life. (An explanation follows below).

Formal encyclopedia may therefore not disregard concrete law. Rather, it must impart scientific training, in order to teach the jurist how to judge in a concrete juridical way.

However, it can only reach this goal by using concrete legal figures as examples, in order to make clear the foundational general meaning-structure of the domain of law, and not by giving a superficial summary of the positive legal material without understanding it in its meaning-structure.

As a philosophical science, the Encyclopedia therefore does not need to systematically discuss the concrete subject matter of science as such.

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Rather, the Encyclopedia needs to discover the universal framework in which material science groups its subject matter and on which it constructs its system.

In this regard, the direction of the Encyclopedia’s research proceeds from the center to the periphery; it is egkuklios. [8]

It therefore begins with the basic concepts of science and seeks the irreducible meaning in these basic concepts. This irreducible meaning determines and imprints its specific stamp on all other concepts.

If I want to become conscious of the central concept of legal science, it does not help to compare concrete concepts like ownership, lien, hypothec, novation, buying and renting, delegation of authority, etc. with each other, and then to attempt to bring out their common characteristics.

For the number of these concrete concepts is indeterminate, and I cannot be assured that I could ever completely finish this investigation; on the contrary, I know from beforehand that I shall not complete it, since the juridical forming of concepts does not stand still, but just like science itself, must be understood in its never-ending progress.

I therefore cannot use the inductive and abstracting method that is generally used in jurisprudence.

I must seek a method that brings to my consciousness the meaning of the concept of law as such. And it is the task of Encyclopedia as a philosophic-formal science to track down this method.

When we have found the correct method, and when we have we have established the central concept of law that determines all concrete concepts of law, and which imprints on them their unique juridical character, then we have established the middle point of the circle, and we can thereafter cover the distance to the periphery, to the circumference.

But the Encyclopedia cannot fulfill the task assigned here to it without investigating the mutual coherence in which legal science stands to the sciences situated around it.

And it is just on this point that the Encyclopedia again finds its deepest foundation in the life- and worldview whose basic question asks: “How can temporal creation, in all of its varied multiple forms and diversity, be brought together into a deeper organic unity?”

Although a more detailed analysis of the meaning of a life- and worldview for legal scientific and for legal philosophic thought really belongs to lectures on the philosophy of law, we are nevertheless forced, in order to define our standpoint concerning the foundations of Encyclopedia, to again here give an account of the scientific attitude that is required by our Calvinistic life- and worldview.

Here we will limit ourselves here to mentioning certain central thoughts from the philosophical structure of our life- and worldview, insofar as they are of fundamental importance for the concept of Encyclopedia.

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The domain of law is a distinct side [9] [zijde] of the full temporal reality in which we live; this is so both as to its law-side (the legal norms) as well as for the subject-side that is subjected to these norms (legal subjects, legal actions, legal facts).

Of course, apart from its legal side, temporal reality has many other sides, which in turn form the particular objects of other special sciences.

This becomes immediately clear, when for example, we consider a simple legal act, like buying some cigars, and look at this act in relation to life.

Apart from its juridical side, this act has its moral, economic, social, linguistic, historical, logical, psychical, biotic, mechanical, spatial and numerical sides.

The jurist is really interested in a distinct way in the legal side of this act, and he views this side in the legal concept of the contract of sale.

The act as such is subjected to particular laws, legal norms, just as the economic side of the same act is subject to economic norms. The social side of the act is subjected to laws of association and social intercourse, the linguistic side to linguistic law, the psychical side to psychical laws, the mechanical side to mechanical laws, etc.

The question now arises, “What makes the domain of law into an independent side of temporal reality?”

The answer must be. “Universal meaning, which resides in all legal phenomena, and which is irreducible to the meaning of other sides of temporal reality.”

This irreducible common meaning is also the only fundamental criterion to delimit the special sciences from each other. Consider the particular meaning of a certain object of scientific investigation. So long as we can show a universal meaning [10] in this particular meaning, which it has in common with other objects of investigation, the special science in question continues to direct itself to one and the same side of temporal reality. Let’s say we are considering constitutional law. As long as it has a universal meaning–in this case it would be the meaning of law qua talis [law as such]–with, for example, civil law, commercial law, private international law, etc.), then we are directing ourselves to the same side of temporal reality. Constitutional law, commercial law, international law, etc. are all within the legal side of temporal reality; they only form particular parts within that side.

In contrast, phenomena such as legal feeling and legal action are not both found within the same side of reality. For in legal feeling, the universal meaning resides in the psychical side of reality, namely the meaning of sensitive consciousness, whereas legal action belongs in its universal meaning to the legal side.

Legal feeling is also not then subjected to legal norms, because it is outside of the power of the giver of legal norms to control the feelings of people. Legal feeling remains subjected to the psychical side of reality.

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The sides of temporal reality are delimited from each other by such universal, irreducible meaning, and as such, these sides are also subjected to a particular sphere of laws. So from now on, we shall call these sides of temporal reality ‘law-spheres,’ in order to thereby express their closed [11], irreducible, meaning character.

Irreducible meaning is therefore the fundamental criterion of a law-sphere.

In each law-sphere, full temporal reality has a separate subject-side and a separate law-side. We can also refer to these as a separate subject function and a separate law function.

So in the numerical law-sphere, which is delimited by universal numerical meaning, the subjective numerical side of reality is subjected to numerical laws. In the spatial law-sphere, the subjective spatial side of reality (spatial figures) is subjected to laws of spatial relationships. In the sphere of movement (delimited by the meaning of movement), the subjective energy-side of reality is subjected to laws of movement, etc.

And also in the juridical law-sphere (delimited by legal meaning), the subjective legal side of reality (its legal subjectivity) is subjected to legal norms.

Temporal reality is enclosed in this way in a great diversity of law-spheres. But on the other hand, in naïve, pre-theoretical experience, reality is nevertheless experienced [be-leefd] as an organic unity. Therefore, the following question irrevocably rises for philosophical consideration: “How are we to view the origin, the deeper unity and the mutual coherence of these law-spheres?”

Naïve experience of everyday life, which is not yet scientific experience, experiences [be-leeft] full temporal reality, but without an articulated knowledge of the various meaning-sides of reality that are enclosed in the law-spheres.

If I decide to go to my office to write, I perform an action that is experienced as a continuous unity, without giving an articulated account of the separate meaning-sides of this action in my naïve pre-theoretical experience of this action.

But naïve experience, although it possesses no articulated synthetic knowledge [kennis] of the law-spheres, does have an intuitive knowledge [weet] of their richness of meaning. [12]

For as soon as a theoretician wants to make me believe that this table, this chair, upon which my eye is resting, is in reality nothing but a collection of psychical-sensory impressions, which are ordered by my logical function of consciousness, my naïve consciousness of reality reacts intuitively against this arrogance of philosophical theory, which wants to reduce temporal reality to two of its meaning-sides (the psychical and the logical).

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I [naively] realize [besef] that such a theory robs me of many of the meaning-sides of my full temporal reality. And although with my naïve experience I cannot scientifically refute this theory, I am nevertheless deeply convinced that this theory must be false.

It is false because full temporal reality, which I experience in everyday life, is given to me as an inseparable coherence of all meaning-sides, both of the natural-sides (the mathematical, mechanical, biotic and psychical), as well as of the spiritual [13] sides (the logical, historical, linguistic, social, economic, aesthetic, juridical, moral and faith sides).

This little table, standing in front of me, is no longer this table for my naïve experience, if its reality can be reduced to the psychical sensory impressions of colour, hardness and form, which are merely be ordered by logical concepts.

The following functions also belong to the full reality of this table: its objective social function (in association and social intercourse), its objective linguistic function (its name), its objective economic function (its economic value), its objective aesthetic function, its objective juridical function (the table is my property as a legal-object), etc.

Now what is unique to naïve experience is that it does not set the functions of consciousness over against a reality that is foreign to it (the ‘Gegenstand of knowledge,’ as the Germans call it). Rather, our naïve experience is naively fitted into [in-gesteld] [14] into full temporal reality, including the functions of consciousness (the psychical and logical). That is to say, it understands the psychical, logical and the later spiritual functions as an organic part of and in full temporal reality.

Naïve experience is therefore fitted into full temporal reality with all of its meaning-sides (law-spheres), but without an articulated knowledge of the law-spheres.

In contrast, theoretical thought, in the special sciences, is no longer merely naively fitted into reality, but in deepened logical activity, it sets certain meaning-sides of reality over against itself, making these meaning-sides into a Gegenstand of knowledge in the special sciences.

The gain of scientific thought as compared to naïve experience is that it obtains for us an articulated knowledge of the particular law-spheres, and of their particular conformity to law (wetmatigheid).

The loss is that special scientific thought only allows us to know subtracted sides [afgetrokken zijden] of reality, abstractions from out of full temporal reality, and that it misses the view of totality over reality.

Neither the mathematician, nor the physicist, nor the psychologist, logician, historian, linguist, aesthetician nor jurist can teach us what the temporal reality is.

It is the task of philosophy to fill in this lack within special scientific thought, and to obtain the view of totality over temporal reality,

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no longer in the unarticulated experience [be-leving] of naïve experience, but in an articulated distinguishing of the law-spheres.

Both above and within the vast diversity of meaning of temporal reality, as it reveals itself in the law-spheres, philosophy cannot rejects its task of teaching us to know the deeper unity and the mutual relation and coherence of the law-spheres. For philosophy is the science of totality.

If philosophy is to fulfill this task, it must first give an account of the question, “How is it that the articulated knowledge of the law-spheres, which is obtained by special scientific thought, robs us of the unity of the naïve experience of reality?”

For this is certain: even all the special sciences put together, mutually supplementing each other, cannot obtain for us a knowledge of full temporal reality.

After we have divided an apple into parts, putting the parts together again does not give us back again the full fruit.

Well now, the coherence in temporal reality is given by time, which streams through all meaning-sides of reality. The law-spheres themselves are first made possible by cosmic time, and holds it them in correspondence [to each other].

This [cosmic] time, which streams through our temporal cosmos, and which holds all of its meaning-sides together, itself has its own meaning-side within each law-sphere.

If with respect to the series of numbers, I say that 2 is earlier than 3 and 4, then I grasp this relation of time between the numbers in the specific meaning of number, which is discrete quantity (how much).

The meaning of the numerical side of time is this, that earlier and later in the series of numbers implies a more or less of the numerical value.

In the law-sphere of movement, cosmic time has a meaning of movement. In the biotic law-sphere it has an organic meaning of life.[15] In the logical law-sphere, it has a logical-analytical meaning (the logical prius and posterius. For example, both premises of the syllogism: “All men are mortal, Socrates is a man,” are earlier than the logical conclusion, “Therefore Socrates is mortal”).

In the juridical law-sphere, cosmic time also has its own meaning-side or meaning function. If, for example, I ask, “When did this tort (delict) begin?” or “When did this agreement come into existence?”, these questions do not pose a problem for the natural sciences, or a mathematical or logical problem, but a legal problem.

Within the legal sphere, time carries the meaning of law, which we shall learn to know in the meaning of retribution. In the extinguishment by limitation of time of certain property rights or of a claim,

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time does not reveal itself in a mathematical or logical or historical meaning, but in a juridical meaning, which is governed by legal norms.

If the Civil Code defines the limitation period for claims to be generally 30 years, then this time limitation realizes a normative demand of law and not a logical or natural necessity.

Whenever the question is asked whether a law also has retrospective force–that is to say, whether it shall also apply to legal facts that came into being before the coming into force of the law–then this question puts forward a juridical problem of time, which needs to be solved in accordance with the normative demands of justice and in the meaning of law.

We are referring to the weighing of legal interests in the balance scale of retribution, weighing the interests of legal certainty for the citizens of the state versus the public legal interest that the law wants to serve.

Suppose for example that in time of war, a law is promulgated against the hoarding of food. This law could then entirely miss its goal–the assurance of a regulated provision of foodstuffs–if it could not direct itself against hoarders who had already exercised their unsociable practices even before the coming into effect of the law.

The legal interest of citizens, not to be punished for facts that at their commencement were not punishable, is here outweighed by the public legal interest that the law wants to serve.

The problem of time evidently carries here the meaning of retribution. In this way, we see how within the law-spheres themselves, cosmic time takes on the meaning of the law-sphere.

But cosmic time, just like temporal reality itself, cannot be reduced to the sum of the law-spheres. It extends beyond the boundaries of the law-spheres; it possesses cosmic continuity.

In our naïve experience, we live through [door-leven] this continuity of the cosmic order of time. This is because naïve experience is merely fitted into temporal reality.

Consider again the example of writing or working in my office. I experience this event as a continuous unity, one that does not break through the boundaries of the law-spheres in which the particular meaning-sides of the action are enclosed.

It is cosmic time, which spreads over [heengrijpen] the boundaries of the spheres, which makes it possible for me to execute decisions. For example, it makes it possible for me to carry out a decision, which has matured in my psychical and logical sides of consciousness, by means of the mechanical function of movement.

If our theoretical and special scientific thinking wants to obtain for us an articulated knowledge of a specific meaning-side of temporal reality, it really cannot remain merely fitted into [ingesteld] this continuous cosmic order of time, like our naïve experience. Rather, in its

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concept formation, it must abstract from this continuity in time, in order to be able to fix a law-sphere in the scientific view, in a discrete and articulated way.

The continuous cosmic order of time does not allow itself to be grasped in a scientific concept, since cosmic time, which also maintains the cosmic relation between the logical and the non-logical law-spheres, is what makes possible any concept even possible.

Scientific thought consists in a synthesis of meaning between logical thought and the meaning of the non-logical law-sphere that has been made into a “Gegenstand.” Such scientific thought is only possible because the law-spheres find themselves in a systasis of meaning because of [cosmic] time.

The meaning-synthetic thought of science is first distinguished from mere meaning-systatic thinking of naïve experience by the fact that the scientific concept consciously gives up [afziet van] the continuity of the cosmic order of time.

Systatic thought remains naively fitted into the continuity of the order of time; it therefore cannot obtain a concept of the law-spheres. Meaning-synthetic thought subtracts [aftrekt] the investigated law-spheres from their continuous coherence within time, and sets them over against itself, making them into a “Gegenstand.”

This synthetic abstraction, this sub-traction, cannot be brought about by our logical function of consciousness itself.[16] For as a subjective meaning-side of temporal reality, the logical function is itself within time.

The meaning synthesis of scientific thought is first made possible when our self-consciousness, which as our selfhood is elevated above time, enters into its temporal meaning functions. This supratemporal selfhood of our human existence is the religious root of our personality, which in its individuality participates in the religious root of the human race. And as Scripture reveals to us, in Adam this root fell away from God, his Creator, but in Christ it is again directed towards God.

In the religious root of the human race is found the supratemporal unity and fullness of meaning of all temporal meaning-sides of reality.

Temporal natural things (trees, animals, etc.) have no independent religious root.

Temporal nature fell in the fall into sin of the first head of the human race, because the fullness of meaning and the supratemporal unity of all temporal reality was given in the root of this human race.

As we just said, philosophic thought must necessarily raise the question of the deepest origin, unity and mutual coherence of the law-spheres, the meaning-sides of our temporal reality.

In order to fulfill this task, philosophy must occupy a standpoint, what philosophy calls

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‘an Archimedean point,’ which is elevated above all temporal meaning-sides (law-spheres) of reality. This standpoint therefore transcends time.

We have now seen how this Archimedean point is not given in any single one of our temporal functions of consciousness. For we have seen that we can transcend time only in our self-consciousness, because our selfhood individually participates in the supratemporal religious root of the human race.

From this it follows that philosophic thought, as scientific thought, must derive its Archimedean point from religion, and in that sense is necessarily religiously determined.

Philosophic thought as such necessarily operates with an a priori religious Idea of the deepest origin and coherence of the law-spheres. We will call this the ‘law-Idea’ of a philosophical system. The law-idea determines the course of philosophic thought in both of its main questions:

1. What is the origin and the deeper unity of all law-spheres?

2. How is there mutual relation and coherence to be viewed? [17]

In a narrower sense, we can also understand the law-idea as the Idea of the deepest origin and mutual relation of all temporal law-sides of the law-spheres. Then there corresponds to the law-Idea a subject-Idea [18] , as the Idea of the deepest origin and mutual relation of all temporal subject-sides of the law-spheres. Law-Idea (in this narrower sense) and subject-Idea stand in an inseparable correlation to each other, since a law would have no meaning without a subject that is subjected to it.

The law-Idea of a philosophic system must be distinguished from the legal concept that is wielded by scientific thought. The law-Idea directs the view of totality over the separate law-spheres, and seeks their deeper unity. As opposed to this, the legal concept only wants to establish the characteristics that must be possessed by the law-conformity [wetmatigheid] in each law-sphere as such.

The law-Idea seeks the fullness of meaning of the law above the temporal diversity of the law-spheres. But the legal concept only wants to understand the characteristics of the temporal laws, and as such it must orient itself to the distinguished meaning of the law-spheres.

The legal concept is dependent on the law-Idea, just as surely as the temporal meaning-sides of reality do not exist “an sich” [in themselves], but exist only as temporal refractions of meaning of the supratemporal fullness of meaning in the religious root of the human race.

Now in the law-Idea, in which the Archimedean point of philosophic thinking is fixed, there is revealed an unbridgeable chasm between two kinds of life- and worldviews. The first seeks for the deepest origin of all temporal

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sides of reality in an idolatrous way, by seeking this origin in the temporal functions of human reason. The second seeks its deepest origin in a Christian sense, in God’s sovereignty as Creator.

As a consequence, the first life- and worldview seeks our supratemporal selfhood in our temporal functions of consciousness. The second seeks our supratemporal selfhood in the religious root of our temporal existence. This second life- and worldview is in accordance with God’s revelation in Scripture (Out of the heart are the issues of life!).

And as a further consequence, the first life- and worldview tries to bring all temporal law-spheres under the common denominator of the meaning-sides of temporal reality that it has absolutized in an idolatrous way. The second life- and worldview seeks the common denominator (the deeper unity) of all temporal meaning-sides above time in the religious root of creation, and can therefore ascribe sovereignty in its own sphere to each law-sphere in its relationship with the other law-spheres, based on its irreducible meaning.

The first life- and worldview seeks philosophy’s Archimedean point within time, and is therefore to be characterized–in all its variations–as immanence philosophy. The second life- and worldview seeks the Archimedean point above time in the religious root of the human race in its subjectedness to the religious fullness of meaning of the law, which is to serve God.

All “–isms” in philosophic thought (mathematicism, materialism, psychologism, historicism, aestheticism, moralism, etc.), which try to reduce all the remaining meaning-sides of temporal reality to the meaning of one or more absolutized law-spheres, are therefore differentiations of the law-Idea of immanence philosophy.

This law-idea also reveals its a priori influence in the philosophy of law. For example, Prof. Krabbe asserts that law is a psychical phenomenon, and that all positive law has its unique legal source in the feeling of justice held by fellow citizens. This results from a psycho-logistic view of law, which is itself grounded in the psycho-monistic philosophy of Prof. Heymans [19], who seeks the deepest origin and unity of all temporal law-spheres in the (logically understood) psychical law-sphere.

And the neo-Kantian Professor Kelsen (currently professor at Cologne, previously at Geneva and prior to that at Vienna) views law as a logical form of thought,[20] in which we order our confused sensory (psychical) impressions. That view results from a mathematical-logicistic view of law (which is itself grounded in the mathematical-logicistic philosophy of the Marburg school of neo-Kantianism), which seeks the deepest origin and unity of all temporal law-spheres in mathematical thought.

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And the view of jurisprudence within the Historicist School of von Savigny (and those who follow him) is that law is a phenomenon of historical development, and that the only true source of law is the historical-national spirit of a people [Volksgeest]. That view is itself a result of a view of law, which is grounded in the historicistic philosophy of post-Kantian idealism (Schelling, Hegel), etc.

Within immanence philosophy, two main schools of thought initially appear: the rationalistic and the irrationalistic schools.

From the very beginning, the rationalistic school of thought sought to reduce the subject-side of temporal reality to the law-side, and to find true reality only in conformity to law [de wetmatige]. For example, they saw in nature only a logical system of natural laws, of which all subjective, individual events in nature are only exemplary instances.

Conversely, the irrationalistic school of thought sought to reduce the law-side to the individual subject-side of reality. Then individual subjectivity became true reality, and law became merely an abstract concept of thought, corresponding to nothing in reality.

Within jurisprudence, rationalism revealed itself concisely in the idea that the legal sphere consists only and exclusively of legal norms, and that legal subjectivity is itself merely a dependent function of the legal norm. This is what Kelsen teaches–that the subjective legal personality can be reduced to a composite of “Rechtsätze” [pure legal judgments]. On this view, the State as a legal institution is identical legal norms, identical with the legal order, etc.

And in his Encyclopedia, Prof. Zevenbergen teaches that law does not belong to “reality,” but is a thing [constructed by] thought, and that it consists solely and exclusively of legal norms. This view tears apart full temporal reality into a supposed supratemporal noumenon (a world of thought or ideas), and a temporal phenomenon (the sensory, physical-psychical side of reality).[21]

Rationalist immanence philosophy must then accept that the legal sphere has no independent subject-side, and that temporal reality has no meaning-side of its own in the legal law-sphere.

Such a view has important consequences in legal theory. It would reduce all subjective actual events in legal life to physical-psychical natural reality. As a consequence, this view is not able to accept the existence of juridical causation,

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juridical time, juridical space, etc. It must rather try to reduce all of these factors to natural factors.

So naturalistic theories of time and causation were introduced into the science of law, which have brought about great confusion, since legal theory cannot begin with natural-scientific concepts.

We already have seen how the meaning of retribution, legal meaning, is found in the juridical determination of time [tijdsbepaling].

Consider the question, “When and where did this tort (delict) occur, and has this tort really caused definite damage?” The idealistic rationalistic view of law, which identifies the legal sphere with its law-side, and which understands all reality in legal life as natural reality, shall see in this issue merely an ordinary question about nature, which in itself falls outside of the legal concept.

For example, the naturalistic theory of causality, the condicio sine qua non, was introduced in legal science. It teaches that any consequence, which has judicial consequences in the legal order, is caused by every factor that cannot be eliminated from thought without also eliminating the concrete consequence.

The naturalistic theories concerning the time and place of a tort (the theory of the bodily deed, the theory of the instrument, the theory of the consequence that arises) want to determine the time and place of the tort wholly outside of the meaning of law. They want to do this either according to the (psychical) perceptual time, during which the physical-psychical side of actions was completed, or else according to the (psychical) perceptual time, during which the instrument (e.g. the pistol or bomb) was used for carrying out the tort, or else according to the perceptual time during which the sensorily perceptible (physical-psychical) side of the deed’s consequence was played out.

All such naturalistic theories fail to appreciate the truth that the legal sphere is a meaning -side of temporal reality itself, and that legal science can only operate with legal concepts, that is to say, with concepts in which legal meaning is grasped.

In contrast to all such views of law, which are rooted in a law-Idea of immanence philosophy and which are then specified one way or another, we have from the beginning based our view of law on the Calvinistic-Christian law-Idea.

One basic question of life- and worldview is, “What is the deepest origin of all temporal law-spheres?” Our law-Idea answers, “God’s holy, sovereign will as the Creator.”

Another question is, “Where can we find the deeper unity of all law-spheres?” Our law-Idea answers, “In the religious root of the human race, reborn in Christ.”

And a third question is, “How are we to view the mutual relation and coherence of the law-spheres?” Our law-Idea answers, “With respect to their meaning, all law-spheres are mutually

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irreducible to each other; they possess sovereignty in their own sphere according to their universal meaning, and they mutually cohere in the cosmic order of time.”

Time can be viewed as the prism, by means of which the unrefracted light of full supratemporal meaning is refracted into the colour ranges of the law-spheres, just like the rainbow is the refraction into colour of sunlight.

The law is everywhere the absolute boundary between Creator and Creation. Whoever oversteps this boundary in his thinking, and who also places God, under the law, falls into rebellious speculation. It was in this sense that Calvin spoke the profound words, “Deus legibus solutus est” [“God is above the law”].

Our law-Idea teaches that cosmic time maintains the law-spheres in correspondence.

In this cosmic time, there is also a cosmic law order, which assigns each law-sphere its defined place in temporal reality. The law-spheres are not arbitrarily mixed up in their places. Rather, they carry and support each other in a determined order of succession, regulated by the cosmic order of time.

The spatial sphere cannot exist without the foundation of the numerical sphere, although the converse is possible. For space always requires dimensions, and dimension presupposes number (space is two-dimensional, or three-dimensional, or multi-dimensional). Each spatial figure rests on the substratum of numerical relations.

And so in its turn, the spatial sphere is the foundation for the sphere of movement; movement is the foundation of the biotic sphere (of organic life); the biotic is the foundation of the psychical (of the sensitive consciousness), the psychical is the foundation of the logical sphere (of the analytical); the logical is the foundation of the historical sphere (of cultural development), the historical is the foundation of the linguistic sphere (of symbolic signification); the linguistic is the foundation of the social sphere (of association and social intercourse); the social is the foundation of the economic sphere, the economic is the foundation of the aesthetic sphere (of beautiful harmony), the aesthetic is the foundation of the juridical sphere (of retribution), the juridical is the foundation of the moral sphere (of the inclination towards love), and the moral is the foundation of the sphere of faith (which is regulated as to its law-side by divine revelation, positivized in the confession of faith).

Thus the legal sphere also has its particular place in the cosmic order of the law-spheres.

We will call all law-spheres that precede the legal sphere in cosmic time the ‘substratum spheres’ of law.

Without the foundation of these substratum spheres, law would have no meaning. None of these substratum spheres can be eliminated by thought, without law becoming meaning-less.

The place that the legal sphere occupies in the cosmic coherence is, as we shall see, by no means a matter of indifference for legal science. On the contrary, it is essential.

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In our view, The Encyclopedia of Legal Science must first determine this place [that the legal sphere occupies]. For we shall demonstrate the essential importance that this cosmological insight has for the method of juridical concept formation.

The inseparable coherence in cosmic time, which exists mutually among the law-spheres, does not only reveal itself in the external relation between a law-sphere and its substratum spheres.

If, as taught by our law-Idea, all law-spheres are really a refraction in time of the religious fullness of meaning in the supratemporal root of our creation, the organic coherence of meaning with all other law-spheres must also already be revealed within each of the law-spheres separately, in the structure of universal meaning, by which the law-spheres maintain their sovereignty over against each other.

How does this organic coherence reveal itself in the universal meaning-structure of a law-sphere? And how–in spite of this coherence–does a law-sphere maintain its sovereignty in its own sphere according to its meaning?

On the one hand, the universal meaning-structure of a law-sphere possesses a nuclear meaning, which is completely irreducible to the meaning of the remaining spheres. And on the other hand it possesses meaning-moments, which point back to the meaning of all earlier spheres and meaning-moments that point forward to the meaning of all later spheres.

We will call those meaning-moments that point back in the universal meaning-structure either ‘analogies’ or ‘retrocipations.’[22] And we will call the meaning-moments that point forward in the universal meaning-structure ‘anticipations.’

Using several examples, we will now illustrate this architectonic structure of the universal meaning-structure of the law-sphere.

We must first remark that analogies can only arise in the meaning-structure of those law-spheres that possess substratum spheres. And anticipations can only arise in the meaning-structure of those law-spheres that are succeeded by even later spheres in cosmic time.

In the universal meaning-structure of the numerical sphere, as the first boundary sphere of our cosmos (which as such possesses no more substratum spheres), we can point to no analogies. In the universal meaning-structure of the sphere of faith, as the second boundary sphere of our cosmos (upon which as such no more later spheres follow),[23] we can point to no anticipations. On the other hand, it can be established that the number of analogies in the meaning-structure depends on the number of substratum spheres on which a particular law-sphere is founded, just as the number of anticipations is dependent on the number of law-spheres that still follow that law-sphere in the cosmic order.

In order to illustrate the function of nuclear meaning, analogies, and anticipations in the

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meaning-structure of the law-spheres, we will begin by analyzing the universal meaning-structure of the two simplest spheres, those of number and space, in their mutual relation. The nuclear meaning of numerical meaning is discrete quantity (how much).

We have already seen that the universal meaning of number can include no analogies; on the other hand, it possesses as many anticipatory meaning-moments as there are law-spheres that follow the numerical sphere.

In its still unanticipated meaning, number can only determine discrete things. This is what is called the natural, finite function of number.

But in fact in its own meaning of discrete quantity, number can also approximate the meaning of continuous space, and in this way unfold its first anticipatory meaning function (upon spatial meaning). Number does this in its infinite or infinitesimal functions as an approximate number.

Let us suppose a straight line A––B Ax––––––––xB

We can think of this straight line, in itself continuous and spatial, as arising from an infinite series of points.

If we now assign the whole number 1 to point A, and the whole number 2 to point B, then we can assign to each of the following points a number that is > 1 < 2.
In this way, there arises an infinite series arises of irrational numbers, which only find their limit in 2, but which in the fullest sense of the words form an infinite series, a series of approximation.

It is clearly evident here how discrete number, in its infinite function, approximates the meaning of continuous space, without itself ever taking on its meaning.

For if number itself could ever become continuous, then it would have to assume the spatial meaning, which is not possible without wiping out the boundaries of meaning between number and space, and thereby bringing insoluble antinomies or logical contradictions in thought.

The infinite numerical function is therefore an anticipatory meaning-function of number.

Conversely, we find analogies of numerical meaning in the universal meaning-structure of space.

The nuclear moment of space is continuous extensiveness. But as we have already seen, continuous extensiveness implies dimensionality, and dimension must always rest upon the numerical substratum. (Space is one-, two-, three- or multi-dimensional!).

Thus, dimensionality is a numerical analogy in the meaning of space.

Spatial meaning does not display any more analogies. But it displays a correspondingly greater number of anticipations. In the first place, the anticipation to the meaning of movement.

Analytic geometry investigates this anticipatory function of space, by not beginning with static, given figures, but by thinking of each spatial figure as arising out of the movement of points,

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straight lines, corners, etc., in relation to a fixed system of coordinates in relation to numerical values.

Yet is it clear that no movement is possible within the meaning of space itself. [24]

Here, in its anticipatory function, spatial meaning approximates the meaning of movement. This anticipation of movement in fact continues to carry a static spatial meaning. It remains under the sovereign rule of the nuclear moment of space, which guarantees the sovereignty in its own sphere of the spatial sphere. [25]

Numerical meaning also has an anticipation to movement, and this is seen in the numerical function of differential calculus, which serves to approximate in a numerical meaning certain differences in movement, which are themselves found outside of numerical meaning.

Modern mechanics, which makes the sphere of movement into a “Gegenstand” of scientific investigation, arose for the first time when these analogical and anticipatory meaning-moments in the meaning of number, space and movement were discovered.

And this natural science is therefore constructed in the closest coherence of meaning with mathematics and mechanics!

Just as in the other law spheres, the universal meaning-structure of the psychical law-sphere displays a nuclear moment (“sensitive consciousness”), analogies and anticipations.

For example, the spatial analogy in psychical meaning is perceptual space (feeling-, touching-, optical space), which does not itself carry a spatial meaning, but the psychical meaning of the sensitive consciousness. [26]

Geometry then does not have psychical perceptual space as its “Gegenstand.” Rather it has the non-sensory spatial sphere itself as its “Gegenstand.”

On the other hand, psychical meaning has its anticipations in logical feeling, historical feeling, the feeling for language, social feeling, aesthetic feeling, legal feeling, etc. And when we now consider the legal sphere, the general meaning-structure of law also has its analogical and anticipatory functions.

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We will investigate this systematically in the analysis of the meaning of law.

As an introduction, we need only a few examples, in order to make clear the juridical scientific importance of this investigation.

Example 1. Legal meaning necessarily has a spatial analogy, which as to its law-side we call the ‘area of validity of legal norms.’ And as to its subject-side, we call it ‘the place of subjective legal conduct.’

The area of validity of legal norms does not itself carry spatial meaning. [27]

For example, in the rule of international law, “A ship is territorial,” the legal principle expressed is that the area of validity of a national legal order also extends to ships carrying a national flag, wherever they may find themselves.

This is again no natural necessity, but a normative legal requirement.

In this way the statues theory, which was taken over in our Law of Algemene Bepalingen of 1829 (the “Law A.B.”) [“The Law Containing the General Provisions”], governed the issue of how the area of validity of legal norms should be governed in the case of several competing national legal orders (e.g. the French, Germans and Dutch). [28]

And we have already refereed to the problem of the place of the tort and have recognized a legal meaning in it, a meaning of retribution.

Example 2. Legal meaning necessarily has an analogy of movement. As to its law-side, we call this ‘the legal ground and legal consequence.’ As to its subject-side, we call it ‘causality of subjective legal conduct.’

In connection with the issue of juridical causality, we have already referred to how naturalistic theories of causation reign supreme in legal science, and how juridical causality can really only be understood in the meaning of justice (the meaning of retribution).

A mechanical concept of causality, which views causality in the meaning of natural movement, has no meaning in legal science. This is immediately evident, whenever we think of the “causa omissionis” [causes of omission] in legal life.

Merely by negligence, by remaining still, doing nothing, in a case where we ought to have acted, can cause damage to someone in a juridical sense. [29]
How can one really understand the causa omissionis itself as a natural causality, and how can one accept the naturalistic theory of condicio sine qua non, where in the meaning of mechanical movement, only positive factors have meaning in the chain of causality?

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Undoubtedly, juridical causality cannot exist, and has no meaning without the substratum of causality in the meaning of natural movement.

But it is only an analogy in the subjective meaning of law, and as such, it remains qualified by retribution, the nuclear moment of law.

Juridical causality is always the causality of actions or conduct, which must always be accounted for in relation to [toegerekend] a legal subject. In contrast, mechanical natural causality does not know of any normative accounting in relation to, but only a mechanical accounting by means of [door-rekening] every subjective factor of movement that cannot be eliminated without also eliminating the consequence.

Example 3. Legal meaning necessarily has a psychical analogy, i.e. an analogy of sensitive consciousness.

This analogy embodies itself in the juridical will, which functions in both the law-side of a legal sphere (the positive legal norms as “the will of the former of law”), as well as the subject-side (the subjective legal will, which reveals itself in subjective legal conduct).

This juridical will cannot possibly be identified with psychical will in the sense of a striving and desiring of the sensitive consciousness. This is immediately evident when we consider the following:

In the Netherlands, a law comes into force by the common consultation of the Crown and both Chambers of the States General, after having obtained the advice of the Council of State. Suppose now that a bill is proposed in the Second Chamber [Lower House].

Whether or not at the instigation of a minister, the bill is worked out in his Department by one or more chief bureaucrats, and accompanied with the advice of the Council of State. During the deliberations in the Second Chamber, various members make use of their right of amendment. The bill is revised, added to, perhaps against the wishes of the relevant minister and various members of the Second Chamber. Finally the bill is passed, not because each member of the Chamber individually desires the bill in this form, but by means of a compromise between the factions of the majority parties in the Chamber.

If the bill is strongly technical in character, then one can be sure that a large proportion of the members of the Chamber, who are not familiar with or have no interest in this area, scarcely know what its contents are, although they nevertheless give their approval to it.

The bill is subsequently passed in the First Chamber, and is then approved, contrary to the views of the minority.

Finally the Crown gives its sanction to the bill, and the bill then becomes elevated to law and the law is placed in the Statute Book of the Netherlands.

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This law embodies the will of the lawgiver.
But everyone still senses that this will is not the same as the psychical desires and strivings of a number of individuals. It rather concerns the juridical will, which manifests itself in certain conduct of the law-giving organ.

Now suppose this case. A simple man wants to enter into an insurance contract. An agent from one of the companies visits him and tells him about the practical advantages of this or that system of insurance. He finally chooses a certain form. The agreement is made, and the insured now receives at his home a written document called a ‘policy.’ The policy is signed by the insurer, and it is full of clauses which the insured as such barely understands, or of which he only has superficial knowledge. But in any case, the document contains a lot more content than that to which his desire and imagination had directed itself during the coming into force of the agreement of wills.

There is an agreement of wills in the juridical meaning with respect to the contents of the contract of insurance. But it cannot be maintained, that this legal-forming agreement of wills is the same as a psychical and logical agreement with respect to what was imagined and sought by both parties with respect to insurance.

The psychological theory of the will in legal science is a result of the psychological concept of law, and must use the mask of [legal] fiction in order to cover up the antinomies (contradictions), which it calls forth by wiping out of the boundaries of meaning between psyche and law.

Where the discrepancy between the juridical and the psychological concepts of the will appears too clearly, it helps itself by using the legal fiction of psychical will. But the fiction used in this way is a scientific lie, and thus a proof of how theory is unusable.

But although the meaning of psychical and juridical willing is totally different [toto coelo, by the total extent of the heavens], it cannot be denied that the juridical will cannot exist without the substratum of a psychical sensitive consciousness, and thus can also not be understood outside of its coherence of meaning with that substratum.

No more than the meaning of movement can be grasped scientifically outside of its coherence of meaning with number and space.

For now, the above examples must suffice for making clear the function of analogies in the meaning-structure of law.

As an example of a juridical anticipation, I would mention guilt [30] in criminal law, in which the moral meaning of a lack of a loving attitude is approximated in the meaning of law, the meaning of retribution.

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Moreover, in the legal concept “good morals” (see for example article 14 of the A.B. law, 1375 of the Civil Code (B.W.), and the law concerning the right of association and gathering), we clearly see a juridical anticipation to moral meaning.

Yet even in juridical anticipation, law’s sovereignty in its own sphere continues to be maintained in its meaning.

The anticipatory meaning functions of law cannot be understood outside of the coherence of meaning with the law-sphere whose meaning is anticipated.

But even anticipation remains under the sovereign rule of the nuclear moment of law.

Psychological or moral theories of fault are juridically unusable.

How are we to view the relation between analogical and anticipatory meaning moments in the universal meaning-structure of the law-sphere?

Whenever meaning has not yet unfolded its anticipatory functions, that is, whenever meaning still only reveals itself in the coherence of the nuclear moment and its analogies [retrocipations], then we shall say that it is still found in its “closed” or “restrictive function” and that the anticipatory spheres of meaning are still closed.

The anticipatory meaning-moments, which approximate the meaning of the succeeding spheres, deepen meaning, bringing it in an “expansive” or deepened function.”

The anticipatory function can therefore never be set over against the analogical function.

So in criminal law, for example, it is fundamentally wrong (although it almost always happens) to discuss juridical causality and juridical fault wholly separately from each other or even in opposition to each other.

The three basic concepts of criminal law–injustice, causality and fault–belong together in the meaning of law. Fault deepens the “restrictive meaning” of injustice and causality in an approximation of the meaning of the moral, just as the infinite numerical function deepens the restrictive meaning of number in approximating the meaning of space.

Only on this view does an inner system arise in legal concepts. It is not just a formalistic logical system that eliminates the meaning of law (as in Kelsen’s “reine Normlogik” [pure logic of norms]), but rather a system in the (logically understood) meaning of law.

Go to Part 2 of this article.

Endnotes

[1] JGF: Herman Dooyeweerd: The Encyclopedia of the Science of Law, ed. Alan M. Cameron (Lewiston, New York: The Edwin Mellen Press, 2002) [‘the 2002 translation’].

[2] JGF: Toonder is famous for his cartoons of Heer Bommel en Tom Poes. The D.A.V.I.D. press was housed in Toonder’s studio. Toonder had previously worked at De Telegraaf; he left in 1944 when it obtained a new Editor, who was a member of the SS.

[3] JGF: See the 1975 interview of Dooyeweerd by P.Boeles, in J.M. van Dunné, P. Boeles and A.J. Heerma van Voss (eds): Acht civilisten in burger (Zwolle: W.E.J. Tjeenk Willink, 1977). English translation online at [http://www.members.shaw.ca/hermandooyeweerd/Interview.html].

[4] JGF: Elsewhere, Dooyeweerd says,