Abstract

STRAUSS, Danie. The significance of philosophical distinctions for reflecting on state and society with special reference to the work of Koos Malan on Politocracy. Tydskr. geesteswet. [online]. 2017, vol.57, n.3, pp.852-870. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2017/v57n3a13.

Recently reflections on state and society were enriched by the contributions of various authors in Afrikaans. Of particular interest in this regard is a work written by Koos Malan (professor in Constitutional Law). It displays a positive appreciation of the Greek polis which provides a starting-point for his discussion of the ecclesiastically unified culture of the Medieval era. He points out that the term "state" emerged fairly recently, preceded by earlier designations such as realm, body politic, commonwealth, civitasandrepublic. In his definition of "staatlikheid" ("stateliness") the intention is to capture key traits of the ideology of the state. In some instances stateliness and state are equated. When the element "territory" is added to the concept of the "state" the idea of the "territorial state" emerges. However, according to Malan the expression territorial state does not instantiate the positive features of a genuine community. The latter is understood not in terms of abstract individuals, but from the perspective of a whole and in terms of the whole-parts relation. At the same time the jural side of reality is seen as related to the state. He holds that the state order is seen as a reified, fixed and permanent entity, instead of as a temporal, historical and therefore changeable phenomenon. This view highlights the classical philosophical problem of constancy and change (dating back to Plato and Heraclitus). It became once more prominent at the beginning of the 19^th century with the rise of modern historicism which emphasized change at the cost of constancy. However, in the same context Malan does evince an understanding of Plato's insight, namely that change can only be detected on the basis of persistence (constancy), for he refers to the "royal office" which is an "enduring" ("blywende") and an "immutable" ("onveranderlike") juridical given. This insight borders upon a key element in our understanding of the nature of a principle as a universal and constant starting-point for human action that can only be made valid (positivized) through the intervention of a competent organ in varying circumstances. Malan speaks of "rules" contained in "legal principles" that ought to be applied - without realizing that a rule is already an applied principle. Defending the supposed changefulness of the "state order" is only possible if an element of persistence is recognized in the constancy of the structural principle of the state, for otherwise Malan becomes a victim of the shortcoming of historicism by emphasizing change at the cost of what endures. The relationship between state and law points at another important philosophical distinction, namely distinguishing between concrete (natural and societal) entities and the various modes of existence in which they function. The various modes of being ("bestaanswyses") of reality are captured in concepts of function distinct from thing concepts, which in turn are correlated with modal laws (displaying an unspecified universality) and type laws (evincing a specified universality). The functioning of the state within all aspects of reality presupposes the universality of each one of these aspects because the scope of modal laws encompasses all possible classes of entities. The type law for being a state, by contrast, displays a specifieduniversality: it holds for all states (its universality), but it is at once also limited to states only (its specified universality), for not everything is a state. Malan does not employ the distinction between modal universality and typicality. As a result he defends the view that concepts such as "law," "freedom," "authority" and "sovereignty" are "state-related." However, if "law" finds its "foundation and starting-point" in the state, as he alleges, the question arises if law (just like the state) only arrives on the scene relatively late. Moreover, societal entities distinctfrom the state also function (in their own typical way) within the jural aspect of reality. Therefore no single aspect, including the jural aspect, could be allocated to one or another entity merely functioning within it. The state does not "own" the jural aspect. The terms "authority" and "sovereignty" are analyzed in a similar way, by focusing on the modal aspects in which they have their foundation. Malan is justifiably critical of the totalitarian side of the concept of sovereignty introduced into modern political science and the science of law by Bodin (1981). But the "organological view of society" present in Bodin's concept of sovereignty still reflects the over-extended application of the whole-parts relation derived from the philosophy of Aristotle. Malan is not critical of this legacy. While holding on to this he analyzes the philosophical orientations of Hobbes, Locke and Rousseau by focusing on their atomism (individualism) and their "anti-communitarian" ("anti-kommunitêre") inclination. What is absent in the analyses of Malan is an investigation of the direction-changing influence of late-scholastic nominalism. This shortcoming influenced his restricted understanding of modern humanism because his approach does not enhance an insight into the ultimate dialectic of nature and freedom operative within modern philosophy. It also prevents his approach from appreciating the modern social contract theories as an outcome of the primacy of the humanistic science ideal and the motive of logical creation. Contrary to his claim that humanism lasted up to the middle of the 16^th century its dialectic influence is still operative in Western culture. Although he does briefly refer to the encompassing work of Mekkes (1940) on the Ontwikkeling der humanistische rechstaatsteorieën a more penetrating study of this work would have presented alternative options to avoid most of the problems mentioned in our current analysis. That the positive appreciation of the holistic legacy does not merely relate to the Greek-Medieval tradition will be shown in follow-up articles, in which universalism will be examined in more detail, directed at the post-Kantian freedom-idealism of Schelling, Fichte and Hegel. The current article concludes by pointing out that the directional antithesis between good and evil should not be interpreted in structural terms, entailing that the norming structural principle of the state is not inherently antinormative, i.e. evil by definition. Al Wolters (1981) captures the depth perspective on the distinctness of structure and direction as follows: "All aspects of created life and reality are in principle equally good, and all are in principle equally subject to perversion and renewal."

Keywords : stateliness; historicism; principle; universality; freedom and power; sovereignty; logical creation; nature and freedom; structure and direction.

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