Dooyeweerd and the Common Law
Herman Dooyeweerd developed a comprehensive and consistent theory of common law as one of the two methods of integrating and coordinating the social order.
The question as to the integrating function of the social order is a crucial one. What is it that brings unity in the face of the disparate diversity of the various actors, influences, activities engaging together in the pluralistic social order, which we know as civil society? As such, what is it that compels action, and what is it that enables action to be free?
Dooyeweerd provides a framework for understanding this. He postulates two such factors performing the integrating function. And the state is central to both of them. Without the state, there is no integrating function.
Direct State Integration
First, there is the role of the state directly. “The State constitutes a typical integrating political unity in spite of any differences or divisions which its people display in other societal relationships.” By its very nature it is an integrating structure. The question then is, how does it accomplish this integration, given the disparate composition of society? For it is not, and cannot pretend to be, an all-embracing community: “Is the State, in its internal juridical sphere, really a juridical community with an unqualified coercive legal power, absorbing all the internal juridical relationships of a different radical and genotype, as its component parts? This is impossible, since the individuality-structures of the non-juridically qualified legal relationships can never assume the structural character of public legal relationships inherent in the State;” nor, vice versa, can the state assume the structural characters of the various other individuality-structures. It does so in terms of its “leading function,” which is “that of a public legal community;” and what is unique about this is precisely its public nature. The state has the public interest at heart: “It is the principle of public interest which in its leading juridical aspect also gives a typical material legal meaning to the internal public law of the State.” The public interest determines the role of the state. At the same time, it restricts it: “the principle of public interest must itself have a typical juridical qualification which delimits its supra-arbitrary structural meaning.”
The public interest is the focus of the integration accomplished by the state; this integration extends as far as the public interest demands. The public interest is a delimited interest. The delimitation is precisely the specifically qualified juridical interest that citizens, organizations, associations may have as members of the body politic; the public interest extends no farther. “In the territorial legal community of the body politic all the specifically qualified juridical interests should be harmonized in the sense of a truly public legal retribution, and integrated into ‘the public interest’.”
How are these specific juridical interests harmonized? “The public interest implies the typical public legal measure of distributive justice.” Distributive justice is the standard. Within the state, distributive justice takes the form of public social justice. “The internal political activity of the State should always be guided by the idea of public social justice. It requires the harmonizing of all the interests obtaining within a national territory, insofar as they are enkaptically interwoven with the requirements of the body politic as a whole.” These interests are weighed against each other while respecting the sphere sovereignty of the participants. Specifically in the case of taxation, this standard “requires a proportional distribution of public communal charges and public communal benefits in accordance with the bearing power and the merits of the subjects.” In the case of public health (of special interest to us during the COVID-19 crisis) this public interest calls for the government, in pursuit of the improvement of public health, to weigh private legal interests against each other and against the public interest. “These private interests must be harmonized and integrated in the public juridical interest.”
There is no simple rule here. It is a question of trade-offs. This has become especially evident in the current situation. The legal interest of vulnerable portions of society versus the legal interest of the economic well-being of the society as a whole is what needs to be weighed up in the public interest. No easy task, that.
Elsewhere Dooyeweerd makes the crucial point that this public interest is a common, shared interest, and as such cannot be subjected to particular interests, such that one set of interests is preferred to another.
[P]ublic-legal regulation as such remains characterized by the principle of the salus publica [i.e., public welfare], a characteristic public-legal principle, which – positively – entails the principle of distributive justice in agreement with the nature of the state relation and – negatively – cuts off every attempt to subordinate public law to a specific group interest and to overstep the original sphere of competence determined by its structural principle.
The idea of the public interest is limited to those things which truly concern the public – the people as a whole, considered as members of the body politic, and with regard to the affairs of the body politic. This, in opposition to those things which separately concern particular individuals and associations. And it is restricted by the very purpose of the state, “governmental authority over subjects enforced by the strong arm.” Which is to say, this public integration is carried out primarily to provide a basis (taxation, citizen participation, and the like) for the state to carry out its duties in the administration of justice, police, and national defense.
Indirect State Integration and the Common Law
In all of this we see that the integrating function performed by the state has to do with the harmonization of particular legal or juridical interests, in terms of the public interest. As such, it is restricted to the legal or juridical sphere. By contrast, there is another integrating instrument that the state maintains which throws its net across the life of society in a different way altogether – not in terms of a communal belonging and participation, which by definition is restricted to a specific terrain, but in terms of all of life’s activities, albeit itself restricted to the juridical function as well – a different juridical function, to be sure. And that is common law.
“The internal public law-sphere of the State has its typical correlate in the sphere of civil law as a private common law (jus commune).” The particular groups and associations, each of which have their own internal communal structures, likewise have relations outward. It is in terms of this law that they conduct themselves outwardly. “Every communal legal sphere is correlated with inter-individual legal relationships.” The common law shapes “an inter-individual legal sphere” which is the correlate of “the public communal law-sphere of the State.”
Elsewhere Dooyeweerd speaks of the coordinating, integrating function this law performs.
When speaking about things in nature, we discussed a thing’s internal structure in distinction from a thing’s external relations. This distinction between internal structure and external relations is of essential importance to legal science when discussing the organizations of human society. Because it teaches us, in agreement with the reality of the practice of law, the fundamental distinction between the internal legal order of an organization… and bare external legal relations in which individual legal subjects mutually stand, where they as coordinated individuals cause damages to each other, engage contracts with each other, and the like.
It bears emphasis that these two relations do not stand in opposition to each other, and are not to be played off against each other. In fact, as Dooyeweerd highlights, these two modes have usually been set over against each other in one-sided opposition, one group emphasizing the societal relation (individualism), the other the communal relation (collectivism), each to the detriment of the other. Dooyeweerd, however, recognized that these relations exist in mutual unbreakable unity; they are both necessary, and they are mutually reinforcing; they are equally ultimate, reflecting the unity in diversity of the created order.
[N]o single inter-personal or inter-communal relationship can occur without finding its counterpart in a communal bond. A human society cannot exist as an unintegrated diversity alone. The unbreakable correlation between unity and diversity is founded in the temporal world-order itself.
No organizational law exists separate from civil private law, just as vice versa no civil private law arises apart from the correlation with an organizational law. There is here thus no either/or but rather a both/and. The state, the church, the private club [vereeniging] or foundation can never exist legally only in [terms of] an internal organizational function, because this would disconnect them from the coherence of retribution…. It is therefore totally confusing to characterize the law… as “communal order” (thus Radbruch). Leaving aside the fact that this definition is an abstract general concept without a further delineation in terms of aspects, it also misjudges the necessary correlation between the civil private function, which coordinates individuals, and the communal function, which subordinates individuals in the organization….
Organizations function within the framework established by civil private law, the external law in which “coordinated individuals cause damages to each other, engage contracts with each other, and the like.”
This law is the product of the historical process of differentiation whereby monolithic clan- and sib-relationships are fragmented into more individualist forms of social life, a process which can be traced in the development of the Roman jus gentium. Indeed, “it was only under the influence of the ius gentium that the idea of a common private law developed.”
This law is categorically different from the public law enforced by the state; it is not a mere form of administrative state law. “The Roman lawyers emphatically established that, as to its inner nature, the common private law did not pertain to the res publica but to the interest of the individual legal subjects in their inter-individual relationships.” But it was in the state’s interest to promote the development of this private common law, in order to avert the re-establishment of “ancient undifferentiated legal spheres” which “were incompatible with the State’s monopolistic organization of the sword-power and the public legal authority.”
By the same taken, it could not have developed without the state. “In this respect the sharp distinction between public and private law was a vital concern of the res publica. By controlling the jurisdiction over all private law-suits, in as much as they pertained to the sphere of common private law, the State was able to prohibit any attempt on the part of private power-formations to usurp an exclusive authority over the subjects of the body politic.” Not only did the state have a vested interest in the formation of private law, but it is the only institution that could develop it, because private law is itself strictly juridically qualified. “Since the common private law was also sharply distinguished from all internal private legal spheres of a typical non-juridical qualification, its formation was by the nature of the case bound to the res publica. Outside of the latter there was not any room for an inter-individual common legal sphere based upon the natural law principle of equality of all free individuals as such.” The juridical function is a state function.
This framework is not exclusive to Roman law. English law as well developed along similar lines despite the relative lack of influence of Roman law there. “Here, too, a civil law-system has developed based on the essential principles of juridical equality and freedom of all individuals in their inter-personal civil legal relations.” This occurred through “a material transformation of the feudal law into a common private law.” Like Roman law, “it was brought about by the formative activity of judicial organs of the State, viz. the common law courts and the supplementary equity jurisdiction of the chancellor.” And as with Roman law, “the classical English jurists considered this common civil law as the expression of natural justice, just as the Roman lawyers had looked upon the jus gentium as the expression of the jus naturale.”
Distributive and Commutative Justice
It has been noted that Dooyeweerd resorts to the concept of distributive justice to delineate the scope of the public interest. Therefore, the direct role of the state in integrating society, to the degree that societal elements are involved in the body politic, is a function of distributive justice. What of the principle of justice pertinent to private common law? What is the standard to be applied there? In his discussion Dooyeweerd makes one reference to that form of justice, calling it “inter-individual justice.” One would expect him to refer to the familiar Aristotelian concept of commutative justice, just as he makes use of the sister concept, distributive justice. But he does not. Why the reticence?
Earlier in the book, in another context, Dooyeweerd discusses the Aristotelian concept of justice. He writes that in the original Dutch edition, he made use of Aristotle’s terminology to distinguish between communal and inter-individual relationships. “Aristotle, I argued, sharply distinguishes between the justice to be exercised in the internal relationships between subjects and rulers, and that which has to find expression in the inter-individual relationships between coordinate persons in contracts and private wrongs. The former he called δίϰαιον διανεμήτιϰον or justitia distributiva, and the latter he styled δίϰαιον διοϱϑώτιϰον or justitia commutativa.” But this was a mistake, for in actuality Aristotle subordinated his concept of inter-individual justice to a whole-part framework whereby the individuals are only subordinate members in a whole, the body politic. “In the Aristotelian view, these transactions, however inter-individual in character, are in principle a component of the all-embracing communal life in the polis.”
The problem with Aristotle was his aversion to trade and commerce. Trade and interest “threaten the virtue of the community, because they are to be viewed as unnatural methods of enrichment and are not primarily directed to mutual and equal service, which is a communal duty.” Aristotle opposed the taking of interest because money cannot beget money. And trade is unworthy of a citizen because the pursuit of wealth as an end itself is immoral. “Viewed in this light, the Aristotelian distinction between commutative and distributive justice can indeed have nothing to do with the fundamental difference between communal and inter-individual relationships.” So Dooyeweerd rejected Aristotle’s distinction because it was not capitalistic enough!
Does this rule out any resort to the Aristotelian terminology? By no means. “Naturally the terms may be retained to signify the different standards of justice which should be employed with respect to private relationships in the sphere of civil law and to public law relations of a communal character.” Even so, when doing so, we must keep in mind that Aristotle intended an anti-capitalistic meaning, “implying a fundamental condemnation of commercial trade and interest;” in this sense, it is “by no means serviceable in a modern society. It presupposes the Aristotelian ideal of an autarchical all-inclusive polis, based on the economy of undifferentiated agrarian households.”
 Dooyeweerd, A New Critique of Theoretical Thought Vol. 3, 438.
 Dooyeweerd, 437.
 Dooyeweerd, 438.
 Dooyeweerd, 438–39.
 Dooyeweerd, 438.
 Dooyeweerd, 438.
 Interestingly, in the Dutch original Dooyeweerd does not refer here to public social justice but to public associational justice – publieke verbandsgerechtigheid (Dooyeweerd, De Wijsbegeerte Der Wetsidee: Book III: De Individualiteits-Structuren Der Tijdelijke Werkelijkheid, 401). This is because, strictly speaking, what is social is what refers to society, and the law governing society is maatschapsrecht, which we translate as societal law. Dooyeweerd also refers to this as inter-individual law. It is the common law of which we will speak below. The guiding principle of this law is not distributive justice, hence not social justice as is commonly understood, but is “inter-individual justice” (New Critique, vol. 3, p. 449). By contrast, public law is a form of communal law, and as such is guided by distributive justice.
 Dooyeweerd, A New Critique of Theoretical Thought Vol. 3, 446.
 Dooyeweerd, 444–45.
 Dooyeweerd, 446.
 Dooyeweerd, “De Sociologische Verhouding tussen Recht en Economie in het probleem van het zgn. ‘Economisch Recht’” [The Sociological Relation between Law and Economics in the Problem of so-called Economic Law] in Opstellen op het gebied van recht, staat en maatschappij aangeboden aan Prof. Dr. A. Anema en Prof. Dr. P.A. Diepenhorst bij hun afscheid van de Vrije Universiteit door oud-leerlingen [Papers on the subjects of law, the state, and society offered to Prof. A. Anema and Prof. P.A. Diepenhorst upon their retirement from the Free University, by former students] (Amsterdam: Uitgeverij S.J.P. Bakker, 1949), p. 238.
 New Critique, vol. III, p. 435.
 Dooyeweerd, De Wijsbegeerte Der Wetsidee: Book III: De Individualiteits-Structuren Der Tijdelijke Werkelijkheid, 446.
 Encyclopaedie der rechtswetenschap [Encyclopedia of Legal Science] (D.A.V.I.D. edition), vol. I, p. 33
 New Critique, vol. III, p. 182.
 Encyclopaedie, vol. II, p. 33.
 Dooyeweerd, A New Critique of Theoretical Thought Vol. 3, 446–47.
 Dooyeweerd, 449.
 Dooyeweerd, 449.
 Dooyeweerd, 450.
 See note 7 above.
 Dooyeweerd, A New Critique of Theoretical Thought Vol. 3, 213.
 Dooyeweerd, 213–14.
 Dooyeweerd, 214.