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Encyclopedia of the Science of Law Introduction

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Encyclopedia of the Science of Law Introduction THE COLLECTED WORKS OF HERMAN DOOYEWEERD Series A, Volume 8/1 GENERAL EDITOR: D.F.M. Strauss Encyclopedia of the Science of Law Introduction Series A, Volume 8/1 Herman Dooyeweerd PAIDEIA PRESS 2012 Library of Congress Cataloging-in-Publication Data Dooyeweerd, H. (Herman), 1884-1977. Encyclopedia of the Science of Law Herman Dooyeweerd; translated by Robert D. Knudsen, edited by Alan M. Cameron. p. cm. Includes bibliographical references and index ISBN 978-0-88815-222-0 (soft) Encyclopedia of the Science of Law; Volume 1: Introduction This is Series A, Volume 8/1 in the continuing series The Collected Works of Herman Dooyeweerd (Initially published by Mellen Press) ISBN 978-0-88815-222-0 The Collected Works comprise a Series A, a Series B, and a Series C (Series A contains multi-volume works by Dooyeweerd, Series B contains smaller works and collections of essays, Series C contains reflections on Dooyeweerd's philosophy designated as: Dooyeweerd’s Living Legacy, and Series D contains thematic selections from Series A and B) A CIP catalog record for this book is available from the British Library. The Dooyeweerd Centre for Christian Philosophy Redeemer College Ancaster, Ontario CANADA L9K 1J4 All rights reserved. For information contact ÓPAIDEIA PRESS 2012 Grand Rapids, MI 49507 Printed in the United States of America Series A, Volume 8/1 Encyclopedia of the Science of Law Introduction Herman Dooyeweerd Translated by Robert D. Knudsen Edited by Alan M. Cameron This is the second print-run (containing a few minor text corrections) of volume one of a five volume series. The manuscript used in the transla- tion of this volume is entitled, Encyclopaedie van de Rechtswetenschap: Inleiding and dated 1967. The other four volumes of this work are: Volume 2 – A History of the Concept of Encyclopedia and the Con- cept of Law Volume 3 – The Elementary and Complex Basic Concepts of Law Volume 4 – The Typical Basic Concepts of Law and the Theory of the Sources of Law Volume 5 – Revised Introduction (Unfinished) The Dooyeweerd Centre for Christian Philosophy wishes to thank the Stichting Zonneweelde for the generous donation that contributed to the translation and publication of this work. Table of Contents Foreword ...............................xi Editor’s Introduction..........................1 PART 1 The Philosophic Idea of Encyclopedia in the Light of the Cosmonomic Idea. The Theory of the Law-Spheres as the Primary Foundation of the Encyclopedia of the Science of Law 1.1 Introduction to the Science of Law and the Philosophic Idea of Encyclopedia ...............11 1.2 Science and Reality ......................21 1.3 Philosophy, the Special Sciences, and Naive Experience of Reality. Cosmic Time and the First Transcendental Basic Problem of Any Conceivable Philosophic System ......................26 1.4 The Second Transcendental Basic Problem of Philosophy: The Archimedean Point .............34 1.5 The Christian Transcendence Standpoint and the Critical Immanence Standpoint in Philosophy. The Third Transcendental Basic Problem of Philosophy ...........................37 1.6 The Four Religious Ground Motives of Western Thought ............................48 1.6.1 The Form-Matter Motive ...............50 1.6.2 The Motive of Creation, Fall, and Redemption....58 1.6.3 The Nature-Grace Motive...............61 1.6.4 The Motive of Nature and Freedom .........63 1.7 The Cosmonomic Idea as the Transcendental Ground-idea of Philosophy: The Transcendental Critique of Theoretical Thought and “Metaphysics” .....75 1.8 The Cosmonomic Idea and the Method of Concept-Formation in the Science of Law ..........85 vii 1.9 The Law-Spheres and their Modal Structures. The Concepts of Law and Subject in the Science of Law..............................94 1.10 The Cosmic Order of the Law-Spheres and the Method of Analysis of the Modal Structures.........100 1.11 Antinomies and Illegitimate Fictions in Scientific Thinking: The Fictions of Legal Method...........112 PART 2 The Opening Process in the Normative Aspects of Reality: Law and History 2.1 The Sphere Universality of All the Modal Aspects and the Opening Process in the Normative Anticipatory Law-Spheres. The Relationship of Causality, Attribution, Unlawfulness, and Fault .......123 2.2 Law and History: The Relationship of the Science of Legal Dogmatics to the Science of Legal History ......135 2.3 Law and History: The Modal Structure of the Historical Aspect .......................138 2.4 The Modal Meaning of History in its Opened Structure: The Relation of Historical Ethnology and the Science of History ....................155 2.5 The Relationship between Law and History Revisited: Is the Opposition between Historical and Systematic Thinking Correct? ................165 2.6 The Modal Structure of Faith as the Temporal Boundary Function and its Place in the Opening Process ............................173 viii PART 3 The Subject-Object Relation within the Modal Structure of the Law-Spheres and its Significance for the Science of Law 3.1 The General Significance of the Subject-Object Relation in the Modal Structure of the Law-Spheres with particular reference to the Jural Aspect .........185 3.2 The Limits of the Subject-Object Relation..........188 PART 4 The Theory of the Individuality-Structures of Reality and their Forms of Interlacement as a Second Foundation for the Encyclo- pedia of the Science of Law 4.1 The Place of the Various Branches of Law in an Encyclopedia of the Science of Law .............197 4.2 The Relationship of the Modal and the Individuality Structures of Reality. Law-Type and Law-Modality.....204 4.3 The Interlacement of the Individuality-Structures: Enkapsis and the Enkaptic Structural Whole.........216 4.4 The Enkaptic Structural Whole of the Human Body and Act-Life: The Relationship of Psychology and the Science of Law ......................222 Glossary ...............................233 Index ................................ 243 ix Foreword The Encyclopedia of the Science of Law constitutes the first scholarly domain in which Dooyeweerd tested his radically new understanding of created reality, informed by the biblical basic motive of creation, fall, and redemption. The Science of Law represents the academic discipline in which Dooyeweerd was trained and in which he developed excep- tional expertise. Therefore, it must be clear that the publication of this comprehensive and authoritative multivolume series will contribute sig- nificantly to the ever growing legacy of reformational philosophy. Although many philosophical trends throughout the history of philoso- phy and even within the contemporary scene ventured to categorize our understanding of created reality, the dominance of reductionistic ap- proaches frequently precluded an integral account of the diversity and unity of reality. What is particularly attractive about Dooyeweerd’s pro- gram in the Encyclopedia is that he applies the method of immanent criti- cism so effectively in his analysis of alternative theoretical trends that it enhances the argumentative force of his own approach. Combined with his sincere aim to do justice to empirical reality in all its facets and dimen- sions – exemplified in what became known as the transcendental-empiri- cal method – this resulted in a comprehensive account of the basic con- cepts operative in scientific endeavors. The Encyclopedia opens up unexpected vistas within this domain, start- ing with an elucidation of what Dooyeweerd calls the elementary (or ana- logical) basic concepts of the science of law and proceeding with a scru- tiny of the complex basic concepts as well as the typical concepts of law. The first volume is not only an introduction to the Encyclopedia of the Science of Law, it is also a magnificent introduction to Dooyeweerd’s en- tire philosophy. It will appeal to all scholars with a basic interest in philos- ophy, regardless of what discipline they are coming from. This introduc- tory volume may turn out to become the cornerstone of the entire Col- lected Works of Herman Dooyeweerd. D.F.M. Strauss General Editor xi Editor’s Introduction This is the first of the five volumes to be published which will comprise the complete Encyclopedia of the Science of Law by Herman Dooye- weerd. It is appropriate therefore in this introduction to provide a brief description of these volumes, some information about the Dutch texts on which the English translations are based, as well as more detailed in- formation about this introductory volume and the editing of its transla- tion. Some general observations will also be made about the Encyclope- dia as a complete work and its significance within The Collected Works of Herman Dooyeweerd. The Encyclopedia Volumes The five volumes of the Encyclopedia comprise 1 Introduction,2A His- tory of the Concept of Encyclopedia and the Concept of Law,3The Ele- mentary and Complex Basic Concepts of Law,4The Typical Basic Con- cepts of Law and the Theory of the Sources of Law, and 5 Revised Intro- duction (Unfinished). As a systematic theoretical account of law and le- gal phenomena volumes 1 and 3 are the key volumes. Volume 3 is the next in the set planned for publication. The first volume outlines Dooyeweerd’s general philosophical perspec- tive specifically orientated to the academic field of law. The general phi- losophical systematics is known both within and without reformational Christian circles as the Philosophy of the Cosmonomic Idea. This orienta- tion of the latter to the major theoretical problems of law in the first vol- ume
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