Session IV Law, Morality, Johan D. van der Vyver Rev. David W. Hall and Culture George Harinck Journal of Markets & Morality Volume 5, Number 1 (Spring 2002), 211–249 Copyright © 2002 The Jurisprudential Legacy of Abraham Kuyper Johan D. van der Vyver and Leo XIII Emory University School of Law Toward the end of the nineteenth century, two religiously committed digni- taries, acting independently of one another and indeed in two quite distinct communities within the Christian tradition, produced significant contributions to social, political, and legal thought. Their special influence within the respec- tive religious communities from which they stemmed was, in itself, remark- able. Even more remarkable is the fact that aspects of their sociopolitical and jurisprudential theories are clearly echoed in distinct doctrines reflected in contemporary international law. Abraham Kuyper (1837–1920), a Dutch Calvinist theologian, philosopher, and politician, played a decisive role in developing the doctrine of sphere sov- ereignty to denote the relationship of power that ought to prevail between social entities such as the body politic, church institutions, and cultural com- munities. Within the context of constitutional law, sphere sovereignty— properly defined—constitutes a feasible criterion for identifying instances of, for example, political totalitarianism; that is, interference of the repositories of governmental powers in the private lives of their subordinates and excessive control by governmental agencies of the internal affairs of institutions other than the State. In international law, sphere sovereignty finds expression in the principle of the self-determination of peoples. In the context of political philosophy, the legacy of Pope Leo XIII (1878–1903) takes on a different—though not unrelated—nuance: Through the encyclical Rerum Novarum of 1891, he guided Scholastic thought in regard to the basic directive of the law (proclaiming human dignity to be the standard 211 The Jurisprudential Legacy of Johan D. van der Vyver Abraham Kuyper and Leo XIII of all law) and of the exercise of political power (emphasizing the obligation nate the range of competencies of the Church over against those of the State.1 of the State to promote the common good). As far as contemporary norms of The idea itself, however, preceded this descriptive phrase by approximately international law are concerned, the encyclical is of special importance as a three hundred years. According to Herman Dooyeweerd, “the first modern prelude toward the development of economic and social rights as a distinct formulation of the principle of internal sphere-sovereignty in the societal rela- component of the human rights paradigm. tionship” is to be found in a statement of the medieval Calvinistic jurist, The common ground of the contributions of Kuyper and Leo XIII to polit- Johannes Althusius (1557–1638).2 Althusius proclaimed that all distinct social ical theory and international-law perceptions is their shared emphasis on the entities are governed by their own laws and that those laws differ in every limitation of political power: in the case of Kuyper, by the distinct and equiv- instance according to the typical nature of the social institution concerned.3 alent enclave of competencies of non-State social entities, including peoples In the three hundred years that separated Althusius and Groen van defined by cultural or ethnic distinction; and in the case of Leo XIII, by a cer- Prinsterer, the concept of the internal sovereign authority of social entities sur- tain ethically defined objective of law and governmental powers to preserve faced from time to time, mostly in the ranks of Lutheran political scientists human dignity, to promote the common good, and, in particular, to care for the and, by and large, was confined to Church-State relations. Georg Friedrich economically and socially deprived sections of the community. Puchta (1798–1846), for example, spoke of die Selbstständigkeit (independ- This essay will seek to uncover, in Part 1, the analogies between the ence) of the Church as “an institution alongside the State,”4 and of the Church Kuyperian doctrine of sphere sovereignty on the one hand, and the current distinguishing itself “through the different nature of its essence.”5 Although notions of the right to self-determination of peoples on the other, and, in Part this clearly indicated sphere sovereignty in Church-State relations,6 Puchta 2, the influence that Pope Leo XIII might have had in introducing into the did not extend the principle to apply to other social entities. doctrine of human rights its “second generation” component of social and Georg Beseler (1809–1888) insisted on “sovereign” legislative powers of economic rights. local authorities,7 which sovereignty he went on to define as “the power belonging to certain corporations to enact, in their own discretion, their own Part 1: Sphere Sovereignty and the law (decrees, statutes, options) within the district governed by them or in any 8 Self-Determination of Peoples event in respect of their own affairs.” Friedrich Julius Stahl (1802–1861), the man who had a decisive influence on Groen van Prinsterer, again confined sovereign powers in the strict sense to The sphere sovereignty of a national or ethnic, religious or linguistic commu- State and Church only, proclaiming that these two institutions occupied places nity denotes the inherent competence of members of that community: independent of one another,9 that the Church was “an institution of an alto- • to establish institutions as a means of uniting their number and to gether different kind,”10 and that “ecclesiastical authority … is to be strictly facilitate the execution of their calling; distinguished from secular authority.”11 • to decide upon and organize the internal structures of such institu- Groen van Prinsterer also referred to sphere sovereignty in the context of tions; and Church-State relations only. He often spoke of “the independence of the State • to contrive and to proclaim rules of behavior and exercise author- over against the Church in consequence of its direct submission to God”12 and ity for the sake of order within their own ranks. defined the Church as a community of faith with its own characteristics, of which a confession was an indispensable ingredient.13 In one of his earlier Historical Perspective works he proclaimed: “The State is not subject to the Church, but together with the Church it is subject to God’s commandments.”14 From Althusius to Kuyper Within Calvinist circles in the Netherlands, Abraham Kuyper must be sin- gled out as the person who expanded the notion of sphere sovereignty beyond The Dutch expression souvereiniteit in eigen sfeer was first used in 1862 the enclave of Church-State relations to embrace the relationship between all by a Dutch politician, Guillaume Groen van Prinsterer (1801–1876), to desig- social institutions. “In every community,” he said, “one finds many different 212 213 The Jurisprudential Legacy of Johan D. van der Vyver Abraham Kuyper and Leo XIII of all law) and of the exercise of political power (emphasizing the obligation nate the range of competencies of the Church over against those of the State.1 of the State to promote the common good). As far as contemporary norms of The idea itself, however, preceded this descriptive phrase by approximately international law are concerned, the encyclical is of special importance as a three hundred years. According to Herman Dooyeweerd, “the first modern prelude toward the development of economic and social rights as a distinct formulation of the principle of internal sphere-sovereignty in the societal rela- component of the human rights paradigm. tionship” is to be found in a statement of the medieval Calvinistic jurist, The common ground of the contributions of Kuyper and Leo XIII to polit- Johannes Althusius (1557–1638).2 Althusius proclaimed that all distinct social ical theory and international-law perceptions is their shared emphasis on the entities are governed by their own laws and that those laws differ in every limitation of political power: in the case of Kuyper, by the distinct and equiv- instance according to the typical nature of the social institution concerned.3 alent enclave of competencies of non-State social entities, including peoples In the three hundred years that separated Althusius and Groen van defined by cultural or ethnic distinction; and in the case of Leo XIII, by a cer- Prinsterer, the concept of the internal sovereign authority of social entities sur- tain ethically defined objective of law and governmental powers to preserve faced from time to time, mostly in the ranks of Lutheran political scientists human dignity, to promote the common good, and, in particular, to care for the and, by and large, was confined to Church-State relations. Georg Friedrich economically and socially deprived sections of the community. Puchta (1798–1846), for example, spoke of die Selbstständigkeit (independ- This essay will seek to uncover, in Part 1, the analogies between the ence) of the Church as “an institution alongside the State,”4 and of the Church Kuyperian doctrine of sphere sovereignty on the one hand, and the current distinguishing itself “through the different nature of its essence.”5 Although notions of the right to self-determination of peoples on the other, and, in Part this clearly indicated sphere sovereignty in Church-State relations,6 Puchta 2, the influence that Pope Leo XIII might have had in