The Order of Society and its Tensions

We are faced with the following aporia: on the one hand, the law is manifest phenomenally in a plurality of legal orders understood as aggregates of valid rules.¹ These ag­gregates resist analysis under the categories of essence and individuation. The obstacle proves to be the validity that pervades the legal order into every single rule. When analysis pursues validity into its consequences, however, the legal order disappears from existence altogether in the Zenonic paradox. No assurances about a realm of normativity can confer ontological status on the legal order.

On the other hand, the result is at variance with the phenomena attesting the existence of “the law” in everyday parlance. In every country the statutes, the administrative orders, the administrative and judicial decisions form a literary corpus, increasing prodi­giously under the legislative and administrative needs of modern industrial societies, to which no one will deny existence. “The law” exists so massively that we have professional schools, the law schools, organized for the purpose of familiarizing prospective law­yers with as much of the gigantic phenomenon as possible within the course of a few years.

The exit from the aporia opens with the recognition that the legal order, while it has no ontological status of its own, is part of the process by which a society brings itself into existence and pre­serves itself in ordered existence. The larger entity is the object of inquiry, and the legal order exists indeed insofar as it is part of the larger complex. We have ascertained, moreover, that the weight in the comprehensive entity lies on the social side.

Assuming these results of the inquiry into the nature of the law as established, further questions now will arise concerning the manner in which the legal order and its rules participate in the existence of ordered society. The first of these questions will have to be the radical one: How is it at all possible ontologically that rules have a function in the existence of a society and its ordering process?

The Rules of Law

Again we must have recourse to the preanalytical understanding of rules or laws. When we say that something happens “as a rule,” we mean that more often than not an event E will occur whenever there is a situation S.² All we are inter­ested in at the moment are the ontological implications of the rule: that the situation S and the event E are recognizable, that they re­cur, and that they recur with a high frequency in the relation ex­pressed by the rule.

Rules, we may conclude, can have a function in society only if there are recognizable, typical situations and events, if the situations and events recur, and if they recur with such fre­quency in connection that the connection itself acquires the char­acter of a recognizable type and can be expressed in “rules.”

As a matter of fact, the order of a society has a discernible struc­ture of typical elements, of typical situations and events, and of typical connections between them. Every glance at the legal order of any society will reveal the typical structure that is submitted to regulation by the rules. There are such large complexes recurring in legal orders as the civil and criminal laws.

Within the civil law, for example, we find such typical subcomplexes as the law of per­sons, of things, of obligations, of marriage and family and of succes­sion, covering the status of human beings, their relations to objects of the external world, their contractual relations among themselves, the order of their family units in life and death.

If society were an amorphous flux, without a structure of constant elements and recurrences, rules would be of no use because they would have no field of application. Rules can be used in the ordering process because the order of society has a structure that lasts in time.

The Lastingness of Order

We shall speak of the “lasting” character of order so that there will be no confusion between this ontological problem and the question of general and individual norms. We speak of a general rule if the types created by the rule apply to an indefinite number of persons, actions, and situations; of an individual rule if it concerns specific persons and their actions.

Whether the rule is general or individual, it can function only because the reality to which it ap­plies is lasting. It would make no sense for A and B to contest the ownership of a piece of property if contested pieces of property had the habit of evaporating in the face of a court decision. The same is true if the organization of the life of the persons A and B would change so rapidly and radically that the question of who owns the contested piece of property would be of no interest to either A or B.

The individual decision in the concrete case makes sense only under the conditions that the lives of A and B have a certain dura­tion; that the lives have an organization with stable features; that the material conditions of, and human relations in, the lives of A and B are matters of lasting interest; and so forth.

This lasting char­acter becomes especially clear when a person A applies for restrain­ing action to a court, as in the case of an injunction. The court is requested to enjoin another person B not to engage in types of ac­tion that might disturb the lasting structure of A’s life or some part of it, as for instance a business enterprise; and the injunction is necessary in order to prevent the anticipated disturbance because the life of the person B also has a lasting organization that is fraught with the continued potentiality of action disturbing the life of A.

The lastingness of structure pervades the order of society into the concrete existence of every single member; and this concrete­ness of lasting order in the daily actions of every human being makes it necessary to have more than mere general rules for com­prehensive types of situations and actions, omitting the details as “nonessential.” The individual decisions in the concrete cases are necessary because the lasting order of society is essentially con­crete as the order in the lives of the single members.

From the side of society we are reaching again the problem of validity. We cannot divide the legal order, as we have seen, into essential and nonessential rules. Validity is of the essence of the legal order in every single rule; and this pervasive character of validity in the legal order now is revealed as expressing the pervasive concreteness in the lasting order of society.

The lasting structure of order is the structure of human exist­ence in society. This structure is the subject matter of the epi­steme politike in the Aristotelian sense. The principal components of the lasting structure are man’s organization of his physiologi­cal existence in family and household, of his utilitarian existence through division of labor and commerce, and of his intellectual and spiritual existence in political society. Here also is the realm of being–society and its order–where essentials can be distin­guished from nonessentials.

The Problem of Form and Substance

Nevertheless, while it is agreeable to have reached at last something that looks like firm ground, we must remember Aristotle’s struggle with the problem of form and substance in society. A few reflections will clear up this point as far as it is possible.

In Aristotle’s Politics the study of the nature of the polis (Book I) is not connected properly with the analysis of the form of the polis (Book III). The nature of human community unfolds fully in the polis because the polis provides the social environment for the full unfolding of human nature.

Only a community of sufficient size and wealth will permit a division of functions to such a degree that the bios theoretikos is possible at least for those who desire to lead it and who are willing to undergo its labors. The polis is defined as the community in which there is room for the organization of the “good life” (Book I, and Book VII, 1-3). In Aristotle’s ordinary usage of his terms, this “nature” of the polis also should be its “form.”

Social Order Depends on Human Action

The analysis of form in Book III, however, clashes with the ordi­nary, synonymous use of the terms–and this clash points to the problem that the order of a polis is not inherent in the polis in the manner in which an organismic form is inherent in the specimen of a plant or animal species; but rather, this order requires human action to make it inherent.

Further, the forces that provide this ac­tion in a society may change their structure without impairing the identity of the society in which the changes occur. The organiza­tion of the lawmaking process, as we called it, and the configuration of the social forces that operate the process at a given time are not identical with the nature of order in society.

Inevitably the question must be asked: If the society and its order are not identi­cal with a given power constellation and its lawmaking process, how far must we range in the order of society to find the ultimate unit of which the power constellations of the moment are only subdivisions? This question opens a vast field of inquiry, the details of which lie beyond the scope of our analysis. Only the outline of the prob­lem is our concern.

The Cycle of the Forms of Government

Aristotle, of course, saw that the horizon of a society is larger than the power constellation of the moment. The Hellenic poleis had typical sequences of power constellations and corresponding “forms of government,” running the cycle of kingship, aristocracy, popular revolt, tyrannies of the type of Peisistratus, oligarchy, and democracy of various degrees of radicalism. Not the single “form of government” but the whole sequence of forms is the minimum unit of observation for both Plato and Aristotle. The cycle of the forms of government in the polis becomes the object of inquiry.

The modern cycle theories go considerably further in enlarging the hori­zon of society and its order. In a theory like Toynbee’s, not the single Hellenic polis, the single Mesopotamian city-state, or the single modern national state is the unit of order, but the civiliza­tional society embracing a manifold of such subunits with the whole of their historical dimension.

Beyond the order of the large civilizational societies, there loom the problems of an order of all mankind–problems that become acute at various times in the his­tory of mankind when civilizational societies clash with one an­other, perhaps conquer one another, so that multi-civilizational empires like the Roman without a doubt become vast units of so­cial order. While the details are not our concern, as we said, the principle of these horizons, enlarging ultimately to the horizon of mankind, is of considerable importance for the problems of juris­prudence, as we shall see.

The Ought in the Ontological Sense

Rules can be used for the ordering of society because the order of human existence in society has the character of lastingness. Once this first point is established, the next question is: How are rules used for the purpose of social order?

In the preceding section we had to stress the nature of a rule as the observation of empirical regularities in the relations between situations, events, and ac­tions. A legal rule, however, obviously is not meant to be a proposi­tion that can be verified or falsified–even though the existence of a legal rule frequently will permit the prediction, with a high de­gree of probability, that human actions will conform to it.

The Meaning of Legal Rules

Legal rules are meant to be “norms,” and their purpose with regard to so­cial order is “normative.” Such formulations, now, come easily in preanalytical usage, but they are fraught with thorny problems. We have noted previously, for instance, that modern codes rarely are couched in normative language and that the actual definitions and descriptions of types must be interpreted as norms, using con­textual indices. The analysis, therefore, must try to isolate the nor­mative component in the meaning of legal rules.

Rules must be used in the ordering of societies because societies are not individuals of a plant or animal species with an organismic genesis, flowering, and decay. Societies depend for their genesis, continued harmonious existence, and survival on the actions of the component human beings.

The nature of man and the freedom of his action for good or bad are essential factors in the structure of society. The order of its existence is neither a mechanism nor an organism, but depends on the will of men to specify and maintain it. Moreover, the order of a society is not a blueprint to be trans­lated, with good will, into reality. It must be discovered–with an amplitude of imagination and experimentation, of trial and error; it requires improvements and must be adapted to changing circum­stances.

The Tension That Underlie All Societies

There is the previously mentioned tension in social order between standard and achievement, between achievement and the potentiality of falling short of it, between a groping for knowledge of order and the crystallization of that knowledge in articulate rules, between the order as projected and the order as realized, be­tween what ought to be and what is.

The ultimate, the irreducible source of this tension is a set of ex­periences that in an analysis of the nature of the law can be no more than adumbrated. Man has the experience of participating, through his existence, in an order of being that embraces not only himself, but also God, the world, and society. This is the experience that can become ar­ticulate in the creation of symbols of the pervasive order of being, such as the previously indicated Egyptian maat, or Chinese tao, or Greek nomos.

Man furthermore experiences the anxiety of the pos­sible fall from this order of being, with the consequence of his an­nihilation in the partnership of being; and, correspondingly, he ex­periences an obligation to attune the order of his existence with the order of being. Finally, he experiences the possible fall from, and the attunement with, the order of being as dependent on his action, that is, he experiences the order of his own existence as a problem for his freedom and responsibility.

Within the range of so­ciety, the realization of the order of being is experienced as the bur­den of man. When we refer to the “tension” in social order, we en­visage this class of experiences. In order to link them more closely with the problem of “normativity” in legal rules, we can speak of them as the Ought in the ontological sense.

Notes

This excerpt is from The Nature of Law and Legal Writings (Collected Works of Eric Voegelin 27) (Columbia, MO: University of Missouri Press, 1991)

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