What is Society?

[Aristotle was plagued by such problems as whether a nation remained the same nation after a revolution]. He applied to the polis the categories of form and substance, assuming the constitution, the politeia, to be the form. He had developed these categories when considering the natures of artifacts, organisms, and purposive action. Although suitable to these models, these cat­egories created difficulties when applied to the polis.

What was the substance of a society, if the constitution was its form? Was it the citizens? If so, who was a citizen? Was everyone to be counted as a citizen who was a permanent resident on the territory of the polis? But then slaves and metics [resident foreigners] would be citizens, and that usage would be in conflict with preanalytical, everyday language.

Should a man be counted as a citizen only if he may participate in the govern­mental process, if not in higher office, then at least by voting in assembly? That definition, however, will run into the difficulty that not all poleis have the form of a democracy. In a tyranny or oligarchy not all free men will have the right to vote in assembly, though they will not lose, as a consequence, their status as citizens and sink to the rank of metics or slaves.

Nevertheless, while ad­mitting that the definition of the citizen as a man who participates in the governmental process suits a democracy better than other forms of government, Aristotle does not push the analysis further, because he wants to retain the governmental form, the constitu­tion, as the form of the polis. Doing so, however, he must define the citizens, the substance that fills the forms, as persons who have a place and function within the form.

The construction, then, leads to the further difficulty of identify­ing a polis. If the constitution is the form of the polis, and if a thing is ontologically constituted by its form, what happens to a polis in the frequent revolutions in the Greek city-states of Aristotle’s time?

Are Revolutions Complete Breaks with the Past?

Is there a new polis every time the oligarchs overthrow the democrats, or vice versa? Or is Athens, in spite of the breaks in the continuity of its constitutional form, still Athens? Most impor­tantly, does the polis act when an oligarchic government contracts a debt, or can such debts be repudiated by a succeeding democratic government because oligarchies represent only private interests and not the common good–an argument apparently very much in favor with the leaders of democratic factions?

For Aristotle, the an­swers to questions of this nature depend on the answer to the ulti­mate question: Do we want to speak of a polis as the same polis as long as the people and its abode remain the same, in spite of the fact that the members of the polis are a flow of generations, a flow of human beings coming into existence and dying, and thus never are the same from day to day?

Aristotle is driving this argument, from the social side of order, toward the same Zenonic impasse toward which, at the beginning of this inquiry, we drove it from the side of the valid legal order. Society is an entity composed of human beings. If we try to iden­tify society with its membership, then, because of its daily increase and decrease by births and deaths, we shall find no society with continuous existence in time, but a new society every day.

The polis, therefore, must be defined in terms, not of human beings, but rather of citizens as the substance of its form; and the form will be the constitution. If the constitution is the same, the polis is the same regardless of the increase and decrease of its citizen sub­stance.

Aristotle ends the analysis with the assurance that none of this affects the question whether a polis should or should not pay its debts when the constitution, the politeia, changes. He leaves this question dangling, just as he leaves dangling the question of the status of the citizens under an oligarchic or tyrannical consti­tution in which they do not participate in the governmental pro­cess and, also, the question of the continuous existence of Athens through its numerous changes of constitution.

The Zenonic Paradox

The Aristotelian arguments are of considerable interest for our analysis because in them we encounter again the Zenonic paradox. From the paradoxic impasse of the validity of legal rules, their aggregates, and the succession of aggregates, we sought refuge in so­ciety as the something that exists in time.

Aristotle discovers society as a flow of human beings in time that never will congeal to the sameness of a society of any duration in time, and he seeks ref­uge in the constitution as the form that lasts while its substance, the citizens, changes in time. That is most distressing. The Aristo­telian analysis seems to cut off our escape into society, and our analysis already has cut off the escape from society into the dura­tion of the legal order that culminates in the constitution.

The Misuse of Substance and Form

Never­theless, we need not despair. Aristotle was a master of analysis. If his results are unsatisfactory, his analysis at least reveals, as will every technically well-conducted analysis, the cause of the diffi­culty. The cause of the difficulty is the uncritical transfer of the categories of form and substance to realms of being for which they were not developed.

This transfer leads to difficulties not only in the politics of Aris­totle but also in his psychology when he tries to construct a noetic form of the soul. It leads in turn to infinite difficulties in medieval scholastic anthropology and psychology, where the soul is used in speculation as the “form” of man.

In the case at hand, the trans­fer prevents Aristotle from properly connecting his theory of the “form” of the polis (in Politics III)with his theory of the nature of the polis (Politics I).He insufficiently analyzes the problem of the lawmaking process culminating in the constitution, and he never clarifies at all the connection of this problem with the order of the polis that exists continuously in time and is to be secured by the lawmaking process, whether democratic or oligarchic at the top of the hierarchy.

These observations should serve as a warning. We are dealing with a problem that baffled even an Aristotle. We must take the utmost care in watching every step of the analysis.

The Question of the Octroi Constitution

The sameness [continuity] of the legal order obviously is bristling with problems. We must fall back on the preanalytical phenomena in order to avoid misconstructions. We can derive some help in understanding the relations between the legal order and social real­ity from phenomenal situations in which revolutions in the power structure occur without a break in legal continuity.

In the nine­teenth and early twentieth centuries, for instance, the transition from an absolute to a representative constitutional monarchy was more than once effected by having the absolute monarch impose the constitution. In the case of such an octroi constitution, the question can be asked whether the resulting legal order derives its validity from the new constitution or from the decree of proclama­tion of the absolute monarch who imposes the constitution.

The leaders of the political forces who exacted the concession from the monarch would derive the validity of the new constitution from the authority of the newly effective political powers. The monarch would be inclined to derive it from his own untouched authority and claim the right to revoke it, if necessary in the interest of the state, by virtue of his continuing authority.

While the two sides thus might disagree on the political issue, they would agree that the validity of the legal order culminating in the constitution had something to do with the authority of political power in society. It is understandable, therefore, that the leaders of constitutionalist movements in the nineteenth century had little sympathy for the method of the octroi, for it created an equivocal situation with re­gard to the source of authority.

Nazi Legality

Further illuminating phenomena are provided by the oddities surrounding the policies of constitution-making in the German National Socialist revolution. Since “legality” has mass appeal in the mob psychology of the twentieth century, the National So­cialist leadership took care to adapt the constitutional rules to the new power structure by means of the amendment procedures pro­vided by the Weimar Constitution. (The same method had been used previously, at least for a time, by the Fascist government in Italy.)

The result was a spate of monographs by German constitu­tional lawyers, some pleading that the Weimar Constitution was still in force, others pleading that the revolutionary change in the power structure had created a new constitution, the games of legal­ity notwithstanding. In this instance, it became an even more burning issue whether the identity of the legal order was to be con­strued in terms of intrasystematic, procedural validity or in terms of the authority that emanated from the power structure of society.

The U.S. Constitution as the Best Example

An important phenomenon, finally, is furnished by the history of our own Constitution. The procedure by which the Constitution of 1789 was created had not been provided by the Articles of Con­federation. In terms of procedural validity, the Philadelphia Con­vention was a revolutionary assembly and the continuity of the legal order had been broken. Nevertheless, while the term revolu­tion ordinarily is used in connection with the events of 1776 and after, it is very little used in connection with the events of 1789–in spite of the fact that the constitutional continuity was broken and that not all the means for achieving ratification of the new Constitution in the several states fell under the heads of sweetness and reason.

The peculiarity will become intelligible if the whole period, from the beginning of the movement for independence to the making of the Constitution of 1789, is considered one social process in which the growing nation, winding its way through the difficulties of intercolonial and interstate relations and the labors of the war, gained its power physiognomy and, after the unsatisfac­tory experiments with the Continental Congress and the Articles of Confederation, at last found the Constitution that was valid and at the same time expressive of the authoritative power structure of the new nation.

The genesis of the American Constitution in the events between 1776 and 1789 furnishes perhaps the finest object-lesson for the growth of authoritative power in a new society, ac­companied as it was by superb craftsmanship in devising legal forms for the stable structure. The case is of special importance for our analysis, because the protraction of the social process and the manner in which the questions of legality and constitutionality are subordinated to the questions of creating and ordering the nation leave no doubt whatsoever on which side the weight of the com­plex phenomenon of law lies.

The Legal Order and Society

The variety of examples will have clarified at least one question concerning the nature of the law. The legal order in the sense of an aggregate of valid rules is not an independent object of inquiry at all. It is part of a larger phenomenon that includes, among other things, the efforts of human beings to establish order in a concrete society. The larger phenomenon, furthermore, is not a composite of neatly separable parts, such as the valid rules and the social pro­cesses. The actual power structure with its authority enters the va­lidity of the rules themselves.

Controversies can arise, therefore, whether the validity of a given aggregate of rules should be con­strued under the aspect either of legality or of political authority. The peculiar relation between the two components becomes especially clear in the case of conflict.

Under ordinary circum­stances, we may say, the amendment procedures built into a consti­tution will be sufficient to absorb the minor changes in the actual power structure and to provide the continuum of validity that ex­presses, on the side of the legal order, the continuous existence of the society that has that order.

When the changes in the power structure, nevertheless, reach revolutionary proportions, a break in the continuum of validity sometimes seems desirable as the ade­quate expression for the break in the continuum of the power structure. Breaks in the continuum of the power structure, how­ever, are phenomena within the continuum of society.

Revolution­ary governments often may not acknowledge this continuum, and sometimes it will require opposition in the field of foreign politics to remind a revolutionary government that a continuum of law, parallel with the continuous society, exists indeed and has not been broken by the emotionally world-destroying and world-creating events of the revolution.

 

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