Golde, H.M.G.J. van (1988) C2

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Chapter 2

Juridical Theory

 

I. Types of Law: Law of Justice and Law of Grace.

Dombois devotes much effort to fighting “the fundamental and fatal error of equating law (Recht) with norm (Gesetz).”1 There are two fundamental types or forms of


1 “... den grundlegenden und verhängnisvollen Irrtum der Gleichsetzung von Recht und Gesetz ...” (I:14)
It is hard to translate the concepts of Recht and Gesetz. The former refers to the entire juridical system governing a certain society, nation or, as in our case, a church; the latter to a statutary law — a juridical phenomenon formulated in the form of a rule — or to the whole of such laws, governing a certain society, nation or church. Other languages have two words for the two different concepts, too, like ius and lex in Latin, droit and loi in French, derecho and ley in Spanish and dirito and legge in Italian. Writing in German and thereby having access to two well-defined concepts that express exactly what he wants to refer to, Dombois is able to discuss the problem which he is raising here more readily than someone writing in English, which language uses the same word — law — to indicate both concepts. Despite occasional concessions for the sake of what sounds good in English language usage I try to be consistent in using ➝

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law: law of justice (Gerechtigkeitsrecht) and law of grace (Gnadenrecht).2 The error of equating law with norm is the result of a double reduction: reducing all law to law of justice and reducing law of justice to normative law.

The fundamental juridical structure of law of justice is not the norm but the process whereby a claim (Rechtsanspruch) and the acknowledgment of the claim (Rechtsanerkennung) come together, the partners involved being convinced that the claim is just, justified. The process creates and is summarized in the fundamental juridical phenomenon of individual rights.3 The process presupposes a juridical community (Rechtsgemeinschaft)


➝ “law” when referring to Recht and “norm” or “normative law” when referring to Gesetz.
2 I:207.
3 I:50; 78; 163-169; III:21. The process whereby a claim and the acknowledgement of it come together indicates that a person has a right. This right can exist in the undertaking of an action without being hindered by others who thereby acknowledge the inherent claim to the action, or it can exist in the requirement of an action by another person — or other persons — which action is not refused and acknowledged as due to the one who has the right.
A similar and connected error to the one mentioned above is to limit law to whatever rule or right can be enforced by power; the coercive aspect of law is not an integral part of the juridical phenomenon. The acknowledgment of a claim can come forth and mostly does come forth without any enforcement and a right can exist even if the acknowledgment is not followed up by the required behavior. E.g. international law does not have any means of enforcement but is still law and creates rights, claims and acknowledgments (I:844; 877-878).

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between the parties involved, and the juridical relationship between the parties involved has social effects on third parties (Drittwirkung).4 Furthermore, there has to be a third party or authority which justifies the claim. The justification, however, does not necessarily have to be a system of normative objectification, i.e. normative law.5

The second, but no less original type of law is law of grace. Dombois gives a definition of grace

Grace is a juridical process in which a destroyed juridical relationship between two people is restored or a new relationship is brought about through the fact that the giver, who has a unilateral right to do so, gives, by means of a concrete gift to someone who has no right to it, out of an overarching juridical power a new foundation or improvement of his juridical position as a free and not owed favor. Grace needs acceptance by the one who is graced. It does not depend upon the personal accomplishments of the one who receives it, but obligates that person to gratitude with juridical force in the sense that violating the obligation leads to losing the favor.6


4 Cf. Paragraph II and especially note 17.
5 I:163-169; III:111.
6 “Gnade ist ein Rechtsvorgang, in welchem zwischen zwei Personen ein zerstörtes Rechtsverhältnis wiederhergestellt oder ein neues dadurch begründet wird, dass der einseitig berechtigte Geber kraft überlegener Rechtsmacht durch eine konkrete Zuwendung der Nichtberechtigter eine Neubegründung oder Mehrung eines Rechtsstandes als freie nichtgeschuldete Begünstigung zukommen lässt. Die Gnade bedarf der Annahme durch den Begünstigten. Sie ist nicht von eigenen Leistungen des Empfängers abhängig, verpflichtet diesen aber mit der Wirkung im Rechtssinne zur Dankbarkeit, so dass eine Verletzung dieser Verpflichtung zur Verwirkung der ➝

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The constitutive elements of the process of grace are: the fact that one party is subject to the other because of some kind of guilt; the restoration of the relationship out of free will by the superior party through a constitutive act; the acceptance of the gift by the other party; and the obligation of the graced party to gratitude and good conduct.7 The granting of a status to someone has the structure of grace. Law of grace is present wherever a status that is granted to someone is a juridical one.8

These two types of law, “the obligating gift as grace and the claim as the carrying through of the reigning justice”9 are in a certain way opposites and independent of each other and cannot be reduced the one to the other. Yet, on the other hand, they are always both present in one way or another, in any given juridical system — as they certainly are in canon law. The obligations flowing from grace can be expressed in terms of claim of acknowledgment10 and law of grace is operating within the law of justice in the granting of membership in the


➝ Vergünstigung führt.” (I:178-179).
7 I:171-179.
8 Cf. the next paragraph for a more elaborate analysis of the process of granting a new juridical status.
9 “... die verpflichtende Gabe als Gnade und der Anspruch als Durchsetzung der herrschenden Gerechtigkeit ...” (I:207).
10 I:866; 908.

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juridical community and in the justification.11 In fact, they were clearly one until they were separated in the 12th and 13th century, after which the double reduction mentioned above took place. In legal philosophy and theology justice was reduced to justitia distributiva, clearly operating in a normative law of justice, and the justitia salutifera, active through grace, was forgotten.12

The working together of both types of law is clear in the role of the judge. The plaintiff, in bringing his case to court, not only claims his right, given by the law of justice, but appeals to the mercy of the judge and want to be graced with the status of victor.13 The justifying authority within the law of justice can be a system of normative law but it can also be the status-giving role of the judge. The judge in his decision-making can refer to his own charisma, in which case his status-giving role is most apparent, or he can refer to precedence or a normative legal system; but even in the latter case he has to interpret and adapt to particular circumstances. In any case the constitutive aspects of the judicial activity within the law of justice indicate aspects of law of


11 Dombois never clearly works out the relationship between the two and how they work together.
12 I:179-188.
13 I:170.

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grace.14

 

II. Personal and Transpersonal Institutions

Dombois has his own way of using the concept of institution which is quite different from the way it is usually used. First of all, he distinguishes between personal and transpersonal institutions. He defines a personal institution as “a dialectically structures happening in more than one action through which a person is put into a relationship with another person or a group of persons.”15 An institution, first and foremost, is an act and not the result of an act. The status-giving act is a free one, posited by someone in a superior position, and it has to be accepted. The action of instituting leads to a new status by bestowing on someone a typical form of relationship within the community which brings all kinds of claims and duties with it. There is, however, no exhaustive list of its juridical consequences and in part it can be adapted and shaped according to one’s preferences. The personal institutions are needed as models of behavior upon which people can build their


14 I:837; 844; 884-887.
15 “... ein mehraktiges, dialektisch strukturiertes Geschehen, durch welches eine Person einer anderen Person oder ein Personenverband zu- oder eingeordnet wird.” (III:18)

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relationships.16

Personal institutions presuppose a community as a third party, as a higher order that guarantees them; they have meaning not only for the people directly involved, but necessarily also for the whole community within which they function.17

Personal institutions are to be distinguished from transpersonal ones. The latter are rigid structures that clearly define the rights and duties of the people involved. Transpersonal institutions develop either from personal institutions by objectification through the process of detaching from the personal status of individuals and submitting to rigid (re)definitions of the juridical consequences of the institutions. The word institution is often used for the establishments that result from transpersonal institution.18


16 I:902-907; 910-913. As an example of a personal institution we can think of institution into marriage by the representative of the community or the institution to vassalage by the king. The way Dombois talks about personal institutions makes it clear that the process of grace as it was described above, can very easily be structured into the status-giving process of personal institutions. It will therefore not be peculiar that in Dombois’ view the giving of grace within the Church will be found in her personal institutions.
17 I:905-907. Dombois calls this aspect of institutions their Drittwirkung which I translate with “effect on third parties.”
18 I:916-919.