A New Critique of Theoretical Thought. Deel 3. The Structures of Individuality of Temporal Reality

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Chapter II
The enkaptic interweaving forms of human societal structures

§ 1 - Types of ordering in the enkaptic interlacements of human societal structures.

Primitive forms of interlacement and their enkaptic foundation in natural communal structures.

Of the various forms of interlacement of human societal structures we have already discussed the primitive organized communities as undifferentiated units. In this case the remarkable thing is that a societal structural whole itself functions as a form of interlacement. We have seen, however, that this is only possible because the various individuality-structures interwoven in the form of a patriarchal ‘extended family’, or a patriarchal or matriarchal sib or clan, people or tribal relationship, etc., have not been differentiated into separate societal relationships. They realize themselves only in one primitive societal form in which one of the interwoven structural principles assumes the leading rôle. This may be the principle of kinship or that of a primitive political structure.

In these primitive interweaving forms we do not find the figure of a genuinely differentiated enkapsis. For within the societal structure the prevailing relation is that of the part to its whole; and there is only one undifferentiated societal whole, so that the sphere-sovereignty of the individuality-structures interwoven in the latter cannot manifest itself within the internal sphere of this social unit. But this does not at all mean that the figure of a genuine enkapsis is completely absent in a primitive society.

We have seen¹ that natural communities, which in every human society are realized in forms determined by a particular

1 Vol. III, part II, pp. 339 ff and 353 ff.

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level of culture, function in these undifferentiated organizational units only enkaptically.

The marriage bond, the natural family in its most narrow sense, and the natural cognate kinship in its broader extent, as realized internal societal structures, cannot be merged as parts in the undifferentiated social wholes. On the contrary, the latter appeared to cut across these natural communities, whose internal sphere of life could thereby be seriously affected or partially deformed. The type of enkaptic interlacement in this case can only be that of an irreversible one-sided foundation. The primitive undifferentiated relationships founded in an historical form of organization cannot exist apart from real natural communities. But the latter by no means pre-suppose the existence of the primitive interweaving forms in which they are bound enkaptically and by which they are greatly influenced¹.

1 Cf. the sib-less condition of society with most of the pygmies and other primitive peoples.

The different types of enkapsis between communal and inter-communal or inter-individual relationships, and the transcendental societal category of their correlation.

We have seen, however, that undifferentiated organized communities also have an enkaptic function in inter-communal and inter-individual relationships. What particular type of enkapsis is found here?

In general the correlativity between communal and inter-communal or inter-individual societal relations has appeared to be of a really transcendental character. We have called it a transcendental societal category. In the modal dimension of our experiential horizon this correlation turned out to be ultimately founded in the modal structure of the aspect of social intercourse. This transcendental correlation must retain its validity also in the plastic dimension of this horizon. No single type of community is to be found which lacks its correlate in certain types of inter-communal or inter-individual relations.

This, however, does not mean that every type of community is interwoven with every type of inter-communal or inter-individual relationships in a correlative type of enkapsis. The correlation implied in the transcendental social category concerned

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does not tell us anything about the different types of enkaptic interlacement between the individuality-structures in human society. It is quite possible that particular types of community and inter-communal or inter-individual relations display quite different types of intertwinement. Below we shall see that this is really the case.

As to the undifferentiated organized communities and the inter-communal and inter-individual relationships of a primitive society we may, however, establish that their mutual intertwinement doubtless displays the type of a correlative enkapsis. There can be no question here of a one-sided foundation of the former in the latter or vice versa. On the contrary, these two kinds of primitive societal relationship mutually pre-suppose one another.

Why the enkaptic interlacement between natural communities and inter-communal or inter-individual relationships cannot display the type of a one-sided foundational relation.

Meanwhile the question arises as to whether natural communities do not enter into a foundational enkaptic relation with inter-communal and inter-individual relations. By way of an example we may quite well imagine a family living in temporary isolation in an uninhabited island. It might seem that such a family does not pre-suppose any inter-communal or inter-individual relationship, whereas the latter, if they later on originate from the settlement of other families on the island, seem to pre-suppose the natural communities. But this example has no more force as an argument than the fancied figure of Robinson Crusoe, which served to support an individualistic view of human society. For such a family originated from a normal society and could only form itself in the correlation of communal and inter-communal or inter-individual societal relations.

Compulsory temporary isolation is an abnormal social figure, only possible, as such, under the transcendental norm of the correlation between communal and non-communal relations.

However, there seems to be a more cogent argument for an affirmative answer to the question framed above, viz. the supposed genetic character of the relation between natural communities and the other relationships of human society. At first sight the following reasoning seems to be very plausible: In virtue of the genetic origin of mankind, the inter-individual and inter-communal societal relations must necessarily owe their

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existence to the natural relations in a marriage, a family, and a natural kinship. In this genetic explanation the natural community-structures are not only the basis of all other types of communities, but also of the various types of non-communal relations. At first sight this view seems to be also consonant with the teaching of the Bible about the temporal evolution of mankind from one pair of parents. But there is every reason to doubt whether this genetic way of thought can actually reveal the type of structural interlacement of the inter-communal and inter-individual relations with the biotically founded communities.

The other types of societal structures cannot have developed from natural communities genetically. Anyone who should maintain that they can, would irrevocably lapse into a relativistic evolutionism eradicating the boundaries between the structures of human societal life. We can speak of a genetic coherence between a real marriage bond and the family relationship as far as their genetic form is concerned. In this form their structures, which are of the same radical type but of a different genotype, are realized in an enkaptic interlacement whose type displays a one-sided foundational relation. But the first pair of human beings did not develop from a human marriage bond. It is not marriage or the family, but it is the transcendent root-community of mankind which forms the ultimate basis of temporal human society. The transcendental Idea of origin does not refer to a temporal natural community-structure as the ‘germ-cell’ of all the others, but to the basis of all and any societal structures laid at the creation, and transcending all theoretical thought.

In our opinion theoretical speculations on the way in which the first human beings gradually developed into a human society, are not only fruitless but dangerous. This is especially the case with theories of an essentially evolutionistic stamp, which fundamentally falsify the real structural problem.

According to the order of the creation, the biotically founded community-structures of temporal human social life cannot occur outside of a correlative enkapsis with inter-individual societal structures. The Biblical account agrees with this order.

Eve was led to Adam not as a natural sister, nor exclusively as a marriage partner, but as a woman in her full temporal existence (in principle comprising all societal structures at the same time). The first formulation of the married order in the Scrip-

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tures, therefore, indicates a correlative enkapsis of both marriage and family with the inter-individual societal relations outside of the family: ‘Therefore shall a man leave his father and his mother, and shall cleave unto his wife’ (Gen. 2:24).

According to the order of the creation, marriage pre-supposes that man takes his life-companion in an inter-individual societal relation, and not on the basis of any blood-relationship, so that a veritable conjugal bond may be formed. The view that the natural family and kinship community, founded in blood-relationship, had entirely absorbed temporal human existence at least in the first generation of mankind, not only lacks any Biblical foundation, but is fundamentally contrary to the Scriptures. The positive forms in which the principle of exogamy is realized are doubtless of an historical foundation. But the principle itself is in my opinion already implied in the order of the creation of marriage, as the expression of a correlative inter-structural interlacement between the marriage bond and the external inter-individual relations outside of family and kinship.

The correlative relation between communities on the one hand and inter-communal and inter-individual societal relations on the other, already implied in the modal horizon of social reality, cannot lose its validity in the plastic horizon. But it would have lost its validity, if at any stage in the development of society temporal human existence had merged into marital and family structures without any counterweight in inter-individual societal relations.

It is true that this does not imply a uniform type of enkapsis. But at least the intertwinement of natural communities with their inter-communal and inter-individual relations appears to show the type of correlativity.

The enkaptic foundational relation between the opened structures of inter-individual relations and those of free associations.

A quite different type of enkaptic interlacement is found between the differentiated types of opened inter-individual relationships and those of free associations. We have seen that free associations really originate from individualized and differentiated inter-individual relationships. This finds expression in the contractual genetic forms of the former and in the constitutive rôle of the established ends and means of an association. Opened inter-individual relationships may occur without the

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formation of free associations¹, but the reverse is excluded by the very nature of the latter.

This implies that the type of enkaptic interweaving between these two is that of an irreversible foundational relation. The transcendental correlativity between inter-individual or inter-communal and communal societal relationships is not thereby affected. The former are always the reverse of communal relations and have no sense without this transcendental correlation. Opened, individualized and differentiated inter-individual societal relationships have their general transcendental correlate in institutional communities of a differentiated character.

But we shall see that this does not mean a typical correlative enkapsis in the above defined sense. In addition the irreversible foundational relation in the enkaptic interlacement between individualized inter-individual relationships and free associations itself implies a transcendental correlativity which should not be confounded with the correlative type of enkapsis. As we have explained in an earlier context², free associations undeniably bind inter-individual societal relations in a more or less intensive way. This is to say that as soon as free associations arise from the latter, the enkaptic interlacement between these two displays a reciprocal character.

1 The formation of trade-unions and enterpreneurial associations, e.g., was for a long time prohibited in consequence of a prevailing liberalist economic policy. The French Code pénal contained a special article against the formation of such associations. Not before the Act of 1 July 1901 was complete freedom of association guaranteed. In England the Combination Act of 1800 prohibited the association of labourers. Here freedom of association was not completely acknowledged before 1875.

2 Cf. vol. III, pp. 593 ff.

The foundational (non-genetic) enkaptic relation between natural institutional communal relationships and differentiated organized communities of an institutional character.

It cannot be doubted that the enkaptic interweaving of natural institutional communities with differentiated organized communities of an institutional character displays the type of an irreversible foundational relation. This has already appeared from our discussion of the transcendental societal categories. For the transcendental distinction between these two categories of communities proved to be based on the temporal

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order of those modal aspects in which their typical foundational functions are to be discovered.

Nevertheless, this foundational type of enkapsis is different from that which we could establish in the interweaving of the opened differentiated inter-individual and inter-communal relationships with free associations. For the latter type turned out to display a genetic character, whereas the former appeared to lack this character. In their genetic forms the State and the Church institution do not show any genetic relation with the natural institutional communities.

The foundational enkaptic relation between the organized institutional communities and the non-political inter-individual and inter-communal relationships in an opened and differentiated society.

What type of enkaptic interlacement is found between the opened non-political inter-communal and inter-individual relationships and the differentiated institutional communities? In the first edition of this work I thought it must be that of correlativity. The reason was that I did not yet sufficiently distinguish the transcendental category of correlation between communal and inter-communal or inter-individual relations from the particular type of correlative enkapsis.

The truth is, however, that the process of disclosure or opening of the non-political inter-communal and inter-individual relations pre-supposes the rise of institutional communities of a differentiated organizational character. For only the latter are able to break decisively through the undifferentiated societal relationships, though this process is greatly favoured by the development of science, technical progress, and international trade. It may be that there is already a real State or Church-institution in existence, whereas the inter-individual relations have not yet been completely emancipated from their binding to undifferentiated communities. We may refer, for example, to the Carolingian State and the medieval Church.

This is to say that the interlacements of the opened inter-individual and non-political inter-communal relationships with the differentiated organized institutions turn out to display the type of a one-sided foundational relation. This implies that the same type of enkapsis is found in the inter-structural intertwinements between these institutional communities and the free associations. As to the interlacements of the latter with the

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State this convincingly appears from the fact that the genetic forms of the free associations in their juridical aspect pre-suppose the rise of a common private law, founded in the principles of freedom and equality of individual men. For we have seen that this legal sphere is bound to the body politic.

Nevertheless, the irreversible foundational relation inherent in the type of enkapsis discussed here is not to be conceived apart from the transcendental correlativity in the mutual binding of the societal relationships concerned. What we have observed in this respect with reference to the typical interlacements between the opened inter-individual relations and the free associations equally applies to any other enkapsis of this type.

Just as the opened and differentiated inter-individual societal relationships are enkaptically bound by the State, the latter is bound by the former as soon as it participates in the inter-individual intercourse. And the same state of affairs is found in the enkaptic intertwinement between these inter-individual relations and the Church institution.

The general rule concerning the type of the enkaptic interlacements concerned is thereby not affected.

The correlative type of enkapsis in the inter-structural intertwinements of the State with the international political relationships. International law and State-law.

This rule, however, does not apply to the intertwinements between the body politic and its inter-communal political relationships with other States. Here we meet with an indubitable correlative type of enkapsis. It makes no sense to assume that the rise of inter-national relations between the States is irreversibly founded in the rise of the separate body politic. And the reverse assumption is equally meaningless. The truth is that the structure of the body politic has always been realized in a plurality of States, so that the rise of the latter implied their international political relations and vice versa. The idea of a civitas maxima, a world-State embracing all nations without exemption, has up till now been of a speculative character.

From the juridical point of view this state of affairs implies that any attempt to construe the validity of the international public legal order from the constitutional law of the separate States or vice versa contains an intrinsic contradiction. Kelsen's

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opinion that from a scientific viewpoint these alternative constructions are of equal validity is incompatible both with the inner nature of the State and with that of the international political relations. The hypothesis of the sovereignty of the constitutional legal order of the State, as the ultimate origin of the validity of international law, is tantamount to the fundamental denial of international law as an inter-communal legal order. And the reverse hypothesis results in the denial of the inner communal character of the constitutional State-law, which is the very pre-supposition of international public law as an inter-communal legal order.

Types of enkaptic interlacements of the opened, differentiated inter-individual societal relations with each other.

It is difficult to state in a general way in what types of enkaptic order the various differentiated structures of the opened inter-individual and inter-communal relations are interwoven with each other. One thing is certain: the foundational type as well as that of correlative enkapsis play an important rôle. Thus the fashion in sporting clothes overarches the different branches of sport in the sense that the former is evidently based on the latter. Another example is international trade, which according to its inter-individual and inter-communal relations is one-sidedly founded in traffic. On the other hand the connection between the ‘free market’ and economically qualified competition is clearly an instance of a correlative type of enkapsis.

An accurate analysis of the types of inter-structural interlacement of the different historically founded inter-individual and inter-communal relationships would require a separate volume. But the theory of the enkaptic inter-structural intertwinements in this part of our work is only an ‘introduction’, so that we cannot undertake a more detailed analysis.

The territorial enkapsis of the other differentiated societal structures in the State.

However, we must draw attention to a special type of enkaptic interlacement, viz. that between the State and the other differentiated social structures.

As such this type may include either a correlative or a foundational type of enkapsis.

It is that particular type of interlacement which is given in

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the unavoidable binding of the other differentiated societal relations to the territory of the State. There is nothing like this figure of territorial enkapsis¹ to give the State-minded universalistic sociologist the illusion that his construction of the State as the ‘totality of all human societal relations’ (or at least of all organized relationships) is a true picture of reality. He will have to admit that at least the international societal relations, or the organization of the Roman institutional Church, in principle transcending the territorial boundaries of any body politic, simply cannot be understood as ‘parts’ of the ‘State as a whole’. But all the more emphatically will he point out that at least within its territorial boundaries all the other societal structures can only be parts of the State. However, already the undeniable fact that the relations between the State and its citizens may cut straight across the other societal structures, must demonstrate the untenability of this interpretation of territorial enkapsis. The members of the same family or kinship may belong to different political nationalities; and all international organizations and inter-individual societal relations overarch the territorial boundaries of the individual States. As far as the internal structures of the other societal relationships are concerned, the enkaptic territorial connection with the State remains of an external nature.

1 A territorial enkapsis also occurs before the rise of a genuine State wherever a territorial government is to be found.

Johannes Althusius' conception of the parts of the State.

For a real insight into this state of affairs one must have grasped the internal sphere-sovereignty of the societal structures, even in their most complicated enkaptic interlacements with each other. And it is no accident that it was a Calvinistic thinker who broke with the universalistic conception of the State in a period in which Bodin's concept of sovereignty had introduced a new version of this universalistic view. In opposition to the entire medieval-Aristotelian tradition he gave evidence of taking account of the internal structural principles in his theory of human symbiosis.

It was the famous Hernbom jurist, Johannes Althusius, in his Politica, who made the following remark, which has too often been overlooked since Gierke: ‘Membra regni seu symbioticae

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universalis consociationis, voco, non singulos homines, neque familias, vel collegia prout in privata et publica particulari consociatione, sed provincias et regiones plures inter se consentientes, de uno corpore ex conjunctione et communicatione mutua constituendo’¹.

The foundation of this view, which clearly contradicted the Aristotelian teleological conception of the State's parts, is to be found in the first chapter of his work. Here he summarized his anti-universalistic standpoint with respect to the inter-structural relation between the different types of social relationships as follows: ‘Propriae leges sunt cujusque consociationis peculiares, quibus illa regitur. Atque hae in singulis speciebus consociationis aliae et diversae sunt, prout natura cujusque postulat’².

This utterance may be considered the first modern formulation of the principle of internal sphere-sovereignty in the societal relationships, although as to its particular elaboration Althusius' theory of human symbiosis remained dependent on the historical conditions of his country at that time.

1 Politica (Groningen, 1610) cap. IX, p. 115: ‘I do not call “members of the State”, or of the universal symbiotic community, the separate single human beings, or the families, nor even the colleges according to their being constituted in a particular private and public association, but a number of provinces and districts agreeing to form one whole by mutual conjunction and communication’.

2 Ib., cap. I: ‘Every type of social relationships has its proper laws peculiar to it, whereby it is ruled. And these laws are different and divergent in each kind of social relationship, according to the requirement of the inner nature of each of them’.

Territorial and personal enkaptic interlacements.

The territorial type of interlacement, characterizing the enkaptic union of all other differentiated societal relations with the State and its parts, forms a contrast with all the other types of interlacement in a differentiated society on account of their merely personal nature. Of course, the territorial type never occurs without personal interlacements; but the personal types would lack the territorial binding when they were not interwoven with the State and its parts.

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§ 2 - The nodal points of the enkaptic interlacements between the human societal structures and the problem of the sources of law.

In our introductory examination of the types of interlacement between the thing-structures of reality we discovered the pheno-typical forms of things and collections of things as the real nodal points of these enkaptic relations.

Can we also point out such nodal points of enkaptic interlacements between the human societal structures? In the second part of this volume (ch. 1 § 2) we have explained that this is really possible. The part played by the pheno-typical form given to the structural interlacements of things either by man or by another agent, is allotted in human society to the positive forms¹ in which the societal structures are realized. These forms bear an enkaptic structural character and consequently cannot be conceived in a merely modal-historical sense. But without exception they have a typical historical foundation, which fact is already implied in their character as free forms of positivization.

We have distinguished them in proportion to their having a genetic or an existential character. In the present context we are only concerned with the genetic forms in their relation to the problem of the sources of law.

The positive forms of existence of a marriage bond, of all organized communities, and at least of the contractual inter-individual or inter-communal relationships presuppose positive genetic forms, establishing or constituting these relations. These genetic forms, as such, are nothing but declarations of will directed to this purpose. They are bound by the positive structural norms of all the societal relationships in which the individual community or contractual inter-individual relation to be constituted is destined to function enkaptically. As real constituent actions these declarations of will are of course not merely legal actions (this is only their juridical aspect), but they function in all the modal aspects of human society.

1 The important thing in this case is the positive character of the societal form, i.e. its temporal realization. Here is consequently not meant the social form as a transcendental category of inter-structural interlacements.

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Constituent and constituted genetic forms of positive law.

According to their juridical aspect the volitional declarations concerned are actions constituting law, genetic forms of positive law, and, as such, they pre-suppose the competence to form law in a particular sphere. However, not all genetic forms of positive law are constituent declarations of will in the sense of legal actions constituting a particular sphere of law formation. In all organized communities we must distinguish between the constituent genetic form and the constituted forms for the internal process of law-making. The latter already pre-suppose established organs for the formation of legal norms. The former call these organs into being.

The inter-individual or inter-communal societal relations, as such, offer no starting-point for this distinction unless in a contractual form they give rise to free associations. But the free societal agreements directed to merely coordinated cooperation are at the same time formal sources of specially qualified inter-individual or inter-communal law intra partes, civil law, and integrating non-civil social law. The latter is to be found in ‘general conditions’, ‘customary stipulations’ and so on.

The juridical genetic forms in which the legal norms are positivized are always centres of enkaptic structural interlacements within the juridical law-sphere. Internal constitutional State-law, public international law, civil law, non-civil (specifically qualified) inter-individual or inter-communal law, internal law of association, and so on, have genetic juridical forms whereby they are enkaptically interwoven with each other. This is made possible by the functional coherence of all the individuality-structures in the legal order guaranteed by the modal structure of the juridical aspect.

The interlacement of the material spheres of competence in the juridical genetic forms. The clue to the solution of the problem of the sources of law and the error found in the prevailing theories.

This means that in the juridical genetic forms of positive law different material spheres of competence are interwoven with each other, whose internal limits are dependent on the structural principles of the different types of societal relationships in whose internal sphere the legal norms function. Here is the clue to the extremely interesting problem of the character and the

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mutual coherence of the sources of positive law. This problem is of fundamental importance to the general theory of law and I have discussed it in a number of separate treatises¹. A great many theories have been put forward dealing with this problem, and their number is still increasing. Without exception they show one basic defect: they do not properly posit the problem. The positivistic as well as the natural law theories, and those of a naturalistic-sociological stamp as well as the historicist views after all ignore the fundamental problem of the individuality structures within the juridical order.

The so-called ‘naïve’ legalistic variety of juridical positivism tightly clings to the genetic forms of law, and elevates one of them viz. the statute law of the body politic, to the highest source of validity. All that is not statute law is subsumed under the vague collective concept customary law. And in line with Bodin's theory of sovereignty it is assumed that the validity of the latter depends on a direct or indirect allowance on the part of the legislator.

But this positivism has no inkling of the fact that the fundamental problem of the enkaptic structural interlacements between spheres of competence, differing in a material sense, lurks exactly in these genetic forms. The political dogma of the ‘will of the legislator’ as the sole source of validity of law, of the State as the possessor of a juridically unlimited competence (‘Kompetenz-Kompetenz’) is simply taken for granted.

But there are also theories that have broken with this dogma and recognize an autonomous formation of law in a contractual way and in the non-political organized communities. Yet these theories show a lack of real insight into the individuality structures of the various spheres of law-formation and their enkaptic interlacements in the juridical genetic forms, maintaining the coherence of the juridical order.

As a rule modern students of sociology of law eliminate the

1 Cf. my series of studies in the quarterly Anti-revol. Staatkunde (4e jrg., 1930, pp. 1-67, 224-265 and 325-362) entitled: De Bronnen van het Stellig Recht in het licht der Wetsidee; and my paper for the Ver. v. Wijsbegeerte des Rechts, entitled: De Theorie van de Bronnen van het Stellig Recht in het licht der Wetsidee, published in the Dutch sociological quarterly: Mensch en Maatschappij (1932). A complete elaboration of my theory is to be found in the second and third volume of my work Encyclopedia of Jurisprudence, which will be published by H.J. Paris (Amsterdam).

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juridical problem of competence because it implies a normative viewpoint. And insofar as this problem is taken into account, as in Gurvitch' pluralistic sociological theory of law, it is turned into a historical problem¹. The prevailing historicistic view of human society excludes any insight into the transcendental structures of individuality of the societal relationships.

The Historical School, which did not yet eliminate the genuine legal genetic forms from the process of law making, had introduced this view. Even Georg Beseler and Otto Gierke, the Germanistic scholars who were the pioneers of the modern theory of the juridical autonomy of associations, kept clinging to the constituted juridical genetic forms of the autonomous social law (the articles of association, the domestic bylaws). They did not penetrate to the internal structural principles of these organized communities delimiting the latter's material internal spheres of competence in law-formation, but held to the traditional teleological view of these communities. In a differentiated human society, however, the genetic forms cannot guarantee the internal independence of law-formation in the various associations of a non-political structure.

1 According to Gurvitch (Sociology of Law, 1947), the material spheres of competence of the different ‘functional social groups’ (inclusive of the State) are of an absolutely variable character. There does not exist a fixed hiërarchy between the legal orders of the particular groups, which holds for all times. The only absolute sovereignty belongs to the legal order of the ‘supra-functional’ and all-inclusive national community and of the inter-national community of mankind. The latter determine the material competence of all functional groups embraced by them. And they do so in a different way in the different phases of historical development. Cf. my De Strijd om het Souvereiniteitsbegrip in de moderne Rechts- en Staatsleer (Amsterdam, 1950), pp. 44 ff.

The typical character of the juridical genetic forms is not in conflict with their function as centres of structural interlacements within the juridical order.

As law-forming declarations of the will of competent organs the genetic juridical forms are necessarily bound to the typical structure of the internal legal sphere of the organs. A Church-community cannot promulgate a State-Act; an international legal treaty is a typical genetic form of international law; the articles or domestic rules of an association are the typical genetic form of internal associational law, just as a private contract is the

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typical genetic form of private inter-individual law inter partes, and so on.

But this is not saying that all law positivized in any of these typical (explicit or direct)¹ genetic forms bears the character of the internal law of the juridical sphere concerned. We have already remarked that the genetic form of ecclesiastical rules may contain provisions of a civil juridical nature. It may even occur that an ecclesiastic regulation contains rules of a public legal character, whose formation belongs to the exclusive original competence of the State. In the same way the form of a private contract of purchase or hire may contain specific economically qualified legal rules relating to the contracting parties, general civil-juridical clauses, and social integrating law (‘customary stipulations’). The form of a State Act may contain internal constitutional and administrative law as well as international public law, civil law and a reference to non-civil private law. In the form of an agreement between municipalities or provinces both private and public law may be positivized.

From these facts it appears that though a juridical genetic form (a source of law in a formal legal sense) is inseparably bound up with a law-forming-organ², this organ is interwoven in various material spheres of competence. In other words, a particular juridical genetic form, such as the direct or indirect volitional declaration of the legislator, can never be the original source of validity of all positive law. The opposite opinion of the legalistic theory is nothing but an uncritical dogmatism. According to its internal structural principle the State never has an

1 The opposite of indirect or implicit forms, i.e. law-forming declarations of will deduced from the factual, constant behaviour of a competent former of law. In these forms ‘customary law’ takes its origin within the separate (also public legal) spheres of competence. ‘Custom’ is merely an external criterion by which the genesis of a legal norm is known. It is never a juridical genetic form. Longaevus usus is never a requirement if a recent constant practice clearly shows the law-forming will. This is to say that not all legal rules which have an indirect genetic form are to be subsumed under customary law.

2 This is inherent in the juridical basic concept ‘source of law’. This explains why the traditional theory of customary law could only remain unsatisfactory from the time of the classical Roman jurists to the present day, because it did not pay due attention to the question of the competent organ of law-formation. Customary law can no more be formed apart from competent organs than law which has a direct genetic form.

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original competence to form internal ecclesiastical law, non-civil inter-individual law or free internal associational law. Neither do the private parties in a social contract, or the organs of an association, have original competence to form civil law. For civil law, in the sense of the State's integrating law relating to private inter-individual relations, appeals to a civil jurisdiction whose organization belongs to the internal structure of the body politic, and as such civil law does not have a specific non-juridical qualification.

The juridical genetic forms interlace original and derivative spheres of competence.

The question as to what belongs to the original competence of a law-forming organ is thus never dependent on the juridical genetic form in which the legal rules are positivized, but exclusively on the internal structural principles of human societal life founded in the divine world-order. These principles lie at the basis of every formation of positive law and make the latter only possible. One and the same genetic form positivizing juridical principles may be an original source of law within one sphere of competence and a derived source of law within another sphere. Thus the articles of association, for instance, are an original source of law as far as the internal law of the society is concerned, but a derived source of law with regard to civil law. The admirable thing in the enkaptic structural interlacements within the juridical order is that the original spheres of competence bind and limit each other. This state of affairs is based on the entire complicated structure of a differentiated human society.

An internal ecclesiastical legal relation, e.g., does not exist ‘in itself, i.e. in isolation, but only in an enkaptic interlacement with constitutional State-law, civil law, free inter-individual law, internal conjugal law, and family law relations, and so on. Therefore every internal juridical relation within a particular sphere of competence has its counterpart in juridical relations within other spheres of competence. Such a juridical relation has inter-structural aspects that are interwoven with each other.

The civil legal counterpart of an internal question of communal law and the criterion of juridical sphere-sovereignty.

This explains why in modern times a question relating to in-

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ternal communal law, be it of a public or private juridical nature, may have its counterpart in a civil juridical question which can be decided in a civil court. We shall revert to this point in the next section.

But at the same time it is clear that in general the civil legal question can only relate to the external, formal-juridical aspect of such an internal communal legal point of difference and never to its internal material juridical side. The sphere-sovereignty of the individuality-structures of human societal life maintains itself in the most complicated enkaptic interlacements, also in the juridical aspect of temporal reality.

The only possible criterion of this sphere-sovereignty is not of a formal but of an internal structural character: All law displaying the typical individuality-structure of a particular community or inter-individual or inter-communal relationship, in principle falls within the original material-juridical sphere of competence of such a societal orbit, and is only formally connected (in its genetic form) with the spheres of competence of the other societal orbits. In a final section we shall summarily consider the significance of this criterion for jurisprudence and juridical-historical research.

§ 3 - A few applications of the theory of the enkaptic structural interlacements to questions of a juridical historical and a practical juridical nature.

The legal history of the medieval Germanic unions.

The legal history of the rich development of the medieval German unions during the initial phase of a process of societal differentiation is a very instructive subject for us to test our new theory of the enkaptic structural interlacements, and to examine the importance of our criterion to distinguish between the original spheres of juridical competence.

It is no accident that the great leaders of the Germanistic tendency in the Historical school, Georg Beseler and Otto Gierke, put up a strong opposition to the absolutization of the system of concepts of the classical Roman jus civile et gentium on the part of the Romanistic wing led by Puchta. This opposition was especially due to their extensive research in this branch of study. The above-mentioned system of classical Roman juridical concepts was based on a theoretical abstraction of the private civil law-side of juridical life, in its sharp distinction from the

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public legal relations. It was bound to fail the student of the history of Germanic law before the reception of Roman law, because popular law was interlaced in every direction with the internal communal relations which, under the viewpoint of the differentiated Roman legal system, displayed both a public and a private juridical character.

However, Gierke's theory of the organized communities was of a universalistic-metaphysical stamp and was unable to give an insight into the real individuality structures of human society. When the intricate structural interlacements in Germanic juridical life in the Middle Ages had to be analysed, this theory was naturally disappointing. These structural interlacements were indeed very complicated and displayed the character of both a territorial and a personal enkapsis. This appears from the internally interwoven spheres of competence in the local ordinances of a mark. Such an ordinance contained provisions concerning the internal law of the mark qualified by the function of the latter as an economic organization working the common lands and waters. These provisions alternate with regulations concerning weddings and funerals, ecclesiastical affairs and poor-relief, and administrative law. This is a typical interlacement of the mark proper with the secular sheriff's office and the ecclesiastical parish. There were numerous interlacements between ecclesiastical and secular spheres of competence in the ecclesiastical immunities, with feudal relationships and the relations of patronage, the so-called seignorial (or manorial) rights, and so on.

The structural interlacements in the positive organizational form of the late medieval craft-guilds.

Especially when in the later Middle-ages the craft guilds had acquired great political power and in the towns the process of social differentiation began to reveal itself, these guilds displayed very complicated structural interlacements. Repeatedly we find the following differentiated structures in them interwoven with each other:

1.	the structure of a private, economically qualified trade-union;
2.	that of a coercive organization with a public legal sphere of competence derived from the city government, connected with an economic monopoly, and the so-called guild-ban;
3.	the structure of a part of the political organization of a town on a military basis;

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4.	the structure of an ecclesiastical organized group with (at least as a rule) an altar and church services of its own.

But this enumeration gives much too simple a picture of the structural interlacements in question. For the structures mentioned here are in their turn interwoven with all kinds of features peculiar to an undifferentiated community: the guild as a fraternity (fraternitas, convivium) with its common meals and guild-feasts, with its duties of mutual aid and assistance (enkaptically including the families of the members) in all kinds of circumstances. Their strong communal mind, viewed as a normative pattern of behaviour, is reminiscent of the spirit of kinship in the old sibs, and the structural principle of a brotherly and sisterly love-union has the leading function.

The legal historian who examines the relation between city law and guild law should carefully distinguish between the widely different societal structures enkaptically interlaced in the already differentiated positive organizational forms of the late-medieval guilds, and at the same time he should do full justice to their close coherence.

Which were the original spheres of competence with their own specific sovereignty and which were the derivative spheres of competence of the craft-guilds in this phase of development? Was the public juridical monopolistic structure really an original and internal constituent part of these partly primitive, partly already differentiated communities? What was the essential relation between the guild as an industrial association in the sense of an economically qualified vocational organization¹, and the guild as an undifferentiated organized community in the sense of a ‘fraternity’? Is the craft-guild in this stage of development still to be considered as a single communal whole with an undifferentiated inner destination?

These are a series of questions whose very formulation may illustrate the importance of the theory of the enkaptic structural interlacements for the study of legal history. For the current views cannot shed light on the problem of the structural unity of these remarkable communities in the transitional period con-

1 Such an organization did not put the modern individualistic motive of pecuniary gain in the foreground; the maintenance of professional ethics, the ethics of the craft, was an essential element in a medieval craft-guild. This can be readily conceded to Gierke. But it does not detract from the economic qualification of the industrial structure of a guild, nor did the factual behaviour of the guilds always correspond to the normative pattern of their ethics.

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necting medieval and modern times, notwithstanding the profound research in regard to the historical origin of the craft-guilds.

Gierke's view of the structure of the craft-guilds.

Among the older investigators Gierke defines the medieval craft-guild as ‘a voluntary society or association based on a free, deliberate union which, like other guilds, comprises the entire man, just as nowadays only the family and the State do, and unites its members as brothers’¹.

Apart from the rather inappropriate comparison with a modern family and a State, the writer appears to view the craft-guilds qua talis as undifferentiated communities with an internal unity. But there are important objections to this view insofar as it does not take into account the later structural differentiation of these guilds at the time of their greatest power. It is certain that the oldest guilds mentioned in the documents, viz. the Frankish (and probably also the Anglo-saxon) guilds, displayed an undifferentiated structure. There is much to recommend the view that the old guilds, especially those that took the form of a sworn peace-guild, established a kind of artificial sib-relation between the families of the guild-brothers at a time when the orginal sibs (taken in the sense of agnatic communities) had already dissolved. The same thing applies to the view that in the late medieval fraternities the idea of the sib survived, deepened by the Christian idea of brotherhood².

This view, which does not at all imply that the guild-fraternity originated from the old sib relationship, is to my mind quite compatible with Sommer's and Sieber's conception that the old guilds were identical with the primitive neighbourhoods (in the

1 O. Gierke, Das deutsche Genossenschaftsrecht. Bnd. I (1868) p. 359: ‘Die Zunft (ist) eine auf frei gewollter Vereinigung beruhende Verbindung oder eine gewillkürte Genossenschaft welche gleich anderen Gilden den ganzen Menschen, wie heute nur Familie und Staat, ergriff und ihre Mitglieder gleich Brüdern mit einander vereinte’.

2 This is by no means a view held by Wilda and L. Brentano alone (Brentano once again gave an elaborate defence of it in Eine Geschichte der wirtschaftlichen Entwicklung Englands, Bnd. I, 1927, pp. 166 ff.); it is also defended by Karl Hegel, e.g. (Städte und Gilden der Germanischen Völker im Mittelalter, Bnd. I, 1891, pp. 134 ff.), who reduced Wilda's thesis to its true proportions and ably defended it against an attack made by von Pappenheim (De alt-dänischen Schutzgilden, 1885, pp. 82 ff.).

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sense of undifferentiated organized societies), characterized by mutual aid and assistance in all circumstances.

But the later development of the genuine craft-guilds formed by men of the same industry or trade in medieval towns clearly points to the operation of a differentiating process. Owing to this differentiation the structure of the economically qualified industrial organization, although interwoven with that of the undifferentiated fraternity, began to distinguish itself clearly from the latter. If the primitive neighbourhoods are the foundation of the craft-guilds, the interlacement between the structure of the organization of artisans and the undifferentiated guild-fraternity is easy to explain. For in medieval towns people of the same craft lived together in wards and streets¹.

In this case it would be an example of territorial enkapsis². Enkapsis - but not identity. Already the connection with the public juridical structure of office, industrial monopoly, and guild-ban could only relate to the economically qualified structure of a vocational organization and not to an undifferentiated fraternity which also comprised the wives and children of the brethren. For, at least in the towns, the vocational brotherhoods as such lacked political governmental authority. The natural family-relationships of the guild-brethren were interwoven with the fraternitas in a personal enkapsis. But the craft-organization could only comprise the fellow-craftsmen (possibly also women), although the women and children were in a specially privileged position when the office was to be obtained (the so-called ‘inninge’), and in particular when it became hereditary.

Was then the vocational organization identical with the organization of the public office, the magisterium, whose sphere of competence had originally been derived from the lord of the town and the market? This hypothesis, too, cannot stand the

1 Cf. J.B. Akkermann, Het ontstaan der Ambachtsgilden (thesis Leiden 1919) p. 158 and the literature cited there; especially F. Keugen, Aemter und Zünfte, Zur Entstehung des Zunftwesens (1903), pp. 139 ff. and Eberstadt, Der Ursprung des Zunftwesens (2e Aufl., 1915) pp. 282 ff. Official craft and fraternity are clearly distinguished in different guild-regulations, e.g., in the skra of the Flessburg shoemakers' and furriers' guild of 1437 and that of the bakers' guild of 1452 (cf. Hegel, op. cit. I, p. 213/4). In the Parisian craft-guilds (with the exception of the butchers' guild) office and guild were always kept apart (cf. Akkermann, op. cit., p. 176).

2 Cf. volume III, pp. 659 ff.

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test. In various towns it is possible to point out crafts which originally were not at all connected with the structure of a public office. And the guilds embracing these crafts had not obtained the guild-ban either¹.

But even if from the outset a craft was connected with the public office, the customary identification of craft and office cannot be correct. An industrial organization has its own internal economic-structural qualification, whereas the office was preponderantly concerned with the ‘public interest’ of the town². The connection of craft and office could thus only have an enkaptic character. This fact is of vital importance to our insight into the internal original spheres of competence of guild and city in the regulation of industrial life. In the introduction to Overvoorde's and Joosting's edition of the sources of law relating to the Utrecht guilds up to 1528, the municipal regulations concerned with these guilds have been classed under different heads, so that the public juridical aspects of this governmental interference are clearly distinguishable from the internal industrial viewpoint of the craft³.

If we construe the late medieval craft guild only from the fusion of office and guild, we are thus guilty of over-simplification. The craft guild had two internal original spheres of com-

1 E.g., the guilds of the gardeners, those of the weavers, and those of the tailors in Bazel. Cf. Akkermann, op. cit., p. 188/9.

2 But as the object of the seignorial (or manorial) right of the lord of the town or market it no doubt also had to serve his pecuniary interest. Gierke's idealistic picture of the medieval official character of the craft is too much oblivious of this fact.

3 Op. cit., XLI and XLII. The council's regulations are classed under the following headings:

1.

the boundaries to the monopoly and the relation to alien merchants;

2.

protection against the monopoly;

3.

the care for public security;

4.

market police;

5.

regulations concerning taxation;

6.

obligatory services to be rendered by the guilds for the benefit of the town (tocht, waak, brandwezen, i.e.: military service, watch, fire-brigade);

7.

measures for the maintenance of the council's regulations. And lastly the writers mention a number of cases in which the town-council seemed to interfere with the internal industrial sphere, but they immediately try to indicate the public-juridical grounds for this interference.

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petence, related to two different structural societal relationships combined in an enkapsis without forming an internal unity.

Moreover, the organization of the craft was interwoven with the derived public legal sphere of competence of office and guild-ban, and the guild fraternity was not only interwoven with the organized craft but also with an internal ecclesiastical group-structure and with a political structure (at least when the guild had attained to political power), as a part of the city organization.

If the guild-ban is considered as an essential element of the craft guild in its more restricted sense, one should bear in mind that this element can only be concerned with the positive existential form of the craft-organization in a particular variability type. But this element as such cannot be based on the internal stucture of the industrial organization. In the juridical modal aspect this leads to the insight that it is necessary to make a sharp distinction between the internal sphere-sovereignty of a guild in its two original spheres of competence and the autonomy of a guild in its official public-juridical and its ecclesiastical function.

But Gierke starts from the idea of an internal unity of the late medieval guild relationship in all its structural aspects, in accordance with the prevailing view, and in spite of the distinction between the guild society as an autonomous organization, and as a part of the town community. Gierke considers the widely different structures enkaptically interwoven in the organizational forms of the craft-guild, as different ‘sides’ or ‘purposes’ of one and the same ‘Genossenschaft’. Thus the boundaries between the internal structures and the merely enkaptic functions of the guild become completely blurred. He seeks the internal bond (holding all these different ‘sides’ together and permeating them) in the fact that the craft guild was a ‘Rechtsgenossenschaft’, a ‘Friedens- und Rechtseinheit’ (a juridical society, a unity for peace and justice)¹.

1 Op. cit., p. 396: ‘War die Zunft, wie wir gesehen, eine politische und militärische, eine religiöse und gesellige, eine sittliche, eine wirtschaftliche und eine Vermögenseinheit, so lag das alle diese verschiedenen Seiten vermittelnde und durchdringende Band darin, dass sie eine Friedens- und Rechtsgenossenschaft war’. [As we have seen the guild was a political, military, religious, social, moral, industrial and property owning unity: the bond connecting and permeating all these different sides was the fact that the guild was a society for the promotion of peace and justice].

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Gierke's conception that the internal unity of the craft guilds was guaranteed by its juridical organization is untenable.

But this view overlooks the fact that the guild law displayed the same internal structural differences which should render the structural unity of the guild as an organized community extremely problematical in the eyes of the historian. To demonstrate the internal unity of the various guild structures Gierke tightly clings to the real or supposed juridical genetic forms of guild law (‘custom’¹ and ‘autonomy’, ‘Weisthum’ and ‘Willkür’). In other words the nodal points of the enkaptic structural interlacements are taken to be the guarantee of the internal structural unity! But the true answer to the question about the relation between the legal spheres of competence of town and guild exactly depends on the insight into the fundamental difference between the internal structural relationships and their enkaptic interlacements with other structures in those juridical genetic forms! When one studies the contents of the guild regulations one is struck by the great structural variety of the provisions in them. These juridical regulations do not at all form an internal unity from the point of view of the material sphere of competence. They only hang together in a formal juridical way, viz. insofar as they had the same juridical genetic form and were formally maintained by the same guild organs administering justice.

How could one ever derive a criterion of the internal unity of the craft guilds from this merely formal juridical view-point?

Gierke himself has to admit the fundamental difference between political and industrial members, and that between fellow craftsmen in the full sense of the word and mere members of the protective guild-relationship². The confusion must have a disastrous effect on the historian's attempt to find the fundamental boundaries of the juridical spheres of competence between city and guild (of course, on the basis of his documentary evidence). For he then unwittingly elevates the public juridical autonomy of the guilds to their original (undifferentiated) sphere of competence, confounding autonomy with sphere sovereignty proper. This sphere of competence is now represented

1 But ‘custom’ as such is not a juridical genetic form, cf. volume III, p. 666, note 1.

2 In the first place women and children belonging to the guild as an undifferentiated fraternity.

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to have only exterior limits in the demands of the city's public interest¹. This conclusion has, of course, not been drawn from an unprejudiced examination of the documents, but depends on Gierke's organological theory of organized communities. It is impossible to interpret the documentary material in a legal historical way independently of a structural theoretical view of human societal life. In the initial period of societal differentiation in the towns a free non-political association could never constitute a public legal sphere of competence. This sphere was in principle derived from the city (or from the lord of the city), although in many towns the so-called guild-movement had led to a preponderant rôle of the craft-guilds in the government of the town. Only as the free organization of a craft, and as an undifferentiated fraternity without a political structure, could the guild possess original spheres of competence. But Gierke's organological theory of organized communities is not oriented to the real individuality-structures of human society and is consequently unable to distinguish the figure of enkapsis from that of the internal unity of an organized community.

1 Cf. especially Gierke's expositions op. cit. Bnd. I, pp. 380-383; e.g., p. 381: ‘Die wahre Quelle aber auch der obrigkeitlich genehmigten Zunftrechte war genossenschaftliche Beliebung...’ etc., and p. 382: ‘Da die Zunft eine selbständige Genossenschaft war und folglich nicht nur ein von dem städlichen verschiedenes Vermögen, sondern auch ein eignes und unabhängiges öffentliches Recht besass...’ (Italics are mine), [p. 381: But the true source also of the guild-law allowed by the magistrates was the will of the association... etc. And p. 382: As the guild was an independent society and consequently not merely possessed financial means different from those of the city, but also possessed an independent public law of its own...].

Art. 167 of the Dutch constitution. j^o. art. 2 of the Judicial Organization Act in the light of the theory of structural interlacements.

There is another important field of research in which we can put our theory of the enkaptic structural interlacements to the test. We mean the question of the internal limits to the spheres of competence of the State's common courts with reference to questions of internal communal law in modern jurisprudence. Just as in the case of the questions of legal history discussed above we are here confronted with problems of a special science. For their solution a supposedly purely special scientific attitude

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of thought will at once prove to be inadequate. If we want to known the basic lines of Dutch jurisprudence¹ with respect to the limits of the material competence of the common courts in civil cases connected with questions of a non-civil nature, we must first study the statute law regulations concerned. In art. 167 of the Dutch Constitution j.^o art. 2 of the Judicial Organization Act of 18 April 1827 (Gazette no. 20) we find the ‘sedes materiae’, the fundamental legal provisions concerning the so-called ‘attributive competence’ of the common courts. This is the regulation of (derived) material competence containing the nature of the disputes to be subjected to the civil judicature in its various branches.

The famous Dutch statesman and scholar Thorbecke defended the view that the so-called fundamentum petendi (i.e. the character of the legal relation from which the action originates), is decisive for the question as to what actions for debt belong to the cognizance of the civil judge². This view seems to find support in the literal text of the above-named article of the constitution. But on legal historical grounds jurisprudence invariably interprets it in conformity to the different wording of art. 2. J.O. Act, and accordingly has decided that not the basis but only the object of an action is decisive³. In its sentence of the 31st December, 1915, W., 9947, the Supreme Court of the Netherlands formulated this perhaps in a sharper way: ‘the right to be protected is decisive’³. In other words, all claims for jura in

1 ‘Jurisprudence’ is meant here in the sense of a complex of judicial decisions.

2 Cf. Thorbecke, Aanteekening op de Grondwet, vol. II, pp. 155 ff.

3 Art. 167 of the Constitution runs as follows: ‘Alle twistgedingen over eigendom of daaruit voortspruitende rechten, over schuldvordering en andere burgerlijke rechten behoren bij uitsluiting tot de kennisneming van de rechterlijke macht’. [All disputes about property or the rights proceeding from it, about claims for debt and other civil rights exclusively belong to the cognizance of the common courts (the judicial power)]. Art. 2 J.O. Act: ‘De kennisneming en beslissing van alle geschillen over eigendom, of daaruit voortspruitende rechten, over schuldvorderingen of burgerlijke rechten, en de toepassing van alle soort van wettig bepaalde straffen, zijn bij uitsluiting opgedragen aan de rechterlijke macht, volgens de verdelingen van regtsgebied, de regterlijke bevoegdheid en de werkzaamheden bij deze wet geregeld’. [The cognizance and decision of all disputes about property or the rights proceeding from it, about claims for debt or civil rights, and the application of all kinds of legally determined punishments, are exclusively entrusted to the judicial power, according to the divisions of jurisdiction, the judicial competence and the activities governed by this Act.]

3 Art. 167 of the Constitution runs as follows: ‘Alle twistgedingen over eigendom of daaruit voortspruitende rechten, over schuldvordering en andere burgerlijke rechten behoren bij uitsluiting tot de kennisneming van de rechterlijke macht’. [All disputes about property or the rights proceeding from it, about claims for debt and other civil rights exclusively belong to the cognizance of the common courts (the judicial power)]. Art. 2 J.O. Act: ‘De kennisneming en beslissing van alle geschillen over eigendom, of daaruit voortspruitende rechten, over schuldvorderingen of burgerlijke rechten, en de toepassing van alle soort van wettig bepaalde straffen, zijn bij uitsluiting opgedragen aan de rechterlijke macht, volgens de verdelingen van regtsgebied, de regterlijke bevoegdheid en de werkzaamheden bij deze wet geregeld’. [The cognizance and decision of all disputes about property or the rights proceeding from it, about claims for debt or civil rights, and the application of all kinds of legally determined punishments, are exclusively entrusted to the judicial power, according to the divisions of jurisdiction, the judicial competence and the activities governed by this Act.]

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rē and debt can be made valid in law before the common civil judge, no matter what the internal character is of the juridical relations from which they arise. This renders art. 2 of the J.O. Act an extremely interesting legal provision from the point of view of the enkaptic structural interlacements in positive law.

The positivistic legal theory, which eradicates the internal structural differences between the juridical relations, would lead to the conclusion that the competence of the common courts is, therefore, not bound within any limits by the internal structure of the juridical relations from which the claims arise. For, according to the constant judicial opinion, the Act does not make any difference in this respect. But the judge does not at all draw this positivistic conclusion from his interpretation of art. 167 of the Constitution j.^o art. 2 of the J.O. Act.

The study of the judicial decisions shows that all along the line the structural difference between civil and non-civil law remains of fundamental importance to the question about the kind of cases of which the civil judge has to form an independent judgment. The point is that the civil judge is indeed competent to take cognizance of claims whose fundamentum petendi is found in non-civil legal relations. But, according to the constant judicial opinion, he has in principle to refrain from judging of material questions of law concerned with the internal structure of the public administration and with that of non-civil communal and contractual law. In these matters he generally places himself on a formal juridical standpoint while respecting the original spheres of competence belonging to the non-civil legal orbits of law. The parties to the action may try to involve the civil judge in the above mentioned material juridical questions. But his answer is invariably that these questions do not concern civil-legal relations and are therefore withdrawn from the decision of the judge.

And this is not a special viewpoint of Dutch civil jurisdiction. In English judicature, e.g., the same attitude obtains with regard to the internal law of associations. According to the English common law courts, the judicial decision of the ‘domestic tribunals’ of such associations is only assailable in a civil process if the proceedings have been contrary to the principles of ‘natural justice’. These principles are the following: the principle of ‘audi et alteram partem’ must have been observed in the internal jurisdiction of an association in its sharpest possible formal sense; no patent partiality can be tole-

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rated in the decisions of the ‘domestic tribunals’, and nothing may be done which is contrary to the articles of association or the domestic by-laws. This is all the more interesting as free associations (especially ‘clubs’) occupy a very important place in social life in England¹.

On the whole the Supreme Court of Germany (the ‘Reichsgericht’) takes the same formal view in questions relating to the internal legal relationships of associations which may be interlaced with civil law-suits. Since 1923² an exception was made with respect to the so-called Zwanggenossenschaften (coercive associations), such as trade unions, the membership of which is unavoidable if one does not wish to go begging for bread. In the case of such associations the civil judge does examine the material grounds of a decision for the expulsion of a member. The reason is that these organizations had acquired a social position far exceeding their internal legal sphere, and practically decided the fate of their members by expelling the latter. The expelled member's total private social status was at stake in this case. The typical enkaptic structural interlacement of such indirectly compulsory organizations with the structure of the State and the civil legal relations plays a special rôle here. Also from a civil law standpoint it became necessary to accord a more than formal juridical protection to the members from possible abuse of the internal authority of the trade unions. In this case the internal sphere of competence of the civil judge is not really exceeded, as will appear from the sequel.

1 Cf. W.A. Robson, Justice and Administrative Law (1928), pp. 169 ff.

2 Cf. the sentence of the Reichsgericht of 20th December 1923 (Entsch. R.G. in Zivilsachen Bnd. 107, p. 386). This decision was based on the following consideration: ‘In Fällen wie hier, wo die Zugehörigkeit zum Verein geradezu eine Lebensfrage für die Mitglieder bildet, musz das Gericht eine sachliche Nachprüfung des Ausschlieszungsbeschlusses nach der Richtung gestattet sein, ob nicht in dem Vorgehen des Vereins gegen das Mitglied eine offenbare Unbilligkeit zu finden ist’.

Formal and material criteria of an illegal act in the judicial decisions relating to art. 1401 of the Dutch Civil Code.

The formal attitude assumed by the Dutch civil judge in questions relating to the internal side of legal relations which as to their inner nature exceed the boundaries of civil law, is all the more striking since the decision of the Supreme Court of the Netherlands of the 31st. of January, 1919 (W. 1036).

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This decision introduced a new criterion of civil wrong which according to art. 1401 of the Dutch Civil Code gives rise to an action for damages. In contradistinction to the English law of torts, this article establishes the liability for any tort causing damages to another person by guilt. The article mentioned speaks of ‘any unlawful act’. Before the year 1919 the Supreme Court understood by this term exclusively actions contrary to an explicitly formulated legal duty or implying an infringement of a person's subjective right. The new criterion, introduced in the decision mentioned, added to these formal kinds of illegal acts every acting ‘contrary to the due care pertaining to another's person or goods in inter-individual societal intercourse’¹.

It is clear that by the application of this criterion the unlawfulness of a private act is conceived in a material sense according to unwritten legal norms, which lack the explicit genetic form of statute law. However, when a civil judge is called upon in a civil law-suit to judge of the lawfulness of an internal juridical decision on the part of a competent organ of an organized community, he does not employ a material, but a formal concept of unlawfulness. This happens if the decision of the material legal question should lead the judge to encroach upon the internal legal sphere determined by the inner structure of the societal relationship concerned. The Supreme Court takes this view (and this example is followed by the lower courts) both with regard to the public administration and the private legal relationships which as such lack a civil legal character. I shall mention some instances of the judicial view in this matter:

The Hague arrondissement court pronounced the civil judge's incompetence in questions of “faith and confession, practice and conduct of the members of a Church-society in its sentence of 28th February 1888 (about art. 3 of the general regulation of the Nederl. Herv. Kerk of 1st May 1852). The same view was taken by the decision of the arrondissement court of Utrecht 18th April 1928 W. 11886 with regard to the property of the Church building and manse of Tienhoven, after the schism in the Gereformeerde Kerken which had occurred in the year 1926. In its judgment the court considered that it was not entitled to ‘express any spiritual, but only civil legal appreciations’. On this ground it refused to enter into the matter of the material lawfulness of the synodal decrees in question².

1 Naturally ‘social intercourse’ is meant here in a juridical sense.

2 Cf. the material on this subject collected from judicial decisions and literature by Léon van Praag, Rechtspraak en voornaamste Literatuur betr. de Wet op de Recht. Organ. 1e ged. Alg. Begins., pp. 647 ff., suppl. 1e ged. (1930) p. 145, 2e ged. pp. 134 ff., and in the quarterly Themis (1920) pp. 174 and 305 ff.

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The same attitude was maintained by the civil courts in the numerous law-suits concerning the property of the Church buildings and manses originating from a second schism in the Reformed Churches. In general the organizational relations in a Church community are judged according to the external rules of the Civil Code relating to free associations. Cf., e.g., the sentence of the Supreme Court of the Netherlands of 13th July 1946 N.J. 1947, 1. These rules are certainly not applicable to the genuine internal organization of a Church, since the latter lacks the character of a free association. Nevertheless, from the viewpoint of civil law the application of these formal rules is a guarantee against the interference with the genuine internal law of the Church.
With respect to the internal law of free associations the civil judge is repeatedly called upon to decide whether their decisions to expel one or more members are lawful or not. In these cases, too, the judge anxiously sticks to the formal concept of unlawfulness in respect to all questions of genuine internal associational law, i.e. he simply inquires whether a decision is formally based on the articles of association.
The application of the material criterion of unlawfulness, introduced by the sentence of 1919, to internal administrative actions of the government was in principle rejected by the Supreme Court of the Netherlands in the famous ‘Strooppot case’ of 29th June 1928 W. 11864.

This is all the more important if one considers that the current theory bases the validity of the internal law of an organized community with regard to its members exclusively on an agreement. According to this contractual viewpoint the individual has voluntarily submitted to this law and has been accepted by the other members as one of them. The validity of this agreement is traced back to the Dutch Civil Code (cf. art. 1374, 1st part: ‘all agreements that have been legally made are law to those who have concluded them’). This positivistic contractual theory is still influenced by the Humanistic doctrine of natural law and its contractual construction of all communities irrespective of their inner nature. It assumes that the whole of civil judicial decisions relating to the ‘autonomy of private organizations’ can be understood without the aid of any material concept of competence, i.e. without any insight into the inner structure of the internal communal law. According to this view the civil judge does not need any other legal ground for his non-

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interference in material questions of internal communal law than the old nominalistic principle: Volenti non fit iniuria, the familiar adage of the Humanistic theory of natural law.

Neither the contractual construction, nor Gierke's theory of the formal autonomy of private organized communities can give an account of the constant judicial opinion in question.

But can this individualistic contractual construction really give an account of the civil judicial standpoint in these matters? I deny this. This construction is helpless in the face of cases in which a civil court has to decide material juridical questions not concerning the internal structure of a private organized community, although they are formally governed by provisions of the articles of association or the ecclesiastical legal order.

On this point the older judicial view of the Dutch courts was much more formalistic than the modern. Thus e.g., the decision of the Amsterdam court given on the 22nd June 1880 (W. 4609) is instructive. Some members of a shipyard workers' union had been expelled by the general meeting of the union on the ground of their behaviour alleged to have been ‘detrimental and disgraceful’ to the union. The court decided that they could not even lodge a complaint with a civil judge because of the violation of the principle of audi et alteram partem, if the union's articles of association and domestic bylaws did not formally guarantee the observance of this principle. The material decision was concerned with the question as to whether or not the member's behaviour was a case in point as to the ground of the expulsion mentioned. The court considered that this material question belonged to the exclusive competence of the general meeting of the members of the union. An interesting contrast is offered by the decision of a material juridical question by a civil judge in the award of the Utrecht court of the 26th June 1918 W.P.N.R. 2603, in another case of expulsion. A member of a typographical society had been expelled on the ground of art. 7 of the articles of association for ‘endangering the reputation’ of the society summoned.
The defendant objected that the judge was not competent in this case because only the society's general meeting was competent to decide upon the expulsion of members. But the court rejected this defence, as the claimant did not request the court to rescind the expulsion and to restore him as a member of the association. The claimant only pleaded for damages on the ground of the alleged unlawfulness of the expulsion. Then the court examined the facts adduced by the defendant serving to prove that the reputation of the organization had been endangered.
The claimant, as chairman of a public meeting, had allowed an insulting expression to be used referring to the members of the

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society. The court decided in a material sense that this expression was ‘certainly insulting to those to whom it is applied, and that if this is done to all or most of the members of a society, the reputation of that society is certainly injured, at least endangered’. Why did the judge employ a material criterion of unlawfulness in this case, whereas he generally places himself on a strictly formal standpoint with respect to juridical questions of an internal associational nature? This must be quite inexplicable to the theory of the formal autonomy of private associations (Beseler, Gierke, etc.) as well as to the contractual theory. Both would have to lead to the conclusion that in the above-mentioned case the civil judge ought to have taken a formal legal standpoint. But if we apply the criterion of ‘juridical sphere-sovereignty’, the matter is clear. In the case of the typographical society the application of the material criterion of unlawfulness does not result in a real encroachment on the internal legal sphere of the association, because the material juridical question in this case was itself of a civil juridical nature and had nothing to do with the typical structure of the society. It was a question of an ordinary ‘insult’ in a civil juridical sense as to which the Civil Code even assigns a separate action for tort (Art. 1408).

The original material spheres of competence cannot be eradicated by human arbitrariness.

Of course, the objection may be raised: it is quite possible that in the future the civil judge alters his present attitude to the material legal questions connected with the inner nature and structure of the organized communities.

Indeed, this is not impossible. In a South-African lawsuit concerning the deposition of the ecclesiastical professor du Plessis, for instance, the judge was induced to a material appreciation of questions of belief and confession in spite of his protestations to the contrary. But even in such cases of a material excess of legal power the strong arm of the State appears to be unable to violate the internal sphere-sovereignty of an organized community, so long as the latter puts up a united resistance for the defence of its original sphere of competence. Of course, the State can temporarily prohibit the formation of private associations. But it cannot arbitrarily change the internal structural principles of the societal relationships and their original spheres of competence. A civil judge's sentence can do no more than pronounce the civil unlawfulness of the challenged decision of an internal organ of an organized community, and sentence it to pay damages, or a so-called penal sum.

But within its original sphere of competence an organized community can never be compelled to accept a civil judge's decision which exceeds the boundaries of the civil legal sphere.

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When the civil judge in final instance, even on wrong grounds, has pronounced the civil unlawfulness of a decision taken by a competent authoritative organ of a private community, the latter has to accept this sentence in a civil juridical sense unconditionally. It has to pay the damages imposed by the judge because the latter remained entirely within his material sphere of competence when he fixed them. But the authoritative organ of such a community is not bound to adapt its decision, given within the original sphere of its competence, to the judge's personal opinion on matters outside his material sphere of legal power, even if this opinion would form an essential ground of his sentence. He can never give an official opinion in such matters.

This is a question of juridical insight into states of affairs which the positivistic juridical theory misinterprets fundamentally. The latter is not based on positive law, which is not of a theoretical character and cannot give a binding theory. But the misconception referred to is the result of a fallacious theory of positive law, on which a legalistic positivism bases its interpretation of the legal rules.

The contractual construction of the internal law of organized communities is an absolute failure in the case of public law. The judicial opinion as to an unlawful action on the part of the government, judged according to the principles of common civil law.

The positivistic contractual theory by means of which current opinion tries to construe the ‘formal autonomy of a free association’ or a Church community from the legal viewpoint, is unable to give a theoretical account of the different structures of positive law. It is completely unable to elucidate the judicial view in cases of a civil wrong on the part of the public administration. Also with reference to the internal public legal aspect of the government's actions, civil judicature employs a strictly formal criterion of unlawfulness and does not apply the material criterion formulated by the Dutch Supreme Court in its famous decision of 1919. In this case the positivistic juridical theory can no longer appeal to the old natural law doctrine of a ‘social contract’ to construe the legal autonomy of the internal sphere of public administration.

Yet in these judicial decisions the same question is at issue that occurs in the case of unlawful actions on the part of the organs of private organisations; viz. the civil judge will make a halt before the internal sphere of communal law.

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But a positivistic theory has no eye for the internal structural differences between civil law and internal communal law. This theory cannot understand why the material civil legal criterion of unlawfulness, formulated by the Dutch Supreme Court as ‘contrary to the due care pertaining to another's person or goods, in civil legal intercourse’, does not apply to the internal communal relationship between government and subjects. It cannot understand why, in respect to the latter, civil jurisdiction restricts the concepts ‘civil wrong’ to a violation on the part of public administrative organs of subjective rights or formal legal duties.

But the truth is that only a material administrative jurisdiction governed by public juridical principles¹ can offer the injured subject redress in cases exceeding the boundaries of a civil legal relation.

Jurisdiction has not been entrusted with the task of theorizing about law, but with that of forming law in concreto; in general it shows a very correct intuitive insight into the fundamental structural differences between civil law and internal administrative law. It refuses to judge the internal structure of unlawful governmental actions by means of a material civil law standard. The structure of social reality itself resists such an eradication of the structural boundaries.

1 We refer once again to Paul Duez, La Responsabilité de la Puissance Public en dehors du Contrat.

The structural interlacement of civil law and internal communal law considered from the standpoint of Art. 1401 of the Dutch Civil Code. The insufficiency of Gierke's theory of organized communities to account for this interlacement.

How can we understand that the civil judge's formal standpoint with regard to the internal law of organized communities and inter-individual societal relations is really a matter of civil law? The answer will also give us a clearer insight into the fact that the internal communal legal relationships have their civil legal counterpart. This is the reason why they can be submitted to the civil judge's decision, although only from the formal standpoint. Gierke's organic theory of organized communities has been rightly criticized for its inability to account for the possibility of making a violation of the internal rights of member-

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ship into the object of a civil law-suit against the corporation¹. If these internal rights are qualified by their inherence in membership qua talis, and a member, as such, is merely a part of the whole, how can he bring an action against the whole, just like an outsider?²

Indeed, Gierke's sharp separation between communal law (Sozialrecht) and inter-individual civil law (Individualrecht), and his lack of insight into their enkaptic structural interlacements render this state of affairs inexplicable. If, however, there is an unbreakable enkaptic structural interlacement between internal communal law and civil inter-individual law, then every internal communal legal relation must in principle have its external civil juridical counterpart. Then the antinomy pointed out in Gierke's theory of organized communities, viz. that in a civil law-suit about internal rights of membership a

1 Cf. J. Binder, Das Problem der juristischen Persönlichkeit (1907), p. 112.

2 Gierke cannot indicate a material-juridical criterion to delimit the internal law of an organized community, and consequently he is involved in a patent antinomy with respect to the ‘reine Mitgliedschaftsverhältnisse’ (pure relations of co-membership) within a private association. On the one hand he writes (Deutsches Privatrecht I, p. 534/5) about these legal relations: ‘Sie sind freilich, da sie ein selbständiges Dasein ausserhalb des körperschaftlichen Zusammenhanges nicht haben, nur durch, nicht gegen die körperschaftliche Lebensordnung gesichert’. [To be sure they are guaranteed only by, and not against, the order of corporate life, because they do not possess an independent existence outside of the corporate coherence.] But he immediately adds: ‘Mithin müssen, bevor die Körperschaft gegen ihr Mitglied der richterlichen Hülfe bedarf oder das Mitglied gegen die Körperschaft den Rechtsweg beschreiten kann, zunächst die durch die Körperschaft selbst gebotenen Mittel der Abhülfe erschöpt sein’. [That is why before the corporation needs judicial aid against its member, or before a member can go to law against the corporation, the means of redress offered by the corporation itself must be completely exhausted.]. Consequently these purely internal juridical relations can after all be made valid against the corporation, though we were first told they could not. Here appears the antinomy. On his standpoint Gierke cannot see how an internal legal relation in a community has its civil juridical counterpart, which can only be distinguished from the former by means of a material structural criterion. He has at his disposal only the formal criterion of the civil judge's incompetence to an independent examination of the decisions on the part of the organs of a society which are in formal agreement with its articles of association (op. cit., p. 435). We have already shown that this criterion is insufficient.

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part is opposed to the whole, will naturally be removed. Human legal subjectivity is not split up into that of an individual and that of a member of a communal whole, as in Gierke, but functions only in the unbreakable correlation of these two.

When a civil judge applies the formal test of the articles of association and the domestic regulation of a society to the actions performed by the organs within their original sphere of competence, he does so to maintain legal security, a genuine civil juridical principle. And when he subjects a domestic jurisdiction to the test of the principles of audi et alteram partem, and of impartiality, he also applies genuine principles of common civil law relating to what in the natural law doctrine was called the complex of unalienable human rights. It is clear that in this sense a civil legal relation is necessarily interwoven with the internal juridical relations of an organized community. The latter are enkaptically bound by civil law to protect the legal status of the human personality as such.

The question relating to an ecclesiastical assessment imposed upon baptismal members of the Dutch Reformed Church brought before a civil court, and the juridical sphere-sovereignty of the Church.

But a civil judge need not restrict himself to a merely formal test of legal questions relating to the internal life of a community, by means of statute law, articles of association and domestic rules, if the material juridical question does not belong to the original sphere of competence of the organized community concerned. In the first place we have seen that not all the provisions originating in the genetic form of such communal law are peculiar to an internal community as regards their material meaning-structure.

In addition to the example given above, I refer to the judicial standpoint in the well-known case relating to the nature of the juridical bond established by baptism between a baptismal member and an institutional Church. This case was concerned with a Church tax to be paid by baptismal members in virtue of the General Rules of the Dutch Reformed Church¹. The sentence of the Supreme Court of the Netherlands of 29th December 1911 W. 9272 qualified this juridical bond as a civil legal or ‘secular’ relation. The Supreme Court

1 The Dutch Reformed Church (Nederlandse Hervormde Kerk) is not identical with the Gereformeerde Kerken, which separated from the former in 1886.

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declared that this civil juridical bond displays an unbreakable coherence with the ‘religious or ideal bond’. At the same time the ecclesiastical regulation of the rights and duties of the members was called a ‘special regulation’ under the ‘supreme rule of the general statute law’ to which the former always has to yield, ‘unless the general statute law itself leaves scope for deviation’. The theoretical point of view expressed by the Supreme Court here, though not detracting from the correctness of its concrete decision in the given case, was entirely in agreement with the prevailing doctrine most sharply formulated by the earlier mentioned statesman and scholar Thorbecke¹. According to this doctrine the so-called ‘visible Church’ is an ordinary civil association or society, an ordinary ‘corporation’ in the sense of the Civil Code, as the Supreme Court has it. The internal juridical relations in such a society are simply of a civil legal character. Consequently there can be no question of an internal ecclesiastical law with a particular structure of its own and with an original sphere of competence. In this view private law is only of one kind: it is identical with civil law.
To this prevailing theory A.F. de Savornin Lohman², professor of constitutional law at the Free University of Amsterdam, opposed another, according to which the ‘visible Church’ is not at all a society in a civil juridical sense, but an institution. It has a spiritual character of its own and possesses an internal spiritual legal sphere, which should be considered as entirely apart from civil law. As a result the civil juridical rules relating to associations can never be applied here. This view implies that the Dutch Reformed Church cannot at all call in the aid of a civil judge in case a baptismal member refuses to pay the ecclesiastical tax.
Neither of these theories does justice to the structural differences and coherences within the juridical sphere. Thorbecke totally ignores the internal legal individuality-structure of the temporal institutional Church and therefore levels all non-public juridical spheres under the civil legal denominator. Lohman, on the other hand, absolutizes the internal juridical sphere of the Church to an entirely independent sphere of competence which nowhere even touches civil law.
The true state of affairs can only be grasped if we have an insight into the enkaptic structural interlacements between civil law and internal ecclesiastical law, and apply the material criterion of juridical sphere-sovereignty formulated by us.
Then it at once appears that baptism really establishes a juridical bond of an internal ecclesiastical nature, which can only be understood from the point of view of the internal structural principle of the temporal Church institution. But the obligation to pay an ‘ecclesiastic tax’, imposed on the baptismal members in the legal form of

1 Cf. Mr L.H. van Lennep, De Rechtskracht van de Verordeningen der Christelijke Kerkgenootschappen (diss. Leiden, 1909), pp. 111 ff.

2 De Rechtsbevoegdheid der Kerken, in the review ‘Rechtsgeleerd Magazijn’ (1893), pp. 103 ff.

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the General Rules of the Dutch Reformed Church, can never be of an internal ecclesiastical juridical character. This obligation has no internal relation to the typical structural principle of the institutional Church: it is even contrary to this internal structural principle. In a differentiated human society the imposition of a tax not based on the free compliance of a member only belongs to the original competence of the State, as a coercive institution founded in the power of the sword. The Church institution does not possess this competence, at least never in an original sense. The juridical question as to whether or not the baptismal members of the Dutch Reformed Church, as such, are bound to pay an assessment in the ‘Church tax’ can only be answered in accordance with a material civil legal view-point. No doubt parents are perfectly entitled to have their children baptized in a particular Church community and thus to have them incorporated as baptismal members in this latter. For this power is implied in the original competence inherent in their parental authority. But this cannot give rise to any financial obligations on the part of a baptismal member that has not voluntarily joined the Church community, except those that are according to the norms of civil law, i.e. only those based on his consent. This consent is only valid in law after his coming of age. By judging such a question according to the civil juridical principles of the law of contract, the civil judge can never encroach upon the internal sphere of competence of the Church.

Respect for the original non-civil juridical spheres of competence does not imply respect for abuse of power.

In the second place the boundaries of the civil legal sphere of competence cannot be in principle exceeded when guarantees are created against evident partiality or abuse of power, irrespective of the question as to whether these guarantees are offered by means of civil legislation or by the law of jurisprudence¹. Such partiality or abuse of power may arise when the authoritative organs of an organized community or a family exercise their authority contrary to its inner nature and destination so that the civil juridical interests of its members are injured.

This may also occur in the exertion of the marital power in the internal conjugal community. In this case the wife should have an appeal to the civil judge in order to protect her civil legal interests. And the same thing applies to the relation between civil law and the internal sphere of the private, non-civil law of inter-individual relations.

In the non-civil juridical integrating process of private inter-

1 I.e. judge made law.

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individual law the ‘dominating groups’ give the lead on the basis of their peculiar position of power in society, without having any legal competence proper. In this case there is no guarantee of their observing the requirements of good faith and equity with respect to the other party. The latter can often only accept the conditions laid down in a one-sided manner (thus, e.g., the agreements made with a transportation company). And this makes it possible to violate the deepened civil-juridical principles of the law of contract de facto.

In this case, too, the civil juridical counterpart of the non-civil law formation must not for a moment be lost sight of.

The enkaptic inter-structural interlacements between civil law and non-civil private law prove to be an extremely delicate juridical tissue, and the criterion of the juridical sphere-sovereignty is grasped in its true sense only if we realize the impossibility of isolating the original spheres of competence from one another hermetically. The sovereignty of the modal law-spheres within their own boundaries only functions according to their internal modal meaning in the cosmic coherence of all the modal aspects. In the same way the juridical sphere-sovereignty of the original spheres of competence can only exist in their intricate mutual structural interlacements. Not with a butcher knife, but only with the lancet of a structural analysis can this tissue be theoretically analysed in a proper way.

The limits of the original competence of the legislator in the sphere of civil law.

The above implies that there are also fundamental limits to the original competence of the legislator with respect to the enkaptic binding of non-civil inter-individual commercial or industrial law to the civil legal order.

In this respect it is very instructive to take cognizance of the development of the Dutch Code of Commerce since its introduction in 1838. In line with the French Code du Commerce the Dutch legislator intended to codify the law of commerce without having a clear insight into the inner boundaries of a civil legal regulation. Thus he started with a compulsory definition of commercial acts and of the occupation of merchants which restricted the objects of commerce to movables (wares).

As a consequence the Code did not acknowledge brokers in real estates. Limited liability companies were bound to the purpose of commerce in the sense defined by the Code, etc.

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Here we meet with a clear encroachment on the part of the civil legislator upon the internal sphere of competence of commerce and industry. We have seen that civil law, in the sense of private common State-law, does not permit itself to be bound to a specific economic purpose. By its inner nature it lacks any specific qualification of a non-juridical character. It is consequently beyond the civil legal power of the legislator to determine the inner sphere of activity of commerce and industry, and to bind a particular juridical form of association to a commercial purpose whose inner content is defined by the legislator himself. The result of this ‘excès de pouvoir’ was that there arose a sharp conflict between the compulsory rules of the Code and non-civil commercial and industrial law. In this conflict both the common courts and the organs of public administration took sides in favour of the latter. And finally the legislator was obliged to join the legal praxis. The limited liability Comp. Act of 2nd July 1928 repealed the binding of these companies to a commercial purpose. The Act of 5th May 1922 repealed the limitative circumscription of the task of brokers. And the Act of 2nd July 1934 repealed the initial articles (2-5) of the Code which had tried to establish compulsory criteria of commercial actions and merchants.

There are many other examples to be adduced of the formation of private industrial or commercial law contrary to compulsory rules of the civil legislator, where the conflict arose from an exceeding of the inner boundaries of civil law on the part of the legislator. But the above may suffice to illustrate our thesis that in the intricate enkaptic interlacements of the original spheres of competence the latter maintain their internal limits determined by the inner nature and structure of the different societal relationships.