The significance of philosophical distinctions for reflecting on state and society with special reference to the work of Koos Malan on Politocracy

Danie Strauss
2017 Tydskrif vir Geesteswetenskappe  
The significance of philosophical distinctions for reflecting on state and society with special reference to the work of Koos Malan on Politocracy Recently reflections on state and society were enriched by the contributions of various authors in Afrikaans. Of particular interest in this regard is a work written by Koos Malan (professor in Constitutional Law). It displays a positive appreciation of the Greek polis which provides a starting-point for his discussion of the ecclesiastically unified
more » ... culture of the Medieval era. He points out that the term "state" emerged fairly recently, preceded by earlier designations such as realm, body politic, commonwealth, civitas and republic. In his definition of "staatlikheid" ("stateliness") the intention is to capture key traits of the ideology of the state. In some instances stateliness and state are equated. When the element "territory" is added to the concept of the "state" the idea of the "territorial state" emerges. However, according to Malan the expression territorial state does not instantiate the positive features of a genuine community. The latter is understood not in terms of abstract individuals, but from the perspective of a whole and in terms of the wholeparts relation. At the same time the jural side of reality is seen as related to the state. He holds that the state order is seen as a reified, fixed and permanent entity, instead of as a temporal, historical and therefore changeable phenomenon. This view highlights the classical philosophical problem of constancy and change (dating back to Plato and Heraclitus). It became once more prominent at the beginning of the 19 th century with the rise of modern historicism which emphasized change at the cost of constancy. However, in the same context Malan does evince an understanding of Plato's insight, namely that change can only be detected on the basis of persistence (constancy), for he refers to the "royal office" which is an "enduring" ("blywende") and an "immutable" ("onveranderlike") juridical given. This insight borders upon a key element in our understanding of the nature of a principle as a universal and constant startingpoint for human action that can only be made valid (positivized) through the intervention of a competent organ in varying circumstances. Malan speaks of "rules" contained in "legal principles" that ought to be applied -without realizing that a rule is already an applied principle. Defending the supposed changefulness of the "state order" is only possible if an element of persistence is recognized in the constancy of the structural principle of the state, for otherwise Malan becomes a victim of the shortcoming of historicism by emphasizing change at the cost of what endures. The relationship between state and law points at another important philosophical distinction, namely distinguishing between concrete (natural and societal) entities and the various modes of existence in which they function. The various modes of being ("bestaanswyses") of reality are captured in concepts of function distinct from thing concepts, which in turn are correlated with modal laws (displaying an unspecified universality) and type laws (evincing a specified universality). The functioning of the state within all aspects of reality presupposes the
doi:10.17159/2224-7912/2017/v57n3a13 fatcat:ddqc47k7oncpno2ve2i4zajngu