Regs- en staatsosiologiese grondslae van politokratiese kommunitarisme

’n Gesprek oor enkele aspekte van die meta-etiese historisme in die Afrikaanse politieke en regsliteratuur

Abstract

Legal-sociological grounds of law and state in politocratic communitarianism. A discourse on some aspects of meta-ethical historicism in Afrikaans political and legal literature
Politocracy is a phrase coined by a Pretoria law academic, Koos Malan, and supported by Danie Goosen, a religious philosopher from another Pretoria academic institution. Legal-methodologically speaking politocracy approaches political and legal institutions from a metaethical historicist perspective. The sociological grounds of this form of communitarianism emanate from Aristotelian legal and political thought on the polis, Scholastic philosophy of being and neo-Hegelian philosophy as the ideal form of organismic community. This study finds that politocracy is a universalist political theory, limiting both the factual and the normative dimensions of law. Furthermore, politocratic jurisprudence confuses the idea of law with the concept of law and has a very narrow view of the complexities of legal life. Contrary to politocratic legal and political theory, it is argued that the diverse legal interests in society can only be properly managed by the state as a public legal institution, that a clear distinction has to be maintained between public law as the internal communal law of the state which, by virtue of the nature of the state, is always governed by relations of authority (those of the ruler and ruled) and civil law, on the other hand, being the interindividual law applicable to all individuals and societal relations in the national territory. Furthermore, it is argued that constitutional states are based on or grounded in constitutive constitutional law principles such as those of constitutional representation, the separation and balance of powers, regional and functional decentralisation and fundamental rights. These constitutive principles peculiar to constitutional law should always be applied in accordance with the notion of the res publica, in the sense of a public structure embodying the principles of justice. This regulative principle presupposes that the state will be organised according to the constitutive principles of constitutional law. In the modern constitutional state this happens only if, in structuring the state, the culture and historical wielders of political power are guided by the regulative principle of theres publica.