Enkapsis and the Development of Customary International Law: An Encyclopedic Approach to Inter-Legality

Abstract

This essay draws from the work of the late Dutch Christian philosopher Herman Dooyeweerd (1894-1977), former chair of jurisprudence and the history of Dutch law at the Vrije Universiteit Amsterdam (1926-1964), to construct an account of customary international law. His little known Encylopedia of the Science of Law (ESL) not only presages by about a century but, in my view, also offers an engaging framework for studying and understanding what is now being called ‘the challenge of inter-legality,’ or the question of a ‘plurality of legalities,’ where ‘the law surfaces as the composite legal nature of the issue under scrutiny,’ and where a certain resilient and reflexive ‘material interconnectedness’ ‘among functional fields’ arises from ‘the overlapping among regimes and orders,’ which are also self-referential and coherent in themselves. Rejecting an account of the state as the sole lawmaker, he proffers a pluralist ontology founded on the philosophical principle sovereinteit in eigen kring (sphere sovereignty) as a source of diverse structural-material principles for legal or jural positivization. Here, there are three inter-related elements: first, is his notion of individuality-structures (entities), which give rise to law unique to their particular practice or sphere (entities as rule complexes, each sovereign in its own orbit, exhibiting a differentiated responsibility unique to its nature). Second is the various ways in which they engage in relations of enkapsis or enkaptic interlacements – resulting in complex intertwinements of the formal and the material sources of law with profound implications on the private-public (law) distinction. Third is his modal theory of the jural aspect, which is one of the irreducible yet interconnected universal multi-dimensional modes or aspects of reality, and through which entities and enkapses are viewed and understood as legal phenomena. In summary, his theory of the sources of law states: All law displaying the typical individuality structure of a particular community of inter-individual or inter-communal relationship, in principle falls within the material-jural sphere of competence of such a societal orbit, and is only formally connected (in its genetic form) with spheres of competence of other societal orbits. Through enkapsis, different sources of law display a mutual interrelationship that bind and limit without altogether canceling one another. For Dooyweerd, insight into the nature of enkapsis, appears to be of fundamental importance for the theory of human society because, in current conceptions, the difference in principle between sphere sovereignty and autonomy is consistently misunderstood. This insight has a fundamental bearing on any theory of the sources of law, because it is only by making a sharp distinction between the internal sphere sovereignty of radically different societal structures (such as for example, state, church, and business organization) and the autonomy of parts of one and the same societal whole (such as, for example, municipality and province within the state) can proper jural insight be obtained into the mutual relationship of the original material spheres of competence with respect to the area of law formation. Thus, a formal source or genetic form of law posivitizing jural principles may be an original source of law in one sphere of competence but may be a derived source of law in another. Applying his theory, customary international law is a formal source of law; that is, a genetic form or mode of generating international law. But its material bases may lie in the particular enkaptic interlacements involved. Further, as a formal source exhibiting the duality of norms in international law, a treaty may be a codification of norms that exist independently as custom, but it may at the same time display a multi-layered interlacement of structural-material principles from various sources.