Being of law and the ways of being of law
In the particular case of cultural objects, it is necessary to distinguish between the products of man’s activity and the activity itself. The latter refers to human life in action with its intimate temporality being as a necessary presence of the present moment in time while the former is human life objectified. For example, a worldly object such as a piece of marble or a tree are objectified human life inasmuch as an individual made them into a statue or a table.
Human actions are sections or fragments in which behavior as such is disarticulated insofar as the action itself or conduct is the object of knowledge. In the worldly objects, the substrate is in an ontic kingdom. Our experience with the object means that the meaning is based on what is created. Therein, the substrate is a portion of nature used by a human being.
In egological objects, the substratum is the same “living” human life or conduct in action. While the sense we have from worldly objects transcends the object itself, the sense in egological sense is immanent to someone. Consequently, the intuition of a cultural object is a double intuition: the intuition of a substrate may an apprehension by any of our senses while the intuition of a sense is an ontological apprehension.
The science of law as a science of realities considers the effective conduct. There is a confusion between the being of law and the ways of being of law. Being of law as a legal science has to do with presenting an exclusive object different from any other object. In that sense, the opposition between the legal and the non-legal plays in law as a regional object. Therefore, the jurist immediately recognizes what is incumbent to his specific theoretical interest (similar to what H.L.A. Hart refers to in The Concept of Law when he introduces several answers to the ostensibly “simple” question “What is law?”).[1]
If the science of law is knowledge of an object (like any other science), the first philosophical presupposition that we have to examine centers on the problems of this object as such. As the legal object is always present explicitly or implicitly in this science, it turns out that its correct or incorrect apprehension by the jurist has an immediate and direct impact on the conceptualization and characterization that the jurist in question gives us.
The way in which the jurist understands the objects (e.g. purely ideal, as a norm; or a fact, as human behavior) is of paramount importance because, depending on the peculiar ontic legalities the jurist will determine epistemological and methodological principles that he will take into account to assess and characterize that object.
Interestingly, both “living” conduct or behavior and objectified conduct (e.g. a committed crime) belong to different dimensions of the same “phenomenon” called law. This means (1) that law is not a “noumenon”: it does not exist independently of human perceptions and ideas; (2) that it is nevertheless “given” to the philosopher as a practice that can be analyzed without first justifying the belief that it really occurs; and (3) that “law” signifies a related set of different, related, multifaceted practices—and that it is methodologically legitimate to select certain of these practices and facets for attention without simultaneously giving a complete account of everything included under “law.”
Whatever else legal practices presuppose, they must posit facts, and they must posit rules. If either of these is denied, legal practices become impossible—because, to put it bluntly, all reference to either “facts” or “rules” can be dismissed as subjective, and therefore ignored according to preference.
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Facts and rules.
Author of:
Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).
Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).
Tuesday 18th May 2021
Dr Jorge Emilio Núñez
Twitter: @DrJorge_World
https://drjorge.world
[1] Refer to the very first post of this blog series.
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