Formal juridical logic
In law, like in any other science, we find in addition to the object of study its ontology. In that sense, we have the object and what we “see” or think about the object.
Every scientific discipline is conceptual knowledge and a concept appears in language as a meaning expressed by words. Therein, a word evokes directly and immediately a meaning (without being the meaning itself or the object of reference).
Between a word and its meaning there is a sign-meaning relationship. The “meaning” is not something real in time and space but an intellectual representation of an object. This ideal relation of representation between concept and object refers to gnoseology or relation of knowledge. This relation is not of cause and effect or teleological but an intentional relation (i.e. simply put, the concept refers to the object).
A concept is not apprehended but a product of our ideation. Therefore, a concept is not the temporal act of thinking but its outcome, the sign or ideal content product of that act. In that vein, Edmund Husserl[1] distinguishes four things about expression and significate:
- The expression, that may clear or obscure, in its physical aspect (for example, our voice).
- The significate, the concept or what is expressed which is something ideal and should not be confused with the expression. It is its representation.
- The object referred by the concept and that should be confused with it. There are concepts without actual objects.
- The facts or whatever is perceived by the senses. These facts may be taken as objects, as it happens with sciences that study nature.
If a rule is a concept, pertaining to the ideal state (the “ought to be”), then a relationship of a particular sort is posited between the rule and human conduct: namely, a relationship of “compliance” or “rightness.” The existence of a rule in the first place posits, first, the reality of what it is called “conduct”, and secondly the possibility that it might comply or not comply.
We have mentioned previously in this blog series that Schreier[2] adapts Husserl’s ideas to the study of law, arguing that there is an error with the empirism because it confuses intuition (i.e. the act of knowledge that has to be done through our senses) with object.
An object and the intuition only agree when the latter converts into object and that can only happen with experimental or empirical sciences. With law, there is only a sign, a significate (a concept) and an object. The intuition (in the sense the way in which somebody gets to know something) cannot be through senses since law refers to an ideal object.
Indeed, this conclusion is accurate under the assumption law is defined as a set of rules or norms (abstract realm in which law shows one of its facets as phenomena). If law is something else (for example, human conduct or what the judges say in their sentences) it can be argued that it is possible to know the law by means of our senses (factual realm in which law shows another facet).
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The “ought to be” logic.
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).
Thursday 03rd June 2021
Dr Jorge Emilio Núñez
Twitter: @DrJorge_World
https://drjorge.world
[1] E. Husserl, Logical Investigations (London: Routledge, 2001), Investigation I, Chapter One.
[2] F. Schreier, Conceptos y Formas Fundamentales del Derecho (México: Ediciones Coyoacán, 2010). For an overview about Schreier, his work and relationship with Kelsen see Stanley Paulson Paulson, “Formalism, ‘Free Law’, and the ‘Cognition’ Quandary: Hans Kelsen’s Approaches to Legal Interpretation,” University of Queensland Law Journal 27:2 (2008): 7-39, 20.
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