Thursday, 17 June 2021

Pluralism of pluralisms [Post 33]

 


Methods and epistemological act

When different disciplines go beyond simple concepts and explore more complex objects such as cosmopolitanism and sovereignty it is relatively easy to foresee different and often opposite positions about the same issue making them more intricate than they are.

Consequently, the lack of peaceful and permanent resolution of some apparently never-ending problems such as territorial disputes is unsurprising.

The previous post characterized briefly different kinds of objects (i.e. ideal, natural, cultural and metaphysical) to offer a basic notion of each of them.

It is important to note that the same object of study may have to do with different realms. For example, “law” has to do with at least two realms: norms and facts.[1] Any reference to law and its basic defining elements immediately includes, for example, norms, human conduct, crime, punishment and a few others. Similarly, each of these elements exists in at least two realms.[2]

“Norms”, “human conduct”, “crime”, and “coercion” may refer to abstract legal terms, and may describe empirical entities or their attributes. Norms and facts have to do with law as a whole, and with each of its particularities. Yet norms and facts are not the same. Hence, using the term “law”, to refer either to an abstract concept or to factual elements of legal and political discourse, means applying the same term but relying on different meanings—i.e. using the same word to refer to slightly different conceptions. What appears to be a unitary concept actually invokes an ambiguity.

From the above brief account, therefore, it should different objects (ideal, natural, cultural and metaphysical) have their own peculiar characteristics. Moreover, the same object may exist in different realms and, consequently, be explored from different angles. The paragraphs below will introduce each individual kind of object and the particular method and epistemological act appropriate to them.

Ideal objects: Deductive rational (method) and intellectual intuition (epistemological act)

Truths concerning ideal objects such as in logic and mathematics are obtained by a deductive rational method. By deducing from one or more general truths these disciplines draw from them a particular truth. The truths of reason are consistent. In other words, they are not just the way they are.  But they cannot stop being like this, being impossible for them to be otherwise. For example, 1 + 1 = 2 and it cannot be otherwise. The truth is in fact assertive. That is to say, it is as it is only because this is how things happen. There is no contradiction, however, in thinking that it could have been different.

The act of consciousness or epistemological act with which the deductive rational method is constituted is called intellectual intuition or intuitive intellection.

There is sensible intuition (through our five senses) and intellectual intuition (through our intellect). When we talk about intuition as a way to apprehend knowledge, there is a direct and immediate contact between consciousness and the object to be known. This is a non-conceptual apprehension of the object so that it occurs not because the subject thinks about it. Rather, it happens because the object is “in front” of the subject. For example, a blind individual at birth cannot be made to know what blue is as such because this is sensible intuition. There is too and intellectual intuition when the object to be known is ideal. The subject apprehends the object not by means of his senses but his intellect. Sensible and intellectual intuition are something personal and, therefore, much incommunicable, not transmittable unlike the concept (meaning) that can be the same for all minds. For example, the concept of “mammal” or “angle” can be the same for all of us but the intuitive verification of that which is mentioned with these concepts has to be apprehended by our senses or intellect.

Natural objects: Inductive empirical (method) and explanation (epistemological act)

Natural objects, as studied by the various sciences of nature, have to do with truths obtained by the inductive empirical method. Induction is to start from the facts and obtain from them by abstraction and generalization a principle that is conceptual and general. This process goes from the particular to the general and from the concrete to the conceptual.  It is based on natural experience as a conformity with experience itself, which is something given and created once and for all, since all the variations and transformations that we observe in phenomena are the appearances of that identity and are known based on an invariable casual constancy.

The epistemological act or act of consciousness with which the medium of the inductive empirical method is constituted is called explanation. Explaining something is “disintegrating” the object in its elements by analysis. It is also referring to something as an effect of something else that is its cause. Explanation is a neutral act. The subject does not go into the object and takes no position about it.

So far, we have:


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Cultural objects, their methods and epistemological act

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 17th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world


[1] I leave aside intentionally and for future research the third realm: values, or the “axiological” side of law.

[2] I understand law as phenomena existing in three realms: norms, facts and values (deontology, ontology and axiology). I leave the study about values and law for future assessment.

Academic Research I [video]

 


Academic Research I

Academic search engines and sources.

Research design and methods.


Wednesday 16th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

Tuesday, 15 June 2021

Law as multidimensional phenomena [Post 20]

 


Transcendental juridical logic

In ontology, the attention centers on the object of study by means of different methods and the appropriate epistemological act. In juridical ontology, the object for some scholars is a “norm” while for some others is “human conduct.”

In one case or the other, for transcendental logic the object is given by the particular concepts relevant to the science of reference. As this blog series has already explained, the concept is something ideal and should not be confused with the expression. It is its representation.

While formal logic is interested in the way in which we “think” about an object or the structure of that “thinking” transcendental logic is based on the object itself. Consider two statements: “2+2=4” and “all metals conduct heat.” Formal logic would reduce both statements to the same formula “S is p” while transcendental logic acknowledges them as different, the former being intellectual intuition and the latter being an explanation or description. In that sense, formal logic is a logic of classes (analytical and related to classifications) and transcendental logic has to do with relationships of different kinds referred to the object in particular (synthetic and constitutive).

Transcendental logic is guided by the way in which the object exists. For example, while objects in mathematics are ideal and not apprehensible by our five senses empirically, natural objects exist empirically in time and space. This difference in relation of the way in which objects “are” is an existential reference because it has to do with its way or mode of existence.

For juridical logic, the object may be a legal norm. If there is an act of intellectual intellection with regard the legal norm purely interested in the act itself and its structure we are dealing with formal juridical logic. Conversely, if we center the attention on the legal norm itself (not in the way we think the legal norm) we are in presence of transcendental juridical logic.

The distinction is important in legal philosophy. For instance, Kelsen’s theory has been questioned because of its apparent contradictions. For Kelsen, even though validity and efficacy are different things, there is a certain relationship of dependence between validity and efficacy. It is worth pointing out that Kelsen is not claiming that validity is nothing other than efficacy,[1] but rather that efficacy “is a condition of validity; a condition, not the reason of validity”:[2]

“there is a certain connection between the legal “ought” and the “is” inasmuch as a general legal norm, in order to be regarded as valid, must not only be posited through an act, an “is”, but must also be efficacious to a certain degree, that is, must on the whole actually be applied and complied with. A general norm that is not applied and complied with at all is not regarded as valid; and it is a nonsense to posit a norm prescribing how one ought to behave when it is known from the outset that the behavior in question must ensue as a matter of natural necessity. There must exist the possibility of behavior that conflicts with the norm. Therefore validity cannot be identified with efficacy.”[3]

The seeming contradiction disappears when considering Kelsen’s theory as juridical logic. The same dependence Kelsen maintains between validity and efficacy is the same dependence we can find between the concepts of “horses” and “unicorns.” They are useful or not for a zoologist because in the former case they exist in reality and in the latter, they do not.

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Kelsen and 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).

Tuesday 15th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world


[1] G. Hughes, “Validity and the Basic Norm,” California Law Review 59:3 (1971): 695-714, 698. See also Hughes 1971, 700, fn. 13; and M.S. Green, “Hans Kelsen and the Logic of Legal Systems,” Alabama law Review 54:2 (2003): 365-413, 387, fn. 83. Hughes and Green refer to Hart’s distinction between the internal aspect and the external aspect of rules. H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1997), 56.

[2] Hans Kelsen, General Theory of Law and State (Cambridge, Massachusetts:  Harvard University Press, 1949), 42 (emphasis added).

[3] Hans Kelsen, “The Concept of the Legal Order,” The American Journal of Jurisprudence 27:1 (1982): 64-84, 66.

Monday, 14 June 2021

Pluralism of pluralisms [Post 32]

 


Science as culture: understanding different objects and methods

A multidimensional view considers human behavior is an object of experience radically different from that of natural objects. Broadly, objects of study may be ideal, natural, cultural and metaphysical. There is a distinction, however, in the way different objects are apprehended (i.e. known) by a subject.

More specifically, each kind of object requires a specific methodology for its comprehension and a particular way to articulate the relevant knowledge. Furthermore, the same object may offer different angles depending on the realm of reference. For example, law for a unidimensional view such as rationalism may be defined and characterized as “norms” while for another unidimensional view such as empiricism law is defined and characterized as “human conduct.” A multidimensional view considers all these different views and accepts they may “exist” in different realms (i.e. ideal, natural, cultural and metaphysical). Depending on the realm of reference, therefore, different sciences and scholars from the same discipline may refer to the same object but from a different standpoint.

Without an acknowledgment of the aforementioned standpoint or realm of reference, it is common to see in scientific work different views and conceptions of the same object and seemingly unresolvable discrepancies. However, these discrepancies have to do with the scientific point of view that does not acknowledge its a priori methodological choice rather than the object of study itself.

When different disciplines go beyond simple concepts and explore more complex objects such as cosmopolitanism and sovereignty it is relatively easy to foresee different and often opposite positions about the same issue making them more intricate than they are. Consequently, the lack of peaceful and permanent resolution of some apparently never-ending problems such as territorial disputes is unrusprising.

The following paragraphs characterize briefly different kinds of objects (i.e. ideal, natural, cultural and metaphysical) to offer a basis notion of each of them.

Objects: ideal, natural, cultural and metaphysical

Ideal objects are not real. That is, they simply are but do not properly exist empirically. They are not in the experience (not apprehensible through the senses), they are timeless and they are neutral to value judgments (they do not imply any axiological qualification). Examples of ideal objects are found in logic and mathematics.

The natural objects studied by the various sciences of nature are for their part real, they have existence, they are in the experience, they are in time and they are neutral to value judgments. Their being is not good or bad, just, unjust, beautiful, or ugly, useful and useless. Consider a stone or a bird and it is possible to verify in both cases all these characteristics with our senses. To claim there is beauty in flowers and birds is not logical because it is not, for example, a botanical or zoological property. The landscape, for example, does not exist by itself but integrated by the viewer as a portion of qualified nature. 

Cultural objects or goods created in some way by humans acting according to their volition are themselves real, they are in the experience, they are in time and they are valuable with a positive or negative sign such as fair or unfair, beautiful or ugly, useful or useless. Their properties can qualify their being and they must always have at least one class qualification. 

Finally, metaphysical objects are real, they exist, they are not in experience and they are valuable. For example, God who is conceived as a reality and the highest goodness is not in the experience, since He cannot be seen anywhere, nor can it be accessed through any other of our senses.

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Methods and epistemological act.

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).

Monday 14th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

Friday, 11 June 2021

Pluralism of pluralisms [Post 31]


 

Rationalism and empiricism

Disciplines like law, political science and international relations are sciences of realities and, therefore, sciences of experience. To be more precise, they are human-made[1] and, therefore, they are sciences of human cultural experience and not of natural or caused experience.

The previous post introduced briefly two accounts of cosmopolitanism and sovereignty: a factual conception and an ideal conception. The multidimensional theory[2] differs from both rationalism and empiricism. The former maintains that the object to be known is ideal and, therefore, it is not apprehended by our five senses but by our reason or intellect. For this view, for example, legal science would be a science of ideal objects because norms are known by using our intellect (as we do with the objects of mathematics) but they are not perceived by our five senses. 

The empiricism opposes this ideal view of law and accepts its inter-socio and psychological realities. Consequently, knowledge is based on what the sociological or psychophysical experience reveal. Empiricism does not recognize any other contact with experience than that by means of sensible intuition. This way of knowing helps us understand the nature with which legal knowledge dissolves the distinction between the knowledge of our data by reference to another event that occurs. For example, by interpreting the law it may be possible to know the real intention of those who are sanctioned based on the mere link of existence present between the fact and the law. 

Consider a state’s declaration of independence. For rationalism, law may be interested in the document itself and its formal elements (e.g. signatures). For empiricism, however, political science may be interested in circumstantial socio-environmental elements such as the relationship between the Empire and the former colony.

The multidimensional analysis accepts that ideal or abstract elements and facts are not at odds. The object to be known by the jurist, political scientist or expert in international relations is not the norm or the naked fact, but human behavior center of legal norms.

The view focuses on a particular angle in the same way that the object of knowledge of the astronomer are the stars and not the relevant laws. This does not mean that, for example, Newton’s laws are not of use to the astronomer. These laws are concepts, intellectual constructions by which it is possible to know the stars.

Similarly, for legal and political sciences and international relations the object of knowledge is not either the norm or the fact, but human behavior in its interference or interrelations with others. Abstractions such as norms and concepts are, therefore, simply the means with which we think and understand that behavior.  In that sense, for example, legal norms are ideal objects of a logical type like Kelsen’s Pure Theory of Law.

A multidimensional view considers human behavior is an object of experience radically different from that of natural objects. While natural objects constitute an experience of necessity governed by the relationship between cause and effect, human behavior constitutes an experience of freedom where the creation of something axiologically original emerges at every moment.

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Science as culture: understanding different objects and methods.

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).

Friday 11th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world


[1] The author uses intentionally gender-neutral language.

[2] See the blog series Law as multidimensional phenomena available at https://drjorge.world/2021/04/27/law-as-multidimensional-phenomena-post-1/ accessed 11/06/2021.

Thursday, 10 June 2021

Law as multidimensional phenomena [Post 19]

 


Validity

The blog series introduced various objects of study that exist in different realms: ideal, natural, cultural and metaphysical. In this context, law as an object of study of legal science may be defined and characterized in different fashions as, for example, legal norms or human behavior of a certain kind. Therefore, we may center the attention on the two realms between which the meaning of “law” is disputed: the world of facts; and the world of norms, or rules. Consequently, we may apply formal juridical logic or transcendental juridical logic to refer to one of the other understanding of law.

In order to show how law may be in the rules as well as in the facts and how these different understandings condition the way in which we study and refer to law, the blog series introduces “validity.” More precisely, the focus moves now to two essential meanings of “law” as efficacy and validity in order to demonstrate that both are significant, but in different realms; and both are inseparable from the meaning of “law.” “The” meaning of “law” must recognize its different aspects (e.g. the rules and the facts, validity and efficacy) are all important, and indeed synergetic.

As any term, “validity” is potentially vague. And that has to do with the “open texture” of law. Bulygin is clear in that there is no consensus among scholars about the exact meaning of this rather elusive word.[1]

Any legal order is constituted by valid legal norms or rules.[2] Kelsen begins with this matter arguing that the validity “of a norm is to express first of all simply the specific existence of the norm.” (Kelsen 1992, 12) In principle, defining existence would eliminate every hesitation about what validity means. Nevertheless, it is true, as Bulygin maintains, that “Kelsen says repeatedly that validity is the specific existence of norms. But […] the term ‘existence’ is in his use at least as ambiguous as ‘validity’.”[3]

Bulygin[4] finds four different conceptions of existence: a) factual existence; b) membership; c) existence as validity; d) formal existence. So, it seems that validity has different meanings; that Kelsen defined validity in terms of existence; and that existence itself has several other meanings too. If determining the meaning of validity was complex, now the enterprise becomes cumbersome.

To assume that a legal norm is valid when it exists and that its existence depends on a simple aspect, its creation, means that there are no factual or empirical questions because these are the logical boundaries of law. More specifically, if a legal norm is created following a given procedure and by a competent authority, with its basic yet fundamental content congruent to a superior norm that is valid, with these criteria all aspects of validity (formal and material) are included. Whether these norms or rules must include coercion in order to be considered legally valid is a separate, additional issue.[5]

Whether the valid legal norm is effective or not escapes formal juridical logic. A valid norm or rule is that one that is (i.e. exists) in a legal order. In other words, a rule is valid if and only if it has been created following the procedure, by the authority, and in tune with the content determined by a norm or rule that is superior, regardless of including coercion—or at least, coercion sensu stricto.

At the same time, by creating a new valid norm or rule part of what used to be independent, autonomous human conduct is now somehow limited by the boundaries determined by this new valid norm or rule—i.e. coercion by default. If we now wanted to explore law as efficacy we would be dealing with transcendental legal logic.

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Transcendental juridical 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 10th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world


[1] Eugenio Bulygin, “An Antinomy in Kelsen’s Pure Theory of Law,” Ratio Juris 3:1 (1990): 29-45.

[2] H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1997), 124.

[3] Eugenio Bulygin, “An Antinomy in Kelsen’s Pure Theory of Law,” Ratio Juris 3:1 (1990): 29-45.

[4] Ibid. Wil Waluchow, “Four Concept of Validity: Reflections on Inclusive and Exclusive Positivism,” in Matthew Adler and Kenneth Einar Himma, The Rule of Recognition and the U.S. Constitution (Oxford, Oxford University Press, 2009), 123-144. Waluchow presents four concepts of legal validity: 1. Legal validity as existence; 2. Systemic validity; 3. Systemic moral validity; 4. Moral validity.

[5] Jorge E.Núñez, “The Many Forces in Law: Rational, Physical and Psychological Coercion,” in Nicoletta Ladavac and Christoph Bezemek, eds., The Normative Force of the Factual (Switzerland: Springer, 2019), 135-149.

Wednesday, 9 June 2021

Pluralism of pluralisms [Post 30]

 


Realms

Both sovereignty and cosmopolitanism are conceptual constructions. Like any concept they may refer to, for example, actual facts or ideal elements with or without empirical existence. What appears to be the same very basic concepts in legal and political sciences and international relations are still discussed globally. These discussions seem to be centred on and disagree about the same concepts, in actual terms they are centred on conceptions of these concepts and therein the disagreement in their hermeneutics.

There are many definitions, views, and conceptions of sovereignty.[1] The differences between these definitions or conceptions have to do with the frame of reference. For example, depending on the legal or political perspective, “sovereignty” may mean power or imply authority. Similarly, sovereignty can be viewed as internal or external, and as an attribute of a person, a body, a state or a supranational entity.

Bodin and Hobbes coined in the early Modern Age the current scholarly understanding of the concept of sovereignty. To illustrate the evolution of the term, a classical and a current definition of “sovereignty” follow:

Aieltie or Sovereignty is the most high, absolute, and perpetual power over the citizens and subjects in a Commonwealth…[2]

A Supreme authority in a state. In any state sovereignty is vested in the institution, person, or body having the ultimate authority to impose law on everyone else in the state and the power to alter any pre-existing law…In international law, it is an essential aspect of sovereignty that all states should have supreme control over their internal affairs…[3]

Any definition of sovereignty includes the concept of the highest, supreme, absolute authority in a territory and over a population. Within a territory, it means that lawmakers—i.e. the government—have the exclusive prerogative to create laws for these people. Externally, any other agent has the obligation not to interfere. From this very brief characterization, it is self-evident that sovereignty refers to normative elements such as national legal order and international legal agreements as well as factual ones such as territory and population.

In the same vein, unsurprisingly, scholarly literature uses the word “cosmopolitanism” very loosely.[4] Claimed to start in Ancient Greece with Diogenes labeling himself as “citizen of the world” but, according to the Stoics, without giving up identifying local roots, the term suggests identification with different groups (such as family, neighborhood, city, state, region, world).[5] Arguably, it is Kant who fathers the concept in modern times. In his Perpetual Peace scholars from different disciplines find epistemological, economic or commercial, legal, moral, ethico-theological, political and cultural cosmopolitanism.[6]

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Rationalism and empiricism.

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).

Wednesday 09th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world


[1] For an extensive analysis on different views, conceptions and historical evaluations of “sovereignty” see Jorge E. Núñez, Territorial Disputes and State Sovereignty: International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020), chapter 3 and Jorge E. Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor & Francis Group, 2017), chapter 2. For the latest on “sovereignty” see Christian Volk, “The Problem of Sovereignty in Globalized Times,” in Law, Culture and the Humanities (February 2019); Neil Walker, ed. Relocating Sovereignty (London and New York: Routledge, 2018); Kirby Brown. “Sovereignty,” in Western American Literature 53, no. 1 (2018): 81-89; G. Picker, Sovereignty Beyond the State: Exception and Informality in a Western European City (Int. J. Urban Reg. Res, 2019); and others.

[2] Jean Bodin, The Six Bookes of Commonweale (Impenfis G. Bishop 1903), 84.

[3] Elizabeth A. Martin and Jonathan Law, A Dictionary of Law (Oxford University Press 2006).

[4] Cali goes as far as characterizing cosmopolitanism as an umbrella of ideas. See Basak Cali, “On Legal Cosmopolitanism: Divergences in Political Theory and International Law,” Leiden Journal of International Law 19:4 (2006): 1149-1164, 1150.

[5] Martha C. Nussbaum, “Patriotism and Cosmopolitanism,” in Joshua Cohen, ed., For Love of Country: Debating the Limits of Patriotism (Boston: Beacon Press, 1996), 2-17; Thomas Kemple, “Mannheim’s Pendulum: Refiguring Legal Cosmopolitanism,” University of California Irvine Law Review 4:1 (2014): 273-296, 275.

[6] Georg Cavallar, “Cosmopolitanisms in Kant’s Philosophy,” Ethics and Global Politics, 5:2 (2012): 95-118, 98.