Law as multidimensional phenomena [Post 24]

 

Validity and efficacy

Alchourrón and Bulygin state that in legal science there are empirical as well as logical issues.[1] It may seem that law as validity belongs only to the world of rules (where “logical” issues are to be found), and law as efficacy belongs only in the world of facts (where “empirical” issues are concerned). In any case, the relationship between validity and efficacy in the idea of law is “synergetic.” This is to say that although these attributes of “law” are meaningful individually, they capture more about what law is when taken together.

To summarize what has been said already, what law is might appear to be either:

• Rules that are valid, whether or not they are effective; or
• Rules that regulate behavior, whether supposed “valid” or otherwise.

A situation in which valid laws existed but were ineffective, can be described as a state of law having “broken down;” that here laws were only “theoretical”, or were “fictitious.” In this case, the law exists, but does not rule. The full meaning of “law” has clearly not been realized in such a situation.

A situation fitting the opposite description can also be imagined. Here, conduct is effectively commanded, forbidden, and regulated etc., but the governing “rules” are not recognized as “valid.” The possible criteria of validity are of course many, but on whatever chosen grounds, it is imaginable that these rules may not (for example) have been made by way of legitimate process, or they may command the immoral, forbid the legitimate, or regulate that which should not be regulated. Here, again, the full meaning of “law” has not been realized: the arbitrary word of a dictator “is law.”

It seems clear, then, that the true answer to what law is has to be more closely approximated in a situation in which law is both effective and valid. The meaning of “law”, though not of course exhausted by these two concepts, is nevertheless more deficient when one of them is missing.

But is the relationship between these two conceptual components simply one of co-presence in the concept “law”? Or do they in some sense interact, modifying each other? Alexy presents two possible accounts of this relationship, one “restricted” and one “comprehensive”:

“According to the restricted view, what the law is depends exclusively on what has actually been issued and is socially efficacious. It is a matter of social fact. According to the comprehensive view, what the law is depends on what it is correctly taken to be. This view constitutes the participant’s perspective.”[2]

The “restricted” view, that validity depends only on efficacy, implies that socially effective norms may be valid even if they are severely unjust. Only “intolerable” injustice makes an effective norm lose its validity, because in order to be designated “intolerable” it would be clear that the populace was not tolerating it, and that its efficacy was thereby reduced.[3] Such an account of validity Bobbio describes as “reductionistic”[4]—since validity is reduced to efficacy. But on the more “comprehensive” view of validity that Alexy describes, value judgments of another kind are involved.

For Joseph Raz too, the validity of law is not achieved by its efficacy alone.[5]

Bulygin[6] mentions three different ways in which “facts” and “norms” may have a particular relationship: (1) in the case of issuing a norm; (2) in the case of derogating a norm; and (3) (he writes) “[a]nother necessary condition for the validity […] of a norm is according to Kelsen the efficacy of the legal order to which this norm belongs […].”

Previous post:

https://london1701.blogspot.com/2021/06/law-as-multidimensional-phenomena-post_25.html

Next theme:

Validity and efficacy: synergy (available from September 2021).

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 29th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] C.E. Alchourrón and E. Bulygin, Normative Systems (Library of Exact Philosophy, Springer-Verlag Wien,1971), 53.

[2] R. Alexy, “On the Concept and the Nature of Law,” Ratio Juris 21:3 (2008): 281-299, 297 (emphasis added).

[3] Ibid., 282.

[4] N. Bobbio, Teoria Generale del Diritto (Torino: G. Giappichelli Editore, 1993), 31.

[5] J. Raz, “The Identity of Legal Systems,” California Law Review 59:3 (1971): 795-815, 801.

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

Christ Consciousness. 7: The solitary hero and the false prophets

 

The solitary hero and the false prophets

“Alone” and “lonely” sound similar but they are not. “Alone” means to be in fact on your own (i.e. physically, empirically there is nobody but you in a given time and space). “Lonely,” however, implies feeling you are on your own even though you may be with people. While solitude has to do with the outer world, loneliness refers to our inner core.

A simple truth is applicable to both: “as within so without.” You do not attract what you want but who you are. “Friends,” the TV series, is the epitome of a world that glorifies the annihilation of the self by the dependence on others. Yet, despite all that noise around, these characters (like many of us) cannot fill the void inside. Hence, they are not in mutually enriching interdependence but in a situation of need. What do they need from each other? Validation.

It is not strange that the wise agree on this point. On the day of the festival of the unleavened bread, a Jesus surrounded by people told his disciples “all of you will desert me.” (Matthew 26:31; Mark 14:27 NLT). Similarly, Rumi tells us “each single prophet who served God alone stood firm against the whole world on his own.” (Rumi, The Masnavi, Book Two, Oxford: Oxford University Press, 2008, 23).

There are different kinds of love. Romantic love is but a single example. For instance, Disney has started exploring with films like Frozen the love between brothers, sisters, siblings. With time, in particular in the West, it has lost its essence and it has been disguised as the necessary requisite to be defined as a person: if and only if somebody else loves us, we are worth it—the “I” defined by the “other.”

When we go back to the Scriptures, the “love” Jesus talks about is the prime example of what I call Love. The very well-known phrase “love your neighbor as yourself” (Matthew 22:39 NLT) is usually interpreted as giving pre-eminence to the “other” part of the equation. However, paraphrasing RuPaul here “How can you love somebody else if you cannot love yourself?” It all starts with you. Note I do not refer here to the love to God, Allah, the Universe, the Source, the Eternal, the One, the Many (like in every post, the name we use here is irrelevant. It is just a man-made label for communication. Therefore, I use them interchangeably).

Why does it start with you? There is just one reason. Because we cannot give what we do not have, at least not freely. Unsurprisingly, there is what we have nowadays, conditional love, pseudo love or fake love—it just has the appearance of love. Hence, the previous reference to “Friends.”

We are living challenging times. Often, challenging times bring problems as well as opportunities. In chaos, there is as much darkness as there is light. Undoubtedly, there is a proliferation of “false prophets.” Disguised as empaths, gurus, motivational speakers and others, in most cases these people prey on the vulnerable and good-hearted. More than ever we are being asked to trust our connection between our inner core and God, Allah, the Universe, the Source, the Eternal, the One, the Many.

Whoever wants to help you should seek your best even if it means to leave you walking your path alone. If there is any condition attached to their care and help, there is a clear indication they are not acting out of love. Evidently, the condition may be financial. However, there may be more sophisticated and refined ways for these false prophets. Remember your time, attention, company and energy are too precious.

If someone or something is jeopardizing your peace of mind because there is a condition for them to stay with you (in whatever capacity), that is not love. Love has nothing to do with fear because “… perfect love expels all fear. If we are afraid, it is for fear of punishment, and this shows that we have not experienced […] perfect love.” (1 John 4:18 NLT) It is as simple as profound: “only from the heart can you touch the sky.” (Rumi)

As hard as it may seem, sometimes walking alone the path is not as taxing as walking with someone who appears to be sharing our load but, in reality, they are the load itself. Sometimes you have to be the solitary hero in your own story.

Previous post:

Christ Consciousness. 6: Vision, leadership and peace

Available at: https://london1701.blogspot.com/2021/04/christ-consciousness-6-vision.html

Monday 28th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

Pluralism of pluralisms [Post 36]

 

Cosmopolitanism and sovereignty, different contexts and realms

“Cosmopolitanism” and “sovereignty” are complex concepts. Part of that complexity has to do with the multi-contextual nature and plurality of realms in which the phenomena they refer are present.

To recapitulate, by “context” this blog series means the physical space in which agents (individuals, communities and state) interact with each other. The nature of these interactions may me legal, political, factual or of any other kind. Spatially, there are three contexts: local or domestic, regional and international.

Because “sovereignty” and “cosmopolitanism” are conceptual constructions, like any concept, they may refer to the phenomena of reference in different ways; for example, actual facts or ideal elements with or without empirical existence. Any definition of sovereignty includes the idea 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. Therein, we find epistemological, economic or commercial, legal, moral, ethico-theological, political and cultural cosmopolitanism.

As the rest of this blog series about the pluralism of pluralisms present in both sovereignty and cosmopolitanism, we will refer to territorial disputes in order to illustrate what “contexts” and “realms” mean, to characterize them and to comprehend their relevance.

There are several issues at stake in any territorial dispute and some are constant or, arguably, more relevant than others depending on each case and the context of reference—i.e. domestic, regional and international. They may center on any of the elements that characterize a political community—i.e.  territory, population, government and law. Indeed, territorial disputes may be characterized by reference to territorial sub-elements such as strategic location, territorial integrity and natural resources, to name a few. Yet, territorial disputes may be as well based on population—e.g. bordering minorities, refugee’s crisis, common ethnicity, etc. —government and law—e.g. political unification, leader’s prestige, legal entitlement.

As any academic classification, legal and political theories present, conceptualize and consider these issues at stake independently. In the real world, any given territorial dispute is a combination of two or more of these issues. Similarly, legal and political sciences explore these disputes by reference to the either the domestic, regional or international contexts. However, it is when the study about a territorial dispute embraces all the issues at stake and takes into account the several contexts involved that a more accurate view results. Consequently, it is important to think of territorial disputes as multilayer and multi-contextual phenomena with different reasons behind them that have to do with cultural, legal, historical, sociological, geographical, financial, and many other elements present locally, regionally and internationally.

In law, there are empirical as well as logical issues. In political sciences, there are ideal and noni-ideal issues.[1] Current studies in legal and political sciences about territorial disputes center only on the logical (law) and ideal (politics) side or on the empirical (law) and non-ideal (politics) side. However, it is because these studies are partial to purely conceptual analysis or factual exploration of a segment of the respective territorial dispute under analysis—i.e. either territory, population, government or law—in a particular context—i.e. domestic, regional or international—that these studies are incomplete.

Any territorial dispute is a combination of several issues at stake—i.e. in terms of territory, population, government and law—in different contexts—i.e. domestic, regional and international. These issues work in synergy for the initiation and continuation of territorial disputes and may escalate into conflict or settle in a peaceful and permanent agreement. That is to say, synergy implies a particular relationship amongst the members, components or objects of the given whole entity. The individual members, components or objects can work better when working together towards a common goal. Contrarily, the individual members, components or objects can work individually or together against the whole.   In other words, the individual components of the whole can exist on their own, autonomously and independently; however, working together in a synergetic manner may improve their performance in terms of the whole entity (positive synergy) or may work against it (negative synergy).

That is exactly the situation in territorial disputes. Issues at stake can be assessed in their individuality or together, in one or several contexts. However, it is only when a territorial dispute is explored in synergy that it becomes meaningful. To be more precise, the traditional scholarly studies in legal and political sciences center on the same question, the question of territorial disputes. However, legal and political sciences fasten on only one aspect of legal or political reality: on the existential; or an idealistic legal or political aspect, on the essential. The former views only the certainty, the factual power; the latter sees territorial disputes only from the angle of justice and fairness.

It is not that one view or segment in these views is more important than the others. Different studies have simply suppressed one member of the relation in favor of the other. Instead, a more comprehensive analysis should think of an ideal or non-ideal, and empirical or theoretical view of territorial disputes as neither antagonistic nor identifiable, but somehow related as different individual members, components or objects of that whole that may stand in a fruitful exchange with one another provided they are assessed in positive synergy.

Previous post:

https://london1701.blogspot.com/2021/06/pluralism-of-pluralisms-post-35.html

Next theme:

Dimensions, views, time and space(available from September 2021).

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 28th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] In law, Alchourrón and Bulygin clearly state that in legal science there are empirical as well as logical issues. In political science, there is an existent and evolving tension between ideal and non-ideal theory. See C. E. Alchourrón and E. Bulygin, Normative Systems, Library of Exact Philosophy, Springer-Verlag Wien., 1971, 53; A. John Simmons, “Ideal and Nonideal Theory,” Philosophy and Public Affairs 38:1 (2010): 5-36.

“The Stufenbau Yields Legal Powers. Aspects of Hans Kelsen’s Norm Theory” by Dr Stanley Paulson [video]

 

“The Stufenbau Yields Legal Powers. Aspects of Hans Kelsen’s Norm Theory.”

Dr Stanley Paulson

Professor, Co-director Kelsen Research Center Kiel, Hermann Kantorowicz Institute (HKI), Faculty of Law, University of Kiel, Germany.

Juris North 2021 Kelsen’s Roundtables

Roundtable 3:3

Friday 25th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

Law as multidimensional phenomena [Post 23]

 

Efficacy: force and coercion

A legal norm will be effective or in force as long as it is followed by the population to which it is addressed to—at least in a representative number or percentage, a sufficient number of members of that population.[1] Obviously, there will be conduct that deviates from the content stipulated by the norm. But, the rule, legal norm, legal order will also be effective or in force if the competent authority actually applies the corresponding coercive sanction when the antecedent happens—i.e. a broad account of coercion is present whilst a narrow account of coercion may be, depending upon compliance or non-compliance of the subject and actual use of force.

Coercion—narrow account—seems to have a more central role on the factual side of the law. That is to say, if the members of the population do not comply with the norm in a sufficient number or the consequences that ought to follow the antecedent in any valid norm do not happen in a representative number or percentage, that rule or norm is ineffective. So, if the coercive side of the norm or rule does not manifest when the antecedent happens, therein the valid norm or rule loses its force since it is not effective.

For example, if somebody kills somebody else, and the law says “whoever kills ought to be sent to prison,” the killer ought to be sent to prison for that norm or rule to be effective—i.e. the coercive element of the rule or norm has to manifest. If the killer did not go to prison, and therein the coercive element of that norm or rule did not manifest, there would be a non-effective norm.

Similarly, in the case of a contract in which the parties ought to sign in order for the document to be binding. For example, if there was a valid norm or rule stating that “for a purchase to be satisfied the seller and buyer ought to sign.” Consider the case in which somebody sells his house for a price but when reviewing the actual document that was meant to “transfer the property” to the buyer, one of the signatures is missing—either, that of the seller or that of the buyer. This norm or rule is in principle coercive in the sense the conducts of both the buyer and the seller are limited since they ought to sign the contract for the purchase to legally happen—i.e. to be, to exist. Now, if any of these two parties did not sign the contract, there would not be a contract at all. However, if the parties behaved as if there was a purchase even though the contract had not been signed, therein that norm or rule would be non-effective. That is because in addition to the norm or rule being coercive in the sense it limits the behavior of contractual parties by including requirements, the parties ought to comply with these requirements in order for that norm or rule to be actually effective.

Previous post:

https://london1701.blogspot.com/2021/06/law-as-multidimensional-phenomena-post_22.html

Next theme:

Validity and efficacy.

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 25th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] The blog series does not discuss what expressions such as “representative number or percentage” or “sufficient number” mean. For simplicity, the blog series follows Philip Pettit—i.e. less than everyone, but likely to be nearly everyone. See P. Pettit, “Virtus Normativa: Rational Choice Perspective,” Ethics 100:4 (1990) 725-755.

Pluralism of pluralisms [Post 35]

 

Cultural objects

In order to introduce the notion of realms, the previous posts presented different kinds of objects (i.e. ideal, natural, cultural and metaphysical). The argument is that the same object of study may have to do with different realms.

In what is of interest to this blog series, “cosmopolitanism” and “sovereignty” are cultural objects. However, this does not mean that do not have to do with other realms.

The previous post introduced cultural objects, their substrate and sense or meaning. Objects as such are known in a dialectical way, moving from the materiality of the substrate to the experience of its meaning and vice-versa. We understand the substrate by its sense/meaning and we understand the sense/meaning in its substrate (i.e. as the dialectic of a unit of understanding).

The empirical character of this dialectic has to do with both the reality of the substrate and the reality of the experience. Exactly the same happens when the judge passes a sentence. The judge considers the facts of the case in full. Thereafter, the judge assesses the legal meaning of these circumstances. Finally, the judge returns to the case to assess if this meaning corresponds to the facts and so on.

In short, we do not have the intuition of a sense/meaning, but “understand” it because a sense/meaning is something “lived.” The senses/meanings are a matter of plenary life and the intuition of this life is dismembered in the intuition of its sense/meaning. Therefore, understanding as an epistemological act means to “capture” or “apprehend” senses/meanings in objects.  Fundamentally, it is always an understanding by “feeling” or “sensing” and not by the intellect, so this understanding is axiological.

That is why understanding is knowing from within with the intimacy of what is experienced. Knowing from outside, at a distance, as senseless apprehension cannot be articulated in an independent judgment of the subject who judges. That is because the understanding that verifies it is an act of taking position in relation to that the very object of experience and lived by the intuition of a complex cultural object. There is intuition of the substrate by the senses and the axiological intuition.

This intuition has inductive independence from nature, but that same intuition has dialectical dependence to the substrates. When “sense” or “meaning” is taken from the substrate, it is the materiality of the substrate, which excludes multiple possibilities of senses or meanings. For example, a pianist who is playing one piece and is required to interpret another. In the same way, if a judge is assessing a case of homicide, his sentence cannot refer to the legislations concerning civil contracts.

The same cannot be said the other way around, that axiological meaning excludes multiple substrates because they are not two equivalent instances that are inversely parallel. A possible axiological sense excludes other possible senses. For example, if the axiological judgment is about beauty, the most beautiful interpretation excludes the others and, if it is about justice, the most just interpretation excludes the others, and thus with any other value.

In art, we speak of a freely emotional understanding in the sense the meaning appears in the emotional experience without anything covering it.  The attention of the conscience directed to the object is not covered by anything foreign to the emotion itself, therefore giving rise to another experience distinctly from the purely emotional. The emotion that is the work of the artist “understands” and that understanding is an emotion free of anything binding it.  In morality, we speak of an intimately moved understanding. The meaning appears in the emotional experience covered by the own intimacy of the subject that creates it so that the own intimacy integrates the circumstance of the subject.

With regard to law the intent of the legal conscience is loaded with the uses and practices with which the judges have lived and with which they usually live, the cases similar to the one that is assessing. This particular “meaning” is based experientially on those uses and practices. In addition to the uses and practices that always gravitate in the background, the predominant experiential circumstance is the mere words with which the body that created the standard has given it certain expression, whether this is legislation or common law based.  Individuals and organs are bound by the statements contained in the normative texts.

This way of understanding cultural objects is of particular importance when assessing cosmopolitanism and sovereignty because their particular “meaning” is based experientially on the uses and practices of several different peoples around the world. In turn, these peoples have several different backgrounds that will suggest a different “understanding” of what appears to be the same phenomena.

The next post will consider how sovereignty and cosmopolitanism understood as objects can be assessed differently depending on contexts and realms.

Previous post:

https://london1701.blogspot.com/2021/06/pluralism-of-pluralisms-post-34.html

Next theme:

Cosmopolitanism and sovereignty, different contexts and realms.

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 24th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

Law as multidimensional phenomena [Post 22]

 

Positivity and law

Kaufmann states in relation to law:

“The polarity of natural lawfulness and legality expresses the relation of the validity of law to its efficacy. We have here the key to an understanding of both main themes of legal philosophy: justice and certainty; law and power. Basically, they center on one and the same question, the question of the ontological structure of law. The monistic theories of law fasten on only one aspect of legal reality: positivism, on the existential; idealistic natural law, on the essential. The former sees only the certainty, the efficacy, the factual power of the norm; the latter sees law only from the angle of justice, substantive content and material validity. Positivism regards the validity of the norm to be result of its efficacy; idealistic natural law regards validity as the criterion of the efficacy. The problems concerning “law and power,” “justice and certainty,” are finally insoluble for both views; each has suppressed one member of the relation in favour of the other. […] validity and efficacy […] are neither identifiable nor antagonistic, but are related as polar forces and so stand in a fruitful exchange with one another.”[1]

Efficacy (or factual existence) has to do with the relationship between human conduct and a norm. Legal norms are effective if their addressees follow them. Yet, if law is the result of what the judges do when deciding a case, a legal norm is effective if and only if the courts apply that norm to facts. Many legal philosophers agree with the first notion.[2]

The word “efficacy” signifies the same as what is meant in the purity of legal philosophy by saying that norms are in force: the effective existence of a conduct in compliance with that addressed by the norms. For one version, efficacy or facticity is the fact that the effective conduct agrees with its representation given by the norms; thus, the norms are effective norms. The second version has to do with realism. For example, Alf Ross maintains that although individuals deduce their instructions from norms, “the real content of a norm of conduct is a directive to the judges” and therefore, it is in their decisions where “we must seek the efficacy that is the validity of law.”[3]

This distinction between efficacy understood as compliance with the norm by their addresses and application of the law by the courts is what Ferrajoli classifies as “primary” and “secondary.”[4]

In turn, for Kelsen a norm is effective when its addressees comply with it and in case they do not, the courts proceed. According to Kelsen the efficacy of law means that the norms are actually obeyed and applied.[5] That is to say, efficacy results a factual, empirical question or a question of facts. The facts that concern the legal world are those of human beings in relation to their behavior or conduct. Thus, a norm or legal order will be effective provided it is complied with by the community to which it is addressed, and provided its members behave according to what is established and do not do what is prohibited.

Previous post:

https://london1701.blogspot.com/2021/06/law-as-multidimensional-phenomena-post_18.html

Next theme:

Efficacy: force and coercion.

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 22nd June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

---

[1] A. Kaufmann, “The Ontological Structure of Law,” Natural Law Forum, Notre Dame Law School Paper 95 (1963), 79-96, 81-82.

[2] P. Navarro and J. Moreso, “Applicability and Efficacy of Legal Norms,” Law and Philosophy 16 (1997): 201-219, 201.

[3] A. Ross, On Law and Justice (London: Stevens & Sons Limited, 1958), 33-35.

[4] L. Ferrajoli, “Principia Iuris. Teoria del Diritto e della Democrazia,” in Teoria del Diritto (Roma-Bari: Laterza,2007), 451-252.

[5] Hans Kelsen, General Theory of Law and State (Cambridge, Massachusetts:  Harvard University Press, 1949), 39.

Pluralism of pluralisms [Post 34]

 

Cultural objects: dialectical empirical (method) and understanding (epistemological act)

The previous posts 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.

Clearly, “cosmopolitanism” and “sovereignty” are cultural objects. However, this does not mean that do not have to do with other realms. The following paragraphs will introduce a more detail account of cultural objects at large. Thereafter, the next posts will refer to cosmopolitanism and sovereignty using these different realms as points of reference.

Cultural objects (e.g. law) exist in the experience and are valuable axiologically speaking. Consider, for example, the Venus of Milo in the Louvre Museum. The value of these objects appears as a quality. In the case of the Venus of Milo beauty only participates as its axiological value.  We say that it is beautiful in a similar way to how we say it is white, but we only refer to its whiteness since such is the color of its marble and, therefore, we can demonstrate empirically through our senses.

It possible (and important) to distinguish between “substrate” and “sense” or “meaning” in cultural objects. Substrate is related to the material beneath or pre-existing human activity. That raw material has meaning (sense) depending on the psychological intention that the sculptor had when making the Venus of Milo.[1] The sculpture is the objectified intention in the cultural object. By its own definition, “cultural knowledge” is a knowledge about values. Every cultural object consists of a substrate and a sense (or meaning) in synergy.

The intuition of the cultural object is double: the sensitive intuition of the substrate and the emotional/rational intuition of the value. In other words, the substrate is a datum of perception external to the substrate, directly captured by, for example, our sight, our hearing or our touch, while the value is directly captured by our reason or emotions. The sense or meaning of a cultural object is the objectified valuation of the substrate. 

Beyond the substrate, cultural objects refer to the object itself as well as the behavior or human conduct applied to it. Therefore, the epistemological act in cultural objects is peculiar because it is not an act of apprehension, but an act of taking a position by the “knowing subject.” For this reason, with regard to the cultural object, it implies always “seeing” them with some position (whether we acknowledge this or not, whether we are aware, self-conscious or not). The epistemological act or act of consciousness is called understanding.  To understand is to know the meaning of something in its “being” when it is being.

Every valuation contains self-awareness, unlike what happens with intellection and explanation. That is to say, every valuation of something when it assigns some axiological quality also contains the consciousness of value with its reference to the subject by whom it is valued.  For example, when we see a landscape with our physical eyes, the consciousness of what is seen does not integrate with the consciousness of seeing. In fact, there is a field and nothing more, requiring an act of reflection to add to the seen the awareness of seeing.  On the other hand, if we value that same landscape as beautiful, we feel, contemplating it as a presence as integral spectators because its beauty verifies our spirit. 

The suitable method to know a cultural object is the dialectical empirical method, since this is what is constituted on the epistemological act of understanding. Epistemological dialectics in general is the synthesis carried out by the spirit as what spontaneous activity and characteristic of a thesis and a hetero-thesis based on a mutual totalizing implication and it does not need to be an antithesis like Hegel suggested. The antithesis is only a particular case or a peculiar modality of hetero-thesis. The dialectic in the epistemological sense that we are talking about here has nothing to do with the dialectic in the formal sense that will be discussed later, for example in the Pure Theory of Law. In this way, we have access to cultural objects since our understanding circulates from the substrate to the meaning and vice versa.

Previous post:

https://london1701.blogspot.com/2021/06/pluralism-of-pluralisms-post-33.html

Next theme:

Cultural objects (cont.)

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 21st June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

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[1] I refer to the author’s intention only for simplicity. There are other views such as the ones from the audience. There is a case for a variety of interpretations or “unlimited semiosis.” See Stella Bullo, Evaluation in advertising Reception: A Socio-Cognitive and Linguistic Perspective (Springer 2014).

Law as multidimensional phenomena [Post 21]

 

Kelsen and logic

Kelsen’s Pure Theory of Law is formal juridical logic. All the themes deal purely and simply with logic and, more precisely, they refer to the “ought to be” logic not the logic of “being.”

Kelsen starts with the norm as a scheme of interpretation[1] (or knowledge). The norm in its logical scheme “if A ought to be B” is in parallel with natural law and its own logical scheme, “if A is, B is.” Kelsen’s norm, however, does not describes but “is the meaning of an act by which a certain behavior is commanded, permitted or authorized.”[2]

The “ought to be” as imputative function is different from the declarative function “is.” In Kelsen’s words:

 “In two statements, ‘the door is being closed’ and ‘the door ought to be closed,’ the closing of the door in the former statement is pronounced as something that is, in the latter as something that ought to be. The behavior that is and the behavior that ought to be are not identical, but they differ only so far as the one is and the other ought to be. Is and ought are two different modi.”[3]  

Most of the rest of Kelsen’s Pure Theory has to do with analyzing the relationship of multiple norms in the sense they have imputative relations with each other. Therein, Kelsen considers the legal order as a whole. The different norms have coherence as a scheme of interpretation because this way of thinking explains why and how, by acknowledging their interrelations, work as a whole.

In an infamous move for legal philosophers, Kelsen seems to maintain contradictions. However, the seeming contradiction disappears when considering Kelsen’s theory as juridical logic. Consider Kelsen’s words:

“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.”[4]

If, for example, the legal order stated “you ought to do whatever you wish” and, consequently, there would not be any logical possibility of disagreement between norms and human conduct, the contradiction would be within the legal system itself because such a legal system would refer to an individuation or specification that would not take place. This issue has to do with formal juridical logic.

In turn, to ask for a minimum of efficacy in order to be able to deal with validity has to do with transcendental juridical logic because it is referred to the object, that is human conduct. It means that the scheme of interpretation does not count as knowledge if it does not correspond with an object. In this case, there is no logical possibility or impossibility but an interpretation guided by an object in its modus of existence.

Previous post:

https://london1701.blogspot.com/2021/06/law-as-multidimensional-phenomena-post_15.html

Next theme:

Positivity and law.

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 18th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world

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[1] Hans Kelsen, Pure Theory of Law (New Jersey: The Lawbook Exchange. Ltd., 2009), 3.

[2] Hans Kelsen, Pure Theory of Law (New Jersey: The Lawbook Exchange. Ltd., 2009), 5.

[3] Hans Kelsen, Pure Theory of Law (New Jersey: The Lawbook Exchange. Ltd., 2009), 6.

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