Law as multidimensional phenomena [Post 3]

Law as science of realities

Legal science is a science of realities and, therefore, a science of experience. To be more precise, law is human-made[1] and, therefore, law is a science of human cultural experience and not of natural or caused experience.

The famous Indian story “The Blind Men and the Elephant” illustrates our current understanding of law. John Godfrey Saxe’s (1816-1887) version[2] of Blind Men and the Elephant:


“It was six men of Indostan,
To learning much inclined,
Who went to see the Elephant
(Though all of them were blind),
That each by observation
Might satisfy his mind.

The First approach’d the Elephant,
And happening to fall
Against his broad and sturdy side,
At once began to bawl:
“God bless me! but the Elephant
Is very like a wall!”

The Second, feeling of the tusk,
Cried, -“Ho! what have we here
So very round and smooth and sharp?
To me ’tis mighty clear,
This wonder of an Elephant
Is very like a spear!”

The Third approach’d the animal,
And happening to take
The squirming trunk within his hands,
Thus boldly up and spake:
“I see,” -quoth he- “the Elephant
Is very like a snake!”

The Fourth reached out an eager hand,
And felt about the knee:
“What most this wondrous beast is like
Is mighty plain,” -quoth he,-
“‘Tis clear enough the Elephant
Is very like a tree!”

The Fifth, who chanced to touch the ear,
Said- “E’en the blindest man
Can tell what this resembles most;
Deny the fact who can,
This marvel of an Elephant
Is very like a fan!”

The Sixth no sooner had begun
About the beast to grope,
Then, seizing on the swinging tail
That fell within his scope,
“I see,” -quoth he,- “the Elephant
Is very like a rope!”
And so these men of Indostan
Disputed loud and long,
Each in his own opinion
Exceeding stiff and strong,
Though each was partly in the right,
And all were in the wrong!

MORAL,

So, oft in theologic wars
The disputants, I ween,
Rail on in utter ignorance
Of what each other mean;
And prate about an Elephant
Not one of them has seen!

The previous post introduced briefly two accounts of law: a factual conception of law a conceptual conception of law. The multidimensional theory of law[3] differs from both rationalism and empiricism. The former maintains that the object to be known by the jurist is the norm and that positive law is intuited or captured differently, not by our five senses but by our reason or intellect. For this view, 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 reality. Consequently, legal 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. These facts may refer to the rules they originate from or the rules they apply to. 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 Judges and their decisions. For rationalism, the law is a norm in all its possible significance (e.g. a negative sanction applied by the Judge to a particular case). For empiricism, however, it is a psychological fact with its circumstantial socio-environmental relationship.

The multidimensional analysis of law accepts that norm and facts are not at odds. The object to be known by the jurist is not the norm or the naked fact, but human behaviour centre 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 science the object of knowledge of the jurist is not the norm, but human behaviour in its interference or interrelations with others because legal norms are only concepts with which that conduct is known. Norms are, therefore, simply the concepts with which we think and understand that behaviour.  In that sense, norms are ideal objects of a logical type like Kelsen’s Pure Theory of Law.

Just as natural experience puts into physics something that does not come from the mere logical structure of knowledge of nature, the science of law as a science of realities contains a difference from the merely logical side. The difference comes directly and immediately from human experience.

Contrary to legal empiricism, a multidimensional view of law considers human behaviour 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 behaviour constitutes an experience of freedom where the creation of something axiologically original emerges at every moment.

This theory accepts normative logic such as, for example, Kelsen’s Pure Theory of Law that shows us that norms are precisely a concept. It also adds the specific intuition of law as the intuition of freedom and therefore axiological intuition as an additional of knowledge to add to the legal logical structure on behalf of human experience.

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Next theme:

Law 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).

Thursday 29th April 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

https://drjorge.world


[1] The author uses intentionally gender-neutral language. The paper will not include discussions about natural law theories and how or by whom law is created.

[2] In All About Philosophy, available at  https://www.allaboutphilosophy.org/blind-men-and-the-elephant.htm accessed 29/04/2021.

[3] Carlos Cossio, La Teoría Egológica del Derechi y el Concepto Jurídico de Libertad (Argebtina: Abeledo-Perrot, 1964).

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