Law as multidimensional phenomena [Post 7]

Cultural objects (cont.)

The previous post introduced cultural objects, their substrate and sense. 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 and we understand the sense 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 sense of these circumstances. Finally, the judge returns to the case to see if this sense corresponds to the facts and so on.

In short, we do not have the intuition of a sense, but “understand” it because a sense is something “lived.” The senses are a matter of plenary life and the intuition of this life is dismembered in the intuition of its sense. Therefore, understanding as an epistemological act means to capture senses in goods.  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 announced 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” 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 a work of the artist understands, whoever observes the work 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.

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Phenomenological view.

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).

Saturday 08th May 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

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