Phenomenological view of law
Assuming law is a “phenomenon” it may be of interest to explore a phenomenological line of analysis. Edmund Husserl distinguishes four things about expression and significate:
- The sign or expression in its physical aspect (for example, our voice).
- The significate, the concept or what is expressed which is something ideal and cannot be confused with the sign.
- The object referred by the concept and that cannot 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 (e.g. 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 posits, firstly, the reality of what it is called “conduct” and, secondly, the possibility that it might comply or not comply.
Schreier adapts Husserl’s ideas to the study of law, arguing that there is an error with the empiricism 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 only under the assumption that 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).
If legal norms are concepts, it turns out that the science of positive law does not deal with legal norms as legal norms but only as legal logic because concepts are objects for logic. However, if legal science deals with the law that includes human behavior, it is an error to believe that the science of law is synonymous with legal logic. Indeed, it is wrong to believe that the science of law can do without any logic. Although the truth has to be verified intuitively, intuition is not transmissible and, therefore, it is confined. The seems to be a necessity of the concept and, therein, of the logic for science because the concept is transmissible and communicable. Arguably, without this “communicability” there would not be a science because there would be no objective knowledge.
Before advancing the discussion, it is important to note that phenomenological view is one of the ways in which we may refer to (and assess, study, etc.) law. In that sense, to characterize law only as phenomena would be to limit our understanding about it. Therefore, I intentionally use the expression “multidimensional.” I intend to refer to a plurality of pluralisms. For a view of what I mean by “pluralism of pluralisms” I am currently developing and publishing on my blogs another series entitled “Pluralism of pluralisms.” Indeed, I am working in parallel the theoretical mainframe (multidimensional phenomena) and its methodology and elements (pluralism of pluralisms) to show how and why our current understandings of law, sovereignty, cosmopolitanism and territorial disputes are limited and, because of those limitations, the consequent analysis and outcomes are at best short-sighted.
Law as “being” and law as “ought to be”
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 11th May 2021
Dr Jorge Emilio Núñez
 Edmund Husserl, Logical Investigations (London: Routledge, 2001), Investigation I, Chapter One.
 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.