Time and law
To discuss law in ontic and ontological terms would be incomplete if we did not refer to law’s temporality. By “time” this blog series means existential and not cosmological time.
While cosmological time includes a succession of instants that exclude themselves reciprocally (in order to be successive) and are equally empty (for example, the time indicated by clocks with their equal hours, minutes and seconds), existential time refers to successive totalities, each of which is full and different. Past and present are identical in cosmological time. Consequently, to predict the future is to repeat the past, like natural sciences do when they have verified how an event happens. Existential time assumes past and future are different. In that sense, cosmological time cannot be altered while we can change our future in existential time regardless of our past.
These and other differences between cosmological and existential time have to do with the distinction between the physical and the spiritual. Like the physical being, in any instant, is just what it is in that instant without past and future, the identity in physical reality only exists is the physical reality remains invariable. In contrast, human reality is created without losing its identity. The coexistence between past and future manifests in the creation. The decisive point for law is that the time of the conduct or human behavior is existential time.
It is only the conduct seen as a raw material that appears to be immersed in cosmological time. However, conduct as entity is both raw material and meaning. There is no juxtaposition of two temporalities, the cosmological for the conduct as raw material and the existential for the conduct as meaning. Human beings can only “live” existential time. More precisely, when any timeless entity (or an entity “living” in cosmological time) is embodied in a human being, their conduct develops in existential time.
Law as conduct implies that its temporality becomes apparent when there is externalization of behavior. We may refer, for example, to societal time as the particular kind of existential time in which the conduct of an individual interferes with the conduct of another individual. Whether conduct in its individuality or as an interrelation between acts and omissions of different individuals, juridical time is always subjective: it is worldly time.
Law understood as an abstraction (e.g. a legal norm or rule of the form “if X ought to be S”) may have to do with cosmological time and, therefore, may not change and be identical in the past and in the future. Kelsenian theoretical framework, for example, can be used to study Ancient legal systems as well as current ones. In turn, law conceived as human conduct (e.g. the act of signing a contract or killing someone) has to do with existential time and will be, consequently, bound by certain features.
In this regard, the ontology in law does not refer only to the exploration of law as an abstract object. If law is conduct or, in other words, human life in action or being, in order to advance our understanding of law, we should move from the ontic to the ontological in the sense of existential philosophy. As a result, we find formal juridical logic for the study of law as a pure abstraction (e.g. Hans Kelsen) and transcendental juridical logic for the consideration of law in action (e.g. Oliver Wendell Holmes).
The following posts will introduce and explore in detail both, formal juridical logic and transcendental juridical logic.
Formal juridical logic.
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 01st June 2021
Dr Jorge Emilio Núñez