Law as multidimensional phenomena [Post 20]

Transcendental juridical logic

In ontology, the attention centers on the object of study by means of different methods and the appropriate epistemological act. In juridical ontology, the object for some scholars is a “norm” while for some others is “human conduct.”

In one case or the other, for transcendental logic the object is given by the particular concepts relevant to the science of reference. As this blog series has already explained, the concept is something ideal and should not be confused with the expression. It is its representation.

While formal logic is interested in the way in which we “think” about an object or the structure of that “thinking” transcendental logic is based on the object itself. Consider two statements: “2+2=4” and “all metals conduct heat.” Formal logic would reduce both statements to the same formula “S is p” while transcendental logic acknowledges them as different, the former being intellectual intuition and the latter being an explanation or description. In that sense, formal logic is a logic of classes (analytical and related to classifications) and transcendental logic has to do with relationships of different kinds referred to the object in particular (synthetic and constitutive).

Transcendental logic is guided by the way in which the object exists. For example, while objects in mathematics are ideal and not apprehensible by our five senses empirically, natural objects exist empirically in time and space. This difference in relation of the way in which objects “are” is an existential reference because it has to do with its way or mode of existence.

For juridical logic, the object may be a legal norm. If there is an act of intellectual intellection with regard the legal norm purely interested in the act itself and its structure we are dealing with formal juridical logic. Conversely, if we center the attention on the legal norm itself (not in the way we think the legal norm) we are in presence of transcendental juridical logic.

The distinction is important in legal philosophy. For instance, Kelsen’s theory has been questioned because of its apparent contradictions. For Kelsen, even though validity and efficacy are different things, there is a certain relationship of dependence between validity and efficacy. It is worth pointing out that Kelsen is not claiming that validity is nothing other than efficacy,[1] but rather that efficacy “is a condition of validity; a condition, not the reason of validity”:[2]

“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.”[3]

The seeming contradiction disappears when considering Kelsen’s theory as juridical logic. The same dependence Kelsen maintains between validity and efficacy is the same dependence we can find between the concepts of “horses” and “unicorns.” They are useful or not for a zoologist because in the former case they exist in reality and in the latter, they do not.

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Kelsen and logic.

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 15th June 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World

[1] G. Hughes, “Validity and the Basic Norm,” California Law Review 59:3 (1971): 695-714, 698. See also Hughes 1971, 700, fn. 13; and M.S. Green, “Hans Kelsen and the Logic of Legal Systems,” Alabama law Review 54:2 (2003): 365-413, 387, fn. 83. Hughes and Green refer to Hart’s distinction between the internal aspect and the external aspect of rules. H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1997), 56.

[2] Hans Kelsen, General Theory of Law and State (Cambridge, Massachusetts:  Harvard University Press, 1949), 42 (emphasis added).

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

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