Four years after the French translation of his mistress work, the A priori principles of civil lawAdolf Reinach benefits from a learned study that lights up the news of this lawyer of Husserl.
Adolf Reinach oriented his phenomenology towards the discovery of legal objects, considered as realities. He thus intended to discover the a priori formal structures which would be conditions for the possibility of positive law. The work directed by J. Benoist and F. Kervégan aims precisely to analyze the history and news of the Reinachian conception of law, first of all approaching the question of legal normativity, then by comparing the work to other legal theories.
The nature of legal normativity
Reinach’s purpose, summarized by the article by R. Ponsard, is to offer a conceptual analysis of the essence of legal realities, having an ontological scope and which confer that law real autonomy and objectivity. One of the questions addressed several times in the work is naturally the relationship of this essentialist theory with that of natural law. If jusnaturalism presupposes that there are natural rights, founders of positive law, what about these formal structures discovered by Reinach, prior to positive law, independent of him but which however constitute his condition of possibility ? But if these legal forms a priori are independent, both ontologically and prescriptively, how to think that they come to base positive law ?
F. Kervégan thus addresses the question of normativity in Reinach, by situating it in relation to the Kantian project of a “ Metaphysics of law ». Reinach maintains that there is a proper ontological domain of law, where formal structures of law are found a priori And, as such, universal and necessary. This is therefore an a priori material that is strongly distinguished from thea priori Purely formal, which was for Kant the condition of the universality of a proposal (whether ethical or legal prescription).
Now this a priori which is discovered as an ontological reality allows Reinach to propose an ontology of law, which exposes the “ petrol legality “Which govern a priori the region “ right ». If Reinach stands out there, as J.-L. Halpérin shows, of all the German tradition of positivism, he nevertheless shares with her the search for a pure right through the forms or foundations of any legal system. This is how Reinach, despite his legal ontology, shares with Kelsen certain formalist orientations of his normativism. But if he proposes rather a material foundation of the law, we can reproach him for not resolving the unity of the field of normativity, since we do not understand what the moral normativity returns.
Law: prescriptive or descriptive discipline ?
In “ A priori synthetic and normativity “, J. Benoist lights up the” logical realism From Reinach. Like Husserl, Reinach fights the idea that logic would be an essentially normative discipline: logical standards are thus based on something deeper, which is not psychology (see the article by P.-Y. Quiviger), but rather a pure logic, which relates to the relationships of objects. The logical laws discovered in fact only recognize (ontological) relationships between states of things. Reinach’s originality is to apply this analysis to the law, which seems to be a purely normative discipline, by taking up the idea of Husserl according to which any normative discipline is necessarily based on a theoretical discipline. Consequently, behind the normative building of law, there must be a theoretical knowledge of what law is.
Reinach thus proposes an ontological reinterpretation of thea prioriaccording to which objective necessity is based on the essence of states of things (which phenomenology makes it possible to grasp). This is an exemplification, applied to the law, of the more general theory of “ A priori synthetic », Whose prototype is the promise as it is this act which creates a link, a link as a result, detached from the act of promising.
Acts “ social »Give birth to specific entities: pretension and obligation. Now pretension, in the promise, aims to extinction essential to it: it ceases when the promise is made. However, this extinction does not appear in the analysis of the claim. She external to him while being necessarythat is to say synthetic a priori. However, if the promise opens up a “ Normativity horizon “, As J. Benoist says, should we necessarily make it an ontological reality ? Can not simply reside in conventions defining social acts ?
P.-Y. Quiviger takes up this question of the legal obligation by bringing Reinach and Villey closer. Because if, as P. di Lucia recalls in his article, we can find in Reinach the idea of a “ assistant duty », Linked to the thetical value of legal duty, that is to say that it corresponds to a state of affairs, so one can wonder how the foundations a priori law can be prescriptive. L. LOISEAU shows very well how, to protect yourself from all axiologism, Reinach uses the idea that legal science only uses judicial proposals: it describes gasolities. She is dealing with real and false.
It therefore takes an additional step to go to positive law, which will decide whether to transform the essential proposal into a prescriptive proposal. In other words, the fact of applying in this or that way of the laws of being always is a choice – that the laws of being do not dictate. But then how the laws of being “ they founded »Positive law ? Should not ultimately admit the contradictory character, in Reinach, of the phenomenology of law which seeks its essential foundations and the philosophy of law which seeks to account for the functioning of the law ?
P.-Y. Quiviger considers that one could find a solution there: the essence of the law reflects the fact that the legal obligation is indicative (and not the imperative), the pure law moving into the description and not in the deontic. Reinach would thus go beyond the distinction between fact and value to return to an Aristotelian characterization in terms of act and power.
News for legal phenomenology despite its paradoxes
In addition to the paradoxical aspects, uncovered by R. de Calan, of his conception “ restricted Property, based on creation and no longer on work, remains a major problem for a project like that of Reinach: it claims to discover at the end of its phenomenological exploration the pure categories of law, which would not depend on the positive law relating to an era or a society. As E. Picavet shows about the concept of “ property », Reinach’s analysis is not as universal and a priori that she claims to be. If he considers that the essence relationships correspond to the relations of meaning as they are mobilized in the language which is used to speak of it, then we realize that the relationships he speaks are not always correlated in the very things. It does not go without saying that a property goes through “ transfer From one individual to another, as his theory wants.
Consequently, Reinach’s news for the legal theory may ask to admit, with E. Picavet, that at best his analysis corresponds to “ The satisfaction of an epistemological standard of consistency in the development of a model of reality ». It would then be advisable to abandon the pretension to discover essences to appeal rather to a modal logic which can discover deontic logical principles, without leading to an ontology. It would then be possible to think differently an a priori legal, which would not reside in things, but in the modalities of the model formed to talk about it. We would be dealing there at a a priori Just as interesting and paradoxical: relating to the legal definitions used.