Coexistential Forms & Egotism
The chapter explores various relational forms, highlighting the absence of economic
and aesthetic relationships in the initial analysis.
Egotistic aestheticism, as exemplified by figures like Oscar Wilde and D'Annunzio, is
discussed as a form that subordinates others for subjective beauty, contrasting with
coexistential relationships where equality is paramount.
These forms, though impactful, remain personal and existential rather than
coexistential, as they lack mutual respect for equality.
Ontophenomenology of Coexistential Forms
Phenomenology aims to analyze the objective structures of coexistential
relationships, categorizing them through regional ontologies.
These forms of coexistence, while diverse, are interrelated and cannot exist in
isolation; they influence each other and are experienced together.
A comprehensive philosophy must recognize both the differences and
interconnections of these forms, leading to a "generic legality" that underpins all
coexistential relationships.
Legality and Duty
All coexistential forms involve a regulative principle, a fundamental duty to align
one's freedom with others, ensuring mutual respect.
These duties define the structure of various relationships, from friendly to legal ones,
with rules varying from flexible (family, friendship) to rigid (political, legal).
Legal relationships are distinguished by their formalized, often coercive, rules, while
others rely on emotional involvement and informal mediation.
Charity and its Legal Exception
Charity is discussed as a relationship that does not follow the typical legal structure.
It involves an unreciprocated act of giving, making its relationship with law unique.
Unlike other relationships, charity does not require reciprocity or legalistic structure,
thereby standing outside the typical framework of legality discussed earlier.
The Function of Law
The function of law is often misunderstood as a purely technical tool for enforcing
values, but this reduces law to a prescriptive and sanctioning function.
Law does not solely translate external values (such as morality or politics) into
practice; it also plays a role in structuring relationships, particularly in legal, political,
and economic domains.
The specific function of law involves formalizing behaviors through prescriptive
sanctions, but the content of these behaviors often stems from external non-legal
spheres, such as politics or morality.
Introduction to Ontophenomenology of Corristency Forms
The text explores the concept of law through different philosophical and juridical
lenses, with a focus on its "formal and formalizing" role. This traditional view of law,
which emphasizes certainty, rigidity, and authority, is challenged by reductionist
theories that diminish law's autonomy and reduce it to other human activities, such as
economics or politics.
Reductionist Theories of Law
Marxism: Law is seen as an epiphenomenon of economic relations, ultimately
leading to its disappearance in a classless society.
Benedetto Croce: Law is reduced to economic utility, focusing on private law and
business regulation while excluding personal rights.
Giovanni Gentile: Law is viewed as an internal moment of the dialectic of the will,
where it oscillates between freedom (will in act) and mere natural fact (will in fact),
rendering law an abstraction when detached from freedom.
Law and Politics
The political reductionism of law, most prevalent today, sees law as inherently
political. Carl Schmitt's legal decisionism and concrete ordering theories emphasize
the sovereignty of political will and institutions. Legal norms, rather than being
independent, are seen as shaped by political authority and decisions. Normativism, as
seen in Kelsen’s theory, also subtly leans toward a political understanding of law,
despite its focus on formalism.
Hegel’s Influence on Modern Legal Thought
Hegel’s philosophy is pivotal in understanding modern legal thought, particularly in
reducing law to state order. For Hegel, the state is the realization of self-
consciousness and ethics, and law reflects the will of a self-conscious people. He
criticizes natural law for being abstract and external to the state, instead presenting
the state as the ultimate source of law, where ethical life is fully realized.
Conclusion and Moving Beyond Hegel
The reductionist theories examined share the view that law is merely a formal
function, primarily driven by political or economic forces. However, a deeper
understanding of law’s structural autonomy—resuming the classical tradition of
natural law, while critically engaging with Hegel’s insights—suggests that law can
function beyond mere formality, with its own independent role in shaping ethical and
political life. This new approach requires reconciling Hegel’s influence with modern
demands.
The Age of Universal Communication and Common Threat
Transition of Time: Our era is no longer about self-sufficient peoples and states but
the global, interconnected world facing universal challenges.
Common Threat: Global issues like nuclear risks and ecological disasters affect all
humanity, highlighting the need for collaboration.
Equality of Humans: In this context, the fundamental human identity gains
importance over cultural, ethnic, or ideological differences.
Future of Law: The shift from laws of separate states to a universal law reflects the
urgency of addressing global threats and ensuring coexistence.
Ontological Foundation of Law
Existential and Coexistential Role of Law: Law serves as an authentic coexistential
function, much like family and politics, focused on the realization of human
relationality.
Role of Law in Society: Law helps people overcome insecurity and connect with
others. Its specific function depends on its relational structure and core principles,
such as the common good in politics or personal love in family.
Specific vs. Generic Legal Functions: Generic legality is formal, focusing on rules
that structure relationships without affecting their essence, while specific legality
addresses universal justice.
The Function of Law in Society
Generic vs. Specific Legality: Generic legality is formal and impacts relationships by
establishing regularity, but its focus is on the form of rules rather than their contents.
In contrast, the specific legality of law aims at universal justice, safeguarding human
equality and freedom.
Justice as the Core of Legal Function: The law’s role is not merely formal; it enacts
universal justice and protects individuals’ ontological relationality.
Distinction from Political Use: Political actions may co-opt the law for power or
ideology, but this diverges from the law’s essence of universal justice.
Law Beyond Formality
Resolving Disputes and Punishment: Legal resolution differs from familial or
political conflict resolution. Law’s approach is based on justice, while other systems
may rely on forgiveness or subjective power.
Law vs. Political Will: When political will dominates, it may seek to bypass legal
limits, but the contrast between legal and political spheres reveals the distinct
functions of law.
Anti-Juridical Use of Law: Instances where law is used purely for political gain show
the violation of its structural essence, with power often overriding legal fairness.
Legal Rules and Justice
The Nature of Rules: Rules are linguistic propositions that dictate actions, and they
differ based on their category—alethic (truth), evaluative (value judgment), and
deontic (what must be done).
Relationship Between Language Categories: Deontic language (law) presupposes
evaluative and alethic languages, as rules are based on value judgments grounded in
factual situations.
Justice in Legal Rules: Legal norms cannot be separated from justice; they must align
with shared values and factual realities, ensuring universal fairness.
Introduction to Deontic Language and Legal Rules
Deontic language is central to understanding legal rules, which are binding
prescriptions for behavior.
Legal propositions fall into deontic categories, which can be divided into non-binding
(advice, requests) and binding (directives, commands, rules).
Legal rules are binding and general, applying universally and without exceptions,
unlike directives or commands which are more flexible.
2. Types of Rules: Directives, Commands, and Legal Rules
Directives: Weak prescriptions that suggest behavior but allow personal judgment
(e.g., aesthetic or political prescriptions).
Commands: Strong, specific orders directed at individuals or groups with no
exceptions (e.g., military orders).
Legal Rules: Strong, general prescriptions that apply to all people in specified
contexts (e.g., contract enforcement, rights protection).
3. Legal vs. Criminal Rules
Legal rules are not simply about "force"; they involve conviction and justice.
The criminal rules, while also binding, rely on fear and coercion, which are not
characteristics of legal norms.
The distinction lies in legitimacy: legal norms arise from authorized entities (e.g., the
state) while criminal rules are enforced by power without legitimacy.
4. The Relationship Between Legal Rules and Justice
The obligatory nature of legal rules is rooted in their alignment with justice. Rules
that conform to the concept of justice are considered obligatory.
Justice is not merely a practical construct but a value that guides legal norms. As St.
Augustine suggested, "justice" differentiates lawful rules from coercive power.
5. Forms of Justice and Legal Obligations
Intersubjective Justice: Concerns relationships between individuals or entities,
ensuring fairness in exchanges, work, and reparation.
Social Justice: A more complex form that addresses the broader societal effects of
relationships and includes a focus on inequalities, such as worker exploitation.
Legal rules rooted in justice help regulate personal, societal, and universal relations,
ensuring fairness and equity.
1. Understanding Social Justice
Social justice refers to the regulation of relationships within a society, emphasizing
harmony and the well-being of individuals and groups. It differs from intersubjective
justice, which concerns direct, horizontal relationships between equals. Social justice
involves both vertical (individuals to society) and horizontal (mediated by society)
relationships. For example, labor laws mediate between unions, representing the
indirect, societal regulation of horizontal relationships.
2. Corporate Justice and Proportionality
Corporate justice, rooted in societal harmony, focuses on proportionality, not equality.
It acknowledges that society's members have different roles and contributions, and
justice is distributed accordingly. Examples include pension distribution based on
merit and tax systems where the wealthy contribute more, but without expecting
proportional benefits. The concept of proportionality in corporate justice is seen as
applying to rewards, burdens, and hierarchical positions based on their relevance to
the societal function.
3. Social Justice as Political Concept
Social justice has a political dimension because it ensures the common good is
prioritized in society’s operations. The application of corporate justice in the legal
sphere, which governs intra-societal relations, can sometimes conflict with universal
laws. For instance, while it ensures societal functionality, it may justify inequality or
marginalization for the greater good, as seen in practices like taxation or even
controversial policies like abortion.
4. The Limits and Drawbacks of Corporate Justice
Corporate justice's emphasis on functionality can lead to inequalities, especially when
individuals no longer contribute to society's material needs, such as the elderly, sick,
or poor. The principle of functionality can render them burdensome or less valued.
Moreover, social justice often legitimizes inequalities, justifying exclusion or
oppression based on presumed functional relevance within society.
5. Universal Justice: The Person Principle
The concept of "total" or universal justice seeks a balance between equality and
existential diversity. The person principle asserts that all individuals are ontologically
equal but also exist with unique characteristics. Justice, as defined in classical terms
("giving to each his due"), must respect both the universality of human rights and the
particularity of individuals. Thus, true justice is universal in its application but
particular in its recognition of individual differences.
Summary on Justice and Legal Principles
The Concept of Justice
Justice is grounded in the principle of "treating equals equally and unequals
appropriately unequally." It reflects the universality of fairness but must also account
for the diversity of individual situations. The idea is to respect ontological equality
(the inherent worth of each person), while considering particular circumstances, like
in the case of treating the powerful and weak differently.
Ontological Equality
The foundation of justice is ontological equality—each person is equal in their
inherent worth. Any action that violates this equality, such as torture or deception, is
unjust. Justice cannot be applied where there is a disparity in ontological status, such
as between humans and divinity or humans and animals. This is the core principle
behind the Kantian moral rule of treating others as ends, not merely as mean
Symmetry and Reciprocability
Justice involves symmetry, where the freedom and rights of one person are
reciprocated by others in similar circumstances. A claim is just when it is based on
symmetry, meaning everyone has the right to claim and be granted the same freedoms
in equivalent situations. This symmetry forms the basis of rights and duties in justice,
preventing subjective claims from turning into domination.
Rights and Duties
Rights are not valid if they don't come with corresponding duties. Justice demands
that individuals’ rights are respected by others and that no one can arbitrarily violate
these rights. The reciprocity of rights and duties ensures equality and symmetry,
meaning one cannot have rights without others being obligated to respect them. This
ensures fairness in both claims and obligations.
The Role of Impartiality and Universality in Justice
Impartiality is key in justice. A disinterested third party, such as a judge, is necessary
to ensure that all parties are treated fairly. Justice should also be universal: individual
or particular judgments must not contradict the broader principle of equality. Justice
in this sense is not merely formal but based on practical and universally applicable
rules that ensure fair treatment for all individuals, irrespective of their particular
circumstances.
