How is The Theory of Law Possible? The Subject Area of Legal Theory in A. Reinach's Phenomenological Project

Lyu I ORCID: 0009-0009-1431-0775 Postgraduate student, Department of Theory and History of State and Law, Saint Petersburg State University 199034, Russia, Saint Petersburg, nab. University, 7-9 liuyi_1996@outlook.com

Introduction

The phenomenological project of the pure doctrine of law was developed by Adolf Reinach (1883-1917), a representative of the Munich-G?ttingen phenomenological community, in the context of a discussion on the projects of the science of the early twentieth century (for more information on the historical and philosophical context, see the works of G. Spiegelberg^[20], V. A. Kurenny^[7] and A.V. Koltsov^[5]). Reinach occupied a key place in this philosophical community, especially since he deeply influenced the further development of the phenomenological movement^{[16, 17, 18, 19]}. Sharing Husserl's understanding of science, the jurist seeks to determine the conditions for the possibility of theoretical (a priori) knowledge of law, primarily its subject area. In his main work "A Priori foundations of Civil Law" (1913), he gives an answer to the epistemological question "how is a theory of law possible?"^[13] from the perspective of early phenomenology^[18].

To reconstruct the conditions of the possibility of the theory of law from the point of view of early phenomenology, it is necessary to get answers to two questions: 1) what constitutes the subject area of the a priori doctrine of law; 2) what is the nature of the connection that determines the unity of this subject area. These issues are of a scientific nature, which requires an explanation of the links between the idea of the a priori doctrine of law by A. Reinach and the project of the science of E. Husserl, who acted as the foundation of early phenomenological philosophy during the Munich-G?ttingen community. Accordingly, the first part of the article defines the problems of the study, the second examines the main provisions of the Husserl science teaching project relevant to it, and the third describes their specification for the subject area of jurisprudence in Reinach's phenomenological theory of law.

1. How is theoretical science possible? Correlation of truth and being

A. Reinach, sharing, as already noted, the Husserl understanding of science, clearly distinguishes the relations of truth from the relations of causality, which is of fundamental importance for jurisprudence. This distinction is noted, for example, by the modern jurist E. V. Bulygin, pointing to cases of mixing prescriptions and descriptions (mixing prescriptive norms and descriptive normative sentences)^[2]. The scientist believes that only normative sentences ("Rechtssatz") describing norms can be true or false. Is it possible to talk about true and false knowledge a priori in the field of legal science? Is there an opportunity here to talk about ideally objective subjects, regardless of the reference to the current provisions of positive law?

According to S. V. Arkhipov– one of the modern researchers of Reinach's ideas, the above questions sound more or less absurd^{[1, p. 34]}; positive answers to them can only remind of Platonic realism and its eidos, since Reinach's fundamental legal formations are of a metaphysical nature, are "outside of physical and mental reality"^{[1, pp. 22-23]}. According to R. A. Yuryev, a priori laws rooted in the essence of legal entities are "eternal laws that exist independently of our understanding"^{[14, p. 121]}.

However, Reinach did not share the position of Platonism^[15], as well as the founder of modern phenomenology himself^[8]; H. Conrad-Martius, a participant in the early phenomenological movement– came to the unequivocal conclusion that Reinach was not a platonist^[6]. Doubt about the necessity and possibility of a priori knowledge in the field of law is associated with the idea that the subject area of jurisprudence in no case can be ideal, located outside the human consciousness. In the traditional view, jurisprudence differs significantly from mathematics, geometry, etc. a priori disciplines – such disciplines, according to E. Husserl, "develop perfectly regular general provisions that are based with self-evident certainty on truly generic concepts"^{[3, p. 158]}. "Two times two is four" is true not because there is a hic et nunc order by virtue of which the statement "two times two is four" should be considered correct, but because it expresses an ideally objective truth in the field of mathematics. There is no need for the existence of any "higher authority" that would make final decisions on all issues related to "two times two"; this truth does not need to be justified by the fact of an established tradition testifying to the unified practice of recognizing "two times two is four"; there is no need to determine who first discovered this law and how-the "eternal existence" of a mathematical law means that its mental comprehension does not matter in order for it to be objectively true in itself.

According to A. Reinach, as in mathematics, in law we can also find eternal laws that are independent of our understanding: "It is known how often in jurisprudence they talk about provisions that, without being written law, are "understandable in themselves" or "follow from the nature of things", etc. ...These are, indeed, the essence of the provisions that follow from the "nature" or "essence" of the concepts under consideration"^{[10, pp. 158-160]}. Positive law can either use ideally objective ("eternal") laws arising from the very state of affairs, or reject them. Thus, a modern representative of the science of private law, A. Ya. Ryzhenkov, with reference to A. Reinach, came to the conclusion that the obligation to fulfill a civil contract is based on the very idea of the contract; in other words, the objective content of the basic principles of civil law has received a legislative form of expression^{[12, p. 29]}.

According to Husserl, the objective connection that gives scientific thinking and thus science unity is understood in two ways: as a connection of "things" and a connection of truths. "Both are a priori given jointly and inseparably. ...The truth in itself ... forms the necessary correlate of being in itself"^[3]. At the same time, the philosopher stressed that the word "thing" in this context cannot be interpreted in a narrower sense because it denotes the subject of knowledge in general^[3]. This general correlation between truth and objectivity, as shown below, permeates the entire a priori doctrine of law by A. Reinach. If we reject the truth in jurisprudence, then the science of law is impossible – this is the phenomenological position of A. Reinach. The following two sections of the article are devoted to its disclosure on the basis of Husserl's scientific ideas.

2. The science of E. Husserl: the main provisions

From Husserl's point of view, science is knowledge from the foundation^{[3, p. 201]}. "To see the state of affairs as natural or its truth as significant with necessity" and "to have knowledge of the basis of the state of affairs" are equivalent expressions ^{[3, p. 201]}, since, as stated above, truth-in-itself forms the necessary correlate of being-in-itself^{[3, p. 199]}. The explanatory basis should not be arbitrary or random ^{[3, p. 34]}. According to Husserl, individual (factual) truths have a random character, unlike which generic truths are free from real (random, single) conditions and only make it possible to conclude about the possible existence of an individual state of affairs ^{[3, p. 202]}.

According to Husserl, there is an irreducible difference between ideal and real sciences, as well as between ideal objective necessity and causal probability. According to this distinction, scientific disciplines are divided into ideal (i.e. a priori), which "develop ideally regular general propositions that are based with self-evident certainty on truly generic concepts", and empirical (i.e. real), which "establish really regular general propositions with reliable probability related to the sphere of facts"^{[3, p. 158]}. The philosopher also distinguishes between theoretical sciences that answer the question "what is?" or, in other words, "what is significant (necessary)?" and normative sciences that answer the question "what should be (based on the basic value of a normative discipline)?"^{[3, p. 51]}; ideal, a priori, theoretical sciences are also called abstract (nomological) and explanatory. According to A. Reinach, the difference between the logical and the actual, effective, determines the differentiation of the theory of law as an a priori legal discipline from the philosophy of positive law^{[10, p. 252]}. Based on the Husserl division of sciences, the theory of law "explains" why this is the case and not otherwise.

Husserl sees the a priori conditions for the possibility of theory in two ways – subjective and objective. By a priori subjective conditions, he understands "by no means real conditions rooted in a single judging object ... but ideal conditions arising from the form of subjectivity in general and from its relation to cognition" ^{[3, p. 108]}. The ideally subjective conditions of science are the noetic conditions of the possibility of theory in a subjective sense, arising from the idea of cognition as such and independent of the empirical features of human cognition in its psychological conditioning.

Under the ideally objective conditions of theory, Husserl generally understands the laws a priori, which are rooted "in the very concept of theory, especially in the very concepts of truth, position, object, properties, relations, etc., in short, in concepts that essentially constitute the concept of theoretical unity"^{[3, p. 108]}. By virtue of the existing (i.e. significant) a priori law, there are contradictor correlates "essentially necessary" and "essentially impossible", since "to know the basis of something means to see the need for things to be this way and not otherwise"^{[3, p. 201]}. Apodictic necessity is an objective predicate of truths, which denotes precisely the natural significance of the corresponding state of affairs. Thus, the objective connection, which gives unity to science, is understood by E. Husserl in two ways – in accordance with the general correlation of truth and being – as the unity of objectivity and the correlating unity of explanation^[3].

Husserl's scientific ideas were applied in A. Reinach's a priori doctrine of law ^{[5, 19]}, which analyzes pure legal concepts (or fundamental legal formations) and a priori laws rooted in the essence of pure legal concepts.

3. Reinach's project of pure theory of law

The emphasis of the "A Priori foundations of civil law" is explicitly placed not on the ideally subjective, but on the ideally objective side of cognition of pure legal entities. The unity of the subject area of the a priori doctrine of law is formed by a priori laws as such and explanatory grounds. In other words, instead of general scientific questions related to the peculiarities of phenomenological comprehension itself, for example, about the principle of non-presupposition, about the primary source of evidence, etc., the ultimate question of A. Reinach's a priori doctrine of law is whether there is "something" as an explanatory basis that can be known as such due to its descriptive originality. The scientist explains this idea using the example of a promise: "When a promise is made, something new appears in the world with it. On the one hand, there is a requirement, and on the other – an obligation. What are these remarkable formations? Obviously, they are nothing"^{[10, p. 161]}. The lawyer writes: "Let's say A makes a promise to B to walk with him and B accepts this promise. The corresponding obligation A and requirement B arise. Perhaps this promise will be challenged in the future. Nevertheless, this kind of refutation suggests that a requirement and obligation mean something definite, and this is enough for us for now"^{[10, p. 163]}.

Thus, while the founder of phenomenology defines that scientific knowledge is knowledge from the foundation, the author of the first draft of the phenomenology of law, for the purpose of theoretical knowledge of law, pays special attention to the a priori foundations of law. Accordingly, A. Reinach tried to show how theory is possible as a deductive system, and the possibility of pure theoretical knowledge of law is not limited to the special sphere of civil law^{[10, p. 305]}. Reinach sees the possibility of an a priori doctrine of law in the fact that, firstly, pure legal concepts do not depend on their accidental comprehension by the subject or on the causal relationships of the real world; secondly, ideally objective patterns exist in law, which makes possible a purely theoretical knowledge of law without recourse to positive law.

3.1. The subject area of the a priori doctrine of law

According to A. Reinach, a judgment – even a false and contradictory one – can as such relate only to the state of affairs; any judgment is an "act of conformity", the essence of which is to "reproduce" in its assumption of the present and "presence" of the state of affairs^{[10, p. 282]}, and any establishment (position of a positive law) "is on the other side of the opposite of true and false" and "can be "right" or "wrong"; be "acting" or "inactive" in a positive legal sense, but can never be logically true or false"^{[10, p. 278]}. According to the jurist, the essential (for example, "twice two is four" is necessary) and the a priori impossible (for example, as "twice two is three" is impossible) cannot be the content of the institutions of positive law. A positive legal establishment is a valid and effective act that, through its implementation, aims to cause a change in the world, and possibly causes it: "What is supposed to be through establishment is in no way the realization of the expected ought of being, but it becomes valid at the moment of assumption and through this assumption: ownership and claim exist by virtue of establishment"^{[10, pp. 284-286]}. Consequently, the establishment of positive law and the problem of the source of their validity and effectiveness are not included in the subject area of the new legal discipline proposed by Reinach, but constitute the subject of research within the framework of the philosophy of positive law^{[10, p. 295]}.

According to A. Reinach, the subject of the a priori doctrine of law are a priori laws – ideally objective laws, which – like laws in mathematics – must be obeyed by any law as such, regardless of the corresponding system of positive law. The fundamental elements of a priori laws are called legal concepts ^{[10, pp. 153-154]}. Thus, correlatively related a priori laws and legal concepts form the subject area of the a priori doctrine of law, and these laws have a subject relationship characterizing their intentional connection with the corresponding pure legal concept (legal education).

According to A. Reinach, this subject area can be fully comprehended only with the help of the a priori doctrine of law ^{[10, pp. 245-246]}. The apodictic necessity of pure regularity, which is discussed here, is an objectively ideal necessity^{[4, pp. 215-216]}. The establishment of positive law may deviate from a priori laws^{[10, p. 290]}, however, even BGB cannot cancel essential relationships^{[10, p. 210]}. As a modern example of the deviation of positive law from a priori regularity, one can cite the legal regulation of the issue of encumbrances (collateral), which is the object of research in an article by St. Petersburg lawyer A. O. Rybalov. The scientist rightly notes that generally significant legal principles do not lose their "force" in connection with the deviation of positive law from them^[11]. In this case, we are talking about the apodictic necessity of an a priori law rooted in the essence of a limited proprietary right.

3.2. The apodictic necessity of a priori laws

Instead of searching for the grounds for the validity and effectiveness of a positive establishment, A. Reinach proceeds from the attitude of foundation (foundation). Husserl defines the concept of funding as follows: "If, according to the essential law, some ? can exist as such only in a broader unity connecting it with some ?, then we say that ? as such needs to be Fundierung by ? or that ? as such needs to be supplemented by ?"^{[4, pp. 238-240]}. At the same time, the unity of fundation is not limited to the above cases: it also distinguishes mutual and unilateral fundation ^{[4, pp. 241-242]}, fundation in the form of coupling (? fundates a new content together with ?, ? – together with ?, ? – with ?, etc.)^{[4, p. 251]}.

So, within the framework of A. Reinach's a priori teaching, it is necessary to focus attention on the essence (with all the descriptive originality ^{[5, p. 73]}) of a legal concept in which a priori laws are rooted. Thus, "the basis that can generate a demand and obligation is a promise"^{[10, pp. 170-171]}. In this case, we are talking about an essential regularity – in other words, about the "fate" of a promise – which determines the possibility of the existence of a requirement and obligation in general. It goes without saying that a requirement and an obligation cannot exist on their own, but only as parts of a promise encompassing them. The lack of independence of a claim and obligation (as parts of a promise) is thus conditioned by the specified a priori law; it is important to keep in mind that this lack of independence is relative – relative to the promise as such – in nature. Regarding the essence of the claim, Reinach singled out the non–independent part of the claim - the rejection of a claim based on a promise, which is indirectly based on the essence of the promise. On the one hand, the refusal of a demand is a social act, the addressee of which is the bearer of the obligation ^{[10, pp. 193-194]}, and on the other hand, the refusal of a demand arising from a promise is an indirect non–independent part of the promise ^{[4, pp. 244-245]}.

As shown, in the "A Priori Foundations of Civil Law" it is precisely about the need for one purely legal concept to be founded by another purely legal concept, about the "inability" of its existence in itself, about the "orientation towards" the founding legal concept: "The state of affairs, based on other states of affairs," writes Reinach, "exists on the basis of these latter, just as the demand that arises from a promise exists precisely because of it. And if I wanted to make sure that this state of affairs exists again, then I would not have a freely or independently comprehending act for this. I would have no choice but to return to the justifying state of affairs and once again deduce from them the state of affairs that interests me, just as I have to return to the underlying promise in order to once again state the existence of a requirement"^{[10, p. 172]}.

The correlative a priori laws and legal concepts mentioned in the "A Priori Foundations of Civil Law" include, in particular, the law "a promise causes a consequence – the occurrence of a claim from one person and an obligation from another^{[10, p. 161]}, and their contents are identical"^{[10, p. 166]} and the legal concept "the promise"; the law "competence is exercised along with the right"^{[10, p. 236]} and the legal concept of "competence" (i.e., "the right to one's own right"^{[10, p. 235-236]}). Due to the fact that a priori laws are significant in an ideally objective (universal) sense, different (specific) laws can lead to a new (specific) law by combining; for example, the above-mentioned a priori laws together lead to a new law: "no one can accept more obligations of another person or impose more obligations on another person than they exist in the person of what imposes them"^{[10, p. 244]}.

As already explained above, based on the fact that the requirement and obligation exist by virtue of an a priori pattern rooted in the essence of the promise, the requirement and obligation regarding the promise (in general) are independent parts (moments); regarding the essence of the requirement, however, the refusal of the requirement is not independent. On the one hand, in a certain concept (promise) we find concepts–parts (requirement), in which the meanings–parts (refusal of a requirement) can again occur; on the other hand, a non-independent legal concept should be understood as based on an independent legal concept or, in other words, encompassing legal education. The task of a priori teaching in this case is to determine the inability of some legal entity to exist by itself a priori; it seems that with regard to the specific essence of a pure legal concept as a unity of foundation, the direct and indirect non-independent parts (moments) founded by it can be identified by analysis (dismemberment). In this argument, Reinach also follows Husserl, according to which the essential regularity a priori characterizes the relationship of one content (meaning) to another, where the latter acts independently relative to the first, based on the fact that its being is possible only as part of the first (being-as-a-part); the first content is thus called the generic essence ^{[4, p. 235]}.

According to Husserl, the significance of pure laws is a priori unlimited – it does not depend on whether we or anyone is actually able to carry out conceptual representations and with the consciousness of an identical intention to hold them or repeat them^{[3, p. 100]}. The founder of phenomenology distinguishes the causal relationship from the ideally objective necessity^{[3, p. 125]}. In A. Reinach's project, a priori laws differ from the laws of the actual world in the same way as logical laws; law in this sense is an objective correlate of apodictic necessity. A. Reinach writes: "The essence of a promise is rooted in a requirement and an obligation. ... The relationship we have indicated is rooted in the promise as such, and not in the fact that it is carried out by subjects who walk upright on two legs and are called people. ...To limit the essential-natural relationships to an arbitrary binding to a random medium in which they are realized — this means, with one movement of the hand, to cast a veil over the world of ideas, which we have the opportunity to contemplate"^{[10, p. 212]}.

Taking into account all that has been said, we can conclude about the consistent phenomenological criticism of subjectivism and relativism carried out in the main work of A. Reinach. Husserl noted that the relativistic theory of (logical) laws violates the line between logical and causal connections, which is typical for teachings that "derive purely logical principles from facts"^{[3, p. 116]}. The actual existence of a pure legal entity in time and space is individual, thus this accidental existence cannot be identified with the ideal significance of a priori laws. This is precisely the "eternal" property of the laws of legal entities: such laws are independent of the actual comprehension or incomprehension by anyone in the past, present or future in connection with a number of real circumstances^{[10, p. 158]}. As well as a priori laws rooted in the essence of legal concepts, they are significant in an ideally objective sense and thus regardless of positive legal institutions, and fundamental legal formations and their a priori laws have existence in the same way as numbers have existence regardless of mathematical science^{[10, p. 158]}.

However, this does not mean that the idea of A. Reinach's a priori teaching is to deny the science of causal relations. The real events accompanying legislative and other normative activities are of an individual, causal nature. The disciplinary distinction between the purely theoretical discipline of law (a priori doctrine of law) and positive jurisprudence is based on the difference between logical and causal connections. As was rightly noted by the jurist, self-evident a priori laws and legal formations exist independently of positive law, but they are assumed and used by this (real) law ^{[10, p. 159]}.

Therefore, the purpose of the a priori doctrine of law is to "understand some lines of development of law based on the a priori sphere"^{[10, p. 160]}. Ideally, there may be an infinite variety of legal entities, but in real law – in existing, existing (so far) and future legal orders – there may be finite (individual) legal entities that differ from the existing variety of legal entities in an ideally objective sense by a sign of effectiveness. Thus, with the help of Reinach's definition of the subject area of a priori teaching, the general principle of distinguishing the ideal and the real of early phenomenology is seen. As N. V. Motroshilova rightly noted, in this principle we meet with the central attitude of Husserlianism: "Truths in general, logical truths in particular, Husserl refers to the sphere of the ideal, which has no "human", "temporary" character and which does not have the status of existence at all. This is a world of “pure entities”. Consequently, the early Husserlian philosophy separates entities from everything empirical, from the sphere of the real material or human world of existence"^{[9, p. 34]}.

Conclusion

Project A. Reinach represents the realization of "the long-cherished idea of a priori doctrine of law based on pure phenomenology"^[17]. The jurist gave a conceptual and methodological answer to the question "how is the theory of law possible?"^[13] by defining a single subject area of the pure doctrine of law and outlined on this basis the general correlation between objectivity and significance with necessity. Based on the analysis of the scientific provisions in the "A Priori foundations of civil law" with the help of Husserl's idea of science, set out in "Logical Studies", it is proved that the purpose of the main work of the jurist was precisely to substantiate the possibility of a purely theoretical discipline in jurisprudence.

The subject area of the a priori legal discipline is formed by the unity of essentially correlating purely legal concepts and pure laws rooted in their essence, which are mentally comprehended and significant with apodictic necessity a priori. In this work, the philosopher discusses the objective a priori conditions of the possibility of the theory of law in line with phenomenology, while the subjective (noetic) conditions of the possibility of the theory of law^{[3, p. 107]}, related to the form of subjectivity in general and the relation of subjectivity to cognition, are not included in the subject area of A. Reinach's a priori doctrine of law. Both pure legal formations and a priori laws rooted in the essence of legal formations are ideal, irreducible to the sphere of positive legal duty and effectiveness; thus, the a priori doctrine of law is distinguished from the philosophy of positive law.