Experience of law: from psychologism to phenomenological germeneutics

Abstract

The article is devoted to the phenomenon of legal experience. The problem is placed into a broad historical and philosophical context and is conceived as a part of the problem of ontological unity. The question of the nature of law is transformed into the question of the grounds of law in the experience and nature of the latter. To clarify this issue, the author considers the methodological foundations, essence and internal contradictions of a number of concepts that localize the law in this or that aspect of the experience which is understood as a basic one, as well as the interrelation between them. The author of the psychological theory of law L. I. Petrażycki places the foundations of law in the emotional experience, keeping, however, the matter regarding the foundations of the emotions themselves unsettled. In turn, the phenomenology of law motivated in many ways by the desire to overcome psychologism sees the primary reality of law in the experience of a consciousness cleared of all prejudices, so that the sense (phenomenon) of law becomes obvious to it. At the same time, phenomenology does not provide a satisfactory answer to the question of how the phenomenon of law is related to our everyday experience. Finally, philosophical hermeneutics striving to overcome the aporias of the phenomenological project understands the basic level of experience, by which a person is connected with the world, as the experience of a specific being, while the structure of this experience is understood as a hermeneutic circle of our existence in time in interaction with the world. The latter is carried out in the form of a dialogue the outcome of which is never predetermined in advance and, therefore, implies fundamental openness and readiness to recognize the other in his claim to truth. It is this that is regarded as a basis of normativity. By discovering the basis of law neither in the mental experience, nor in the experience of the reduced consciousness, but rather in the experience as such, that is, the experience of one’s own historicity, the hermeneutical concept of law is much closer to the classical ontological theories of natural law than to the later deontological conceptions, because hermeneutics enroots the due in the experience structure itself. 

Keywords:

experience of law, psychological theory of law, L. I. Petrażycki, phenomenology of law, hermeneutical philosophy of law