The Jurist as a Phenomenologist: Revisiting the Foundations of Law and Rights

Phenomenology is a largely underexplored path for the conceptual clarification of legal meanings and the material reality that these meanings refer to. I suggest that Husserl’s phenomenology and particularly his building block ideas, the intentional act and the object of intentionality, are of utmost importance for any systematic theoretical attempt to ground Law and Rights in a non-relativistic fashion. That said, Husserl’s phenomenology faces certain important limitations, for according to the latter, it should be verified with absolute certainty the point where meaning-intention is fulfilled. Moreover, achieving a genetic grounding that is not overly static necessitates plugging in a phenomenology of Law, history, legal discourse, and the interpretation of human action. I argue that this corrective or supplementary step is effectively provided by Paul Ricoeur’s hermeneutics. According to the latter, one should always seek the author who takes responsibility for the text and its meaning. In the region of Law and Rights, this is effectuated at the level of adjudication, in the broadest sense, which is essentially a debate in words, and which brings the initial uncertainty and linguistic emptiness of Rights to a point of concreteness and presence, which is a speech act: the judgment of a judge-author. Largely influenced by Edith Stein’s work, I then put together some preliminary thoughts on the foundations of Law and Rights by appealing to the phenomenology of the State as the ultimate, positing source of bindingness, for I take as a working hypothesis that bindingness, rather than justice, constitutes the discipline’s fundamental positive predicate.