Phenomenological Grounding of Positive Law in Its Normativity: Demystification and Critical Appraisal of Reinach’s Project

Legal positivism considers it impossible to discover an essential fundament upon which the content and the normativity of positive law could be grounded. In his A Priori Foundations of Civil Law (1913), however, the phenomenologist Adolf Reinach argues that there is a pure or a priori theory of law, which consists of phenomenologically discoverable, strictly a priori synthetic propositions, upon which positive law is grounded. My aim here is to make clear exactly what Reinach thinks this a priori theory of law is all about and how it supposedly grounds positive law in its normativity. Firstly, I present an overview of Reinach’s idea and analyze the general methodological spirit behind his search for an a priori theory of law. Secondly, I refer to a series of problems in the interpretations of Reinach’s project: problems that make it necessary to revisit that project in detail. After this, I unfold my reading of Reinach’s ideas, beginning with the claim that Reinach’s phenomenological grounding of legal normativity is based on the scheme of the phenomenological grounding of logical normativity that Husserl develops in the Prolegomena (1900). After that, I show how this scheme applies to Reinach’s project for grounding positive law. Next, I delve deeper into a critical examination of two problematic elements in Reinach’s project, his understanding of the grounding of legal normativity and of the key values in the domains of pure and positive law. Finally, I propose the direction for a suitably revised version of the project, which overcomes these issues.