Stampa-cuimhne MARTIN BUBER le Gerd Aretz (1978)
AGUS SÒISEALTA (1)
ANN AN RAON MODALACH
§5 - JURIDICAL AND SOCIAL (1) RETROCIPATIONS
IN THE MODAL ASPECT OF
(1) The adjective 'social' is again used here in the special modal sense of the aspect of intercourse ruled by the norms of courtesy, good manners, tact, sociableness, fashion and so on; not in the comprehensive sense of social life embracing all modal aspects of experience.
Finally we shall investigate some retrocipations in the modal structure of the ethical law-sphere to exemplify our method of analysis and to find the place of the moral aspect in the cosmic order of time.
It is demonstrable that the juridical law-sphere can disclose its inner coherence with the moral aspect only in the anticipatory sphere of its modal structure. For it has appeared that the juridical moment of guilt, the juridical figures of 'good faith', of 'good morals', of 'equity', etc. are obviously anticipatory meaning-figures which are not yet found in a primitive system of law (except for some incidental beginnings of the opening-process of the legal meaning). In such a primitive legal order only the retrocipatory meaning-coherence is expressed. Then it follows that the reverse is also true, viz. that in the modal meaning-structure of the ethical law-sphere we can trace an analogy of the jural aspect.
RUDOLPH VON JHERING called the logical distinction between law and morality the 'Cape Horn' (2) of legal philosophy. It would be more correct, perhaps, to say that if the modal boundaries between the different law-spheres are neglected, every theoretical distinction of a meaning-aspect from the others is a veritable 'Cape Horn' of philosophy. For how is theoretical thought to form a correct notion of these meaning-aspects, if their modal structure in the intermodal coherence of the cosmic time-order is lost sight of ?
(2) Cape Horn was notorious for its dangerous storms.
The prevailing logical distinction between law and morality.
Under the influence of KANT it has become customary to seek the difference between the jural sphere and morality in external legality in contrast to inner morality, i.e. external conformity to the law versus inner respect for the law. Legal order, according to this view, demands only external behaviour; the moral law, however, as the autonomous categorical imperative, applies to the inner disposition of the will.
This difference is usually expressed by the contrast of heteronomy versus autonomy. Law was supposed to be a heteronomous order, in so far as the inner motive is irrelevant to lawful conduct.
Consequently, the fear of punishment, the hope for some advantage are acceptable to the legal order as motives. According to KANT such motives do not originate from the 'pure moral will' itself but from outside, from man's sensory nature.
Modern positivistic jurists like AUSTIN and FELIX SOMLO, who have broken with ROUSSEAU's and KANT's natural law view of statute law as "volonté générale" (the general will), interpret the distinction between heteronomy* and autonomy in a different way.
1. Subordination or subjection to the law of another; political subjection of a community or state; -- opposed to autonomy.
2. (Metaph.) A term applied by Kant to those laws which are imposed on us from without, or the violence done to us by our passions, wants, or desires. --Krauth-Fleming. [1913 Webster]
They hold that positive law, as a heteronomous order, has not the individual conscience for its source, but is simply imposed on the individual persons by a sovereign power; whereas ideal morality (not to be identified with positive morality) is alleged not to allow of this heteronomy.
Further, as a result of the former distinction, morality is supposed not to brook any compulsion, while compulsion (at least the competence to exercise compulsion) is taken to be a logical characteristic of law.
At present the prevailing conception (but not in the naturalistic sociological view) distinguishes between legal order and morality according to a threefold criterion:
1 - law is an external social order; morality is an internal norm of the individual human conscience;
2 - law is heteronomous, imposed by an external authority; morality is only binding on the individual conscience;
3 - law is a compulsory order sanctioned by organized constraint; morality demands voluntary observance.
A preliminary question. Does there exist a modal ethical law-sphere or moral aspect of experience with an irreducible modal meaning? The distinction between the world of experience and the I-thou relation in Jewish and Christian existentialism.
From our previous analysis of the modal structure of law it has appeared that this distinction is quite unsatisfactory with respect to the inner modal meaning of the juridical aspect.
Does it correspond to the inner modal sense of morality? Here a preliminary question urges itself upon Christian thought. In our earlier investigations it was continually supposed that there exists a specific ethical or moral modal law-sphere. But can this supposition be maintained from the Christian viewpoint?
In the first place a serious objection may be expected on the part of modern Christian existentialism which from the Jewish thinker MARTIN BUBER has taken over the sharp distinction between 'experience of the world' and the 'I-thou-relation' (3).
(3) MARTIN BUBER, lch und Du (1923). The influence of BUBER is important, especially among the adherents of dialectical theology who have written ethical works (EMIL BRUNNER, FR. GOGARTEN and others).
The former would have to do only with 'impersonal objects' as things, laws and so on. The latter, on the contrary, is intrinsically personal and existential, the realm of personal freedom and existential responsibility, the sphere of a real meeting between I and thou which does not allow of general rules and laws, nor of boundaries of modal spheres. Since the ethical relations are supposed to show to a high degree this personal and existential character, the idea of an 'ethical law-sphere' must be fundamentally rejected by these Christian thinkers.
When, however, we subject this existentialistic view of ethics to a transcendental critique, it appears to be ruled by a dialectical religious motive in which the Humanistic motive of nature and freedom, in its irrationalist conception, is an essential component.
The dialectical distinction between the 'world of experience' as an impersonal I-it relation and the existential I-thou relation is nothing but a modern irrationalist version of the dialectical basic-motive of Humanism. It is intrinsically un-Biblical.
It deforms the integral structure of human experience and eliminates its relation to the central religious sphere.
The world of experience seems to be impersonal and non-existential only if we identify it with an absolutized theoretical abstraction ('nature' in the sense of the classical Humanist science-ideal). But this absolutized abstraction has nothing to do with the modal horizon of human experience in its integral meaning from which we have started. On the other hand, the real meeting of I and thou is in the deepest sense a central, religious relation, which indeed does not allow of modal boundaries of law-spheres. But if this central relation is sought within the temporal order of human existence, one gives oneself up to an idolatrous illusion.
Nevertheless, it is exactly the relation between Christian religion and ethics which is to be considered as the 'Cape Horn' of every Christian view of 'the moral sphere'. Can there be room for a modal moral aspect of human existence and experience which is to be distinguished from the central religious relation of I-we and I-Thou subjected to the central commandment of Love?
Can there be an ethical norm of love which is not identical with this commandment? If so, what is the meaning-kernel of the supposed moral aspect in which this norm functions? In our provisional delimitation of the ethical law-sphere we have assumed that this nuclear-meaning is to be designated by the word love. But if, according to the Biblical view, love is the very totality of meaning, the religious radical unity of all temporal modal diversity of law-spheres, how can there be room for love as a modal aspect of temporal human experience and empirical reality?
(Herman Dooyeweerd, New Critique of Theoretical Thought, Vol II/ Part I/ Chapt 2/§5 pp 140-144)