Postair "Sacco is Vanzetti" le Ben SHAHN (1958)
Eitean-cèille modalach an
raoin DLIGHICH.
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The modal meaning-kernel of the
JURIDICAL aspect.
So it appeared that in the Divine world-order the aesthetic law-sphere is founded in the economic sphere. The original aesthetic modal meaning cannot exist without an economic retrocipation. The juridical modal meaning also necessarily has an economic retrocipation in its internal structure. As will be shown later on, this analogy cannot occur without its modal coherence with an aesthetic one. The general character of this complication cannot be further investigated as yet.
But what is the modal meaning-nucleus of the experiential aspect concerned? It is very difficult to render the original kernel of the juridical modality of meaning by a satisfactory term. In the first (Dutch) edition of this work I chose the word retribution (Dutch: vergelding, German: Vergeltung) [Gàidhlig: ath-dhìoladh, Gaeilge: cúiteamh]. This term was used in the pregnant sense of an irreducible mode of balancing and harmonizing individual and social interests. This mode implies a standard of proportionality regulating the legal interpretation of social facts and their factual social consequences in order to maintain the juridical balance by a just reaction, viz. the so-called legal consequences of the fact related to a juridical ground. As is easily seen, this provisional explanation of the term appeals to a complex of analogical terms. The modal meaning-kernel proper is not explained by this circumscription.
In itself this is not surprising. For in every previous analysis of a modal structure we were confronted with the same state of affairs. It is the very nature of the modal nucleus that it cannot be defined, because every circumscription of its meaning must appeal to this central moment of the aspect-structure concerned. The modal meaning-kernel itself can be grasped only in an immediate intuition and never apart from its structural context of analogies.
But the term by which this meaning-kernel is designated must be able immediately to evoke this intuition of the ultimate irreducible nucleus of the modal aspect of experience concerned.
In jurisprudence, however, the original modal meaning of the word 'retribution' has been often wrongly restricted to criminal law, i.e. to a typical manifestion of its general modal sense. And at the same time this concept has become the subject of a vehement contest between the so-called classical school in the theory of criminal law and the modern criminological trends. According to the latter the idea of retribution is nothing but a residue of the unreasonable instinct of revenge; it impedes a rational treatment of criminality. The classical school, on the other hand, handled a rigid conception of penal retribution which only left room for an abstract delict* and eliminated the person of the delinquent and his social environment.
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*FMF -
Delict [L. delictum fault.] (Law) An offense or transgression against law; (Scots Law) an offense of a lesser degree; a misdemeanor. (The Collaborative International Dictionary of English)
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It must be evident that if retribution is to be considered as the nuclear meaning of the juridical aspect, it must be detached from this typical controversy in a special branch of jurisprudence. Retribution is not only exercised in malam but also in bonam partem**.
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**FMF -
in malam partem - in a bad sense, unfavorably
in bonam partem - in a favorable manner; to the advantage
eg "In the case of ambiguity or doubt, the evidence should be interpreted in bonam partem of the accused."
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Its modal legal measure of proportionality can be applied to every possible legal consequence (Dutch: rechtsgevolg) connected with any juristic fact.
The only material question is: Does this term indeed evoke the intuition of the irreducible meaning-kernel of the juristic aspect in its general structure?
LEO POLAK's inquiry into the meaning of the term retribution.
The famous Dutch philosopher and jurist LEO POLAK, a disciple of HEYMANS, has devoted a special inquiry to the signification of this term in Indo-Germanic and Semitic languages in his work: De Zin der Vergelding, Vol. I (Amsterdam 1921), Sect. 1, Ch. II. He did not intend to conceive of retribution as the qualifying meaning-moment of the juridical aspect; his aim was only to treat it in the context of the theory of criminal law. Nevertheless, he begins with the statement that the term is also used to denote a reaction in bonam partem, viz. remuneration or recompense. According to him, the term in its general sense denotes merely a reaction in social life. Only in its strict sense of just retribution, or retribution proper, it necessarily implies the standard of proportionality or equivalency. In criminal law this signifies that punishment must be deserved pain, that the criminal gets his due in it. But also with respect to a contractual remuneration or recompense, retribution, in its pregnant sense, implies this requirement that it must be deserved, that it is a determination in a super-arbitrary way of the (juridical) value of the deed upon which it is intended to react.
Another essential implication of the pregnant meaning of the term, according to POLAK, is to be found in its being a reaction corresponding to egoistic motives. When we say that virtue or vice deserve praise and blame respectively, this is not meant in the strict sense of retribution proper: retributive consequences of the deed are deserved only once. It would be unreasonable to demand the due recompense or punishment for one and the same fact twice. Ethical praise or blame, on the contrary, are deserved continually. This refers to a different function of retributive and ethical reaction. The former means an acquittance, a mutual discharge of debt.
This would be the very reason why most terms denoting a retributive reaction are taken from economic life.
Retribution and economical life.
If this latter observation were right, the term retribution should be positively rejected as a denotation of the original meaning-kernel of the juridical aspect.
For in this case it could have only an analogical sense when referring to jural relations. But here POLAK has overlooked the fact that the very implication of a deserved reaction excludes an original economical meaning of the term. In an economical sense wage is only the price of labour, not the indebted recompense of the latter. An analogical meaning can be ascribed only to the juristic term 'equivalency' or 'proportionality', not to the term 'retributive' in its pregnant use [1]. The latter is the proper juridical qualification of the former.
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[1] In a later context POLAK has explained the essential difference between criminal legal and economic equivalence. Nevertheless, he speaks of 'indebted' wage in purely economic relations though he puts 'indebted' between inverted commas.
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It is true that the Dutch words 'vergelding' and 'vergoedind' cohere with 'geld' (money) and 'goed' (good). Nevertheless, at least in scientific language, the term 'vergelding' itself lacks an original economical meaning.
Rather in a pregnant way it designates the irreducible meaning-kernel of what is signified by the words δική, jus, justice, recht, [reachd, còir, ceartas,] diritto, droit, etc. For this very reason it can be used in jurisprudence without a general modal juridical qualification, although indeed the typical penal meaning of the word is preponderant.
It is this inner nuclear meaning of the juridical aspect of experience which from the very beginning has struck the human mind, before philosophical thought had found the methodical way to define things by their genus proximum and differentia specifica.***
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***FMF -
Ex 1: "The word fir can be defined as ‘a kind of tree [genus proximum] with evergreen needles [differentia specifica]’ (Dict. of Lexicography)
Ex 2: "genus proximum (fingerfood) and differentia specifica (canapés, chips, dip)"
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The latter method of analysis was introduced by SOCRATES, PLATO and ARISTOTLE and applied to the definition of justice. Then the intuitive insight into this modal meaning-kernel was theoretically replaced by analogical concepts detached from the inner meaning-coherence within the modal structure of the legal aspect. For it has appeared that this method is unserviceable in the analysis of the modal structures of meaning.
Justice as suum cuique tribuere and the older cosmological conception of retribution. Dikè, Anangkè, Rita and Tao.
Nevertheless, the whole Greco-Roman, patristic and medieval scholastic tradition preserved some intuitive insight into the retributive character of justice in its strict juridical sense. The characterization of the latter as suum cuique tribuere**** is based upon an older cosmological conception of justice whose retributive meaning cannot be doubted.
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****FMF -
["assign to each his own". Cf also Matt. 22:21 “Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s.”]
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The very earliest reflection on justice in its strict sense has found retribution as its 'essence'. The old Ionian philosophers of nature, HERACLITUS, the Pythagorean thinkers as well as old Indian philosophy, have stressed this meaning. It is true that they expanded justice to a general cosmic order of causality and consequently lacked the insight into the modal boundaries of the jural aspect. But it should not be forgotten that the cosmic order of time itself guarantees the inner coherence of meaning between the juridical aspect and all the other modal law-spheres. It is, consequently, not surprising that the earliest conception of a causal order in nature was inspired by the idea of justice in its original retributive sense, which in the social order urged itself upon the human mind.
The rigid and merciless character of this conception was only due to the fact that it was ruled by a pagan religious motive which led to a deification of the forces of nature not yet opened by human culture. Their retributive operation was viewed as an inescapable necessity. HERACLITUS (B. Fragm. 94) says that Dikè [right, justice] which prevents Helios (the sun) from exceeding its measures is assisted by the Ὲρινύες' [Erinyes, "Furies", goddesses of vengeance], i.e. the daughters of the inescapable Anangkè [natural necessity]. According to PARMENIDES Being is bound to its spherical form by the Dikè and the latter is identified with the 'powerful Anangkè'.
The same identification of retributive justice in the order of nature and inescapable necessity is found in the old-Indian conception of Rita [*+] explained in the Veda and in the old-Chinese idea of Tao [2][**+].
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[*+FMF] rita, Sanskrit ṛta (“truth” or “order”), in Indian religion and philosophy, the cosmic order mentioned in the Vedas, the ancient sacred scriptures of India. As Hinduism developed from the ancient Vedic religion, the concept of rita led to the doctrines of dharma (duty) and karma (accumulated effects of good and bad actions). Rita is the physical order of the universe, the order of the sacrifice, and the moral law of the world. Because of rita, the sun and moon pursue their daily journeys across the sky, and the seasons proceed in regular movement. Vedic religion features the belief that rita was guarded by Varuna, the god-sovereign, who was assisted by Mitra, the god of honour, and that the proper performance of sacrifices to the gods was necessary to guarantee its continuance. Violation (anrita) of the established order by incorrect or improper behaviour, even if unintentional, constituted sin and required careful expiation. (Encyclopædia Britannica Online)
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[2] Cf. C. CHARDON'S treatise Themis in Phil. Ref. 7th Year (1942), p. 6 ff.
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[**+FMF] dao, (Chinese: “way,” “road,” “path,” “course,” “speech,” or “method”) Wade-Giles romanization tao, the fundamental concept of Chinese philosophy. (Encyclopædia Britannica Online).
It is of interest to note the Chinese for John 14:6 ("Jesus said 'I am the Way'"):
Yē sū 耶穌 shuō 說 、wǒ 我 jiù shì 就是 dào lù 道路.
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Retribution and love in the Christian religion.
As soon, however, as the modal structure of the juridical aspect opens its anticipatory spheres, its retributive meaning-kernel loses these rigid and merciless traits without abandoning its irreducible character.
In its concentric relation to the revelation of Divine Justice in the cross of Christ, it appears to be nothing but a temporal creaturely refraction of meaning of the Divine fulness of Love which is the fulfilment of Justice.
The fact that every human execution of retribution is deformed by sin does not imply that the juridical aspect in the retributive kernel of its modal meaning-structure is of a sinful character. On the contrary, it will appear from our further examinations that in the temporal cosmic order retribution is the irreplaceable foundation of love in its modal moral sense. Only from the modal meaning-structure of the juridical aspect with its indelible retributive nuclear moment can an imperfect and sinful human legal order derive its juridical character and its claim to respect.
A positive legal order is only possible within this structural cadre of meaning. Every attempt to define the juridical nature of positive law by means of external purely phenomenal characteristics moves in a vicious circle.
The retributive character of every juridical relation. Retribution and ultra vires. The retributive meaning of rights.
The retributive mode of ordering social relations is not restricted to the narrow boundaries of penal law and private contracts.
As has been said, every really juridical relation whatever discloses this modal meaning-kernel, which urges itself upon us as soon as we analyse its modal structure. The delimitation of legal spheres of competency also has a necessarily retributive character in its juridical consequences.
Retributive justice, as HERACLITUS and PARMENIDES have rightly observed, reacts against every 'ultra vires' [***+FMF].
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[***+FMF] "Latin for beyond the powers. Its opposite is intra vires (within the powers). Invalid excess of authority or power exercised by an entity. Since the powers exercised by any officer of an organization are limited by the constituting or vesting instrument (such as a memorandum of association), any act outside those limitations is ultra vires and may be challenged in the courts. This rule is applicable to all powers, express or implied, created by a contract or statute. However, whereas an incorporated firm has no liability beyond its corporate powers, neither the firm nor a third party may use ultra vires as an excuse or defense to invalidate a contract. Stockholders (shareholders) may sue the directors of a firm for recovery of losses resulting from their ultra vires acts, and each director may be personally liable." (BusinessDictionary.com)
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It binds every legal power and subjective right to its limits. This is to say that also the attributive-imperative function in which the Russian jurist PETRACZICKY sought the ultimate distinctive trait of law, in the last analysis is qualified by the retributive meaning-kernel. Apart from the latter it has no specific juridical sense.
Within the modal aspect of social intercourse we meet with privileges attributed by convention to the higher classes; they lack every juridical sense. When, however, the attributive character of law is sought in its attribution of rights, competences, and claims balanced by duties, then the term 'attributive' ought to be taken in a retributive sense.
Does retribution essentially imply a reaction corresponding to egoistic motives? Retribution and altruism.
POLAK's opinion is that the pregnant meaning of retribution essentially implies a reaction corresponding to egoistic feeling-motives. But this view requires correction. Retribution in its pregnant original modal sense cannot react upon egoistic motives in their psychological sense, since it is not a feeling-drive. Rather it is the specific juristic modality of balancing and harmonizing social relations; it characterizes the juristic manner of interpreting social facts and their factual effects; it qualifies the juridical manner of reaction against every fact which affects this balance, viz. by requiring harmonizing consequences and redress in the case of wrong or ultra vires. In this sense it also determines the specific juristic manner of reacting against excessive factual manifestations of altruism, which threaten the juridical balance of social interests; for instance gifts prejudicing the juridical interests of creditors or legitimate children.
Our conclusion is that we can find no better term to designate the original meaning-kernel of the juridical law-sphere than retribution. Consequently we shall continue to use it.
No single analogical meaning-moment or complex of analogical meaning-moments by which legal philosophy and the general theory of law have tried to replace it, can satisfy the requirement of a real modal definition.
Such concepts as 'equality', 'proportion', 'compulsory order of communal life', etc., are unqualified analogical concepts, from which the original meaning-nucleus of the juristic aspect has been eliminated. The moment of equality (τὸ ἴσον) to which ARISTOTLE already tried to reduce the meaning of justice in its strict sense is only a mathematical analogy in the meaning of retribution. This is clear in ARISTOTLE's further differentiation of the principle of equality into arithmetical and geometrical proportions.
The modal meaning-kernel of retribution is indeed an abstraction in itself. It can reveal its modal meaning only in the coherence with quite a series of retrocipatory moments reflecting the cosmic coherence between the juridical aspect and its substratum spheres. But it qualifies the latter and not vice versa.
Aesthetic, economic, and social analogies in the modal structure of the juridical aspect.
The first modal retrocipations expressing the original meaning-nucleus are the aesthetic and the economic analogies. They will be studied a little more closely in this context. In its modal nature retributive meaning must express itself on its law-side in a well-balanced harmony of a multiplicity of interests, warding off any excessive actualizing of special concerns detrimental to others. The multiplicity of interests mentioned should be subjected to a balanced harmonizing process in the modal meaning of retribution. The aesthetic and the economic analogies are unbreakably connected with a modal social retrocipation [3], expressed in a strict correlation between communal interests and those of inter-individual relationships in juridical intercourse.
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[3] 'Social' here means: referring to the modal aspect of human intercourse. Juridical intercourse (Dutch: rechtsverkeer) is only an analogy of intercourse (Dutch: omgang) in its original meaning.
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In a 'community' the juridical subjects are united into a solidary, institutional or associational whole according to relations of authority and subjection [4].
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[4] Only the natural community implied in the larger circle of natural kinship (which should be sharply distinguished from artificial organisations like sibs or clans) lacks natural relations of authority and subjection.
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In the inter-individual relations, on the other hand, the juridical subjects are co-ordinated, and not grouped into a solidary unity according to relations of authority and subjection.
The modal meaning of retribution on the law-side is expressed in the juridical aspect first of all in a balanced harmonizing of communal and inter-individual interests, warding off any excessive, extravagant enforcement of special communal or inter-individual claims.
The analogical meaning-moments, laid bare here, express their cosmic coherence with the modal structures of the aesthetic, the economic and the social law-spheres as retrocipations, not as anticipations. This implies that the juridical law-sphere is necessarily founded in the aesthetic and the economical aspects and in the modal aspect of social intercourse. This fact is convincingly proved by the character of the most primitive juridical systems of law. As a rule, these systems do not show a trace of anticipatory functions in the meaning of retribution. And yet in primitive law retribution expresses itself in anaphoric [referring back] meaning-moments referring to the aesthetic, the economic, and the social spheres. Also in its as yet non-anticipatory form the modal meaning of retribution appeals to harmony, the economic principle, and social intercourse (all these taken in their original modal nuclear meanings) as its necessary substrata. This is the reason why even primitive retribution, in its special expression of harmonizing reaction against injustice, is something quite different from the expression of a psychic [sensory] feeling of revenge which is blind to the meaning of justice [5].
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[5] This difference is not affected by the undifferentiated character of primitive society.
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In the primitive tribal-laws excess in this reaction is excluded by a doubtless rude standard of proportion, viz. the principle of talion [eg "an eye for an eye"] or fixed tariffs of composition.
The legal consequences of a juridical fact are weighed against the juridical grounds in the harmonizing of communal and inter-individual interests while warding off excess. This happens even though there is no knowledge of the theoretical concepts of juridical fact, juridical ground and juridical effects; and although the entire procedure in which retributive harmony is realized bears an extremely primitive character.
This undeniable state of affairs, briefly mentioned in the introduction to this chapter as a philosophical problem, has now found its explanation by means of the theory of the modal structures of meaning. It is bound up with the position of the juridical aspect in the cosmic order of time.
The current modern view, according to which retribution is nothing but an expression of the primitive instinct of revenge, proves to be untenable as soon as the real meaning of this modal nucleus of law in the intermodal coherence of the aspects is laid bare.
The lingual analogy in the modal meaning-structure of retribution.
A continued analysis of the modal structure of the juridical aspect shows that the latter must also have a lingual substratum. The economic, aesthetic, and social retrocipations in the retributive modality necessarily appeal to a lingual analogy.
The analogy meant here gives clear expression to the fact that juridical relations are only possible when signified.
The smashing of a window-pane, the getting into a public means of conveyance, can only function in the legal aspect of temporal reality because they have a juridical signification as a delict, and as an indirect expression of the intention to make an agreement of conveyance respectively. And these legal significations are necessarily founded in the original meaning of symbolic signification (= language). The latter is by no means restricted to verbal language. It may be expressed in all kinds of forms of symbolic designation: in the expression of the face, in a waving of the hand, in written symbols, signals, flags etc.
This is a point that will be made clear after the more detailed discussion of the modal subject-object relation.
The juridical signification as a signified meaning is not qualified by the original meaning-nucleus of language, but by that of retribution. It is a necessary lingual analogy in the modal structure of the juridical aspect. The question, e.g., whether the absence of a so-called 'customary stipulation' in a written agreement may be interpreted as a silent acceptance of this stipulation by both parties, is a juridical question, not one of language. The signified juridical meaning of every juridical fact and of every positive juridical norm must be determined by means of a juridical interpretation. Juridical and linguistic interpretation may never be identified, though they cannot occur apart from each other. Through lack of insight into the intermodal meaning-relations between the linguistic and the jural aspect this mistake is often made in legal theories of interpretation.
Jurists have always considered the truly juridical interpretation as belonging to the juridical domain, and rightly so. They have never dreamt of relinquishing it to linguistics, just as theologians have never relinquished their truly theological interpretation to the linguists. The original juridical interpretation is primarily a part of the process of law-making in a concrete case, and not of theoretical jurisprudence. The latter can only analyse the principles and method of legal exegesis and interpret the legal norms and facts theoretically after these scientific standards. Juristic life, however, does not allow of an ultimate divergence in the juridical interpretation of norms and facts. It demands a decision which puts an end to uncertainty. A truly binding interpretation can be given by competent legal organs exclusively. If a judge interprets a juristic fact or a legal provision he thereby enacts positive law binding in concreto on the parties concerned, provided that his sentence has been brought to execution.
But the theoretical jurist as such is not competent to give a binding juridical interpretation. His interpretative activity remains of a theoretical juridical nature. It may have a very great de facto influence on the legal praxis on account of the scientific authority of the writer. In view of the increasing complexity of legal relations the scientific theoretical analysis of the juristic meaning of norms and facts is becoming more and more indispensable as a basis for a binding juridical interpretation. But in itself it has no binding legal character. This state of things has been misinterpreted by the Historical School, which wrongly elevated theoretical jurisprudence itself to the rank of a source of law. It must be granted that this misconception was due to PUCHTA more than to v. SAVIGNY. Nevertheless, VON SAVIGNY made classical the erroneous conception that looked upon juridical interpretation proper as something essentially theoretical. He held that it ought to be executed according to grammatical, logical, historical and systematic view-points. [v. SAVIGNY heeft de dwaling, als zou de juridische interpretatie in wezen van theoretischen aard zijn en als zoodanig naar grammatisch, logisch, historisch en systematisch gezichtspunt behooren te worden gevoerd, klassiek gemaakt (WdW Deel 2 p 92)]. The specific juridical viewpoint was lost sight of. His theory of interpretation is one of the causes of the error prevailing in jurisprudence up to our days that juridical interpretation can only be applied to verbal expressions of the will in legal texts, contracts and testaments.
But the structural analysis of the modal juristic meaning shows that nothing can be understood in its juridical aspect — not even an objective juridical fact like the burning down of a house if it is not interpreted according to its juridical signification. In the latter there is no original lingual sense but only a necessary lingual analogy.
Linguistic interpretation is indeed the basis for juridical interpretation, but the former cannot express the original modal meaning of the latter.
(Herman Dooyeweerd, New Critique of Theoretical Thought, Vol II/ Part I/ Chapt 2/§4 pp 129 - 138)
