L’expérience juridique – Esquisse d’une dialectique

François Gilliard

François Gilliard, L’expérience juridique – Esquisse d’une dialectique (Tra­­vaux de droit, d’économique, de sociologie et de sciences politiques, vol. 119), Genève/Paris: Librairie Droz, 1979, pp. 37-82.

Introduction/Historical Situation and Systematic Context

The somewhat misleading title could easily refer to the current of so-called legal philosophy based upon experience, as it was inaugurated by Giuseppe Capograssi (Studi sull’esperienza giuridica (1932), in: Opere, vol. 2, Milano: A. Giuffrè, 1959, pp. 211 ss.), and as it has also been proposed by Miguel Reale (O direito como experiência (Il diritto come esperienza), Såo Paulo: Ediçåo Saraiva, 1968 (Milano: A. Giuffrè, 1973). However, experience can also serve to delimit, where legal science is possible and where the realm of legal experience begins. It serves to denominate the relation between the subject and the object of legal cognition, and in consequence to separate subjective from objective knowledge of the legal sphere. That this attempt is labelled as dialectical, even increases the ambiguities, as normally in philosophical thought in the tradition of Hegelianism, dialectical logics are considered to be a means to overcome traditional views of subjectivity and objectivity.

Content, Abstracts/Conclusions, Insights, Evidence

It is this ontological trap, that François Gilliard falls in, when he is opting for Hans Kelsen’s “Reine Rechtslehre” as a guide. Two forms of legal experience are distinguished, one unhidden and the other closed. The authority of the legal order is, therefore, to be identified as ontological. The state is reduced, thereby, to the rule of law, neglecting all sociological and political elements, and by doing so also the philosophical moments. Despite all the insufficiencies and inadequacies, this attempt is highly significant as a warning for free adaptions of legal theories. The normally unconscious heritage of this kind of legal thought consists in a non-reflected system building within a legal order (“Stufenbau der Rechtsordnung”; “chaîne des normes”), where the ordering principle is characterised merely rational and intellectual. This approach leads to misconceptions of the relations between different legal orders, that cannot be judged based on hierarchical ideas of order, but only founded on a differed view on the complexity of interrelations between multiple legal orders or parts of a unified legal order (see Roman Schnur: Einleitung, in: Institution und Recht (Wege der Forschung, vol. 572), ed. Roman Schnur, Darmstadt: Wissenschaftliche Buchgesellschaft, 1968, pp. VII ss.; with reference to Santi Romano and Maurice-Jean-Claude-Eugène Hauriou).

Further Information About the Author

François Gilliard, born on 25 October 1921, died 27 November 2003, followed his studies in jurisprudence at the University of Lausanne, with semesters at the Sorbonne University in Paris (he studied with René Le Senne and Jean Hyppolite). From 1952 to 1961 he was extraordinary professor, then until 1987 ordinary professor for private law at the University of Lausanne. He was also charged by lectures on legal philosophy.

Selected Works of the Same Author

François Gilliard: La relation sujet-objet et ses avatars dans la génèse du juridique (Travaux des sciences sociales), Lausanne: Droz, 2002.

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