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).
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.