9.1 Introduction
Edmund Husserl’s work has been studied with regard to his phenomenology of the state, less so his phenomenology of law – probably because the scattered reflections on it did not seem to yield rich results.Footnote 1 However, A. Reinach, G. Husserl as well as A. Troller and others adopted phenomenological methods in their works on the philosophy of lawFootnote 2 which were particularly fruitful concerning the concept of time and law.
For legal phenomenologists, time is not a structure external to law, as it belongs to the social world and thus also to the realm of law.Footnote 3 Drawing on Edmund Husserl’s phenomenology, Adolf Reinach and Husserl’s son Gerhart emphasized the importance of time for the understanding of the nature of law. To reveal the temporality of law, both begin with a qualitative time based on the temporal dimensions of present, future and past. They then distinguished this time from an objective and external time series of ‘earlier-than/later-than’.Footnote 4 Duration or extended present thus becomes the central temporal event for this qualitative time. In this way, both legal phenomenologists opened up conceptual possibilities for the understanding of the temporality of law that is distinct from natural and other social times. However, while Gerhart Husserl was able to work with his father’s lectures on the ‘Phenomenology of Internal Time Consciousness’ published in 1928,Footnote 5 Reinach’s approaches were devised independently and, in many ways, represent pioneering work for the exploration of the temporality of law based on the earlier Realistic Phenomenology. Reinach’s early death, at the age of thirty-three, meant he only managed to deal with the temporality of law in a fragmentary way in his ‘Die apriorischen Grundlagen des bürgerlichen Rechtes’ (‘The Apriori Foundations of Civil Law’), determining it as an essential structural element of the special existence of law. Gerhart Husserl, on several occasions, analyzed questions of law and time from the perspective of transcendental phenomenology and even Heidegger’s ‘Fundamental Ontology’.Footnote 6 Even if the presented elements of a theory of time and law remain very abstract, both succeed in determining time – far more than space – as a basic dimension of law. Considering the procedural character of modern law as well as the necessary temporality and historicity of legal discourses, both Reinach and Husserl thus throw a new light on an essential aspect of the structure of law. This alone is reason enough to take a closer look at some of the key points in the writing of both.
9.2 Adolf Reinach’s Approaches to a Theory of Law and Time
Reinach accomplished for the structure of law what Rudolf Stammler worked on for its ethical content: the determination of an essential a priori.Footnote 7 Reinach focused on an ‘ontology of law’ or an ‘apriorische Gegenstandslehre’ (‘a priori theory of objects’). What, for Stammler, was the ‘correct law’ (‘Richtiges Recht’) in the sense of a ‘natural law with changing content’Footnote 8 or an unconditional ideal for all changing content of natural law.Footnote 9 was for Reinach the ‘social act’ of law.Footnote 10 Reinach took into account the changeability of the living conditions of law but maintained that the content of positive law has its origin in a priori structures of legal social acts.Footnote 11 While Stammler’s ideal form allows for changing natural law content as a measure of positive law, Reinach viewed every social act that produces positive law as having an a priori nature.Footnote 12 This essence is not normative for positive law but contains its substantial characteristics. At the same time, this essence gives the ontological foundation of contingent positive law. Reinach’s approach distinguishes him from both legal positivists and natural law theorists: He is not looking for essential normative foundations of positive law or of right principles in a moral sense of natural law theory but for the essence of concrete legal rules. Reinach saw the temporality between the timelessness of logical and mathematical objects on the one hand and the simple being in time of physical and psychological objects on the other as belonging to the a priori structures of law.
For Reinach, the neglected study of the specific temporal structure of legal objects by his contemporaries was a major reason for his phenomenological analysis of the a priori foundations of law.Footnote 13 Legal ontology is supposed to lead us to new kinds of objects, which differ in structure from nature, namely the objects of psychology and ideal things. While temporality is an important element of their structure,Footnote 14 Reinach did not elaborate on his phenomenology of the temporality of law systematically. It is almost like Augustine, whom Reinach quoted with a statement from the ‘Confessiones’: ‘If you do not ask me what it is, I believe that I know. But if you ask me, then I no longer know it’.Footnote 15 Augustine then developed his theory of time from this question. Reinach leaves us with many ideas regarding a phenomenology of time in his works,Footnote 16 although in them he criticizes sciences that are only concerned with proving the existence of certain phenomena ‘at some point of objective time’.Footnote 17 He deemed that just as it would be wrong to describe the essence of red in physical terms of wavelength oscillations, it is also wrong to base the temporality resulting from the essence of law on an objective time.Footnote 18 The mistake here lies in trying to explain a color by using something else, in this case, a limited metric like the wavelength of light. As such, Reinach’s phenomenology sought to avoid this problem by leading to the essence of the experienced phenomenon itself. To do this, he claimed that we have to ‘put ourselves in the place’ (‘hineinversetzen’) of law and its temporality and not try to explain it through something else.Footnote 19 Therefore, both the timelessness of the a priori foundations of law and the temporality of positive law tell us something important about Reinach’s view of the nature of law. Both aspects are grounded in the structures of this essence (‘Sein’/‘Being’) of law, which constitutes the legal a priori.
9.2.1 The Timelessness of the Legal A Priori
If one were to analyze law exclusively in terms of positivist legal theories, then, according to Reinach, one could only observe the constant changes in its enactment and expiration over time – where time means natural (astronomical or atomic) time.Footnote 20 One could neither demonstrate the generalizable structures of law nor do justice to legal temporality.Footnote 21 However, law does not neatly fall into a seemingly given and objective time and history but has its specific temporality which only becomes clear once its a priori structures are revealed.
Like the classical theories of law and time, Reinach also began with the timeless structures of law. However, unlike ancient and medieval metaphysics and their natural law theories,Footnote 22 he did not presuppose the existence of eternal laws. Nevertheless, Reinach shared their goal: the search for eternal truths that underlie the law:Footnote 23 ‘We are concerned with descending down to the ultimate elements of right, which that authority cannot “create”, and to the essential laws, to which it is indeed not bound but which have an eternal being which it cannot touch’.Footnote 24 Neither induction and abstraction from positive law nor new legal principles are sufficient to demonstrate the existence of prepositive legal principles as the latter exist independently and have timeless validity. Here, Reinach follows Edmund Husserl’s concept of the ‘material apriori’Footnote 25 in the early phase of his eidetic-realistic approach.Footnote 26 Any new period of history will likely negate these abstractions, and new legal principles will have to change with new moral convictions and economic developments. Law and jurisprudence gain their principles from the ‘constantly changing content from the content of the times’.Footnote 27 However, this does not mean that the a priori legal structures change with positive law. Rather, every sentence of positive law is necessarily preceded by an a priori structure: ‘[T]hese structures and relations subsist antecedent to law; they are not defined by reference to it’, as Duxbury puts it.Footnote 28
Like other German legal theorists at the end of the nineteenth century, Reinach wanted to base jurisprudence as a scientific discipline on principles that were timeless as in other sciences.Footnote 29 What stood in the way, in his view, was the positivist assumption that all law – in form and substance – was produced by social action and that no legal foundations can be found prior to this production: ‘We really do find what one has so emphatically denied: the positive law finds the legal concepts which enter into it; in absolutely no way does it produce them’.Footnote 30 Reinach argued that the foundations of law are not exhausted in their positive form and only positivism dwells on the laws of ought created by the legislator himself, while legal ontology goes back to the laws of being.Footnote 31 Furthermore, he noted that the search for nonpositive foundations of law does not have to resort to purely formal, logical or methodological principles nor does law find its independent foundation merely in eternal material principles alone, as the doctrine of natural law asserts. Rather, for him all law is based on structures which it does not create, but which it must presuppose. Reinach laid great stress on the assumption that there are principles of all positive law that ‘are independent of our grasp of them, just as are the laws of mathematics’.Footnote 32 These constitute the being or essence of law.Footnote 33 Thereby Reinach wanted to establish law as an independent sphere between physics or psychology and logic.Footnote 34 Ontology is supposed to give us insights into the essential structures of independent objects. It is to teach us about the essential foundations of law ‘which stand in themselves and are timelessly valid’.Footnote 35 Thus, unlike Immanuel Kant’s approach, Reinach held that the a priori foundations are not transcendental conditions of the possibility of knowledge, but of being itself.
The whole purpose of his ‘Apriori Foundations of Civil Law’ is to analyze these ‘essential laws’ with an ‘eternal being’.Footnote 36 Positive law can depart from them and even ignore them but is still based on them. They subsist in positive law and are already there when it formulates its propositions.Footnote 37 For Reinach, positive law is therefore neither cognitively nor normatively conditioned by the a priori structures but rather by social fact. Positive law can indeed deviate from such structures, although it can never change them. If the connection is true, then positive law is the embodiment of these a priori structures. The temporal legal acts then temporalize the timeless a priori structures: Whenever an event occurs at moment M, a certain consequence F (e.g., a claim) must occur. This ‘clear determination of temporal existence’ by the a priori legal structures creates a certainty of orientation.Footnote 38 The pure concepts of law are embedded in these structuresFootnote 39 and the search for them is also a legitimate concern of natural law doctrines.Footnote 40 These doctrines were wrong not to take into account the changeable conditions of life on which the validity of such permanent principles is based. Despite this critique of natural law, however, Reinach tried to avoid falling into the trap of positivist theories. While some natural law theories assume timeless or even variable but not arbitrarily changeable principles of good, correct positive law, the a priori structures necessarily underlie all law – morally good as well as bad. The a priori foundations of law do not denote a higher or better law but simply the essence of law as it is.Footnote 41
9.2.2 The Temporality of Law
As with his consideration of many other aspects of law, Reinach did not develop a full theory of its temporality. However, he emphasized the temporality of law as an important structure and gave many examples of it. The following traces these examples and brings them together within the framework of some common principles.
According to Reinach, when one looks at legal entities and structures from a phenomenological perspective, one can recognize a separate group of objects with their own mode of existence. These objects ‘do not belong to nature in the proper sense, which are neither physical nor psychical and which are at the same time different from all ideal objects in virtue of their temporality’.Footnote 42 Their temporality is a crucial factor in understanding the nature of legal objects. As such, the following begins by looking at Reinach’s notions of temporality and then presents his theoretical approaches to social and legal time.
9.2.2.1 Time and Space
Reinach developed a conception of the temporality of legal objects between the timelessness of the essential foundations of law and the temporality of natural objects. The a priori foundations of law have an atemporal nature: They exist without relation to a specific time. While we have seen that Reinach calls them ‘eternal’, this timelessness of the a priori foundations of law tells us little about the temporality of law itself. Reinach wanted to show that in addition to natural things which are, of course, ‘in’ time, there are also objects of knowledge in the form of social acts which exist in their own temporal world.Footnote 43 In addition to their characteristic need to be consciously perceived (‘Vernehmungsbedürftigkeit’) and the presence of other characteristics common to social acts, namely intentionality, spontaneity and other-directedness, their temporality is an essential feature.Footnote 44 Social acts exist in their ‘own world of temporal … objects’ (in German: ‘eigene Welt zeitlicher … Gegenständlichkeiten’).Footnote 45 However, we already know that Reinach assumed that all law is based on a timeless foundation of the being or essence of its principles. This must also include the ontological foundations of the temporal structures of law itself. Just as law has an independent being that distinguishes it from all other objects, it also has a time structure that is not simply absorbed into the time structure of logical, natural things or the psyche. As little can be determined of the necessary properties of law from an examination of positive law alone, similarly, little can be determined about law’s temporal structure by examining only its historical emergence and passing away or from dates, periods, deadlines and so forth. As such, Reinach sought the foundations of the temporality of law in its a priori foundation.
For Reinach, the concept of temporality (‘Zeitlichkeit’) is logically ambiguous. The diagnosed ambivalence lies in the fact that processes ‘constitute themselves in time … but a thing is in time’.Footnote 46 Here, the preposition ‘in’ is used for both processes and things. For clarity’s sake, instead of ‘constitute’ and ‘are’, one could probably be allowed to say that processes bring themselves forth in time and things fall into time. Thus, by virtue of ‘constituting’, processes have a more active relation to time than things. It will soon become apparent that this difference between an active ‘bringing forth’ and a passive ‘falling into time’ is important for the temporality of social acts and law. Furthermore, Reinach held that processes are built up over time: they come into being, last for a while and then come to an end.Footnote 47 In contrast, states (‘Zustände’) lack this dynamic: they are in a certain sense complete and exist for a while, so they last. Whether one agrees with this or not, it is clear how Reinach tried to identify essential temporal differences between the phenomena of ‘process’ and ‘state’.Footnote 48 From an ontological perspective, this is precisely where ideal, natural and social or legal objects differ: Ideal objects are timeless – like the a priori foundations of law; natural objects fall into a time that is external to them while social and especially legal objects bring forth a particular characteristic of time. This is true even if they, in a certain respect, also fall into a natural time and may refer to natural time. Nevertheless, this relation to natural time remains external to them. With the foregoing in mind, it seems appropriate to provide a closer analysis of Reinach’s approach.
Reinach distinguished space, time and duration as different forms of continuity.Footnote 49 One finds continuity in both a line that is spatially continuous and a duration that is temporally continuous. What such a line and duration have in common is that their continuity is not composed of their parts. That is to say that many points do not result in a continuous line, nor do many moments result in a continuous time. They can only limit the continuum, not create it: Just as the beginning and end points limit a straight line, moments can limit time. However, this does not change the fact that time remains a continuum and even its smallest part does not become a moment. The parts of time always remain time and do not become something else, namely noncontinuous moments. Duration is a temporal continuum, however, according to Reinach, it can be interrupted. Thus, he argued that when it is divided, there is no duration between the two ‘pieces’ of duration, only time. This is because duration refers to a process that starts, goes on for a while and then stops. It is, therefore, characterized by the process and the process takes time. Duration is that which has a beginning and an end in time.Footnote 50 Because the process consumes something of time, it presupposes time. Although the process produces its duration, it leaves the primary time unchanged and can therefore be measured by it. This is why Reinach also speaks of time as the ‘primary’ and duration as the ‘secondary’ continuum. Duration, however, is peculiar to the process, ‘Every process has its duration, which belongs to it alone, while several processes can take place in the same time’.Footnote 51 One could say, then, that duration is time that is determined by a process, in that this process begins, has a certain course and ends. The consideration provided here will, therefore, call the temporality of duration based on the nature of social acts as processes ‘qualitative time’. In contrast, following Reinach’s terminology, time as a ‘primary continuum’ is not characterized by processes and, it is therefore referred to here as ‘objective time’.Footnote 52
Not all temporal phenomena are continua, for example, moments.Footnote 53 The beginning and end of the durations are moments that are not continuous, although they are still temporal. They have a different temporal structure than the duration that they limit and the time to which they refer. They depend on the process whose beginning and end they mark. Moments do not become, they simply are. Similarly, a state (‘Zustand’) does not become, it just is. Processes, however, become. Additionally, if this becoming has the temporality of duration, then Reinach can say that moments and states are nontemporal,Footnote 54 however, they still refer to objective time.
The difference between the line as a space continuum and the duration as a time continuum lies in their genesis. Reinach did not seem to accept Kant’s view that the unity of such a line can be explained by the temporal activity of drawing it.Footnote 55 It is not subjective consciousness or activity that creates the distance or the duration, it is the particular quality of the process. What is important for an understanding of the temporality of law, however, is the duration. Social acts are the processes that create duration and, correspondingly, legal acts such as a promise or a determination produce legal duration. This duration of legal processes as a temporal phenomenon can then also be related to the time they take. Thus, social time is not constituted by a line of independently fixed points in time that are earlier or later in the sense of an arrow of time but by the relative social acts that shape the present and, in relation to it, the future and the past. Social time – and with it legal time – is relative to the associated acts. The fact that social acts and law have their own temporality does not mean that they cannot be related to natural time, which can be measured by clocks. However, for Reinach, it was something else to examine the particular kind of present – instantaneous or extended in time – and to answer this question in the essence of the act or to relate it to measurable time.Footnote 56
If one accepts the validity of Reinach’s approach, he can help to understand that, firstly, the qualitative time of duration becomes an expression of the essence of processes, secondly, that these processes are social acts, and, therefore, thirdly, that unlike a spatialized time of ‘earlier than’ or ‘later than’, this concept of time is relative and not absolute.
9.2.2.2 Legal Temporality Based on Social Acts
For Reinach, the general ability to endure is a prerequisite for becoming a subject of law.Footnote 57 Mathematical objects do not have this ability. They do not participate in the coming into being and passing away of judged and measured natural things as, among other things, they are extratemporal.Footnote 58 Feelings and other mental events arise and pass away with a corresponding mental agitation. Legal entities such as a right or obligation are neither extratemporal nor do they arise or pass away with a psychical impulse or as a result of simple natural events. They continue even after the psychic impulse has ceased and independently of natural events unless the law explicitly refers to them.Footnote 59 This duration is necessarily part of the essence of the claim, as Reinach pointed out: Legal objects ‘seem to be temporal objects of a special kind of which one has not yet taken notice’.Footnote 60 This temporal structure – that they are neither merely natural-temporal nor extratemporal – is essential to legal objects.Footnote 61
First of all, it is noticeable that Reinach did not base his analysis of the a priori foundations of law on the concept of norms as, for example, Hans Kelsen does, but on social acts that can bring about ‘determinations’ (‘Bestimmungen’) as ‘normations’ (‘Normierungen’).Footnote 62 Not only does he criticize the polysemy of the term ‘norm’Footnote 63 but his starting point is different. Following Reinach, in contrast to natural law theories, not even the a priori foundations of law produce normative permissions or prohibitions.Footnote 64 They are ‘eternal laws of being’, not normative propositions.Footnote 65 If one adds the a priori structures, one can say that eternal a priori laws of being lay the foundation for the temporal social acts that produce ‘being-ought’ (‘Sein-Sollen’) through ‘determinations’. This is an essential preliminary decision for the temporality of law: whereas norms, as propositions, ought to aim at binding the future, the primary time dimension of acts is the present. Reinach even admitted that the ought-to-beFootnote 66 set by a legislator cannot be realized immediately. He distinguishes this from a provision in private law, which – like the waiver of a right – has immediate effect.Footnote 67 However, he avoids the consequence that in a legal system these legislative provisions – and thus norms – are the normal case that only provide the framework for the directly effective ‘determinations’. In other words, the legislator’s binding of the future only creates the legal precondition for the immediate effectiveness of civil law provisions.
Reinach, in contrast, started from the social act that is effective now and looks from there to the future binding of the ought-to-be. Social acts are intentional and spontaneous actions that are directed at another person and must be consciously perceived by that person.Footnote 68 The norm is, therefore, simply something that social acts can produce. In any case, in this way, he fails to conceptualize the structural principle of the hierarchical construction of norms as future obligations, which is characteristic of differentiated modern legal systems. Therefore, he misses a characteristic element of differentiated modern legal systems, according to which the determination of norms takes place in a tiered system of competences and procedures (‘Stufenbau der Rechtsordnung’). What is crucial to understand here is that by focusing on the social act as the foundation of law rather than the norm, the present becomes the defining dimension of the law rather than the future obligation.
The temporality of social acts is thus the basis for the temporality of law. In this sense, for example, conviction and assertion differ essentially in their temporality: While a conviction lasts, an assertion has no temporal extension.Footnote 69 As was the case for Franz Brentano, the present is also the central temporal dimension for Reinach. When a social act is performed, ‘something new enters the world’Footnote 70 and ‘something is thereby changed in the world’.Footnote 71 The social world of ‘other-directedness’ is not as it was before. Therefore, the social act is historical. In contrast, the past only generates ‘cold knowledge’.Footnote 72 Moreover, social acts have a teleological structure, namely they are aimed at a future event.Footnote 73 The minimal future event is that social acts become effective only when they are consciously perceived (‘vernommen’) or the addressee becomes aware of them (‘innewerden’).Footnote 74 Such a social act can be aimed at or produce a certain future, just as a question may be phrased in a manner that elicits a particular response. In the case of the social act of questioning, an extended present is simultaneously created in which the questioner waits for the answer.Footnote 75 Much natural time may pass during the waiting period, which can be measured with a watch, however, the question lasts until it is answered or until an answer can no longer be expected. The expression of the answer is a responding act that closes the future opened up by the question.Footnote 76 Successful communication requires the simultaneity of speaking and listening.Footnote 77 The fact that this time is also measurable in a natural time is not essential to communication, but only an external circumstance. If one follows Reinach to this point, one must distinguish duration, which is an expression of the subject, from this external relation to a time.
However, for Reinach not all social actions have the present as their characteristic temporal dimension as many may have a nature that is related to the past. When one apologizes, congratulates, thanks, praises and so forth, such acts necessarily refer to the past.Footnote 78 Other social actions cannot refer to the past, such as obligation and demand, which refer to the future.Footnote 79
9.2.2.3 The Temporality of Legal Acts
As noted above, for Reinach many social acts refer specifically to the temporal dimensions of the future, present and past. However, within these categories, acts can be distinguished between, such as with a command from a request: A command opens a social present that can only be closed by a future act – the fulfillment of the command. In this scenario, as with a question and answer, the first social act requires a future responding act.Footnote 80 Commands and questions are social acts that open a future that remains until the intended act – fulfillment, response – occurs.Footnote 81 Here, an intended future opens an extended present.Footnote 82
Reinach shows that an offer and acceptance also have a specific temporal structure, resulting from their nature. One cannot accept an offer through information or a communication, but only through a specific utterance of a presentistic nature. One should, therefore, temporally distinguish the ‘rigid’ legal act of acceptance of ‘I hereby accept’ from the narrative ‘I have already inwardly agreed’ and a declaration of intent, namely ‘I will agree’.Footnote 83 Like the ‘I do’ of the bridal couple in a church or before the registrar, acceptance is a performative act that can only take place and fulfill its meaning in the present. The groom, who holds out the prospect of saying ‘I do’ to his bride and does not actually say ‘I do’ is signaling to her that he is not serious about his intention and wants to think it over. The same is true for any potential contracting partner who only indicates acceptance. If the potential partner does not give any reasons for this, the delay in making his or her intention known is a reason to doubt if an intention to enter into the contract exists.Footnote 84
As is well known, for Reinach, the basic legal act is the promise. Promises have a particular temporal structure because, as social acts, promises are processes with a specific temporal duration.Footnote 85 While a message can refer to the present, the future and/or past, a promise, like a command or request, ‘always refers to a future time’.Footnote 86 However, while the behavior of others is central to commands and requests, a promise is centered on the person making the promise.Footnote 87 For Reinach, the promisor irrevocably binds his or her future in the presence of the promisee, even without the other’s acceptance, when the promise is consciously perceived (‘vernommen’). In this way, the promisor initiates ‘a train of events’.Footnote 88 The claim and obligating nature of a promise arises immediately when it is made.Footnote 89 Unlike experiences, a claim or an obligation arising from a promise ‘can last for years’.Footnote 90 Reinach can show that a promise has a teleological structure, ‘an inherent tendency to an end and to dissolve’.Footnote 91 Unlike the transfer of property, for example, which exhausts itself in its efficacy,Footnote 92 a promise refers to future action.Footnote 93 With Franz Brentano one could say that the still unreal future only becomes reality through the binding nature of the promise because it is made present.Footnote 94 The temporal structure of promises, claims and obligations is thus an important distinguishing feature from other phenomena such as experiences. From this structure, Reinach concluded that claim and obligation ‘seem to be temporal objects of a special kind’.Footnote 95
In his discussion with Wilhelm Schuppe, Reinach returned to this temporal structure. Whereas Schuppe believed that the immutability of the obligation results from the trust of the recipient rather than from the promise, Reinach countered that the obligation follows from the nature of the promise itself. Irrespective of whether the promisor has granted the promisee a right of revocation or has made a conditional promise, the promise is irrevocable ‘from the outset’. This means that a promise creates its future obligation and the extended present the moment it is made and consciously received.Footnote 96
The declaration of a promise establishes the present of the future obligation of that promise even without the acceptance of the addressee of the promisee. The promisor may, of course, make his promise conditional on the acceptance of the addressee.Footnote 97 In this case, if the addressee does not accept the promise or rejects it, no claim or obligation arises. This acceptance of the promise has a different time structure than the promise itself and, as has already been explained, it can only take place in the present.Footnote 98 Neither the person who indicates acceptance nor the person who promises to accept has actually accepted. An acceptor must accept by stating, for example, ‘I hereby accept’. This ‘I hereby accept’ establishes the present necessary for acceptance. Acceptance can only take place as a performative, present declarationFootnote 99 – or as Reinach would later say, ‘determination’. With Reinach we can conclude that, while a promise necessarily has a temporal structure of the future, an acceptance necessarily has a temporal structure of the present.
It seems appropriate at this point to follow an interesting modification that Reinach made when he introduced ‘conditional promises’ and ‘promises with conditional content’.Footnote 100 In both cases, a promisor modifies the extended present, albeit in different ways. With both modifications, one may ask: How are we to understand the time between the act of promising and the occurrence of the condition? In a ‘conditional promise’, the promisor makes the efficacy of the resultant obligation dependent on a possible future event.Footnote 101 For example, at time t, a promisor says: ‘I will only commit myself to action X when (time t’) I know that you will commit yourself to action Y’. Only when the condition is fulfilled is the promisor obliged to do X, without any further acts being required from either the promisor or the promisee.Footnote 102 For the act at time t, it is essential that the occurrence of the future event of the condition is open. In other words: by its very nature (‘essentially required’, according to Reinach), the condition has the character of an open future. If the future event were already certain when the promise is made, the effectiveness of the obligation could, at best, be limited in time.Footnote 103 In contrast, in a case involving a ‘promise with conditional content’, the promisor enters into an obligation immediately but ties its content to certain conditions that must be fulfilled: ‘I promise now (time t) to start doing X until Y happens (time t’)’. This obligation arises immediately when the promise is made, and thus represents the normal case of a promise.
What is interesting about both modifications of a promise is how to understand the time between the making of the promise and the fulfillment of the condition (t – t’). In the case of a ‘conditional promise’, this extended present has an ‘at first’ or provisional character, that is, it is oriented toward the occurrence of the condition and ends with the corresponding event. If the promisor makes a conditional promise, then the claim and obligation arise with the occurrence of the event specified in the condition (‘conditional promise’) and expire as if the promise had never been made the moment it becomes clear that the specified event will not occur.Footnote 104 In the meantime, the obligation does not exist and, therefore, it is not yet possible to waive the performance of the promise. Here, ‘initially’ means that the promisee’s waiver only becomes effective when the condition occurs, namely, in the period of time limited by the occurrence of the condition set by the promisor when the promisee can waive the claim just as conditionally. The same moment t’ becomes the condition for the emergence of the claim and the condition for the waiver: ‘The coming into existence of the claim is here the immediate cause of its death’.Footnote 105 The period of time t – t’ has the character of the provisional. In the case of conditional renunciation, the period lasts until the moment t’, which acquires the character of a common present through the condition of its obligation set by the promisor and the condition of its renunciation set by the promisee. Conversely, in the case of a ‘promise with conditional content’, the obligation is created immediately. Following Reinach, therefore a promisee may waive the relevant obligation during the entire period. This possibility to waive does not arise with the occurrence of the substantive condition but ends then. It is only in this respect that it is provisional: It is not a promisor’s obligation that is provisional, but rather only the performance of that obligation. In the time span t – t’ everything is related: the promise and the possibility of renunciation. Thus, by modifying the promise, a promisor has the power to make the extended present t – t’ temporally as provisional toward a future event (‘conditional promise’) or already as fully realized (‘promise with conditional content’).Footnote 106 At any moment of the extended present t – t’, the promisee can react with a renunciation. In both cases, the character of this time span t – t’ does not result from natural time sequences, rather, it is characterized by the promise and the possibilities of the promisee to react to it; whether it has the character of the provisional or is the present depends on them. According to Reinach, this entire structure of a promise is based on the timeless a priori of law (‘wesensgesetzlich gefordert’, ‘essentially required’). No matter how manifold the acts of a promise and its acceptance are, no matter how inadequate the legal regulations of this, ‘their pure ideas are based on secure and immutable laws’.Footnote 107
Therefore, one can agree with Reinach stating that promises and acceptances are ‘temporal objects that have a character of their own and are neither physical nor psychological’,Footnote 108 as long as one adheres to their ontological properties and distinguishes them from the experiences in which they appear to us. However, they are neither timeless nor out of time like the a priori structures. Rather, the declaration of a promise and its perception simultaneously generate a duration that is essential for social acts, and both acts only relate to each other because they constitute an extended present.Footnote 109 This duration is opened by the declaration of a promise and closed by its fulfillment. Acceptance – if necessary – falls into this present as a point in time constituted by the acceptor.
Taken together we can see with Reinach that a promise is a social act and as a social act, it is a process with a beginning of a certain permanence and an end, that is, it has a duration. However, a particular character of this duration follows from the nature of promises: The duration is directed toward a future realization of the promise in question. The beginning, continuation and end of this duration can be modified as continuous or provisional by conditions. The temporally structured present in this way is not an arbitrary construction of a promisor but follows from the nature of the promise given and the conditions or time limit set. This duration takes place based on objective time, which makes it possible to measure the moments of the social act of the promise in question, of the entry into the condition and of the time limit. However, what is measured – the social act of the promise – does not derive its duration from this time but from the essential process. As with a movement, the measurable moments do not define the duration of the process but are its expression, namely, its beginning and its end.
Reinach did not examine other legal acts with the same level of detail as he did the promise as a basic legal act. However, the examples below show how he anchored temporality in the nature of the respective social legal: Although Reinach did not explicitly speak of future commitment, he did say that the obligatory relationship tends toward its realization and it has a purpose. An obligation is related to ‘the time at which it should be fulfilled’.Footnote 110 Correspondingly, a claim is directed toward its fulfillment. Such terms signal the teleological and thus future-oriented character of the relationship between the promisor and the promisee. At the moment when a claim is either fulfilled or a waiver becomes effective, that claim expires. Reinach also made a temporal distinction between relative rights, such as claims, and absolute rights that, for example, relate to property. While claims have a provisional temporal structure because they are ordered toward an end, absolute rights have something finite about them.Footnote 111 If a claim is fulfilled by the conduct of another party, it ends. However, rights arising from property can be exercised at any time. As such, both claims and absolute rights can have time-bound content.Footnote 112
In addition, for Reinach a contract also has a specific, a priori existing temporality which results from the connection of the temporality of the mutual declarations: In the extended present, the contracting parties instantiate a future structure. This binds the future of the obligor and opens the future of the obligee.Footnote 113 In the case of reciprocal obligations, therefore, there are mutual future commitments, and the resultant extended present is not closed until all the contractual obligations have been fulfilled. For Reinach, this necessary temporal structure of contracts results from the necessary temporality of the social acts underlying contracts.Footnote 114
Finally, there are social acts, such as judgments, that directly change something in the world. Reinach called them ‘determinations’ (‘Bestimmungen’) and these are relatively commonplace as they arise with an acceptance of an offer and the enactment of laws and statutes. ‘Determinations’ are not rooted in previous structures – although they may be shaped by them – but bring something new.Footnote 115 ‘Determinations’ are not future-oriented but have an immediate effect – which is the existence of a claim or property.Footnote 116 In contrast to a command, which is realized only if it is obeyed in the future, a ‘determination’ is realized immediately. Take § 1 of the German Civil Code (BGB): ‘The legal capacity of a human being begins with the completion of birth’.Footnote 117 The indicative of the formulation shows that this effect occurs when its precondition is fulfilled. The legislator ‘enacts that claim and property ought to be, and presently something is changed in the world. What is posited by the enactment is not merely something which ought to be and is waiting to be realized, rather it becomes real at the moment of the positing and through the positing: property and claim exist in virtue of the enactment’.Footnote 118 Transfer would be another example.Footnote 119 The present here has a very different character from the teleological present of a promise:Footnote 120 The act of transfer exhausts itself in the present. However, in the case of enacting laws, this does not mean that a legislator establishes a norm that contains an obligation. In its application, the law then becomes a command from the user to the person subject to the norm to do this or that. ‘Determinations’ and commands remain distinct social acts. This command then – like other commands – has a reference to the future and is not exhausted in the present of its utterance.Footnote 121 While a promise creates a claim and an obligation with its conscious perception, it only becomes effective with the fulfillment of its resultant obligation where the transfer of rights is a social act that is realized in the presence of the transfer. It closes the future that was opened, for example, by the establishment of the obligation. Furthermore, these direct social acts can do this because their meaning does not refer to a future and there is, therefore, a certain freedom in the ‘determinations’.Footnote 122 As Reinach states, ‘Only that which can be and can also not be, which can have a beginning, duration, and an end in time, is the possible content of “determinations”’.Footnote 123 That, which is in itself timeless and necessary – like the a priori structures – cannot be included in the content of ‘determinations’.Footnote 124
Just as social acts are not phenomena of consciousness, such as emotions or cognitions, this temporality does not arise from consciousness, as in Husserl’s transcendental second phase, but for Reinach is objectively grounded in the nature of the corresponding acts.Footnote 125 Admittedly, the past plays a subordinate role in legal relations and, perhaps as a consequence, Reinach hardly mentioned it. Nevertheless, it is clear that the past becomes important around the time of the acceptance of a promise: A promise made in the past must still exist at the time of the conscious perception or, if necessary, its acceptance. Reinach shows that the interaction of the a priori temporally structured social acts then results in a specific present: A question opens up a present that is closed by its answer. A promise opens up a present that extends as far as its hearing and can be closed by the fulfillment of that promise or its renunciation and can be structured in time by the promisor through conditions. Absolute rights grant their holders an unchangeable, permanent present in which they are authorized to make use of these rights. By their very nature, provisions are temporally punctual social acts, however, they open up an extended present in which new rights or obligations exist for the person concerned: The transfer of a right now allows the recipient to make use of it. An enacted law is valid for a certain or indefinite period. When an acceptance of an offer is required, an extended present of contractual obligations is also required. Through these social acts, an extended present or duration is brought forth which can have a future-oriented, teleological character toward their fulfillment or take on a more static, unchanging character.
This duration – or extended present in the Bergsonian sense – is an essential characteristic of legal time.Footnote 126 It is precisely demonstrated by the fact that essentially founded legal institutions can exist independently of fluctuating sentiments and interests. For Reinach, it is an essential characteristic that claims, obligations and other legal forms ‘arise, last a definite length of time, and then disappear again’.Footnote 127 They ‘can last for years without change’, because they are independent of emotions or other experiences. Rights over things (‘Sachenrechte’) ‘survive a change in the owner of the thing … without any respect of the person of the owner at a given time’.Footnote 128 These rights can ‘survive the change in the owner’.Footnote 129 It is in the nature of these rights to endure and not to be limited by temporal events that the law does not consider relevant, as in the case of deeply personal rights (‘höchstpersönliche Rechte’).Footnote 130 These enduring phenomena are the basic social phenomena, from which temporally punctual acts, such as the attitude of questioning and the explicit question, can be explained.Footnote 131 Again, this extended present of duration can be measured and quantified in natural time even though it arises from the nature of rights, claims and obligations.
Reinach thus showed that acts, especially social acts, have their own temporality which distinguishes them from natural time on the one hand and from the extratemporality of a priori structures on the other. While intentionally future-oriented, presently effective or permanent acts and legal structures can certainly be measured in natural time, their temporality is not determined by it.Footnote 132 Reinach’s phenomenology of legal time is realistic, not because it adheres to the superficial temporality of natural events, but because it takes social legal acts as its starting point and examines their nature in terms of their own temporal structures. For this reason, he also distinguished between natural objects, which simply fall into time, ideal objects, which are extratemporal or even eternal, and social acts, which must be temporal but whose temporality is to be substantiated concretely from their essence and not from their natural appearance. However, precisely because this time is essential time, it is not a subjective time of a time consciousness or even a social construction.Footnote 133 In these social, and especially legal, acts one finds those events that produce duration and thus time in the sense shown above. Social and legal times for Reinach thus arose from social acts, although not from their arbitrariness but from their essential structure. Accordingly, it is not surprising that this structure of time does not consist of an external quantitative ‘earlier-than’–‘later than’ or ‘before-after’. Rather, this legal time is a qualitative time that emerges from the specific temporality of social acts. It exists as a shared social present where the future emerges from the meaning of a promise and its declaration. Intentionality is the structural aspect of the social act that characterizes the future. It is opened as another possibility for a promisee and closed as an obligation for the promisor. In this way, the future is also a social future that emerges from the actions of those involved.
9.2.3 To Sum Up
All in all, Reinach took the first steps toward the recognition of a legal time as a distinct form of time, which one can distinguish from other times, but which can also serve as the basis for the synchronization of the other social times.Footnote 134 However, one can also find problematic aspects both in his theory of time and his theory of law.
Although Reinach said that the temporality of legal acts is one of their essential characteristics, distinguishing them from both ideal and purely empirical objects of knowledge, his theory of time is nevertheless fragmentary. It had to be reconstructed here from very different passages of his works. Many aspects of the temporality of law have already been decided by essential a priori structures. This may be one reason why for Reinach, as it does for Brentano, the present plays a prominent role. In contrast, both the openness of the future, which makes free action possible, and questions concerning the past, play only a subordinate role. Throughout his writing, it becomes clear how Reinach’s pioneering work on a theory of the temporality of law did not draw on the groundbreaking insights of Edmund Husserl’s investigations into the phenomenology of inner time consciousness and Heidegger’s fundamental ontological foundation of ‘Being and Time’. However, while for both Husserl and Heidegger the social dimension is not very important, from the outset, Reinach constructed his theory of the temporality of law from the a priori foundations of social acts, thus revealing a worthwhile path for later attempts.
By their social acts and especially by determining the law through its positivization, people can deviate from the a priori structures.Footnote 135 In this respect, they have a negative freedom but lack the positive freedom to create new essential structures. The inherent justification of discourses that produce something genuinely new from the convictions of the participants thus is outside Reinach’s understanding of the temporality of law. Whenever a legal discourse produces new values, principles or rules, the a priori doctrine of law will claim that their essence already exists. However, since values differ, discourse and normative guidance are needed to agree on what is produced. For this reason, the concept of the norm would also have to be placed at the center of the analysis of the temporal structure of law, which Reinach does not do.
Process and norm come together when one considers the importance of the futurity of social action, something also emphasized by Reinach. Law, by virtue of its norms, implies a commitment to the future because human action is shaped by the awareness of an open future of options. Norms should guide human actions and correct them where necessary. Since this freedom also refers to the process of norm-setting in, for example, contracts, laws and criminal norm assertions, there is a need for a reflexive structure of law. Law subjects the open future horizon of norm-setting, norm interpretation and norm enforcement to norms in turn. These are norms that relate, for example, to the conclusion of contracts, the legislative process, and enforcement. A working theory of the temporality of law would have to take into account both a qualitative understanding of the dimensions of time and the normativity of law, something Reinach failed to do but that he did, arguably, open the door toward.
9.3 Gerhart Husserl
To better appreciate Adolf Reinach’s pioneering work on a theory of law and time and, at the same time, to gain some perspective on the direction in which a phenomenological theory of legal time may develop, it is helpful to take a look at Gerhart Husserl’s work. This is because the latter’s theory has an advantage over Reinach’s work by having a more detailed legal basis and by assuming a greater plurality of temporal experiences.
In the context of his phenomenological investigations of the relationship between law and time, Gerhart HusserlFootnote 136 did not explicitly refer to his father’s ‘Lectures on the Phenomenology of the Internal Consciousness of Time’.Footnote 137 However, it is likely that when he published an article entitled ‘Recht und Welt’ (‘Law and World’) in the Festschrift for his father in 1929, Gerhart was aware of the lectures held in 1905 and that were edited in 1928 by Martin Heidegger and published in volume XI of the ‘Jahrbuch für Philosophie und phänomenologische Forschung’. Husserl had already committed himself to a phenomenological approach in his graduation thesis of 1925, which he dedicated to his father.Footnote 138 He did not thematize it but applied the method of phenomenological reduction. In the years that followed he returned to phenomenological considerations and, in ‘Time and Law’, he went into explicit detail and, among other things, provided a vivid example using the ‘shoe’ to explain the nature of functional objects and then also of the law.Footnote 139 Besides applying his approach, the completely different ‘Eigenart’ (specific character) of Martin Heidegger left some traces in Husserl’s work.Footnote 140 Heidegger’s first main work on fundamental ontology ‘Being and Time’ was published in 1927 in Volume VIII of the aforementioned yearbook.
9.3.1 Abstract and Concrete Time of Law
9.3.1.1 The Abstract Time of the Works of Art and Law
Husserl’s analysis of the relationship between law and the world is based on the principle of experience. A priori propositions have a legal meaning but are not valid law; they must first be transformed into social reality to attain legal validity.Footnote 141 Here, Husserl is thus distancing himself from Reinach.Footnote 142 He starts by viewing a human being as ‘being in the world’. This being in the world can be naive, immediate or ecstatic.Footnote 143 In the experience of nature there is doubt, everything is uncertain, and everything is as transitory or temporary as man himself. Indeed, in natural attitudes, Gerhart Husserl emphasized the omnipresence of a death consciousness even more strongly than Edmund Husserl. This did not yet lead the former to the preeminent position of the future for Dasein (‘existence’), as Heidegger did in ‘Being and Time’.Footnote 144 Thus, one finds only echoes of fundamental ontology in Husserl’s works.
By turning to transcendental ideas, people overcome these doubts and uncertainties in, what Husserl calls, ‘an ecstatic attitude’. This attitude does not mean escaping from the world, even if it entails alienation from the world, but taking the situation of doubt seriously and fully investing one’s own person in this world. The ecstatic attitude then becomes the conscious assumption of the world in which a naive person simply finds themself and it seeks to provide an affirmative attitude toward this world. In this transgression of the consciousness, a transcendent time structure is also experienced: in religion, eternity, and also in pictorial works of art, we hold to our present against the current of experience.Footnote 145
The time of a work of art is essentially negatively determined – a nonnatural, ‘illusory time’. First of all, a musical composition has an ‘abstract time’, which only enters into concrete time-being through its ‘temporalization’ in the performance. The composition is only a ‘norm’ for its repeated reproduction, which can and must then be concretely experienced and kept in consciousness (‘retendiert’)Footnote 146 if it is to be perceived as an experience in the natural world. The determination of the composition as a norm and its being in time as ‘abstract time’ is also to be kept in mind for an analysis of law. Husserl does not understand the ‘ecstatic transcendence’ of naturally naive world behavior as a transition into a fully valid temporality of one’s own; rather, he sees it only as an abstraction into an illusory time. The composition receives its concrete reality only through its reentry into the natural-bodily world. Only in this way does the norm become the object of time consciousness.Footnote 147
In a subsequent step, Husserl compared the creation of art to the realization of law.Footnote 148 In doing so, law is also put into a state of ‘abstract time’ and must then be ‘temporalized’. While Reinach distinguishes between the timeless form of the a priori foundations of law and legal temporality, Husserl moves from the ‘abstract time’ of norms in books to the more concrete temporality of the realization of legal norms. This approach will be examined in more detail below.
9.3.1.2 Detemporalization of Law
For Gerhart Husserl, law was a ‘work of will’ of the legal community (‘Rechtsgemeinschaft’).Footnote 149 He believed that like a work of art, law has its own being in time, although not in natural time. Law is not eternal nor is it designed for a temporal end and, while it is valid, it is not regarded as coming from the past and being carried out to a future end.Footnote 150 It is not an object of memory or expectation and it exists beyond our experienced present.Footnote 151 Just as law is valid in an abstract way, it also has an ‘abstract time’. Law has this abstract temporality because it does not refer to a singular social fact or ‘spatio-temporal reality’.Footnote 152 In this ‘abstract validity’, it has not yet reached either legal reality or legal temporality. The abstract time of a legal norm is produced by an abstract formulation of the facts. Here, possible courses of action are recorded against a developing future and, once created, a law becomes a product of will (‘Willenswerk’) that exists as a norm detached from legal consciousness, ‘even if all subjects of law under its spell sleep dreamlessly’.Footnote 153 Like Reinach, Husserl viewed legal validity as abstract in terms of the psychological attitudes that may or may not realize it, but while Reinach ties this abstraction to the a priori structures of law, Husserl referred to the abstract legal norms in books.
Essentially, this abstract time means ‘timelessness’ because no temporal element can be named for law in this form. Thus, law has lost its temporal reality and has been transformed into a potentiality. From there it must be transformed into legal reality by the deliberate acts of ‘legal comrades’. Here, in Husserl’s theory, legal comrades are persons and legal orders that mutually support each other; however, man would lose his legal personhood and a legal order its validity if the attitudes of the community toward the law were to change. They would thus leave the world of law and fall back into a natural world. This inaccessible ‘will’-attitude guarantees permanence in that the individual cannot dispose of it and therefore cannot ‘reject’ it.Footnote 154 At the same time, however, law depends on every human being for its validity.Footnote 155
Husserl’s desire to hold on to consciousness as the basis for the temporality of law seems to require an objective consciousness of the legal community in the case of laws. The duration of law as the basis of its abstract time is dependent on the duration of a permanent collective will of the people. For this, he relied on the constant expression of this will. However, there are some doubts about this aspect of his concept: On the one hand, this attitude is supposed to lift the individual out of the naively experienced world into a legal world to justify and support him; on the other hand, however, this will is not supposed to be available to him. This raises the question: Why should our (collective) will and the law not be changed for good reasons? Another concern here is that this ‘attitude of will’ seems to be a mere fiction. However, if law is to be moved from existing in abstract time into concrete and perceptible time, the permanent attitude of will also needs to be empirically proven. It remains unclear in Husserl’s work what this will is. In a defense of a psychological justification of law, Husserl objects to calling it somehow emotional, just as Reinach did not want to rely on psychological facts for the construction of law. The reason for both men having this somewhat common perspective is that the ‘abstract’ being of law should not be the object of a feeling, which, if it were, would lose its objectivity.Footnote 156
9.3.1.3 Putting Law into Time
Husserl’s second step in the constitution of experiential law further concretized law by placing it in time (‘Verzeitung’ ~ temporalization). In this regard, he noted: ‘In fact, it is a matter of crossing over from the other side of the timeless world of law to this side of the reality of the will, which lies in the natural flow of time, to which the legal proposition, as one affected by norms, is concretely related’.Footnote 157 This is the task of the judge in particular as in the legal force of his judgment, the law acquires concrete validity and ‘world-shaping power’.Footnote 158 This fixes law in time and, as long as it is determined in this way, it can be the object of personal feelings and the like and has become evident.
Therefore, Husserl makes an important exception to the necessity of ‘temporalization’, namely, constitutions. For him, constitutions represent ‘the legal being of the legal community’ with a particular temporality. They do not require an explicit application to be concrete because they are – again – ‘supported and held by the permanent will of the legal community, which is beyond the experience of today, but at the same time has its roots in the living personhood of the respective existing human beings’.Footnote 159 In fact, a constitution represents the will of the relevant legal community.Footnote 160 It is not clear here whether Husserl now introduces another temporality besides the natural and the abstract one; however, doing so seems to be necessary: Constitutions certainly cannot have natural temporality because they are based on a certain will-intent with its own temporal structure that is different from the natural temporality of emotional acts. What was needed here was not an ‘ideation’ involving the natural time-transcending commitment of the ‘legal comrades’ but only an ‘awakening of the constitutional will-intent’.Footnote 161 However, this entails constitutions being either transferred into a world of psychic experience, resulting in their temporalization (‘Verzeitung’), or them remaining as they are, awakened in the mind itself. This means they cannot be natural-temporal because a will attitude that brings a constitution into being, according to Husserl, only brings about abstract temporality. A constitution should not be, however, in abstract time because it already has reality in the common will of the people. Here, too, Husserl’s theory of the attitude of will (‘Willensgesinnung’) does not lead to a clarification of the question of temporality.
At the next level of concretization, Husserl argued that administrative action should not seek temporization or the creation of new law but the abstract normative facts should be given a concrete and adequate form. An official simply makes use of his or her authority and performs an act of will which is then legally evaluated. He ‘moves in the sphere of action of natural experience. He places his work in the flowing time in which social things come into being and pass away. His effort is to create the permanent, not the once and for all’.Footnote 162 The contact with the interests of the natural social world makes the other decisions uncertain. Their actions are all still legally open and thus in the natural realm of doubt. Judges are tasked with freeing the law and its concretization from this doubt and determining the law. Only the judge’s decision represents a real, certain, ‘Verzeitung’ of the abstract law. More specifically than Reinach, Husserl shows here that the extended present with an open future of a legal process of concretization can only be closed by certain legal acts, namely judgments.
With this subjective approach, Husserl certainly contributes to a foundation of the temporality of law on the consciousness of law and time. However, it does not do justice to the manifold possibilities of acts applying the law. One need only think of the force of validity (‘Bestandskraft’) of administrative acts and with the rules of limitation or res judicata. How can the acts of judges do so if they do not put law into time? The failure of natural acts to obey temporal constraints clearly has legal consequences. Yet, this did not have a place in Husserl’s theory of the temporality of law. This already shows that the limitation of the temporalization to the courts is too narrow and does not sufficiently take into account other forms of transforming temporally abstract laws into concrete legal time.
9.3.2 Doubts and Revisions of the Temporality of Law Based on Legal Consciousness
From the above brief reconstruction of Husserl’s theory,Footnote 163 one can conclude that two aspects are decisive for the temporality of law: on the one hand, the ‘de-temporalization’ of the content of law to a legal order that is in a form supported by an individually unavailable will and where law is in abstract, nonexperiential time. On the other hand, law must be ‘temporalized’ to be able to have a world-shaping effect. This happens in court decisions which definitively establish the law and make it capable of experience in space-time as only in this form is the law accessible to the consciousness of time. As plausible as these two steps are, problematic aspects remain: first, the foundation of the permanence of ‘abstract law’ on the attitude of will and, in general, its closer determination and, second, the limitation of the temporalization to the activity of the judge. Despite all the differences that have become apparent with regard to the conception of the ‘phenomenology of inner time consciousness’, the insufficiency of a foundation of time on this subjective time remains with respect to objective structures such as law.
Husserl himself may have had doubts about his conception, a notion borne out by his later considerations where he shifted the focus and wrote more intently about the temporalizing moments in the action of the legislator.Footnote 164 In 1955, in ‘Law and Time’, he emphasized more strongly the relationship of the legal order to the concrete historical situation and linked the fate of the norm to the legal community. This was a notable shift from both the first part of his work on the validity of law in 1925 and in ‘Law and the World’ from 1929.Footnote 165 In ‘Law and Time’, he argued that the application of norms now affects their temporal structure and they reach back into the past, whereas in his earlier works, legal norms seemed to have no past. The legislative act becomes the keystone of this past. In the act of reception of this prehistory of laws, Husserl presents this keystone initially as an act of ‘de-timing’ (‘Entzeitlichung’), which here means a reduction of the legal propositions to their ‘core of meaning’. As long as they are ‘untimed’ (‘entzeitet’), they have no normative force and must first be incorporated into a legal order. In this respect the act of the legislator is the keystone of prehistory. However, the arm with which he reaches into the future is of finite length and the ongoing actualization of the law is a matter of its application, with the latter remaining the focus of his concept. Thus, while in his earlier works Husserl emphasized the abstract temporality of norms that are lifted out of the flow of temporal events, he eventually took into account the fact they change and that they are dependent on historical time as a time filled with historical content. Indeed, he noted that abstract time in this context means objective, measurable time.Footnote 166 In his later works, historicity began to play a more important role in Husserl’s work and fundamental ontological thinking gained greater traction. One can almost perceive Heidegger’s influence when Husserl speaks of the temporal structure of the legal claim, which has the nature of a tool and is directed toward an end.Footnote 167 This is then distinguished from the temporal structure of continuing obligations, which are not directed toward their end but are carried by the ongoing fulfillment of meaning.Footnote 168
Husserl’s clarifications lead to a more differentiated view of the temporality of legal objects. The abstract comparison of subjective and objective time has receded somewhat, giving way to a broader view of the multiple temporalities of legal content.
9.4 Conclusion
In conclusion, the foregoing has briefly contrasted Reinach’s approaches to a theory of the temporality of law with Gerhart Husserl’s theory of the temporality of legal consciousness. This was done to show the different conceptions of the temporal structure of law arrived at by the various approaches of phenomenology. While Reinach made his observations based on realist phenomenology, Gerhart Husserl worked with the transcendental and, to some extent, the fundamental ontological method. This led Reinach to anchor the temporality of law in the timeless a priori structures of fundamental legal acts and an objective temporality of law. Husserl, in contrast, excludes this sphere and understands timelessness itself as a social structure, namely the abstract time of the laws, borne by a permanent attitude of will. He is interested in the temporality of positive law as it results from the temporalization by the users of law. Both philosophers arrived at a point where they saw a specific temporality of law; for Reinach, this resulted from essentially structured legal acts while for Husserl it was born from legal consciousness.
Ultimately, for Reinach, the temporality of law rested in the unchangeable a priori temporal structures of legal acts in which everything seems to have already been decided. For him, everything rests on their realization, even though a legislator can deviate from this in its ‘determinations’. However, the fact that concrete law is also an expression of deliberations, evaluations, optimizations and considerations, while not excluded by Reinach, was not sufficiently included in his theory of the temporality of law. After World War I, the emergence of democratic, administrative and judicial procedures with their different temporal structures and novel ideas about a newly anticipated future, presenting the past and a will to maintain the legal state, played a greater role than at the end of Germany’s constitutional monarchy when Reinach developed his theory. In his writings during the Weimar Republic and later on, Gerhart Husserl was able to incorporate these historical legal developments into his theory of the realization of law as temporalizing. In contrast to Reinach, he does not distinguish between a timeless a priori sphere and a temporal one but between an abstract time of the enacted law and its realization in concrete legal acts.
Both Reinach and Husserl broke new ground, each in his own way, laying the foundations for a theory of the temporality of law. However, the positive law of the present is more than determining timeless a priori structures or expressing a temporal consciousness of law. This is because it produces its own temporality, one grounded in the extended present of the law’s validity, which opens up a future horizon in which legal persons can rely on predictable meanings of their legal acts. Law regulates its own present, future and past and herein lies its temporality. Adolf Reinach and Gerhart Husserl, as legal phenomenologists, opened the door to approaches to a theory of law’s temporality that can be further developed. Finally, and despite the incompleteness of their respective works, they have shown that contrary to the ancient idea of a possible approximation of positive law to an immutable natural law, law has its own temporality.Footnote 169
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