2.1 Introduction

Adolf Reinach believed three controversial things – that basic legal concepts exist outside of the law; that their existence is conceptually independent of moral obligation; and that their existence entails nothing about positive law.Footnote ¹ The juxtaposition of these beliefs is almost unheard of in jurisprudence. Those who argue for the extralegal reality of legal concepts tend to think they are inherently ethical, with entailments for both law and moral behavior.Footnote ² And those who are skeptical that the law draws upon external concepts rather than constructs its own tend also to be skeptical of morality – or at least morality beyond ontologically parsimonious utilitarianism.Footnote ³

In his idiosyncratic position, however, Reinach is joined by today’s theorists drawing on evolutionary psychology and cognitive science in an account of legal concepts.Footnote ⁴ Like Reinach, these theorists believe that basic legal concepts have a genuine life outside of the law, as universal features of a human mind shaped by natural selection.Footnote ⁵ They too don’t think the existence of these concepts entails moral conclusions.Footnote ⁶ And, just like Reinach, evolutionary theorists tend to argue that the positive law can vary as it likes from basic concepts of human cognition and whatever morality may be or demand.Footnote ⁷

And yet Reinach himself could not have been clearer that his claims were not to be associated with the inchoate psychology of his day.Footnote ⁸ He insists that the kind of reality he ascribes to legal concepts is not about human psychology – ‘claims and obligations arise in the angels, devils, and gods – as long as they can really promise and can really hear promises.’Footnote ⁹ Fair enough – Reinach’s theory is different from cognitive theories – it holds legal concepts to be metaphysical truths for all conceivable intelligence, not evolved partially contingent human universals. But since we are theorizing about law by and for human beings, you might wonder what is really at stake in this distinction.Footnote ¹⁰

This chapter explains why – in intellectual context – Reinach took such pains to distinguish his account of the a priori realism of legal concepts from what might facially be thought of as close psychological equivalents. And I argue that, notwithstanding Reinach’s commitment to the distinction, it is perhaps not as essential to his legal theory as he believed. In other words, it may be possible to accept the insights of Reinach’s conclusions without fully subscribing to his metaphysics – if you happen to find evolutionary theory, cognitive science, or some similar account more plausible (though these fields are, of course, controversial in their own right).Footnote ¹¹

For Reinach personally, the question of whether legal concepts ‘really’ exist or are ‘just’ psychological characteristics was one front in a broader dispute preoccupying German-language philosophy of his time – the firestorm over so-called ‘psychologism’; or whether (primarily) logical and mathematical principles are True-with-a-capital-T or generalizations about human thought. For Reinach, the ontological status of legal concepts was a case study in a broader account of ontology and epistemology.

But in fighting this broader battle, Reinach appears to have overestimated how much the outcome of the Psychologismus-Streit matters for legal theory. This is so for two reasons. First, the difference between metaphysical and evolutionary-cognitive theories of legal concepts is narrower than Reinach and his progenitors seem to have appreciated. Taking natural selection as the mechanism by which psychological proclivities arise means that there is a necessary relationship between psychology and ontology. It’s not necessarily correspondence, true, but neither is it arbitrary or wholly contingent.

Moreover, the arguments Reinach’s progenitors made for the metaphysical reality of logical and mathematical concepts are less persuasive as applied to Reinach’s legal concepts.Footnote ¹² Where logic and math appear to apply to reality generally, law is for Reinach (at least at present, so far as we know), a peculiarly human phenomenon. Distinguishing between psychology and ontology is particularly difficult, maybe impossible, in that context. And in the end, Reinach and his allies stipulate rather than purport to prove the metaphysical reality of the concepts they discuss. In logic and math, this stipulation might be necessary – Reinach’s progenitors sought to make claims not merely about our logical concepts, but about how we ought to think with them. But writing in law, Reinach is different. Reinach doesn’t derive conclusions about how the positive law ought to be from the ontological existence of his concepts.

This chapter proceeds in five parts. First, I summarize Reinach’s legal philosophy, with its three idiosyncratic commitments. Next, I relate these views to theories of legal concepts grounded in evolutionary psychology – noting that, although Reinach predeceased scientific and theoretical developments that have made these theories more plausible, he took a crude sketch of what such theories might look like as a foil. In Section 2.4, I relate Reinach’s legal theory to his place in the psychologism dispute, while in Section 2.5 I argue that he overestimated the difference between his account and evolutionary theories. Finally, I argue that arguments in favor of metaphysical reality in other contexts of the psychologism dispute – logic and math in particular – hold less force as applied to Reinach’s legal concepts.

2.2 Reinach’s Three Commitments

In The A Priori Foundations of the Civil Law, Reinach sketches three contestable positions about the nature of legal concepts, morality, law, and the relationship between these domains. First, he argues that legal concepts – such as promise, claim, and ownership – have a real existence outside of the law. Second, he argues that these concepts are distinct from morality – according to Reinach, an immoral promise, like any other, generates an obligation but, ethically, one ought not comply with it. And neither of these domains, for Reinach, has any necessary implications for the positive law, which he apparently took to be a matter of descriptive social fact.

The central thesis of the Foundations is that basic legal concepts really exist, independent of their recognition or creation in positive law. ‘We shall show that the structures which one has generally called specifically legal have a being of their own just as much as numbers, trees, or houses, that this being is independent of its being grasped by men, that it is in particular independent of all positive law…. We really do find what one has emphatically denied: the positive law finds the legal concepts which enter into it; in absolutely no way does it produce them.’Footnote ¹³

Thus, Reinach believes that we can engage in a priori conceptual reasoning about such ideas as ‘promise’ and ‘ownership’ without invoking or referencing the positive law at all.Footnote ¹⁴ And indeed, his efforts at reasoning in this vein make up most of the Foundations – he argues, for example, that it inheres in the nature of a promise to create an obligation in the promisor;Footnote ¹⁵ and that ‘[i]t lies in the essence of owning that the owner has the absolute right to deal in any way he likes with the thing which belongs to him.’Footnote ¹⁶

As for how these concepts exist, Reinach was a metaphysical realist.Footnote ¹⁷ He argued that social acts like promises, and relations like ownership, have a distinctive mode of existence, as states-of-affairs.Footnote ¹⁸ These states-of-affairs exist (technically, ‘obtain’) for Reinach in a real, mind-independent way – constituents of the universe just as the physical facts that constitute them in particular instances.Footnote ¹⁹ Because general, fundamental, and abstract, states-of-affairs are, on Reinach’s account, governed by a priori laws to be grasped by insight – accessible to intelligence, in principle independent of any experience.Footnote ²⁰ So, for example, Reinach holds that property is a state-of-affairs.Footnote ²¹ Given certain sets of physical and relational facts, an instance of property may obtain.Footnote ²² But any intelligence can reason to some truths about property – including the sets of facts that would qualify and which would not – without experience of any particular instance of property, because property itself is a fundamental constituent of the universe.Footnote ²³ Or so goes Reinach’s account.

This central thesis of the Foundations is its most controversial. Indeed, even at the time he wrote, Reinach was well aware that he was arguing against the jurisprudential grain – noting that there was ‘general agreement’ that ‘all legal propositions and concepts are creations of the lawmaking factors,’ but that his inquiry would ‘really … find what one has so emphatically denied.’Footnote ²⁴ And the century in legal philosophy since Reinach has not been kind to metaphysical realism about legal concepts, with Critical Theory and Law and Economics carrying forward Legal Realism’s nominalism about legal concepts to the present.Footnote ²⁵

But while Reinach held these basic legal concepts to exist, he maintained that their existence is conceptually independent of how morally we ought to interact with them.Footnote ²⁶ A promise, as a matter of its essential character, generates an obligation, but it might be an obligation morally wrong to fulfill.Footnote ²⁷ In this insistence that basic legal concepts are morally inert, Reinach departs from most fellow travelers in legal conceptualism. Consider Scott Hershovitz, who, with Reinach and contra nominalism, accepts the extralegal reality of promises.Footnote ²⁸ But for Hershovitz, promise is an irreducibly normative concept, and its boundaries are coterminous with its moral implications – an immoral promise simply isn’t a promise at all, and gives rise to no obligation.Footnote ²⁹

Finally, Reinach refused to infer anything about the necessary characteristics of positive law from either the concepts on which it draws or (apparently) morality – Reinach was a positivist about positive law. For example, analyzing the positive law’s concept of causality in his doctoral thesis, Reinach insisted that the question is not whether the law’s causal theory is ‘correct’ as a moral or even philosophical matter.Footnote ³⁰ The task instead is to investigate the positive law’s theory of causality – with no necessary connection to the philosophically correct account.Footnote ³¹ Thus, Reinach insisted that, although states-of-affairs like promise and obligation exist outside of the law and are governed by essential, descriptive laws, ‘[t]he positive law can incorporate them into its sphere, it can also deviate from them.’Footnote ³² A ‘jurist,’ he argued ‘need not establish what the law should mean according to logical or ethical or other norms, but rather what it in fact means.’Footnote ³³

Reinach’s theory of the positive law is perhaps his least controversial commitment. His view is one recognizable, still popular position in debates about the nature of positive law – broadly within the ‘positivist’ umbrella.Footnote ³⁴ But when this view is coupled with his insistence on the extralegal reality of legal concepts, as well as their morally inert character, we can see Reinach as the singular legal philosopher he was.

2.3 Evolutionary Legal Conceptualism’s Three Commitments

In 1859, Charles Darwin published The Origin of Species, arguing that natural selection explains the diversity and complexity of biology.Footnote ³⁵ Darwin argued that organisms vary in random but heritable ways as to traits that correlate with reproductive success.Footnote ³⁶ Assuming that, in our resource-constrained world, in each generation more organisms are born than can live to reproductive maturity, over time traits beneficial for survival will proliferate, and deleterious mutations will die without reproducing – explaining the gradual evolution of complexity, in diverse forms.Footnote ³⁷

‘Evolutionary psychology’ argues that natural selection has shaped our minds as much as our other organs.Footnote ³⁸ So it holds that many basic mechanisms and proclivities of the human mind, both conscious and unconscious, are biological adaptations governed by natural selection and heritably encoded in our genes; heuristics that helped our ancestors better survive in their environment than did their competitors, operationalized in each of us by genetic inheritance.Footnote ³⁹

Methodologically, evolutionary psychology and cognitive science often take the cross-cultural universality of a given psychological fact as prima facie evidence of its genetic basis.Footnote ⁴⁰ It is then a question of evolutionary theory whether such a trait could have arisen by natural selection – whether it could have contributed to the individual reproductive success of those with it, even if in complex and indirect ways.Footnote ⁴¹ And it is ultimately an empirical matter whether in fact the traits in question developed in the hypothesized way – for which evidence of a direct genetic basis is strong evidence.Footnote ⁴² Theorists have applied these methods to argue that a wide range of complex psychological universals – from language to the moralized emotion of disgust and separation anxiety – are genetically mediated products of natural selection.Footnote ⁴³

Legal theorists drawing on evolutionary psychology have argued that many basic legal concepts could similarly be evolved, genetically grounded features of human cognition.Footnote ⁴⁴ For example, the basic concept of ownership that organizes property law appears to be universal,Footnote ⁴⁵ and could plausibly have evolved as an adaptation to ensure access to and dominion over resources.Footnote ⁴⁶ Similar observations have been made, for instance, with respect to other basic legal concepts like promise.Footnote ⁴⁷

Just like Reinach, these evolutionary psychologists and the legal theorists who follow them hold that basic legal concepts have a real existence outside of the law. Granted, these theorists ground the existence of these concepts in a different way – citing evolution and a modular mind. But their conclusions are importantly similar – legal concepts (at least the most basic ones on which both Reinach and evolutionary theorists focus) are not nominalistic legal constructions designed for normative purposes; they are real concepts that exist outside of any legal system and can be analyzed descriptively.

Moreover, perhaps even more emphatically than Reinach, theorists in evolutionary psychology refuse to infer anything moral from the innate existence of concepts in our psychology. The ‘naturalistic fallacy’ is an oft-repeated dogma – to state a fact about our psychology is not to imply anything about ethics.Footnote ⁴⁸ So the innate existence of, say, the concept of ‘family’ doesn’t suggest anything about its moral significance; and it might be that we intuitively understand that the social act of promise gives rise to a ‘binding’ ‘obligation,’ but that these intuitions are morally wrong.

Finally, like Reinach, evolutionary theories of legal concepts tend to travel with a positivistic conception of the positive law. Owen Jones and Timothy Goldsmith, for example, argue that the positive law can in principle do whatever it wants, and often that it ought to – pursuing policy goals orthogonal or contrary to the basic concepts evolution has given us.Footnote ⁴⁹ For Jones and Goldsmith (and other theorists in this vein) the positive law is presumed a historical artifact fully determined by social fact – not a concept with any necessary connection to facts about human psychology or morality.Footnote ⁵⁰

In short, although they ground the existence of legal concepts in different places, and draw on different evidence, evolutionary theorists and Reinach see these concepts and their relation to morality and positive law in similar ways – they agree that legal concepts exist outside the law; they agree these concepts can plausibly be the subject of determinate, descriptive reasoning; and they agree that these concepts have no necessary connection to either moral duty or positive law.

Today’s evolutionary psychology, on which contemporary theorists draw, of course, did not exist in Reinach’s time. Indeed, the origin of modern evolutionary psychology is often attributed to Edward O. Wilson’s Sociobiology in 1975,Footnote ⁵¹ and today’s work draws on universal grammar in linguistics in the 1960s,Footnote ⁵² the ‘Modern Synthesis’ of Darwinian natural selection with Mendelian inheritance of the 1950s and 1960s,Footnote ⁵³ the development of game theory in the 1950s,Footnote ⁵⁴ and Fisher’s work on sexual selection in the 1930s.Footnote ⁵⁵ Indeed, Darwinian evolution writ large has become vastly more plausible since Reinach’s death if for no other reason than the 1953 discovery of DNA as the physical mechanism of inheritance – a famous handwave by Darwin himself.Footnote ⁵⁶

That being said, though less plausible, less sophisticated, and less empirically grounded, Reinach encountered and engaged with a basic sketch of the idea. After all, in Origin, Darwin himself suggested that ‘[p]sychology will be securely based on [a new] foundation … that of the necessary acquirement of each mental power and capacity by gradation.’Footnote ⁵⁷ Perhaps most prominently in Reinach’s lifetime, the American Pragmatists – especially William James – drew on Darwin’s theory in suggesting that human psychological ‘instincts’ might have evolved.Footnote ⁵⁸ Reinach was familiar with this work, having written an obituary for James after his 1910 death.Footnote ⁵⁹ And Reinach’s mentor Husserl spent a chapter in his Prolegomena responding to the quasi-evolutionary logical theories of Ernst Mach and Richard Avenarius.Footnote ⁶⁰

Thus, when Reinach insisted that his theory is not psychological – ‘independent of human knowledge, independent of the organization of human nature’Footnote ⁶¹ – and not an evolutionary account of human cognition – ‘not only for our world but for any conceivable world’Footnote ⁶² – it was not out of ignorance of what a theory of legal concepts grounded in evolutionary psychology could look like. Granted, and importantly (about which more below),Footnote ⁶³ the proto-evolutionary psychology in vogue at the time – that of the Pragmatists – was substantively quite different from today’s in its theory of mind. James, Mach, and Avenarius happened to be empiricists about concepts – from their perspective, the human mind and its capacity for subjective experience may have evolved, but our conceptual schema emerge from experience and social linguistic partitioning, not genetics.Footnote ⁶⁴ Today, evolutionary psychologists overwhelmingly posit a modular, computational mind ready built with innate concepts.Footnote ⁶⁵ Still, it is not as though the basic idea were not out there in Reinach’s time.

To understand Reinach’s efforts to distinguish his theory from psychological ones – notwithstanding their superficial compatibility – then, we have to go deeper and take seriously what was at stake for him in grounding legal concepts in metaphysics rather than an evolutionary account of human psychology.

2.4 Reinach, Legal Concepts, and the Psychologismus-Streit

The proto-evolutionary psychology of the belle époque was missing many important theoretical and empirical pieces. But it was wildly fashionable – a ‘psychologically obsessed age.’Footnote ⁶⁶ And in the increasingly naturalist intellectual climate after Darwin, psychology aspired to be descriptive and empirical. During this period, foundational psychologists like Sigmund Freud, William James, Wilhelm Wundt, and Reinach’s PhD advisor Theodor Lipps hoped to ground a new science of mind-as-brain in empirical study, seeking laws of human thought as universal and empirical as the laws of physics.Footnote ⁶⁷

One intellectual movement during this time was an effort to situate intuitions about logic and mathematics in psychology – to argue that they were laws of human thought, not truths of our universe.Footnote ⁶⁸ It was against this view that Gottlob Frege inveighed when he launched the Psychologismus-Streit in 1884. In his Foundations of Arithmetic and a series of works that followed, Frege argued against what he called ‘psychologism’ about math in particular, arguing that mathematical and logical rules are a priori, nonempirically true.Footnote ⁶⁹ And thus was joined the Psychologismus-Streit that dominated German-language philosophy until the War.Footnote ⁷⁰

Frege’s arguments against psychologism were suggestive and question-begging rather than dispositive – math, for example, is the most exact of all sciences; psychology perhaps the least.Footnote ⁷¹ Psychologism conflates ‘true’ with ‘taken-to-be-true’;Footnote ⁷² (but isn’t that the point?). Perhaps most powerfully, Frege argued that psychologism assumes or leads to solipsism – if numbers are just subject-specific ideas, how could we communicate?Footnote ⁷³ ‘[A] hitherto unknown kind of madness.’Footnote ⁷⁴ But, regardless of their validity, Frege’s arguments against psychologism were enough to convince that other titan of fin-de-siècle German philosophy, and one importantly closer to Reinach – Edmund Husserl.Footnote ⁷⁵

Arguing against psychologism – and grounding his new method of phenomenology as an alternative – became one of Husserl’s primary pre-War projects – ‘Husserl’s Prolegomena has long been regarded as the pre-eminent statement of logical anti-psychologism.’Footnote ⁷⁶ Husserl’s arguments on this score were largely of the same flavor as Frege’s – logical rules are more determinate than psychological rules, logical rules are phenomenologically a priori, etc.Footnote ⁷⁷ And they are vulnerable to the same charges of circularity – presuming the reality of strict laws of logic when that is what the dispute is about.Footnote ⁷⁸ But Husserl argued perhaps most forcefully against psychologism as entailing relativism. Psychologism, he says, amounts to ‘species relativism’ or ‘anthropologism’ – the hypothesis that principles of logic could be true for us but different for some other species.Footnote ⁷⁹ ‘Absurd,’ says Husserl.Footnote ⁸⁰

While this controversy was kicking into gear, Reinach was a graduate student under Theodor Lipps, who was rather a bogeyman to Husserl for suggesting that ‘logic is a psychological discipline.’Footnote ⁸¹ With his fellow students, Reinach read Husserl, found himself convinced, and decamped to Göttingen where he took a position as Husserl’s assistant and ‘worked closely with Husserl in the preparation of the second edition of the Logical Investigations.’Footnote ⁸² Reinach’s break with Lipps and his affiliation with Husserl, then, was largely the result of the latter’s convincing him that the psychologism of the former was in error.Footnote ⁸³

With this intellectual context, Reinach’s efforts to distance himself from a psychological quasi-realism of legal concepts is hardly puzzling. The Psychologismus-Streit was a general debate over the relationship between metaphysics and psychology that he had very much joined – so was persuaded by the anti-pyschologist side to uproot his life and help fight Husserl’s war against his old mentor. And transcripts of Reinach’s seminars show that he ‘was perhaps the only philosopher in Germany at this time lecturing on the work of Frege.’Footnote ⁸⁴ The question of whether the basic structures of our reason reflect timeless, a priori, metaphysically real truths or psychological facts was among the primary intellectual occupations of Reinach’s life.

Through this lens, Reinach’s metaphysical realism about legal concepts was another front in the war over psychologism – in law rather than logic or mathematics. Reinach insisted that truths about legal concepts – for example, that a claim dissolves once waived – have the same ontological status as the law of noncontradiction or 1 + 1 = 2; that they were essentially, mind-independently true.Footnote ⁸⁵ Indeed, throughout Foundations, Reinach analogizes reasoning about the essence of legal concepts to the philosophy of mathematics – ‘[i]n immersing ourselves in the essence of these entities … we grasp connections in a manner analogous to the way in which we know when we immerse ourselves in the nature of numbers and geometrical forms’;Footnote ⁸⁶ ‘there are eternal laws governing these legal entities and structures, laws which are independent of our grasp of them, just as are the laws of mathematics.’Footnote ⁸⁷

Moreover, in trying to show that legal concepts have the same kind of reality as mathematical concepts, part of Reinach’s project was to show the breadth of the a priori – its usefulness and applicability not just to the suite of basic mathematical and logical principles long considered a priori in any event. Indeed, as far as Reinach was concerned, Husserl’s arguments against logical psychologism were not merely effective against logical psychologism, but in fact convincingly demonstrated the existence of a vast range of really existent a priori states-of-affairs that philosophy had long failed to appreciate.Footnote ⁸⁸

We can reason about certain legal concepts in the same way that we can reason about numbers, Reinach is saying in Foundations, and the same arguments against psychologism apply – we have discovered the realm of the ‘pure essential laws of right.’Footnote ⁸⁹ And this legal case study, then, might help us see that the realm of the a priori ‘extends absolutely everywhere’ – ‘one of the most important things in philosophy, and if one thinks it through completely, one of the most important things in the world.’Footnote ⁹⁰ Perhaps Reinach’s deepest personal philosophical commitment.

2.5 Natural Selection and Ontology

But we are not Adolf Reinach, and with presumably less personal investment in Husserl’s vindication, it is fair to wonder whether indeed the sharp distinction he drew between phenomenological and psychological accounts of law amounts to all that much for legal theory. I argue that for at least two interrelated reasons legal theorists need not be as preoccupied as Reinach with the ontological status of concepts, at least between evolutionary theories and his own phenomenological realism. First, the difference between evolutionary psychological accounts and metaphysical realism is less wide than Reinach, Husserl, and Frege appear to have realized. Second, closely considered, Husserl’s and Frege’s arguments against psychologism are substantially more persuasive in their own fields of logic and mathematics than they are in law.

Recall one of Husserl’s strongest arguments against psychologism – it entails the possibility of ‘species relativism’; of the law of noncontradiction’s being true as a matter of human psychology but false for some intelligent alien species.Footnote ⁹¹ In other words, psychologism suggests ontologically arbitrary variation across different species’ ‘laws of thought.’ From this perspective, it is an argument against psychologism to point out that it doesn’t appear that such variation exists – we haven’t encountered species that seem to behave as though they have radically different understandings of the basic fabric of the universe than our own.

And consider Reinach:

If the principles of logic, mathematics, and private law are just laws of thought, the argument goes, what keeps them from being arbitrary? And as an actual empirical matter, it doesn’t look like they are – the basic ways in which we think do seem to largely track reality. If we have one rock and another, we really do have two; we have yet to encounter in the macro world circumstances under which the proposition ‘there is now a hungry lion at the cave entrance’ is both true and false at the same time.

This is an entirely fair argument against psychologism per se – strongly suggestive if not logically dispositive. As against the suggestion that our concepts are rules of thought full stop, it is fair to wonder why they wouldn’t vary arbitrarily as across individuals, species, or between individuals and the world around them. But it is not a particularly powerful argument against evolutionary psychologism. Indeed, if we assume that it is natural selection that has given rise to innate psychological concepts – as opposed to, say, random brain development or Humean empiricism – psychologism and metaphysical realism look, from a practical, emergent perspective, much more similar.

Say what you will about natural selection, but it is not arbitrary. Indeed, it is thoroughly dependent on and necessarily reflects ontology. From this perspective, basic legal concepts might be both metaphysical truths and laws of thought; or they may only be laws of thought, but which approximate in some nonarbitrary way whatever the truths of metaphysics are.

We can start with the observation that the kind of cognitive concepts and processes at issue – from, say, the law of noncontradiction to intuitions about the nature of ‘promise’ – are highly energy intensive. For starters, they require a brain, and a fairly complex one – and all of the energy and long and vulnerable childhood that requires.Footnote ⁹³ Beyond that minimum, each additional complex informational faculty – like the capacity for language – requires further energy; more calories to sustain neurons rather than, say, physical defenses or the ability to fly.Footnote ⁹⁴ Granting the premises of evolutionary psychology, we can assume that, unless these concepts were fitness enhancing in some way, we presumably would not have them – ancestors who had evolved them would have been outcompeted by organisms with more efficient energy allocation.Footnote ⁹⁵ ‘According to evolutionary biology, the structural complexity of a given [trait] can provide evidence that the [trait] is an adaptation, even if nothing is known about [its] causal role.’Footnote ⁹⁶

So how might concepts like noncontradiction or the relationship between claim and waiver be fitness enhancing? Well, one obvious answer is because the universe really is governed by these laws.Footnote ⁹⁷ Suppose that we actually do live in a universe in which the law of noncontradiction is true – that it genuinely cannot be that a proposition is both true and false at the same time. An embedded cognitive shortcut to that effect would be fitness enhancing. Indeed, it is strictly fitter than its alternatives. If we know ‘there is now a hungry lion outside of the cave,’ we know to wait, because it simply cannot be that there is not a lion outside the cave. This is less energy intensive than some kind of freewheeling general intelligence that must deduce noncontradiction ex nihilo, and is much safer than not understanding noncontradiction at all. If 1 + 1 really does = 2, and knowing that has any implications for reproductive success, it is at least marginally fitness enhancing to understand that innately.

The same could be true of the concepts of private law – maybe we’ve evolved to intuitively understand that promise gives rise to obligation because that really is true – just as Reinach believes. You might wonder how such a thing is possible, how it could be that the concept of ‘promise’ actually exists in a universe that has been around, as far as we know, for billions of years before the first promising entity. Which is, of course, entirely fair. But I don’t know how or why the law of noncontradiction might exist either; or math or the laws of physics or any of the truths that we may have been the first to understand but apparently long preexisted us.Footnote ⁹⁸

Granted, some philosophers have argued that although this line of reasoning might work for descriptive constituents of the universe, it could not account for the evolution of true moral intuitions or evaluative attitudes.Footnote ⁹⁹ But even if this is right,Footnote ¹⁰⁰ recall that for Reinach these basic legal concepts are descriptive – they exist in the same way that logic and math do, and are conceptually independent of our moral intuitions about them and the nature of moral reality.Footnote ¹⁰¹ If you reject that, your disagreement with Reinach goes deeper than the concepts’ mode of existence, to the nature of the thing – a defensible view, but no response to an evolutionary grounding of something like Reinach’s jurisprudence. After all, proponents of this ‘Darwinian Debunking’ argument are perfectly happy to concede that natural selection can give rise to psychological concepts that descriptively reflect ontology, and argue rather against inferring moral obligation from that, entirely consistent with Reinach’s picture.Footnote ¹⁰²

In any event, if this all is right – and we’ve evolved basic legal concepts as a matter of innate psychology because they really exist – Reinach’s theory of the realism of concepts and a kind of evolutionary psychologism could be effectively coterminous. The concepts would exist both as an ontological matter – as Reinach would have it – and as a matter of innate psychology – as the evolutionary psychologists would have it. And indeed, the latter would be true because of the former.

Of course, there are other possibilities – natural selection hardly demands that our innate concepts are a one-to-one map of ontology (and obviously they are not – there is a vast range of electromagnetic radiation we are incapable of seeing, and our intuitions of motion are relative to the earth’s surface, and so on). But although natural selection does not compel a relationship of correspondence between ontology and innate psychology, it does entail some relationship – no options of which are arbitrary in the way Reinach, Husserl, and Frege were really worried about.

Suppose that in fact all that exists is a sea of particles. And even suppose arguendo that quantum mechanics is right that in the end these particles behave according to probability, not law – a particle actually can be in two places at once; the cat can be both dead and alive.Footnote ¹⁰³ How might the law of noncontradiction as a cognitive heuristic be fitness enhancing in such a universe? Presumably it could only have evolved if it at least roughly reflected ontology as relevant to us – a kind of innate nominalism.Footnote ¹⁰⁴ So long as a law of noncontradiction sufficiently approximates the reality within which the intelligence has to operate, an innate noncontradiction principle could evolve.

There is, indeed, suggestive evidence that this is precisely the relationship between evolved minds and the universe in which they exist. For example, our lay, intuitive physics much more closely approximates the Newtonian mechanics of the world we must navigate than the underlying quantum structure that might really constitute the universe.Footnote ¹⁰⁵ But while it is fitness enhancing to intuitively grasp how to evade falling objects, our ability to mate evidently almost never turns on the off chance that all our electrons are in the wrong place or whatever. Intuitive, quasi-Newtonian mechanics is a pretty good approximation of how objects behave in macro space.Footnote ¹⁰⁶ Nominalists of all kinds recognize that categories can be efficient mechanisms to bundle, use, and exchange pertinent information, even if those categories don’t themselves exist metaphysically and are fuzzy at the margins.Footnote ¹⁰⁷ This account might be equally applicable to the anterior level of natural selection rather than posterior social or linguistic construction.

The important point is that, while this kind of innate nominalism does not faithfully replicate the deep structure of reality, it is hardly arbitrary. It only works if it packages reality in ways that really are useful. And that is nothing but a question of ontology. The objects that reflect light at 700 nm really are physically more similar to those that reflect light at 701 nm than those that reflect at 400 nm – and innate psychology does not draw a line between 700 and 701, but somewhere between 400 and 700 most languages will demarcate something like ‘blue’ from something like ‘red.’Footnote ¹⁰⁸ Even if our evolved concepts are rough approximations of reality, then, or nominalistic but useful categories that do not really exist, they necessarily bear some relationship to metaphysical reality.Footnote ¹⁰⁹

Husserl, at least, appears to have been willing to accept all this. After a hundred pages of polemic against psychologism, he is more favorable in his treatment of the ‘attempt to provide a biological basis for logical intuitions,’ conceding that ‘[s]urvival requires a certain adaption to external nature … the capacity to judge things more or less rightly, to foresee the course of events, to assess causal consequences, etc.,’ and that ‘[i]f the natural origin of the machinery which economizes thought is not to remain a miracle, … we shall have to … show … how a procedure which has had such success could and must have issued spontaneously out of purely natural causes.’Footnote ¹¹⁰

But Husserl rejected this hypothesis for failing to ‘consider how mental processes preserve truth.’Footnote ¹¹¹ The problem was that Husserl did not see how natural selection might give rise to a computational, conceptual mind of the sort he envisioned.Footnote ¹¹² And his foils in quasi-evolutionary theories of mind – Ernst Mach and Richard Avenarius – were hardly any help, being associationists about thought and radical empiricists about concepts.Footnote ¹¹³ But it is today’s evolutionary theorists who are perhaps the strongest exponents of a modular, computational theory of mind – who argue that in fact natural selection is the best explanation for a computational mind; that evolutionary psychology has defeated associationism and vindicated something more like an innate a priori.Footnote ¹¹⁴ If Husserl had this evolutionary theory of mind available, perhaps he would have been more receptive.Footnote ¹¹⁵

In short, if we accept that indeed it is because of natural selection that we have certain ‘laws of thought,’ we must accept certain ontological claims.Footnote ¹¹⁶ With this perspective on the interaction between natural selection and metaphysics, it isn’t surprising that we don’t observe species behaving as though they had radically different ontological perspectives than us – they would have had to have evolved in radically different metaphysical conditions. Nor is it surprising that our concepts map reality as we perceive it. Of course they do, that is how natural selection works. If they didn’t (radically, regularly, etc.) we would die and organisms with more useful concepts would flourish in our stead.

In the end, of course, Husserl and Reinach are right that metaphysical realism is a different commitment than evolutionary psychologism. These theories could be coterminous, but there is obviously daylight between them. Natural selection is not a perfect designer. We have vestigial organs.Footnote ¹¹⁷ Most agree that at least some traits are spandrels – byproducts of the evolution of some other adaptation.Footnote ¹¹⁸ And some argue that sexual selection can result in the development of arbitrary expensive traits.Footnote ¹¹⁹ But all that is controversial, and natural selection remains a brutal constraint – when vestigial organs become too energy intensive, or spandrels too far from the purposes for which they were adaptive, or mating rituals too over-the-top, organisms will start dying before reproducing.

So, yes, while Reinach was right that his theory is different from one grounded in evolutionary psychology, he was wrong about how different, and in what sense. We might have evolved concepts that do not ‘really’ exist. They might mis-map reality, and it’s possible that an intelligent species of angels with a different evolutionary history might have slightly different ones. But they are not arbitrary and cannot possibly be too far off. From this perspective, then, evolutionary theories of legal concepts look much closer to Reinach’s.

2.6 Reinach’s Legal Anti-psychologism

In short, Reinach – and his mentors against psychologism – appear to have overestimated the differences between evolutionary accounts of concepts and metaphysical ones. But it is still worth taking seriously these thinkers’ affirmative arguments for metaphysical realism. After all, if Reinach or his intellectual progenitors had managed to demonstrate the metaphysical realism of legal concepts, or show some reason that metaphysical reality, and only metaphysical reality, could do the necessary work, whether evolutionary accounts overlap significantly might be beside the point. Reinach himself did not spend all that much time making affirmative arguments for metaphysical realism – rather, he largely assumed it was right; psychologism wrong. Presumably he thought the work had already been done – that Husserl and Frege had won. From this perspective, it seems fair to attribute to Reinach Husserl and Frege’s arguments against psychologism. The problem for Reinach is that those arguments are much stronger in mathematics and logic than in private law.

To analyze whether any of Reinach, Husserl, and Frege have given us substantial affirmative reason to accept that metaphysical realism, and not evolutionary accounts of human psychology, is the mode of existence of basic concepts they are talking about, let us take their beliefs about psychologism (whether in logic, math, or law) as making the following two claims –

And what we are trying to figure out is whether any of these thinkers have given us a basis on which to reject –

as a substitute for (1).

What are the arguments, then, for (1)? Most of them, as already alluded to, are hardly slam dunks. Frege and Husserl say that logical and mathematical laws cannot be derived from psychological laws because psychological laws are vague where logic is precise – but why not? Surely clarity can sometimes emerge on less-predictable forms – as Newtonian from quantum mechanics. They say that logic by its nature is True-out-there and psychologism requires it to be true in some relativistic sense, but this begs the question. It is circular to assume the necessity of Truth-out-there when that is precisely what the dispute is about – the psychologistic camp simply denies that logic, or anything, is True-out-there, or denies the possibility that we could know.Footnote ¹²¹ These sorts of arguments aren’t going to cut it – if this were all we had to insist on (1) over (1a), I wouldn’t bet the farm.Footnote ¹²²

One stronger argument, already discussed in Section 2.5, is inductive – (2) is true, which suggests something like (1) must be.Footnote ¹²³ This is how Reinach proceeds, his clearest argument for (1) in the Foundations is that he is showing it by doing (2) – ‘[w]e shall show that the structures which one has generally called specifically legal have a being of their own ….’Footnote ¹²⁴ And for Frege and Husserl, we can after all do math and use logic; it must have some kind of existence.

This argument is fair, as far as it goes. It is inductive, and not logically conclusive.Footnote ¹²⁵ But, as discussed, it is obviously on to something. Natural selection depends on ontology, and our evolved concepts necessarily bear some nonarbitrary relationship to metaphysics. Indeed, if (1) is true, (1a) likely would be as well, because of (1). And if (1a) is true, something like (1) must be. But if we are trying to show (1) over (1a) where they come apart – if we are trying to show that some concept exists metaphysically as opposed to just as a matter of human psychology, or both – this inductive approach is much more persuasive for Frege and Husserl in math and logic than it is in law.

This is because law and the social acts that, on Reinach’s account, constitute it, are different from math and logic in precisely the relevant respect – even if legal concepts exist as a matter of metaphysics, at least at present truths about them are only accessible to, and visible among, human beings. That makes it impossible to inductively distinguish between (1) and (1a) – Reinach’s phenomenology can do (2), which can show that something like (1a) must be true, and maybe (1a) is because of (1), but maybe it is because of something like (1), and maybe it is not (for example, it might be the result of sexual selection).Footnote ¹²⁶

Consider the grounds on which Frege and Husserl can suggest (1). They can start by doing (2) themselves – reasoning, apparently a priori, to apparently true conclusions. But they might be crazy. So, like Socrates in the Meno, they can find random people and do (2) together.Footnote ¹²⁷ But those people might be crazy. So, they talk to everyone, and together everyone does (2). (1) is looking more and more likely. But everyone might be crazy. That is just another way of saying that (1a), or some psychologism less correlated with ontology than an evolutionary account, might be true, and could account for our ability to collectively (2).

But Frege and Husserl can do more than merely (2) with all human beings – they can look at the structure of the world around them. They can see, as we saw above, that animals appear to cogitate according to similar logical rules to the ones they have relied on at (2). Of course that doesn’t prove (1), rather than convergent evolution (which might well be because of (1), but could be for other reasons)Footnote ¹²⁸ but it is something. And Frege and Husserl can go even further, and point out that it appears that the conclusions we reach while (2)ing are true about everything – that the world does behave according to our a priori logical structure, and our a priori mathematical conclusions account for innumerable phenomena.Footnote ¹²⁹

Reinach cannot do this. Social acts don’t happen without social entities.Footnote ¹³⁰ And, for Reinach, human beings are the only entities of which we are currently aware that can participate in or reason about legal concepts. ‘[A]nimals too can be bearers of experience, but never of claims or obligations.’Footnote ¹³¹ He claims that his conclusions apply to angels, gods, and devils, but, as empirical verification of this might be the best way to inductively distinguish between something more like (1) and something more like (1a), forgive me for waiting.Footnote ¹³²

Finally, this brings us to what seems to be the crux of the issue for Frege and Husserl. It is not really an argument at all. It is a stipulation. Frege, for example, admits that ‘[t]here appears such a world of difference between me and the psychological logicians that there is no prospect of influencing them through my book.’Footnote ¹³³ But he inveighs –

‘If we want to emerge from the subjective at all, then we must conceive of knowledge as an activity that does not create what is known but grasps what already exists.’Footnote ¹³⁵

And Husserl – ‘I … find myself at a point which I have either to recognize as the Archimedean point from which the world of doubt and unreason may be levered on its hinges, or which I may sacrifice at the peril of sacrificing all reason and knowledge’;Footnote ¹³⁶ ‘One cannot persuade the subjectivist any more than one can the open sceptic, a man simply lacking the ability to see that laws … have their roots in the mere meaning of truth … must [embrace a position] count[ed] as the purest nonsense.’Footnote ¹³⁷

In other words, Frege and Husserl hold that (1) must be true. Must (1) be true, though? Of course not, not literally; not logically.Footnote ¹³⁸ Hence the stipulation, and its insistence. It could, ‘in principle,’ be that there are some species for which the concept of equality ‘exists’ and those it does not. The universe could be fundamentally disordered; I could be a brain-in-a-vat – ‘a dream about being a person.’Footnote ¹³⁹ It’s not possible for a concept like equality to exist or not exist metaphysically across species, and, if the law of noncontradiction is metaphysically true, then it couldn’t be true and false for different species,Footnote ¹⁴⁰ but that takes us right back to the circularity. Confining ourselves to strict possibility, we face the specter of an incoherent, disordered, meaningless universe that has only to this point appeared to each of us coherent and ordered and contemplative of meaning. We always have; we always will.Footnote ¹⁴¹

Frege and Husserl’s ‘must,’ in ‘(1) must be true,’ then, is not the ‘must’ of logical entailment. It is, rather, a certain kind of ‘must if’ – (1) must be true if anything matters. Granted, (1) might not be true. But perhaps then it’d be time to throw in the towel – at least for their project, presumably for projects, period. Why is this? Stipulating the metaphysical existence of one’s concepts of investigation hardly seems demanded by conceptual analysis as such. The language philosophers of the mid-century, for instance (to whom Reinach bears a striking resemblance)Footnote ¹⁴² were perfectly happy to parse the conceptual structure of speech while disclaiming any views on its metaphysical correspondence.Footnote ¹⁴³ Plenty of people, also like Reinach, analyze the descriptive entailments of legal concepts without stipulating anything like (1), and certainly without the high melodrama of Frege and Husserl on the point.Footnote ¹⁴⁴

But this kind of ontologically detached analysis is not a possibility for Frege and Husserl, precisely because of what they are analyzing. The difference is that a language or legal philosopher need not tell us anything about how we ought to interact with a social concept they are analyzing – we might be better off without it at all, and still learn something useful from the project. But in theorizing about the foundations of logic and mathematics, Frege and Husserl are hoping to tell us how we ought to think – in formal logic and, well, everywhere.

It is, after all, implicit in their project that we ought to be persuaded by their logic; on the presumption that we ought to think logically. As Husserl puts it, ‘[t]his being bound is not meant psychologically in the sense of a thought-compulsion, but in the ideal sense of a norm: whoever judges differently, judges quite wrongly.’Footnote ¹⁴⁵ Without some theory of how we ought to think – what counts as thinking, what we ought to recognize as thinking and accord appropriate respect – we do confront radical skepticism or solipsism. Frege and Husserl are, in other words, deriving normative claims about how we ought to think from their descriptive claims about the ontological foundations of logic and mathematics.

For deriving oughts about thought, we need (1), not (1a). If we stipulate (1), we take it that there is a genuine logical structure of truth in the universe. For this fact to ground an ought, all we now need is perhaps the most unobjectionable epistemic norm of all time – (n) we ought to think truly. That is, we ought to think according to what is actually true; we do something normatively objectionable when we think incorrectly. If we accept (n), and (1) is true, we get an ought about logic. We can follow, and be persuaded by, Husserl and Frege’s emergent analysis of logical and mathematical concepts. Indeed, we can hear each other out in all contexts, without worrying about that defiant rejoinder of the radical skeptic – ‘That all sounds right. But even if it is, why should I care?’ That is what Frege and Husserl stipulate (1) (and (n), more implicitly) against.

(1a) simply does not have the same normative force. You might wonder why this is. After all, even with (1), we face the tried-and-true difficulty of deriving an ought from an is.Footnote ¹⁴⁶ Indeed, we had to stipulate that we ought to think truly. Why couldn’t we rather stipulate (n_a) – we ought to think according to our evolved cognitive proclivities – rather than (n)?

All I can say here is that (n_a) is plainly false, and (n) plainly true. If we have evolved to think a certain way, but doing so is incorrect, and does not track reality, and is wrong, we ought not think that way. I take this to be uncontroversial, at least outside of the kind of nihilist circles that so agitate Husserl and Frege. As Husserl puts it, ‘[t]he constitution of a species is a fact: from a fact it is only possible to derive other facts.’Footnote ¹⁴⁷ Today’s evolutionary psychologists, famously, agree.Footnote ¹⁴⁸ (n_a) is precisely the species relativism of Husserl’s worries; adjacent to perhaps even more nihilistic (n_b) – we ought to think however we do (individually; Frege’s solipsism). Either of these is a straightforward rejection of the possibility of meaning, of standing to demand that some other’s thinking track the same reality as mine. Husserl and Frege are right, then, on their own terms, about the domain in which they are writing. In logic, at least, and probably math, if we are to have a theory about how we ought to think and speak, we must accept (1) (or something like it)Footnote ¹⁴⁹ over (1a).

But what does this all have to do with jurisprudence? Maybe nothing, and that’s the point. Reinach’s own peculiar, descriptive approach to thinking about legal concepts lets us avoid this whole mess. Because Reinach, unlike Husserl, does not ground normative claims in the existence of the legal concepts he is analyzing.Footnote ¹⁵⁰ In other words, where Husserl makes claims about how we ought to think, grounded in claims about, metaphysically, how things are, Reinach makes claims about how things, metaphysically, are (there exist these basic legal concepts) but does not draw from this claims about how the positive law ought to be. The positive law, he insists, unlike Husserlian logical thinking, is normatively free to vary from the a priori, and sometimes ought to.Footnote ¹⁵¹ Reinach sets aside questions about what we ought to do with the concepts he describes.

So insofar as all Reinach is doing, ultimately, is describing his concepts, he loses Husserl’s reasons for insisting on (1) over (1a). As already emphasized, (1) and (1a) are similar for many purposes. If one’s project is merely to describe specified concepts, they might be identical. But they differ in normative force. (n) is banal. (1) plus (n) is a straightforward foundation for epistemic normativity; maybe necessary for normativity writ large. (n_a), by contrast, is facially preposterous, and (1a) plus (n_a) flirts with nihilism. In other words (1) and (1a) might be quite similar, but n and n_a are not. If Husserl wants to write about how we ought to think and speak and communicate with one another, he needs (1). But Reinach’s project is different on its own terms. By setting aside the normative implications of the legal concepts he analyzes, Reinach doesn’t need (n) over (n_a). He doesn’t need any kind of n at all. And if he doesn’t need (n_a) over (n), he doesn’t need (1a) over (1), either.

In short, it is true that the ontological status of concepts might matter normatively. Frege and Husserl recognize this, and to the extent they want to derive claims about how we ought to think in math or logic, their concepts might have to exist ontologically rather than psychologically. But Reinach is different. His analysis is descriptive, not normative. It illuminates the positive law, rather than tells us how it ought to be. And for that project, (1) and (1a) are more closely equivalent. If evolutionary psychology (or any other theory), offers an alternative, relevantly equivalent mode of existence for legal concepts – namely, holds them to exist in a descriptive way that has no necessary connection to either morality or the positive law, accessible to human intuition, as both metaphysics and evolutionary psychology do – it seems that Reinach has no real grounds to reject it.

2.7 Conclusion

In insisting that the basic concepts of private law exist outside of their legal construction, but that this fact has no conceptual implications for moral obligations or positive law, Adolf Reinach may be a nearly unique figure in the history of legal philosophy. Perhaps closest to his perspective are those contemporary theorists who have applied evolutionary psychology to a theory of legal concepts – and who agree that basic concepts really do exist in some sense outside of legal construction, but that positive law is free to deviate from them, and often ought to. On its face, it is something of a puzzle, then, that Reinach makes so clear that he is not one of them – prepared to stake everything on his claims being ontological, not psychological.

As a matter of Reinach’s personal intellectual history, this commitment makes perfect sense – he saw it as one exemplary application of perhaps the most important philosophical position of his life, a commitment to a thick, epistemically accessible fundamental ontology, shared and hashed out by the leading figures of pre-War German philosophy.

But the Psychologismus-Streit ended with the outbreak of actual war in 1914. And post-War philosophers have largely found the stakes of whether the laws and concepts of logic and mathematics are metaphysically real or ‘laws of thought’ lower than did Frege, early Husserl, and Reinach. I’ve argued that this is particularly so in jurisprudence. Indeed, the difference between evolutionary theories of legal concepts and metaphysical ones is smaller than Reinach appears to have assumed, and Husserl’s and Frege’s arguments are more convincing in their own domains than in Reinach’s. In short, whatever Reinach himself would have to say (and as several contributions to this volume have argued on different grounds)Footnote ¹⁵² his insights remain relevant even for many of those who might struggle with his metaphysics.