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The Juridical Aspect

Briefly ...

We experience the juridical aspect as appropriateness and due (or justice, but 'justice' has some restrictive connotations) -- as intuition of what is appropriate in a situation, as 'ought', as debt when we know we should return due to another, as the actions of rewarding or punishing, and as (un)fairness as the result thereof. Many things, activities and properties gain their meaningfulness from the juridical aspect, such as responsibility, rights, rules, duty, jurisdiction, rulers, realms, subjects; owing, judging, apportioning, emancipating; just, fair, deserving, proportionate; 'ought', and so on.

Dooyeweerd, whose field was jurisprudence, recognised that juridical presupposed some idea of the whole, and thus depends foundationally on the aesthetic aspect. Justice, appropriateness and due presuppose they apply to all, not only to people with whom we interact, but also to people further away, the dead, past generations, future generations; to groups, roles, cultures; to readers, authors and ideas; to animals, habitats: to all. The juridical aspect is best when outward-looking as responsibility, rather than inward-looking as rights. Dooyeweerd discussion of this aspect is extensive, on pages 29, 550, 553 in volume I, 67-70, 119-138, 181-185, and many other pages from 290 to 411 in volume II, and many parts of volume III about the state.

One good possibility introduced by the juridical aspect is due for all, beyond me-and-mine, beyond those within our ken, to the whole. A second good possibility this aspect introduces is that of societal infrastructure. By being post-social an post-aesthetic, the juridical aspect is concerned with social structures of the whole, i.e. with societal infrastructures of policy, law and enforcement. Participative democracy is useful for inscribing into these structures a more diverse awareness than the policy-makers themselves might possess. Partiality, injustice and inappropriateness are the evil associated with this aspect.

Defining the Aspect x

Kernel: x

rather than:

See Dooyeweerd's discussion of his attempt to circumscribe the kernel meaning of the juridical aspect in [NC, II, p.129ff.]. He earlier used the term 'retribution' but that has misleading negative connotations of revenge which needed to be countered, and also requires reference to a host of non-juridical ideas.

This seems to be an important 'societal' aspect: functioning in which affects, and is affected by, structures of society. Juridical structures of society include state, policies, laws, etc. It cannot be fully understood only on the individual level, though the individual is also important. See re. Conscience collective below.

Some central themes x

Note: SInce this aspect is post-social, the full development of these themes and kernel issues involves society. There is a personal element (such as individual ownership), but much of this aspect can only be understood in terms of society. (Maybe, however, ownership itself only makes sense in the context of society?)

Note that juridical relationships, centred on 'what is due', must be symmetrical, in that both parties in the relationship have a 'due' (even if it is a different due). This contrasts with ethical relationships, which are essentially assymetric.

Common Misconceptions x

The Aspect Itself

Non-Absoluteness x

There can never be a law that tells us, with authority, "You must obey the law." The injunction to obey the Law comes from outside this aspect, often from the pistic aspect in which we have a vision of who we are and a deep (fundamentally religious) commitment to that vision.

Expert witnesses in a court case: and example of the non-absoluteness of juridical procedure: we rely on their good faith, honesty and lack of distortion. If not, then side A puts up an expert A1, side B puts up another expert B1 to examine A1, side A puts up another expert A2 to examine B1 and support A1, and so on, ad infinitum.

That the juridical aspect requires others is exemplified by Tom Bingham's statement below, which defines how to make law by reference to a vision (pistic).

Moreover, if we focus only on the juridical aspect, we focus on whether we deserve things or not, while being completely unaware that we ourselves are undeserving, and much more sharply aware of the undeservingness of others. That awareness is a functioning the ethical and pistic aspects.

Special Science x

Institutions x

See Danie Strauss' discussion of Category Mistake in Opposing Individual to Society. Not only does Danie provide insight about State, Government, Society, Citizen and Individual, but this is an excellent example of how awareness of the juridical aspect can help clarify tangled matters.

Blessing x

Harm x

Harm and evil that is meaningful primarily from the juridical aspect:

Harm that tends to result from when we over-emphasise the juridical:

Contributions from the Field x

Durkheim's 'Conscience Collective'

Emile Durkheim coined the term 'conscience collective' to refer to the norms agreed within a society, and which go towards the forming of laws: "an act is criminal when it offends strong and defined states of the conscience collective" (CST, Durkheim, p. 185). It consists of beliefs and ideas that shape the structure and direction of community life, rather than just the personal interactions of individuals - beliefs about what is right and wrong. In this way, Durkheim has provided an insight into the juridical aspect.

Should we fight for our own rights?

The question may be raised of whether due for all is better achieved by each ensuring their own due (each person or group fighting for their rights) or by each ensuring the due of others. Nietzsche, Marx and to some extent Habermas and Foucault assume the former. Biblical Christianity and everyday family life suggest the latter. One way to answer this is to import meaning from other aspects. For example, the aesthetic aspect suggests that as long as there is delight then it does not matter, the ethical aspect immediately supports each fighting for others rather than themselves because self-giving is its kernel, and the faith aspect suggests that the answer can be dictated by what we believe. But that does not do justice to this question.

To give the question its due, we must avoid referring to other aspects as far as we can and undertake a transcendental critique to disclose the conditions that make due-for-all possible. {Note 1} As soon as we do this, we realise that the first answer (each fighting for their own rights) is untenable in a temporal reality in which many do not have the ability to ensure their own rights - for example, the dead who fell in battle, to whom honour is due, children, to whom nurture is due, future generations, to whom a sustainable environment is due, and animals, to whom (sic) is due the ability to function as their kind. Here, the topic of juridicality deserves due care and this article and its reader deserve an appropriate level of detail. So we must pose one further question, whether we should uphold only the rights of those unable to fight for themselves, as the above reasoning might suggest, or also those of others who are able to uphold their own. Though the ethical aspect might suggest the former, the notion of due for all implies upholding the rights of all (as expressed in "equality before the law").

What is the Difference between Fairness and Justice?

As someone pointed out [BBC Radio 4 In Our Time, 19 January 2023], young children have a keen knowledge of fairness, often complaining "It's not fair!" But we would be surprised if they complained "It's not just!" Justice seems more than and deeper than fairness. What is this more, this depth?

Might it be that

Especially, fairness applies to the quantitative aspect (number of sweets, amount of cake, number of turns on the swing, amount in pay packet).

Paul Marshall defined the Hebrew idea of tsedeq, often translated as "justice" and "righteousness" as "Right relationships among all things in the created order." That sounds very multi-aspectual.

Rawls, in his Theory of Justice, sees "justice as fairness", theorizing that justice is what emerges from the working of fair procedures. That could be so, in that each procedure has the opportunity to bring in a different aspect. So, a good system of justice will have procedures that bring in all aspects. Whether it does or not, of course, depends on the prevailing beliefs of society, as to which aspects are important and which are unimportant. [Is that a useful contribute that Dooyeweerd might make to Rawls?] For example, English law and governance has presupposed the supreme importance of land ownership, wealth ownership, defence of the realm and workers rights, and until recently, has largely ignored environmental issues and the future.

The Aspect Among Others

Law-dependencies x

Antecipations

When governments make something mandatory, which is a juridical act, but it has strong pistic overtones since doing so gives a signal that it is important. Example: That is why, in the UK during the Covid-19 pandemic, when face covering etc. was mandatory people did this, but as soon as it become 'advisory' many stopped covering faces. The government did not understand the pistic aspect ofit.

Relationship to the Analytical Aspect

The juridical aspect requires the analytical for clear thinking, but it is not bound to the analytical. There is a juridicality that is non-juridical. One example is the age at which a person becomes an adult, the proposal that a person becomes an adult overnight, and so a whole bunch of laws apply to that person one day that did not apply the previous day. But that is all we can do in an analytically elevated legal system.

Analogies x

Antinomies x

Common Reductions x

Politics

(Often a teleological or even idolatrous reduction.) People see politics, especially left-right politics, as the most important issue. Not just during election time, as it is now in the U.K. (18 March 1997) but also this reduction blinds people. But I have recently been in email correspondence with some of my fellow-Christians in the U.S.A. about green issues and about socialism (I have never been a socialist and doubt if I ever shall be) and have been appalled at their outright rejection of socialism. To them it is ultimate evil. They seem to be worshiping anti-socialism rather than the Living God. This seems to me an example of idolatrous reduction - though, of course what we hear via email might not reflect a person's real stance.

Notes x

Essence

A solicitor was in the dock. While she was driving a passing cyclist clipped her wing mirror. Infuriated, she rammed him, driving her car at the bicycle and knocking him off. At the end of the trial, the judge gave her six months in jail, as an example. On the ground that "she used her car as a weapon."

As soon as I heard that I thought "Yes! That's it. That's exactly right." The judge had cut through all the issues to the essence of the situation.

That set me thinking. It is (good) judges, those whose discipline is the juridical, who are best able to identify the 'essence' of something, about which we intuitively feel "Yes, that's it!" I put this to a colleague who is a judge, and he modified it a little: the legal essence.

Does 'Essence' has to do with Law? Legal essence to do with juridical law, social essence to do with social law, physical essence to do with physical law, and so on? This links to Dooyeweerd's view that existence comes about by response to (aspectual) law. So does meaning.

Norms

Three types of norm:

All have some link with this juridical aspect. But the latter two are specifically limited to this aspect, though other aspects (social and lingual) are involved.

Footnote on Critique.

Dooyeweerd practised both transcendental critique, which gives due to a topic within the meaning-bounds of an aspect, and also immanent critique, which gives due to a thinker by trying to understand them from their own point of view. So-called transcendent critique (without 'al') is very different [Dooyeweerd, 1984,I:37]; it is when we criticise an opponent from our own viewpoint, and does not give the opponent their due. See the page on transcendental critique.
Back to Index of Aspects.

This is part of The Dooyeweerd Pages, which explain, explore and discuss Dooyeweerd's interesting philosophy. Questions or comments would be welcome.

Copyright (c) 2004 Andrew Basden. But you may use this material subject to conditions.

Written on the Amiga with Protext.

Created: by 18 March 1997. Last updated: 30 August 1998 rearranged and tidied. 19 April 1999 added non-absoluteness. 14 January 2001 various bits about reduction and relationship to analytical aspect. 7 February 2001 copyright, email. 14 March 2002 added Essence, Norms. 14 September 2002 Note after themes about being post-social. 4 March 2003 necessity of aesthetic for precedent, symmetric relshp, Aristotle's no more, but also no less"reduction. 22 July 2003 non.abs eg, new ending. 24 August 2005 new .nav,.end. 22 May 2008 replaced 'retribution' by 'restitution'. 6 May 2010 Dooyeweerd's discussion NC,II:129. 10 May 2010 collective conscience; societal. 23 June 2010 issues/indiv.soc. 22 September 2010 Dooyeweerd's and Basden's rendering. 22 December 2010 Bingham example. 10 February 2011 fight for rights + note. 21 September 2016 briefly, rid counter. 21 January 2021 fairness. 8 November 2021 Harm redone, into two lists. 1 February 2022 Antecipations subsect. 27 May 2022 BLame Culture eth,pis. 19 January 2023 Justice-Fairness. 1 March 2023 undeservingness.