Phenomenology, Colonialism, and the Administrative State

Abstract

This article, a contribution to a symposium inspired by Brian Tamanaha’s recent book, A Realistic Theory of Law, applies Husserl’s phenomenology to jurisprudential issues regarding universal principles of law. It argues that there are no such principles. The principles by which we formulate our legal, as well as our moral, judgments are the product of our own society, and exist within the horizon of our conceptual framework. What we claim as universal principles are simply rhetorical devices that exist within that framework. This does not preclude us from advancing legal or moral arguments; rather, it determines the factors that will render such arguments meaningful and convincing to us. If we want to understand the legal systems of other cultures, we must do so by means of careful study and constant awareness of our differences. Reference to universal principles can be considered a type of intellectual colonialism, leading to distortion and misunderstanding of those other legal systems. The search for universal principles also leads to distortion and misunderstanding of our own legal system, which –like the legal systems of more recently colonized nations -- originated from a wide range of sources and continues to be a melange of inconsistent legal rules. Quite often, universal legal principles are invoked to condemn our dominant form of governance, which is an administrative state. But that form of governance reflects our conception of law, and condemnations based on universal principles are merely specific, ideologically-based criticisms within our legal discourse that try to dress up those criticisms with invalidly grandiose terminology.