1.1 Introduction

If the reader of this chapter were asked to single out the most-disputed or least-understood features of contemporary private law, two good responses – for common and civil law backgrounds alike – come to mind. First, how does the binding power of contract arise out of a promise? In the common law of contracts, the promise classically needs to be backed by consideration in order to become binding for the promisor, even if the consideration is only nominal, for example, a dollar or a cent. But what is the deeper meaning of the consideration requirement beyond this proverbial ‘peppercorn theory’?Footnote ¹ If the binding power of the contract is not derived from the promise, where does it come from? The ‘will theory’? Reliance? Equity? Morality?Footnote ² Or, to argue from the other side, as law and economics scholars have proposed under the provocative heading of ‘efficient breach’, why shouldn’t the parties to a contract simply break free of its bonds if a better, more efficient opportunity for contracting arises?Footnote ³ These questions are indicative of the ongoing debates in contract theory in the common law world. But the civil law of contracts doesn’t fare much better. While it avoids the quandaries of the consideration doctrine by founding the binding power of the contract on mutual declarations of will, it is nevertheless faced with the same problem: Why are contractual parties bound to what they consented to do?Footnote ⁴

Second, as if the intricacies of contract law weren’t enough, there is property law and the century-old debate whether property should be conceived as an absolute right to a thing or as a mere ‘bundle of sticks’ of relative rights against other persons.Footnote ⁵ As simple as this restatement of the notorious ‘bundle theory’ of property may sound, it is still one of the focal points of common law debates on property. The antipodes of ‘thing’ versus ‘bundle’ recur across the theoretical spectrum from legal doctrine through law and economics to political theory and legal philosophy.Footnote ⁶ Here again, the civil law seems to offer an easy way out, since its codified structure still reflects the ancient Roman dualism between rights in rem and rights in personam, thus preserving the structural divide between rights to things and rights against persons within present-day doctrine.Footnote ⁷ Yet, the preservation of an ancient systematic ideal can hardly count as a sufficient reason to insulate civil law property against the structural challenge posed by the bundle theory. But what follows from this? Is the German Civil Code simply wrong in conceptually separating rights to things from obligations? Or might there be some deeper reason for this distinction that could, in turn, help common law property theorists deal with the ‘bundle challenge’?

This chapter aims to answer these questions by reconstructing Adolf Reinach’s phenomenological theory of private law as developed in The Apriori Foundations of the Civil LawFootnote ⁸ against the dual background of the German civil law tradition, wherein Reinach received his legal training, and modern language philosophy. Both viewpoints complement each other and will prove equally indispensable to reading Reinach. It is impossible to overlook the deep influence of German private law doctrine on Reinach’s theory. Thus, to gain access to Reinach’s thought, a promising path is to assess his theoretical claims against the backdrop of the civil law tradition. On this basis, the cultural as well as linguistic situatedness of some of Reinach’s claims of apriority will become apparent, thus making his theory a valuable resource for cross-system theory comparisons. Yet, such a doctrinal reading of Reinach alone obviously cannot do justice to his original philosophical endeavour. Building on existing work, this chapter thus brings Reinach’s phenomenology into further dialogue with modern language philosophy.Footnote ⁹ The following sections will take up these issues in greater depth. Section 1.2 will explore Reinach’s concept of a priori foundations of private law and will use John L Austin’s concept of ‘performative verbs’Footnote ¹⁰ to understand it as a phenomenology of the performative foundations of legal language. Sections 1.3, 1.4 and 1.5 will, in turn, explore the three most important performative verbs in Reinach’s theory against the background of their original etymologies and legal connotations in German private law: ‘promising’, ‘owning’ and ‘enacting’. I conclude by arguing that what Reinach has to offer today’s private law theorists is a slim and remarkably timeless theory of linguistically defined social acts as the basis of legal meaning. This theory merits further consideration, even if the question of its potentially stronger ontological or epistemological readings is left open.

1.2 Reinach’s A Priori as a Phenomenology of Performative Legal Language

The story of Reinach’s brief career and untimely death is largely a story of what could have been the path of German legal philosophy had it not been for the atrocities of the twentieth century.Footnote ¹¹ Reinach, born into an affluent Jewish family in Mainz on 23 December 1883, enrolled at the law faculty of the University of Munich in 1901, but ended up spending most of his time studying philosophy with Theodor Lipps. At that time one of the leading German philosophers, Lipps was committed to employing the newly developed methods of psychology to the philosophy of mind. Reinach, however, did not stay long within this intellectual circle. After the completion of his dissertation in 1904, and as part of a migration of students later known as the ‘Munich invasion of Göttingen’,Footnote ¹² he moved to Göttingen and in 1909 obtained his habilitation with Edmund Husserl, Lipps’ anti-psychological opponent. In 1913, Reinach was among the founders of Husserl’s Yearbook for Philosophy and Phenomenological Research, in which The Apriori Foundations of the Civil Law appeared in the same year,Footnote ¹³ four years prior to the author’s untimely death on the battlefields of World War I outside Diksmuide in Flanders on 16 November 1917.

Though a constant temptation, it is nevertheless pointless to speculate about what Reinach might have achieved had he lived to develop a mature scholarly body of work out of his youthful first attempt at legal philosophy. The theoretical path Reinach explores is remarkably different from virtually all other paths of legal philosophy or jurisprudence that came to fruition in the twentieth century and eventually went on to form the core of the discourse. At the historical point in time when Reinach was writing, there were three main epistemic paradigms within jurisprudence to choose from.Footnote ¹⁴ First, legal positivism, analyticism and a non-philosophical ‘general theory of law’ flourished both in England and on the continent. A second, opposing tendency was the simultaneous movement towards free law, jurisprudence of interests, legal realism and sociological jurisprudence. Third and finally, there was the idealist counter-position to the latter expressed in value philosophies, renewed natural law theories and an idealistically turned Neo-Kantianism or Neo-Hegelianism. Reinach’s legal phenomenology, however, did not fit into any of these camps.Footnote ¹⁵ He posited the extra-legal existence of legal concepts without committing to positivism, realism or idealism. His ontology of legal objects was neither merely nominalist, as legal realism would have it, nor idealist in the sense that it implied a transcendental a priori of legal morality. Yet, Reinach’s rejection of a moral a priori of the law did not commit him to legal positivism as a theory of jurisprudence either. On the contrary, he emphatically defended the independence between what he perceived as the a priori foundations of private law and the positive law:Footnote ¹⁶

What is, then, the essence of Reinach’s legal a priori? The phenomenological shibboleth ‘back to the things themselves’Footnote ¹⁸ demands going back to the things as they are given to us in experience. According to the phenomenological view, the object itself – and not just its representation – becomes accessible to the perceiving consciousness. Consciousness is not in the mind; it performs itself through being conscious of something other than itself.Footnote ¹⁹ In Reinach’s phenomenology of law, apriority thus serves to describe the irreducible structures of human consciousness as the basis of cognitive acts, to the extent they are foundational for legal meaning. By building his concept of apriority on the perception of legally foundational cognitive acts, Reinach arrives at the contention that a priori foundations of the law in fact exist and can be grasped as an immediate object of phenomenological perception. But what are legally foundational cognitive acts? This point represents a theoretical crossroads from which several possible interpretations of Reinach’s phenomenology emanate.

A thick metaphysical reading of Reinach implies a commitment to the epistemological and ontological premises of phenomenology. At the very least, the phenomenological unity of transcendence and experience demands a theory of consciousness that reflects an objective reality beyond individual perception – a reality governed by structural laws independent of the psychic constitution of the human mind. Such structural laws exist; the laws of logic provide an example. With Edmund Husserl, the problem of phenomenology can thus be reformulated as follows: Are the laws of logic a function of human psychology, or is human psychology, on the contrary, a function of the laws of logic? Reinach, siding with Husserl against his early academic mentor Theodor Lipps in this core question of the fin-de-siècle Psychologismusstreit, clearly insisted on the latter, emphasising the logical as well as ontological priority of the elementary structures of consciousness.Footnote ²⁰ Yet, this reading will hardly convince an anti-metaphysical audience versed in the legal theories of the late twentieth and early twenty-first centuries. But Reinach does not actually need a final answer to the psychologism challenge in order to make a philosophically meaningful statement about the foundations of the law. Another plausible reading of his theory avoids the baggage of philosophical phenomenology by restricting Reinach’s claim to a proto-language philosophy of the law. On this – much slimmer – reading, the core of Reinach’s theory lies in the simple claim that cognitive acts are, at least in many cases if not pro tanto, social acts performed through language. Reinach’s a priori thus translates into a phenomenology of the performative foundations of legal language. That the law is, generally speaking, a linguistic social praxis is all one needs to know in order to grasp the essence of its foundations.

This is where Reinach’s phenomenology lends itself to an interpretation along the lines of modern speech act theory.Footnote ²¹ Half a century prior to J L Austin’s How to Do Things with Words, Reinach had already conceptualised his core concept of the ‘social act’, defined as a ‘spontaneous act in need of being heard’,Footnote ²² in terms of a proto-Austinian performative utterance. Indeed, some parallels between the speech act theory developed by mid twentieth-century philosophers of language, on the one hand, and Reinach’s theory of linguistically defined social acts as the legal a priori, on the other, are so striking that they raise the question of a direct influence of Reinach on Austin.Footnote ²³ Where Reinach conceptualises legal acts as essentially social acts and other-directed utterances ‘in need of being heard’, Austin distinguishes between declarative and performative utterances and points to the fundamental irreducibility of the performative character of the latter.Footnote ²⁴ This is not to argue that all social acts constitute speech acts, that all speech acts qualify as social acts, or that all legal acts necessarily presuppose either speech acts or Reinachian social acts. If we put aside the considerable theoretical differences,Footnote ²⁵ there is nonetheless a significant overlap between the three groups of acts, which makes it a fruitful enterprise to use Austin’s speech act theory as an interpretive aide when coming to terms with Reinach’s phenomenology.

Two features of Austin’s theory appear particularly well suited to illuminate Reinach’s legal theory. First, Austin’s distinction between the truth conditions for declarative and performative utterances has direct implications for assessing the binding power of legal acts independently of their truth value. While declarative utterances can be true or false, performative utterances, according to Austin, may only ‘succeed’ or ‘fail’, that is, be ‘happy’ or ‘unhappy’.Footnote ²⁶ For Austin, happiness or unhappiness thus replaces truth or falsehood in the realm of performative (or illocutionary) speech acts. One way to read this insight is as a restatement of the non-naturalist metaethical position that the truth criteria applicable to statements of natural facts do not apply to moral statements, or, for that matter, to the assessment of legal acts. But Austin’s insight goes even further than this by pointing to the pervasive power of the social performance of normativity, which supplants and supervenes natural laws even where they seem to govern. Reinach formulates a remarkably similar intuition in rejecting the classical project of natural law while, at the same time, rescuing it in the form of a phenomenology of social performativity. Thus, for Reinach, it is not the eternal truth of contractualism but the performative happiness of the very act of contracting that constitutes its normative power:

Second, it is no accident that Reinach uses the example of contracting to illustrate his more general point. As we will see shortly, the binding contract, a result of the performative power of mutual promises, comprises one of the centrepieces of Reinach’s private law theory and opens up another avenue of productive dialogue with Austin’s theory of performative verbs.Footnote ²⁸ Reinach, too, relies on performative verbs such as ‘commanding […], requesting, warning, questioning, informing, answering and […] still many other acts’Footnote ²⁹ to describe the innumerable multitude of legally relevant performative social acts. The similarities to Austin, who distinguishes five classes of performative verbs constituting a plethora of social interactions, are striking. According to Austin’s classification, ‘verdictives’ comprise all verbs that mean ‘giving a verdict’, such as convicting, acquitting, grading or assessing.Footnote ³⁰ ‘Exercitives’ describe the exercise of powers or rights through appointing, voting, ordering, advising or warning, to which Reinach’s case of ‘enacting’ also belongs.Footnote ³¹ Another important class for the matter at hand is ‘commissives’, which commit the speaker to doing something and, in particular, contain Reinach’s central case of ‘promising’.Footnote ³²

With this analytical background mastered, the stage is now set for a reconstruction of Reinach’s private law theory along the lines of Austin’s theory of performative verbs. In the following part, I will explore the performative phenomenology of the arguably most important concept in Reinach’s theory – namely, ‘promising’ (versprechen). This concept is fundamental to Reinach’s understanding of the performativity of contracts and the entire law of obligations.

1.3 Promising and Speaking (Ver-sprechen)

The promise, or, more precisely, the social act of promising lies at the core of Reinach’s theory of obligations. Reinach offers a comprehensive theory of the law of obligations centred on the act of promising. He identifies the promise as the exclusive origin of claims and obligations as relative rights within the bipolar legal relation between promisor and promisee. On this basis, Reinach draws several a priori conclusions for the structure of the law of obligations. He departs from the question whether the promise needs to be accepted in order to be binding, then offers an exposition of possible modes of termination for promises and obligations and concludes by addressing the fundamental problem of why promises are binding at all.

Let us first examine Reinach’s theory of promising as the source of obligation. For Reinach, ‘it lies in the essence of this act [sc. promising] to bring forth claims and obligations.’Footnote ³³ But why is this the case? And how can Reinach claim the apriority of the effect of promising – assuming it exists at all? The answer directly follows from Reinach’s definition of the social act. As discussed above, the social act is performative precisely in its ‘need of being heard’, that is, in its linguistic other-directedness as such. This means that the question of how the obligation arises from the promise cannot be further reduced or permits any further analysis; indeed, it would be a mistake to search for further grounds of the obligation beyond the social performativity of the promise. Under the premise that the socially irreducible is identical with the a priori, it follows that the promise as such – as opposed to its content, the promisor’s intention, or the ‘informative expression of a resolution of will’Footnote ³⁴ – is the decisive reason for the emergence of the obligation arising from the promise. Reinach particularly stresses the difference between a mere ‘expression of intending’, on the one hand, and the promise as ‘an independent spontaneous act which in turning without, expresses itself’,Footnote ³⁵ on the other. He thus establishes a sharp distinction between ‘intending’ and ‘promising’ as the a priori basis of the legal distinction between a declaration of will as opposed to a promise by pointing to the incommensurable performativity of both acts. The upshot of this argument is a critique of the construction of the formation of contracts through matching declarations of will under the German Civil Code:Footnote ³⁶

But is this argument, as Reinach contends, sufficient to establish the very act of promising as the a priori foundation of the law of obligations? The answer is that Reinach’s argument is surprisingly efficient because it provides the best possible irreducible interpretation of the emanation of the obligation from the promise under the condition that promising exists as a practice in private law. But how do we know that this explanation of the obligatory power of the obligation is indeed irreducible? Here, no further argument can be given. But this is precisely the point where Reinach’s philosophy reveals its striking modernity and ability to work on several levels apart from the thicker metaphysical assumptions of both phenomenology and language philosophy. In the reading proposed here, Reinach’s a priori of promising essentially amounts to an application of Ockham’s razor to contract theory, a discursive reduction that releases the latter from the search for further explanations for the binding power of contracts where none can be given.Footnote ³⁸ Read this way, Reinach’s argument closely resembles Wittgenstein’s picture in the Philosophical Investigations of the spade turning upon reaching hard bedrock: ‘Once I have exhausted the justifications, I have reached bedrock, and my spade is turned. Then I am inclined to say: “This is simply what I do.”’Footnote ³⁹ Reinach is also looking for the irreducible forms of law which neither require nor even allow for further definition or analysis. Apriority, for Reinach, neither requires transcendental conditions of knowledge or truth, nor priority of cognition over experience. It simply requires grasping the constituent, irreducible elements of human consciousness in the limited realm of legal acts – understanding the elements that, within the law, permit no further questioning. Having hit bedrock, the spade is turned and every further philosophical effort is rendered futile.

The next question Reinach raises is whether the promise needs to be accepted in order to be binding. His argument sets out from the observation that the concept of acceptance – another performative act – is ambiguous, if not polysemous. Reinach distinguishes no less than five meanings on what ‘acceptance of an offer’ could mean: (1) the outward expression of a positive response to the promise, irrespective of how it is performed; (2) the substantive content of the positive response; (3) the promisee’s inner experience of ‘saying yes’; (4) the outward expression of this inner acceptance; and finally, (5) the acceptance as ‘a social act in its own right which is not reducible to an informing.’Footnote ⁴⁰ These distinctions might at first glance seem captious. Yet, by introducing them, Reinach again highlights the crucial difference between the performative power of the promise as a speech act and the diverging construction of the binding contract in the positive law. A common fallacy among jurists familiar with the positive law of contracts, he argues, is to jump from the a priori performativity of the binding promise to the instrumental, a posteriori conclusion that there can be no binding contract without offer and acceptance:

Yet, such an identification between the binding power of promising and the rules for binding contracts would be rash, Reinach argues. The a priori performativity of the promise has nothing to do with the acceptance required for a binding contract under positive law. The promise should no more be confused with the contractual offer required by law than the acceptance can be reduced to the first, formal, contractual meaning stated above. Instead, Reinach is only interested in the question whether the speech act of promising needs to be accepted in the second, substantive sense in order to become efficacious, and he clearly answers this question in the negative: ‘We are only asking whether promising needs a (material) acceptance in order to be efficacious.’Footnote ⁴² Since the acceptance of a promise cannot amount to another promise – due to the resulting infinite regress of mutual promising – the promise must carry its binding power in itself, that is, in the very performativity of promising:

It goes without saying that this analytical conclusion – which excludes the possibility of a priori binding promises vis-à-vis third personsFootnote ⁴⁴ – is incongruous with both the civil law of obligations, which construes the binding power of contract through offer and acceptance, thus bypassing the concept of promise altogether, and with the common law and the doctrine of consideration. While Reinach does not deal with the doctrine of consideration, it follows from his treatment of the a priori binding power of the promise that the consideration doctrine can only be regarded a positive, a posteriori contingency of contract law and not as a part of its a priori essence.

From this understanding of the promise as binding per se and the one-sided emergence of obligation and claim right, Reinach deduces further consequences for the fulfilment, violation and termination of both promise and obligation. He distinguishes two ways of dissolving an obligation: realisation (i.e., fulfilment) and waiver. The natural – ‘destined’ – way of dissolving an obligation is ‘the realization of its content by the promisor.’Footnote ⁴⁵ If the realisation does not occur at the time and in the way it should, the claim is ‘violated’. For Reinach, the violation – even in cases of impossibility – does not terminate the obligation; again, a consequence at odds with the doctrine of impossibility under the German Civil Code.Footnote ⁴⁶ Other than realisation, the only other way to dissolve an obligation is through waiver by the promisee. Reinach takes pains to distinguish the waiver of the claim by the addressee from the revocation of the promise itself through the promisor. Whereas the waiver ‘is grounded immutably in the essence of the claim’,Footnote ⁴⁷ the revocation requires ‘a legal capacity or power (rechtliches Können)’Footnote ⁴⁸ that can only be conferred on the promisor by the promisee. Reinach describes this granting of the legal power to revoke as a separate social act that necessarily cannot be a promise. A promise would only create another obligation for the promisee to waive the claim but does not confer any immediate power on the promisor to revoke the promise. The latter distinction relies heavily on the structure of German private law, wherein the difference between obligation (Verpflichtung) and disposition over a right based on an underlying legal power to dispose (Verfügung, Verfügungsmacht) is so fundamental as to amount to apriority.Footnote ⁴⁹

Finally, Reinach returns to the core question of why promises – or, for that matter, contracts – are binding at all. His ultimate answer to this question consists in refuting three alternative approaches to his own theory by showing that none of them can provide further reasons for the binding power of promises, hence delivering indirect proof of his own assumption that no such reasons can be given. The first approach, exemplified by David Hume’s nominalist and conventionalist theory of moral obligation, holds that the binding power of the promise does not stem from the promise itself but from ‘the willing of the obligation, which arises from the promise’.Footnote ⁵⁰ According to Hume, restated by Reinach, this internal motivation on the part of the promisor to be bound is, in turn, experienced as binding by the promisor because a social convention that promises should be binding exists. Thus, the binding power of the promise can be construed in two ways. Either the social convention that promises should be binding directly implants an ‘ought’ into the perceived intention of the promisor, because promises cannot be thought of other than as conventionally binding, or the conventional explanation of the binding power of promising refers to an external category of social utility, which demands that promises be binding because it is useful that they should be so. In both cases, the reasoning is circular or begging the question. If the promisor regards his promise as binding because convention says so, no advancement is made beyond the starting point why promises should be binding at all. If conventional reasoning regards promises as binding because it is socially useful that they are, the same question arises on a higher level: Why should the ‘ought’ of the binding power of promises follow from a conventional experience of social utility – which may or may not apply to a particular promise without presupposing that, as a promise, it has a good reason to be binding in its own right?

The second theory Reinach opposes is the psychologistic explanation of moral obligation proposed by his early teacher Theodor Lipps.Footnote ⁵¹ In Reinach’s reading, Lipps’ theory appears as the paradigmatic case of an extreme internalist theory which directly traces the binding power of the promise back to the promisor’s intention to be bound. This reading thus even goes beyond the internalist reading of Hume stated above in that it does not even purport to rely on a social convention to explain the binding power of contract. Instead, it directly places the burden of explanation on the inner psychic state arising out of promising that the promisor experiences as an ‘ought’ to hold himself bound by the promise. This path of argumentation, however, actually exacerbates the difficulties of providing independent reasons for the binding power of promise experienced above. To argue that the will to be bound creates a psychic state from which emerges the imperative that the promisor ‘ought’ to be bound by a promise does not at all imply that such an ‘ought’ in fact exists, unless – again – the binding power of the promise is already presupposed.

Finally, Reinach discusses the same problem from the standpoint of consequentialism, exemplified by the ‘uitilitarian theory’ (Erfolgstheorie) of the now mostly forgotten nineteenth-century moral philosopher Wilhelm Schuppe.Footnote ⁵² In Reinach’s reading, Schuppe shifts the emphasis from the inner psychic state of the promisor to the social utility of binding contracts as the basis of legally secured property rights. Thus, for Schuppe, it is neither the mere will nor the intention to be bound which makes the contractual promise binding, but rather the expediency of a legal regime which regards contracts and declarations of will as binding: ‘The so-called binding force of a contract consists in nothing other than the importance of the legal order which insists on irrevocability.’Footnote ⁵³ Yet again, this begs the question as to how the promisee’s reliance on the promise can justify its binding power without already presupposing the binding power of promise itself. Reinach’s critique of Schuppe’s argument rightly points to this lacuna at the heart of Schuppe’s position, which circles around will, declaration of will and the supposed binding power of contract founded on social utility without addressing the very core of the performative promise itself. How can Schuppe, Reinach asks, avoid the difficulties of justifying the unconditional and exclusive bond of contract where there is, in the concrete case, no reliance on its binding power and thus no damage, or, conversely, where there is reliance and damage done, but to third parties alien to the contract? ‘In taking his stand on the fact that precisely the promisee relies on the promise, Schuppe presupposes what he wants to explain: the obligation of the promise.’Footnote ⁵⁴

It is easy to see that all these theories have survived under different guises up to the present day. ‘Promise as reliance’ is as much a staple of today’s debate on the binding power of the promise as is its moral or conventional justification.Footnote ⁵⁵ In these debates, Reinach’s argument that all these approaches face comparable difficulties when asked to provide further reasons for the binding power of the promise beyond the nature of promising itself would still be valid and merits a rediscovery. The upshot of Reinach’s argument is that none of the additional criteria proposed by any of the three theories or their present-day equivalents carries enough weight to prove their point. Rather, all of them end up begging the question or make use of circular reasoning.Footnote ⁵⁶ It is exactly here where Wittgenstein’s spade hits bedrock and is turned back. The promise is binding because it is a promise, or more precisely, because the performative social act of promising can only be thought of as binding. If it were otherwise, talk of promising would be meaningless. Thus, Reinach’s phenomenology of promising as a performative social act provides the best possible irreducible interpretation of the emergence of the obligation from the promise under the condition that promising exists as a performative social practice at all. In fact, understanding promising is all about reduction of unnecessary theoretical effort – even to the extent that Reinach disclaims proposing a theory at all:

One final point remains to be made. As already discussed, ‘promising’ is a performative verb. Etymologically, ‘promising’ is derived from the old French ‘promesse’ and ultimately from the Latin ‘promittere’, meaning to send or to put forth, to let go forward or to say beforehand, which is related, inter alia, to mission, admit, commit or permit.Footnote ⁵⁸ The Latin root of the English verb ‘promise’ already conveys some of the meaning of actively putting forth or sending out something from the promisor in the direction of the promisee. What is not captured in the English etymology, however, is the specific performativity encapsulated in the original German verb: ‘Versprechen’ is derived from ‘sprechen’, that is, to speak, which literally states that the promise is something that the speaker does to the addressee with words.Footnote ⁵⁹ A direct translation of ‘versprechen’ into English is not possible; a close approximation would be something like ‘forspeak’ or ‘forespeak’.Footnote ⁶⁰ Much like the prefix ‘ver-’ itself, the verb ‘versprechen’ is ambivalent and can mean either ‘to promise’ or, in its reflexive form, ‘to misspeak’. Used as a prefix before a verb root, ‘ver-’ dialectically emphasises both its binding, communicating and, at the same time, misleading or confusing aspects. As to the further etymology, ‘sprechen’ is not only directly related to the English ‘to speak’ but also to many ancient Indo-European verbs indicating or imitating sound.Footnote ⁶¹ This etymology characterises ‘versprechen’ as the prototype of a performative verb referring to the activity of speaking to another person with the consequence of bringing future consequences into being by the mere utterance of words.

Indeed, more insight might be gleaned from the study of etymology here, even if one does not believe in linguistic universals.Footnote ⁶² In what follows, I argue that the original German etymology of ‘promising’ (versprechen) as opposed to ‘owning’ (gehören) may teach today’s readers of Reinach – regardless of their language – something important about the roots of the doctrinal divides between promising and owning, obligation and property, as well as relative and absolute rights. As I argue in the subsequent part, ‘versprechen’ and ‘gehören’ have correlative performative functions in Reinach’s private law theory that are expressed in their etymologies. While ‘versprechen’ is the basis of promise, obligation and relative right, ‘gehören’ is the source of owning, property and absolute rights. Moreover, both ‘versprechen’ and ‘gehören’ refer to the spoken language as the core of their respective performative functions in strikingly complementary ways. Whereas ‘versprechen’ is a derivative of the German equivalent of ‘speaking’, ‘gehören’ expresses a similar relation to the equivalent of ‘hearing’ (hören).Footnote ⁶³ Just like ‘speaking’ and ‘hearing’, the conceptual pairs promise and ownership, obligation and property, and relative and absolute right all share the same performative oppositional structure and act as social correlatives in Reinach’s theory: hearing means not speaking; however, there is no hearing without speaking and no speaking without hearing. Reinach must have been aware of this striking etymological correlation. Indeed, no strong reading of Reinach’s phenomenology of performative legal language will be able to avoid noticing its significance as a phenomenologically meaningful a priori of the German legal language – thus leading the comparative theorist to search for homologous or, perhaps even more interestingly, for characteristically different linguistic and etymological relations in other languages which might reveal deeper insights about the basic structures of legal relations.

1.4 Owning and Hearing (Ge-hören)

As just argued, the second performative verb that defines the foundations of private law for Reinach is ‘gehören’, a derivative of the German ‘hören’, which literally means ‘to hear’. Translated as ‘owning’ or ‘belonging’, this verb provides the performative basis of Reinach’s theory of property. Much like ‘ver-sprechen’, ‘ge-hören’ is constructed through an extension of the root verb ‘hören’ with the prefix ‘ge’, indicating direction or consequence. Moreover, and even more importantly, the root ‘hören’ also appears in German words explicitly linked to performative social acts involving subordination, such as ‘hörig’ (subordinate, subservient), ‘Hörigkeit’ (subordination, subservience) or ‘Höriger’ (serf).Footnote ⁶⁴ Again, these phenomenologically significant semantic relations have no equivalent in the English translations of ‘gehören’ as ‘owning’, ‘ownership’ or ‘property’. The closest approximation of what Reinach does with these performative verbs – picturing the subordinate object of property as ‘hearing’ and ‘obeying’ the command of the owner – is probably ‘to belong’.Footnote ⁶⁵ Yet, ‘belonging’ also misses the specific semantic juxtaposition of ‘speaking’ in ‘versprechen’ and ‘hearing’ in ‘gehören’ as referring to two opposite, yet mutually correlative performance functions of spoken language. It should be added that there is a specific socially performative side not only to speaking but also to hearing. Not unlike speaking, hearing necessarily expresses itself through an other-directed social act of attentiveness in the direction of the speaker. There is, thus, good reason to look for a specific linguistic performativity not only in the law of obligations but also in property law, and to imagine it as a narrative of submission to the owner’s power – submission of both the object owned and other persons bound to respect the owner’s rights.Footnote ⁶⁶

Read along those lines, what Reinach has to say about the fundamentals of absolute rights, rights over things, the indivisibility of property, as well as the distinction between legal right and legal power is on par with his theory of promising. First of all, Reinach establishes a sharp distinction between absolute rights and rights over things. Though this distinction may come as somewhat of a surprise to modern property theorists, it not only mirrors classical Roman law but also highlights a fundamental semantic distinction when thinking about the structure of rights. A right over a thing (dingliches Recht) is a right that establishes an immediate legal relationship between a person and a thing. By contrast, in the usual definition, the absoluteness of a right expresses neither its direct reference to an object nor the scope of its protection, but rather the universality of the claim rights attached to it.Footnote ⁶⁷ In contrast to relative rights, absolute rights are usually described as giving rise to rights of action vis-à-vis any third party.Footnote ⁶⁸ In modern property thinking, the absoluteness and the in rem character of a right are often confused because both categories coincide – property rights are, incidentally, both the most important category of rights over things as well as universally protected absolute rights.Footnote ⁶⁹ Reinach, however, not only teaches us to keep both categories strictly separate even where they coincide but also rejects outright the usual definition of absolute rights and offers a much more radical view of absoluteness:

This is a masterful piece of conceptual clarification by way of an almost Kantian transcendental proof of necessary conditions of the existence of absolute rights. If one assumes that there are absolute rights, they cannot exhaust themselves in mere relative rights. Thus, they cannot be identical with the sum of their own protection through relative rights, nor is there any other way of reducing them to a relationship between persons. Since all relative rights are, by definition, relationships between persons, it follows that absolute rights are only possible if they are conceptualised as the absence of any relationship with another person. Reinach thus has to transcend the conventional understanding of ‘right’ in order to salvage the social apriority of absolute rights. Put differently, he rejects any deduction of subcategories of rights from the mere conceptual umbrella of ‘right’ and thereby avoids a common formalist fallacy.Footnote ⁷¹ For Reinach, absolute rights have nothing in common with relative rights; their corona of claim rights directed against any potential violator is just a secondary layer of technical relativity detached from the essential anti-relativity of the absolute right:

Let us take this one step further. If a right is relative as opposed to absolute, someone has to speak, namely, by making a promise. But absolute rights are not about speaking; they are about hearing. Under the reading proposed here, the question why an absolute right cannot denote a relation to a person has a phenomenologically valid answer. Such a person would have to hear absolutely and not speak. But persons are not in the world only to hear. Only things, the mute servants of civilisation, allow for a phenomenology of social acts wherein they figure as mere passive objects. In the same vein, Reinach conceptualises rights over things (Sachenrechte) as ‘[e]verything one can “deal” with, everything “usable” in the broadest sense of the word […]: apples, houses, oxygen, but also a unit of electricity or warmth’.Footnote ⁷³ According to Reinach, they immediately relate to things in that they ‘present themselves as a dealing (Verfahren) with things’.Footnote ⁷⁴ The immediate relation to the object embodied in the right equals the social practice of absolute domination. Seen this way, rights over things also qualify as ‘rights that refer to one’s own action’Footnote ⁷⁵ – namely, to the absolute power the owner wields over the object, which, in turn, is literally bound to ‘hear’ and obey his commands and dealings. In fact, Reinach explicitly says so with respect to property as the most important and most powerful subclass of rights over things: ‘It lies in the essence of the owning that the owner has the right to deal in any way he likes with the thing which belongs to him.’Footnote ⁷⁶

Note that this does not imply that the positive law cannot regulate the property relationship in manifold ways which indeed curtail the freedom of the owner to deal with his property at will. Again, it would be a mistake to confuse absoluteness with limitlessness. What Reinach is proposing is only that an a priori – that is, argumentatively irreducible, basal – understanding of property requires reading it as the social act of owning, understood as the immediate absolute relation of power between the owner and the object owned. Specifically, this means that property is (1) not a right, but a relation between the owner and the object; (2) an act, which consists in the perpetual realisation of absolute domination of the owner over the object; (3) a social act, defined by its other-directness toward other persons beside the owner; (4) a performative act in the specific linguistic sense that the owner’s absolute domination requires the object’s absolute submission and thus implies an etymological performativity associated with ‘hearing’ or a similar performative verb. It should be noted that because of (4), the other-directedness of the property relation (3) does not require the actual presence of other persons beside the owner as long as property exists as a social relation at all, that is, as a relation inseparable from the apriority of human society and its performative practices. Thus, even Robinson Crusoe, alone on his island, can be an owner as long as his being on the island alone is conceptualised against the background of the civilisation he has left behind. In other words, property is a basal legal relationship as soon as there is a civilisation able to express an intersubjective mine and thine, even where there is no law to govern it:

From all of this, it follows that the ‘bundle theory’ cannot provide a basal explanation of property because it mistakes the auxiliary claim rights stemming from the basal social relation between the owner and the object – that is, the absolute right – for this basal relation itself.Footnote ⁷⁸ In Reinach’s reading, understanding the social function of property means looking beyond the legal construction of the owner’s protection to the performative phenomenology embodied in the property relation as such.Footnote ⁷⁹ As a corollary, this property relation is indivisible – a point which Reinach argues at great length using the example of restricted rights to things.Footnote ⁸⁰ Under the German Civil Code, restricted rights to things such as liens can arguably be construed as partitions of the comprehensive property right with the consequence that the lienholder acquires a limited absolute right, while the diminished remainder of the property right stays with the owner.Footnote ⁸¹ Reinach makes it clear that this reading is fallacious and that such partitions have no effect on the integrity of the residual property relation:

One further step remains to be taken. If, as Reinach suggests, it is more apt to describe property and other absolute rights not as rights but as performative social powers of the rightsholder over himself and the objects within his dominion, what is the relationship between rights, powers and possible further subclasses of jural relations?Footnote ⁸³ Besides relative rights and absolute powers, Reinach describes yet another class of legal powers denoting the potential of the power holder to effect immediate consequences in the legal sphere. Such legal powers or abilities – the terminology is not entirely unequivocal – are distinct from both classes of rights in that their holder can bring about immediate legal effects by transferring, eliminating or modifying both absolute and relative rights:

In other words, Reinach seems to ascribe a priori power to the German model of transferring rights through the construction of a separate, abstract act of disposition detached from the underlying relation of obligation (non-causa principle; Trennungsprinzip; Abstraktionsprinzip).Footnote ⁸⁵ Under German law, a property transaction demands not one but two legal relationships. The obligatory contract – say, a sales contract – does not in itself transfer the property right in the object sold. For the transfer of property, the owner has to convey the property right to the buyer in a separate, abstract transaction detached from the sales contract.Footnote ⁸⁶ This is usually done implicitly by handing over the object sold while concluding the obligatory contract. Yet, although both agreements often coincide in practice, they are legally independent from one another. The only content of the property transaction is the abstract transferal of the property right, which is made explicit through the transfer of possession of the object sold. But why is it useful to distinguish between the obligatory contract, from which the claim to the object arises, and the property transaction itself? Reinach’s response states that this separation emphasises the necessary logical step between the promise to transfer property and its actual effectuation. The in-between step is the ability of the owner to transfer the right he has promised: ‘The presence of a specific power (Können) to transfer, or a right to transfer which implies this ability, is required.’Footnote ⁸⁷ Conversely (and leaving aside the positive rules of good faith purchaseFootnote ⁸⁸), the transferor can only transfer a right he actually has. Thus, it should come as no surprise that the brocard ‘nemo dat’ constitutes yet another facet of Reinach’s a priori: ‘The principle, nemo plus iuris transferre potest quam ipse habet, expresses of course an apriori truth.’Footnote ⁸⁹

Again, note that this a priori recognition of the abstraction principle of German property law does not commit Reinach to the uniform construction of both obligatory contracts and abstract transactions under the German Civil Code via matching declarations of intention. On the contrary, as already discussed above, Reinach argues that this constructive principle is conceptually mistaken because it obscures the performativity of the incompatible social acts of promising and owning, including the independent performative forms of transferring, granting, revoking and waiving:

Finally, there is yet another consequence that follows from Reinach’s embrace of the abstraction principle between promise and power. Reinach insists that the same analytical divide involving the obligatory contract and the abstract disposition over a right also applies with regard to the construction of agency. Again, the German Civil Code provides the blueprint for this two-layered construction by distinguishing between the ‘internal’ and ‘external’ relationships created by agency: the mandate contract between the principal and the agent, on the one hand, and the actual exercise of the agent’s power, on the other.Footnote ⁹¹ In line with this differentiation, Reinach argues that the distinction between mandate and representative power must be yet another element belonging to the a priori of private law. Again, while both relations may coincide, they are nevertheless independent from one another, resulting in, for example, the possibility of an ultra vires use of the agent’s power. The resulting parallel between property and agency is yet another highlight in the garland of Reinach’s structural ‘must-haves’ of private law:

1.5 Enacting and Giving Voice (Be-stimmen)

In all this, one question has yet to be answered. If Reinach is right about the apriority of principles like the irrelevance of the acceptance for the binding power of a promise, the categorical difference between absolute and relative rights, the indivisibility of property or the precedence of nemo dat over the rules of bona fide acquisition, how does he address the challenge of the existing positive law? In Reinach’s own words, ‘how can one put forward apriori laws which claim absolute validity, when any positive law can stand in the most flagrant contradiction to them?’Footnote ⁹³ And, to push this even further, how can Reinach’s legal a priori become relevant at all in a world of widely dominant positive law which, for apparently good reasons, has long ago accepted legal positivism as the leading legal theory?

In answering his own question, Reinach is in no way reluctant to sacrifice his edifice of a priori building blocks of private law to the supervening normative power of the legislator. He emphasises that the legislator may not only be free but indeed often obliged to depart from the a priori foundations of law if social expediency demands their reversal. In such cases, it is not only moral value but virtually ‘everything that can take on the character of value’ that provides a good reason to overrule the legal a priori through legislative enactment:

The question of how Reinach can accommodate both the idea of a legal a priori and the facility of the deviating fiat of the positive law in his theory thus has a clear answer. It points once more to Reinach’s phenomenology of performative legal language. If the legislator is free to reverse at will the performative acts that constitute the a priori of legal meaning, this can only be accomplished through yet another performative social act, namely, through an enactment, which is derived from Reinach’s third basic performative verb ‘enacting’. And again, the original German etymology of Reinach’s term ‘bestimmen’Footnote ⁹⁵ adds even more phenomenological persuasion to the idea that Reinach is building his entire edifice of the legal a priori on performative verbs that explicitly refer to the human voice, speaking and hearing as basic features of social communication and thus the basis of sound (!) legal acts. For ‘bestimmen’ is etymologically related not only to ‘Stimme’ (voice) but also to a host of normative concepts indicating consistency, harmony or justification, such as ‘stimmen’ (to tune, to be correct), ‘Stimmung’ (mood, tune) or ‘Stimmigkeit’ (consistency).Footnote ⁹⁶ Moreover, ‘be-stimmen’ offers yet another example of a performative verb composed of affixing a prefix to a root verb – a combination resulting in a striking ambivalence between designating or calling out the voiced object, on the one hand, and lending or giving voice to the named object, on the other. This amounts to a theory of positive law in which the legislator both designates the desired legislative goal in the positive enactment and gives voice to it as a binding legal commandment.

Yet, despite the seemingly perfect tripartite correlation between ‘promising’, ‘owning’ and ‘enacting’, Reinach’s treatment of ‘enacting’ also shows the limits of the explanatory power of his phenomenology of legal language. Reinach does not simply identify ‘enacting’ with ‘commanding’, nor does he perceive both concepts as on a par with each other regarding their performative power. While Reinach is quick to categorise ‘enacting’ as a social act, he takes pains to distinguish ‘enacting’ from ‘commanding’ by emphasising the de-personalised character of ‘enacting’, which, in his view, rather surprisingly does not qualify as an other-directed social act in the strict sense:

In other words, we are faced with a dilemma within Reinach’s theory. If all legal meaning is based on performative social acts, then the fabric of positive law cannot be an exception. Its substance must also be based on performative legal language, namely, on an enactment. And yet, this precisely means giving up on Reinach’s claim that there is a legal a priori beyond the positive law. If the phenomenology of positive law shows the same performative substance as the legal a priori, then there is, ultimately, no way to distinguish the legal a priori from the positive law designed to replace it. Yet, Reinach shies away from this consequence by introducing even more complexity on the level of the positive law. One enactment, he argues, is not enough to constitute legal meaning. Indeed, thinking ‘in terms of an arbitrator’Footnote ⁹⁸ will lead the legal theorist to the result that no enactment can become the basis of normative commands without further normative conditions, which – while Reinach does not elaborate them in any detail – amount to a theory of the social foundation of the state as built on an edifice of performative acts beyond promising:

But doesn’t this prove that legal positivism, which puts all the theoretical emphasis on the state and state-enacted positive law, was on the right track all along? Put differently, what remains of Reinach’s a priori in a world wherein, even according to his own theory, the a priori laws of promising and owning are widely overruled by an edifice of legislative enactments? Doesn’t this imply the superior explanatory power of, for instance, Hans Kelsen’s Pure Theory of Law, which holds that only positive law is law and defines the legitimate scope of legal scholarship?Footnote ¹⁰⁰ Yet, reading Reinach shows why this is not a sound conclusion. The primary merit of his theory is, again, not to add but to take away additional metaphysical effort from legal theory where none is needed, even if it comes at the cost of renouncing the possibility of a general theory of law. Reinach relieves contract theory from the interminable search for further justifications for the binding nature of contract. Likewise, he relieves property theory from the riddle of the dissolution of modern property into a mere bundle of relative rights. And, finally, he offers a theory of positive law that allows combining legal positivism with the fruitfulness of phenomenological inquiries into the performative nature of different legal languages and legal cultures.

1.6 Conclusion: Against Ontologism

This chapter aimed to reconstruct Reinach’s theory of performative legal language against the dual background of modern language philosophy and German private law. I argued that Reinach uses a triad of performative verbs – ‘promising’, ‘owning’ and ‘enacting’ – to explain the core institutions of private law, that is, contract and property, including the doctrinalisation of these institutions through positive law. I conclude that what Reinach has to offer today’s legal theorists shows all the hallmarks of good philosophy. He poses questions until no further justification can be given, and he refrains from metaphysical speculation beyond that point. The strength of Reinach’s theory results from its non-commitment to any of the following three systems of tenets (which does not exclude that it is theoretically compatible with all of them): (1) legal positivist claims about what the law is, (2) moral and natural law claims as to what the law ought to be, as well as (3) legal realist claims as to what the social reality of the law is or ought to be. In other words, Reinach avoids the Ought without essentialising the Is. This is what makes his theory modern, or, indeed, timeless.

Is such a slim theoretical setup persuasive as a legal epistemology? Reinach’s answer would be to refuse, once again, offering philosophical answers where none can be given. Perhaps the most important lesson to be gleaned from Reinach is that a theorist’s metaphysics, even where it cannot be avoided, should not play an indispensable role in his theoretical framework when it cannot be questioned further. In other words, even if a metaphysical grounding of ontology and epistemology is ultimately unavoidable – which Reinach would probably concede – one should be ready to bracket it whenever necessary, lest one commit the fallacy of ontologism:

Reinach’s phenomenology of performative legal language not only highlights the manifold ontological, linguistic and social facets of the foundations of private law, but it also provides, on many levels, a powerful antidote to all kinds of legal formalism and doctrinalism. Reinach’s ontology is an ontology to end all ontologisms.

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.

3.1 The Quest for a Legal A Priori

Among Reinach’s most central claims is the thesis that there is a legal a priori that constitutes the foundation of private law. It supposedly does not rest on experience but on the essence of legal phenomena. Therefore, a priori legal propositions are in his view independent of any particular legal system.

The chapter subjects this claim to a critical appraisal. Reinach challenges both positivist theories, which ground law solely in social acts without acknowledging a priori legal propositions, as well as those natural law theories according to which moral principles are part of the law. For Reinach excluded not only empirical propositions but also morality from the a priori foundations of law.Footnote ¹ This shows that the frequently maintained opposition between positivism and natural law theories is incomplete. Reinach’s theory, at least, challenges both.

Reinach uses a noteworthy example to show the a priori: the extinction of an obligation with fulfilment.Footnote ² He acknowledges that positive law can differ from such a priori propositions.Footnote ³ Thus, it would be consistent with his theory if, for instance, in times of need, the legislature mandated that certain obligations, like wage payments, should not disappear upon fulfilment but rather might have to be partially fulfilled again at a later point in time. According to his theory, such a case would not disprove the thesis of an a priori extinction upon fulfilment, as it pertains to positive law rather than a priori propositions.

This example of fulfilment is intriguing because, on the one hand, it seems indeed to be natural that obligations are extinguished through fulfilment: but, on the other, this extinction is not inherent in the concept of fulfilment itself. The latter only entails that what has been promised has been done. This raises the question of precisely why one can assume the extinction through fulfilment. How do we know this? Reinach’s answer in such cases seems to be that we can discern an a priori essence of this phenomenon.Footnote ⁴

But even if one grants that an extinction with fulfilment is self-evident,Footnote ⁵ it does not follow from this that it is a priori. This would presuppose that all obvious or self-evident propositions are a priori. For this purpose, one must demonstrate that no proposition derived from experience shares this characteristic. This seems to be an impossible task if one considers propositions such as ʻLegal norms are usually not completely implementedʼ. They seem quite plausible but still rest in part on empirical observations and are therefore not a priori. Hence, there seems to be no easy way to conclude from the fact that something is obvious to the fact that it is a priori.

Furthermore, it is not clear that propositions that rest on the essence of legal phenomena are indeed fundamental for law, as suggested by Reinach. It is at least theoretically possible to assume without contradiction that the law lacks a priori foundations but still contains a priori legal propositions which may concern only non-fundamental questions.

Reinach’s theory thus poses numerous challenges and raises a plethora of problems. Its core claim about the existence of a priori legal propositions is far from self-evident, considering the historical evolution of law and the diversity of legal systems. This chapter seeks to explore this claim. It looks at the main candidates for a priori legal propositions and discusses whether there are convincing reasons to assume their a priori character. If it turns out, as will be argued, that this is not the case, this does not completely disprove the existence of a legal a priori. There still may exist a priori legal propositions that have another basis. However, their scope is severely limited if the primary examples for such propositions turn out to rest in part on experience.

At the outset, some terminological clarifications seem appropriate. Legal propositions are in the following understood as true statements that could be made about law without implying their fundamental character. They regularly are – but need not be part of the positive law. A proposition about a certain object is a priori if one can justify its correctness without appeal to experience.Footnote ⁶ Its apriority can but does not need to be due to certain properties of this object but might also have to do with properties of the recognizing subject.

The definition of an a priori via justifiability remains neutral towards the question whether and how one forms a belief about a proposition.Footnote ⁷ It is thus independent of whether anybody came to know it and, if so, how they managed to do so. In this regard, one may or may not share Reinach’s position that one does not gain a priori insights through experience.Footnote ⁸ It is sufficient for the apriority that one can justify it without appealing to empirical evidence, even though this very evidence might be in fact necessary to become convinced of it. For instance, children might initially come to understand the correctness of a calculation only by counting with their fingers and remembering the result. However, this experience is not necessary to justify the correctness of a calculation. Similarly, one might only be able to grasp a proposition about a legal a priori if one is familiar with at least one positive legal system. Nevertheless, this does not prove that such a proposition is a posteriori, that is, that its justification rests on empirical observations. It might be the case that it is just human incapacity to discern the correctness of this proposition without knowing a particular legal system. Whether there is a legal a priori is thus an epistemic matter of justifying a proposition, not a cognitive one about belief formation.

To define an a priori proposition by its justifiabilityFootnote ⁹ without empirical evidence does not mean that a priori propositions are unrelated to those that rest on experience. Instead, it allows propositions derived from experience to support or refute a priori propositions, provided that the latter have independent justification to qualify as a priori. For instance, an a priori claim that no legal system can possibly contain a certain norm, say about timeless rights, could be refuted by providing an example of a legal system in which such rights exist. Nevertheless, the lack of such examples does not prove the claim’s correctness. For this, one needs a priori reasons.

Finally, apriority is to be distinguished from revisability.Footnote ¹⁰ While a sentence might be revisable due to the possibility of it being proven wrong through further investigation, it can still be considered a priori. For instance, mathematical hypotheses are open to revision because one could have made an error in calculation, yet they do not rely on empirical evidence and are hence not a posteriori. Similarly, even if one were to convincingly reject all Reinach’s a priori legal claims, it would not necessarily negate the possibility that there are a priori legal propositions. Reinach could have made a mistake in his examples, without being wrong about the underlying thesis concerning the existence of a legal a priori.

Unfortunately, Reinach hardly substantiates his concept of apriority. Although the a priori is the central concept of his thesis, he assumes that he does not need to deal with ‘the problem-laden theory of the apriori’Footnote ¹¹– thereby acknowledging its precarious character. Instead, he describes the a priori in various ways. In this respect, his remark is central that ʻevery state of affairs which is in the sense explained general and necessary is in our terminology aprioriʼ.Footnote ¹² But this leaves open whether necessity is the defining property of apriority or just its consequence. In the former case, a proposition is a priori in virtue of containing a necessary claim. Contrary to that, in the latter case the apriority is defined differently, for example by being justifiable without experience, and can nevertheless hold with necessity because only a posteriori insights might be contingently true.

Reinach’s cited description of the a priori has led some commentators to conclude that his concept of apriority relates not to cognition but to states of affairs and thus to ontology.Footnote ¹³ Reinach himself previously stressed that the necessity of the a priori pertains to the necessity of being and not of thinking.Footnote ¹⁴ However, the alternative of thinking or being is misleading. If the a priori relates to the justifiability of propositions, it neither concerns the act of thinking, as justifiability does not presuppose a conscious act, nor does it merely address how states of affairs are independent of us, as these acts alone do not determine what could count as a justification for us. Instead, the presence or absence of a priori justifiability of a proposition relates to what we should reasonably think under certain circumstances. This might very well be based in part on the properties of the state of affairs to which it refers. In this regard, one is indeed dealing with a ʻmaterial a prioriʼ. But in addition, one also deals with epistemic justifications for beings like us. Hence, the a priori concerns the justifiability of propositions about states of affairs and not just states of affairs themselves simpliciter. Thus, the a priori pertains both to being and thinking, which shows that the alternative is misleading.

The definition of the a priori as what one can justify without appeal to experience contradicts, at first glance, Reinach’s claim that ʻwhat is primarily a priori is neither sentences nor the judgment nor the act of knowledge, but rather the “posited”, judged, or known state of affairsʼ.Footnote ¹⁵ However, the use of the term ʻprimarilyʼ suggests that apriority does not only pertain to states of affairs, but also (‘secondarily’) to judgements and perceptions. The latter aspect aligns with the Kantian usage of the term ʻa prioriʼ, which formed the backdrop of much philosophical debate in the early twentieth century and, probably, also for Reinach.Footnote ¹⁶ According to this perspective, the a priori is not derived from experience but rather holds absolutely,Footnote ¹⁷ which is an epistemic and not an ontological claim. In this vein, Reinach maintains that a priori insights are, without any exception, capable of being based on irrefutable evidence and not gained through experience.Footnote ¹⁸ This shows once more that the necessity of an a priori proposition might not be its defining feature but its consequence.

Reinach’s theory can thus neither be confined to ontology nor to epistemology.Footnote ¹⁹ Accordingly, he emphasizes that a priori propositions do not stem from positive law,Footnote ²⁰ are self-evident,Footnote ²¹ or follow from an intuition of essences.Footnote ²² This mixes ontological claims (e.g., about lacking positivity), epistemic claims (e.g., about what is self-evident) and cognitive claims (e.g., about the role of intuitions).

When one attempts to defend Reinach’s thesis, several candidates of legal propositions come into sight that possibly are a priori. These are, following Reinach, necessary propositions (3.2) and essential propositions (3.3). Moreover, and independent of his views, non-positive legal propositions could in general be a priori, as they do not rest on propositions from positive law that can only be known a posteriori (3.4). If none of these candidates turn out to be a priori, the question becomes whether self-evident propositions, which were crucial for Reinach, still hold significance. Therefore, the chapter will conclude with the question of whether one can explain the phenomenon of self-evident legal propositions differently. I will argue that non-positive legal reasons provide for such an answer (3.5).

In this discussion, the chapter pursues a systematic approach to examine the plausibility of a legal a priori. It is thus not primarily concerned with an exegesis of Reinach’s text or with anchoring it in the phenomenological tradition, although such considerations might explain the boldness of his claims. Instead, the focus is on the persuasiveness of actual and possible arguments supporting his thesis of apriority. Thus, insights from current debates can play a role, without anachronistically accusing Reinach of ignoring them. For it might very well be the case that Reinach’s thesis of apriority is correct while his arguments for it are wanting. In order to assess his thesis, it is thus not sufficient to examine his own arguments. In addition, it is necessary to examine arguments Reinach himself did not use but which could, possibly, make his thesis of a legal a priori more plausible. By engaging in this way with later insights, Reinach’s work is treated with greater respect than if one were to confine oneself to its interpretation. Only in this way does his claim to have made timeless observations have a chance to become plausible.

3.2 Necessary Propositions

The primary source of a priori legal propositions in Reinach’s theory are necessary statements.Footnote ²³ According to him, the a priori is characterized by a necessity of being (and not of thinking).Footnote ²⁴ As already mentioned, he thus associates apriority and necessity by calling every state of affairs that ʻis general and necessaryʼFootnote ²⁵ a priori, although his comments also encompass epistemic notions.Footnote ²⁶ Regardless of Reinach’s stance, it appears, at least initially, to be a defining characteristic of a priori propositions that they remain unaffected by contingent circumstances and can thus not be contingently true. If true, they must be true by necessity. In contrast, a posteriori propositions hinge on such circumstances and therefore lack necessity.

For example, it is a question of positive law whether an obligation due for fulfilment becomes time-barred after three years. This depends on empirically contingent decisions of the legislator, which are not a priori given. In contrast, the proposition that an obligation generally is extinguished with fulfilment seems to be necessary. At least, no circumstances are discernible on whose correctness it depends.

However, from the fact that the content of positive law is both non-necessary and a posteriori one cannot draw the converse conclusion that legally necessary propositions are a priori. As Saul KripkeFootnote ²⁷ in particular has demonstrated, there can be necessary propositions whose correctness is not established a priori, but only follow from experience. He gives the example, already discussed in antiquity, that the morning star is the evening star, even if this can only be established by astronomical investigation and thus a posteriori.Footnote ²⁸ For the name morning star is a rigid denominator whose reference does not change once an object carries it and applies thus with necessity.

One can transfer this argument to law. For here, too, proper names serve as rigid denominators. Then only experience can show that they refer to the same object. For example, the fact that the German Basic Law and the current German constitution are identical does not follow from these concepts alone. According to its disputed original intention, the Basic Law could also be a mere provisional law – which is arguably no constitution.Footnote ²⁹ In order to establish the identity of the Basic Law with the German constitution, one must therefore examine whether both terms refer to the same law. This is now the case, since, according to Article 146, the Basic Law is no longer merely provisional. For this reason, the Basic Law is also referred to as the German Constitution. One is therefore dealing with different names for the same law. It is true that these names could have been different. But once they were chosen, they necessarily refer to the same object.

This example shows that, contrary to Reinach’s assumption, one cannot in general identify the necessity of a proposition with its apriority. Rather, there can be necessary legal propositions that are not a priori. The fact that one has to distinguish between apriority and necessity is not surprising; both deal with different issues. Whether something can only be known through experience is not the same question as whether something is necessarily the case.

This is of particular importance when one deals not with logical but with normative necessity.Footnote ³⁰ For example, a prohibition might rest on overwhelming legal or moral reasons that require it and that depend nevertheless in part on empirical considerations. In this case the prohibition is not a priori but still holds with (normative) necessity. Once all factual premises are known, it is even difficult to imagine that a normative conclusion does not follow with necessity, although it might be controversial, for there is no contingent fact that could make it only contingently true. This shows again that one can deal with propositions that are necessary and nevertheless uncertain. If their uncertainty can only be overcome with the help of empirical evidence, they cannot be a priori.

For instance, one might consider the proposition of deontological logic according to which a norm cannot simultaneously provide for a valid prohibition and a valid commandment of the same act A to be a priori plausible. In contrast, the necessity of normative evaluations might go back in part to empirical observations. Contradictory behaviour may be considered against good faith, if there is insufficient time within which others can adjust to the change. Whether something constitutes contradictory behaviour can therefore only be established with the help of evaluations of the period in which the change occurs. Nevertheless, the reasons for such an evaluation might be so strong that it is – despite its lack of apriority – normatively necessary.

Consider as an illustration the following case: It may be impermissible in a legal system on grounds of contradictoriness to initially release a photo for the press, but then to object to its use shortly before publication, while such an objection may be permissible after several years. So, it is not only contradictory to simultaneously allow and prohibit a certain action, but also to undertake both acts consecutively within a short time. The point at which behaviour becomes contradictory, and thus impermissible, may depend on empirical circumstances, such as whether an article or a print is usually prepared in a certain time. Thus, even the question of which acts are prohibited as contradictory, which seems like a good candidate for a priori legal propositions, does not, despite its normative necessity, rest entirely on a priori reasons. Therefore, the mere fact that overriding reasons necessitate a certain legal solution does not demonstrate that this solution is a priori. This may, but need not, be the case.

Note that this argument does not hinge on the distinction between an analytic and a synthetic a priori.Footnote ³¹ If this distinction breaks down, as QuineFootnote ³² has argued, nothing would change within it. Whether one can gain a priori insight by analysing a certain concept or whether one can synthesize different concepts into an a priori is independent of the distinction between (metaphysical) necessity and (epistemic) apriority.

Reinach’s identification of a priori and necessary propositions therefore seems to be rash. If one wants to prove a priori legal propositions, it requires more than just a reference to their necessity. However, it does not follow from this that there are no a priori legal propositions. They just do not follow from necessity alone.

3.3 Essential Propositions

For Reinach the existence of a priori legal propositions goes hand in hand with the assumption that there is an essence of legal concepts.Footnote ³³ In this perspective, it does not depend on the particular legal system what an a priori obligation or an a priori contract is. Rather, the concept is supposedly fixed from the outset, although the legal system can deviate from it.Footnote ³⁴ Concepts hence supposedly rest on essences, which are free from accidental circumstances that one can know only a posteriori. What lies in the essence of a thing shall be a priori. Conversely, what is a priori shall lie in the essence of a thing.

Against such a perspective, the accusation often associated with so-called conceptual jurisprudence of drawing legal conclusions from the concept or essence of a thing does not apply. For ReinachFootnote ³⁵ repeatedly and explicitly refuses to draw consequences for positive law from the essence of legal concepts and negatively refers to the temptation to do so as ʻontologismʼ. Consequently, he leaves unrestricted room for positive law to establish divergent concepts and norms according to expediency. When it comes to the capacity of the legislator, ReinachFootnote ³⁶ is a positivist, even though he wants to develop a profoundly non-positivist ontology of law.

In this way, Reinach tries to immunize the essence of legal concepts from the accusation that positive law foresees something else. In his theory, no a priori concept can fail for the reason that actual legal systems contain other forms of it. However, the question then becomes whether by shielding the fundamental concepts of private law from any positive law, Reinach has not thrown the baby out with the bathwater. What exactly is the essence of a legal concept if it is independent of any positive law so that no example of positive law can refute it? Such counter-examples are usually a good means to test the essence of entities, as they encompass those characteristics the absence of which would mean dealing with a different kind of entity.Footnote ³⁷ If, for example, one considers that one can sit on a chair to be one of its essential properties, then any chair on which one cannot sit would serve as a counter-example. Accordingly, if a property is essential for a legal concept, there should not be a single case to which this concept applies but in which the property is missing. Therefore, it would be natural to look at positive law for such examples in order to test whether a certain legal property is indeed essential for a certain concept.

Reinach excludes such a refutation in principle. He grants the legislator the freedom not only to use a different legal name for a certain phenomenon, but also the freedom to determine the same legal concept differently.Footnote ³⁸ Consequently, one cannot, according to his theory, find any counter-example in positive law against a priori concepts. It is therefore unclear on which basis one can establish or refute a priori concepts. For example, it is compatible with his theory that the legislature provides for non-consensual contracts. But how can one be certain that one is then still dealing with contracts and not with another kind of legal entity which the legislature merely calls ʻcontractsʼ? By opening up unlimited possibilities for positive law to deviate from a priori law, Reinach makes it doubtful how legal concepts could have any essence, as this by definition excludes deviations from it.

Likewise, the central question of how to determine the essence of a legal concept or entity remains open. Reinach defends himself against the accusation that a priori essence is something ʻdark and mysticalʼ, but then adopts the phenomenological terminology to ʻapproach the things themselves unburdened with preconceptionsʼ.Footnote ³⁹ How is that supposed to be possible for law? How can one approach an a priori right? After all, legal concepts are not like a house or a chair that one could physically approach.

Moreover, it is already unclear what evidence should support such an ʻunclouded viewʼ. Unlike material objects such as houses and chairs, of which one has an immediate sensory perception, law deals with ontologically ideal entities, which are frequently referred to as abstract objects.Footnote ⁴⁰ There cannot be a sensual perception of them. Hence, there is not even a sensual experience which one could take as a starting point in order to approach the essence of a legal phenomenon. For material objects such as chairs, one might try to determine what is essential by looking at many different specimens. In this way, one might determine, for example, that the colour of a chair does not belong to its essence, while there must necessarily be a surface intended for sitting on. However, precisely this starting point, which one can grasp by the senses, is missing in the case of non-empirical entities such as law.

One might examine different legal systems in a corresponding manner in order to establish an essence of legal concepts or institutions, as has occasionally been attempted in comparative law projects that search for a ‘common core’.Footnote ⁴¹ In this way, one could, for example, examine the concept of contract in ten legal systems in order to establish its essence. Yet this approach is opposite to Reinach’s,Footnote ⁴² because thereby one would only establish empirical commonalities in particular legal systems. There is no guarantee that these legal systems do not jointly deviate from the essence of an a priori concept. How, then, is one to arrive at a conclusion about such concepts if neither sensual perception nor familiarity with particular legal systems can help? How does thinking alone allow one to establish a legal concept?

One could attempt an analogy to mathematical propositions, since there is no sensory perception of them either, and one can also not derive them from particular calculations or other singular acts. As a priori propositions, the validity of which becomes clear merely by thinking, they could, possibly, serve as a model for a priori propositions in law. However, there is the difficulty that mathematical proofs result from axioms,Footnote ⁴³ which are set and not a priori recognized. The proofs are thus subject to certain assumptions and in this respect only apply hypothetically.Footnote ⁴⁴

Contrary to this, a priori legal propositions should apply unconditionally and not only contain hypothetical statements about what results when certain legal norms are valid. For instance, according to Reinach, the proposition that an obligation is extinguished by fulfilment should hold unconditionally and not depend upon the validity of certain positive norms. Mathematical propositions thus differ from legal propositions and hardly make a legal a priori plausible.

Reinach often refers to the fact that certain legal propositions are immediately obvious and self-evident, whereby he seems to rely on human intuition.Footnote ⁴⁵ In doing so, he picks up on a real phenomenon, namely that certain legal concepts and their interrelationships are plausible regardless of a particular legal system. The fact that an obligation is extinguished by fulfilment is intuitively obvious without one having to examine a particular legal system. The problem with this claim is not simply that one uses intuitions for the analysis of propositions.Footnote ⁴⁶ Rather, the problem is the claim of ʻthe intuitive grasping of them in an immediate insightʼFootnote ⁴⁷ and that there is ʻabsolute evidenceʼFootnote ⁴⁸ for them.Footnote ⁴⁹ For this suggests, against common experience, that one could not make mistakes about one’s legal intuitions concerning a priori propositions of law. What seems obvious at first glance might turn out to be wrong, so that it is questionable how absolute the evidence is on which Reinach relies.

Moreover, his underlying assumption that what is immediately insightful must be a priori is problematic. The source of human intuition is not necessarily accessible to the thinker himself, so that one can hardly know with certainty whether an immediate insight is a priori or a posteriori. Having an intuition does not mean knowing where it comes from. At best, further investigation can reveal this. One might simply deal with common sense, in which all kinds of insights, from experience and other sources, play a role. For example, if one considers it immediately plausible that an obligation will be extinguished through fulfilment, one’s own experiences with fulfilled obligations could play a role for this insight. It is in general by no means certain that an intuition is based only on a priori insights and not also – or even exclusivelyFootnote ⁵⁰ – on empirical experience. In view of the fact that one deals with legal norms in many ways in everyday life and that this, possibly, has an impact on one’s intuition about law, it cannot be ruled out that these experiences impact one’s intuitions about it.

Reinach’s claim that one can grasp the essence of legal concepts through intuition is therefore in tension with his claim that these concepts are a priori. The more one relies on intuition, the less one can be sure of gaining a priori insights, because one can then all the less exclude that one’s experiences play a role for one’s judgements. If, on the other hand, one only accepts propositions and concepts that are a priori, one must be prepared to exclude many of one’s intuitions because of their a posteriori nature. The danger in this case is that one must limit oneself to a few a priori statements of deontological logic, such as that a legal norm may not demand A and at the same time non-A. Then the more interesting legal questions, such as the consequences of the fulfilment of an obligation, remain out of sight.

The observation that language often, if not exclusively, shapes concepts supports this conclusion that intuitions are not a promising method for identifying a priori legal concepts. The fact that a contract presupposes the participation of at least two persons may simply be due to the fact that certain languages foresee such a concept. It is a long way from this fact to establishing that there is a concept of a contract independent of all languages that has certain essential properties. This requires bold conceptual claims about what is valid beyond any language.

If one refrains from making a judgement about such language-independent concepts, one can only determine what is essential according to the concept established in a particular language. As mentioned, essential properties of an entity are characterized by the fact that they cannot be absent without the entity falling under another concept. If one determines by intuition what is essential to a concept, one is possibly only stating a property of the concept that is established in a certain language, not a property that must also exist independently of any language. When Reinach refers to the intuition that certain statements about legal concepts are immediately obvious, this alone therefore does not prove the existence of a priori legal propositions. Possibly, his analysis only brings to light which properties of a concept are essential in a certain language.

The necessary characteristics of a legal concept within a certain language do not have to follow from a specific positive legal system, although its influence on language is indisputable, because legal concepts often differ in meaning from their everyday usage. Accordingly, determinations about what is essential for a concept can follow from the setup of a language without an anchor in positive law. This shows that legal concepts might occur in legal propositions whose correctness does not depend on a particular legal system.

For instance, according to the concept of a contract in many languages, it is part of its essence that at least two persons agree about it. If this is not the case, one is not dealing with a contract at all, but with another type of norm, such as a statute or an order. Other characteristics of a contract, on the other hand, are accidental, because they could be absent. For example, the fact that at least one party in a contract must pay money is an accidental property because, as in the case of exchange, there are also contracts in which neither side has to do that. The mere fact that such a distinction between essential and non-essential properties of a contract is plausible does not prove that this distinction applies per se and not only to a specific language. Its conceptualization might be contingent and thus, according to Reinach, an empirical question that eludes a priori regularities.

Once again, this suggests that Reinach may draw rash conclusions regarding the apriority of non-positive legal propositions, insofar as he relies on their obvious plausibility. Not only does it remain unclear how one can determine the essence of legal concepts and entities if neither perception through the senses nor experience with positive law is to play a role, but acquaintance with a particular language might also influence one’s intuition about legal phenomena. If this is the case, the relevant propositions are not a priori.

3.4 Non-positive Propositions

At first glance, one can infer a legal a priori from those propositions which, on the one hand, do not follow from positive law, but which, on the other, may nevertheless play a role in a legal argument. These non-positive propositions are able to support a statement about law without being traceable back to a social fact such as a legislative or judicial decision. In the absence of such a positive basis, they seem to be fixed for all legal systems and thus, at first glance, a priori.

The already mentioned proposition that an obligation is extinguished by fulfilment would be an example of such a non-positive proposition if one could justify it without referring to a legislative decision or another social fact. One might argue that the purpose of the fulfilment of an obligation is not only that the creditor receives what has been promised, but also that the debtor discharges his debt. If the obligation were not extinguished, he would have no reason to fulfil it. Moreover, the creditor would receive more than he was promised or to which he is entitled by law if the obligation were to persist after fulfilment.

These arguments do not rely on positive law, but nevertheless contain reasons that one could use in a legal argument. Does it follow from this that they are a priori, and can one thereby rescue Reinach’s thesis that there is a legal a priori although Reinach himself did not use such an argument? That would only be the case if all propositions that are not based solely on positive law must be a priori. Then one could conclude from the lack of positivity that a legal proposition is a priori. However, this conclusion appears doubtful. As the following discussion shall show, there are other types of non-positive and nevertheless non-a priori legal propositions.

3.5 Towards Non-positive Legal Reasons

It turns out, thus, that neither necessary (3.2), nor essential 3.3), nor non-positive propositions (3.4) prove the existence of a legal a priori. This raises the question of whether Reinach’s theory should be dismissed as interesting but ultimately unsustainable. That there are a priori foundations of law is after all not only the title, but also the central thesis of Reinach’s treatise.

However, such a conclusion would be premature. For the fact that the apriority of certain phenomena has not been proven does not mean that they are of no interest at all.Footnote ⁷² Maybe, Reinach was just too ambitious to explain them with an a priori, thereby excluding even the slightest empirical evidence. In this respect, it is worth returning to Reinach’s starting point. He begins by refuting the claim that all legal propositions and concepts are creations of positive law.Footnote ⁷³ Against this backdrop, he undertakes the search for a legal a priori. Rejecting this apriority does not mean, conversely, that all legal concepts and legal propositions are to be understood as positive law. As has already been argued,Footnote ⁷⁴ there are several kinds of plausible propositions about law that do not completely rest on positive law. Presupposed and morally based legal propositions are examples of them. They remain an important part of the law although they neither rest exclusively on positive law nor on a priori insights.

Reinach’s opposition to explaining legal phenomena with the help of positive law can therefore possibly be maintained without having to adopt his thesis of a legal a priori. This requires that one must explain the phenomena treated by Reinach without reference to an a priori. Whether or not this is possible cannot be decided across the board, as it requires an analysis of the particular phenomena treated by Reinach, which may be successful for some but not for other phenomena.

It should suffice here to look at the example that an obligation is extinguished through fulfilment. Such a claim becomes plausible if one looks for normative reasons that support it. In this regard reasons are understood in a broad sense as everything that helps to justify a proposition.Footnote ⁷⁵ They are normative if they count in favour of some action or attitude.Footnote ⁷⁶ Such reasons do not have to be independent of experience. For instance, historical insights about the fallibility of governments might be part of the reasons that are decisive for the design of the state. It is thus not plausible to assume that all reasons that support non-positive legal propositions are a priori. Reinach’sFootnote ⁷⁷ opposite view, possibly, is motivated by the fear that an established morality (‘positive morality’) can fail and is thus no reliable basis for law. However, his exclusion of all moral reasons from the foundations of law goes too far if it is to cover also those reasons that stand up to critical reflection (‘critical morality’).Footnote ⁷⁸ These include, in particular, minimal reasons as to which actions should be dismissed as obviously unacceptable.

For example, that an obligation disappears with performance, finds, as seen, its justification in the fact that the debtor would otherwise have no reason to perform, and the creditor would be unjustly enriched if he could demand performance again. The argumentative force of these reasons does not depend on whether there are certain positive norms about performance or extinction of obligations. Such reasons are thus non-positive.

Equally, the fact that an obligation is extinguished by waiverFootnote ⁷⁹ does not have to be attributed to a mystical essence that holds a priori. Rather, one can simply explain this extinction by the fact that the reason for an obligation is to provide a benefit to a particular person and that it is not an end in itself that such an obligation exists. Therefore, if the creditor decides by waiver not to receive the promised benefit, the reason why the obligation exists in the first place ceases to exist. Accordingly, it is reasonable for the law to order the extinction of the obligation in this case. One can understand the reasonableness of this proposition without referring to positive law.

The fact that there are such non-positive reasons for legal propositions does not mean that positive law always follows these reasons. As ReinachFootnote ⁸⁰ emphasized, the legislator is free to determine deviating norms. Indeed, what is reasonable is often disputed. Therefore, the legislator usually determines the law by an authoritative decision, even if it deviates from the non-positive reasons that weigh in favour of another decision. The dependence of private law on legislative determinations should not, however, lead to the conclusion that there are no non-positive legal reasons for private law propositions.

For such reasons to exist, it is by the stated definition merely necessary that there is something independent upon positive law that counts in favour of or against a certain action or state of affairs. If one considers that every action and most states of affairs have an impact on somebody’s freedom or autonomy, it is highly unlikely that there is nothing at all that would count for or against them. Therefore, it seems quite plausible that there are in most situations such normative reasons. This can also be seen in the fact that the difficulty of legislation and the accompanying discussions are regularly about which reasons are more convincing and hardly ever about the question of whether there is any reason at all for or against a certain proposal. The fact that a concept has a certain content and is related to other concepts is accordingly not necessarily a whim of positive law, but possibly an expression of a conception based on reasons. What is important about these reasons is not only that they do not refer to positive law, but also that their argumentative force is independent of it.

One might still ask whether such reasons are of a purely moral and thus not legal nature. In at least three respects this answer is negative. First, the fact that a reason is of moral nature does not exclude that it also states how the law should be designed and is thus to that extent related to law. This does not mean that propositions justified with the help of such reasons are necessarily valid law, but only that they at least should be valid law. In this regard, such reasons differ from those moral reasons that do not justify legal norms, for example because they concern decisions that should be left to the autonomous decision of individuals and thus not be legally required. Thus, unlike considerations that are decisive only for non-legal decisions, non-positive legal reasons are legal insofar as they take seriously the nature of law, that is, its specific characteristics.

Second, these reasons might not lead to a specific conclusion but might just justify why a certain distinction between two concepts or phenomena exists at all and is potentially significant in a legal context. In this case, these reasons do not justify legal norms but rather the concepts that should be applied within them, thereby highlighting the questions that must be resolved by a legal system. These reasons are legal insofar as they indicate the potential concepts and categories that a legal system could utilize. In the already mentioned example of contracts one can provide reasons for why contracts differ from one-sided decisions without thereby prescribing any legal consequence.

All of this does not mean that the law must encompass such distinctions. Instead, it elucidates why such a distinction exists in principle and why it might be relevant. These reasons concerning potential legal concepts are pivotal for legal analysis, although due to the lack of specific legal consequences, they do not constitute norms. Categorizing them strictly as either moral or legal would be misleading, as it would overlook the significance of having a well-developed terminology that can remain neutral regarding the legal consequences for which it might be employed. The categories, distinctions, and concepts that a legal system might use are at least to that extent legal in character, as a potential legal system might reasonably employ them, although this alone does not make them part of the positive law. For instance, there are convincing reasons to distinguish between contract and property, although a legal system might not draw this distinction.

Finally, non-positive legal reasons can rely on minimal preconditions, making their use in a legal decision permissible when there is no applicable positive law on point. The propositions justified with their help can then be legally binding as long as the legislature has not ordered otherwise. The fact that an obligation is extinguished by fulfilment, for example, is likely to be based on such minimal reasons. They are legally acceptable as long as positive law does not state otherwise. In contrast, many moral rules do not even have such a subsidiary character, because they are not based on minimal reasons and are thus incapable of justifying legal decisions. In this respect, minimal reasons that justify legal propositions might differ from general moral reasons.

The reference to the minimal character of these reasons shows that one must distinguish between different types of reasons – even among non-positive reasons that speak for or against a certain legal proposition. To treat them sweepingly as legal or moral is a misleading alternative and obscures such differences. The phenomenon emphasized by Reinach, that a number of legal propositions are self-evident, can be explained precisely by the fact that one is dealing with propositions that are justifiable by reasons that demand few preconditions and are thus minimal,Footnote ⁸¹ although they have no basis in positive law. What appeared to Reinach as self-evident might rest on minimal moral reasons that could and should be demonstrated.

In short, Reinach’s objective of uncovering non-positive elements of law remains a worthwhile project, especially when one looks at minimal reasons that underlie legal concepts, distinctions, and rules. First and foremost, these reasons help to explain self-evident legal propositions. In finding and characterizing non-positive reasons for them, one does not have to deny that in many cases it is controversial what these reasons precisely are. What is important at this point is only that such reasons might justify legal propositions in principle. The phenomenon of self-evident legal propositions emphasized by Reinach remains thus crucial, although his explanation with the help of an a priori is too ambitious to be true.

In much of the body of work devoted to Adolf Reinach, discussion is concentrated on his phenomenological realist ontology – essences, states of affairs, and judgments. Each of these is explored conceptually and with respect to how it interconnects and grounds the others. But very little attention is paid to negation, specifically negative states of affairs and their connection to both positive and negative judgments. Scholars who work on Reinach’s theory of judgment tend to focus on the negative judgment of positive states of affairs, to the neglect of the positive judgment of negative states of affairs. Reinach claims that negative states of affairs ontologically subsist and do so on a par with positive states of affairs: taking a rose, for example, its not-being-orange subsists just as much and in the same way as its being-red, and the rose being-red entails that it is not-being-orange. This negation does not just occur mentally for us in a disposition (i.e., on the side of consciousness, or subjectively in a judgment) but, Reinach argues, in the world of events and human interaction (i.e., objectively, in the world). This position on negation was contrary to many of his peers and colleagues who saw negative entities as secondary to or derived from positive ones: specifically, his friend and fellow Munich phenomenologist Johannes Daubert and one of his Göttingen students, Roman Ingarden, both took issue with the idea that negative states of affairs subsisted independently and were on a par ontologically with positive states of affairs.

In this chapter, my focus will be on negative states of affairs and their corresponding judgments, and on connecting them with Reinach’s jurisprudence – something that has not yet been done in the literature. Reinach was rather unique in both the Munich and Göttingen phenomenological circles because he was a law student in addition to his studies of descriptive psychology and phenomenology; this interdisciplinary education opened his mind to distinctive ways of seeing the world, in all its ways of being and not being. The position I advance here is that because the law frequently turns on what appears to be negative states of affairs, Reinach’s legal training may have contributed to his insistence on their very being and their having the same ontological status as positive states of affairs. Laws have application to both action and inaction – criminality can be something done to another or an omission – and this implies a robust inclusion of negative states of affairs. Negative states of affairs have received far too little attention and serious inclusion in his work, and by engaging in this discussion, we have the potential for Reinach to be made whole again – by bridging his early law education with his phenomenological ontology.

4.1 Reinach’s Terminology: Judgment and State of Affairs

States of affairs, essences, and an expanded notion of the a priori are the core entities of Reinach’s ontology. These interlace with one another, creating the fabric of reality that we come to grasp both epistemically and metaphysically. In this chapter, I will focus exclusively on states of affairs and the judgments they participate with.Footnote ²

Judgment, for Reinach, can be understood as both assertion and conviction. However, for this chapter, the focus will be exclusively on the latter, as it was what he predominantly utilized for his discussion of negation. Convictions are said to arise from intuitive acts of presenting.Footnote ³ Conviction, for Reinach, possesses both a consciousness-side and an objectivity-side: that is, psychical and physical world aspects. Conviction is an act where we adopt a stance toward something, whether that means striving toward it positively or resisting it negatively.

In his essay on negative judgment, Reinach describes six essential characteristics of states of affairs.Footnote ⁴ These are essential marks meant to distinguish states of affairs from propositions and objects, and they are sufficient in the sense that every entity to which any one of them applies would be a state of affairs. For Reinach, this short list is by no means exhaustive, nor does it constitute a definition. States of affairs are:

1. 1. that which is believed or asserted in judgments (34);

2. 2. that which can stand in the relationship of ground and consequent (34–35);

3. 3. that which can take on modalities, such as possibility and necessity (35);

4. 4. that which stands in the relation of logically contradictory positivity and negativity (35–36);

5. 5. that which obtains or does not obtain (as opposed to existing)Footnote ⁵ – and given (4) above, either a positive or a negative state of affairs obtains (36);

6. 6. that which is apprehended or intuitively discerned, not seen or perceived through the senses (37).Footnote ⁶

States of affairs have a special mode of being that enables them to participate with both real and ideal objects, but they themselves are not real or ideal. By employing words like “obtain,” the list of characteristics reiterates that we must not mistakenly regard states of affairs as existing; it is rather the objects to which they stand in relation that exist.Footnote ⁷ Reinach adds to this point: “As we immerse ourselves into the essence of these entities [Gebilde], we intuitively discern [erschauen] what holds for them as a matter of strict law; we grasp interconnections analogously to the way we do through immersion into the essence of numbers and geometric entities: the being-thus [So-Sein] is here grounded in the essence of that which is thus [So-Seienden].”Footnote ⁸ Reinach emphasizes here the type of immaterial subsistence states of affairs have, and that states of affairs and the laws to which they are subject are immutable and strictly necessary. Moreover, states of affairs are independent of any judgment or cognition on our part, and they are subject to strict laws – laws that also obtain independently of our acknowledgment.

In Reinach’s all too brief rough notes on ethics from 1906, he describes an additional characteristic of states of affairs. While objects can be valuable and persons are the bearers of moral values, it is states of affairs that are morally just: A and B can be said to be morally valuable, but that A is B is just.Footnote ⁹ States of affairs are independent, immaterial, and subsisting in the world and, for Reinach, justice is as well: what is just is not simply and solely in the consciousness of persons but rather at work in the universe.Footnote ¹⁰ These notes are early indications of where his phenomenological jurisprudence would go in subsequent writings, such as the a priori foundations article.Footnote ¹¹ Sadly, this additional characteristic of states of affairs is incomplete; it was underdeveloped at the time of Reinach’s death and remains rather obscure to this very day, and all too frequently left out of his ontology altogether.

With the fundamental terminology covered, we now turn to negation.

4.2 Negative Judgment and Negative States of Affairs

In “Toward the Theory of Negative Judgment,” Reinach advances two significant and controversial claims: purely in terms of their descriptive essence, positive and negative convictions stand on an equal footing with respect to each other, and likewise positive and negative states of affairs are of the same order.Footnote ¹²

A positive conviction, Reinach posits, is an act of turning toward the object, whereas a negative conviction is an act of turning away from it (in disbelief). If a police detective tells me the body on the floor has a gun in their left hand but when I look I find the gun is actually in the right hand, then a negative conviction arises within me – “this person does not have a gun in their left hand!” – and is quickly followed by a positive conviction that “it is in their right hand!.” These judgments, while contraries, are both convictions, and refer to the same intentional correlate – that is, the same state of affairs.

Positive convictions arise straightforwardly when “reading off” states of affairs from what is given around us, but negative convictions require a different intellectual attitude and approach. Referring again to the dead body example, when I approach the body expecting to see the gun in the left hand, but sense perception attests to the gun being in their right hand, this situation results in my grasping two conflicting states of affairs (being-left hand vs. being-right hand), with only one providing direct evidence that can be apprehended. The other state of affairs (being-left hand) has “negative evidence,” and it is on the basis of this negative evidence that the negative conviction arises. Comparably, the judgment “nine is not less than five” arises through necessary connection with the positive state of affairs that “nine is greater than five”; the negative evidence of the former is bound by strict necessity with the positive evidence of the latter. The relationship between these judgments generates my positive conviction that nine is indeed greater than five.

Reinach distinguishes two types of negative judgments: a negative conviction of a positive state of affairs (the disbelief that A is B; I don’t believe the gun is in his left hand) and a positive conviction of a negative state of affairs (the belief that A is not B; I believe this person does not have the gun in their left hand).Footnote ¹³ He adds that while these two convictions closely resemble one another in their logical content, they are absolutely different judgments with respect to both their consciousness- and objectivity-sides (in the one judgment, the consciousness-side is reflected by belief and the other, by disbelief; the objectivity-side of the one judgment is the gun being-left hand and the other is gun not-being-left hand). In fact, the positive conviction of a negative state of affairs has often been neglected, confused, or poorly handled by logicians because of outdated ideas about what the correlates of affirmative and negative judgments are.Footnote ¹⁴

The list of characteristics of states of affairs offered in the previous section provides the foundation for understanding both positive and negative states of affairs. When we consider the third and fourth essential marks of states of affairs – they can take on modalities (i.e., being possible, probable, impossible, improbable, contingent, necessary, etc.), and stand in the relation of logically contradictory positivity and negativity (i.e., either the positive or the negative state of affairs obtains) – we can gain a more comprehensive picture of what negative states of affairs are and encompass, and how negation operates on the objectivity-side of judgment. Given the third mark, impossible objects involve states of affairs (e.g., square circles), as do probable entities (e.g., Schrödinger’s cat’s existence) and contingent ones (e.g., the trees in my yard). All these modalities implicitly contain negation. Negation can obtain with modalities such as probable and contingent because the temporal nature of the states of affairs allows for it. Reinach writes,

Only some states of affairs will obtain, and by necessity a manifold of others will not. If the rose is red, then it is not at the same time purple, not yellow, not orange, etc. This implies that any states of affairs essentially connected to the rose, both positive and negative, must subsist potentially outside of my mind – “lying in wait,” as it were, for the “opportunity” to obtain or not obtain.Footnote ¹⁶

Briefly, combining the third and fourth essential marks of states of affairs additionally demonstrates that Reinach maintained a notion of pure possibility within his ontology, which is crucial for upholding a theory of material necessity in the world and for defeating any suggestions of necessitarianism.Footnote ¹⁷ In other words, for Reinach contingency has a relationship with necessity while allowing at the same time for free will and real possibility. For example, the leaves on my maple tree turned red last fall – they did not have to be red, they could have been orange or yellow if the weather conditions had been different, but there is no denying the being-red of the leaves that obtained. In his last public lecture “Concerning Phenomenology” (1914), Reinach spoke to this point,

4.3 States of Affairs: Influences and Debates

4.4 Concluding Remarks

Reinach was deeply influenced by his law studies. He never abandoned jurisprudence; in fact, he incorporated what he learned into his realist phenomenology. I contend that because the law frequently turns on what appears to be negative states of affairs, Reinach’s legal training may have contributed to his insistence on independent subsistence of negative states of affairs and their having the same ontological status as positive states of affairs; his law studies provide insight into why the pursuit of negative states of affairs is absolutely necessary ontologically. His education in law at Munich, Berlin, and especially at Tübingen with Beling, underpins much of his early, persistent and profound interest in states of affairs and judgments, and in his phenomenological writings on them right up to his final lecture before enlisting in the First World War.

Reinach and the topic of negative states of affairs might seem to some as a rather obscure, philosophical niche and one that lacks relevance to larger issues; however, to consider it such would be gravely mistaken. First and foremost, Reinach’s sense of justice seems to harken back to an older sense of justice (Recht) and is in the universe as a transcendent harmony and should undergird any written form of law (Gesetz). This entails all of us having a connection to and being able to participate with justice, using insight, and an ability to grasp it even if we have never read a law book. On January 1, 1900, the Bürgerliches Gesetzbuch (BGB) came into effect in Germany; it was a monolithic, groundbreaking positivist project that interpreted justice as achievable purely through application of the codified law. Reinach was one among many legal scholars at the turn the century who attempted to push back against this shift in the direction of jurisprudence. His a priori foundations article, as a whole, stands as a powerful critique of what the lawmakers of the BGB failed to grasp – justice is in the world, the laws we write should reflect this harmony at work. Laws are written and can be changed but justice is an entity we grasp using insight, not create. In this way Reinach connects with legal philosophers like Leibniz, but he leaves the notion of God or any teleology off the table (as a realist phenomenologist, he is only concerned with that which is and not how it came to be). This distinction between justice and law is currently all too relevant and extremely significant.

Reinach, like many early phenomenologists, was critical of positivistic philosophy given its bias for defining knowledge as necessarily linked to existence and sensory evidence. His ontology of states of affairs serves as a refutation of this type of positivism since they are intuitively discerned and not perceived by the senses, subsisting in the world independently, and participate with all kinds of being – real, ideal, possible, and impossible – and they can be positive or negative. He extended this critical position into his jurisprudence theorizing by incorporating ontology to ground legal concepts: positive and negative states of affairs and, most importantly, the conception of an a priori foundation that underpins all written laws, thus connecting them with a larger, transcendent justice at work in the universe.

We live in a world that remains under the influence of philosophical positivistic thinking, where there is a preference for tangible actions – for sheer deeds rather than inaction or omission. People want to see a crime: they want evidence showing directly that an employer discriminated against an employee, not by searching through all the structural ways that a system fails to support diversity and difference and that creates various obstacles for a marginalized individual. Reinach’s robust ontology provides a foundation from which we can ground the ethical conclusions we draw. The injustices committed by failing to act or prevent something from happening are very much a part of today’s dialogue about complicity in systems of power and privilege. The witness to a violent crime on the street who says and does nothing is often perceived as an unjust person, and their perceived injustice does not stop at the failure to report or stop a crime in progress, but ripples outward in the ways their silence and inactivity supports structures of violence, inequality, inequity, misogyny, racism, colonialism, ableism, etc. Negative states of affairs bring us back to these dialogues, ontologically as well as practically, and allow us to explore negation in meaningful ways as never before and connect them as a ground for our ethical viewpoints. With so much oppression and violence against women and gender equity-seeking groups, Indigenous Peoples, racialized individuals, persons with disabilities, and 2SLGBTQIA+ persons, the issue of what so many of us are not doing or are failing to prevent has become a central issue in our thinking about how to achieve justice.