Law is Ontologically Incorrect
Correctional institutions are overpopulated due to the incorrect juristic notion that persons determine themselves to act, or not, by law.
Worldwide overcrowded penitentiaries clearly show that people do not determine their conduct by law, for, in fact, ontologically, persons cannot determine themselves to act by given states of affairs, and, law is a given.
Human ontological originative determination to act, or not act, is negation, l.e., determinatio negatio est, Baruch Spinoza (1632 -1677 ), letter to Jareg Jelles, (1674); restated by G.W. Hegel ( 1770-1731 ) as Omnis determinatio est negatio, i.e., All determination is negation. ; further reiterated by J.P. Sartre (1901-1980), thus: No factual state whatever it may be (the political and economic structure of society, the psychological state, etc.) is capable by itself of motivating any act whatsoever. For an act is a projection of the for-itself toward what is not, and what is can in no way determine by itself what is not. And, further: But if human reality is action, this means evidently that its determination to action is itself action. If we reject this principle, and if we admit that human reality can be determined to action by a prior state of the world or itself, this amounts to putting a given at the beginning of the series. Then these acts disappear as acts in order to give place to a series of movements...The existence of the act implies its autonomy...Furthermore, if the act is not pure motion, it must be defined by an intention. No matter how this intention is considered, it can be only a surpassing of the given toward a result to be attained. This given, in fact, since it is pure presence, cannot get out of itself. Precisely because it is, it is fully and solely what it is. Therefore it can not provide the reason for a phenomenon which derives all its meaning from a result to be attained; that is, from a non-existent This intention, which is the fundamental structure of human reality, can in no case be explained by a given, not even if it is presented as an emanation from a given. (Being and Nothingness: An Essay in Phenomenological Ontology. J.P. Sartre, Part Four. 1943.)
Characterizable as merely pre-reflectively free, extant jurisprudentially oriented persons are neither cognizant of the purely nihilational ontological structure of the origin of their own acts, nor of the wholly doubly nihilative mode of upsurge of all human action/inaction. Being pre-reflectively free regarding the purely negative originative structure of a human act, jurisprudents currently hold to the incorrect notion that given language of man made law is efficient to determine/originate both human action, and, human restraint.
The mistaken notion that given published language of law is determinative of human conduct, constitutes a radically profound error, concerning the very ontological structure of the rise of human action.
Language of prohibitive law is not correctly human; as an unintentionally dishonest con, law is both failure to correctly comprehend human action, and, an absolute failure as a means constitutive of genuine human civilization.
Current pre-reflectively free jurisprudentially-oriented legislators and magistrates, mistakenly, destructively, require all persons to determine themselves to act, or not, on the basis of given language of prohibitive law, - whereby said language of law it is, in fact, ontologically impossible to originate either human action or, inaction.
Worldwide overcrowded penitentiaries clearly show that people do not determine their conduct by law, for, in fact, ontologically, persons cannot determine themselves to act by given states of affairs, and, law is a given.
Human ontological originative determination to act, or not act, is negation, l.e., determinatio negatio est, Baruch Spinoza (1632 -1677 ), letter to Jareg Jelles, (1674); restated by G.W. Hegel ( 1770-1731 ) as Omnis determinatio est negatio, i.e., All determination is negation. ; further reiterated by J.P. Sartre (1901-1980), thus: No factual state whatever it may be (the political and economic structure of society, the psychological state, etc.) is capable by itself of motivating any act whatsoever. For an act is a projection of the for-itself toward what is not, and what is can in no way determine by itself what is not. And, further: But if human reality is action, this means evidently that its determination to action is itself action. If we reject this principle, and if we admit that human reality can be determined to action by a prior state of the world or itself, this amounts to putting a given at the beginning of the series. Then these acts disappear as acts in order to give place to a series of movements...The existence of the act implies its autonomy...Furthermore, if the act is not pure motion, it must be defined by an intention. No matter how this intention is considered, it can be only a surpassing of the given toward a result to be attained. This given, in fact, since it is pure presence, cannot get out of itself. Precisely because it is, it is fully and solely what it is. Therefore it can not provide the reason for a phenomenon which derives all its meaning from a result to be attained; that is, from a non-existent This intention, which is the fundamental structure of human reality, can in no case be explained by a given, not even if it is presented as an emanation from a given. (Being and Nothingness: An Essay in Phenomenological Ontology. J.P. Sartre, Part Four. 1943.)
Characterizable as merely pre-reflectively free, extant jurisprudentially oriented persons are neither cognizant of the purely nihilational ontological structure of the origin of their own acts, nor of the wholly doubly nihilative mode of upsurge of all human action/inaction. Being pre-reflectively free regarding the purely negative originative structure of a human act, jurisprudents currently hold to the incorrect notion that given language of man made law is efficient to determine/originate both human action, and, human restraint.
The mistaken notion that given published language of law is determinative of human conduct, constitutes a radically profound error, concerning the very ontological structure of the rise of human action.
Language of prohibitive law is not correctly human; as an unintentionally dishonest con, law is both failure to correctly comprehend human action, and, an absolute failure as a means constitutive of genuine human civilization.
Current pre-reflectively free jurisprudentially-oriented legislators and magistrates, mistakenly, destructively, require all persons to determine themselves to act, or not, on the basis of given language of prohibitive law, - whereby said language of law it is, in fact, ontologically impossible to originate either human action or, inaction.
Comments (53)
Against Oliver Wendell Holmes, your argument sounds like an AI generated device.
:up:
No, I, a person wrote the position.
I apologize for my comparison. I should have left it as what I disagreed with.
Thank you.
Why do you disagree?
Or not.
People do not act, especially if badly, on the basis of what is permitted by law. So the following proposes a factor not observed in criminal behavior:
Quoting quintillus
You have placed the law before actions where it is always behind. People do bad things and other people try to stop it from dissolving whatever arrangement made in order to minimize the damage.
The law is a primary determinant of human conduct according to our legalistic society, NOT according to me and my understanding of how a human act originates. It is not actually possible for given law to be determinative of a human act.
Your honesty is totally commendable.
Law is a tool. A guide. And an imperfect one at that. Law is only a rough blueprint, constantly revised and ammended as needed. But it is not permanent.
Much of what was legal 400 years ago is not legal today. And much of what is legal today likely will not be legal in 400 years. Other things which are illegal may become legal also. The paradigm if law is in flux, as it tries to keep up with knowledge, technology and social conscience /culture.
What is more fundamental than law are basic principles on which it relies. Do the minimum harm, while endeavouring to bring around the maximum benevolence. This is the basics of morality or ethics.
The law is also generalised - a sweeping statement. It must apply to all subjects to be considered "fair" and equal". The irony being that the needs and situation of different subjects is not equal at all. There is always a marginalised group that has not been addressed and is thus vulnerable and blindsided.
The law doesn't pick up on specific exceptions or sets of circumstances it has not considered yet. There are always untied "loose ends". These loose ends are both the source of denying rights/causing injustice under the current law - ie being moral but considered unlawful, as well as those exploiting and abusing blindspots/loopholes or "being immoral" without being treated as unlawful.
This is the frontier of ammendment and revision of the current law to include those possibilities within it's framework. This is an endless game of catch up.
Laws do not forsee. They only work in hindsight. Retrospection.
I think the juristic expection is simply that persons will observe the law. That doesn't constitute the sole determinative factor, only one of many.
But people do not think so meticulously, often not even wanting to, acting off impulse, and everyone has a subjective sense of right and wrong, personal bias, delusions and prejudices, often acting irrationally to the common/"greater good" but "rationally" to the "individual good."
The law tries to protect an ideal - "the hypothetical perfect citizen" and the ideals of such a person. Someone truly harmless, without fault, considerate, empathetic and wise or purely rationale and reasonable in action.
Of course, failing to identify such a person, the closest stand in is the innocent - infants, children.
Those adults who reflect or are close to this ideal in belief and behaviour are likely to never break the law, even without having a degree in law/ studying it, and if they do, the court is likely to review the case and rule in their favour. Ammending the law in such a case.
But because everyone is flawed to some degree, even the supreme policy and law makers, the ideal good-doer is always at risk of being wrongly punished.
A beautifully insightful and encouraging series of observations regarding the law Benj96.
Again, Benj96, an exceeding uplifting and pleasing series of rich reflections.
Yes
The central fact which disconcerts me is how so many police persons are so totally taken with themselves and their position, that they condescend to mistreat others, who are free beings, as subjugate slaves.
Quoting quintillus
If we can agree that compliance with the law is not, or at least is more complicated, than various legal systems that have emerged to respond to crime, are you saying that enforcement of the law cancels the obligation of responsibility upon which it is based?
I do not at all comprehend your question.
I get that a lot.
Let me try this from a different direction. Your OP asserts that people are incarcerated because the system has a faulty idea of why people do things. What change would help ameliorate that mistake?
The change which I suggest is that our big shot doctors of jurisprudence, who currently act so high and mighty toward everyone else via their "law", seriously study the concept "determinatio est negatio",as it is highly developed in Part Four of Sartre's "Being and Nothingness" entitled
"Freedom", where an existential ontological description of how human action upsurges is given.
But we know that language can cause or inhibit behaviour and considering the law is just language I don't see why it can't cause and inhibit action
For example your post has caused me to respond and someone saying "come here" will make me respond and a sign saying "do not enter" will cause me not to enter.
Whether I agree with the letter of the law, being aware of legislation will influence my behaviour.
Also most people understand the motivation of the law and why it seeks to constrain their behaviour. Humans are sophisticated creatures rather than causally like Domino pieces and can weigh up the pros and cons of abiding by the law. I have the feeling the law itself is a tool to manipulate people in a way that is a complex causal nexus and peoples reasons for respond to it in various ways is also multifaceted complex and can involve self serving motives and power dynamics.
Simple pure opinion has no meaning, no weight inside a debate. We do indeed have explanation of how behavior arises; I have provided specific reference thereto. None of us are or can be causally determined to act by what is; it is via what is not yet accomplished that we act. My post did not cause you to respond thereto; your personal freedom chose to provide us with your opinion. You are not a being who's intellect is in motion moved by something other than yourself; you are freedom and actually cannot be determined to act by what is. It is always by what is not that you act...Your consciousness felt a need to respond to my language; my language is not your mover, your being is.
It's been a long time since i read it, and it wasn't much fun as I remember it. But as I think - please correct if I am misremembering - Sartre was responding to the occupation of France by nazi Germany. It was from WW2 that certain principles evolved that set limits to the writ of law and scope of authority, such that, the concept of an 'illegal order' entered international law, along with crimes against humanity, and so on.
That is to say that one has a choice no choice but to make a choice, even under coercion, to obey or disobey. Law-makers are necessarily free to make moral or immoral laws, and folks are necessarily free to obey or disobey, and in this way personal responsibility always obtains.
Thus @Cheshire chooses to waste time and money complying with a law, probably in order not to waste more time and money dealing with the consequences of refusal. Either way he is responsible for his own acts, and his obedience is not in itself a defence. Sartre basically invents a new sin of criminal obedience.
Correct.
Regardless, we won't stop making laws because they're "ontologically impossible." The law doesn't predict conduct, it assumes nothing. It's ascribed to, or it isn't. It's effective, or it's not.
The existence of a law is one thing, its merits or demerits is are another thing. Whether a law be, is one inquiry; whether it ought to be or whether it agree with a given or assumed test, is another and a distinct inquiry. The existence of law is one thing; its merit or demerit is another. --John Austin
It is, ultimately, not merely incorrect to deem law to be determinative of human conduct, it is delusional.
Is the weather determinative of human conduct?
Only individual human beings are determinative of individual human conduct.
At this point in human history most humans hold a scientistic view that their existence consists as matter causally in motion moved by external forces, e.g., that law causally moves persons to act and/or refrain from action. Which materialist scientistic view of action origination wholly fails to comprehend that human freedom is a constant self-movent thrust unto a not yet future.
Weather is wholly concrete physical substance which exists as entirely equivalent to itself; whereas a human being never coincides with itself, being always elsewhere, projected out unto a not yet, intended, future. Persons freely choose responses to given weather, weather does not choose human responses.
This seems to strip any relationship between a human and the external world.
But as we know we are subject to physical and mental illness affecting our behaviour.
It seems incoherent to posit no causal role for the physical world we seem to be in and our self. Language has a causal role and affects our emotions and appetites. All input can have an effect from profound to neutral.
One thing I would agree on is that the law is arbitrary and non binding and should not be reified but is rather a tool to encourage certain behaviours and encourage temporary stability.
We can lock people in prison for societies safety even without invoking a legal or moral framework just as a form of self defence. We agree to follow laws because some of them appear to benefit us.
Indeed we humans stand within the physis, unto the outermost extent thereof. We are integral with, not neccessarily "related" to the physis, for:
Any attempt to posit 'relation' between a human and the physis, encounters the theoretical unintelligibility that is infinite regress, i.e., to posit relation R between A (Human) and B (Physis), requires positing a further relation between the original relation R and A, and so on again for B and its relation to the original R, and on and on... (F.H. Bradley, "Appearance and Reality", 1897).
The notion 'Cause' comes into the world via human consciousness, and, is a human theoretical construct not necessarily intelligibly contained in the world (Bradley). Law, a given, does not, cannot, move consciousness to do or not do X. Consciousness is nothingness and, functions strictly in terms of nothingnesses, and, not in terms of and via somethings like law.
I don't know how you reached this conclusion and what supports it because it is certainly not my experience.
The words you have written have acted on my consciousness and instigated this response. The law is just words. These words have meaning and we clearly respond to the meaning of words as I am doing now.
I do believe in free will and I don't believe in the causal picture that says causes must be determinate. But in this area we simply have a lack of knowledge we have no explanation for consciousness or volitional action but things work anyway in the absence of a complete explanation.
What do you intend to replace the law with?
Is this a moral claim and are there any other invalid institutions?
Are you a prison abolitionist? I support prison abolition but recognise the need to protect people from antisocial behaviour.
The position that consciousness is nothingness is constructed by Sartre in his "Being and Nothingness"
1943; built upon Spinoza's "determinatio negatio est" and Hegel's "Omnis determinatio est negatio."; and having no connect with me.
Law can be transcended by attainment of personal reflective comprehension of how one's ontological freedom functions as nihilation.
In so far as it is mistaken to claim to punish on the basis of law, which law is not in fact determinative of human conduct, it is unintentionally immoral, and simply ignorant, to ascribe one's acts of punishment to said law.
No, not a prison abolitionist...
I wholly agree with your: "'We can lock people in prison for societies safety even without invoking a legal or moral framework just as a form of self defence."
Frankly, I may misunderstand you, but I wonder if your pronouncements (there doesn't seem to be another word for them, though "proclamations" come to mind) are, ultimately, uninteresting. Weather and law are givens (you say that about the law in another post). That much we may agree on. But we're organisms that are part of an environment, and our lives consist of interactions with the rest of the world of which we're a part.
Now, one can of course say that "I choose to wear a parka or something similarly warm when I walk through a blizzard on a windy day when wind chills are -20 Fahrenheit", or that "I choose to walk around a tree rather than walking into it." I could also say that "if I wanted to, I could choose to walk through a blizzard wearing a speedo", or "I could choose to blithely walk into a tree." I would in those cases be an imbecile, but I can choose to be one if I want.
So, the weather and the tree don't choose for me. Q.E.D.
If that's your point, it's hardly a novel or a remarkable insight.
Nobody would seriously claim that the weather or the law choose anything, of course. But the weather and other givens (including the law) influence or impact the choices we make in those circumstances where their application would have adverse consequences if particular choices are made rather than others. That may be the case only when we're aware of the consequences, and are intelligent enough to consider them, and capable of weighing means and ends and making an intelligent decision. It may not be the case if we cannot do so for one reason or another, or have desires which make the potential for adverse consequences or the consequences themselves irrelevant or of little or no concern, of course, If that's the case, though, it is because of other givens with which we must deal.
You, striving to validly designate something given as determinative of conduct, asked: "Is the weather determinative of human conduct? '' I decently explained why weather cannot be determinative of conduct. Hence, you situated me in an absurd situation. I was kind to you and politely answered you. Now, you unkindly radically insult me, by accusing me of uninteresting pronouncement, in response to your inane question.
I am centrally addressing foibles of criminal law and punishment. Although no law is actually validly determinative of human behavior, constitutional/civil rights law is uplifting, and not subject to indictment.
If you're making some claim to the effect that "the law must be changed" or "the law is ineffective" many would agree with you. If you're making some claim to the effect that "the law doesn't impact or influence human conduct" I think you're wrong. If you're saying something else about the law, I confess I don't know what it is you're saying.
Yes, precisely.
I am simply saying that no given state of affairs, e.g. law, determines persons to act; nor do persons, nor can persons, determine themselves to act due to law. It is only out of the fear of serious punishment that persons do nothing of what is putatively prohibited by law.
How do you intend to preserve positive legal presidents and concepts of rights?
Also I do not understand how consciousness is nothingness. The only thing we are aware of conscious states and we can't be aware of entities not available to consciousness or independent of it. Idealism I suppose.
Consciousness is nothing in the sense that it is an empty stage whereupon being appears.
Consciousness is nothingness in the sense that it is continuously abandoning/surpassing/discarding its present state, in a continuous thrust toward what it intends to bring to pass. Continually making the given state nothing, and, making the nothing that is the not yet which it intends to usher in. That doubly negative process is what is called "double nihilation". 'Nihilation' means to make nothing. Consciousness continually nihilates nothing.
"How do you intend to preserve positive legal presidents (precedents) and concepts of rights?" I have not performed a double nihilation in that regard yet.
The penalty is a part of the law, though; it wouldn't exist but for the law. So, the fear is engendered by the law. It seems to me you're saying, then, that the law influences the choice.
Persons fear possible, imagined harm, to their person. Imagination is nothing. Law means possible harm. Possibility is nothing. The fear is a human reaction to imagined possible harm by possibly harmful law-persons, and, fear is a function of the person fearing, not a quality of the words of the law. In the absence of the prohibited act there in only nothing of action and dread of possible, imagined, punishment. Human consciousness of the law is generating the fear, not the law per se.
The Stoics would say that what disturbs us are not things, but our judgments about them (to paraphrase Epictetus). That would apply not only to possibilities, but to what applies now. So, the law is the law, the weather is the weather, but how we judge them is in our control. To the Stoic, one need not fear the law. But one may know the law (the weather too) and assess its impact on potential action. I would say it's wise to do that, regardless of its ontological status.
"But one may know the law (the weather too) and assess its impact on potential action. I would say it's wise to do that, regardless of its ontological status." Most certainly.
A stage is not nothing though.
The human visual system that allows us to see is highly complex and not nothing like wise all the other perceptual systems and in the case of broadcasting a television is not nothing nor a radio or computer etc.
Consciousness requires a preexisting observer which I call the self. I am aware of myself as well as perceptions at each moment. The self may be invisible to others or even non material but I don't equate that with nothing.
A theatre stage has physical features and dimensions on which a play can be performed.
Quoting quintillus
I have memories from childhood and throughout my life. I don't see how this fits your picture.
My experiences are not eradicated as soon as they happen but linger in memory for varying degrees of time including a life time. For example I can name several dead relatives and tell you the address of the house I last lived in at the age of 7.
So did Sartre and Bradley et al give any concrete examples for their beliefs?
Apparently energy cannot not be created or destroyed so that also does not seem to fit into a nihilation picture.
"Apparently energy cannot not be created or destroyed so that also does not seem to fit into a nihilation picture." The nothings being referred to here are projects/intentions.
Sartre is continually providing concrete examples of his take on human existence. There is a free copy of his Being and Nothingness available on the net.
A stage is essentially an open space, an opening whereupon things appear.
I had courses in a Phil. Dept. where the lecture was about him and his work B&N. We read B&N. Definitely an atheist. He said consciousness arises as nothingness being introduced into concrete being. I cannot answer all your other questions...