A New Critique of Theoretical Thought. Deel 2. The General Theory of the Modal Spheres

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Chapter VII
The problem of individuality within the modal cadre of the law-spheres.

§ 1 - The modal functions of individuality and the gradations of the modal individuality of meaning.

The problem of individuality is a fundamental question of empirical reality and as a structural problem it cannot be discussed before the third volume. In our analysis of the modal structure of the law-spheres, however, it appeared necessary to consider the modal individuality of meaning, because in its functional character it belongs to the theory of the modal-spheres. In the structure of the law-spheres the problem of individuality presents itself as the problem of the functional or modal individuality of meaning. There would be no internal connection between the theory of the modal spheres and that of the typical structures of individuality, if the modal-structure of the former did not itself refer to the structures of individuality. In that case our philosophic inquiry would fall asunder into two absolutely separate parts. But our earthly cosmos does not consist of two separate worlds, one of the modal law-spheres and one of individual things.

The modal-structures he at the foundation of the structures of individuality and are individualized by the latter. But how is it possible for the modal meaning of a law-sphere to express itself in such a wealth of functional individuality, whereas it is always the same modality in all kinds of individualization?

The distinction of juridical facts according to the modal structural moments of juridical meaning.

For instance, the primary modal meaning of the juridical law-sphere is always the same in all juridical norms, on the law-side, as well as in all subjective and objective juridical figures, on the subject-side. And yet, this modal meaning is expressed in an incalculable number of meaning-individualities within the legal sphere. This will appear from a comparison of the various

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subjective juridical facts according to their juridical-functional content. Juridical systematism tries to classify this modal individuality according to a gradually descending scale from general to more particular concepts. This exterior method of classification at any rate pre-supposes some gradation in juridical individuality itself.

A method derived from the theory of the modal spheres should start from the modal structural moments of the juridical sphere itself.

We have seen that the modal subject-object relation requires the distinction between subjective and objective juridical facts, the latter always functioning dependently. A fire caused by a stroke of lightning, e.g., can obviously function in the juridical aspect of reality only as an objective dependent juridical fact. It can only be attended by juridical consequences in connection with the legal relations between juridical subjects.

As such it is a dependent incomplete juridical fact, as its objective juridical meaning always depends on possible subjective juridical relations.

On the other hand a contract of sale or a marriage settlement are undeniably subjective complete legal facts; in the former juridical subject-object relations are contained from the start.

In this general fundamental distinction the modal individuality of meaning does not yet play a part. No more is it relevant to the distinction between lawful deeds and delicts.

This distinction is oriented to a logical analogy (lawfulness and unlawfulness) in the modal meaning of the juridical sphere¹.

Also the distinction between law-making volitional declarations and such that have merely a subjective legal content (as for instance serving a summons upon a certain person), is no more than a modal structural distinction. It is apparently intended in the German general theory of law in the strange opposition of ‘Rechtsgeschäfte’ and ‘Rechtshandlungen’; but here the real legal states of affairs to which the distinction refers, is fundamentally misinterpreted. In fact, a law-making volitional declaration is related to a particular retrocipatory moment in the modal structure of the juridical law-sphere, viz. that of law-formation². The formative moment is found in the historical

1 We have seen that this distinction ultimately refers back to the principium contradictionis in the analytical modus.

2 In the positivistic general theory of law this distinction lacks a scientific foundation. It is due to the introduction of a psychologistic concept of will in theoretical jurisprudence. The criterion is whether or not the ‘psychical will’ is directed to the juridical consequences! But our provisional analysis of the modal structure of law has shown that the juridical volitional function is quite different from the psychical function of the volitional act. Besides, this distinction disregards the law-making character of the so-called ‘Rechtsgeschäfte’ (contracts etc.).

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analogy of the juridical aspect on its law-side, in its insoluble coherence with juridical competency. In our summary analysis of the historical aspect we have seen that this moment can be discovered on the law-side of all the post-historical spheres and is typically interwoven with the subject-side¹

1 This view is of fundamental importance to the theory of the sources of law. The so-called formal sources of law, such as laws and ordinances, contracts, treaties, etc. prove to be only subjective juridical forms (that is to say legal volitional declarations) in which the positive juridical norms come into existence; they are only dependent moments in the complete concept of a source of law. Positivistic formalism, however, identifies these forms with the sources of law.

The typical structures of juridical facts in which the modal distinctions are individualized.

Things are quite different when theoretical jurisprudence and the legal order itself start classifying the juridical facts after specific types, e.g., criminal delicts in manslaughter and murder, arson, theft, perjury, etc. and then try to include these types under more general heads (crimes against bodily security, crimes against property, etc.). At this point we are face to face with the modal meaning-individuality. It may be that the latter is determined by the modal meaning-structure of the juridical aspect, but the meaning-individuality is not to be inferred from the modal structure in an a priori way. It is clear that typifications and classifications like those mentioned above can never hit off the absolute individuality of a juridical casus. They are founded on a theoretical abstraction that is only possible at a higher historical level of culture in which law-making is really in need of a scientific juridical foundation.

In any case the individualizing of the modal sphere appears to show gradations. It tends to the pole of complete subjective individuality where no two juridical facts are the same.

When this pole has been attained, we become definitively aware of the impossibility of reducing the factual subject-side of the juridical aspect to the law-side.

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True structural concepts of individuality can never be acquired by means of the current method of gradual abstraction.

The classificatory method exemplified here, in which one makes use of generic and specific concepts, remains within the cadre of the concept of modal function.

But it is no more possible to acquire true structural concepts of individuality by means of the current procedure of gradual abstraction which neglects the cosmic order of time than we can obtain theoretical insight into the modal structures of the law-spheres in this way.

Hence: In a merely functional concept of meaning-individuality, acquired by a procedure of gradual abstraction, one cannot grasp the structural individuality of reality according to its juridical aspect. Neither can the individualization which a modal aspect shows within a (typical) structure of individuality be inferred from the modal meaning-structure. Where then can we find the bridge leading from the modal meaning-structure to the immense wealth of the modal individuality of meaning?

This problem has a strong appeal to philosophy and at the same time it has great profundity.

§ 2 - The elimination of the modal meaning-individuality in the form-matter-scheme of immanence-philosophy.

The problem could not be solved, if the modal structures and the typical structures of individuality had no common root.

The old problem of scholastic rationalistic metaphysics in its ‘realistic’ attitude, viz. the question: What is the principium individuationis? is insoluble and internally contradictory. This metaphysics started from the dialectical Greek form-matter motive which prevents the insight into the radical individual concentration of temporal reality in the human I-ness.

So the dialectical problem was born as to whether individuality originates from the essential form or from the matter of natural substances. If the latter solution was accepted the form in its pure essence was conceived of as a universale which can be only individualized by matter. But this individualization contradicted its ideal character. If the first solution was chosen the form seemed also to be deprived of its ideal nature.

In Greek metaphysics individuality was depreciated in principle. If religious primacy was ascribed to the form-motive individuality was conceived of as an apeiron, which in its ultimate

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indeterminateness is of no consequence for philosophy. If primacy was ascribed to the matter-motive, individuality was conceived as a guilt which must be reconciled by the dissolution of individual beings.

Matters are entirely different in the light of our Christian cosmonomic Idea. According to the latter there cannot be in creation any dialectical tension between the universal and the ultimate individuality of things and events. The universal is inherent in the law-side, the ultimate individual is essential to the subject-side of our earthly cosmos, in a strict correlation of these two sides of creation. This correlation is maintained in the religious root of our empirical world. Consequently there can be no question of a depreciation either of the individuality of factual things and events or of the universal trait inherent in the Divine order of laws.

In Christ, the root of the reborn creation, the transcendent fulness of individuality has been saved. The ‘corpus Christianum’ in its radical religious sense is not a colourless conceptual abstraction without any individuality. Rather it is, according to the striking metaphor used by St. Paul, a religious organism in which the individuality of its members is ultimately revealed in all its fulness and splendour. Individuality, in other words, is rooted in the religious centre of our temporal world: all temporal individuality can only be an expression of the fulness of individuality inherent in this centre. However obfuscated by sin, it springs from the religious root. If the modalities of meaning are temporal refractions of the religious fulness of meaning, then the fulness of individuality must also be refracted prismatically within the modal aspects, and temporal individuality must be diversified in all the meaning-modalities.

The modal meaning-structure can only function in the temporal coherence of the law-spheres. Therefore the modal individuality of meaning can only be understood from the temporal coherence of all the modalities of individuality.

The insight into the transcendent-religious root and the immanent cosmic meaning-coherence of the modalities of individuality necessarily implies that there is not a single law-sphere that may be considered as the exclusive origin of individuality. The cosmonomic Idea also here proves to be of universal and fundamental importance to the sense in which philosophical problems are understood.

On the immanence-standpoint it is impossible to recognize the

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modal all-sidedness of individuality. It is immaterial whether in a rationalistic way individuality is degraded to a phenomenon, or, conversely, whether it is absolutized in one of its aspects (e.g., the psychical, historical, aesthetic, ethical modus) in an irrationalistic conception. In both cases the insight into the radical sense of individuality and into its true relation to the universal character of law is lost sight of.

Nominalism in its older as well as in its more modern varieties may assert that all things are individual in themselves and on their own account, and that the universal is only a subjective abstraction in the human mind. But Nominalism must do the same thing as Realism did, though in the opposite direction, viz. it must eliminate the cosmic coherence of meaning and enclose the true reality of things in certain meaning-aspects. On this standpoint the insight into the modal all-sidedness of individuality is equally impossible.

The ultimate cause which prevents immanence-philosophy from doing justice to individuality is always to be found in the dialectical character of its religious basic motives. Not only the Greek form-matter motive but also the modern Humanistic motive of nature and freedom are involved in a dialectical tension between the individual and the universal in the point of departure of the philosophic view of reality.

Thus in all immanence-philosophy the richness of meaning of individuality revealed in the modalities of the law-spheres has to suffer from a process of schematic impoverishment.

This impoverishment is most clearly manifested in the metaphysical and in the modern critical form-matter-scheme.

According to Aristotle the substantial form of a natural being, as such, lacks individuality and must be combined with matter into a σύνολον (τόδε τι). The ‘principium individuationis’ is only to be found in ‘matter’ in its quantitative potentiality¹.

Thomas Aquinas seeks the principium individuationis in a ‘materia signata vel individualis’² a conception that frankly contradicts his scholastic Christian view of individual immortality of the rational soul as form and substance. In order to save the latter he had to take refuge in the hypothesis of formae separatae that were individualized by their having been created in proportion to a material body. We have discussed the scholas-

1 Met. XII 8, 1074 a. 33.

2 Summa Theologiae III, qu. 77, 2.

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tic views on individuality in detail in our treatise on the Thomistic substance-concept and the idea of the structure of individuality, published in the review Philosophia Reformata¹. In the present context we restrict ourselves to giving a short outline of the views concerning individuality in the cadre of the critical form-matter-scheme of Kantianism.

1 Phil. Ref. 15, Year 1950, p. 66 ff.

Individuality in Kant's form-matter-scheme.

Kant seeks the seat of individuality in the sensory matter of experience. The schematized logical forms of thought only determine the latter in a universally-valid and formal way. Only a divine ‘intuitive’ intellect (Leibniz's ‘intellectus archetypus’) could know a priori the specification in the reality of nature.

Material creation of reality by the intellect and teleological creation are one and the same according to Kant. For what the understanding creates, it creates in teleological adaptation to its concepts. The view of nature as the work of a divine intellect is thus necessarily teleological.

Already in the Kritik der reinen Vernunft Kant inquires after the transcendental structure of individuality when he discusses the regulative use of the theoretical Ideas. He tries to find this transcendental law, which he calls the ‘law of specification’, on the basis of the ancient logic of subsumption, i.e. by descending from the abstract universal to the more and more specific (genus, species). Logic expresses this as the relation between the extension and the contents of concepts. The principle of specification is then viewed as a regulating rational principle of the systematic unity of theoretical thought. It requires the understanding continually to particularize its notions and to penetrate to the remaining diversities from which abstraction was made in the higher generic and specific concepts.

This transcendental principle of specification as such (Grundsatz der Varietät des Gleichartigen unter niederen Arten)² is connected with two other regulative principles viz. that of homogeneity or the principle of the similarity of the manifold (individual) under higher genus concepts, and the rule of the continuity of the forms resulting from the combination of the former two principles.

The principle of the continuity of the forms results from the

2 i.e., the rule of variety in the similar among the lower kinds.

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completion of the systematic coherence in the Idea both in ascending to higher generic notions and in descending to lower specific concepts. Then all individual multiplicities are interrelated insofar as they originate from one single highest genus through the total of all the degrees of further determination¹.

In the Krit. d. teleol. Urt. Kr. this view is worked out in detail (cf. our critical analysis of this view in Vol. I, p. 385 ff.).

Summarizing, we can say that Kant seeks the seat of individuality in the sensory matter of our experience which, in accordance with his ‘Copernican revolution’ of philosophic thought, supersedes the metaphysical ὕλη of Greek and scholastic thought. He tried to adapt this ‘empirical’ functionalistically conceived individuality to the forms of ‘transcendental thought’, by means of the regulative rational principles of homogeneity, specification and continuity. So it is understandable why, in his ethics, Kant considered all individuality as ‘empirically determined’ and why he has no room for it in the normative sphere of his practical Ideas.

1 Kr. d.r. V. (Groszh. Wilhelm Ernst Ausg.), p. 503/4.

The Baden School and the problem of individuality.

The neo-Kantians of the Baden School try to combine Fichte's philosophy of history (developed in his fourth period) with the critical formalism of the Kantian transcendental philosophy. They subsume meaning-individuality under the subjective teleological viewpoint of the method of cultural science.

Individuality as such continues to be of a sensory empirical character, originating from the ‘matter’ of experience. According to Rickert the only genuine ‘individual’ is that which occurs only once in this definite place in (sensory) space and time². But this individuality is related to super-sensible ‘values’ by the method of cultural science. Then individuality is considered as ‘empirical uniqueness related to values’, as meaning-individuality, whereas the method of natural science is ‘blind to values’ and works in a generalizing way.

What is the result of such efforts to force individuality into the form-matter-scheme?

Not only do they eliminate all genuine structures of individuality of temporal reality, but they misinterpret the modal, functional individuality of meaning as such fundamentally.

If individuality really belongs to the sensory matter of ex-

2 Die Grenzen der naturw. Begriffsbildung, p. 244 ff.

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perience, as Kant asserts, it can have no functions in the modal meaning of law-spheres. In itself it remains a meaningless ἄπειϱον. Finally it must be conceived negatively as the lack of transcendental-logical determinateness, as the limit to theoretical thought. Kant's law of specification as such remains an a priori logical rational principle. It furnishes the understanding with a regulator to determine individuality in a logical series of degrees¹, from the more general to the more particular. For the Baden School real individuality remains a sensory μὴ ὄν for thought. It is ‘empirical individuality’ which can only become meaning-individuality by means of a subjective judgment relating it to values². But then it is meaning-individuality only in the (modally indeterminate) general notion of ‘culture’.

1 ‘Abstufung’.

2 ‘wertbeziehend’.

The consequences for jurisprudence of the distortion of individuality because of its subsumption under the form-matter scheme.

In scientific thought the application of the critical form-matter scheme must lead to a fundamental misinterpretation of all modal individuality of meaning and to endless formalism.

Thus in the ‘reine Rechtslehre’ the juridical modus is reduced to an empty form of thought. Anything in the juridical field of vision that cannot be inferred from the ‘transcendental juridical categories’ is reduced to the ‘matter’ of experience. It has juridical meaning only in the abstract form of juridical thought. The form of thought itself can only be specialized logically³.

Formalism knows nothing about individualizing the modal meaning of law. The ‘form of thought’ must be conceived as ‘pure’, i.e. apart from the temporal coherence of the laws-pheres. But that which does not originate from ‘transcendental a priori thought’ is the entire inter-modal temporal meaning-structure of reality which alone makes thinking possible. Formalistic rationalism in legal theory necessarily entails the denial of a modal juridical aspect of the full temporal empirical reality. The whole subject-side of the juridical aspect is thus reduced to the law-side, which is misinterpreted formalistically.

3 Cf. Kelsen's logicist ‘Stufentheorie’ of law-making and my criticism in De Betekenis der Wetsidee voor Rechtsw. en Rechtsphil. 1926 and De Bronnen van het Stellig Recht in het licht der Wetsidee IV (A.R. Staatkunde 1934, driemaand. orgaan), p. 67 ff.

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The consequences of the form-matter schema for the view of individuality show that this schema is not capable of accounting for the real states of affairs.

When the modal meaning-aspect has been denatured to a ‘form of thought’ and, consequently, cannot be individualized, it is also impossible to account for the material diversity of ‘content’ found within the law-sphere under examination. The consequences of this misrepresentation of the modal individuality of meaning lead to the grotesque.

For example, is the individuality of Rembrandt's Nightwatch to be attributed to its sensory matter in the objective impressions of its paint? and is its proper aesthetic meaning without individuality? Or is this a question of merely sensory individuality subjectively related to a universal ‘aesthetic value’?

Is the individual difference between intercourse in marriage and that in a club something outside the meaning of social intercourse, and is it only derived from the sensory matter of our societal experience?

Must we attribute the individual character of juridical facts only to the sensory aspect of experience? And is their juridical structure as such without any individuality because it is a mere transcendental form of thought?

The problem of the modal individuality of meaning cannot be solved in the cadre of the form-matter schema. It must necessarily be ignored in such a frame of thought. This fact again proves the impotence of this schema to account for the real states of affairs with which philosophy is confronted.

§ 3 - Original, retrocipatory, and anticipatory types of meaning-individuality within the modal structure of the law-spheres.

Modal meaning must be individualized if it is ever to express itself in the fulness of temporal reality. It is not an abstract form added to individual matter and remaining intrinsically alien to it. Meaning is the creaturely mode of being, and possesses the fulness of individuality in its subjective religious root.

The process of individualization, however, does not affect the fundamental functional structure of the modal aspect. This structure is determined by the cosmic temporal order, and is the very condition of all modal individualization. For the modal

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meaning-structure maintains the functional coherence in all modal individualizations.

A modal aspect thus individualizes itself only within its structure, which is fitted into the inter-modal meaning-coherence of cosmic time. It is not exhausted by this structure.

The pole reached by modal individualization in the full temporal reality on its subject-side, is the complete or a-typical individuality of the modal meaning. This individuality remains controlled and determined by the laws of the sphere within its fundamental structure.

The modal structures of the law-spheres with their original meaning-nucleus, their retrocipatory and anticipating moments, continue to express themselves in the individualizing of modal meaning. In the third Volume it will appear that in this very state of affairs the inner coherence between the modal structures and the structures of individuality is clearly revealed.

In the first place we distinguish the original or nuclear types of modal meaning-individuality. As types they are not founded in original modal types of earlier law-spheres. As an example one may consider the sexual type of propagation and the blood-relationship connected with it in the organic biotic aspect of experience. It is true this biotic type necessarily has its substrata in physical-chemical, kinematic, spatial and numerical types. But these substrata are no original types of modal individuality. They are only constituted in their functional anticipation of the sexual biotic type. We will call them anticipatory modal types. They are not to be found in the foundational direction of time in their respective law-spheres. The nuclear type of individuality to which they refer lies outside of their own modal sphere.

On the other hand the typical juridical relations between parents and their children as well as their typical moral relations of love are doubtless biotically founded modal types, in which the general modal meaning of the juridical and that of the moral aspect are individualized. It is undubitable that as modal types they lack an original character in these aspects, though, as such, they have certainly a typical juridical and ethical meaning. The typical legal competence and obligations and the typical moral duties implied in these modal types can never be reduced to the typical biotical blood-relationship in which they are characteristically founded.

In the psychical law-sphere sexual feeling, the feeling of blood-relationship etc., are undoubted biotically founded types of feeling.

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Anticipatory modal types of individuality are to be found in a rich diversity in the numerical, spatial and energy-aspects. Physics and chemistry have detected many typical numbers in nature which are only to be explained from their anticipatory coherence with typical physical and chemical relations. As examples may be mentioned the typical constant h in quantum-mechanics, the typical numerical relations between the particles of the chemical elements, the typical atomic weights, the so-called Loschmidt-number N¹ etc. In biology we are confronted with typical numerical relations between the particles of the cell, the typical numbers of chromosomes etc.

Anticipatory types of individuality in the spatial aspect are to be found in great diversity in the spatial forms of living beings which can only be explained from their anticipatory coherence with typical organizing bio-impulses.

Crystallography has detected 32 possible spatial form-types of crystallization qualified by physical-chemical effects.

We shall return to these interesting states of things in the third Volume.

In the energy-aspect we meet with many anticipatory modal types, related to original modal types in the biotic or the psychical aspect. We refer, for instance, to the typical albumen formations of the different biotic species.

In general it may be said that in the mathematical aspects we find only anticipatory types of modal individuality. The reason is that no single structure of individuality is typically qualified by a numerical, a spatial or a purely kinematic modal function.

1 This is the typical number of molecules in a cubic centimetre of gas at a temperature of 0 degrees and a pressure of one atmosphere (760 mm Hg).

The subject-object relation in the modal types of individuality.

In the psychical law-sphere there is, e.g., an original type to be found in sensory phantasy, which in a restrictive function, is also seen in animal psychical life. Even in this ‘undisclosed meaning’, and although rigidly bound to the organic vital function, this original type of sensory feeling-activity is not at all typically founded in the biotic function. Rather it is exclusively characterized by the internal psychical fact that the sensory function of imagination produces its phantasms in merely intentional objectivity, entirely apart from the sensory objectivity of real things.

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In the opened structure of this modal type all subjective types of aesthetical projects are founded. This does not alter the fact that the objective works of art in which these projects are realized, have typical objective foundations. For the subject-object relation plays an essential part in the modal types of meaning-individuality.

Take, for instance, the objective modal-aesthetic typicalness of a picture in comparison with that of a sculpture, or the objective juridical types of movables and immovables, or the subjective-objective typicalness of the servitutes praediorum rusticorum as compared with that of the servitutes praediorum urbanorum etc.

These states of affairs, however, cannot be accounted for by the theory of the law-spheres alone. We now touch a point where this theory naturally passes into that of the typical structures of individuality.