Wysgerige kanttekeninge by H.J. van Eikema Hommes se regsbeginsel-teorie

Abstract

Philosophical notes to H.J. van Eikema Hommes’ theory of legal princples
Herman Dooyeweerd’s transcendental critique of theoretical thought paved the way for gaining a new understanding of the dynamic meaningstructure of the juridical aspect within the coherence of man’s experiential world. The transcendental understanding of the juridical aspect makes it possible to demonstrate that the structural configuration of this aspect can never be grasped in a static conceptual formula but that it can be approximated only by the dynamic method of successive analysis of its structural elements, guided by a theoretical idea of law. The fundamental concept of law turns out to be a transcendental empirical method of inquiry into the fundamental structure of the juridical aspect. In addition to these ‘retrocipatory’ analogies there are also “‘anticipatory’ analogies in the modal structure of the juridical aspect. These anticipatory analogous moments only reveal themselves when legal life is being disclosed in the direction of legal-ethical principles, thereby disclosing, deepening and refining legal life in different legal systems”. In addition to the concept of law and the idea of law, Hommes distinguishes the respective modal and typical jural principles, and the accompanying constitutive and regulative principles in man’s horizon of legal experience. Hommes’ theory of legal principles enables him to steer clear of the false dilemma  posed by the conflicting views of natural law theory and legal positivism respectively. Furthermore his theory of legal principles makes a valuable contribution to the ongoing debate about ideology critique in the science of law.