Academic journal article Asian Social Science

Epistemological Analysis of Experience and Legal Experience: Non-Classical Stage

Academic journal article Asian Social Science

Epistemological Analysis of Experience and Legal Experience: Non-Classical Stage

Article excerpt

Abstract

The article presents an attempt to carry out the epistemological analysis of such notions, as experience and legal experience, central for philosophy and law. The classical philosophy interprets the experience in epistemological context - as the sense knowledge, providing the direct givenness of this object, i.e. as a result of human passive perception of the world. To reveal the integrity of experience, it is necessary to refer to the works of researchers of the non-classical stage in the philosophy and law, as the orientation at reflection, recovering subjectivity, takes place at this stage, as well as at indivisible integral inner experiences. As a result, we get the integrative understanding of experience, involving both subjective and objective elements.

Keywords: experience, legal experience, phenomenology of law, legal hermeneutics, philosophical hermeneutics, phenomenology, positivism, non-classical stage, epistemological analysis

1. Introduction

"Experience" presents a notion, foundational for different philosophical sects (Myasnikova, 2004). Raising such questions, as "what is knowledge?", "how do we cognize?" the researcher faces the problem to define the experience, the empirical knowledge, the experiment etc. Despite such frequent appeal to experience, many thinkers refer it to the most difficult notions, with which they have to work. For instance, H. G. Gadamer, analyzing the experience relatively the sciences of spirit, wrote: "In my opinion, the notion of experience, no matter how paradoxically it would sound, is referred to the number of the least clear notions, which we have" (Gadamer, 1988).

The development of notion "legal experience" has an important philosophical-methodological significance due to several reasons. Firstly, when introducing this notion in to modern humanitarian investigation, it is possible to consider the world of law (or legal reality) from a new perspective. The legal experience can be the instrument to consider the whole number of legal and historical events. For instance, the phenomenon of genocide can be presented in new light, if to consider it through the prism of specific legal right. Secondly, having the detailed notion, it is possible to analyze complex historical events with subsequent distinguishing of not only legal facts and practices, but also legal experiences, emotions and ideals. If we take the genocide again as an example, or if we take any historical event, which is reckoned in this phenomenon, it is possible to note, that subjective experiences of participants are frequently not taken into consideration. As a result, at the output, we get a "constructed fact", different from the reality and not put into practice.

Under this article, we will refer to the works of researchers of non-classical stage in the philosophy and law, as the orientation at reflection, recovering subjectivity, takes place at this stage, as well as at indivisible integral inner experiences. It is the non-classical investigations, where the experience is considered in its integrity. It is typical both of philosophical and legal investigations.

2. Procedure

The consideration of notion "experience" in philosophical investigations takes a significant place. It is rooted to the antique philosophy (sophists, Platon, Aristotle). It becomes a stumbling rock in the dispute of rationalists and empiricists. The inner experience is a subject of understanding and comprehension in the philosophy of romanticism (F. Schlegel, Novalis and others). The experience and its manifestations take the central place in "philosophy of life" (V. Diltey), in Marxism (Marx & Lenin, etc., n. d.), in different schools of positivism, neopositivism and post positivism, in hermeneutics (Betty & Gadamer, n. d.), in American pragmatism (J. Dewey). The experience is interpreted in a new light in phenomenological studies (F. Brentano, E. Husserl, I. Binswanger), in different theories of practices and frames (Latour, Foucault, Goffman, Garfinkel, & Schütz, et al. …

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