Law as Mnemonics: The Mind as the Prime Source of Normativity
European Journal of Legal Studies, 2008, 2, 1, 143-182
NEUWIRTH, Rostam Josef, Law as Mnemonics: The Mind as the Prime Source of Normativity, European Journal of Legal Studies, 2008, 2, 1, 143-182 - https://hdl.handle.net/1814/10148
Retrieved from Cadmus, EUI Research Repository
There is little doubt that drastic changes in our environment based on an ever faster pace of technological innovation have taken place during the last century. It is submitted that these changes also affected our modes of perception which again had implications for our understanding of technology’s underlying processes. In the legal sphere, one may therefore ask whether these changes in perception are not threatening to undermine any serious efforts of regulation, especially when considering the trend that we currently appear to produce a growing number of legal instruments of a deteriorating quality. The problems this trend entails have certainly contributed to the emergence of a cognitive science of law. Such cognitive science of law marks an attempt to shift the interest in legal research from the periphery closer to the centre from which law and normativity truly emanate, namely, the human mind. Hence, as a deeper source of normativity, the mind and not the space should guide our central interest in why, where and how legal norms are being formulated and applied. Indeed, most of the technological developments of the past suggest a trend towards a widening of our perception and understanding. This constant widening and deepening of our understanding suggests the prevalence of a kinetic process rather than a static state of being. In the sphere of law, these technological developments should remind us that is primarily at the level of the mind that these questions occur and not on the one of a given territory. In such context, territoriality, sovereignty and other traditional legal concepts can thus be regarded as a mere projection of the mind into the time-space framework in order to fill the void created by the insufficient understanding of the changing nature of both our environment as well as ourselves. It is the change that makes us uncomfortable. In the legal realm this changing nature continues to be addressed by centuries-old and nowadays widely obsolete concepts. Instead of rethinking some of the basic foundations of law, we continue a fuite en avant characterised by a tendency towards overregulation and the adoption of bad quality instruments. As a possible response to the challenges deriving from these changes, this article supports the understanding of the mind as the primary source of normativity, i.e. the source from where the urge to act or not to act but also to feel or to not feel and to believe or not to believe derives. In this role, law comes to the help of the mind in the form of so-called “mnemonics”, i.e. a system of devices that serves to assist the memory in the process of handling our perception of change and change of perception. It is aimed at broadening our “scientific understanding” by transcending the static lines on which our current scientific paradigm is built, as will be exemplified by a short excursus into the legal categories separating the individual and the collective and the one of life and death.
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