Adolf Reinach, the founder of phenomenological philosophy of law, trained in both philosophy and law. In 1904, he completed his doctoral thesis on the concept of cause in criminal law under Theodor Lipps (1851--1914) in Munich; subsequently, he completed his legal studies in Tübingen. In 1909 he submitted his Habilitation under Edmund Husserl (1859--1938) in Göttingen and was appointed to a position in philosophy. He quickly became a central figure in the phenomenological movement; some students considered him more important than Husserl. Reinach was one of the original coeditors of the Jahrbuch für Philosophie und phänomenologische Forschung, and his most important work, "The Apriori Foundations of Civil Law," appeared in the first volume of that journal. As Husserl notes, he was one of the most promising young philosophers in Germany, but unfortunately that promise was cut short by World War I: Reinach was killed in Flanders in 1917.

In "The Apriori Foundations of Civil Law," Reinach examines basic concepts in various areas of private law: personal rights and obligations and their origin in the promise; real rights, especially property; and powers found in representation, mortgages, and liens. His theory of "social acts," which forms the basis of his analysis of many legal concepts, anticipates J.L. Austin's (1918--1960)and John Searle's (1932-- ) work on speech acts and may even surpass it in many regards.

Reinach's a priori has ontological priority and not merely logical or cognitive precedence. In his realist ontology, there are legal structures (Sachverhalte, or states of affairs) that are a priori, universal, timeless, and intelligible. They have the same ontological status as mathematical concepts---such as the various figures of Euclidean geometry or simple arithmetic truths, e.g., 2 × 2 = 4---which humankind discovered but did not invent.

The phenomenological method makes possible the discovery of the a priori foundations of law. According to Reinach, there is too much variation in the positive laws adopted by different societies over time to come upon the foundation of law through induction. Instead, he claims these foundations are intelligible and that people can even intuit them directly.

Reinach shows, for example, how the study of the a priori content of the promise reveals its essence. He rejects any notion of reducing the promise to a declaration of intention because the latter creates neither rights nor obligations. Instead, he adopts a very intuitionist stance, claiming that the pure intuition of the essence of a promise reveals the promise as a social act that addresses the future conduct of the promisor towards the promisee. This, when combined with what is revealed by the pure intuition of the a priori content of renunciation, yields the following propositions: the promise is irrevocable; the rejection of the promise extinguishes the personal right and obligation that it created; performance terminates the obligation; the obligation may be assigned; but the personal right may not.

Reinach claims that his phenomenological method of analysis of the a priori should be generalized and applied to other areas, such as criminal, constitutional, and administrative law.

The statements which express the a priori foundation of law are neither tautologies nor statements based on experience, but are precisely like Immanuel Kant's synthetic a priori statements in pure mathematics. Reinach criticizes Immanuel Kant for limiting unnecessarily the sphere of the synthetic a priori, which he expands to cover also the a priori states of affairs which provide the condition of possibility of positive law.

Although Reinach criticizes legal positivists for being incapable of explaining the foundations of law, he denies that his work is a new version of natural law. Unlike natural law, his a priori is not rooted in human nature. Just as the truth 2 × 2 = 4 exists independently of human nature, so do the a priori foundations of law.

Reinach's a priori legal concepts provide the possibility of positive law, but they need not be realized in actual laws. As he notes, it is possible for governments to adopt laws which do not accord with the a priori. Although positive law cannot do what is impossible---such as place the promisee under an obligation to the promisor---which would lead to nonsense, nor can it require the necessary; it can differ from what its a priori foundation requires.

In his brief career, Reinach started a program of research which went beyond the philosophy of law. His complete works (published only in 1989) include articles on William James, Immanuel Kant, David Hume, Paul Natorp, an introduction to philosophy, a paper on phenomenology, and works on the concept of number, the essence of movement, and a phenomenology of religion. Although many authors have noted that despite the excellence of his work and the clarity of his writing, Reinach has not been much read, his main influence---until the recent reawakening of interest in his more general philosophical concerns and his theory of "social acts"---has been in philosophy of law.

References

Brettler, Lucinda Ann Vandervort. The Phenomenology of Adolf Reinach: Chapters in the History of Knowledge and Legal Philosophy (thesis). Montreal: McGill University, 1973.

Burkhardt, Armin. Soziale Akte, Sprechakte und Textillokutionen. A. Reinachs Rechtsphilosophie und die moderne Linguistik (Social Acts, Speech Acts, annd Textual Illocutions. A. Reinach's Legal Philosophy and Modern Linguistics). Tübingen: Max Niemeyer Verlag, 1986.

Gardies, J.-L. "La philosophie de droit d'Adolf Reinach" (The Philosophy of Law of Adolf Reinach). Archives de Philosophie du Droit 10 (1965), 17--32.

Husserl, Edmund. "Adolf Reinach." Trans. Lucinda Vandervort Brettler Philosophy and Phenomenological Research 35 (1974/1975), 571-574.

Mulligan, Kevin (editor). Speech Act and Sachverhalt. Reinach and the Foundations of Realist Phenomenology. Dordrecht: Martinus Nijhoff, 1987.

Reinach, Adolf. "The Apriori Foundations of the Civil Law." Trans. J.F. Crosby. Aletheia 3 (1983), 1--142.

________. Sämtliche Werke (Complete Works). Critical text edition. 2 vols. Ed. Karl Schuhmann and Barry Smith. München: Philosophia Verlag, 1989.

Zelaniec, W. "Fathers, Kings, and Promises: Husserl and Reinach on the A Priori." Husserl Studies 9 (1992), 147.