This paper proposes a phenomenological approach to the essence of law. Discussions to address the core question about the essence of law—“What are the essential features without which a norm cannot be called law?”—have been ongoing since the time of Plato. On the one hand, legal theorists in the West have provided universal definitions of law. On the other hand, anthropologists such as Malinowski have relativized the West-centric view of law. Following these anthropological studies, Brian Z. Tamanaha has recently advocated legal pluralism. It admits a plurality of the concept of law and argues that there is no universal essence of law beyond all cultural contexts, fueling debates over whether or not law has an essence, what it is like if it does, and whether it could change depending on cultural contexts.
Although these debates are meaningful, an important methodological question remains untouched, “How can we discuss the essence of law?” When theorists—whether legal theorists or anthropologists—discuss what law is, they seem to assume that it makes sense to discuss the essence of law, positively or negatively. However, how can they discuss the essence of law in the first place? Specifically, what kind of mental act enables them to conceptualize, discuss and "reimage" the essential features of law?
The paper refers to Edmund Husserl’s phenomenology to address these methodological questions. According to him, we can intuitively abstract the essential features of objects given to our consciousness based on a mental act called “intuition of essence.” Applying this to legal theory, the paper aims to clarify how to conceptualize, discuss and “reimage” the essence of law. It concludes that this methodological clarification reveals a new perspective on the question of what law is and the anthropology of law.
