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The Cognition of Facts

In document THEORY OF THE JUDICIAL PROCESS (Pldal 40-45)

2. THE FACT AND ITS APPROACH IN PHILOSOPHY

2.2. The Cognition of Facts

In sum, the notion of facts refers to cognition that can lead to the formulation of a true statement.

In the context of the present topic, cognition as ideally con-ceived has at least three relevant features: it is, in point of prin-ciple, (1) not prejudiced by any particular interest or purpose; it is (2) not bound by any paradigm; it is (3) open to any contribution.

(Ad 1) As to its freedom from interference motivated by parti-cular considerations, it seems to be a justified claim that cognition, isolated from the heterogeneous effects and influences of the practical sphere, be directed exclusively at doing its job. That is, the theoretical shall be separated from the practical. Such a claim is inherent in terming cognition "reflection", and its reality, "corre-spondence". Or, it suggests a more or less mechanical and, in any case, clearly reconstructive process which happens to materialize in the human body as within a sensation-processing system. Describing cognition as understanding, instead of reflection, is apparently a neo-Kantian characterization, which detects value aspects in the knowledge of human affairs.1 5 However, as it is known from the Gestalt psychology, human response to any situation is a whole, which cannot be divided into parts without destroying that whole.'6 Modem epistemology considers previous knowledge that substantiates, shapes, and also delimits all kinds of cognition as a

1 5 Cf., e.g., RICKERT (1899); SIMMEL (1918); WEBER (1922).

1 6 Cf., e.g., KOFFKA (1935).

specific world concept to be a part of the whole.1 7 Whatever object it has, cognition will be built upon and substantiated by cognition. Making use of any previous knowledge presupposes its interpretation and thereby leads to the topic of hermeneutics.

(Ad 2) As to the paradigms unbound, I have in mind the fact that the bounded paradigm of the non-revolutionary phases of scientific development'8 means not simply the presence of a set of rules or axioms codified but the predetermination of the whole process by ordering principle(s) embodied by "universally recognized scientific achievements that for a lime provide model problems and solutions to a community of practitioners".1 9 It is the case of clusters sug-gesting frameworks and procedures for cognition, running from problem-sensitivity, through the ways of the search for paths of solution, to its ultimate proof and testing; clusters that both organize the process and provide final criterion for its result to be acknowl-edged as being within (by belonging to) the system. That is to say that science becomes actualized in human cognition and, in its turn, is also challenged by it. Cognitive processes end by either throwing within its framework or breaking through it. That is to say, para-digm is not a factor of predetermination but an ordering principle, the actual impact of which (i.e. the acknowledgment of the result reached as being within the system) can only be assessed by an ulterior reconstruction, that is, posteriorly.

Therefore, both in point of principle and as a matter of fact, there is large enough room for paradigms to compete. Albeit language as the instrument of notional identification "can achieve approximation ai most", i.e. do its job through the endless series of classifying generalizations,2 0 cognition is aimed at describing its subject and not simply pigeonholing it into one of a series of pre-codified

cat-1 7 Cf., e.g., POLANYI (1958).

1 8 Cf. KUHN (1970), Preface and ch. 5; as well as, in the context of legal science, AARNIO (1984).

1 9 KUHN (1962), p. viii.

2 0 LUKACS [1971] II, p. 195.

egories. In other words, cognition is ideally meant to be free from any bonds. That is, the fact that it remains within a system of paradigms only proves that all the theoretical doubts that may have been raised about its result have finally been resolved. And until the set of paradigms is able to function as a system, it serves as a framework to manage tensions and not in order to prevent them. It makes it possible equally that old paradigms will be reinterpreted2 1 and new paradigms developed and/or introduced, until they reach the point to dissolve the entire system.2 2 And it is to be added that the paradigm is a cluster, that is, a continuum displaying density in certain direction(s). Accordingly, it can manage tensions between competing, moreover, conflicting trends; it can manage the clash of subsystems with parts crossing, moreover, negating one another.

(Ad 3) As to the freedom of contribution to cognition, there is no limitation on whom, when, where, and in which way it can be done.

Of course, socialization as manifest in the continuous re-establish-ment of conventions is present in cognition in all its more-establish-ments from the way of how to conceptualize a problem, through the way of how to link it to an already known paradigm and how to argue for and against it, to the way of how to build a theory from it. Or, even the search for truth can be interpreted as a game played by the rules of its own;2 3 in consequence, each and every statement of fact from everyday communication to scientific conceptualization is normative in the weak sense,2 4 regarding all this not so much as an unsur-passable limit for, than as the medium of, cognition.2 5

2 1 Cf., e.g., SCHNELLE and BALDAMUS (1978).

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The dialectics of contradiction and unity with tensions leading to a change of systems is well described, in respect to the paradigms of basis and superstructure, by MARX [1859], pp. 182-183.

2 3 BANKOWSKI (1981), p. 265.

2 4 A remark I owe to consultation in 1987 with Professor Robert BROWN, History of Ideas Unit, The Research School of Social Sciences, The Australian National University, Canberra.

2 5 E.g. The Social Production (1977).

Or, the circumstance that social activity is preconditioned by and, at the same time, results in socialization defines conven-tionality as the sine qua non factor of social activity. All in all, human cognition is both shaped and delimited by socialization, albeit it is by far not exempt from revolutionary changes in consequence of modified conventions, reinterpreted paradigms or transcended bonds. All this is to say that cognition is a part of human practice, subject to common determinations. The material and the social world of man is therefore also a product of his cognition, man and his nature being at the same time the product of the world he has created.2 6

All what has been set out includes the acknowledgment that, first, there is no cognition in itself, as it could only be nothing but the reproduction of totality in its totality. Maybe it is sufficient to remember the mechanism of the establishment of elementary facts (purposeful selection, typification, generalization, ideation, meta-phorical linguistic expression, balancing between the taxonomy of direct observation and types), the paradox of experimentation (presupposing selection, by decomposing artificially what has been a functional unit, and then, by throwing light on the decomposed component through shadowing its environment), and also the nature of relevancy, i.e. of the attachment of individual problems to anything known, identified as a procedure of problem-solving (in its original sense, relevancy is nothing else but the elevation of a thing.out of its environment in order to see it, which in its turn corresponds to the Greek notion of "the truth", i.e. of talethe~s),21 in order to state: there is no cognition in abstract generality but only and exclusively one proceeding in given, individual contexts, picking out single components of a natural unit, within the system of fore-knowledge, "stemming from the predetermined goal of cognition".2 8

Cf., e.g., ISRAEL (1972a), p. 79.

KENDAL (1980), pp. 2, 3, 12, 2 1 - 2 2 . LUKACS (1963), p. 164.

In consequence, the system of paradigms, their context and goal are varied (and variable) to an extent defying predetermination. One cannot even set the level to qualify anything as a fact "elementary"

or "atomic" either. For everything can also be described and construed in another way. And what is a "fact" for me does not necessarily "exist" for anybody else.2 9 A bullet, the edge of a knife or a needle may equally be described by the terms of chemistry, physics, or molecular physics. Description of weight, solidity, hardness, or impenetrability is not incompatible with describing the same object as an abnost empty space, only sparsely filled with some elements. For totality is a concept, and not a phenomenon. It is to denote and characterize something that exists. Any notional component of the totality is also a concept, and not a phenomenon.

It is to denote and characterize something that exists within this totality. What is denoted and characterized in one way can be denoted and characterized in another way as well. Differing ways of denotations and characterizations do not necessarily exclude one another; cognition is just as much infinite as its subject, both intensively and extensively. Albeit, in point of principle, I may project the (only notionally conceivable) sum total of facts making up the world;3 0 but even by that I cannot reconstruct it; the only thing I can do thereby is to model its conceivable structure notionally. This is why cognition, no matter how much its ambition is nothing but a reflection, is of a creative character and signifi-cance.

And it is to be added to all this that, secondly, "cognition" does not exist in a pure fonn, either. For contrasting theory and praxis is nothing but setting extreme points for conceptual differentiation in analysis. In reality, cognition is, albeit distinguished from, not completely detached from everyday consciousness; and praxis is the outcome of knowledge. To put it another way, with its heterogen-eous structure, everyday life is the basis and end result of all

A statement also due to Professor BROWN.

E.g. WITTGENSTEIN (1921), par. 1-2.

human endeavours, including man's homogenizing activities (reli-gion, law, science, arts, etc.) as well. In a constant flux, all these are to transcend one another, and it is their total motion built and superimposed upon it that shapes man's world.3 1 Obviously, in addition to unilateral moves, it involves interaction as well, in the course of which both the heterogeneous sphere can conflict with each and every of the homogeneous spheres, and each and every of the homogeneous spheres, both with its own components (e.g.

law with its own competing strata,3 2 or science with its own individual trends) or with any other objectified spheres (e.g. law with science,3 3 or even the law's own projection with the pro-fessional ideology it is built upon).3 4

In document THEORY OF THE JUDICIAL PROCESS (Pldal 40-45)