ثبوت و اثبات

APPLICATION IN LAW OF NOUMENON / PHENOMENON DISTINCTION

Being part of a more comprehensive study over the fundamentals of evidence in law, this Article is aimed at exploring the distinction between two notions. These are referred to in Iranian legal jargon as "soboot" or status of being and "esbat" or act of proving. What is the relation between having a right and proving it in a court of law? Does losing a case for example due to failure to prove a damage, mean that there has not been actually a right to relief? Obsessed with such questions, the Article goes on to equire into the meaning of terms like judgment, justification, evidence and prove and their emanation from the process of knowledge or perception. This leads to a brief epistemological review, introducing basic claims and criticism of realism, idealism and phenomenology. In the Islamic thinking tradition there are two major schools called Takhtaeh and Tasvib, whose disagreements are mainly derived from their emphasis on "soboot" or "esbat" respectively. Reasons for such conclusion are put forward, collaborated with examples of their basic claims. Moving to another era , similar debates are detected in legal theory and the arguments from proponents of legal positivism as opposed to natural law. While natural law suggests that there are basic and eminent rules whether we acknowledge them or not and they are to be conformed with by legislation, legal positivism does not recognize such rules, or at least does not regard them as law. Therefore, according to legal positivism there is no "already existing law" (comparable to noumenon) other that the laws enacted by competent authorities (which can be called phenomenon). At the end, it is concluded that although existing of right is not the same as proving it, the former being dealt with mainly in substantive laws and the latter forming part of procedural rules; however, provability is an essential characteristic for any given legal right. That is why it would be useless to speak of right, assuming that there will absolutely be no way to have it proved.