Immanuel Kant describes phenomena as that which appears to humans or our experiences. Kant describes noumena as the things in themselves which make up reality. According to Kant, humans are incapable of knowing noumena. While we can experience phenomena through our senses, noumena is a “higher reality” unknowable. These two distinct principles are part of Kant’s philosophy of knowledge, and they are also principles that the law has struggled with.
In discussing the tension between these principles about the law, it is necessary to examine the purpose of the law. Law is mutually agreed upon moral strictures enforced by the state’s power to establish social order. Some people may recoil from the phrase “moral strictures,” and it is undoubtedly true that moral laws such as laws restricting drug use, prostitution, etc., are based on moral judgments. While these laws are controversial, even the most uncontroversial laws are based on honest review. Somewhere along the line, humans decided that murdering another human being with malice aforethought was generally not desirable (although this realization hasn’t stopped wars from breaking out throughout human history). Even mundane speeding laws are based upon moral judgments. Driving 70 miles an hour instead of 65 is not inherently wrong by itself, but going too fast tends to endanger others (which we have decided is a bad thing).
Of course, the problem this presents about Kant’s theory is that fallible humans make these moral judgments. Kant believed that a higher power made these moral judgments but that humans were left to interpret them through their own experiences. Kant thought that God’s moral laws were noumena or reality. Since humans were incapable of directly knowing noumena, they were forced to come up with their best approximation through phenomena or their experiences. The first problem Kant’s theory of phenomena and noumena creates for the law is the problem of inconsistency. By definition, noumena should be unchanging since it is a higher reality. Kant believed that noumena were consistent since it was based on God’s natural law. But of course, our human laws have changed throughout human history. As our phenomena or experiences change, our perception of the “truth” also changes.
There are countless examples of laws changing, but the rise and fall of Prohibition in the United States is an excellent example since it happened in a short time of fewer than 15 years. A coalition of progressives and religious fundamentalists experienced what they felt were the problems of excessive alcohol consumption. As a result, they got a constitutional amendment passed prohibiting the sale or manufacture of liquor in the United States. This law caused the country to experience a different set of phenomena – the rise of gangsters, bootleggers, and general disrespect for the law. These experiences caused people, including many that had earlier supported Prohibition, to change their minds and repeal the amendment.
What is noteworthy about this example is how people discarded a law based on new phenomena. If anything, this demonstrates the inability of humans to discern noumena. It is for a later generation to change laws passed decades or centuries ago. People living today have vastly different experiences than people living hundreds of years ago, so it is less surprising when these laws are repealed (indeed, it is surprising that they are not repealed more often). When people pass a constitutional amendment (which requires a vast level of support in the United States) and then repeal it in less than 15 years, this demonstrates the speed with which people’s phenomena can change. This is very convenient for society as a whole, but it makes things more difficult for the philosopher attempting to discover higher truths or noumena.
The struggle between phenomena and noumena also creates another problem for the law. It serves to undermine the moral credibility of the law. Virtually all laws are defended by their supporters because they are morally correct (though, of course, many may not be). Few legislators claim that a piece of legislation should be passed simply because narrow majorities support it, without regard to the law’s merits. Practically speaking, it is difficult to convince a majority to support a piece of legislation without some argument that the law is somehow “correct.” But if Kant’s theories of phenomena and noumena are correct, humans can’t know these higher truths. Where is the justice in the law if it is based on the narrow experiences of fallible humans?
When put that way, this is a depressing question, so it is probably best to end the discussion on a positive note. Even though Kant believed that noumena were unknowable for people, he felt that the search for these higher truths was necessary to restrain the passions of humans. If discerning noumena is impossible, throwing up our hands and doing whatever our heart desires is not much of a solution. Kant felt that the concept of noumena was important as a limiting principle. After all, humans do know what their experiences or phenomena have been, so if not for the existence of noumena, humans would know everything. Since humans do not know everything, attempting to discover noumena creates some higher authority for the law. While imperfect, this is vastly preferable to the mere whims of majorities in democracies or the whim of a dictator in totalitarian countries.