By SHIDARTA (October 2026)

The relationship between the subject (the interpreter) and the phenomenon (the object being interpreted) has long been a matter of debate. In attempting to understand a phenomenon, the subject risks failing to grasp the object because their understanding is already framed by their own assumptions. Phenomenology recognizes this danger and therefore invites us to “suspend” or “bracket” our assumptions so that the phenomenon itself can appear as it is, without our imposing theories or labels on it too quickly.

Several names are indispensable to any discussion of phenomenology, including Edmund Husserl, Martin Heidegger, and Maurice Merleau-Ponty. I would like to invite readers to explore the complexities of phenomenological thinking when applied to legal phenomena.

These three thinkers place different emphases on the relationship between the subject and the phenomenon. Husserl places consciousness at the center of phenomenological inquiry, emphasizing phenomenological reduction to reveal how phenomena appear and how their essences can be understood through conscious experience. Heidegger shifts the focus from transcendental consciousness to human existence as Dasein, which is always characterized by being-in-the-world, has historicity, and understands phenomena through a pre-understanding formed through engagement with the world. Merleau-Ponty, in turn, places particular emphasis on the lived body as a constitutive dimension of experience, showing that human perception and understanding already operate pre-reflectively through bodily engagement with the environment.

Rather than leading us toward a fuller understanding of phenomena, phenomenology may appear to draw us into ever-deepening subjectivity. It may consequently be understood as supporting relativism. In legal reasoning, an outlook that emphasizes subjectivity and relativity is certainly nothing new. The sarcastic suggestion that a judge’s decision may be influenced by what the judge ate that morning—breakfast jurisprudence—clearly illustrates this tendency.

In response to this charge, we can imagine phenomenologists arguing that phenomenology does not, in fact, promote subjectivism or relativism. It does emphasize the subject’s role in understanding phenomena, but this does not necessarily make such understanding subjectivist. Husserl seeks to identify essential structures of experience that can be justified intersubjectively. Heidegger emphasizes the historicity of understanding, while Merleau-Ponty emphasizes the situated nature of bodily perception. All three reject the idea that phenomena can be fully understood through observation detached from the conditions of human experience.

Phenomenology would further maintain that perspectivity—having a particular viewpoint or standpoint—is not identical to relativism. The fact that phenomena appear differently to different subjects should not be taken to mean that all understandings are equally true. If a person is 1.6 meters tall, that measurement remains 1.6 meters. What differs is how that height is perceived and understood. Some may describe it as short, average, or tall. These perceptions should not automatically be regarded as equally correct. Phenomenology seeks to explain the structures of experience and understanding, rather than merely showing that judges are influenced by their psychological or physiological states.

To bring this discussion into the realm of legal philosophy, let us imagine appointing Husserl, Heidegger, and Merleau-Ponty as three judges hearing an unusual case. The case concerns an attendant charged with negligence for failing to place a clearly visible “Caution” sign at a narrow passageway whose safety was his responsibility. The passageway has a clearance of 1.70 meters. One day, a person who is 1.87 meters tall walks through it. With no warning sign in place, the person strikes their head hard enough to sustain an injury. The attendant is subsequently prosecuted. Knowing that the judges are phenomenological philosophers, the defendant prepares the following defense:

Your Honors,

I am charged with negligence for failing to place a warning sign at a passageway with a clearance of 1.70 meters, resulting in a head injury to a person who is 1.87 meters tall. However, I question whether the absence of a warning sign, in itself, establishes my negligence.

First, addressing Your Honor Judge Husserl, I would like to recall that consciousness is always intentional: it is consciousness of something. The passageway was not a concealed object. It was present before the injured person’s consciousness and available to perception. If that person failed to notice its height, must I bear responsibility for their failure to direct their attention toward that object?

Second, addressing Your Honor Judge Heidegger, I would like to recall that human beings are always in the world and bring with them a pre-understanding shaped by their historicity. A person who has lived with a body measuring 1.87 meters in height must have experience interacting with various spaces, doorways, and passageways. Such experience forms a practical understanding of how to move through the world. Why should I be held responsible for that person’s failure to draw on a pre-understanding formed through their own life history?

Third, addressing Your Honor Judge Merleau-Ponty, I would like to invoke the concepts of the lived body and motor intentionality. Does the human body not possess a pre-reflective capacity to adjust its movements to its surroundings? The injured person did not need to calculate mathematically the difference between their height and the passageway’s clearance. Their body should have been able to perceive the spatial constraint and duck spontaneously. If that capacity failed to operate, why should their failure to adjust their body be considered my fault?

Your Honors,

I am not suggesting that human beings cannot have accidents. I am simply saying that the three phenomenological theories developed by Your Honors show that human beings are not entirely passive recipients of stimuli. They possess intentional consciousness, historical pre-understanding, and bodily perceptual capacities through which they engage with their surroundings.

If every failure to perceive and adapt to one’s surroundings must be attributed to someone else, are we not disregarding the human capacity to act as an active subject responsible for one’s own actions?

I therefore ask the Court not to equate the occurrence of an accident with proof of negligence. The prosecution must first establish that I had a legal duty to place a warning sign, that I breached that duty, and that the breach can legally be attributed as a cause of the injured person’s head injury.

I respectfully request an acquittal.

Using a prompt setting out these three emphases and the broad outlines of Husserl’s, Heidegger’s, and Merleau-Ponty’s thinking, I then asked my imaginary discussion partner—an AI-powered machine—to assume their roles. It produced the following three responses. In the concluding part of this article, I will leave my discussion partner behind and offer my own observations on the judges’ views.

1. Judge Husserl

Central idea: consciousness is not identical to actual knowledge; the intentionality of consciousness and the ways in which phenomena appear.

“Defendant, you are correct that consciousness is always consciousness of something. However, you are mistaken in concluding that whatever is present before consciousness must already be fully understood. The injured person may have seen the passageway without realizing that its clearance was lower than their height. An object may appear through certain aspects while other aspects have not yet become the focus of attention. You assume that because the passageway was visible, its danger must have been known. This is precisely the kind of assumption that we must suspend through epoché. My ruling: the argument that the injured person should have recognized the danger is insufficient to acquit the defendant. Since the duty to provide a warning and the elements of negligence have been established, the defendant is found guilty.”

2. Judge Heidegger

Central idea: pre-understanding does not guarantee the anticipation of danger; being-in-the-world, historicity, and practical engagement.

“Defendant, you invoke my concept of pre-understanding but overlook the fact that pre-understanding is always historical and situated. The injured person does indeed have experience passing through various doorways and passageways. However, that experience may itself have fostered the habitual expectation that a passageway can be traversed without ducking. Upon entering a passageway lower than those usually encountered, their practical understanding no longer matched the concrete situation. The collision reveals a disruption in everyday engagement with the world. You cannot assume that all human beings share the same history of experience. Indeed, if you knew of the danger, a duty to provide a warning may arise precisely because you understood that others might not anticipate it. My ruling: the injured person’s historicity does not, in itself, remove the defendant’s responsibility. A negligent breach of the duty to ensure safety has been established. The defendant is guilty.”

3. Judge Merleau-Ponty

Central idea: the body is not an infallible measuring instrument; the lived body, body schema, and motor intentionality.

“Defendant, you argue that the injured person’s body should have known when to duck. However, you have turned the idea of the lived body into a kind of measuring machine that always operates accurately. The body schema is not mathematical knowledge guaranteeing that human beings always know the dimensions of the space around them. The body understands the world through perceptual and motor engagement, which can be influenced by habit, attention, and environmental conditions. The injured person may have possessed the capacity to duck spontaneously, but that capacity does not guarantee the timely recognition of every obstacle. If you assume that the body can always avoid danger, you overlook the situated nature of perception that underpins my phenomenology. My ruling: the body’s pre-reflective capacities do not justify setting aside a duty to take preventive measures. The defendant’s negligence has been established. The defendant is guilty.”

These imaginary judgments reach the same operative conclusion: the defendant is found guilty. The difference lies in the level of analysis presented in their reasons.

Husserl, as the first judge, finds the defendant guilty for assuming that the injured person must have understood the danger posed by a visible object—in this case, a passageway with a clearance of 1.70 meters, lower than the person’s height. Judge Heidegger argues that the defendant is mistaken in assuming that the injured person’s historical experience necessarily produces a pre-understanding suited to every new context. The third judge, Merleau-Ponty, finds the defendant guilty for assuming that the injured person’s body schema could always adjust bodily movements appropriately—in this case, by ducking when passing through the passageway. Both Heidegger and Merleau-Ponty acknowledge that human practical capacities develop through engagement with the world, but these capacities do not guarantee success in dealing with every situation.

Meanwhile, breakfast jurisprudence suggests that a judge’s engagement with the world is an important variable in judicial decision-making. In legal reasoning, however, judges cannot merely explain how they understand an event for themselves. They must give reasons why their understanding deserves to be accepted as the basis of a judgment binding on others—the requirement to provide reasons for a judgment (motivering vonnis).

This is where the difficulty arises. Phenomenology invites us to uncover phenomena at a more fundamental level. Yet the further we are encouraged to explain the conditions of the subject’s experience, the greater the demand to explain how different understandings can be tested intersubjectively. This includes, for example, bringing the understanding of a trial court into closer alignment with that of an appellate court and subsequent courts, as well as with the understanding of the wider public.

Breakfast jurisprudence satirizes the possibility that judicial decisions may be influenced by contingent psychological or physiological factors, such as mood, fatigue, or what a judge ate that morning. Phenomenology need not deny such influences. Indeed, it can help explain why human experience is never entirely detached from the concrete circumstances of life. Phenomenology—particularly in Heidegger and Merleau-Ponty—invites us to consider something more fundamental than momentary psychological influences. Heidegger emphasizes historicity and pre-understanding, while Merleau-Ponty emphasizes embodied perception. These factors are not merely temporary disturbances; they form part of the conditions that make human understanding of the world possible.

Phenomenology remains useful in developing judges’ critical awareness before they reach a decision. In the passageway case, it reminds judges not to conclude immediately that the injured person must have understood the danger simply because the passageway was visible. But if it can be established that the injured person was, in fact, unaware of the danger, does that automatically make the attendant guilty?

Legal reasoning does not rush to that conclusion either. It must still determine whether the attendant had a legal duty to provide a warning, whether the danger was foreseeable, whether reasonable preventive measures could have been taken, and whether a legally relevant causal connection existed. In other words, a phenomenological understanding of an event is not identical to a normative assessment of that event. Here, once again, the distinctive character of legal reasoning becomes apparent. (***)

This article is a translation of the following Indonesian article: https://business-law.binus.ac.id/2026/10/09/majelis-hakim-fenomenologi/