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Contents

Preface
On Vitality in the Region

NO-LAW
On Stalinism
Past and Present
Attempts at Reform from Within: La séparation des pouvoirs
What is Needed to have Law?
Marxism in Service

TRANSITION
The sui generis Nature of the Challenge
Trembling Steps of the New Constitutional State

SKIRMISHES AND THE GAME'S RULE
Crime, not Civil Disobedience
Fragility of the Constitutional Establishment
Troubles Surrounding the Functions of Law
Indivisibility of the Law and Rule of Law
Civil Disobedience: Pattern with No Standard?

COMING TO TERMS WITH THE PAST
On Setting Standards
Do We Have the Right to Judge the Past?
The Dilemma of Enforcing the Law
Failure on Account of Constitutional Considerations?

RULE OF LAW
Varieties of Law and Rule of Law

Bibliography
Index of Names
Index of Normative Materials
Index

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Preface

After the methodologically well-founded and scholarly well-developed legal scholarship broke down on the European Continent in the early mid-century - for it was unprepared to face, and unable to give any fairly justifiable response to, the challenge of the temptations the rise of new authoritarianisms and totalitarianisms (sprung up, first, from the attempts at implementing the tempting idea of Bolshevism and, later on, captivating parts of the world by the threats of Fascism and National Socialism) had offered - theoretical renewal followed all over the world, especially in Europe. This was the age of the rebirth of natural law, in the place of (rather than supplementing) the lawyer's traditional world concept, that is, legal positivism, rooted in the very foundation of the cultures of both Civil Law and Common Law.

Nevertheless, when the predominantly moral shock of World War II was over, the pressure of reconsideration became soon shadowed. Starting by the late '50s, however, a growing interest has arisen to substitute former patterns of methodology to historico-comparative investigation, sociological inquiry, anthropological foundation, as well as logico-linguistic analysis. Innovative trends of thought in legal theory have led to the foundation of a series of new disciplines and contributed to a genuine theoretical renewal. In the final account, it was a breakthrough and a success.

Nowadays, nevertheless, one can only encounter a growing dissatisfaction, accompanied by the well-felt need for re-orientation. The causes, as well as its context are largely a function of underlying domestic conditions, namely, socio-historical settings, political biases, intellectual traditions, and the store of instruments (ideologies, institutions, skills and techniques) the arrangement in question has ever developed for both serving everyday routine and coping with new expectations.

As to Hungary and the whole region in Central and Eastern Europe, one of the main characteristics of the imposed regime of 'actually existing socialism' was the law's excessive instrumentalization. The reduction of the ius (including legal rights) to the lex (i.e., formal enactment) and, at the successive step, to mere means (subservient to any political wish), had already historical predecessors in the region. For instance, the destruction suffered by the one hundred and fifty years of Ottoman occupation of the land incited, and subsequent reforms to cut short belated development in the 18th century was also actually accompanied by, the strong political will of those enlightened emperors who then ruled the Hapsburg empire to expand their control over the country. As in all instances of modernization on forced paths, one of the consequences was that the idea of reform itself became identified with (by simply reduced to) the act of enacting. Over-reliance on enactments of enlightened ideas followed, instead of the attempts at tiresome implementation of genuine reforms. Centuries later, the practice was continued by the Communists who took over in the country. The translation by the party-state of Golden Age Utopia into everyday practice had in fact to resort to law only as a mere tool of enforcing freely replaceable policies. In the perspective of the Communist morality of a Rosa Luxemburg or George Lukács, legal instruments were only seen as easy-to-manipulate covering for repressive practices revolutionaries might resort to. Even by the time when Stalinism developed into a kind of good-will autocracy, law remained an agent for provoking (or substituting for) social reform. No wonder if the outcome were also devastating. The practice destroyed legal distinctiveness and corrupted underlying culture in both the short and the long term. The prestige of law had fallen, and its credibility faded away. All this was successful to such an extent that even nowadays, when re-instituting Parliamentary Democracy, Constitutionalism and Rule of Law are on the agenda, long-established corrupted practices persist unalterably to tempt minds. Albeit for obvious reasons, the success of the process of democratization is by now the main precondition of any further (economic, social, etc.) reform. Or, the failure of discontinuation can endanger the prospects of democratization.

From a theoretical perspective, the bare fact of resorting to such corrupted practices and also of considering them a viable option can only be interpreted as the rejection of the very idea of law. Therefore it is ultimately not by chance that reconsideration of the usual Marxist stand (and the socialist approach to the law) was initiated long ago, and that the first target was the re-shaping of social consciousness by building irreversible elements into it. Speaking philosophically, its ambition was to re-assert legal distinctiveness both as a statement in ontology and a clear-cut differentiation between the law's actual working and its ideology.

Having the general conditions in mind, the main task legal theorizing is faced with in Hungary is the following:

(1) to reconsider its own traditions, looking back to both pre-war and interwar periods, by re-assessing basic values they were grounded in the classical German philosophy and its neo-Kantian methodological orientation (for the pioneering work done by Ágost Pulszky, Felix Somló, Julius Moór, Barna Horváth, István Bibó or István Losonczy still may have the potential of provoking challenges which were never fairly responded to earlier);

(2) to re-integrate into its body the insights and schools, approaches and methodologies which the western theories have developed since World War II; and

(3) to redefine and reshape its own position so that, one, it will again be open to critical reflection on all trends of thought in formation and, thereby, it will become once again a responsive partner to the academic world, and, two, it will finally grow into what it has always been, that is, a forum of human reflection in social theory and a source of foresight in social action, which for everyone it can leave behind it eventual remnants of past instrumentalization and merely technical uses of the law for power calculation.

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