Varga Csaba
Law and philosophy
CONTENTS, FOREWORD
Contents
LAW AS PRACTICE
[1] La formation des concepts en sciences juridiques [1970]
[2] Geltung des Rechts-Wirksamkeit des Rechts [1978]
[3] Macrosociological Theories of Law [1983]
[4] Law and Its Inner Morality [1984]
[5] The Law and Its Limits [1985]
LAW AS TECHNIQUE
[6] Domaine "externe" et domaine "interne" en droit [1983]
[7] Die ministerielle Begründung [1977]
[8] The Preamble [1970]
[9] Presumption and Fiction [with J. Szájer] [1988]
[10] Legal Technique [with J. Szájer] [1988]
LAW AS LOGIC
[11] Moderne Staatlichkeit und modernes formales Recht [1982]
[12] Heterogeneity and Validity of Law [1986]
[13] Leibniz und die Frage der rechtlichen Systembildung [1973]
[14] Law and Its Approach As A System [1975]
[15] Logic of Law and Judicial Activity [1981]
[16] Kelsen's Pure Theory of Law [1988]
[17] The Nature of the Judicial Process [1991]
LAW AS EXPERIENCE
[18] The Socially Determined Nature of Legal Reasoning [1971]
[19] The Ontological Foundation of Law [1983]
[20] Is Law A System Of Enactments? [1984]
[21] The Uniqueness of National Legal Cultures [1992]
[22] Institutions As Systems [1988]
LAW AS HISTORY
[23] From Legal Customs to Legal Folkways [1981]
[24] Anthropological Jurisprudence? [1985]
[25] Law As A Social Issue [1985]
[26] Law As History? [1986]
[27] Rechtskultur - Denkkultur [1988]
Curriculum Vitae
Bibliography
Index
Index of Normative Materials
Index of Names
Foreward
The present volume contains a selection of theoretical articles written during the past nearly quarter of a century, which have not yet been published elsewhere in a book form by their author.
The first articles date from the dawn of my professional career. Barely a decade after the crushing of the 1956 revolution, I found myself confronted with the dilemma of intellectual existence versus non-existence. Struggling for survival, I was desperate at the time to find an independent and appropriate form of expression for an independent message, all under the compulsory and exclusive umbrella of Marxist rhetoric. Perhaps it had a symbolic significance as well that at the time the building of the Academy's Institute for Legal Studies was situated in the heart of the city, between the blue river of yore and the business quarter bordered by the Kiskörút boulevard, or in other words between the Danube, which has seen many a mass murder and suicide, and the infamous Markó utca prison, which was a venue for countless executions. In those years, even the choice of subject by a researcher counted as a manifestation of his or her moral stance in our Central and Eastern European region. It was thus for want of a better choice that I finally decided to address the issue of the preamble, which I found to be largely unexplored, and which at the same time promised the researcher the thrill of an excursion to the boundary between normative enacting and non-normative objectivation.
Not long after I reached this decision, I found myself turning toward another problem, which I had first tackled during my university years but was subsequently compelled to bottle up. This was the problem of the relationship between the law, linguistic expression and the realm of logic, and the peculiarities of the non-affirmative and non-descriptive linguistic manifestations. In my doctoral thesis, I made an attempt to define the instrumental nature of the logic of "ought"-sentences, and to highlight the peculiar role of cognition as an activity not covered although postulated by normative enacting. This thesis turned out to be indefensible amidst the political pressures of the day, and therefore in the last minute I was compelled to take up Henry Lévy-Bruhl's sociological concept of law instead. At the time, the debates over the status of logic in law were dominated by the French and Belgian schools, which approached the issue from the viewpoints of formalism versus anti-formalism, respectively. However reassuring was the fatherly support extended to me by Chaïm Perelman, this issue again proved to be impossible to take up. For the local mandarins of academic scholarship immediately recoiled at the idea, driven by the fear that my attempt to even raise that question would eventually evolve into a tacit epistemological criticism of Lenin's theory of reflection. Even my mere interest in the issue they considered a potential rejection of the prevailing dogma. For them, human thinking and linguistic expression were construable only and exclusively in their conceptual objectivation, as reconstructed by the logic of declarative-descriptive sentences. My endeavours were branded as a deviation from the principles of Marxism, and eventually I was barred from proceeding with my research.
To bypass this ban, and again for want of a better choice, I turned toward the issue of codification. Having made that decision, I spent long years studying the problem. I can account for my perseverance with two reasons. On the one hand, I was determined to reveal the specious nature of those Moscow-inspired arguments which emphasised the historicism of Marxism. After all, by that time historicism and open-ended analysis had been reduced in our region from an issue of identification to the mere hammering in of certain witty slogans by Karl Marx or, for those more enlightened in Budapest, by Thomas Mann. On the other hand, I was intrigued by the methodological question of how it is possible to denominate an object whose conceptual expression is already a function of historical answers in a situation where our investigations focus on the historical methods of expressing and solving a given set of problems. At the time, I still agreed with Max Weber that rationalisation was the gauge of development. Consequently, I still identified the development of the law with the gaining of ground of formal rationalisation.
However, my monographic research revealed that once the law is objectivated by enactment, it has but a limited power to determine the scope of practical law. A telling example of this was provided by the centennial posteriority of the Code civil. I defined as the "Biblical function" of textual law the variable practice in history under which a canonised text is once utilised as if it had the potential in itself to determine certain subsequent developments and consequences, while at other times it is referred to only in order to justify certain variable argumentation. This, in spite of the fact that theoreticians should in each case be aware that the sole purpose here has always been to legitimise a certain specific actualisation of the given canonised text. From this, I drew the conclusion that the law, seen as it is practised, can be construed only within the confines of the social challenge and the individual answer.
The claim for philosophical explication prompted me to enter into the theoretical clarification of the problem. My other aim was to incorporate in the still compulsory conceptual framework of Marxism the concept of law characteristic of western social scholarship (and primarily the macro-sociologies. My intention was based on the understanding that continental statutory positivism had already fallen into crisis, while the questions of legal realism had remained unanswered in Europe. On top of all these, there was the Trojan horse I had found in the use of the conceptual and methodological framework of George Lukács's posthumous social ontology, which at the time was perhaps the most comprehensive and stimulating (i.e., controversial) trend of domestic Marxism.
This excursion served a dual lesson. Having reinterpreted from an ontological point of view Hans Kelsen's methodological approach, I came to the conclusion that the principle of validity plays a kind of filtering, selective and at the same time sanctifying role in building up the law, and that the same applies to the role of the principle of legality in the law's practical operation. The law reproduces itself by considering and regularly enforcing these principles. It opens up its system to admit new decisions, and once these decisions assume legal force, it closes the system again. Consequently - at least as far as the cultures of the European continent are concerned - the positivism of the juristic concept of law is not merely a manifestation of false consciousness or uncovered desire, but instead, the ontological element of the law's actual operation. The belief in our ability to define certain social processes with the use of norms, in itself functions as a filter which eventually results in the "legal" functioning of the law according to its given rules. The German reviewer of the English-language version of my book on Lukács considered this argument a manifestation of proto-autopoietism, notwithstanding that at the time even the term itself was totally unknown to me.
The complexity of the law's internal world - the separation of law-making and law-application and the competition between the lawmakers' enacting and the other relevant factors in an effort to provide a definition for the law - was interpreted as realistic by the prevailing legal positivism of the previous period. However, all this was reduced to an ideological construction as soon as positivism was degraded into nothing but false consciousness. And yet, the studies referred to above have suggested to me that at issue here was a sequence of ontologically separated fields. This is why I launched my next round of investigations from the viewpoint of anthropology (based on Leopold Pospísil's critical interpretation). Due to its comparative background, this approach proved appropriate for drawing general conclusions. One such conclusion was that the law is per force an aggregate of rules, principles and patterns. Consequently, whenever we talk about law, what we normally have in mind is the sum total (framework and temporary result) of the rules and regulations laid down by the lawmakers, principles revealed by the judges, and the patterns established by acts of society. Individual legal cultures differ from each other in the proportions of these three factors, i.e., in the standing priority of one or the other of these factors over the others.
The internal dynamism of the law suggested that the concept of law itself cannot be considered the signal of a closed, discrete entity markedly separated from the other elements of reality. Instead, it is a kind of condensation, which comes about lastingly and characteristically in the social continuum. In other words and on the final analysis, it is a heterogeneous phenomenon, whose concept is also relative. The real-life question concerning the existence, force and message of the law may be dramatic, but on the theoretical level this can only rarely be expressed through the alternatives of "law" and "non-law." What we call "the law" always exists in some way and to an extent - in this sense or in that sense, more or less - and there is always a procedure of "becoming a law" or "becoming a non-law" happening on the sidelines.
To me, the concept of autopoiesis became a guiding principle in the second half of the eighties. I am indebted to my friends Eugene Kamenka, Neil MacCormick and Werner Krawietz for having invited me to their respective intellectual workshops in Canberra, Edinburgh and Münster. I had the opportunity to contrast the conclusions of the debates I had had there with a different cultural tradition in Tokyo. I also owe thanks to the American Council of Learned Societies for enabling me to widen my perspective further at the Yale Law School and its library in New Haven.
I had concluded my investigation of Kelsen's judicial application of norms - in the course of which I was one of the early scholars to interpret the judicial process as an autopoietic self-creation - prior to my arrival in Canberra. During my stay there, I put the finishing touches to my polemical essay on the judicial reproduction of the law, and upon return home but before leaving again for the States, finalised my monograph on the nature of the process of the judicial establishment of facts. The point of interest in that experiment was the sham-dualism that occurred already in my study on Lukács, and even in the preceding investigations into the field of codification: while the way the questions were put had an epistemological appearance, the theoretical answers proved to be ontological. Specifically, in all forms of human practice - including the cognitive process and the application of law - it identified homing guidance, self-reference and self-feedback (self-justification and self-conclusion), thereby proving it is the process itself that ontologically determines the frameworks for the given practice. All these in turn prove that in our social existence we rely on our prevailing practices, and that these practices have the power to create criteria.
The sociological, cultural-anthropological and ontological investigations have held out the promise of a more comprehensive historical determination. The nature of the law as a dual vehicle was already established in the study of the codification process, and the dual objective and strategy of our legislative efforts have their roots in that. More specifically, this realisation has led to the conclusion that although in our continental culture the law is identified through its textual enactment, only and exclusively our social environment and value-selecting conventions have the power to lend it meaning. Consequently, we must not rely exclusively on the enactment in either the preservation or the reform of the law. The law's product is social in each of its elements. And this has brought me back to the proposition of my first master, Michel Villey, who, when discussing the classical Romans, looked at the law more as a spring-board toward the discovery of socially just answers, and considered the prevalence of the norm-centred approach the adventure of tempting voluntarism.