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Acta Juridica Hungarica Hungarian Journal of Legal Studies Hungarian Academy of Sciences ACTA JURIDICA HUNGARICA HUNGARIAN JOURNAL OF LEGAL STUDIES HUNGARIAN ACADEMY OF SCIENCES ACTA JURIDICA HUNGARICA HUNGARIAN JOURNAL OF LEGAL STUDIES Editor in Chief: Vilmos Peschka Board of Editors: Géza Herczegh, István Kertész, Tibor Király, Ferenc Mádl, Attila Rácz, András Sajó, Tamás Sárközy Editor: Vanda Lamm Acta Juridica Hungarica publishes papers on all branches of legal sciences in English. Acta Juridica Hungarica is published in one volume per year, consisting of four issues by AKADÉMIAI KIADÓ, Publishing House of the Hungarian Academy of Sciences, 11—1117 Budapest, Prielle Kornélia u. 19—35. Manuscripts and editorial correspondence should be addressed to ACTA JURIDICA HUNGARICA H—1250 Budapest P.O. Box 25 Subscription price for Volume 36 (1994) in 4 issues USS 92.00, including normal postage, airmail delivery USS 20.00. Orders should be addressed to AKADÉMIAI KIADÓ H—1519 Budapest P.O. Box 245 © AKADÉMIAI KIADÓ, BUDAPEST 1994 30978 9 HUNGARIAN ACADEMY OF SCIENCES ACTA JURIDICA HUNGARICA HUNGARIAN JOURNAL OF LEGAL STUDIES Vol. 36 1994 № 1—2 CONTENTS STUDIES Csaba VARGA: Kelsen's Theory of Law-Application 3 Michael s I LAG l: An Attempt at Land Value Taxation in Hungary 29 Lenke FEHÉR: Alternative Penal Sanctions 45 heldicn Khalil The Rights of Women and International Law in the AKASHA: Muslim World 55 Due v. TRANG: The Historical Justice Debate: International Law and its Impact on Rights in Hungary 79 KALEIDOSCOPE Some Issues of the Compensation and Restitution for Crime Victims (Ilona GÖRGÉNYI) 105 István Werbőczy and his Work (István SÁNDOR) 112 > BOOK REVIEW Julie DAHUTZ: Avoidance and Settlement of Anns Control Disputes (Miklós UDVAROS) 117 Kriminológiai és kriminalisztikai évkönyv 1994 (László PUSZTAI) 121 HUNGARIAN LEGAL BIBLIOGRAPHY 1992. 2nd part 125 Acta Juridica Hungarica 1216-2574/94/ $ 4.00 1994 36 № 1-2, pp. 3-27 © 1994 Akadémiai Kiadó, Budapest STUDIES Csaba VARGA Kelsen's Theory of Law-Application* (Evolution, ambiguities, open questions) Right from his first theoretical treatises, Kelsen had pretensions to formulate a comprehensive, great theory. His thinking follows its own path; at the same time the set of problems treated in his oeuvre as well as his whole theoretical activity are tinged throughout with constant problems. As a result, his lifework is composed—apart from a great number of volumes—of incredibly manifold essays and critical reflexions as well as of restatements. Still, this monumental theory lacks a proper doctrine of law-application. And the huge literature whether criticising, appreciating or elaborating Kelsen's work, reflects in an apparently correct manner the actual situation, viz. that its pretension to a theory of law-application does not occupy any central issue in it. Nevertheless, the present paper will attempt to unfold the still existing concept of a law-application theory from 1911 to the 1960s. Such a summary as an aggregate of the Pure Theory of Law and, in general, of his way of legal theoretical thinking, may in itself involve certain lessons. It may, however, be just as interesting from a methodological * Abbreviations: US—Hauptprobleme der Staatsrechtslehre (Tubingen: Mohr 1911); AS—Allgemeine Staatslehre (Berlin: Springer 1925); GATS—Az államelmélet alapvonalai [Grundriß einer allgemeinen Theorie des Staates (Wien, Als Manuskript gedruckt, 1926)] translated by Gyula Moór (Szeged: Városi Nyomda és Könyvkiadó Rt. 1927); RR—Reine Rechtslehre Einleitung in die rechtswissenschafliche Problematik (Leipzig und Wien: Deuticke 1943); GTLS—General Theory of Law and State, translated by Anders Wedberg (Cambridge, Mass.: Harvard University Press 1946); RR II—Reine Rechtslehre zweite, vollständig neu bearbeitete und erweitertete Auflage [1960] (Wien: Deuticke 1983); PTL—Pure Theory of IMW, translated [from the 2nd ed.] by Max Knight (Berkeley, etc.: University of California Press 1967); ATN—Allgemeine Theorie der Normen, ed. Kurt Ringhofer and Robert Walter (Wien: Manzsche 1979). 4 Csaba Varga aspect, namely from the one of the strict discipline and consistency of theory-structuring on the one hand, at the same time—owing to the questions which have remained open—as a choice of the possible intrinsic developments, dilemmas, of disturbing or stimulating ambiguities, in the course of which even controversial conclusions often put a question mark to his own basic concepts and directions. The theory of law-application found in Kelsen's posthumous theory of norms is concerned mostly with a separate set of problems. Therefore a separate study is needed to process this from the perspective of the theory of law-application. 1. Hauptprobleme der Staatsrechtslehre Kelsen's first venture into the field of legal theory, entitled Hauptprobleme der Staats- rechtslehre entwickelt aus der Lehre vom Rechtssätze (1911), forecasts later problems in many of their elements. Characteristically, it enables an eventual further development without major contradictions or breaches. The standpoint taken by him in this period can be ascertained from a conscious self-limitation in the treatment of problems and from what he remains silent about. At the same time, his system is rather taut and closed. His attitude towards the law-application can be deduced both from his ideals concerning the science of law and of his narrow interpretation of the concept of imputation which he considers as the central category of the nonnative sphere. To wit: legal science is the geometry of the formal presentation; thus the imputation's only factor consists of the norm. Accordingly, the application of law, while being indispensable, is merely an accidental factor, not a constituent part in the legal process. As a consequence, he has little to say about the "'application' of the norm". The first thing he stresses is a sharp differentiation between whether the norm is used as a basis of reference for mere comparison, or we apply it in a normative context with con- sequences.1 Still, whether it is used as an accidental yardstick, or whether the norm leads to a (possibly vital) nonnative consequence, Kelsen sees no difference, no specific trait deserving further examination.2 The second tenet is the requirement of the applicability 1 HS, pp. 15-17. When we limit ourselves to "merely comparing a concluded action with a norm, and to proving its harmony with the norm in an objective manner", then the "norm will merely serve as the indifferent object of such comparison", and only "as a yardstick of that which has already happened". Obviously, here no "volitive relation" will be present. "When judging whether a mountain is high or low, or a motion is swift or slow, the rules we employ possess no norm-generating meaning." Ibid., p. 15. However, a different situation may also occur. "That judgment which states the correspondence of a given action with a given norm, or the lack of such correspondence, may be linked with the approval or disapproval of the action by the person who is judging." Ibid., p. 16. That is the field of the normative application of norms. 2 Moreover, as will be clear presently, only the deferentiation is necessary: viz. that the criterion of the existence of the norm should be linked to its normative application, more precisely, through the mediation of the latter, to the Sollen-component present in any elementary norm-unit "The essence of the norm lies not in its being a rule of adjudication, but in being such a rule which shall be considered by the adjudicated as an affirmative or disapproving judgement." HS, p. 17. But that will transfer the criterion of the norm from its meaning to circumstances inherent in the use of language. From a structural point tliis is the same as when Kelsen's Theory of Law-Application 5 of a proposition of the law to individual cases,3 and the third is the possibility of institutional applicability by the court, as essential features of the law.4 Accordingly, merely the factual possibility of judicial application would be needed; neither the actual process of application, nor its way or outcome could add any essential surplus element to law. Of course, Kelsen could not state anything different in the context of his theory. In fact he considered the imputation as the only determinant of the norm.5 Incidentally, ha had already stated that the science of law—as "the geometry of the entire phenomenon of law"—treated the law as a formal category;6 therefore its manifestations should be examined from formal points of view, while the probing of its actual content should be left to other sciences.7 Looking at it from the aspect of theoretical consistency, Kelsen is undoubtedly right. For if we consider the operation of law from the aspect of its formal manifestation, then the implementation of the law is nothing more than the application of a complete, ready-made law to an individual case. That would not change the proposition of the law in any way; on the contrary, it would merely validate it in a given case, thus reconfirming it. From the formal aspect, the law itself professes this of itself; the entire structure, institutional system and ideology of modem law suggest this.8 And even approaching the question from the other side: should any shaping of the law be included in these processes, that does not show on the formal side; accordingly, the formal manifestation cannot consider it in any way. As it is, it could be rightfully he—later on—proves that validity should be considered as a precondition of the concept of norm: "By the word 'validity' we designate the specific existence
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