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Comparative Legal Cultures A collection of papers relating Comparative Legal Cultures originally published between 1995 and 2008 on DISCIPLINARY ISSUES treating topics like ‘Law as Culture?’ [2002] / ‘Trends in Comparative Legal Studies’ [2002] / ‘Comparative Legal Cultures: Attempts at Conceptuali- sation’ [1997] / ‘Comparative Legal Cultures?’ [2001] / ‘Theatrum legale mundi On Legal Systems Classified’ [2005] / ‘Legal Traditions? In Search for Families and Cultures in Law’ [2004] / ‘Something New, Some- thing Old in the European Identity of Law?’ [1995] as well as involving FIELD STUDIES on topics like ‘Meeting Points between the Traditions of English–American Common Law and Continental-French Civil Law: Developments and Experience of Postmodernity in Canada’ [2002] / ‘Man Elevating Himself? Dilemmas of Rationality in our Age’ [2000] / ‘Rule of Law? Mania of Law? On the Boundary between Rationality and Anarchy in America’ [2002] / ‘Transfers of Law: A Conceptual Analysis’ [2003] / ‘The Dangers for the Self of Being Self-centred: On Standards and Values’ [2002] with a paper in APPENDIX on ‘Theory of Law – Legal Ethnography, Or the Theoretical Fruits of the Inquiries into Folkways’ [2008] CSABA VARGA — <http://drcsabavarga.wordpress.com> — is Professor of the Pázmány Péter Catholic University, Founding Director of its Institute for Legal Philosophy (H–1428 Budapest 8, POB 6 / [email protected]) and Scientific Adviser at the Institute for Legal Studies of the Hungarian Academy of Sciences (H–1250 Budapest, POB 25 / [email protected]) CSABA VARGA COMPARATIVE LEGAL CULTURES COMPARATIVE COMPARATIVE ARGA LEGAL CULTURES V SABA C ÉLÔFEJ 1 COMPARATIVE LEGAL CULTURES 2 ÉLÔFEJ PHILOSOPHIAE IURIS Edited by Csaba Varga Series Editor Emeritus Professor Csaba Varga Founder of the Institute for Legal Philosophy, Pázmány Péter Catholic University of Hungary H–1088 Budapest, Szentkirályi u. 28 (visit) H–1428 Budapest 8, P.O.B. 6 (mail) +361-4297230; 4297226 (fax); 4297227 & 4297226 (secretary) [email protected] / [email protected] (secretary) ÉLÔFEJ 3 COMPARATIVE LEGAL CULTURES On Traditions Classified, their Rapprochement & Transfer, and the Anarchy of Hyper-rationalism with Appendix on Legal Ethnography CSABA VARGA SZENT ISTVÁN TÁRSULAT Az Apostoli Szentszék Könyvkiadója Budapest, 2012 4 ÉLÔFEJ A kötet részben az OTKA K 62382 számú projektuma finanszírozásának köszönhetôen készült Cover: Allegoric Justice (1625) on the Mural of St. James’ Church at Lôcse/Leutschau/Leutsovia [now Levocˇa, Slovakia] (photo by the author in 2008) Back cover: Reichskammergericht Wetzlar (Conspectus Audientiae Camerae imperialis) [Audience at the Imperial Chamber Court] (Frankfurt am Main, 1750) from the Städtische Sammlungen Wetzlar ISBN 978 963 277 337 7 ISSN 1218-0610 © Cs. Varga 2012 Szent István Társulat H–1053 Budapest, Veres Pálné utca 24. www.szit.katolikus.hu Responsible publisher: Dr. Huba Rózsa Responsible manager: Olivér Farkas Printed and bound by Prime Rate ÉLÔFEJ 5 CONTENTS DISCIPLINARY ISSUES Law as Culture? [2002] 9 Trends in Comparative Legal Studies [2002] 15 Comparative Legal Cultures: Attempts at Conceptualisation [1997] 19 1. Legal Culture in a Cultural-anthropological Approach [19] 2. Le- gal Culture in a Sociological Approach [21] 3. Timely Issues of Central and Eastern Europe [24] Comparative Legal Cultures? [2001] 29 1. Legal Comparativism Challenged [29] 2. Comparative Legal Cul- tures versus Comparative Law [34] 3. Contrasting Fields [40] a) The Historical Understanding of Socialist Law [42] b) Convergence of Civil Law and Common Law [44] 4. Concluding Remarks [46] Theatrum legale mundi On Legal Systems Classified [2005] 49 1. Preliminaries [49] 2. Proposals [50] 3. Impossible Taxonomy, or the Moment of Practicality in Legal Mapping [69] 4. Diversity as a Fundamental Quality of Human Existence [74] Legal Traditions? In Search of Families and Cultures of Law [2004] 77 1. Comparative Law and the Comparative Study of Legal Traditions [78] 2. ‘System’, ‘Family’, ‘Culture’, and ‘Tradition’ in the Classi- fication of Law [80] 3. Different Traditions, Differing Ways of Think- ing [85] 4. Different Expectations, Differings Institutionalisations in Law [88] 5. Different “Rationalities”, Differing “Logics” [92] 6. Mentality in Foundation of the Law [94] 7. Defining a Subject for Theoretical Research in Law [96] Something Old, Something New in the European Identity of Law? [1995] 99 FIELD STUDIES Meeting Points between the Traditions of English–American Common Law and Continental-French Civil Law: Developments and Experience of Postmodernity in Canada [2002] 105 I. CANADIAN LAW IN GENERAL [105] II. CANADIAN LEGAL DEVELOP- MENTS IN PARTICULAR 1. The Transformation of the Role of Precedents [112] 2. The Transformation of Law-application into a 6 ÉLÔFEJ Collective, Multicultural and Multifactorial Search for a Solution [116] 3. Practical Trends of Dissolving the Law’s Positivity [120] 4. New Prerogatives Acquired by Courts [125] a) Unfolding the Statu- tory Provisons in Principles [126] b) Constitutionalisation of Issues [127] c) The Supreme Court as the Nation’s Supreme Moral Authority [129] Humanity Elevating Themselves? Dilemmas of Rationalism in our Age [2000] 131 I. THE REASON AND ITS ADVENTURES 1. Progress and Advance Questioned [131] 2.The Human Search for Safety Objectified [133] 3. Knowledge Separated from Wisdom [135] 4. Pure Intellectuality thereby Born [137] II. THE WILL-ELEMENT FORMALISED IN LAW 5. Mere Voluntas in the Foundation of Legal Positivism [141] 6. Formalism with Operations Fragmented [145] III. THE STATE OF AMERICA EXEMPLIFIED 7. “Slouching into Gomorrah” [147] IV. CONSEQUENCES 8. Utopianism-cum-Voluntarism [154] 9. With Logic in Posterior Control of Human Formulations Only [159] V. PERSPECTIVES 10. And a Final Resolution Dreamed about [161] Rule of Law? Mania of Law? On the Boundary between Rationality and Anarchy in America [2002] 165 (Transformation of American Law and Legal Mentality [165] With Repercussions on the Underlying Ethos [168] Legislation through Processualisation [170] With Hyperrationalism Added [172] Example: Finding Lost Property [172] Practicalness Veiled by Verbal Magic [173] Ending in Jurispathy [175] Transubstantiating the Self- interest of the Legal Profession [178] Post-modernity, Substituting for Primitiveness [178]) Transfers of Law: A Conceptual Analysis [2003] 181 1. Terms [182] 2. Technicality [190] 3. Contrasts in Transfers of Law [200] (Contrasts [200] Criticisms [202] Alternatives [205]) 4. Conclusions [206] The Dangers for the Self of Being Self-centred: On Standards and Values [2002] 209 APPENDIX Theory of Law – Legal Ethnography, Or the Theoretical Fruits of the Inquiries into Folkways [2008] 215 1. Encounters [215] 2. Disciplines [220] 3. The Lawyerly Interest [225] 4. Law and/or Laws [228] 5. Conclusion [235] Index of Subjects 237 Index of Normative Materials 244 Index of Names 246 ÉLÔFEJ 7 DISCIPLINARY ISSUES 8 ÉLÔFEJ LAW AS CULTURE?* The greatest change in the history of law occurred when it became objecti- fied as a text through being embodied by a written form as reduced from ius to lex.This indeed meant a most conspicuous change, by providing law with properties easy to identify through external signs, for both legal phenome- nologies (including objectivation-theories) and doctrines regarding the sources of the law.With the help of such formal signs, legal philosophies and theories of law-application may unambiguously define where the ultimate identity of law—the core of ‘juridicity’—lies and how a judge can eventually reach a response in ‘the law’. In terms of such a definition, we can answer as well whether the law is mostly referred to or indicated by a written text (as in the English doctrine of the Common Law or in modern natural law, especially in the law of reason), or it is at the same time also exclusively embodied by specific written forms (as in present- day statutory positivism). In its classical rigour, which took complete form with an exegetic perspec- tive as to its practical application, statutory positivism prevailed in Western Europe from the early 19th century until the end of the Second World War, while in Eastern Europe it survived until the collapse of communism. The movements of the law of reason and free law (making legality conditioned by principles, or sociologising or pragmatising it) were continuously trying to loosen the limitations imposed by statutory positivism from the late 19th cen- tury, and the rigorous austerity of ‘socialist normativism’ began to be some- what relaxed mainly due to the influence of some Western European contem- porary trends from the late 1960s. Once the theoretical andpractical aspects are treated sepa- rately in law, the decisive feature of legal positivism (taken as the profession- al deontology characteristic of the domain of modern formal law) will now by no means be the extent to which the law becomes defined in practice ac- cording to the ideals of statutory positivism1 but—rather—the unquestion- * Published in its first version as ‘A jog mint kultúra’, a reply to András Karácsony’s polemi- cal essay in Jogelméleti Szemle 2002/3 <http://jesz.ajk.elte.hu/varga11.html>. 1 As we know, this has never been a fulfilled claim, not even in principle—if not back in the age of exegetic law-application in the first third of the 19th century, when this ideal was pur- sued with all efforts in the euphoria of the textuality of the Code civil, with mechanical imple- 10 DISCIPLINARY ISSUES able fact that legal positivism has from the 16th century onwards increasing-
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