Acta Juridica Hungarica
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ACTA JURIDICA HUNGARICA HUNGARIAN JOURNAL OF LEGAL STUDIES Editor-in-Chief Vilmos Peschka Akadémiai Kiadó Budapest Member of Wolters Kluwer Group HUNGARIAN ACADEMY OF SCIENCES ACTA JURIDICA HUNGARICA HUNGARIAN JOURNAL OF LEGAL STUDIES Acta Juridica Hungarica presents the achievements of the legal sciences and legal scholars in Hungary and details the Hungarian legislation and legal literature. The journal accepts articles from every field of the legal sciences. Recently the editors have encouraged contributions from outside Hungary, with the aim of covering the legal sciences in the whole of Central and Eastern Europe. Acta Juridica Hungarica is abstracted/indexed in Information Technology and the Law, International Bibliographies IBZ and IBR, Worldwide Political Science Abstracts. Editor-in-Chief VLLMOS PESCHKA Board of Editors GÉZA HERCZEGH, ISTVÁN KERTÉSZ, TIBOR KIRÁLY, FERENC MÁDL, ATTILA RÁCZ, ANDRÁS SAJÓ, TAMÁS SÁRKÖZY Editor VANDA LAMM Manuscripts and editorial correspondence should be addressed to ACTA JURIDICA HUNGARICA P.O. Box 25, H-1250 Budapest, Hungary Phone: (36 1) 355 7384 Fax: (36 1) 375 7858 Orders sholuld be addressed to AKADÉMIAI KIADÓ P.O. Box 245, H-1519 Budapest, Hungary Fax: (36 1)464 8221 E-mail: [email protected] http://www.akkrt.hu Subscription price for Volume 46 (2005) in 4 issues: EUR 216 + VAT including online access and normal postage; airmail delivery EUR 20. Customers are advised to place their orders - in the USA at EBSCO Subscription Services (P.O. Box 1943, Birmingham, AL 3520-1943) - in Japan at MARUZEN Company, Ltd., Journal Divison (P.O. Box 5050, Tokyo International 100-3191) © Akadémiai Kiadó, Budapest 2005 AJur 46 (2005) 1-2 ACTA JURIDICA HUNGARICA HUNGARIAN JOURNAL OF LEGAL STUDIES Vol.46. Nos 1-2. 2005 CONTENTS STUDIES CSABA VARGA Rule of Law between the Scylla of Imported Patterns and the Charybdis of Actual Realisation 1 MARIJAN PAVÓNIK The Transition from Socialist Law and Resurgence of Traditional Law 13 MÁTYÁS BÓDIG The Political Character of Legal Institutions and Its Conceptual Significance 33 MÁRTON VARJÚ The Right to Effective Judicial Protection in Community Law: Intervention before Community Courts 51 ILDIKÓ BASA Re-Codification of the Civil Code? Conception for Drafting the New Civil Code 73 TAMÁS NÓTÁRI On Some Aspects of the Roman Concept of Authority 95 ÁDÁM BOÓC A Short Review of the History of the Hungarian Privatization 115 KALEIDOSCOPE TAMÁS NÓTÁRI Professor Gábor Hamza's Inaugural Lecture at the Hungarian Academy of Sciences 137 BOOK REVIEW ERNŐ VÁRNAI Blutman László: EU-jog a tárgyalóteremben. Az Előzetes döntéshozatal [EU Law in the Court Room. The Preliminary Reference Procedure] 141 MAGYAR Ш00MÁMYOS AKADÉMIA KÖNYVTARA 1216-2574 / USD 20.00 ACTA JURIDICA HUNGARICA © 2005 Akadémiai Kiadó, Budapest 46, Nos 1-2, pp. 1-11 (2005) CSABA VARGA* Rule of Law between the Scylla of Imported Patterns and the Charybdis of Actual Realisation (The Experience of Lithuania) Abstract. Nations of Central and Eastern Europe in the near past have all faced the same dilemma: how can they manage international encouragement to adopt atlantic patterns in promise of ready-made routes with immediate success, in a way also promoting the paths of organic development, relying on own resources and potentialities that can only be gained from tradition? Or, otherwise speaking, is it feasible at all to rush forward by rapidly learning all the responses others elaborated elsewhere at a past time? Or are they expected themselves to become Sisyphus bearing his own way, at the price of suffering and bitter disillusionment? The question was not raised by each country individually in the region as not much time was left for pondering in the rapid drift of events. Anyhow, cost-free solutions adopted from without may easily lead to adverse results, far away from expectations for the time being. The principles of free market, democracy and parliamentarism-with rule of law and human rights in the background-are usually believed to offer a kind of panacea curing the basic ills in the contemporary world. Generalised experience notwithstanding, social science has to be given the chance to record-if found so-that the same staff may not work at some places where it has just recently been transplanted as it is used to work amidst its natural surrounding in the western hemisphera, not with the same cost/benefit ratio at the least. For that reason, scholarship in Central and Eastern Europe is growingly aware of the fact that what it can provide is by far not marginal feedback but the very first testing and teasing proof on social embeddedness of some ideas and ideals, deservedly fundamental for the atlantic world. Realistically speaking, not even western social development is separable from the economic reserves of the development actually run. Or, operation of any societal complexity requires resources in both social organisation and material production. Keywords: transition, rule of law, Lithuania, open society, social balance, ius and lex, rights and duties Having recovered from the trauma of surviving Soviet imperial socialism and compelled to open up new ways in independent state-building in parallel with the readjustment of what is left as local legal arrangement to common European standards, nations of Central and Eastern Europe all have faced the Scientific Adviser, Institute for Legal Studies, Hungarian Academy of Sciences, H- 1250 Budapest, P. O. Box 25; Professor, Director of the Institute for Legal Philosophy of the Pázmány Péter Catholic University of Hungary, H-1428 Budapest 8, P. O. Box 6. E-mail: [email protected] 2 CSABAVARGA same dilemma: how can they manage international encouragement to adopt foreign patterns in promise of ready-made routes with immediate success, in a way also promoting the paths of organic development, relying on own resources and potentialities that can only be gained from tradition? Is it feasible at all to rush forward by rapidly learning all the responses others elaborated elsewhere at a past time? Or are they expected themselves to become Sisyphus bearing his own way, at the price of suffering and bitter disillusionment? The question was not raised by each country individually as not much time was left for pondering in the rapid drift of events. Anyhow, cost-free solutions adopted from without may easily lead to adverse results far away from expectations. By the time of awakening, however, posterior wisdom may show that there is an alternative always available, even if its practicability is not clear to those affected at the urgently given moment. One and a half decades after the collapse of the Soviet empire we fully realise now how painful the fact is that each country embarking on dramatic changes was completely left in isolation to face its national renewal programme, drifted by accidental circumstances. Neither the consciousness nor the organisational framework of the mutual dependence of those concerned was strong enough, and Moscow as the focus was this time substituted by another centre of power, even less interested in the target countries which were just awakening either in self-esteem or as a potential counterpole.1 In consequence, each country had to embark upon separate efforts at reform, channelled by so-called open society agencies;2 however, as we all know, improvisation is not likely to outcome products worth of consolidation. The early and total failure of the Hungarian efforts at coming to terms with the past3 was only one among a few shocking episodes. This alone might have made us realise that we should not have attempted to respond to a considerably universal challenge just on our own, and perhaps a genuine transnational co- 1 Cf. Varga, Cs.: Amerikai önbizalom, orosz katasztrófa: Kudarcot vallott keresztes- hadjárat? [American self-confidence, Russian catastrophe: failed crusade?]. PoLísz, 2002- 2003, No. 68, 18-28. 2 See e.g. Cohen, St.: Failed Crusade: America and the Tragedy of Post-communist Russia. New York, 2000 and-as a by-admission-Holmes, St.: Transitology. London Review of Books, vol. 23. 2001/8. 32-35. 3 Cf. e.g. from Varga, Cs.: Transition to Rule of Law: On the Democratic Transfor- mation in Hungary. Budapest, 1995. Part on Coming to Terms with the Past, 119-155. [Philosophiae Iuris.] and Coming to Terms with the Past under the Rule of Law: The German Model. Budapest, 1994. [Windsor Klub.] as well as A »gyökeresen gonosz« a jog mérlegén [»Radical evil« on trial], Magyar Jog, vol. 49. 2002/6. 332-337. RULE OF LAW BETWEEN THE SCYLLA OF IMPORTED PATTERNS... 3 operation might have evolved, had not been our initiative in Hungary too early, even pioneering. * A Lithuanian theoretical response4 will be overviewed in the following. It is certainly not the earliest one as its the author may have learned from the experience of others.5 Yet it is remarkably rational and systematic. For he reconsiders ancient wisdoms in the light of our days' ideals, and draws historical lessons from his Lithuanian case study by responding to the shared failures of our global new world. The ideal of rule of law-formulated also in the preamble of the Constitution of Lithuania (1992) after she has returned to the path of independent state- building by 19906-indicates a recognition according to which the unlimitedness of observing any law in a Rechtsstaat can be restricted by the value-centredness of a rule of law, which value shall be fully implemented by the principle of inter- vention of a Sozialrechtsstaat when care for "strengthening those socially weak 4 Vaisvila, A.: Teisinès valstybès koncepcija lietuvoje [The Lithuanian approach to rule of law], Vilnius, 2000. [with abstracts: Law-governed State and its Problems of the Formation in Lithuania: The Outline of State Ideology. 611-631. and Правовое государство и проблеми его становления в Литве: Поиски государственной идеологии.