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Norm, Logic, System, Doctrine & Technique in Legal Processes, With Theory of Law kem borito 12/10/15 15:48 Page 1 A collection of papers relating Theory of Law originally published between 1973 and 2009 ON PHILOSOPHISING AND THEORISING IN LAW treating topics like ‘Legal Philosophy, Legal Theory – and the Future of Theoretical Legal Thought’ [2006] / ‘Legal Ontology’ [1999] / ‘Law and History: On the His- torical Approach to Law’ [1999] / ‘Law as History?’ [1986] / ‘Validity’ [1999] / ‘Ex post facto Legislation’ [1999], ON CONCEPTUALISING BY LOGIFYING THE LAW involving topics like ‘Rule and/or Norm: On the Conceptualisabili- ty and Logifiability of Law’ [2003] / ‘Le- gal Logic and the Internal Contradiction of Law’ [2004] / ‘The Quest for Forma- lism in Law: Ideals of Systemicity and Axiomatisability between Utopianism and Heuristic Assertion’ [1973] / ‘Law and its Doctrinal Study (On Legal Dogmatics)’ [2006], ON FORMS AND SUBSTANCE IN LAW dealing with problems such as ‘Structures in Legal Systems: Artificiality, Relativity, and Interdependency of Structuring Elements in a Practical (Hermeneutical) Context’ [2001] / ‘Goals and Means in Law’ [2003] / ‘Law, Ethics, Economy: Independent Paths or Shared Ways?’ [2004] / ‘Towards an Autonomous Legal Policy’ [1984], as well as ON PROCESSES OF LAW facing with ‘The Judicial Black-box and the Rule of Law in the Context of European Unification and Globalisation’ [2008] / ‘Doctrine and Technique in Law’ [2002] / ‘Theory and Practice in Law: On the Magical Role of Legal Technique’ [2006] / ‘Law, Understanding of Law, Application of Law (A Summary of Developments in Thirty-six Paragraphs)’ [2007], with a paper in APPENDIX on ‘Legal Theorising: An Unrecognised Need for Practicing the European Law’ [2009] CSABA VARGA — <http://drcsabavarga.wordpress.com> — is Professor of the CSABA VARGA Pázmány Péter Catholic University, Founding Director of its Institute for Legal THEORY OF LAW 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]) THEORY OF LAW ARGA V SABA C Law as Culture? 1 THEORY OF LAW 2DISCIPLINARY ISSUES 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) Law as Culture? 3 THEORY OF LAW Norm, Logic, System, Doctrine & Technique in Legal Processes, with Appendix on European Law CSABA VARGA SZENT ISTVÁN TÁRSULAT Az Apostoli Szentszék Könyvkiadója Budapest, 2012 4DISCIPLINARY ISSUES 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 978 963 277 392 6 © Cs. Varga 2012 Szent István Társulat 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 Law as Culture? 5 CONTENTS ON PHILOSOPHISING AND THEORISING IN LAW Legal Philosophy, Legal Theory – and the Future of Theoretical Legal Thought [2006] 11 1. Questioning and Knowing [11] 2. Law and Philosophy [11] 2.1. Law and Philosophical Wisdom [12] 2.2. Appearances of Modern Formal Law [14] 2.3. Differentiation in Complexity [16] 3. Conclusions [17] 3.1. Legal Philosophising Reduced to Discourse- reconstruction [17] 3.2. The Query for Natural Law Unresolved [19] 3.3. Positive Law – without Legal Positivism? [23] 4. On What the Stake is [26] Legal Ontology [1999] 27 Law and History: On the Historical Approach to Law [1999] 31 Law as History? [1986] 36 1. Understandings of the Term ‘Law’ [36] 2. Law and History [38] 2.1. Law as Instrument [38] 2.2. Law as Culture [42] 3. Law as History [43] Validity [1999] 48 1. Notions of Validity [48] 2. Understandings of Validity [49] 3. Statism and Dynamism of Law [54] 4.Validity and the Realm out- side the Law [55] 5. Dissolution of the Notion of Validity? [58] Ex post facto Legislation [1999] 62 ON CONCEPTUALISING BY LOGIFYING THE LAW Rule and/or Norm: On the Conceptualisability and Logifiability of Law [2003] 69 1. Rule / Norm [69] 2. Origins and Contexture [70] 3.With Varied Denotations [73] 4. Norms Exclusively in Civil Law Rechtsdogmatik [74] 5. Ambivalence in Language Use [77] Legal Logic and the Internal Contradiction of Law [2004] 79 1. Legal Logic [79] 2. The Internal Contradiction of Law [83] The Quest for Formalism in Law: Ideals of Systemicity and Axiomatisability between Utopianism and Heuristic Assertion [1973] 87 I. Systemicity [88] 1. Form and Content [88] 1.1. In Arts and Law [88] 1.2. In German Philosophy [90] 2. Systemicity and Axiomatic Approach [95] 2.1.The Idea of System and the Law-codes [95] 2.2. Early Modern Times [97] 2.3. Recent Times [100] 2.4. Drawbacks 6DISCIPLINARY ISSUES in Philosophy [104] II. Axiomatism [105] 3. The Want of Axioma- tisability [105] 3.1. From Deductivity to Axiomatisation [105] 3.2. Futile Approximations at the Most [106] 3.3. Lack of Deductivity in the Law’s Deep Structure [112] 4. The Heuristic Value of an Ideal [113] 4.1. Cases of N/A [113] 4.2. Cases of Correlation [114] 5. Conclusion: Ideals and the Dialectics of Substantivity [122] Law and its Doctrinal Study (On Legal Dogmatics) (2006) 124 I. The Doctrinal Study of Law [124] 1. Legal Dogmatics in a Science-theoretical Perspective [124] 2. The Process of Advancing Conceptualisation [128] 3. Ideality versus Practicality in Legal Sys- temicity [133] 4. Conceptualisation, Systematisation, Dogmatisation [135] 5. Rules and Principles in Law [140] 6. Correlation between Legal Cultures and Legal Theories [141] 7. Theoretical and Socio- philosophical Perspectives [143] II. Inquiry into the Nature of Doctrinal Studies in Law [147] a) Legal Dogmatics [147] b) Non- conceptualised Traditions in Law [149] c) The Stand of Law and of its Dogmatics [154] III. ‘Law’, ‘Science of Law’, ‘Science’ [157] 1. Critical Positions [158] a) Ad Mátyás Bódig ‘Doctrinal Study of Law and Jurisprudence’ [158] b) Ad Tamás Gyôrfy ‘The Conceptual System of Law and the Dogmatics of Motivations’ [169] c) Ad Péter Cserne ‘The Doctrinal Study of Law versus Policy’ [172] 2. In an Onto-epistemological Perspective [174] ON FORMS AND SUBSTANCE IN LAW Structures in Legal Systems: Artificiality, Relativity, and Interdependency of Structuring Elements in a Practical (Hermeneutical) Context [2001] 179 1. Theoretical Background [179] 2. Foundations of Structuring Challenged [181] 3. Is there a Structure had? [184] 4. Structuring as a Meta-construct [186] Goals and Means in Law [2003] 189 1. The Neutrality of Techniques [189] 2. JOHN PAUL II [191] 2.1. On Personhood, his/her Goods, and Law [191] 2.2. On Person, Family, and Nation [196] 3. Artificiality and Antithetical Developments in Law [198] Law, Ethics, Economy: Independent Paths or Shared Ways? [2004] 202 1. “Cynical Acid” in the Foundation of Modern Formal Law [202] 2. Example: Perspectives for Curing Malpractice in Law [205] 3. Clash between Europeanism and Americanism [207] 4. A Search for Reason and Systemicity [211] 5. Ethics in Economy [213] Law as Culture? 7 Towards an Autonomous Legal Policy [1984] 216 1. Relationship between Politics and Law [216] 2. Legal Policy as a Mediator [218] 3. Legal Scholarship, Legal Policy, and the Law on Law [219] 4. Demand for an Autonomous Legal Policy [221] ON PROCESSES OF LAW The Judicial Black-box and the Rule of Law in the Context of European Unification and Globalisation [2008] 225 I. Basic Issues in the Understanding of Law [225] 1. Normativism and Legal Reality (Re)Construction [225] 2. The Insufficiency of the Law Enacted [227] 3. Duplicity of the Ontological Reconstruction of Judicial Process [227] 4.The Law as Rule and the Law as Culture [231] 5. Complementation by the Law’s Self-reso- lution in Post Modernism [232] 6. The Metaphoric Nature of the Term ‘Law’ [234] 7. Added Queries for the European and International Rule of Law [235] II. Questions to be Raised by Legal Arrangements Individually [236] 8. Law as Subsistence and Law as Conventionalisation [236] 9. Dilemmas of the Law Exhaustively Embodied by Texts, Thoroughly Conceptualised and Logified [237] 10. Conservatio/novatio, ius strictum / ius aequum, generalisatio/exceptio, and the Moment of Decision [238] III. The Circle of Legal Arrangements to be Involved in the Investigation [240] 11. Cultures and Traditions to be Investigated [241] IV. Purpose and Impact of Investigations [241] 12. The Tasks’ Horizons [241] Doctrine and Technique in Law [2002] 243 1. Law, Legal Policy and Legal Technique [243] 2. Formalism and Anti-formalism [245] 3. Law as Potentiality and Actualisation [246] 4. Example: Constitutional Adjudication [248] 5. Legal Imaginabi- lity [251] 6. Linguistic Mediation [254] 7. Rechtsdogmatik [256] 8. Clauses and Principles [258] 9. With Safety Velvets Built in [260] Theory and Practice in Law: On the Magical Role of Legal Technique [2006] 263 1. Legal Formalism in a Practical Context [263] 2. Magic in Law: Culture and Mediation [268] 3. Legal Conceivability and its Limits [270] 4. One Langugage, Unlabelled [272] 5. Formalisation and De-formalisation: Principles as Safety Velves [276] 6. Within Gi- ven Cultural Bounds [278] 7. KELSENian Re-interpretation: Law Getting Defined in Society [282] 8. A Closed/Open Systemic Response [284] Law, Understanding of Law, Application of Law (A Summary of Developments in Thirty-six Paragraphs) [2007] 287 8DISCIPLINARY ISSUES I. Classical Heritage [287] 1.
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