Comparative Legal Cultures: On Traditions Classified, their Rapprochement & Transfer, and the Anarchy of Hyper-rationalism

258 Pages·2016·1.48 MB·English

by  VARGA Csaba

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 S
Cultures?’ [2001] / ‘Theatrum legale E
mundi On Legal Systems Classified’
R
[2005] / ‘Legal Traditions? In Search
U
for Families and Cultures in Law’
[2004] / ‘Something New, Some- T
thing Old in the European Identity of L
Law?’ [1995] as well as involving U
FIELD STUDIES on topics like ‘Meeting Points between the Traditions of
C
English–American Common Law and Continental-French Civil Law:

Developments and Experience of Postmodernity in Canada’ [2002] / ‘Man L
Elevating Himself? Dilemmas of Rationality in our Age’ [2000] / ‘Rule of Law? A
Mania of Law? On the Boundary between Rationality and Anarchy in America’ G
[2002] / ‘Transfers of Law: A Conceptual Analysis’ [2003] / ‘The Dangers for
E
the Self of Being Self-centred: On Standards and Values’ [2002] with a paper in
L
APPENDIX on ‘Theory of Law – Legal Ethnography, Or the Theoretical Fruits

of the Inquiries into Folkways’ [2008] E
V
CSABA VARGA — <http://drcsabavarga.wordpress.com> — is Professor of the I
Pázmány Péter Catholic University, Founding Director of its Institute for Legal T
Philosophy (H–1428 Budapest 8, POB 6 / [email protected]) and Scientific A
Adviser at the Institute for Legal Studies of the Hungarian Academy of Sciences
R
(H–1250 Budapest, POB 25 / [email protected])
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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)
[phone];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
C V
SABA ARGA
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 mundiOn 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.CANADIANLAWINGENERAL[105] II.CANADIANLEGALDEVELOP-
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.THEWILL-ELEMENTFORMALISEDINLAW 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
LAWAS 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 refer red 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 and practical 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 Szemle2002/3 <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 19thcentury,when this ideal was pur-
sued with all efforts in the euphoria of the textuality of theCode civil,with mechanical imple-