Theory of Law: Norm, Logic, System, Doctrine & Technique in Legal Processes, with Appendix on European Law

376 Pages·2016·1.95 MB·English

by  VARGA Csaba

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 W
Systems: Artificiality, Relativity, and Interdependency of Structuring Elements
A
in a Practical (Hermeneutical) Context’ [2001] / ‘Goals and Means in Law’
[2003] / ‘Law, Ethics, Economy: Independent Paths or Shared Ways?’ [2004] / L

‘Towards an Autonomous Legal Policy’ [1984], as well as ON PROCESSES OF F
LAW facing with ‘The Judicial Black-box and the Rule of Law in the Context of O
European Unification and Globalisation’ [2008] / ‘Doctrine and Technique in

Law’ [2002] / ‘Theory and Practice in Law: On the Magical Role of Legal Y
Technique’ [2006] / ‘Law, Understanding of Law, Application of Law (A
R
Summary of Developments in Thirty-six Paragraphs)’ [2007], with a paper in
O
APPENDIX on ‘Legal Theorising: An Unrecognised Need for Practicing the
European Law’ [2009] E
H CC VV
SSAABBAA AARRGGAA
CSABA VARGA — <http://drcsabavarga.wordpress.com> — is Professor of the T
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 TTHHEEOORRYY OOFF LLAAWW
A
(H–1250 Budapest, POB 25 / [email protected])
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Law as Culture? 1
THEORY OF LAW
2 DISCIPLINARY ISSUES
PHILOSOPHIAE IURIS
Edited by
CSABAVARGA
Series Editor
Emeritus Professor CSABAVARGA
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)
Law as Culture? 3
THEORY OF LAW
Norm, Logic, System,
Doctrine & Technique in Legal Processes,
with Appendix on European Law
CSABAVARGA
SZENT ISTVÁN TÁRSULAT
Az Apostoli Szentszék Könyvkiadója
Budapest, 2012
4 DISCIPLINARY 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
6 DISCIPLINARY 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
8 DISCIPLINARY ISSUES
I. Classical Heritage [287] 1. Continental Law [287] 2. Anglo-
Saxon Law [291] II.Reality in our Approach to Law [293] 1.As
Professional Deontology [293] 2. In its Theoretical Explanation
[294] III.The Complexity of our Legal World Concept [301] 1.The
Complexity of Civil Law Mentality [301] 2.The Complexity of
Common Law Mentality [301] IV. With Humans in the Legal
Machinery [302]
APPENDIX
Legal Theorising:An Unrecognised Need for Practicing
the European Law [2009] 307
1.Introduction:Queries in European and Global Perspectives [307]
2. Basic Issues [310] 2.1. Human Refinement [310] 2.2. The
Westphalian Heritage of State Law and International Law [313] 2.3.
The Place of European Law [315] 3.Analogies [319] 3.1. Solar
System with Planets [319] 3.2. Pre-modernity, Modernity, Post-
modernity [320] 4.The Structural Pattern of the European Law
[322] 4.1. Legal Culture of the European Union [322] 4.2.
Implementing a Grand-System Functioning [328] 4.3.With Legal
Pluralism? [330] 5.Theoretical Model of the Operation of European
Law [333] 5.1.Multipolarity with Centripetality and Centrifugality
[333] 5.2.Order,Out of Chaos [336] 5.3.Practical Continuum in
a Standing Flux [342] 5.4. Activated by Nations [347] 6.
Conclusions for Practicing the European Law [349] 6.1.The Ethos
of the Tasks [349] 6.2.For Reaching an Own Future,Thanks to Own
Efforts [351]
Index of Subjects 355
Index of Normative Materials 362
Index of Names 364
Law as Culture? 9
ON PHILOSOPHISING
AND THEORISING IN LAW