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After the classical heritage of both Civil Law and Common Law is characterised, their juristische Weltanschauung as professional deontology is reconstructed in parallel with their respective assumptions in theory formation. As to the nature of legal process, the moment of concealment is identified in both types with the final conclusion reached that humans’ individual activity and personal responsibility is hidden in the machinery. Civil Law is defined by rules enacted as the sole embodiment of the law, treated conceptually in a linguistico-logical way so as to be suitable to lead to mechanical application within the range of a meta-level dogmatic system. The interplay between logical subsumption and volitional classificatory subordination is analysed in order to show what legal ascriptivity is and why it ends with the artificial construction of legal force. Accordingly, Civil Law ideology is imbued with analogies as if cognition were at stake, in contrast to Common Law openly undertaking fiction to explain in what manner the judicial deliberation on facts whilst reconstruing the whys and hows of past instances can result in ascertaining what the law has allegedly ever been. The law’s understanding-theorised in the former and pragmatised in the latter case-is part of its applying as an ontic component of the very existence of the complex social phenomenon called law.

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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.

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A scale of globalisation is witnessed in the present case study as exemplified by (1) the transformation of the role of precedents; (2) the multicultural and multifactorial search for a common solution instead of any law-based administration of justice; (3) dissolving definition by and conclusion from the law in the name of a legal socio-positivist approach; accompanied with (4) some new prerogatives acquired by courts through a) unfolding statutory provisions through principles in judicial actualisation, (b) constitutionalisation of issues, as well as c) the Supreme Court imposing upon the nation as its supreme moral authority. In both cases, the main point is to re-consider the law's normative material in a way somewhat released from nationally positivated self-restriction when searching for a kind of trans-national cultural community. By gradually eliminating the law's substantivity, legal self-identity is mostly preserved in a rather procedural sense.

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Theory and Practice in Law

On the Magical Roleof Legal Technique

Acta Juridica Hungarica
Author: Csaba Varga

Lawis characterised by a fundamental gap between its social embeddedness and theapparently formal automatism it operates, which gap is basically bridged by thelaw's ultimate practicality under the guise of its mere logicity. This seemingcontradiction is resolved by judicial decisions as responsible and responsivepractical actions which are to result from the necessary conceptualtransformation(s) of the law's wording in the course of its officialapplication, which does involve a necessary jump in logical derivation. This isto say that on final analysis and inpractical terms, law is what gets actualised through the actual uses of it. Black-box effect such as this is helped by thevariety-and owing to the magical transforming effects-of legal techniques.Eventually, it is legal culture that provides a medium in which legaltechniques can at all be selected and used. On a conceptual plane, one of thefilters is offered by legal dogmatics. This very complex includes dialectics aswell, for there is no motion without counter-motion, therefore, it is notrealistic to pursue any human ambition without some safety valves inserted. Or,regarding, e.g., law, no homo­genisationis feasible without some re-heterogenisation at the same time. Paradoxicallyspeaking, while modern formal legal development went in the direction tomechanise the judge, the realisation was also made that law had ever been tooserious an undertaking to be just left alone to the logification by someimpersonally formalistic apparatus. Therefore, simultaneously with the veryfirst act of formalisation, law has ever built in its scheme the possibility ofde-formalisation as well.

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By the fall of Communism, also the past of Central and Eastern Europe is mostly hold eradicated, albeit it cannot but steadily survive in sublated mentality. On the field of l aw, this is expressed by the continuity of text-centrism in approach to law, with the law’s application following the law’s letters in a quasi-mechanical way. Consequently, what used to be legal nihilism in the Socialist regime has turned into the law’s textual fetishism in the meantime. This is equal to saying that facing the dilemma of weighing between apparently contradictory ideals within the same Rule of Law, justice has in fact been sacrificed to the certainty in/of the law in the practical working of the judiciary. Especially, constitutional adjudication mostly works for the extension of individual rights while the state as the individuals’ community is usually blocked in responding challenges in an operative manner. Situation in Poland, the Czech and Slovak Republics, Baltic Republics, as well as Croatia is surveyed through a series of case studies in order to show degrees and variations of worsening. Softening the law by activating juridical inventiveness was used to be pressed on the region during her preparation to accession, a practice that has now been counteracted by stiffening hard law anew. In either case, on the last resort, phase-lag of juridical mentality in the region may have been at stake, preserved at the stage what Western Europe could develop into when reconstruction after the end of WWII started. For post-war West’s new joiners in approach and methodology — like (1) natural law considerations; (2) balancing among interests through assessing them in light of general principles and clauses, either of the law or implied by its underlying legal culture; as well as (3) constitutionalisation of issues — have remained mostly esoteric ideas, alien in mass to the region in question. The damage this condition may cause by cumulation is an added burden on the popular receptivity of catch-words heralded, among other ideals, by the Rule of Law.

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Anglo-American and French, as well as German, Spanish and Hungarian variations to “Law and Literature” are surveyed for that as to the nature of the discipline some conclusions can be formulated. Accordingly, “Law and Literature” recalls that which is infinite in fallibility and which is not transparent in its simplicity, that is, the situation confronted that we may not avoid deciding about despite the fact that we may not get to a final understanding. What is said thereby is that “Law and Literature” is just a life-substitute. Like an artificial ersatz, it helps one to see out from what he/she cannot surpass. What it is all about is perhaps not simply bridging the gap between the law’s proposition and the case of law, with unavoidable tensions confronting the general and the individual, as well as the abstract and the concrete. Instead, it is more about live meditation, professional methodicalness stepped back in order to gain further perspectives and renewed reflection from a distance, so that the underlying reason for the legal (and especially judicial) profession can be recurrently rethought. In a fictional form, literature is the symbol and synonym of reflected life, a field where genuine human fates can be represented. Thereby, at the same time it is a substitute for theology, rooted in earthly existence as a supply to foster feeling kinds of, or substitutes to, transcendence.

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The quest for formalism in law

Ideals of systemicity and axiomatisability between utopianism and heuristic assertion

Acta Juridica Hungarica
Author: Csaba Varga

After the relationship between form and content in art and law is surveyed and the axiomatic approach to systemicity in both philosophy and law of both the classic and modern ages is scrutinised, the want of axiomatisability-in presence of correlations between axiomatism and law notwithstanding-is established. The very nucleus of any axiomatic system is that in some set of building blocks there are few foundation stones from which one given overall building can be built up in one given form and with the inherent necessity of that the operation, in the security of reaching the same end result, can be repeated by any actor at any future time. However, the relationship amongst the constituents of legal systems is not such as to allow to make up their edifice in exclusively one form, only if the procedure is defined and some constituents as foundation stones are designated. For legal systems are truly dynamic systems thoroughly built on substantive interconnections. Therefore they resist- albeit idealise-axiomatisation. In consequence, exclusively the heuristic value of the axiomatic ideal can be fully implemented and scholarly realised in the domain of law.

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Legal theorising

An unrecognised need for practicing the European law

Acta Juridica Hungarica
Author: Csaba Varga

As a legal philosophical overview of the operation of European law, the paper aims at describing the mentality working in it by also answering the query whether the European law itself is to be regarded as the extension of some domestic laws or it offers quite a new and sui generis structure built upon all member states’ laws. In either option, the connection between the European law and the composing national laws recalls the embodiment of post modern clichés, as the former’s actual working (both purposefully and through its by-effects) exerts a destructive impact upon the bounds once erected by the latter’s anchorage in the traditions of legal positivism. In addition, the excellence in efficacious operation of the European law is achieved by transposing the control on its central enactments to autonomous implementation and jurisdiction by its member nations. According to the conclusions of the paper, (1) the (post) positivism as the traditional domestic juristic outlook is inappropriate to any adequate investigation of the reality of European law. As part of the global post modernism itself, the European law stems from a kind of artificial reality construction (as the attempted materialisation of its own virtuality), which is from the outset freed from the captivity of both historical particularities and human experience, i.e., of anything concretely given hic et nunc. At the same time, (2) by its operation the European law dynamises large structures, through which it makes to move that what is chaos itself. For it is the reconstructive human intent solely that may try to arrange its outcome according to some ideal of order posteriorly-without, however, the operation itself (forming its construct and assuring its daily management) striving for anything of order (or ordered state and systemicity). This is the way in which the European law can be an adequate reflection upon the (macro) economic basis to which it forms the superstructure. Accordingly, (3) the whole construct is frameworked (i.e., integrated into one working unit and also mobilised) by an artificially animated dynamism. Concludingly, no national interest can be asserted in it without successful national self-positioning ready to launch it.

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A diktatúra utáni átmenetnek két modellje alakult ki: totális legyőzetés katonai ellenőrzéssel, melynek során a múlt kontinuitását megtörik, hogy az eddig folytatott gyakorlat újraszerveződését megakadályozzák, miközben a társadalomnak a demokráciára történő újraneveléséről intézményes formában gondoskodnak (ez történt a II. világháború után), vagy bizonyos időponttól kezdve egyszerűen egy addigra már teljes fegyverzetében kiépített jogállamiságnak a puszta kinyilvánításával és könyörtelen kikényszerítésével járnak el (mint a kommunizmus bukása után újraépülő államokban). Felfogását illetően a jogállamiság szintén kétféle lehet: mai nyugat-európai–atlanti – kolonizáló – változatában kategorikusan abszolút s kimerítően kodifikált követelmények halmaza (azaz absztrakt-univerzalizáló) ez, miközben teoretikus rekonstrukciója szerint más nem lehet, mint pusztán egy tiszteletreméltó eszmény, amelyet adott formájában/formáiban valamikor valahol valakik saját átérzett, konkrét történelmi kihívásaikra válaszul önnön múltbéli feltételeik közt magukból kiszenvedtek (tehát olyan, aminek történelmi hic et nunc partikularitását eleve vállalták). Lényegi üzenete a jogállamiságnak eszerint az egymással ütköző értékek közt az éthoszának megfelelő egyensúlyozás művészete és mestersége; olyan törekvés, amely sohasem zárul le és ér véget. Örökös tanulási folyamatot feltételez, mert új kihívások folyvást felmerülve folyvást új válaszokat kényszerítenek ki, új összefüggésekben mutatva a jogállami igény kiegyenlítő arculatát. Következésképpen a jogátvitelek vezérlésében szintén különbség teendő egyfelől a cirkuszi idomár, másfelől a kertész magatartásmintája között: az egyiknek egyetlen célja, hogy saját külső akaratot kényszerítsen rá tárgyára, míg a másik csakis tárgya eredendő természetére ügyel empátiával, hogy segítse az abban rejlő tulajdonságok jó irányban való kibontakozását. A globalizáló kényszer irányok jellemzője, hogy a múlt jognihilizálását saját jogimportja fetisizálásával váltja fel. Ez destruktív mind önmagában, mind továbbgyűrűző hatásában. Merthogy növeli a célországoknak merő mintakövetéstől való függőségérzetét, egyúttal rombolva saját felelősségvállalásukat, ami nélkül sikeres újraépülés aligha képzelhető.

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