Does the legal system have a structure (according to sources and branches of law, general and special parts of codes, principles, rules and exceptions in regulation, etc.), or structuring is taken into it from the outside? And providing that it is taken, whoever is taking it? For neither principles, nor rules are given in themselves, separated from each other in a way classified in terms of the law's taxonomic systemicity as bearing their own separate meaning. All this can be but the result of a constitutive act. Based upon legal doctrines, it is judicial practice that builds different propositions into either principles or rules. Or, it is not logic itself that labels anything as a structuring element identified as either principle or rule but we, who ponder the mode of how to construct a sequence of distinction, deduction and justification conclusive enough to convince those controlling the issue we propose in the procedural hierarchy. Therefore the structuring features in law are construed and construing, constructed and constructing at the same time, for they do not and cannot exist in and by themselves at all.
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.
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.
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.
The core of codification is invariably the idea of a system in the law's composition and structuring, doctrinal reflection and conceptual building up, including judicial reference to codal definitions as well. Or, codification is (1) an exclusive body of law (2) implementing unity in its regulatory field (3) with logical coherence and consequentiality. The dream of a common European codification penetrates into the very heart of the law, presupposing the unification of all the intellectuality and underlying approach that has ever distinguished Civil Law and Common Law. The more the advancement of the European unification progresses, the more inverse the assessment of European codification becomes, making us its past trends, values and regulatory techniques reconsidered. That is, as if we on the Continent had not so much become statal national units unified by a sequence of national laws but, being too conceited of our most promising collective heritage within the transitory phase of an infantile disorder, became rather fragmented in national isolation from one another, which now comes eventually to a final end.
Megvilágítandó különbség áll fenn a jogi néprajz és a jogi
antropológia között, továbbá az utóbbi és a jogi etnológia s a jogi
pluralizmus, valamint a bennszülött jogok kutatása közt. Az első három tárgya
alapjában a nem jogi diszciplínák jogi vonatkozásaiból__
Attempts from the 17th century onward anticipate the 20th-century mood of legal mapping. They classify legal arrangements by languages, races and genetic roots, then by their ideologies and technicalities. Later on they do so by separating the Western from the Soviet/socialist law, by their correspondence to underlying general cultures, as well as according to legal families. It is the insufficiency of resorting to dichotomy contrasting the Western “Us” to any differing Eastern “Others” that has recently resulted in typologising in terms of the dynamism and directions of legal development in the duality of professionalism and traditionalism or in the cross-reference of what is established/stable and unestablished/instable, and of what is drawn from Western and non-Western sources. Material taxonomy cannot be accomplished in law through genuine class-concepts. Characterisation through concepts of order can be achieved at most. In want of any meta-system, cultures formed to idealise and hypostasise ideas of order by independent principles can provide no common basis of division for law. Accordingly, only some division to major and minor sets and subsets can be achieved. The own arrangement will be better cognised by other schemes’ understanding. The gradual transcendence of rule-fetishism by identifying law with some specific culture may prevent the coming “clash of civilizations” from reaching aggressive self-assertion and care for the sustainability of the laws’ diversity.
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.
The Atlantic civilisation has over the past centuries been composed of two definitely diverging ethoses and social philosophical inspirations, differing also by their very foundations. The contrasts are perhaps most conspicuous today as to be seen in the difference between approaches to life as a struggle and to law as a game within it. No doubt, on the one hand, there prevails the rest of (1) a European Christian tradition, characterised by communal ethos, with provision of rights as counter-balanced by obligations, in which priority is given to the peace of society and a traditional culture of virtues is promoted to both circumvent excesses and acknowledge human rights, with a focus on prevention of and remedy to actual harms. It is such an environment within which homo ludens as a type of the playful human who is at the same time dutiful and carefree-entirely joyful-constitutes a limiting value. If and insofar as struggle appears at all on the scene, it is mostly recognised as a fight for excellence. As a pathologic version, the loneliness of those staying away from participation may lead to psychical disorders which require subconscious re-compensation, the symbolic sanctioning of which was once accomplished by the psycho-analysis. On the other, there has also evolved (2) an Americanised individualistic atomisation of society, expecting order out of chaos, with absolutisation of rights ascribed to individuals, all closed back in loneliness. As an outcome, obligations are circumvented by entitlements, and unrestrained struggle becomes a part of any normal course of life with the deployment of human rights just to neutralise (if not disintegrate) communitycentred standards. “Life is struggle”-the hero of our brave new world enunciates the words as a commonplace with teeth clenched, convinced that life is barely anything but fight against anybody else (as an improved version, hailed as civilisatory advancement as re-actualising-under the pretext of maximising the chances of-the ominous bellum omnium contra omnes, formulated once in early modern England). Starting from the common deployment of some symbolical “cynical acid” in foundation of modern formal law but developing through differentiated ways of how to search for reason and systemicity in law, the conceptual and methodical effect of this very division is shown in the paper within the perspectives for curing malpractice in law and also in the role of ethics in economy.