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Taxonomy of law and legal mapping

Patterns and limits of the classification of legal systems

Acta Juridica Hungarica
Author: Csaba Varga

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.

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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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