‘Comparative law’ was born to challenge national self-centredness at the turn of the 19th to 20th centuries, without transcending—notwithstanding its admission of social and cultural-historical approaches in the study of law—the perspectives of rule-positivism. ‘Comparative legal cultures’ attempts at explaining the prevailing cultural and traditional diversity that has generated, among others, western law with its modern formalism and the alternative ways of reaching social order in other cultures. By its focus upon the underlying culture and, thereby, also upon the hermeneutic understanding of legal phenomena, the latter is expected to offer growingly adequate responses to timely questions such as the universalisability of law and human rights, the convergence of the continental Civil Law and the British Common Law, or the development and future of the legal set-up in the Central and Eastern European region.The interest of the comparative study of legal cultures is thus one in the history of ideas, dedicated to human problem-solving as the cultural response of people to external challenges. For the description of living complexes in terms of mere rules can result at most in ‘thin description’ with the exclusion of ‘thick description’, the more so as rules (just as concepts) are only the consequences of a kind of possible representation, therefore, relying exclusively upon them may contribute to dissolving even prevailing interrelations, atomising organic components as fragmented into detached elements. Or, institutional thinking not-withstanding, not even the subject’s formalism can serve as a ground for restricting human completeness and integrity, cultural diversity, as well as responsibility to be taken for these.
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.
esetlegességek – nemzetközi ellenszélben. (A jog lehetőségei elidegenedés és az emberszolgálat között. PóLíSz No. 125, 4–25.
Varga, Csaba (ed.) (1992): ComparativeLegalCultures. Dartmouth, Aldershot & The New York University Press