As a Non-cognitively Homogeneous Activity

of differing homogeneous spheres, even though my approach to the processes in question is defined by assumptions standing behind the concepts elaborated by them and the operations taking place in them.

If I wish to investigate a subject, I use or create categories and concepts which reflect something of the motion of, and of the properties manifested by, i t in order to be able to conceptualize its parameters and principles of organization. These conceptual tools are definitions of existence. For their criterium is whether or not they reflect, and in which way, what is claimed to exist independently of them. At the same time, however, they do what they do by the force of my definition. So, in this sense, they cannot be but anthropomorphized. Nevertheless, they are also disanthrop-omorphized, at least to the extent that I shall behave, and will do everything within my power in order that I shall behave, in such a way that my presence or bare physical existence will be irrelevant in respect of what they actually reflect. At the same time, as further conceptual tools, I shall create types by and through them, in which cognitively characteristic configurations, forms of organization and limits of change are conceptualized—irrespective of whether or not they appear in the individual case at hand.

In a case where I wish to exert a practical influence on that which exists independently of me (providing that it is not done by mere physical force, grasping the subject, etc.), the only mediator to which I have access is language—just in the same way as if it were a case of cognition. And it is to be noted that "language expresses the processes it reflects in a reified form—and the more versatile it proves to be as a means of social communication, the more it is s o " .^{1 0} As a consequence, every object, event and/or human com-munication represented by language is formulated in a quasi-cognitive manner, irrespective of the fact whether or not they display any cognitive feature. Of course, this may cause confusion.

If my practical action is mediated by language, I can only proceed through naming behaviour and their context. For I can only influence others' behaviour through predicting and inflicting consequences on it. Generally speaking, there are two alternatives for interfering. One, I may have obtained a global plan [Gesamt-plan] which I am expected to break down in an axiomatic way. In this case, my effort will, at least partly, probably fail as a result of the discrepancies which necessarily arise, and also because it is real interests (instead of a logocracy's ideological rule) that will expectedly force out solutions on the level of a mutually acceptable compromise at least. Two, I can also proceed by way of defining events, or aspects, in respect of which I stipulate that regulatory interference is needed. In the function of the choice taken, I commence conceptualization, one, either by naming: in this case, no material consideration will be relevant. Or, two, I can also proceed by setting the objective, and weighing the effects and side-effects which result from its realization: in such a case, it is the actual behaviour and its naming that remain irrelevant. Anyway, independently of the path chosen, I shall finally arrive at the formulation of type(s).

The type to be formulated will necessarily be random-like, i.e., arbitrary in principle. For it is nothing other than a tool, artificially

1 0 LUKACS (1976), p. 652.

made in order to be projected onto reality in the course and for the sake of practical interference with reality. It serves as a web for normative references. Consequently, it is, in spite of its disanthro-pomorphic appearance, also anthropomorphous. Or, formulating it the other way round: it cannot be conceived of as an entity reflecting reality for the sake of its cognition. Just the opposite, they are types that project onto reality an ideal ordering, defined by practical considerations of how to mould reality. Therefore, there is no kind of "objective reality" involved here, to which reality should correspond by (in an epistemological sense) adequately reflecting it. Indeed, what it does reflect and what offers itself as a criterion thereof are only and exclusively its interior domain, that is, what is "inside" it.

To be sure: this is the case with any human expression, objec-tivation and institutionalization in general. What they carry on can be traced back to subjective will or its social substitute. Neverthe-less, no such reduction can lead to a result identifiable, interpret-able or simply useful for further analysis." The only entity that remains is its linguistic expression, that is, a certain text composed of a series of signs defined by social conventions, i.e., a vehicle carrying on the human message for which it stands. In this sense, the last identifiable, interpretable and analytically useful particle of it is its form of objectification. For, eventually, objectification is nothing other than the result of to what and in which way some-thing non-identifiable, non-interpretable and in itself analytically non-processable has been objectified.^{1 2}

In other words: it is an artificial creation like every means that reflects, instead of reality, the human objective aimed at reshaping reality.'³ (Ontologically speaking, it is quite true that no

humanly-" Cf. VIl!LEY (1957), pp. 8 7 - 9 8 ; KELSEN (1960a). p. 307; KELSEN (1960b), pp. 2 0 9 - 2 3 0 ; OLIVECRONA (1970). pp. 7 3 - 7 7 and 2 6 8 - 2 7 0 ; VARGA (1981), pp. 9 6 - 9 8 .

1 2 Cf. PESCHKA (1983), pp. 6-19; PESCHKA (1988), ch. i, par. 2.

1 3 Cf. VARGA (1985), pp. 128 and 134.

set objective can ever be disrupted from reality or its cognitive—or quasi-cognitive—conceptual-linguistic representation. However, such a statement of the final ontological unity still does not provide an operational criterium for analysis, and is also irrelevant from the point of view of the specific operation of the partial complex in question.) In consequence, pigeon-holing various behaviour into an artificially established set of normative types is not cognition, either. Rather, it is rooted in, and exclusively defined by, the practical intention standing behind the wish for interference and its implementation.^{1 4}

Consequently, even that which is apparently cognitive or quasi-cognitive is expressed here in a homogenized medium, too. What is expressed here is lifted out from the heterogeneity of everyday life—but in a sphere differing from cognition, subordinated to a different homogenizing mechanism, and displaying another kind of specificity and distinctiveness. Here, cognition is only relevant from the point of view of the classification to be performed, and it is only so to the extent that events have finally to be defined as actual cases of a finite number of ideal cases. In other words, judicial pigeon-holing aims at reducing some external event, called fact, to a kind of concrete actualization of the generality of a concept, defined normatively in a normative context. Accordingly, classify-ing generalization is not operated by the free (i.e. not codified, therefore infinitely diverse) means of setting up conceptual classes and logical categories in order to describe the subject with reasonable differentiation. Instead, it classifies events in a closed heap of classes, which is ready-made by having been set up and defined previously. In opposition to both cognition and non-insti-tutionalized normative systems (like morals): having a free hand in breaking down and applying a conceptual system is neither con-ceivable nor reasonable in law. For, the very reason of why the specific homogeneity of legal superstructures has at all been developed lies in the nature of legal provisions being "applied" in

, 4 LUKACS (1971) II, p. 217.

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practice. Logically, any normative "application" is only conceivable through ascribing some external event, qualified as the case of a normatively defined legal case, to the consequences that follow from the actualization of legal enactment(s).

This is to say that normative classification is a logical precondi-tion of that that what is called the "legal consequence" could be meted out. It explains that, on the one hand, anything cognitive may have a role to play in this classification; however, on the other, nothing cognitive is in itself enough to consdtute, substantiate, or substitute to, the act of normative subordination. Subordination is expected to be rational in the system of justification accepted, i.e., rational to a maximum extent. In practical terms, this means that it must be done in a way as if it were a logical conclusion, with no alternative to it. Albeit it goes without saying that, in the final analysis, it is a function of the will of subordination and the practical considerations behind it.

5.4. As the Reproduction of the Law as a System