Conclusions Drawn for the Law’s Understanding

Drawing conclusions from the legal-philosophical perspective elaborated within L^UKÁCS’ social ontology,⁴⁹we might arrive at rather far-reaching re-sults, which are also new in their methodological outlook and theoretical approach. Accordingly,

(1) Law is an irreversible process-like phenomenon from an ontological point of view. Its motion is defined primarily by the place it has taken in the total social complex and, within this—through various socio-political and other kinds of mediations—, by its relationship to the sphere of the economy.

(2) The motion within the total social complex displays, at the level of the given individual partial complexes, a continuously reproducing dialectic unity between stability and change.

(3) From an ontological perspective, the social existence of the complex of law can be reduced to its a c t u a l l y e x e r t i n g s o c i a l i n -f l u e n c e . (Thus, the current Hungarian law is not only the sum of the statutory provisions in force, and not merely the judicial

or-Autonomy and Instrumentality of Law 173

48 Imre Szabó Les fondements de la théorie du droit(Budapest: Akadémiai Kiadó 1973) 340 pp. at p. 152.

49 Cf.Varga The Place of Law…[note 24] , ch.VI.

ganisation with its personal and institutional machinery, but the sum of these two in its actual operation, influencing social life and forming one of its factors.) The same is not necessarily to be said, in the direct sense of actually exerting social influence, of each funda-mental component, form of objectivation or internal rule.

(4) Therefore, there is and there can be no equivalence between the law as a functioning agent and the law as actual functioning—that is, between law taken as a s t o r e o f t e c h n i c a l i n s t r u m e n t s (the organisational-institutional background of the mechanism of exerting influence, i.e., legal provisions and the machinery dedicated to their enactment and enforcement), on the one hand, and law taken as the f u l f i l m e n t o f i t s f u n c t i o n s (its actual motion and social effect, i.e., the actual form which it takes in the practical life of society), on the other.

(5) The past at any given time is real for the present in as much as we draw from it. Thus, human progress—with regard to the available store of technical instruments as well—manifests itself rather in the p l a c e m e n t o f o l d e l e m e n t s i n t o a n e w c o n t e x t and influencing mechanisms than in the formation and use of quite new elements.⁵⁰

(6) From this derives the fact that we can by no means leave the instru-mental character of law out of consideration. At the same time, we must discuss with the same emphasis the various kinds of sociolo-gical and moral, economic and political components of the instru-mental use of law, and the issue of adequacy between the g o a l s t o b e a c h i e v e d t h r o u g h l a w a n d t h e i n s t r u m e n t s a p p -l i e d for that purpose.

(7) From an ontological viewpoint, law is unified as a phenomenon for two reasons, its internal complexity notwithstanding. For its forms of objectification can only be assessed through their actual operation and action, on the one hand, in the same way as their internal prin-ciples, instrumental values and structural complexity (independently of how much they are historically concretely well-defined without

174 AN IMPOSED LEGACY

50 According to Naschitz [note 45], the “human factor”, and according to Nenovski [note 45] (ch.VII–VIII), “social existence” as well as the “sociological phenomenon of social control in all social formations”, are the moments responsible for the fact that differing traditions not-withstanding, humankind may arrive at common or, at least, similar solutions while engaged in legal problem-solving.

any alternative that in fact appears on the scene) may gain ontolo-gical significance exclusively through their actual operation and realisation, on the other. That is, whatever boundaries the law’s in-ternal order draws between the respective processes of law-making and law-applying, only those implemented in a c t u a l s o c i a l p r a c t i c e will prevail so as to be sensed at all ontologically.

(8) This also implies that the dialectic of stability and change can be caught in action only within the t o t a l i t y o f t h e l e g a l c o m p l e x . For this very reason, we cannot claim the exclusive trigger of change to be legislation (officially institutionalised for this very purpose)—

that is, the enactment of laws according to a procedure and in a form prescribed by previously enactments—, and its exclusive medium to be law-application (officially institutionalised for this very purpose)—that is, the establishment and enforcement of the legal consequences of a given action according to a procedure and in a form prescribed by pre-vious enactments. In the final analysis, the motion at any given time of the social total complex and the internal complexity of the legal partial complex (including its tradition, structural complexity and relative weight, as well as its internal strength to function and exert a socially desirable influence through the fulfilment of its own enacted rules of the game) will define the way in which the legal complex reacts to the external challenges of continuity and change.

In the domain of law as a field that operates a formal store of means in ac-cordance with formalised procedural patterns, response by any one social partial complex to the challenges by any other complexes, that is, the means of its reacting, is mostly achieved through the manipulating operation of its already available set of means, instead of through either individually ge-nerating or formally changing any such means. In its ontological recon-struction, however, the unceasing process of manipulation presupposes and also results in the unceasing process of transforming the actual cha-racters—that is, the social significance and meaning—of the relevant in-struments taken from the available store of means.⁵¹

Autonomy and Instrumentality of Law 175

51 For the ways in which the law’s complexity reproduces itself while responding va-riably to the changing variation of socially felt needs, cf., by the author,A jog mint folya-mat[Law as process] (Budapest: Osiris 1999) 430 pp. [Osiris-könyvtár: Jog] &

<http://www.scribd.com/doc/46269606/varga-a-jog-mint-folyamat-2001>, passim and The Paradigms of Legal Thinking [1999] enlarged 2^nd ed. (Budapest: Szent István Társulat 2012) 418 pp. [Philosophiae Iuris] & <http://www.scribd.com/doc/85083788/VARGA-ParadigmsOfLegalThinking-2012>, particularly at chs.V–VII.

LEGAL THEORY IN TRANSITION