Foundations of Structuring Challenged

In the field of continental Civil Law, it seemed to be a self-evident fact, not questioned by anybody until the recent decades, that the structure of legal systems consists partly of their visible e x t e r n a l d i v i s i o n (accord-ing to the b r a n c h e s of the law and, inside any of them, accord(accord-ing to its f o r m a l s o u r c e s ) —that is, their division into individual branches of the law, including the relevant provisions of the Constitution, the respec-tive code(s) and law(s), the eventual decrees and orders designed to ensure their implementation, as well as the judicial guiding principles, decisions for the uniformity of jurisprudence, and the individual judgements—, and partly of the i n t e r n a l ( l o g i c a l ) s e l f - d i v i s i o n of any legal (normative) regulation resulting from the axiomatic ideal of modern legis-lation, that is, the fact that regulation is mostly effected by general rules and particular dispositions in the g e n e r a l , as well as the p a r t i c u l a r p a r t s of the law-code in question, on the one hand, and by established p r i n c i p l e s , m a i n r u l e s (disposing of the particular area of

reg-in his Law and PhilosophySelected Papers in Legal Theory (Budapest: Eötvös Lóránd Univer-sity Project on “Comparative Legal Cultures” 1994), pp. 7–33 {Philosophiae Iuris}].

5 Cf., as a philosophy of language reconstruction, by the author,Theory of the Judicial Process [1987] [note 2], passim, and ‘The Context of the Judicial Application of Norms’ [1988] in Pre-scriptive Formality and Normative Rationality in Modern Legal SystemsFestschrift for Robert S. Summers, ed. Werner Krawietz, Neil MacCormick & Georg Henrik von Wright (Berlin:

Duncker & Humblot 1994), pp. 495–512 [reprinted as ‘The Nature of the Judicial Application of Norms (Science- and Language-philosophical Considerations)’ in his Law and Philosophy, pp. 295–314], and, as a restatement characteristic of the critical legal studies,William A. Con-klin The Phenomenology of Modern Legal DiscourseThe Judicial Production and the Discourse of Suffering (Aldershot, etc.: Ashgate 1998) xii + 258 pp., respectively. It is to be noted that es-says on the turn of the 19^thand 20^thcenturies in Central Europe already explored such argu-ments for theoretical explanation. Cf., above all, Karl Georg Wurzel Das juristische Denken (Wien:Verlag Moritz Peries 1904) vi + 102 pp. [trans. Ernest Bruncken as ‘Methods of Juridi-cal Thinking’ in Science of Legal Method (Boston: The Boston Book Co. 1917 {reprint: New York: Kelley & South Hackensack, N. J.: Rothman 1969}), pp. 286–428 {The Modern Legal Philosophy Series IX}].

ulation), r u l e s (breaking them further down in concretisation), e x c e p t i o n s (allowing concessions from these), as well as s u b e x -c e p t i o n s (making additional -con-cessions available with regard to their last specification), on the other. All this encountered no problems for a long time, because it was made visible exactly in this way; however, because a number of legal theories (including, of course, that of MARXism) were also trying to find (through simplifyingly viewing law as the reflection of some-thing else, external to and outside of it, hence having to conform in features, structure, etc. to what it is a reflection of) a kind of correspondence between law and the spheres of (social) reality regulated by it that is not merely in-strumental and/or functional, but also epistemologically interpretable;⁶ as well as because these theories took far too seriously the suggestion of all the positive law’s staff on the exclusivity of established juristic methods in legal processes. This was the shift in codification from the casuistry to the ax-iomatic ideal, the transition from the creative precedential induction (the method of comparing, assimilating and distinguishing those precedents, tak-ing the individual cases as a starttak-ing point), to the r e p r o d u c t i v e and m e c h a n i c a l , d e d u c t i v e r u l e - a p p l i c a t i o n (starting out from the mass of provisions at various degrees of generality of the code, con-strued as constituents of one logical system, following the axiomatic ideal).⁷ The DWORKINian theoretical challenge has made it clear that there are principles in every system that are, as to their nature, not only different from the rules but, in fact, control the very policy of the applicability of rules and, thereby, also their actual practice.⁸Well, it is not by mere chance

6 Cf., e.g., Mihály Samu A szocialista jogrendszer tagozódásának alapja[The basis of divi-sions structuring the socialist legal system] (Budapest: Közgazdasági és Jogi Könyvkiadó 1964) 268 pp., and, as its ontological criticism, by the present author,The Place of Law in Lukács’World Concept(Budapest: Akadémiai Kiadó 1985 [reprint 1998]) 193 pp., ch. 5, para.

3, especially at pp. 123 et seq.

7 Cf., by the author,Lectures on the Paradigms of Legal Thinking(Budapest: Akadémiai Kiadó 1999) vii + 279 pp. [Philosophiae Iuris], ch. 2, para. 1, pp. 9 et seq. See, also by the author, as the first critical formulation of its primitive idea, with his proposition to transcend it, ‘A maga-tartási szabály és az objektív igazság kérdése’ [Rule of behaviour and the question of objective truth, 1964] in ÚtkeresésKísérletek — kéziratban [The Search for a Path: Early Essays in Ma-nuscript] (Budapest: Szent István Társulat 2001), pp. 4–18 [Jogfilozófiák] and, as applied to the paradigm of basis and superstructure in MARXism, ‘Autonomy and Instrumentality of Law in a Superstructural Perspective’ [1985] Acta Juridica Hungarica40 (1999) 3–4, pp. 213–235.

8 Since the classical topos by Ronald M. Dworkin’s ‘The Model of Rules’University of Chica-go Law Review35 (1967) 1, pp. 14–46, his entire oeuvre seems to substantiate the underlying idea mostly in a constitutional context.

that, based upon this, it was in the United States of America, the flagship of politicised aspirations and expectations, that the practice known as consti-tutionalisation (subjecting any issue at will to be reduced to—through being inferred directly from—basic rights or constitutional values)⁹had evolved.

In parallel with this, as a result of the compromise between the needs of changing life and the technical availabilities offered by the law’s codifica-tion, after the Second World War the German style of legal dogmatics had, as its own construction developed from a practice based on general clauses, already definitely nourished a conception of law that defined it as a texture made up of principles and rules.¹⁰

However, just as facts never get to court by themselves, labelled and pre-pared for a syllogistic inference from the complex of facts and norms¹¹(but only as the result of a creative—both n o r m a t i v e ¹² and c o n

-19 For a dissent in a similarly politicised mirror, see Robert H. Bork Slouching towards Go-morrahModern Liberalism and American Decline (New York: Regan Books / Harper-Collins 1997) xiv + 382 pp. Also cf., by the present author, ‘Önmagát felemelô ember? Korunk racionalizmusának dilemmái’ [Man elevating himself? Dilemmas of rationalism in our age] in Sodródó emberiségTanulmányok Várkonyi Nándor: Az ötödik ember címû mûvérôl [Human species drifting: On Várkonyi’s The Fifth Man] szerk. Mezey Katalin (Budapest: Széphalom 2000), pp. 61–93, in particular at pp. 71–76.

10 Cf., above all, Robert Alexy Theorie der Grundrechte (Baden-Baden: Nomos 1985) 548 pp., and, as built into a coherent theory, Béla Pokol The Concept of LawThe Multi-layered Le-gal System (Budapest: Rejtjel 2001) 152 pp., particularly ch. VIII, pp. 90–106. For the overall debate, cf., e.g., Carl E. Schneider ‘State-interest Analysis in Fourteenth Amendment »Privacy Law«: An Essay on the Constitutionalization of Social Issues’ Law and Contemporary Problems(1988) 1, pp. 79–121; Charles R. Epp The Rights RevolutionLawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago & London: Chicago University Press 1998) xv + 326 pp.; Henning Koch Constitutionalization of Legal OrderJudicial Review of the Constitutionality of Legislation (1988) [Danish Report to the XV^thWorld Congress of Com-parative Law (Bristol)]; Ewa Pop/lawska ‘Constitutionalization of the Legal Order’Polish Con-temporary Law(1998) 1–4, pp. 115–133.

11 “For court purposes, what the court thinks about the facts is all that matters. For actual events […] happened in the past. They do not walk into the court.” Jerome Frank Courts on Trial Myth and Reality in American Justice (Princeton: Princeton University Press 1949) xii + 441 pp. on p. 15.

12 See, e.g., most expressedly by Joachim Israel, ‘Is a Non-normative Social Science Possi-ble?’Acta Sociologica15 (1972) 1, pp. 69–87 and ‘Stipulations and Construction in the Social Sciences’ in The Context of Social PsychologyA Critical Assessment, ed. J. Israel & H. Tajfel (London & New York: Academic Press 1972), pp. 123–211.

s t r u c t i v e ¹³—act of the judicial forum taking a decision),¹⁴ similarly, neither the principles nor the rules are given in themselves, separated as such from each other in a way classified according to the law’s taxonomic systemicity as bearing their own, separate meanings. As is known, all this can only be the result of a creative act. Based upon the d o c t r i n a l s t u d y o f l a w , which classifies the law’s notions by transforming them into constituents of a legal system, it is the j u d i c i a l f o r u m , exercising its authority while undertaking its exclusive responsibility to de-cide, that builds different propositions into (or, properly speaking, uses them in its reasoning openly or implicitly as) either principles or rules, respectively. And, in parallel with this, it is their p o s t e r i o r a n a l y -t i c a l r e c o n s -t r u c -t i o n -tha-t will also label -them, in-terpre-ting the immense mass of normative regulations and reasonings, used just as raw materials, as either principles or rules.