HUNGARIAN LEGAL PHILOSOPHY IN THE 20 TH CENTURY
4. J ÓZSEF S ZABÓ (1909–1992)
As MOÓR’s student at Szeged, SZABÓ later became acquainted with HOR
-VÁTH. The latter’s common-law approach drew the enthusiasm of his ad-vanced disciples, so much so that they would eventually found their own Szeged School. SZABÓwas also awarded a grant to enrol in ALFREDVERD
-ROSS’s course in Vienna, and the two thus wound up forging a lifelong friend-ship.21
In a number of papers,22SZABÓcriticised the neo-KANTian approach by drawing for the most part on DAVIDHUMEand American legal realism. In
Hungarian Legal Philosophy in the 20thCentury 57
20 Barna Horváth The Bases of Law / A jog alapjai[1948] ed. Csaba Varga (Budapest: Szent István Társulat 2006) liii + 94 pp. [Philosophiae Iuris: Excerpta Historica Philosophiae Hun-garicae Iuris / Jogfilozófiák].
21 It was clear by this time, in 1949, that what had been a promising outlook for post-war Hungary had turned gloomy. Or at least this is how it must have appeared to HORVÁTH. As the most senior applicant for the chair in legal philosophy left vacant in Budapest as a result of MOÓR’s expulsion, HORVÁTHexpected to be appointed to that post but was instead rejected in favour of IMRESZABÓ(discussed in Section 8), at that time a young and unnoticed Communist academic. HORVÁTHthus left the country and emigrated to the United States, where he became affiliated with the New School for Social Research in New York, but it was a rough start and a bitter end for him at this school, which at just about this time was placing less and less empha-sis on its members’ formal academic credentials. He had a family to support, and was thus per-suaded to seek employment as an analyst at Voice of America, where he remained until his re-tirement in 1964. His repeated lecture tours in Europe did, however, result in a collection of selected writings, and these were later republished in his Probleme der Rechtssoziologie(Berlin:
Duncker & Humblot 1971) 204 pp. [Schriftenreihe zur Rechtssoziologie und Rechtstats-achenforschung 20].
22 E.g., József Szabó ‘Der Rechtsbegriff in einer neurealistischen Beleuchtung’Österreichische Zeitschrift für öffentliches RechtI (1948) 3, pp. 291–311.
a “neo-realistic” doctrine he formulated looking to common-law casua-lism, he drew a parallel between the British case-law approach and “tradi-tional” models of judicial reasoning in Hungary, a country then known as a civil-law empire without a civil code.23Supported by JEROMEFRANK, ED
-WARDROBINSON, and THURMANARNOLD, he ascribed the belief in the cer-tainty of law to the faulty logic erected by legal philosophers. His “fact-scepticism” and “rule-“fact-scepticism” was in this way sublimated into a theory based on the eventuality of the judicial event, whose contexture is depen-dent on “psychological circumstances” as well.24
In his unfinished oeuvre,25 he offered pragmatic explanations of classic neo-KANTian paradigms, sometimes with a streak of eclecticism.
5. ISTVÁN BIBÓ (1911–1979)
BIBÓ studied under HORVÁTH at Szeged. After making visits to Vienna for lectures delivered by VERDROSS, ADOLF MERKL, and FELIX KAUFMANN— and travelling to Geneva to listen to KELSEN(in the company of PAULGUG
-GENHEIM, MAURICE BOURQUIN, and GUGLIELMO FERRERO as staff) teach at the Institut des Hautes Études Internationales—he made a translation of KELSEN’s Reine Rechtslehre, thus becoming one of the first scholars to ever translate the work in extenso (and with the author’s approval).26
In a neo-KANTian perspective, he contrasted the functional links among liberty, constraint, and law with HENRYBERGSON’s idea of spontaneity and NICOLAI HARTMANN’s ontology and ethics. Superseding his teacher’s synoptic view, he introduced the law of spontaneity as playing an important
58 HISTORICAL BACKGROUND
23 The Hungarian Civil Code was not promulgated until 1959, as Act IV of the National Assembly of Hungary.
24 Cf.Die Schule von Szeged Rechtsphilosophische Aufsätze von István Bibó, József Szabó und Tibor Vas, hrsg. Csaba Varga (Budapest: Szent István Társulat 2006) 246 pp. [Philoso-phiae Iuris: Excerpta Historica Philoso[Philoso-phiae Hungaricae], particularly at pp. 81–133.
25 JÓZSEFSZABÓand his wife attempted to seek refuge by crossing the border, after his teacher succeeded in doing so, but they were caught and imprisoned for years.Then, his health failing, and struggling for his life, he managed to survive only thanks to commissions received for aca-demic translations.The couple was then imprisoned a second time—for “counterrevolutionary acts” allegedly committed in 1956—and they continued in intellectual exile. A government in-terdiction meant that SZABÓcould only publish abroad, but this too was illegal at the time.
26 It was only posthumously published as Hans Kelsen Tiszta jogtan[Reine Rechtslehre]
trans. István Bibó [1937], ed. Csaba Varga (Budapest: Eötvös Loránd Tudományegyetem Bibó István Szakkollégium 1988 [reprint: Rejtjel Kiadó 2001]) XXII + 106 pp. [Jogfilozófiák].
role in law. According to him, a certain balance necessarily obtains between constraint and freedom in the practical workings of the law. By a seeming paradox, it is law that provides at once the most objective constraint and the most objective freedom, considering that any area freed from constraint is ipso factothe realm where freedom finds its most objective manifestation.27 Therefore, law must perforce be Janus-faced. It is in this tension between these two forces that law’s genuine power lies, and this is the specificity that distinguishes it from any other arrangement of social rules.28
6. TIBORVAS(1911–1983)
VAS—his eyesight gradually deteriorating in his youth—was a classmate of BIBÓ.
His award-winning paper on the significance of transcendental logic for legal philosophy—published in both German and Japanese29—defended HORVÁTH’s synoptic method and GEORGES GURVITCH’s ideal-realistic one for recognising the duality inherent in law, thus having the intellectual po-tential to move beyond the logic that had been developed by classic trans-cendentalism. Then, in a short paper,30 he presented HORVÁTH’s Rechts-soziologie (or sociology of law) as the conclusion to be drawn from the concession that KELSEN makes in his Pure Theory by conceiving law as a
“twofold object”, in which facts are reflected in values and vice versa. The upshot of this reasoning was that the logical approach cannot have a
signi-Hungarian Legal Philosophy in the 20thCentury 59
27 István Bibó ‘Zwang, Recht, Freiheit’ in his Kényszer, jog, szabadság[Coercion, law, liberty]
(Szeged:Városi Nyomda és Könyvkiadó Rt. 1935) VIII + 151 pp. [Acta Litterarum ac Scientia-rum Reg. Universitatis Hung. Francisco-Josephinae, Sectio Juridico-Politica, VIII], pp. 23–45.
28 Cf. Varga Die Schule von Szeged(2006), pp. 11–77. During and after World War II, BIBÓ
became involved in political debates as an author and in reforming government administration as a specialist and high-ranking official. His academic career was cut short by the Communist seizure of power in 1949, and he had to survive both intellectual exile and long imprisonment (as minister of state in IMRENAGY’s revolutionary government of 1956). For the rest of his life, he mostly concerned himself with issues in the philosophy of history and with world-power de-pendencies in Central and Eastern Europe.
29 Tibor Vas Die Bedeutung der transzendentalen Logik in der Rechtsphilosophie(Szeged 1935) 95 pp. [Acta Litterarum ac Scientiarium Reg. Universitatis Hung. Francisco-Josephinae: Sec-tio: Juridico-Politica, Tom.VI, Fasc. 1], trans. as Senkenteki hotetsugaku(Tokyo:Yufukanshobo 1941) 133 pp.
30 Tibor Vas A tiszta jogtan és szemléleti jogelmélet[Pure theory of law and the synpotic app-roach] (Kecskemét: n.p. 1937) 16 pp. [Szellem és Élet könyvtára].
ficant role in law without taking sociological and evaluative aspects into account and working them into a single overall perspective.31;32