4.1. THE PARADIGM OF PARADIGMS
Before discussing problems related to facts, concepts, logic and thinking, we will clarify three basic notions.
4.1.1. Conventionality
What do we consider a convention? To put it simply, we can approach social matters in two ways. We either take every-thing that surrounds us in our social existence as naturally given and perfect, or start searching for explanatory prin-ciples which allow us to expound what (and how it) composes social existence. C o n v e n t i o n is one to offer a resolution—perhaps most appropriate at the present level of the development of science—to this issue.
All of this is reminiscent of how contractual theories have explained the origins of the state and constitutional arrange-ments. Assuming the factuality of social contracts is obvi-ously an ahistorical approach, since it lacks any realistic foundations whatsoever. Yet, the circumstance that we only presume their past conclusion—without identifying, for example, the historical fact to which JEAN-JACQUES ROUS
-SEAU’s contrat socialmay have referred1—is just as irrelevant
1 Franz Oppenheimer, for example, argues in the supplementary comments to his classical work Der Staat(1908) of 1929—The State(New York: Free Life Editions 1957), Introduction, para. a: »Theories of the State«, p. 8—that “As there is no method of obtaining historical proof to the contrary, since the beginnings of human history are unknown, we should arrive at a verdict of »not proven,« were it not that, deductively, there is the absolute certainty that the State, as history shows it […], could not have come about except through […].”
from the perspective of whether we can accept the validity of such contracts as an explanatory principle to consecutive historical developments, as it would certainly not alter our faith and knowledge if we eventually found out that there are no historically conclusive archaeological proofs available for the life and deeds of a person named JESUS CHRIST. Our response here could again be only that faith in JESUSCHRIST and therewith in the entire European and universal culture built on it is not in the least the function of historical evidence concerning His life in terms of what archaeology may currently accept as proven. For once we are convinced of the moral credibility of His teachings, we can transmit His testimony also by narrating the teachings as put in a histor-ical scheme, as the story of the life of a young man who grew up in Galilee and was named such and such. Similarly to those fixed points in the case of social contract, as regards our belief or moral world order, after a certain point, it is no longer the historical wells of the original thought that matter. The transmitted narrations of the story of origins with a strong envisioning force can make it self-evident for generations that man can become worthy of being called a human being only if living in a society built upon moral grounds and capable of resolving the arisen disputes, other-wise he becomes the cannibal of himself. In the same way construct conventions the tacit grounds and presuppo-sitions that provide the indispensable framework for everyday communication and theoretical explanation. We p r e s u m e these grounds and presuppositions and also s o c i a l i s e them through communication—yet most of the time we do not strive to identify or describe their actual story or factual occurrence.2
As AESOP’s fables present the moral lesson for humans within an allegoric setting, in the same way do narration, fiction, and exemplifying recollection of the past convince us, usually by referring to shareable elements born in lessons of common tradition. When explaining profoundly humane
Institution as conventionalised tradition
2 This is the reason why in theology, for example, biblical archaeology is treated as an auxiliary discipline.
matters, convention and conventional reference are the most common tools we use.3For we know that what we sense in society is of interest not simply because of their physical exis-tence. It is neither their objectivity nor their reified aspects, embodiments or appearances that make them societal but the fact that they establish an i n s t i t u t i o n . Evidently, at this point we could start raising questions traceable to previous questions, as is common with obstinate children.
For example, if the objectivity of physically tangible things in society is not of interest but their institutional nature, then what is an institution? We may respond: the institution is a conventionalised human product. But, what does the conventionalised human product mean? We may reply: when two persons form an alliance within society, they may agree, for instance, that if one of them utters “I promise”, then they will understand an actual promise as defined in dictionaries.
Thus, the utterance of “I promise” means that when one of them claims it, he does not simply say it, but takes it seriously enough that the consequence ascribed to the realisation of the institution concerned will derive from this promise for their entire future relationship. Therefore, in a physically described micro-situation one may perhaps utter “Yes!” in a somewhat articulated way, while in its social sense one has agreed thereby to ‘contract a marriage’, confirming one’s resolution for a lifetime.
Conventionality is one of the key components of societal existence, to an extent that the most personal and vital mani-festations would not be interpretable without it. Our thinking process implies applying, making and re-making notions. Yet, where can we find these notions? Are they present as are rocks in a mountain which have weight and physical volume? Are they present as something we can simply kick into, hurting our feet at most? Will they remain in the same place they have been even if we humans will no longer exist?
Conventionality as the basis for social community + social thought
3 See, e.g., Eerik Lagerspetz A Conventionalist Theory of Institutions (Helsinki: Societas Philosophica Fennica 1989) 166 pp. [Acta Philosophica Fennica 44].
4.1.2. Cultural dependence
The above questions are connected to our intellectual acti-vities and can be raised reasonably only within such a medium. But, what does intellectual activity mean? Could it be performed in the middle of the desert or in the jungle without having ever been socialised by any (other) civilisa-tion? Our answer is rather exploratory: it seems that intel-lectual activity cannot result from an isolated Robinsonian life. It is more the outcome of some sort of communication and of the exchange of meanings within communication, in other words, it is the result of cognitive and comprehensive processes tested and re-tested in an endless feedback by communitarian practice. Hence, what we come to be is largely due to our ability of linguistic c o m m u n i c a -t i o n . Bu-t a fur-ther ques-tion arises: wha-t is language? Does it have physical existence, and if it does, what does that consist of? Is it language if we produce paper from fibres of wood and then spot it with lead through a procedure called printing?
In the development of natural sciences, the recognition that the possibilities of further development are not infinite and natural sciences cannot step beyond their own internal limits came to maturity around the end of the 19thcentury.
Mathematics was the first to realise that it is impossible to build even its own system entirely on axiomatic grounds. As against earlier presuppositions, beliefs and convictions, it was proven that building merely on axioms would neces-sarily lead to sheer redundancy and/or contradictions. Step by step, other areas of science—with the lead of thermody-namics and nuclear physics—have also come to the recogni-tion of their own boundaries. This is the realisarecogni-tion which VLADIMIRILYICHLENIN greatly misunderstood when criti-cising it as the subjectivisation of human cognition, as its arbitrariness blocking cognitive access to the world, in his Materialism and Empiriocriticism. LENIN overlooked the genuine message with the sharp indifference of semi-cultured doctrinaires, declaring the intuition scandalous according to which the observer himself plays an active role in the observation, eventually shaping the very subject of
Dependence on linguistic communication
Cognition does involve the reflexion of the own relationship onto the subject
observation by his act of observation. LENINwas frightened by the conclusion—hesitatingly drawn by some as a pioneering realisation—that thinking cannot be indepen-dent of the actual thinker. Our ultimate conclusion never-theless holds that cognition reflects both its alleged subject and also our relationship to the respective subject.
In a more general reformulation, whatever we may speak of—be it legal or moral philosophy, or the explanation of human matters—, the propositions and theses that science departs from and arrives at are insufficient for explanation by themselves. However large a logical apparatus we may use to elaborate what the law is and why the court decides in a given way (whatever we intend to process through logic, that is, expound with the utmost consistency), we must still realise that the formalised propositions serving logical deduction, which we have posited as premises of conclusion, are insufficient. As advancing within the logical reconstruc-tion of thinking, it will be revealed step by step, slowly diminishing our doubts, that all of our presuppositions are furnished by the underlying c u l t u r e . Since if it were not so, we would have to recognise as necessary that, for example, from the currently known legal premises we ought to arrive at currently known conclusions—but not only in the present but anywhere and at any time in the past as well (even in Atlantis millennia ago), that is, independently of the boundaries set by space and time, independently of cultural conditions, socialisations, sensibilities and skills.
This is obviously an absurd requirement. In every process of human deduction, beside the consciously formulated and undertaken premises, an often neglected (although fun-damentally determinant and setting our path from the beginning) c u l t u r a l d e p e n d e n c e prevails as well.
For our culture is built upon p r e s u p p o s i t i o n s which we do not even name, moreover, which are not needed to be made conscious either, due to the fact that moral considera-tions and intellectual dilemmas are always shaped within and as part of a given culture. CHAÏM PERELMAN once explained it when responding to the question of why a hypo-thetical auditoire universel(standing for humanity conceived
in dependence of own cultural
presuppositions
PERELMAN: nothing but discontinuation and novation may need justification
as an abstract entity) is the sole and ultimate controller of our argumentation and tacit agreements.4Well, he claimed that only novel initiatives, that is, divergence from tradition and not its continuation, are the ones that require justifica-tion. Accordingly, what we all share (uncontested because of being involved ourselves), that is, what we ourselves are, needs not to be named as this would make no sense at all.
However natural it may seem to think in one way or another, it is still not self-evident. Despite it possibly being evident to us, it is only so because we are already within the range of a given culture, hence we do not contest its presup-positions. As soon as we have to build a culture anew in absence of any antecedents whatsoever (rebuild it under some distant constellation, transplant it into Ethiopia, or re-erect it after the Flood of the myth is over), we must instantly realise that the genuine issue is not so much the transfer of knowledge incorporated in textbooks but the acculturation of the cultural presuppositions underlying it. For the trans-plantation of culture in all cases presumes a cultural unity: it can only be transplanted as a whole (or in large segments, through consistent borrowing) to have, for instance, a successful legal transplant.
For this reason, it would be extremely hard to answer the question of how much we should rely on the transfer of laws in programmes and processes of social modernisation by means of law—i.e., social reform through the enactment of laws. Although reception (or octroi, when constraint is involved) promises radical change free of compromises, but it still builds on previous practices, skills and traditions without ever becoming an organic component of them.Their organicity can be hoped for at most, but the potential risks of failure cannot fully be eliminated.
For example, where foreign institutions are forced to recourse to the transplantation of laws, its effects cannot reach any farther than the force Rebuilding and
reception are not possible without
some community of cultural presuppositions
(transfer of law / rejection if inorganic)
4 Chaïm Perelman ‘Cinq leçons sur la justice’ [1966] in his Droit, morale et philosophie(Paris: Librairie Générale de Droit et de Jurisprudence 1968), vii + 147 pp. [Bibliothèque de Philosophie du Droit VIII], especially at pp.
52–57. I am to note self-critically that I missed indeed the point when in my contemporary review—Állam- és Jogtudomány XIII (1970) 3, pp. 621–
622—I saw nothing but sheerly “utopianistic false objectivity” in it.
does regardless of how much of a nation-wide programme is made out of it.5When one merely attempts to export texts (under the guise of an all-curing panacea) within the framework of a so-called enlightened civilising programme, texts which are completely unknown in the given area and which require an organic medium that could otherwise be formed as a result of centuries-long consolidating practice following a successful change of laws, well, the failure is practically unavoidable, and these “fantasy laws” will sooner or later be doomed to expulsion from actual legal life.6If society is exposed for long to such effects extin-guishing its capabilities of defence but still not interiorising the new pattern, the ensuing social disorganicity may lead to various dysfunc-tions, easily aggravating, or even degenerating the underlying conditions.
Moreover, it may even turn into anarchistic and self-destructive
bran-[American export of laws after WWII]
[Turkey / Ethiopia]
5 See, e.g., as the most evident example, the long-run failures of the American attempts at legal transplantation after WWII in Germany and Japan. Cf., for a less succesful part, Armin Höland ‘Évolution du droit en Europe Centrale et Orientale: Assiste-t-on à une renaissance du »Law and Development«?’Droit et Société(1993), No. 25, pp. 467–488.
6 For a complex yet convincing example, see the successful establish-ment, primarily in urban grounds, of the reception of the Swiss codes of law in Turkey. Cf. June Starr Dispute and Settlement in Rural Turkey An Ethnog-raphy of Law (Leiden: Brill 1978) xvi + 304 pp. [Social, Economic and Political Studies of the Middle East XXIII]. Islam still remained dominant in the rural areas, especially concerning the family status: half of the marriages are still not contracted according to formal law [H. Timur ‘Civil Marriage in Turkey: Difficulties, Causes and Remedies’International Social Science BulletinIX (1957), pp. 34–36], and the exceptional divorce cases undoubtedly reveal the unaltered binding force of tradition [Paul Stirling Turkish Village(London:Weidenfeld and Nicolson 1965) 316 pp. and partic-ularly at pp. 210–220 {Nature of Human Societies}]. In other regions where the determination was rather one-sided, that is, taken politically but unprepared socially—for instance, in Ethiopia or Iran—, the outrage of the society may even render the attempt at introducing foreign or invented law impossible. Cf. Jacques Vanderlinden Introduction au droit de l’Éthiopie moderne(Paris: Librairie Générale de Droit et de Jurisprudence 1971) 386 pp. [Bibliothèque africaine et malgache 10], especially on pp. 212ff; Hein-rich Scholler & Paul Brietzke Ethiopia Revolution, Law and Politics (München:Weltforum-Verlag 1976) 216 pp. [Afrika-Studien 92], especially on pp. 80ff;Transplants Innovation and Legal Tradition in the Horn of Africa Modelli autoctoni e modelli d’importazione nei sistemi giuridici del Corno d’Africa, ed. Elisabetta Grande (Torino: L’Harmattan Italia 1995) 403 pp.
[Non Solo Occidente – Studies on Legal Pluralism 1].
dishing.7Partial legal innovations reforming subtle details delude with some success only when long-lasting and consistent conditioning and conventionalisation—with a growing ethos of change in society accom-panied by a wide social and professional consensus concerning the procedural ways to follow—lead to actual reception of legal patterns.8
4.1.3. The nature of paradigms
THOMAS KUHN, in The Structure of Scientific Revolutions, investigated the issue of what the actual reasons could have been for turns in the development of thought that have even-tually befallen, as, for example, in case of COPERNICUS. How necessary were they? What effects did they generate? As a response we may learn from him that our thinking follows certain p a t t e r n s given in a f r a m e w o r k recognised as self-evident by the community.9Hence, our disputes in a given community take place within this very framework, trying its boundaries, since all questions and answers, and even unresolved contradictions, are necessarily put into it (as conceptualised, contextualised, and even lacks of
under-The role of paradigms in preserving old frameworks and the boom into
new paradigms
[Egypt]
[paradigm]
7 It is an open question what deeper explanation there may be to the terroristic rebellion against aliens in Egypt which arose after the allegedly successful French-type modernisation of local law, and which does not decrease despite strong repercussions. For the background, cf., e.g., Marc David Turetzky ‘Egypt, Mubarak, and the Rise of Islamic Fundamentalist Terrorism, 1981–1994: An Empirical Analysis of the Mubarak Regime’s Punitive Counter-terrorist Policy’ Michigan Journal of Policial Science (2002), Nr. 24 in <www.umich.edu/~mjps/archives/issue24/turetzky24.
html>.
8 As a summary, see, by the author, ‘The Law and its Limits’Acta Juridica Academiae Scientiarum Hungaricae34 (1992) 1–2, pp. 49–56 & in Csaba Varga Law and Philosophy Selected Papers in Legal Theory (Budapest: ELTE Project on “Comparative Legal Cultures” 1994), pp.
91–96 [Philosophiae Iuris].
9 Thomas Samuel Kuhn The Structure of Scientific Revolutions(Chicago:
University of Chicago Press 1962) xv + 172 pp. [International Encyclo-pedia of Unified Science II:2] “divides scientific history into periods of steady development within one set of accepted concepts, called a paradigm, and periods of revolutionary change when the reigning paradigm is replaced by another in a way that he likens to a gestalt switch. In these periods the paradigms compete with each other […]. KUHN denies that
standing expressed within it). If for whatever reason this is no longer feasible, a boom will follow and a new paradigm will be born. Well, KUHN’s efforts were aimed at the inspec-tion of such developments, to trace down their causes and courses. According to his conclusion, even fame, prestige and the kind—in fact completely secondary circumstances (as we shall see later on, resuming the consideration of ALAN WATSON, how sometimes quite trivial ways or courses legal development was to take when, for example, in a given moment only the text of the Dutch or Portuguese law on land-estate was available in the library of the ministry of justice of New-Zealand for a bill to draft10)—can be decisive in the acclimatisation of a new world-view. So, it is by far not the truth and the merits of a new realisation (underlying, e.g., COPERNICUS’ thesis) that may have played the sole and key role in the process, since all of them notwithstanding, the old truth could have still happily outlived the new one. (For, after all, the turn itself generated by COPERNICUSwas just
standing expressed within it). If for whatever reason this is no longer feasible, a boom will follow and a new paradigm will be born. Well, KUHN’s efforts were aimed at the inspec-tion of such developments, to trace down their causes and courses. According to his conclusion, even fame, prestige and the kind—in fact completely secondary circumstances (as we shall see later on, resuming the consideration of ALAN WATSON, how sometimes quite trivial ways or courses legal development was to take when, for example, in a given moment only the text of the Dutch or Portuguese law on land-estate was available in the library of the ministry of justice of New-Zealand for a bill to draft10)—can be decisive in the acclimatisation of a new world-view. So, it is by far not the truth and the merits of a new realisation (underlying, e.g., COPERNICUS’ thesis) that may have played the sole and key role in the process, since all of them notwithstanding, the old truth could have still happily outlived the new one. (For, after all, the turn itself generated by COPERNICUSwas just