As the Play of a Game

By themselves, facts are not given. No relative certainties acquired by human cognitive-communicative praxis transform automatically into facts in law, either. According to the law's

' Cf. VARGA (1990a).

2 LUKACS (1978), p. 41.

formal requirements (exclusively referable to within the reach of the law) and to the law's professional ideology as well, facts can be transformed into facts in law only and exclusively through restating factual statements as statements in law, and thereby conveying upon them a specific meaning (that is, institutional significance and selling), while referring to the law's distinc-tiveness by declaring the whole operation to be within it. To be sure: what is called to be "distinctively legal" is obviously a partial system within the total social system. That is, all of us as actors are players of a particular game within the total social game.

In this process, formal closure will eventually prevail. For no rule taken from the outside can be asserted as valid in the game.

Anyone wanting to participate in the game may play only and ex-clusively according to the rules of the game. The second of its rules says: anyone wanting to play is allowed to play only provided that he/she has facts in hand referred to as ascertainable in external reality. The third of the rules adds: the actuality of the facts referred to as facts also has to be proved. And taking evidence of them is already part of the game. Needless to say that evidencing may also only proceed according to the game's own rules.

In other words, the game's main rule stipulates: no one is allowed to break in in any way. Anyone wanting to enter the game is admitted to play only provided that there is a game's rule providing therefor. And the validity of the main rule cannot be challenged by any title claimed. That is, no claim referring to the novelty, importance, or relevancy, of any statement of facts is sufficient in and by itself. For facts can be taken into the play only and exclusively through their procedural communication.

Anybody forcing his own (non-procedural) factual communication onto the play would spoil the game itself. Any forced break in the game would put an end to the game, just in the manner as if he/she had set fire to the house in which the game was played.

And the game, if played on after having been spoiled, would already be another game. Anybody who imposes his/her own rule

upon the game will actually destroy the game.³ Anybody who implements any change into the game without being entitled to play another game within the game has actually started playing quite a new sort of game.⁴

The game about which I am speaking is characterized by its referring to what it is called "the" truth. It does so, albeit it accepts procedurally established "conviction" as the "proof* of what it calls

"the" truth. In limited cases, i.e. in procedures in which the judge is expected only to observe the fight between the parties in conflict it may occur that the parties mutually invalidate their respective proofs—without raising the question of their inner force and/or, even, relevancy.

From an epistemological point of view, we can only state that the game is basically defined by (1) its normative orientation and organization (for, either as a principle of selection or as a medium of its organization, everything that plays a role in it is subordinated, from the very beginning and without conditions, to some practical consideration differing, in principle, from the theoretical model of cognition), as well as by (2) its procedural closure (which, in addition to closing the process itself at a certain point declaring the issue reached to be res judicata, predetermines the whole process-ing as well, determinprocess-ing its organization, the choice of paths and directions, and also its phases, deadlines and formalities from the start). Accordingly, the game's functioning can be characterized by the following features: (1) selectivity (for the process may proceed in any of the possible directions only provided that, and insofar as, the normative relevancy of the facts referred to has previously been established); (2) formality (for facts can be considered, no

As the commercial traveller, having previously agreed to play the game of a judicial process which eventually leads him to formulate a moral judgment, does by hanging himself in the metaphorical fiction by DURRENMATT (1965).

4 As Caesar does in his chess game with Jussuf, the pirate capturing him and forcing him to play by offering to allow him to go free if he were to win, when, to avoid checkmate, he moves beyond the board and enforces his new rule by snatching Jussuf s sword and stabbing him to death. KARINTHY (1957), pp. 27-30.

matter how relevant or important they are otherwise claimed to be, only provided that, and insofar as, the presence of some further properties is also proven—properties, by this I mean, the relation-ship of which to the merit of the case at hand may otherwise be quite artificial, external and incidental as well); and, finally, (3) procedurality (for the issue of the game will be more a function of questions like "Who is it who is asserting anything? When and how does he/she do so?" than of ones like "What has finally been asserted?").

In sum, the most that can be said from an epistemological point of view is that the process is hardly anything more and other than the utilization, in a practical context, of the rubble of cognition within a specific framework, wholly determined by homogeneously specified aims, methods, forms and procedures.

5.2. As the Precondition to Mete out a Legal Sanction