As the Precondition to Mete out a Legal Sanction

itself as standing for itself. I dare to venture the statement even if it sounds nonsense: properly speaking, law and fact are not even the components of the procedure, either. They only become parts of the procedure indirectly—in the form of and as mediated by a reference to an assertion, forwarded by the parties and/or accepted by the judge as one of the premises in his syllogism of decision.

In the same sense, one may also state: the legal order is not the

"consequence" of nonns⁵ but that of conventionalized social prac-tice. (Or, to be precise indeed: legal order itself is conventionalized social practice.) As a mailer of fact, legal order is the outcome of the practice referring to norms and making, at the same time, this reference recognized as conforming to norms. Certainly, it could also now be added that not even the world of facts judged in this practice is the "consequence" of facts, either.

5 As argued for in VARGA (1990b) and VARGA (1990c).

To be sure, we can stale: facts in themselves are not legal pheno-mena at all. Only their statement may open up the way towards their becoming a legal fact Namely, (1) a statement which is not a proposition of existence in an epistemological sense but the assertion of a practical claim for starting, or modifying, a legal process, by referring to a legally relevant fact the case of which can be or has been established. This very statement can only be transformed into an event of and within the law through (2) a competent authority accepting it in procedure as the basis, or component part, of its procedure.

In the formal reconstruction of the logic operating in modem law, fact figures as the precondition for (or: is important only in respect to) meting out legal sanction.⁶ In that matter, it may sound rather cynical. Albeit it is nothing other than the restatement of the specific logic of a specific functioning. (In the same way as, ontologically speaking, Lukacs does,⁷ by stating that which is theoretical can only be relevant in practice because, and only to such an extent that it is practical. And this means that opposing theory to praxis cannot be verified conceptually. Moreover, as contrasted, they do not really exist, for praxis is the only entity that exists. It is tantamount to saying that in practice, i.e., according to its real form of existence,

"theory" is praxis, too. Still, as logic and mathematics are projected onto reality as systems of conceptual schemes artificially established by theory, theory obviously exists. It does exist although, onto-logically speaking, not as outwardly added to praxis but as a more or less thoroughly homogenized medium within it. At the same time, as a medium somewhat lifted out of the heterogeneity of praxis—alongside some homogeneous features of organization, structure and operation—it is also confronted with praxis as the yardstick of praxis. Clearly, it is the raison d'etre of its being called into being.) Well, the basic message is the relativity of homogeneous spheres vis-a-vis underlying heterogeneity. At the

6 KELSEN (1960a), p. 245.

7 LUKACS (1978).

same time, the relativity in question presupposes the development and self-assertion of particular principles of construction and func-tioning within this heterogeneity. It is the heterogeneity of everyday life that provides both the basis and framework, source and objective, above all, the genuine medium of any homogenization.⁸ And the homogeneous spheres, embedded in social heterogeneity, assert themselves through their own principles of organization and operation in the overall process of social reproduction.

Returning to the normative decision-making process: it would be faulty to assume (as the Cartesian myth' did, and, in addition, it would also merge together different homogeneous spheres) that this is the case of, first, "cognition", and, then, subsequent "practical reaction". For the normative decision-making process is, from this perspective, basically a kind of practical reaction to some assertion of facts and, then, testing both this assertion and the reaction to it in a limited process.

Two conclusions can be drawn from it. One, no establishment of facts whatever within the normative order can be derived from either the event which occurred or its having been taken cogni-zance thereof in any way. The normative order makes it possible to establish, with reference to the same event, as many "cases in law"

"constituted" by "facts" as mriny conclusions to legal consequences it allows to draw by offering justifiable bases of reference. Two, no statement of fact can start a procedure just because it is true. A fact and/or its statement can only be instrumental in starting a procedure because it has been done in a way suitable for starting a procedure.

Consequently, its truth is relevant not from the point of view of law but from that of the practical chance of its being attacked by reference to its lack of truth. For the normative precondition of starling a procedure is not the truth of the alleged facts but its provability. The truth of the statement of facts and the requirement

For instance, even in the light of micro-analysis, there is nothing in the homogeneity of law which could not at the same time be also heterogeneous. Cf.

VARGA (1985a).

' Criticized by RYLE (1949).

that its alleged provability will be tested through procedural proof are actually nothing more than bases of reference established by the normative order and backed by the law's professional ideology. The only genuine limitation is that, at least in the name and within the reach of the law, they may not be refuted or negated overtly or explicitly. On the other hand, the law will qualify the result it finally reaches as "certainly provable", as "proved in procedure", and, finally, as "true". This way, all components being a function of normative procedure, I could summarize by way of a reductio ad infinitum that what is required by the law is, in the final analysis, not the truth but an actually unassailed assertion referring to truth.

5.3. As a Non-cognitively Homogeneous Activity