Law and Its approach as a system

Autore:Csaba Varga
Carica:Senior Research Fellow ai Institute for Legal and Administrative Sciences of the Hungarian Academy of Sciences
Pagine:177-199
RIEPILOGO

1. The logical structure of law as a historical product. 2. Tendencies of formal rationalization in legal development. 3. Historical development of the approach to law as a system. 4. Present state of the attempts at a logical reconstruction of law and legal reasoning. 5. Question of the axiomatic conception of law. 6. Heuristic value of the approach to law as a system.

 
ESTRATTO GRATUITO

    [Editor's Note] This article is reprinted from: ´Acta Juridica Academiae Scientiarum Hungarian, Tomus 21 (3-4), 1979, pp. 295-319.


Page 177

@1. The logical structure of law as a historical product

There is a statement largely widespread in social sciences according to which development, and particularly legal one, since the Revival of Learning has led to the triumph of logic, Marxist legal theory, too, although in its Investigations it primarily concentrates on questions of social contents, wants to discover ´un processus juridique et formel particulierª in the universal processl'of legal development, a process which is even considered as segregating the proper history of law from Its prehistory1. Undoubtedly, simultaneously with Its objectification as a written rule, with Its development to something created, i.e. to statutory, codified law, in the course of Its formation law has gradually undergone changes: It has transformed Into a logically organized ensemble of rules, Into a system elaborated in Its notional coherence, on the creation of which the Ideal of axiomatism, and on the application of which the demand for deductive definedmess, have put their stamp.

All this is, however, not a straight-lined development tending towards Infinity, or a self-contained development determined by and for Itself. Even Fr, Engels brought the birth of the demand for a formal coherence in law, of the postulate that law is ´ein in sich zusammenhangender Ausdruck, der sich nicht durch innere Wlderspruche selbsi ins Gesicht schlagtª, decidedly Into association with modern statehood 2. What I have here in mind is thatPage 178 the 'tecnological' transformation of law, its manifestation in the form of a relatively autonomous, and also logically organized, system, is a historical formation. It s a historical product which came into being and developed in a given social and developed in a given age for the satisfaction of given social and economic needs, Its preface is therefore far trorn being evident, even if the universal ´Tendenz zur Rationalisierung des Rechfsª3 might loom up as a natural property of the industrial society so characteristic of our age. Hence notwithstanding Its ability to satisfy, to a certain extent, the needs of our age, the transformation in question is to be considered but a historical particularity whose explanation can be given only by historically unfolding it in Its whole social and economic context.

´Wir kennen nur eine Wissetischaft, die Wissenschaft der Geschichteª, wrote K. Marx and Fr. Engels in their early polemic work4, thus indicating the ontological intertwining and multiple interaction of social phenomena among themselves and with the ones of nature in the following I propose to undertake the unfolding of the formation as well as of the structure and Inner limits, of the demand for organizing law as a logical system and, as Ideal, for conceiving of it under the changing, although lasting, Influence exerted by the axiomatic-deductive pattern. Obviously the historical particularity of all these define at the same time the historical particularity of Ideologies and theoretical Images connected with them. As it will be shown, feudal absolutism and free trade capitalism,. by creating the structures of formal rationality, have not only given shape to a system of Institutions and ideologies adequate exclusively to their own conditions. By turning these both socially typical and of determining effect, law has helped to power a set of instruments and ideologies which have pointed beyond their strictly limited historical condition in order to become the carrier of more general practical as well as theoretical tendencies. The fact that structures of formal rationality are being made use of by the social organisation of both monopol capitalism and socialism as well, does not alter the original conditions 'once having produced them. It is exactly on the ground of their historical determination that 1 attempt the critique of the axiomatic deductive theoretical patterns by demostratlng their conceptual as well as historical limitations. At the effect of what factors and in what forms this in Its own age and under Its own conditions adequate, classical axiomatic deductive pattern has been salvaged for our times, has, however, to be made the subject-matter of another study.

@2. Tendencies of formal rationalization in legal development

The category of formal rationality is the product of bourgeois development in the focal point or formal rationality there is the demand' for calculability,Page 179 a demand which in its elementary forms manifested Itself in the organization of economy relying on double-entry book-keeping and, later on the rational calculation of capital. It was M. Weber who made it clear that the whole organization of bourgeois society consisted of a set of formally rationalized structures, Beyond economic organization he discovered this type of structures in the administrative, judicial, military, ecclesiastic, and party organizations as well. He revealed that impersonality and determined ness by a system of pre-established rules prevailing in the functioning of these structures had laid the foundations of bureaucratic rule and created the bureaucratic complexity of bourgeois society5. Thus in the light of the Weberlan exposition of bureaucratic organization the demand for formal rationality has become the stigmatic sign of capitalist society.

As G. Lukacs has made it clear with reference to Taylorism, this most characteristic, though extreme, potentiality of the capitalist division of labour, formal rationality is but the dissolution, i.e. the cutting up, of organically united processes, on the ground of the cognition of the Interrelation of their components into a series of artificially interconnected part-process6.

It is this structure that in feudal absolutism, advanced by the Interests of the enlightened absolute monarch as backed at the same time by the growing bourgeoisie, had become Institutionalized as a consequence of the development of state finances, state army, as well as state bureaucracy created for their uniform operation, even when the structure in question gained Its decisive, typical and autonomous existence only in capitalist society.

Hence formal rationality is a historically defined phenomenon, on the one hand, however it is by no means void of antecedents on the other. Formal rationality as a principle tending towards calculability is a characteristic product of bourgeois civilization, although it appears in its germs already at an early stage of social development. As far as legal regulation is concerned, formal rationality was the product of the coming into power of the bourgeoisie as brought to fruition by feudal absolutism. in a wider sense, in its elementary manifestations, formal rationality is, however, and Indispensable property, the sine qua mom precondition of any conscious, planned, willed and controlled, social influence.

As it is known there was a first and decisive change in the formal development of law when law broke off from the body of customary laws forming a unity with everyday social practice, and as a written law became objectified as something distinct and externalized from customary law. it was then that the norm-structure of law, too, developed, i.e. the structure whichPage 180 turned the behaviour originally set as a goal and assigned as instrumental to the result to be achieved, into something independent; abstracted from the result to be achieved it set the behaviour itself as an autonomous objective before the addressee. By defining both the behaviour to be observed and the consequences of its observance or non-observance in a formal way segregated from the factualness of social practice, law has given a mentally pre-constructed normative pattern to social behaviour.

In order to see what points may have been decisive in the universal development of formal rationality in law, we have to recall some of the most important teachings afforded by legal history as outlined in some of my previous papers. To begin at the beginning we have to note that for Marxism formal-technological metamorphosis of law, in like way as any change in its contents is by no means a random-like unmotivated act: both supervene in dependence on the change of social-economic relations forming the real context of it.

As regards the first stage I have in mind the Mesopotamia of before and subsequent to the second millenium B.C., this historically unique situation when parallel to the transition to the wooden plough and the progress made in metal-working, this favourably sited region of a fair climate embarked on an unprecedented development. The want of prime materials encouraged trade, the construction of a system of irrigation and other public works prompted to wars for territorial conquest and for capture of war prisoners to become the slaves of their conquerors. All this, on the one hand, brought about a proliferating bureaucracy, and, on the other, a rapidly spreading empire, where the conscious establishment and empire-wide unification of the laws, i.e. their putting down in written objectification and so the very chance of their uniform enforcement, had become the precondition of survival, in the ensemble of rules known as the Code of Hammurabi norm-structures appeared in an already mature, almost perfect, form with presenting even their system-like organization in their objective consolidation and, partly, casuistic succession7.

Be the role of Roman law and its consolidation by Justinian in view of subsequent development ever so significant, in the technological formation of law this had primarily a function only in the conceptualization of law as well as in its transformation into a phenomenon expressly established and enacted by the profane, personal and, in principle, arbitrary will of the ruler. Development meant thereby the change-over...

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