General Legal Theory

General legal theory (Translation from Hungarian) by Béla Pokol Századvég Publishing House. Budapest 2005 ISBN 963 7340 08 4 2 Table of contents Foreword.............................................................................................................................................4 Part One: The concept of multi-layered law….................................................................5 Chapter I - The Layers of Law........................................................................................................5 1. The legal system and the concept of law......................................................................................5 2. The structure of the layers of law.................................................................................................10 3. The interpretative filter ("hermeneutic buffer") in legal systems.................................................20 4. Law as a professional institutional system...................................................................................29 5. The place of legal education in the legal system...........................................................................37 Chapter II - The layer of fundamental constitutional rights.........................................................44 1. General issues of the fundamental rights layer...........................................................................44 2. The Hungarian Constitutional Adjudication...............................................................................55 3. The legal theory of the German constitutional adjudcation........................................................63 4. The efforts to constitutionalise the application of law ...............................................................70 Chapter III - Other aspects of the complex legal system................................................................79 1. On the nature of legal dogmatics...............................................................................................79 2. The legal topics..........................................................................................................................87 3. The law and the legal system.....................................................................................................93 4. Legal policy and the legal system.............................................................................................103 5. State versus private control of law............................................................................................113 Chapter IV - Sources, interpretation and validity of law...............................................................121 1. Sources of law............................................................................................................................121 2. The interpretation of law............................................................................................................128 2.1. The foundations of legal interpretation..............................................................................128 2.2. The interpretation of the law by the Hungarian Supreme Court........................................136 3. The validity of the law..............................................................................................................142 Chapter V - Judicial precedent case law.........................................................................................149 1. General questions of judicial case law.....................................................................................149 2. The Hungarian precedent law...................................................................................................154 Part Two: Legal Theories, Schools of Legal Theory.........................................................159 Chapter VI - History of legal theory................................................................................................159 1. The history of legal theory.....................................................................................................159 2. The Interest Jurisprudence….................................................................................................174 3. The development of Hungarian legal theory..........................................................................178 Chapter VII - German legal theory today........................................................................................204 1. The legal theories of Esser, Larenz, and Kriele…………………………...………..................204 2. The legal theory of Jürgen Habermas........................................................................................213 VIII - American legal theory.............................................................................................................223 1. The stages in the development of American legal theory........................................................223 2. The economic concept of law and the theory of law by Richard Posner.................................228 3. Postmodern critical legal theory................................................................................................242 4. Originalist and textualist legal theory........................................................................................248 Part Three: The Sociology of Law.......................................................................................254 Chapter IX - The emergence and development of the sociology of law........................................254 ………1. The sociological view of law……………………………………………………………....254 2. A danger of sociological factual research in law: the temptation of politicisation………256 3. The emergence of the sociological view of law..................................................................257 4. The institutionalisation of the sociology of law..................................................................260 3 4. The institutionalisation of the Hungarian sociology of law..............................................261 Chapter X - Some fundamental problems of the sociology of law............................................264 1. The expansion of law and jurisprudence in society..........................................................264 2. The sociological issues of judicial processes....................................................................272 3.Ways to avoid litigation.....................................................................................................280 4. The chances of access to justice........................................................................................287 5.The sociological analysis of the expansion of tort law in the USA...................................298 6. The sociology of legal ideas..............................................................................................302 Chapter XI - Empirical sociology of law: the sociology of judicial decision-making................312 1. The observation of German judicial activity..................................................................312 2. The observation of the activity of the Hungarian judiciary............................................315 Bibliography.....................................................................................................................................324 4 Foreword In this volume, I have attempted to develop a comprehensive theory of law. I have based the social theoretical starting points primarily on the theory of Niklas Luhmann and accordingly understood society as a conceptual-systemic construction of comprehensive reality. In contrast to him, however, I have also tried to include the structure of domination in society in my social theoretical synthesis and to take into account the supra-legal determination of the ruling groups at the level of society as a whole in my analysis of law. According to the starting point of Luhmann's theory, on the basis of physical and biological systems, sociality emerges as an independent system level through the mental systems of individuals. Here, only the intellect and its anchors provide the material for stable organisational structures. Reason, anchored in concepts, distinctions, patterns of action and norms, forms the specific material of society. This train of thought goes back to Dilthey and Husserl, but Luhmann combined this train of thought with theories of complex systems, and I have used it in this form in my theoretical work. However, I did not follow Luhmann's theoretical turn, who increasingly oriented his analyses towards an autopoietic concept of systems from the late 1970s onwards. With this turn, the stable structures of social formations were gradually pushed into the background in his writings and, in my opinion, a number of his earlier insights were lost. On the level of social theory, my distancing from Luhmann but my adherence to the insights of his early work is well illustrated by the analyses in the first volume, so that I did not need to go into them in more detail in this volume. My analyses of law in the narrower sense were published in the early 1990s in three volumes (Pokol 1991, 1994, 2000) as well as in smaller studies that unpacked the conceptual systematics of law and the inner layers of the complex legal system step by step. The first studies - still in the late 1980s were based on Luhmann's theoretical sociology of law and his theory of legal dogmatics and were complemented in particular by the monographs of Karl Larenz and Josef Esser in their exploration of the inner structure of law. It was during this period that the concept of the multi-layered nature of law was formulated in my mind, and it was on this basis that I encountered the growing importance of constitutional fundamental rights in modern legal systems during my study trip to Germany in 1989. At that time, there was no constitutional jurisdiction in Hungary and we were struggling for its recognition during the transition to multi-party democracy, so in my first writings I tried to integrate fundamental rights harmoniously with the other layers of law. It was only when domestic constitutionalism reached a level of activism unparalleled anywhere in the world in the early 1990s that I began to better understand its inherent problems, and from then on, the excesses of fundamental rights at the expense of the other strata of law became more critical in my analyses. A deeper understanding of the internal struggles of American legal theory and the developments of the American "fundamental rights revolution" that threatened the law as a whole eventually shaped my reservations about activist fundamental rights jurisprudence in the course of my later research, which, while recognising the role of fundamental rights, are a constant feature of the analyses in this volume. My first summary of legal theory, entitled "The Theory of Law", was published by Rejtjel Publishing House in 2001, and my follow-up volume, "Sociological Studies in Law", was published by the same publisher in 2003. In writing the present volume, I have added the latter volume to the end of the earlier summary, which is justified by the fact that in my analyses I have not strictly separated the theoretical and sociological aspects of law and have tried to write a sociological theory of law. In this way, the fullness of the legal system can better unfold in this volume. However, in addition to the summary, I have made some changes to the text based on my research since then and added some small sections to the earlier analyses. Budapest, 15 May 2004. 5 Chapter I The layers of law 1. The legal system and the concept of law Regular monographs on legal theory traditionally begin with an explanation of the concept of law, and each chapter then breaks down the main components of the concept of law. This tradition can be said to be correct because of the need for a didactic presentation and is essentially followed here. However, based on our general knowledge of social theory (cf. Luhmann 1984; Pokol 1999), we see all mass activities aimed at social functions within the framework of a complex society as a system, so that the concept of law can only be adequately explained as the concept of a legal system. After developing the concept of a legal system, we can then - in line with traditional legal thinking - summarise the less precise concept of "law", which is basically a conceptually looser repetition of the concept of a legal system. 1.1 The essence of social reality: intellectual reality The legal system is a functional subsystem of society, just as science, politics, mass media, health care, etc. are such subsystems. Therefore, it is first necessary to clarify the "functional material" of society, which is the material of all social subsystems, as distinct from the material of natural reality beyond society (or, in evolutionary terms, below social reality). Then we can turn to the internal components of the legal system. Living under the conditions of natural reality, we tend to grasp social phenomena by interweaving and focusing on the objects of physical reality. For example, we identify a city or a people with their geographical surroundings and tend to unconsciously link the reality of the social phenomenon we observe with physical and biological conditions. A museum, for example, is represented by its characteristic building, a university by its cathedral and lecture hall. But the reality of social phenomena builds on these, and the more advanced society is in its functioning, the more it uses the conditions of physical and biological existence as prerequisites and unfolds the material of social reality. This in turn means the specific existence of intellectual relations that live in the communication between people and have a permanent existence in norms, concepts and the symbols that express them. In their short socialisation after birth, but which becomes longer and longer at higher levels of social development, people with consciousness acquire the concepts, expressions and operations necessary to deal with the natural and social realities created by previous generations. The common concepts also provide a stable structuring of social reality, so that the conceptual softness of the concepts disappears and the possibility of structuring them differently with different concepts is usually excluded. Thus, despite the conceptual structure of social reality, which is fixed by concepts, categories, norms, the idea of a "physically hard" social reality emerges and its conception as an extension of natural reality (cf. Berger-Luckman 1996; Karácsony 1996). Especially in the context of simple societies, the idea is developed that social phenomena and norms are as eternally constituted as the laws of natural causality. In the context of modern, developed societies, however, the "constituted" character of social institutions and the mechanisms of their constant reconstitution are becoming increasingly evident, and the conceptual construction of social reality is becoming increasingly clear. The thesis of the "objective" existence of social formations that are independent of communicative practice is thus false, as is the complete denial of the independence of these formations from 6 individual acts of thought and speech. The degree of relevance of social formations to existence between these two extremes can always be decided on the basis of concrete investigations (see Pokol 1999:106-116 for an explanation). At the beginning of the 20th century, this development led - especially in German science - to the separation of social reality from natural reality and to the grasping of social reality as mental reality. Following Dilthey, Edmund Husserl and then Alfred Schütz, this scientific development prevailed throughout social theory (for a summary see Hernádi 1984). 1.2 Functional subsystems of society as systems of meaning As social development progresses, social communities can adequately fulfil the basic functions necessary for their existence only if the mass activities for each function are separate. To mention only the most important, it should be noted that, for example, the need for some kind of community administration - defence, police - in every community requires some kind of state political activity, or that in the same way conflicts that arise between people require judicial institutions, or that, for example, newcomers need to be socialised and this leads them to seek some kind of education, and one could continue the enumeration of the basic functions of society that every community must solve in some way in order to survive. At a primitive level, these functions can be fulfilled in the family, in neighbourly relations or in a village as a whole, without the need for special social institutions, but the higher the level of society and the more people live in closed villages in a more comprehensive and impersonal society, the more these functions can only be fulfilled by autonomous functional subsystems. Thus we can observe the functional separation of state politics, law, science, economy, education, health and mass communication throughout history, and highly developed societies can only exist through the independent functioning of these subsystems and their balanced interrelation. With this process of functional separation, the intellectual structure of society is increasingly shaped by the legal subsystem, the political subsystem, the scientific system, etc., each of which constitutes its own intellectual subsystems. It should also be pointed out that in the course of social development, not only do the social subsystems specialised in certain basic social functions split off and dissolve their inner intellectual coherence, but these also become increasingly professionalised and thus step out of the everyday world (cf. Pokol 1990). The development of society as a whole is determined by the fact that the basic functions of professionalised lawyers, politicians, entrepreneurs, writers, artists, doctors, etc. are exercised in functional subsystems that have risen above the lay activities of everyday life. The separation of a functional subsystem from the others (and from the organisation of daily life) is ensured by the fact that it processes the events of reality through its own unique value duality. This value duality (or binary code) enables it to formulate the contexts and actions from the point of view of the social function it fulfils. For example, in science reality is processed through the value duality true/false, in economics through the value duality profitable/unprofitable, in democratic politics through the value duality "coming into government/going out of opposition" and in law through the value duality rightful/unrightful. The concepts, thought patterns and connections established in each subsystem are already defined by their own value dual and thus enable the processing of reality in a certain intersection. The intellectual structure of society thus consists of intellectual subsystems that function according to individual basic functions, and the concepts and thought patterns created in each professional subsystem are transferred - in a simplified form - as part of "general education" through mediation into everyday life and thus promote everyday thinking. This enables the survival of a more complex society as opposed to an organisation that can only maintain a simple society in which all functions are fulfilled by diffusely interwoven social activities and their institutions. For example, a royal court in the Middle Ages was an institution for military, judicial, religious, economic-political, etc. activities, or a monastery an institution for religious, economic, educational, scientific, etc. activities. This did not allow for a functional differentiation of the individual activities. Simpler social formations and elementary function provision are still possible, but no longer suitable for reaching the level of complex social institutions. 7 In the study of modern societies, we are thus dealing with functionally different systems of meaning, each of which can develop an autonomous logic along its central dual of values and thus ensure the functioning of society on a higher level. However, this functional separation and functioning according to its own logic is only possible within the limits of what the mechanisms of domination of the dominant group of people (elite, class) allow at the level of society as a whole. By 1900, European societies - and the American societies that emerged from them - had established a structure of domination that allows the group of people who hold the position of ruler at the level of society as a whole to direct society only within certain limits, and which is based on regular elections. However, within limits and through a series of hidden mechanisms, this domination exists, and while its limitation is a prerequisite for functional differentiation, the existence of the dominant group at the level of society as a whole only partially allows the functional subsystems to function according to autonomous logics. And the socially dominant group, as analysed in detail in Volume 1, can occupy this position by controlling the mechanisms of money. 1.3 Law as a system of meaning In order to avoid conflicts between the members and organisations of society and to resolve them when they arise, law processes reality in the intersection of right and wrong and thus gives normative guidelines to the members of society for their behaviour in their relationships with each other. It tells us how to behave in a given situation, what to do and what not to do. And it attaches consequences (sanctions) to the violation of these norms of behaviour, which ultimately manifest themselves in the use of force by the authorities. In the most general sense, then, law is a set of rules of conduct backed by state coercion. Of course, there are other norms besides law (rules of politeness for different situations or rules of hygiene and a number of moral and customary norms in different communities) that are sanctioned by the community - for example, through disapproval or even ostracism - but they are not backed by state coercion and are therefore not legal norms. In general, law can be described as a norm, but it should be noted that the individual norms must be more or less free of contradictions in order to avoid and resolve conflicts in society as a whole. In other words, legal norms can only function effectively as a system of norms that are coordinated with each other. Thus, the development of law shows that over the course of several hundred years, from the early Middle Ages of European legal development to the 18th century, the legal norms of the individual countries became increasingly systematic and divided into internal branches of law, including supplementary legal institutes. The need for freedom from contradiction in law increases with the development of society, and the complexity of complex societies can only function with a high degree of freedom from contradiction. This can be guaranteed by the systematic character of legal norms. In an increasingly dense society and with ever more intensive interaction between millions of people and organisations - in contrast, for example, to the requirements of unchanging conditions in small communities in closed villages at the earlier stage of social development - the systematic nature of legal rules is only made possible by increasingly complex legal systems. In early medieval Europe, for example, law was essentially administered by judges alone - for a long time they were not even trained jurists - and it was their decisions that established the law of the land as customary law for centuries. Later, however, conscious lawmaking became increasingly detached from the judiciary - first through the creation of codes of customary law, then through the creation of new, increasingly conscious codes - and at the same time jurisprudence played an ever greater role in developing more precise legal concepts. In the Enlightenment period, the legal system consisted of a separate legislature, a judiciary applying the law, and jurisprudence developing legal doctrines and concepts. The system of legal norms as a system of meaning can thus increasingly function as the combined product of three layers of law in the modern societies of the last centuries. The three layers of the legal system in the nineteenth century are: the textual layer, which emerges in the legislative process; the layer of legal scholars, who clarify and elaborate the conceptual context of the terms, categories and concepts in the legal text; and finally, the layer of judges, who apply the law to individual cases. The relationship between these three levels of law can vary from one legal system to another. The English legal system, for example, which has developed largely on the basis of judicial precedent - and 8 the Acts of Parliament that have existed since the second half of the 19th century - uses the case-bycase regulatory technique and does not establish more abstract norms, as in the legal systems of the European continent - has not built up a developed legal dogmatic layer, but precisely because of the detailed-concrete regulatory method, judicial precedent is not strongly detached from the conceptual level of the statutory text (cf. Dawson 1968). Here, the law is essentially a combination of judicial precedents tailored to cases and specific and detailed statutory provisions tailored to cases - as two halves of a single layer of law. While it should be noted that there are a number of legal concepts in the English legal system, they are not as prevalent there as in abstract continental law. In the legal systems of continental Europe, however, the division into three legal layers is very pronounced, and it can be said that the stronger the role of legal doctrine and thus of abstract code law, the more the legal layer in a legal system must be supplemented by case law. The clearest example of this is German law, but the legal systems that have developed under its influence, including Hungary's, also illustrate the division of the legal system into three layers of law. In this solution, the conceptual definition of legal norms shifts heavily from the legislature to the jurisprudential circles, and the abstract statutory law developed by them can be poorly defined by parliamentarians when adopting legal texts. On the other hand, judges are given open-ended norms so that they have great freedom to develop jurisprudence within the provisions of the abstract text. In other words: In this constellation, the focus of the conceptual definition of law shifts away from parliamentary politics and gives a greater role to legal scholars and the judiciary. However, it is undisputed that this places the law more in the hands of professional lawyers, whereas in the above-mentioned English solution, not only lawyers but also parliamentary politicians have a greater influence on the definition of law. If one compares English law with continental law, one finds that the detailed English legal norms are predominantly precision norms for the persons acting in specific situations, whereas the continental legal systems, which are based on abstract legal codes, often only provide guidance at the level of legal principles for the conduct to be followed in specific situations. It is only the additional legal layer of the clarifying jurisprudence of the judiciary that shows what is "legitimate" in a given situation and whose actions are supported by the law, including by state coercion. In other words, the alternative to English law, which is rule-governed, is the duality of abstract normative legal principles and their clarifying jurisprudence in continental European legal systems, and the two different solutions can be formulated as two responses to the regulatory needs of modern societies. In addition to these traditional layers of law, a new layer of law has emerged in the legal systems of several countries in the last half century, which to some extent restructures the traditional layers of law. This is the constitutional layer of fundamental rights, which only emerges as an independent legal layer where constitutional jurisprudence is developed alongside the written constitution. It was limited to the United States at the beginning of the twentieth century, but has steadily spread to several Western European countries since the 1950s and was introduced in most new democracies in the wake of the 1989 wave of democratisation in Central Europe. The constitutional fundamental rights originally arose as human rights in the ideological-political struggle against feudalism, formulated various political and humanitarian demands and were incorporated into state constitutions in the 19th and 20th centuries. When constitutional jurisprudence began to be guided by them and to examine concrete legal provisions for their possible unconstitutionality, it became clear that although they could easily guide state decisions as abstract requirements, they would lead to different and contradictory decisions when rights were concretised in individual cases. In other words, these fundamental rights are often contradictory in individual cases and can only be applied by deferring one of them and favouring another. But when other judges decide and give preference to one fundamental right over another, they come to the opposite conclusion, and thus an unpredictable constitutionalism often rules the law. It is up to the individual judge to decide, based on his or her own hierarchy of values, which rights he or she considers superior to others. If the level of constitutional fundamental rights is only directed at the legislature and the legislature, and this level of rights only guides the choice of alternatives here, then, despite this problem, several years of constitutional decision-making material can provide a more or less clear decision-making aid for the fundamental rights, and a consistent catalogue of criteria (tests, internal yardsticks) can reduce the contradictions between them. Of course, this is only if public opinion in the underlying legal circles exerts pressure on the constitutional judges to consistently adhere to the developed criteria. In this case, the constitutional fundamental rights and the constitutional principles derived from the constitution will determine legislation "from above", through the most abstract normative reference points, and will not allow legal provisions to be pushed in directions that, 9 although accepted by the majority of the empirical popular will, contradict longer-term civilisational requirements. The problem becomes even greater when the abstract and contradictory constitutional fundamental rights and principles begin to more strongly displace the legal dogmatic activity of jurisprudence working with a traditional case law approach and legal concepts derived from abstract fundamental rights and principles emerge instead. This has happened before in legal history around 1700 and at the beginning of the 19th century, when the emerging legal rules and concepts were deductively derived from the principles of reason and natural law. Unable to regulate the rapidly changing circumstances of a complex society, these legal reflections and thinking about the "eternal being" died out in the mid18th century, but in recent years the exaggerations of constitutional jurisprudence and "juridification" have partially revived these efforts in some legal circles. The problem becomes even greater when fundamental constitutional rights begin to have a direct impact on the application of the law by the judiciary, and it may be possible to strike down relevant legislation as unconstitutional on the basis of a fundamental right, and to make judgments directly on the basis of fundamental rights. For a few years, this was the direction in which the administration of justice developed in the United States from the mid-1950s onwards, but by the 1970s it was severely curtailed by the problems that arose. In any case, when constitutional fundamental rights act on the legislature, they can be understood as a new layer of rights in addition to the traditional three layers of rights. And in most countries where constitutionalism has emerged, this is the case. The main difference between constitutional fundamental rights and principles and legal principles abstracted from the rules of a specific field of law is that the latter form a coherent unit of meaning, i.e. they contain the abstract meaning of the specific rules of the field of law in summarised form. Conversely, constitutional principles and fundamental rights cannot form a contradiction-free system of meaning, even if they are concretised by the constitutional judges of a legal system through internal tests and criteria. For example, it is not compatible with the mother's right to control her body and express her personality if she wants to get rid of her unwanted pregnancy through an abortion when she takes the life of the foetus. In such conflicts, only the values of the constitutional judges will ever decide, and the different hierarchies of values of the other judges will decide in different directions on this issue, but there can never be a final answer to this conflict of fundamental rights. And, although not so obvious, there is in every fundamental rights conflict. 1.4 The concept of legal system It is clear from the above description that law is a conceptual system containing, on the one hand, the norms - fundamental rights, constitutional principles, legal principles, legal principles, legal and administrative rules, judicial norms - that prevail in the interactions of members of society and their organisations and that are ultimately underpinned by state coercion, and, on the other hand, the legal dogmatic concepts they use. The legal system of any country is divided into a textual layer, a layer of legal doctrine and a layer of jurisprudence, above which a layer of fundamental constitutional rights emerges. Ensuring predictable jurisprudence in complex societies requires a certain optimal relationship between the different layers of law. The existence of a layer of jurisprudence and thus the elevation of legislation to a more abstract level in the interest of regularity and flexibility therefore appears to be a modernisation requirement. To a certain extent, English law has also developed in this direction in recent decades, although it has not yet reached the level of legal dogmatisation of continental European legal systems. Similarly, an abstract code based on legal dogmatics cannot provide a predictable legal service without clarification through case law, and case law has played an increasing role in most continental legal systems in recent decades (see MacCormick/Summers 1991; 1997). Finally, the layer of constitutional rights and principles as a new layer of law above the traditional layers of law can only be optimal if its effect is directed at the legislature and does not extend beyond the judiciary. In this case, it does not fundamentally endanger the traditional legal layers and predictable legal dogmatic clarifications, but ensures the integration of longer-term civilisational requirements into law through legislative control. 10 1.5 The concept of law More precisely - i.e. anchored at the level of the social sciences - law can be grasped as a legal system, but following the legal tradition, the concept of law can be more loosely defined using the conceptual elements of the earlier analysis. Law is a system of norms and the legal dogmatic concepts used therein, defined at the most comprehensive level by fundamental constitutional rights and principles and the constitutional judges adjudicating on them, and within this framework by the legislature and other legislative bodies on the basis of the interrelationships between the legal dogmatic concepts. On this basis, higher courts, in particular the judges of the Supreme Court, clarify more abstract norms on a case-by-case basis, on the basis of which individual judicial and administrative decisions are made, which are ultimately enforced by state coercion. 2. The structure of the legal layers The entire volume deals with the historical development of legal layers, the internal characteristics of each layer and their interrelationships, but in this section we will discuss some general issues of legal laayers in order to provide a general overview of the multi-layered law as a basis for a detailed discussion. 2.1 The binary character of the modern legal system In the European development of the last two centuries, the areas of activity oriented towards the value aspects of the most important functions of society as a whole have increasingly separated from each other. In the case of society's legal institutional system, the tendencies that have led from a diffuse embedding and value orientation to a specific orientation of modern law, namely a narrowing of the legal/judicial value perspective, can be clearly seen. This development -- or, if one is sceptical of the outcome, this change - -has -reordered the -relations between the administration of law and the political sphere, the mechanisms of justice within law, the relations between law and everyday life, the -interrelations between the -legislative, constitutional and judicial -levels of legal decision-making and, -last but not least, the place of legal doctrine within the legal order. -In this part of the chapter, we will look at the mechanisms of the complex legal subsystem from this one perspective: how the dominance of the right/wrong value perspective prevails in modern legal subsystems; how the resulting activity -is linked to -moral justice -and political considerations-; what structural problems arise from the new relationship between law and politics; and finally, how the linkage of the legal system to the respective goals of politics -affects the possibilities of legal -dogmatic conceptualisation. 2.2 Theoretical considerations In our view, the essential structural features of modern law can be grasped by placing it on a more abstract conceptual level, namely as a professional institutional system alongside a number of other institutional systems in society. However, if we move to a more concrete level, we can discover a number of structural differences between areas of activity that are considered as the same subsystem in a more abstract approach. A comparison of law, politics and science illustrates some of these structural differences. 1) One of these differences can be seen in the implementation of the structural autonomy of these three subsystems. Whereas in the case of science and political systems, systemic separation also meant the establishment of their structural autonomy, in a modern legal system, although structurally separated from everyday life, as in most professional institutional systems, the involvement of politics 11 (parliament, government) in the content of law is inevitable. As we shall see, this tendency is challenged by a number of theories, but it would in -any case -require -a fresh start for several centuries in the development of European law -and politics if this tendency were reversed and if, instead of political legislation, we were to return to a preference for law-making techniques within law. Thus, if we want to describe modern legal systems that actually work, we must emphasise the structural integration of the legal sphere into politics. This enforcement, of course, takes place in a separate process, the -legislative process, -so that, optimally, political priorities are only transferred to the legal subsystem through a corresponding transformation. As we shall see, this leads to a number of tensions, but at the same time -this -process of -mediation and transformation -allows the -central value dual of right and wrong to -largely dominate the legal sphere in the -context of the -increasingly intense relationship between law and politics. Or to put it another way, the process of mediation allows law to be sealed off from politics in micro-processes, while at the macro-level law and politics are increasingly linked in a specialised process of legal content formation (Luhmann 1972:235). 2) Another difference can be seen in the evaluation mechanisms. Each of them has an independent evaluation mechanism, but their distance from the more diffuse evaluations of daily life is radically different. The most autonomous in this respect is the evaluation mechanism of science. For participants in modern professional science, the only evaluators are the members of their scientific communities; scientific prestige comes from the publication of articles in journals edited by scientists; scientific prizes and academic titles are awarded by scientific societies (Hagstrom 1965; Merton 1973). In most cases, the citizen involved in the conflict decides whether to pursue the -matter through the legal process-, thus setting the professional legal system in motion, or to avoid it. Science can research what it wants, and this can be assessed by the relevant scientific communities, but in law (at least in private law cases) there is the sovereignty of the citizen to bring an action (Luhmann 1981:40). However, once the legal machinery is set in motion, the professional lawyers have already subjected the case to the internal evaluation of the law, and the fixed criterion of right/ wrong value will dominate the choice of decision. In the case of politics, the functioning of the evaluation mechanism is even more tied to the evaluation of the actors in everyday life. In competitive political systems, the value duo "stay in government/go to opposition" is oriented towards professional politicians, but is decided directly by citizens. Modern politics has thus developed a specific and autonomous evaluation mechanism based on elections and supplemented by opinion polls and other political market indicators, but on the other side of the evaluation are no longer the professional politicians, but always the citizens. This may indicate that underneath the uniform conceptual language of the social subsystems lies a different structuring in each case, so that the insights gained in one subsystem can only be transferred to the research of another subsystem to a limited extent. The advantage of a uniform conceptual language is rather that it makes aspects comparable and thus visible that -would have gone unnoticed -if the -individual subsystems had been considered -separately. 3) The comparison reveals the differences between the three institutional systems studied in terms of the design of organisational systems. In short, the legal field is most influenced by the design of organisational systems, while it plays a somewhat lesser role within the political subsystem, with jurisdiction organising the broader structures of politics, and finally, academia plays the least role. In the latter case, the optimal situation is one in which individual scientists within a given organisation are both ranked and competitive, and the organisational framework does -not constrain the -evaluative mechanisms of scientific communities that spontaneously form at a broader level. -This model is most commonly applied by American universities, but its solutions are widely used in most developed countries (Parsons-Platt -1973). The legal professional sphere is therefore largely dominated by the structure of organisational systems. From this point of view, further differences can be identified between the two major internal parts of modern legal systems, namely the part that applies administrative law and the traditional judicial sphere that applies private and criminal law. While the public administration is ultimately a single hierarchical system of organisation with -direct subordination in the -arteries of legal regulation-, in the case of the judiciary only the appellate procedures create a link between the different levels of judicial decision-making. Beyond that, however, the prevailing right/wrong in the wider legal sphere at each level of the judiciary orients individual judicial decisions impersonally and without direct organisational hierarchy. The distinction between these two parts of the law has diminished considerably over the last century with the development of administrative justice and the creation of its guarantees in Western countries. In -this way, -the judicial decision of the 12 administrative official is -subject to -the same legal process as conventional legal cases -after the litigation of the parties concerned-, and the organisational hierarchy within the administration cannot deform the rather impersonal law-unlaw orientation. 4) One of our preliminary theoretical considerations concerns the question of the legal quality of certain norms. H.L.A. Hart has formulated as "secondary rules" those principles/rules which, if they exist, can be said to have the legal character of a primary norm (Hart, 1961:8997-).- Here we would like to highlight only the rule of jurisprudence. An interesting result emerges if we compare the historical development of traditional legal matter (criminal law or private law) with that of administrative law, which has developed over the last century and a half, or with that of constitutional law in more recent times. In the development of traditional areas of law, the mechanism of law application initially emerged from the diffuse material of the everyday world of norms, and the applicable legal norms were fixed and specified in judicial practice within the framework of the judiciary. Only after centuries of development did the mechanism of conscious creation of law emerge vis-à-vis judicial application of law, so that in these areas of law a tripartite relationship between the legislator, the jurist applying the law to the individual case and the citizens emerged. However, in the case of administrative and later constitutional law, which has developed over the last century and a half, the reverse is true. These legal texts were developed at a time when legislative techniques were evolving and were therefore created through deliberate legislation. In this case, however, the judicial mechanism of the resulting norms was separated at a later stage. Administrative jurisdiction, after its beginnings in the 19th century, developed very clearly in the first half of the 20th century, while constitutional jurisdiction was finally stabilised in most developed societies only in the years after the Second World War. But even here, the tripolar relationship that existed in traditional jurisdictions has prevailed: Constitutional law is no longer a mere doctrine of principles, but is concretised by constitutional court decisions in individual cases; even an administrative regulation is not simply an instruction that passes on higher goals to lower officials, but is interpreted by an administrative court with the help of more far-reaching legal dogmatic principles in the event of a legal dispute by the citizens concerned. Returning to Hart's "secondary rules", it thus seems that the legal quality of the normative material of the administration and the constitution only emerges through the institutionalisation of a kind of "rule of law", i.e. through the creation of constitutional jurisdiction and administrative jurisdiction. 5) Finally, in our theoretical preliminary remarks, we should also mention our starting point from our general social theoretical framework for the study of law as a professional institutional system. The -main aspects of such an institutional system -are the -recruitment-socialisation mechanisms of -participants and the -evaluation-reward-sanction mechanisms. In these aspects, the central value dual of the -professional institutional system, in this case the legal system aspect of right/injustice, comes to -the fore in the process of structural separation. This specific binarity of modern legal systems must be examined -in the mechanisms of legal education and socialisation to professional law in general, as well as in the specific manifestation of this binarity in the mechanisms of law-making and law enforcement in the context of appellate procedures. Before doing so, however, the relationship of the legal system, which is limited to just/unjust evaluation, to moral- justice and political evaluation must be set out. 2.3 Justice and the diversity of binaries Modern legal systems attempt to minimise judicial subjectivity when dealing with individual legal cases by precisely defining the legal system, clarifying the terms of legal doctrine used in the legal system, defining the system of appeal procedures, etc. In this process of positivising the law, the judges' ability to evaluate from the point of view of justice is limited. The problem of unjust law, in contrast to the narrowing of the jurist's perspective of a positivised legal system to just/unjust, became particularly acute after the inhumanities of Nazi justice. At that time, the answer was the claim of natural law over positive law: a legal order that contradicts it is ultimately unjust, and the jurist must evaluate it (Hart 1961:181195-). -In -the world that has since been normalised, -however, -judges -inevitably continue to be guided by the question of whether the existing law is right or wrong, -and are compelled to do so by the whole machinery of the legal system. It seems, therefore, that modern law itself should be broken down to create a direct orientation towards justice. 13 In our view, however, this diagnosis is too pessimistic and, in the case of positivised law, we need to look in a different direction to establish a closer relationship between 'just' and 'equitable' than postWorld War II conceptions of natural law have attempted. Although aspects of justice have been largely excluded from the processes of law-making, the processes of law-making and democratic political decision-making have developed in parallel and interlinked over the last century, -especially in the more developed Western European countries -and in other countries that have adopted -the models of the latter. Moral -judgments of justice play a more direct role here, and the narrowing of the focus on -right and wrong is made bearable (and its modernising advantage can be exploited!) by the fact that one of the guiding principles of the lawmaking process -is that of moral justice, which is considered cardinal in the society concerned. -The structural organisation of democratic political systems that have the power to legislate offers the possibility of including -these aspects in the content of the law. In our view, it can therefore be structurally ensured that considerations of justice, which are excluded from the application of the law, flow into the legislative process in democratic political systems. Here, in accordance with the logic of political competition, the decision-making of political parties, the government, parliamentarians and ministers is increasingly oriented towards the binary code "stay in government/go into opposition". -Any public statement by a government politician or an -opposition leader on a world event or on the alternatives to a bill in preparation can take hundreds of thousands of votes away from his or her party at the next election or bring it just as many votes. Similarly, well-constructed arguments by opposition party politicians and press organs can -bring home to -millions of people the injustice of the -provisions of an existing law, and if that argument is consistent with the sense of justice of millions of citizens, -the existence of such a law, -or even its introduction as a bill in parliament, can -contribute greatly to the overthrow of the government and the former parliamentary majority -becoming a -minority at the next election. Even if we admit that -precisely because of the -generality and often contradictory nature of the concept of justice, -a number of solutions perceived as unjust by a section of society may be incorporated into the body of law in force, even in the case of a democratic political will, we can nevertheless maintain that -precisely in the cardinal issues that are general enough to be considered -"natural law" by the advocates of this concept, there can be no conflict between the standards of justice of a particular society and those of the body of law in force. For this reason, the mere selection of judges and law enforcement officials is tolerable in such political systems that decide only between right and wrong. It is not the -modern legal systems but the political systems that have control over the creation of law that need to be dissolved or at least reformed towards democracy if an unjust legal system has been allowed to take root in a society. It -is perhaps also plausible to argue that in Germany and Italy after the Second World War, it was not primarily the revival of natural law doctrines that restored just legal systems, but the fact that in parallel with these doctrines, the political systems that had created such law were dismantled and a democratic political will emerged based on competence and publicity. It is -therefore not a positive legal system that must be based on natural law, but a political system based- on pluralism and publicity. In addition to legislation outside the legal system, which is largely dominated by politics, a mechanism has developed within the law in which moral norms of justice have a more direct influence. We think of constitutionalism, which, after its American precursors in the last century, has finally stabilised in modern legal systems since the Second World War (England being one of the major exceptions because of its particular constitutional development). Modern written constitutions contain, alongside more specific provisions, a set of principles and rules, many of which represent the most universal moral and just norms of civilised societies. The constitutions that emerged in the new wave of constitutionalism after the Second World War articulate these norms particularly clearly. Of course, these constitutional principles would be meaningless if there were no parallel political structures based on openness and competence, and no constitutional courts to go beyond them, -as the Stalinist constitutions, which were impeccable on paper, demonstrated. -However, -with the enshrinement of -moral -standards of justice in the constitution -and the establishment of a constitutional court discourse that constantly concretises them, these principles are imperceptibly transforming and thus converging to some extent with the legal dogmatic reasoning that -has been shaped over centuries. The protection of equality, human dignity, etc. is concretised through the constitutional discourse on their violation in specific cases. In this way, the vague, diffuse and overgeneralised -norms of moral justice are made more specific to specific situations. A plethora of judgments of the constitutional courts define and concretise what it means to ensure equality; what the requirements of freedom of expression, freedom of the press, etc. mean; in everyday situations, they 14 try to find a middle ground between what constitutes the optimum between justice associated with general equality and social justice, which aims to equalise those who are de facto in an unequal position. (See Hart 1961:183 for a possible contradiction between 'justice' and 'social justice'). If universal standards of justice are not directly applicable to the millions of heterogeneous situations of complex modern societies (Luhmann 1981:326) because they do not provide the necessary concrete guidelines, then this constitutional mediation can be used to approximate this state of affairs. On the other hand, the concretisations of the Constitutional Court and the public discourse about them in the press provide explicit guidelines for subsequent legislation in the selection of draft laws. Although this is not to say that the institutionalisation of constitutional justice has "positivised" justice and that a code of "positive" principles of justice can be extracted from the jurisprudential fund of constitutional justice, it has created a systematic mediation between the duality of just and unjust and the mere duality of lawful and unjust. There is thus a structural shift in the place of the inclusion of considerations and norms of justice in modern legal systems. Instead of bringing the full personality of the individual judge to bear, the legal apparatus enforces an evaluation reduced to what is just/unjust. However, in the -legislative process that -mediates -between the legal system and the political system beyond law, moral -standards of justice are given -a -structural place in the process of constitution-making and the legislative process that mediates between the legal system and the political system. In addition to this particularity, however, there are also subordinate developmental tendencies in modern legal systems that continue to give a place to a more direct consideration of standards of justice in the micro-processes of law. These include the "anti-formal tendencies" already mentioned by Max Weber at the turn of the century, the role of jury arbitration, but also the increasing practice of arbitration in economic disputes in recent decades, which eases the tension of mere right/wrong orientation (on alternatives of extra-legal conflict resolution in everyday life see Voigt 1983:116196-). It is also worth mentioning the consequences of the realisation of the right to mediate the role of the social and welfare state, which has grown enormously in recent decades. In the course of this trend, certain parts of law (especially administrative law) become instruments of politics (cf. Kulcsár l983), and this change has an impact on the dominant role of the orientation towards the law-unlaw-value perspective. Studies analysing the specifics of instrumental law show that the importance of the text of the law and the legal dogmatic terms used in it is diminishing and that a legal application is emerging that focuses on the 'purpose' of the legislation and the goals to be achieved (Voigt l980:26) The jurist is guided by the preamble and the justification of the law, not by the text of the law, which is already overloaded with vague framework terms, and therefore tries to take into account the purpose of the political legislator in each individual case rather than applying the law. (Teubner 1982, 1984.) The materialisation of law thus indeed counteracts the dominant role of the lawful/unlawful, which we have identified as the most important developmental tendency. However, this tendency has only been the subject of more intensive theoretical reflection in the last ten years, so it is not possible to predict whether -corrective mechanisms will be used in the future to -address this problem, -and if so, what they will be.- Theoretical tendencies that question the comprehensive role of the state, but also political tendencies that have already been put into practice, have recently reduced the pressure of state policy on the materialisation of law. One way out could be the development of a "reflexive law", as Günther Teubner has indicated, but on the other hand, -future further developments of the internal legal dogmatic conception to reflect -new, more extensive tasks and a more complex social environment could also -bring improvements. This will provide future lawyers and judges with legal doctrinal texts that work with systematic legal concepts and local values rather than vague concepts beyond the law. Niklas Luhmann predicted this development in his 1972 Sociology of Law, -but in his 1974 work Rechtssystem und Rechtsdogmatik (Legal System and Legal Dogmatics), which turns to the inner workings of law, he takes a contrary view and points to the difficulties of developing a legal dogmatics. As a culmination of this change, -from the early 1980s -he attempted to -cohere his position by -rejecting political legislation altogether and favouring legal techniques of law development (see especially Luhmann 1983:l39 and l985:9). In our view, however, this -would require a reversal of the centuries-old trends in European political and legal development that have led to parliamentary and, in general, political legislation. We therefore consider Luhmann's original idea to be less utopian and see the way out in the post-development of the legal dogmatic stock of modern legal systems. Parliamentary and political legislation in general cannot be abolished, nor can the use of certain parts of the law as an instrument for political purposes. However, the political "over-transcription" of law and the inappropriate or unselective transfer of political objectives into law can be stopped. The 15 dramatic revelations in the literature about "disenfranchisement" and "nationalisation" in recent years, which have already contributed to changing the intellectual climate in Western societies (see Voigt 1980, l983; Winkler/ Gessner l983.: in English: Pokol 1988.), have supported this well. 2.4 Legislation and binary codes In modern legal systems, the processes of law-making have been excluded from law and have become a special area of mediation between politics and law. This assertion is particularly true of continental legal systems based on the reception of Roman law, but in the last century the role of written law in common law countries has increased alongside techniques of law development based on judicial precedent (Friedmann l972:4556-, and David 1977:251367-).- In addition to the intertwining of politics and the judiciary, the representatives of the academia concerned with the draft law as well as the top organisations of the affected social subsystems (education, production, health, etc.) are also involved. Among the various selection criteria for the evaluation, however, the representatives of the political and legal subsystem play the most important role. A whole range of options identified by researchers in the area to be regulated are selected in the first stage of drafting legislation without being translated into concrete options. The established issues of the political subsystem at a given time, the balance of power between the parties and the dominant positions of the political public behind them block the introduction of a number of scientifically developed options into policymaking. In addition to the decision-making alternatives that have been transformed into applicable provisions, a number of other alternatives are formulated in the course of drafting each law, which remain under wraps in the preparatory materials or in articles in legal journals. But even in this form, concrete legal decision alternatives play an important role in the functioning of modern legal systems. For the time being, they are only discussed, modelled and specified by legal scholars in legal doctrine, but live on as "rules of possibility" above the applicable law. In this way, the concept of variable law is put into practice. It is -not necessary to create a substitute law out of thin air, but to -extract -semiliving alternative legal provisions from draft laws -that have been institutionalised as options and temporarily discarded in the course of earlier legislative preparations. The institutionalised juxtaposition of de facto and de facto as options is -represented -by the juxtaposition of existing and suspended draft laws, as well as the -juxtaposition of state policies and the programmes of opposition parties embodying alternative state policies. On the other hand, -we can -describe -this situation as the multiplication of -the material complexity of law with its -temporal complexity (Luhmann 1975:56186-). -Tomorrow is -already -present -as a possibility -in today. However, our general picture of legislative processes dominated by politicians and lawyers needs to be nuanced, as there are significant differences between countries. The most politically dominated legislative process takes place in the United States. Here, the two houses of Congress play the main role in preparing and selecting legislation, -and in the committee or subcommittee system of Congress, a variety of political interest groups fight over the content of legislation-. -In the countries of continental Europe, such political battles are less pronounced in the individual legislative processes, and the battles are more -controlled -by the specialised bureaucracies of the -ministries, in which lawyers -play a dominant role to -varying degrees. -In most Western European -countries, the top bureaucracies of the ministries play the main role in lawmaking, and the political interest groups concerned tend to -form -their compromise mechanisms -around them rather than around parliament (Keller -Raupach, l971:4346-).- The role of specialists in advocacy is perhaps strongest in the Scandinavian countries. Although the participation of political interest groups in the legislative process is also strong here (Sweden and Norway are referred to in the literature as 'model states' of neo-corporatism), so-called royal commissions play a central role in the drafting of individual laws, with members recruited mainly from among the judges (Strömholm l975:374). The political element of -alternative search and -selection -or legal transformation is therefore ultimately present in -some form in the legislative process of all advanced capitalist societies. The most optimal seems to be the US legislature, which has managed to achieve both an extreme pluralisation of policy alternatives and their incorporation into the legislative process, as well as procedures for the subsequent transformation of the products of legislation and their incorporation into the functioning body of law through precedent. -Judicial transformation, in contrast to the semantics and priorities of the political system, plays a lesser role in the West German legislative process, which is reinforced by the closer ties and dependence of the judiciary on central politics, -which is -the case 16 in -all West European -countries -except England, -whereas in common law countries the lawapplying sphere is structurally more separated from politics. The relationship between legislation and politics should also be -considered in the light of changes in the structure of political decision-making in Western European -countries in recent decades. -We are thinking here of the disappearance of the more ideologically driven party politics and the emergence of political lobbies, which -has changed the relations between politics, law, science and ideology in legislation. The new trends in the legislative process, known as -the neo-corporatist transformation of Western political systems (von Alemann l981; Bruszt 1984), have less to do with the evaluation of the legal sphere than with the evaluation of politics. The essence of this change can be briefly summarised as follows: since the years after World War II, Western political parties have increasingly tried to frame their activities as "people's parties" and shed their former "class party" character, which has reduced the importance for them of legislative processes that are more hidden from the public. These parties are oriented towards votes and voting blocs, and so the -publicity of the -parliamentary plenary -(in front of millions of -TV viewers-) -between the election campaign and -two elections is of primary -importance to -us. -Their success here depends primarily on publicising their policy positions and secondarily on -exposing the -positions and weaknesses of -opposing parties, -rather than on the decision-making processes that are the grey everyday of policy-making. Thus, the logic of political competition has "thinned out" the content of the parties, and instead the issues that determine the content of the political sphere are implemented by the struggles and compromises between the main interest groups and by the -social movements that organise around a particular social problem. -(See Roth 1987, Szabó 1987) The aspect of this development that interests us now is that the value dualism inherent in the political sphere, the binary code of "stay in government/go into opposition", is not enforced as strongly in the legislative processes as it is where hard party struggles form the basis. The political element in the legislative process is therefore largely the result of struggles and compromises between interest groups rather than between political parties. However, these top-level associations are more closely linked to the social strata of a particular -social subsystem (doctors, teachers, academics, etc.), so that beneath the surface of the political struggles, the specific evaluative aspects of the various professional institutional systems also clash in the neo-corporatist negotiations over the preparation of decisions. (Cf. Willke, l983:139). Thus, when drafting legislation, the peak organisations of the medical profession not only take into account the material interests of the medical profession in a given country, but -also consider -issues affecting industry and agriculture in a more health-destroying/health-promoting intersection. Similarly, -in this political sphere shaped by neocorporatism, experts dealing with science are less entrenched in opposing ideological camps -than was the case in -the class-dominated political systems of the first half of the century, -and can adhere -more impartially to a true/false assessment of science as a specific evaluation. Of course, a certain change can also be observed among university professors and scientists who are regularly involved in political struggles. But we are only thinking here of the disappearance of the "fiery-eyed defender" type so characteristic of the first half of the 19th century. Thus, through this change, in addition to the legal element, the proportions between the political evaluation and the evaluation of the other social subsystems are reordered. This is reflected in the increased involvement of experts from various fields in the legislative process, in addition to lawyers and politicians (see Rödig 1975). In the studies already cited, Helmut Willke discusses the legislative processes based on neo-corporatism as a reflexive centre of coordination in a complex society, replacing the former hierarchical state control (Willke 1983:139). 2.5 The field of law enforcement and the binary code of law In the legislative process, the legal element is -present in the -form of legal dogmatic distinctions and categories advocated by lawyers, in addition -to political and other institutional values. -The relationship between -right and wrong is present here insofar as it involves a change in existing law, i.e. a deviation from what was previously considered law. -In the field of law enforcement, where the existing legal order is -considered an external given, -at least until it is changed-, -the dimension -legal/illegal is the ultimate basis for evaluation. Equity considerations had to be taken into account in the adoption of these rules, and only within the narrowly defined margin of discretion does the judge have the possibility and opportunity to be directly guided by such considerations in the administration 17 of justice. The popular journalistic objection that the clerk does not see the "feeling and living" personality of the client behind the file is precisely due to this feature of modern law. If this were not the case, a legal system that grants the administration of justice a wide margin of discretion through a general framework would inevitably confront not only the client with his or her "full personality", but also the judge with his or her prejudices and preferences beyond law and justice. Predictable jurisprudence is therefore inevitably associated with a reduced assessment of right and wrong. In most areas of private and criminal law, this is generally taken to be the case in developed capitalist countries, both common law and continental. In these areas of law, -the categories of legal doctrine and the system of litigation, which have developed gradually over many hundreds of years, can -lead to a more or less -dominant position for the -lawful/unlawful enforcement of the applicable law. -In these areas, indeterminate legal concepts are less problematic than, for example, in administrative law, which -has developed -so -rapidly. What is -problematic, however, is the increasing role of expert witnesses, especially in tort and criminal law, who dominate the assessment of right and wrong. In certain situations in complex societies, it is increasingly difficult for judges to determine what is justiciable without the help of experts. In any liability situation, it is almost always the thousands of (extra-legal) rules of a profession that decide the question of criminal law or liability for damages. And only the experts involved in the litigation can answer these questions, and with these answers they themselves already pass judgements. At the very least, they will have an effect by selecting the circumstances to be considered. Individual judges can no longer overrule these assessments. Thus, it is often argued that in a complex court case with several experts, the (extra-legal, professional standards oriented) assessment of the experts dominates over the lawful/unlawful assessment by the legal system (cf. Teubner 1984:296 and Voigt 1980:18). The criteria for the lawful/unlawful valuation by the judge and the legal system then function as a unification of the different expert perspectives and not as the sole and absolute measure of value. The real problem lies more in some parts of administrative law in terms of lawful/unlawful predominance. Although the introduction of a system of guarantees for administrative justice in most developed countries has removed the questionable legal quality of much of this area of law, the clarity of legal doctrine still lags far behind that of traditional areas of law. Legal theory, too, has largely generalised the major legal models from private law, thus eliminating the particularities of administrative law from theoretical elaboration and attempting to analyse it with private law constructions where it is considered (see Klaus Lenk, 1983:9091 for a sharp critique-). -However, -a particular problem of administrative law -exists where it mediates the planning activity of the state visà-vis the administrative organisation. In this part of the law there is an almost complete break with all the structural features of traditional law, and the objectives of public policy are reflected in the text of the law without any legal transformation. On the other hand, public administration here is openly committed to the realisation of the goals set out in the plan laws and not to the "application of rules" (using Luhmann's distinction: plan laws -contain a "programme of goals" -and not a "conditional programme"). And the mere setting of goals brings the executive administration closer to an open politicisation, an orientation towards political priorities (Alexy/Gotthold 1983:-200214). In this case, therefore, our entire theoretical framework is invalidated: an administration that works with such target programmes is part of the political subsystem and not an administration that has become part of the legal system. However, in terms of the total body of law, it occupies only a small part of the activity of the public administration, or the whole concept of the planning state -has taken a -back seat in Western practice over the last decade. The excessive interference of the political state has begun to endanger the stabilisation of social complexity achieved in the advanced capitalist countries, and the self-correction processes set in motion have already reversed many nationalisation tendencies. The current standard for legality and illegality in the field of enforcement is set out in the applicable legal provisions. However, in the training of professionals of the legal system, prospective lawyers do not so much learn this rapidly changing subject matter, but rather the legal dogmatic tools, the specific legal concepts, legal dogmatic distinctions and typologies that have been stable for a long time. If only the currently valid legal provisions can be taught in the university education of a legal sector, this is a good indication of the legal dogmatic decay of the given legal material and thus, in practice, of the loss of legal quality. However, legal education is important for a functioning legal sector not only as an area of knowledge transfer. The -transmission of the specific -and reductive -view of the legal community -and the professional ethos that sustains it is at least as important a function of legal education. The routine restraint of the -whole person and the acquisition by law students of a particular legal view of the social environment require a serious functional performance of legal education. Different models of legal education can meet this challenge to varying degrees. In 18 continental European countries, higher education has traditionally been, and still is, isolated from practice. In French medical education, for example, until the second half of the last century, medical students could graduate without completing any practical training beyond book study (see BenDavid -1977). -Even today, the -few weeks of internship and university law courses -have -not integrated -legal -education with practical life. The academic lawyer and the practitioner are two different types of lawyers who move in different worlds, and therefore the ethos of legal practice is imparted to the law student only to a limited extent by this educational system (this is particularly true of English and French university legal education). On the contrary, this distance allows for a critical- detachment and analysis of the functioning practical spheres, as well as an analysis and finer dissection of the contexts used compactly by the practitioner. Talcott Parsons, characterising the American university, concluded that in recent decades the practical-manipulative knowledge of law and medical schools has been replaced by knowledge based on contexts that have been dissected according to the scientific knowledge that has since emerged. For example, law draws on political science, sociology, economics, etc., and medicine begins to draw on the deeper conceptual distinctions of modern biochemistry, physiology and psychology, breaking down the traditional compact approach (Parsons-Platt -1973:286). -While -this kind of activity -increasingly meets the demands of science, it provokes -a constant critique of the functioning, practical sphere. In the continental European model of legal education, this developmental tendency now has even more structural prerequisites, but is less likely to convey the ethos of the commonality of legal practice. Rather, this happens in legal practice itself, after the young graduates have entered the profession. Of course, this also means that law schools are lost as potential centres of solidarity in the legal community. This is exacerbated on the continent by the fact that higher education, which is for general training, and vocational training for the profession are offered together. Here, law students receive sociology, procedural law and philosophy together, and the university teaching staff is equally heterogeneous. In contrast, in American university education, general higher education is separated from professional education, and the -future lawyer, doctor, engineer, etc. receives a -compressed -knowledge of the profession and its -ethos. The American model of university education seems to offer a better subordination of the -main aspects of each social subsystem under a -common value dimension for future lawyers, doctors, etc. and, by integrating the specific field of practice, allows a better socialisation of a specific value perspective by the future generation. The structure of the legal profession in Anglo-Saxon countries is also better attuned to a coherent functioning of the legal subsystem than the solutions in continental Europe. Here in Europe, the judiciary, which plays a crucial role in the functioning of the law, is more isolated from the legal profession and more closely linked to central policy. The role of ministries of justice in determining the careers of judges is crucial in a number of countries on the continent. This state of affairs is not conducive to judicial independence and, despite all the guarantees, -the existential vulnerability of the young judge makes -him or her -more susceptible to political expectations from the centre. In contrast, in Anglo-Saxon countries, the judicial career is structurally designed as a continuation of the pre-law career. Here, judicial succession is determined -from the ranks of lawyers who have made a name for themselves (David l977:298306-). -This arrangement -gives -the reputation of the profession -almost as much importance in rewarding individual members as academic reputation within the academic system. 2.6 Legal dogmatics and binary code In conclusion, we need to take a closer look at the changes in the status of legal doctrine in the course of the developmental trends of modern law and the impact of these changes on the activities of professional lawyers. -Although the distinction between right and wrong is -anchored in current law-, in order to be able to orientate oneself on it in such a way that the lawyer can interpret the relevant parts of the law in the context of the wider field of law and ultimately of the entire legal system, a comprehensive system of categories is required. It is -therefore -only possible to -regulate -thousands of different situations -more or less -coherently -by creating more abstract conceptual features. With increasing social complexity, all professional institutional systems are subject to this need for abstraction, and the direction of abstraction is determined by the internal requirements of each system in relation to the structural guarantee of its separateness. Consequently, -the distinctions, typologies and ways of thinking used in science do not pass -into education or, in the other direction, into law 19 -without -transformational selection. -But equally, -the distinctions, subdivisions and thought constructions that describe the social world in law are useless in science. Thus, in any isolated institutional system, a mechanism is required to process the mass of information originating in the social environment (and necessarily fragmented according to distinctions outside the system), to generalise it according to the conceptual apparatus of the given system, and then to separate the "raw" mass of information according to internal distinctions and typologies. In functionally separated modern legal systems, this transformation is carried out by legal dogmatics. The representatives of legal positivism of the last century, which emerged in the course of the functional separation of law, formulated this task of legal dogmatics very early and clearly: "... the scientific task of the dogmatics of a particular positive law consists in the construction of legal institutes, the transformation of individual legal acts into general concepts and the determination of the consequences arising from these concepts". (Laband, 1888, quoted in Krawietz, 1978:1). Or even before Laband, von Gerber: "... legal dogmatics consists essentially in the construction and analysis of the pure legal elements of legal institutions, separating them from the irrelevant facts." (Krawietz, ibid.) Without legal dogmatic categories and their further development, it is not possible to orient oneself to the text of the existing body of law as "legitimate". The distance between the concreteness of the individual case and the generality of the rules must be bridged by an intermediate level with its approximate distillations and interpretative guidelines. The establishment of this connection is always based on case law, the difference between common law and continental legal systems being that in the former the higher courts have the decisive word in dealing with the legal dogmatic material stabilised via the individual case, whereas in continental legal systems the more comprehensive abstractions from case law by academic jurisprudence stabilise the legal dogmatic stock. Legal doctrine and the categories resulting from the application of case law -also play an important role in the creation of new law. In creating new law, one works primarily with the already generalised legal dogmatic system of categories and its distinctions (Esser 1956:134). In this way, the law can contain general terms, and the legal practitioner nevertheless knows immediately what does not belong to this class but to that class, what is beyond the limits of classification in a given case despite the generality of the legal terms. The application of law from case to case, the generalisation of legal doctrine and legislation -thus constitute -a back and forth movement. However, the changes of the last half century, especially the increasing social governance of the state, have also led to changes in the role of legal doctrine within the legal system. Niklas Luhmann has perhaps formulated the reasons for this change most generally. All areas of activity in modern society have structurally shifted from being past-oriented to future-oriented. This implies, on the one hand, a shift towards changeable structures, and on the other hand, a concentration of thought constructions within each subsystem on the exploration of the still uncertain future (Luhmann 1974:14). Legal dogmatics can be understood in terms of systems theory as a mechanism located at the input boundaries of the legal system. It does not allow all information to flow in (which is processed and decomposed by other subsystems), but rearranges it according to the internal categories of the law. After legal dogmatic processing, each life case loses its individual face, its particularity, and is formulated as a typical case. The autonomous legal system is insensitive to the evaluative aspects of the other social subsystems, but at the same time does not take into account the important particularities of the individual case. At most, it can introduce exceptions to the general rules in order to avoid the "summum jus summa injuria", but even these can only mitigate the possible social side effects of the general nature of the legislation to a limited extent. The legal order, based on legal dogmatics and thus mediated both vis-à-vis jurisprudence and general legislation, was thus built up on the input side in the process of establishing the autonomy of law, which was accompanied by the development of indifference to the output side (the social consequences of the respective application of law) (Luhmann 1974:22). The growth of state social administration and the development of the instrumental use of certain parts of the legal order in this context fundamentally challenges this specificity of autonomous law and thus the possibilities of the conception of law as legal doctrine. The law, which translates the goals and priorities of public policy into the practice of the various social subsystems and daily life, -must be increasingly -oriented towards the future -and the goals to be achieved. -The legal dogmatic traditions of thought that have developed over the -centuries -in both common law and continental law are -totally unprepared for -this.- This entire vocabulary has encouraged the law to be indifferent and indifferent to the social environment. But the law, which is supposed to implement a thousand political objectives, can no longer be indifferent to the social consequences that arise in an ad hoc manner. 20 Since the beginning of the 20th century, we have witnessed a decline in legal doctrine: the transformation that ensured the autonomy of law and its demarcation from politics has faded into the background, and the social sensitivity of politics in the application of law has prevailed. In the course of this change, the -formerly precise terms of legal doctrine are -often replaced by general, open and indeterminate legal terms, and the judge is forced to focus on the goal to be achieved by the legal provision rather than on the formerly precise legal text. To do this, however, he must select and evaluate the consequences relevant to him from the concrete situation, and only by comparing them with the goals to be achieved can he make his decision (Teubner 1982, 1984). Parallel to this change, the rule-exception construction, which expressed the social sensitivity of the old legal doctrine, is -also pushed into the background, and the -discretion granted by -the framework regulations, -which is of a general nature -and thus without directional evaluation, -must be used to decide individual cases. These changes in legal dogmatics do not simply mean a change in the character of autonomous law, but the fusion of functionally separate law with the political system: the disappearance of legal dogmatics from the entry boundary of the legal subsystem threatens to blur the systemic boundaries of law and politics (Luhmann 1974:46). This developmental tendency is asserted by some (cf. NonetSelznick, 1979) and theorised as the consistent consummation of the political instrumentalisation of law. More sceptical analyses recognise the associated dangers of modernisation (cf. in Hungarian literature above all Kulcsár 1976; 1983 and Sajó 1982). From what has been written so far, it is perhaps clear that with the elimination of the possibilities of legal dogmatics and thus the systematic separation of law and politics, the functions of modern law can no longer be fulfilled. To orient oneself to the text of the law without a legal dogmatic vocabulary would be to orient oneself to chaos, and this is already becoming apparent in the politically overly subordinated and instrumentalised legal systems. However, we see a way out in the gradual reduction of the role of the state and the increasing realisation of self-regulation by social subsystems, as well as in the tendencies of legal development that can be observed in law alongside instrumentalisation and which the German sociologist Günther Teubner described in his concept of reflexive law. For the internal, material decision-making mechanisms of self-governing social subsystems, the central legal order would only provide procedural guarantees and organisational parities. Above a certain level of complexity, this is the limit of the regulatory scope of law. In addition to these changes, the -theoretical elaboration of the shift from input-oriented legal theory to -the "output side" of the legal system (i.e.: social consequences) can be used to find support for solving the emerging problems of legal systems in complex societies. 3) The interpretation filter ("hermeneutic buffer") in legal systems Under the textual layer of law, the analyses in the previous chapters have located several layers of law that have developed to varying degrees in different legal systems and determine the overall structure of law. There is a tension between the textual layer and the less visible underlying layers of law - the layer of legal doctrine, the current material of jurisprudence, the layer of fundamental rights - and at the two poles of this relationship are the two different professional institutional systems, the politicians and the different groups of the legal profession. From the point of view of the political system, this relationship can be formulated in such a way that the legislation of parliament and government and its provisions laid down in the legal text, as well as the objectives underlying them, are subject to a mediating medium in the actual application of the law over which they have no influence and which, apart from some simplified basic elements, they do not understand. We have so far referred to this by the term "hermeneutic buffer" and have occasionally mentioned in our analyses that this phenomenon prevails to varying degrees in Anglo-Saxon legal systems and, on the other hand, in the countries of continental Europe. It is now necessary to examine this problem more precisely and systematically. First, we will deal with the dominance of the legal dogmatic-legal scientific layer in the course of German legal development, then with the partial stalling and the reasons for it in the French model, then with the failure of legal scientific control in English legal development and its consequences, and at the end of this section we will turn to the structural features of American law, which has moved further and further away from English law in the last century and a half. 21 3.1 The "scientification" of German law Between the modern political legislator and the practical implementation of his legal text stands the legal profession everywhere in some form or other, but this interference is particularly dominant in those legal systems where, from the Middle Ages onwards, Roman law was received and combined with local customary law, which passed through the filter of the more abstract and codified Roman law. Through its abstracting effect, the introduction of Roman law into all legal systems that implemented it had the effect of a 'hermeneutic buffer' in terms of its impact on political legislation, which became dominant a few centuries later, but whether this gave the judiciary or academia a dominant position in terms of the disposition of the legal text in the centuries following its reception varied from country to country. In the development of German law, this dominance was transferred to academics through the adoption of Roman law, whereas in France, despite an early reception (12001400), it was later transferred to academics until the second half of the 19th century. The increasing role of scholars in the development of German law can already be observed at the beginning of the 14th century. At first, they were only able to assert themselves in ecclesiastical jurisdiction, but from 1500 they began to gain a foothold in secular jurisdiction (Bónis 1972:110-117). In the higher courts, it was increasingly required that a lawyer with a university degree be appointed as a judge, and in the lower courts, a special procedure was introduced to give qualified jurists a central role in passing judgement. After 200 years in the German university system, which had been dominated by the doctrine of Roman law and canon law since the late 14th century, the emperor issued a comprehensive penal code in 1532, the "Carolina" institutionalised the obligation of judges to send files in "doubtful cases" either to the "Schöffen" of a higher court (Oberhof) or to the university of the nearest town for review (Dawson 1968:198; Wiacker 1967: 180). This provision played an important role in the development of the hegemony of academic jurists over the law through the structure of the German courts at the time and subsequent historical events. As far as the German courts of the time are concerned, it is important to note that the administration of justice in the German territories was completely decentralised, with over two thousand local courts existing at the time of Carolina's creation. Due to the peculiarities of German urban development - already founded cities as mother cities extended their jurisdiction to nearby emerging cities, which similarly acted as mother cities for additional territories - a whole series of superimposed courts emerged within these urban hierarchies, which were able to create some unity in an extremely fragmented judiciary. (At this time, the central royal courts in England had barely 15 or 20 judges compared to the 2,000 German courts in England, some of whom were itinerant judges). A German town court, still a legacy of the 'scabinni' courts of Frankish organisation, typically consisted of one judge assisted by 12 to 14 schoefs drawn from the ranks of the town's respected citizens, who acted as authentic oracles of local customary law (Dawson 1968: 152). The Schoefs were thus only loosely connected to the actual work of the judiciary and were rather institutions for the promulgation of customary law in specific cases. Later, when the above-mentioned chains of mother towns were established, the schoefs of the mother town issued "weistums", "declarations of law", at the request of the court of the town below. The institutions of legal knowledge and the courts were thus traditionally separated by this development in the German territories, and it was in this situation that the centrally promoted adoption of Roman law in the German-Roman Empire took place and the university professors of Roman law then established themselves in a secure position. If around 1400 the most important source of law in the German territories was still local customary law with the aldermen as its bearers, in the following centuries reciprocal Roman law and the university jurists as its preservers moved to centre stage. The provision of the Carolina led to a flood of requests for expert opinions to the universities (Wiacker 1967: 181). Although the courts could have sent the files to their superior aldermen of the higher courts, since the Carolina was primarily based on the concepts and rules of Roman law and the vast majority of aldermen were familiar with the local common law and the "Weistums", the collections of legal opinions that grew out of it, the universities were increasingly preferred. This was also encouraged by the town chiefs and local lords who wanted to strengthen the autonomy of the area, as recognition of the authority of the high court symbolised submission to the authorities (Dawson 1968: 198), which led to the fact that by the beginning of the 16th century, the practice had spread beyond criminal law to other areas of law. 22 In this situation, the German judiciary was confronted with the complete disintegration of the Empire and the establishment of the exclusive power of the local German principalities. Due to the growing influence of the local rulers and their officials and their desire for ad hoc control of the judiciary, the courts opted to leave the actual decision-making to the universities, as a way out. The "dispatch of files" then became exclusive, and in the areas of the disintegrating German Empire controlled by local princes and their courts, university lawyers became the depositories of law. The binding nature of their opinion had also become established in the meantime, although Carolina wrote only of a request for an opinion (Wiacker 1967:182). Increasingly, it was recognised that if the sending court disagreed with the university's legal opinion, there was only one thing it could do: send it to another university, confident that it would receive an opinion closer to its sense of the law (Dawson 1968:201). The practice of file transmission - from criminal law to the entire legal system - determined the development of German law for centuries. Copies of the universities' written legal opinions circulated between the universities, were referred to in later legal opinions, and then, in the accumulation of casuistic legal opinions - the universities were their custodians and transmitters anyway - postsystematisation efforts were intensified. After the early systematisers Vultejus and Althusius, the philosophical systematisations (Hobbes, Spinoza and above all Pufendorf) that dominated the 16th century led to the development of more comprehensive systems, and by the middle of the 17th century, the law professors Christian Thomasius and especially Christian Wolf from Halle had combined German law with its underlying legal principles and concepts into a coherent system. The absolutist rulers of the time, who wanted to have control over the law, especially in the Prussian territories, were already confronted with this legal structure and tried to gain political control over the law through a legal system that was largely based on abstract legal concepts and logical principles. Even then, courts in the Prussian territories were prohibited from sending records, and it was gradually abolished in the 1800s, although the ban on sending records was not finally imposed for the whole of Germany until the Court Organisation Act of 1879. This formal exclusion, however, did not change the control of the academic legal class over the law. Their product, the legal dogmatic-legal system elaborated over hundreds of years, was in all the laws being written today even without them. A growing layer of courts and practitioners looked to their textbooks as the basis for laws and legislation. In the late 1800s, the formalisation of centuries-old "scholarly law" reached its peak and codes based on the Iron System monographs were enacted, which are still in force in unified Germany today. The new areas of law that proliferated in our century (labour law, financial law, etc.) developed on the basis of this abstract conceptual technique, although the judiciary, which had become increasingly professionalised and detached from academia, was now more dominant. After the enactment of the great codes, the centuries-long dominance of academic jurisprudence began to wane, due to the backlash of conceptual jurisprudence stretched to the limit, but also due to the academic research movement that opposed it, and finally due to the liberty law movement. After the codification of the law they created, and now that law has become a defunct institution and the judiciary has adopted the style and mindset of the jurists they developed, the need for university professors to constantly refer back to them has become redundant. Moreover, the transfer of the dominant role to the judiciary was accelerated by the events of the economic and social crisis after the First World War, when the provisions of the codes, tailored to completely different circumstances, had to be adapted by the higher courts themselves in their jurisprudence (Wiacker 1967: 543-558). The streamlined legal doctrinal system of the 19th century was thus expanded and transformed by new norms and legal principles developed in court practice. In Viehweg's words, the dogmatic system was expanded to include "topical" aspects (Viehweg 1974: 81-93), which was only continued by the Federal Constitutional Court's practice of fundamental rights after the Second World War, which transformed the dogmatic solutions of traditional areas of law to an even more abstract level. (For a reference to this in relation to private international law, see Mádl 1984.) However, as shown in the previous chapter, academic legal doctrine also finds its way into the Constitutional Court through monographs on fundamental rights dogmatics, but also in part through the direct election of university professors as constitutional judges as partners. The dominance of academic scholarship and its products, the legal dogmatic-legal models, which today are partly mediated by the "academicised" judiciary, has become indispensable, sandwiched between the legal texts and their practical implementation. 23 3.2 Legal science in the development of French law Unlike in the Germanic world, academic jurisprudence in France played an important role in the practical definition of law only in the first centuries of feudalism. In the 1200s and 1300s, the royal court used trained jurists to combat the influence of the Pope, assert its own sovereignty and strengthen its power over local vassals. The central royal court, the 'parlement', which was originally linked to the royal court, was increasingly staffed by people who held doctorates in Roman law, and lawyers were appointed to a variety of chancellorships. This academic-legal dominance was later broken in the 1500s for two reasons. Firstly, magistracies began to be commercialised in order to have sufficient funds to maintain the royal court, and magistracies, which were gradually added to hereditary courts, were no longer filled by qualified jurists. On the other hand, the quality of the law and the possibility for legal scholars to deal with French law from this time onwards was affected by the fact that secret proceedings in criminal cases were introduced from 1539 onwards, which were conducted only on the basis of documents and excluded jurists (cf. Králik 1903/I:78). This secrecy continued until 1789, so that knowledge of the underlying legal norms and the process of fact-finding remained closed to public analysis for centuries. It was not until the late 19th century that academic legal scholars became more systematically involved in the practice of law, but only under the dominance of the judiciary. In the resulting "interpretive filter", it is the judges and not the law professors at the universities who filter and select the texts of politicians. Because of this secrecy, the clients and their lawyers were excluded from the judicial process after the initial stages of the proceedings, and the judgments did not contain the legal basis of the decisions or the facts ultimately accepted by the court until the late 1500s (Dawson 1968:302). The original reason for this was the policy of the royal power, which settled many political matters with the Parlement of Paris as legal matters and did not wish the actual causes to be made public, and then the secrecy of the proceedings of the Parlement, which was at first directly involved in the affairs of the royal court, spontaneously extended to its judicial practice. This practice was then entrenched for centuries and only disappeared after the French Revolution, or, as we shall see, reappeared in a new form after some time. French law, which was slowly but surely being systematised, was taught at universities from 1600 onwards - until then only canon law and, in the south, Roman law had been taught, but this was of little use in practice, as common law was applied by the courts. Thus, it was only a few decades before the French Revolution that there was some revival of the role of university law professors in practical legal life and some systematic works on certain areas of French law. Among them, the influence of Pothier, who became a professor at the University of Orleans as a judge and was both a judge and a university professor until the end of his life, is particularly noteworthy through the Code Napoleon, which is based on his work (Fikentscher 1975 Vol. I:409). Another obstacle to the development of the legal system was the constant interference of the judges of the "parlements" in politics, often forced by the events of French history. Previously, they had been involved in the intrigues of the royal court; during the Hundred Years' War, the Paris parlement had been forced to take over the administration and regulation of the entire region from the deposed kings; and in the wake of absolutism, they had occasionally refused to register royal decrees and identified with the nobility who opposed the absolutist rulers. This did not, however, save these judges from the coming revolution, for which they were the embodiment of a secretive and unaccountable judiciary that was one of the worst parts of the order to be eliminated. In the course of the Revolution, they sought to abolish all aspects of the administration of justice of the old order to the extreme and to establish an enlightened legal order with opposing characteristics by iron will and ruthless means. Nowhere were the ideals of Rousseu and Mostesquieu so clearly lived out as among the leaders of the revolution. They wanted an exclusive parliamentary legislature in which the judge could not add a single letter to the will of the people beyond the text of the law and, as a servant of the law controlled from many sides, simply read the judgement out of the clear text of the law. At first, people did not even want to set up courts of appeal, lest they become the bulwark of the opponents of law and politics, and it was only after Napoleon came to power that they were institutionalised. As the "sledgehammer" of the legislature, the Court of Cassation was established at the top of the judicial system, closely linked to the legislature and reporting in detail every year to overturn any judicial decision that violates the law. However, in order not to curtail the exclusive legislative power of the legislature, this body has not been given any autonomous decision-making power beyond the possibility of annulment. 24 However, the law was not linked to the text of the law. The successors of the judges who had been intimidated by the Revolution, partially exterminated and forced to emigrate, endeavoured in the early years to maintain the role of servant of the law in the Court of Cassation and developed a laconic form of judgement, which now stated the legal basis of the judgement and the underlying facts, but since all the work of deliberation and reflection could not be incorporated into the judgement, if only because of the ideology of the revolution, which regarded it as a mere derivation from the text of the law, the pre-revolutionary situation was reproduced: The actual basis for the courts' decisions remained hidden, and they only formally quoted the relevant legal passage. The style of judgement of this authoritative court was soon adopted by all courts, and the laconic, condensed French style of judgement is still a living tradition today (Kötz 1973:249, 1988:648). Once again, this proved disastrous for academic jurisprudence. The revolution was inherently hostile to the universities, which stood outside the ideas of the Enlightenment and could only organise themselves outside of them (Ben-David 1971: 42,48). The Revolution was no less hostile to the idea of independent legal thought, and for a time even university legal education was abolished from 1790, but so was the bar. It was not until Napoleon restored this in 1802, although from then on the bar was more strongly controlled by the state (cf. Králik 1902/I: 88). In this situation, the "new secrecy" of the French courts once again favoured the emergence of an academic jurisprudence that was outside practical legal life. Difficult to revive, academic jurisprudence simply fell into the mimesis of the French legal style and regarded law as practically identical to the provisions of the codes. The then living force of Enlightenment ideology asserted this as an imperative anyway, and only an intimate knowledge of judicial practice could have dissuaded academics from this conviction, but they were cut off from it for the reasons mentioned above. Against this background, the exegetical school that dominated French law schools for most of the 19th century becomes understandable. For the judiciary, familiar with the actual situation, and for practitioners in general, this jurisprudence proved useless. The new circumstances and the impact of the spreading Industrial Revolution on the whole of French society made the Code Napoleon of 1804, which had been a successful work in its time, increasingly useless, but by the middle of the 19th century it had become a law of the private law. (On the difference between the Code and practice, see Eörsi 1975:501.) The practice of the Court of Cassation increasingly reshaped the Code, and it became more and more important for everyday legal practice to know the actual private law situation and for the courts to make the general systemic adjustments behind the individual case decisions. As the 'exegetical' monographs of the law schools moved away from reality, practitioners again began to systematise, as they had done hundreds of years before (Allen 1964:179). The tool for this was the new invention of a series of publications of judicial decisions, the 'analytical note', which, after describing each major High Court decision, attempted to briefly analyse its local taxonomic value and its wider context in the body of law (Dawson 1968:398). Initially, they were written by practising lawyers, but from midcentury onwards, some 'dissenting' law professors also participated in their drafting, and sporadically universities began to address the reality of the law. Later, the quality and scope of the analytical notes increased, they became smaller studies of more important cases, and on the basis of the emerging more complex conception of law, the position of the exegetical school in the law schools was broken at the turn of the century. Only after several hundred years can one speak of an integration of academic jurisprudence into the overall structure of law in France. However, this integration could only take place under the domination of the judiciary. However, a digression is necessary here to enable a comprehensive understanding. A particular duality in the development of French legal life became apparent from the middle of the 18th century. With the growth of the period following the adoption of the Napoleonic codes on the one hand, and industrialisation and increasing social complexity on the other, it became increasingly impossible to resolve legal questions directly and exclusively on the basis of the text of the law. In most countries, the resulting constraints led to a gradual expansion of text-bound legal life into a mass of judicial practice, jurisprudential dogma and norms. In France, on the other hand, a dual legal system began to emerge and remains firmly anchored in the French legal system today. In addition to public judicial reasoning and judgments, a sphere of legal communication has developed, closed to the public and accessible only to judges and public prosecutors, which impartially relies on case law, legal literature and legal policy considerations in addition to the text of the law (cf. Lasser 1995; 1998). A formal court judgment is little more than a half-page or one-page text that merely refers to the legal provision applied and the actual events and actions required by that provision, and then states which party was decided in favour of which party, or records the sentence imposed in a criminal case. Judicial 25 adjudication seems to be a syllogistic machine based on this form of adjudication, which simply reads the evidence out of the law. However, alongside this official legal reasoning, a closed legal communication sphere has developed in which a series of decision-making references beyond the applied legal text are used in a highly unacceptable manner. This "back-channel" sphere of judicial communication has been created on the basis of the "rapport" of the judge, who is the rapporteur in every appeal, and the "conclusion" of the "avocat genaral" on the side of the prosecution. The rapporteur summarises the case, the facts, the main features of the proceedings to date and the legal problems that have arisen for his colleagues in the adjudicating chamber. These confidential 'rapport' reports contain the most comprehensive information on the possibilities of fact-finding, the gaps and contradictions in the relevant legal provisions, the judicial practice to date with an account of the relevant judgments of the Supreme Court of Cassation and even the most important legal literature on the dilemmas raised (Lasser 1995:1357-1398). Compared to the half-page of a formal judgement, these reports can run to 50-60 pages, and the actual court proceedings as a whole are easy to understand. The 'avocat general', who is also involved in defending the public interest in civil cases, is part of this confidential and private judicial communication and may not only read the rapporteur's report but also write a similarly detailed 'conclusion' himself, detailing judicial practice and normative support from the legal literature in addition to the legal text. Since the rapport and conclusion are informal and French legal culture traditionally respects the legal text, there is a tension between allowing the use of normative references beyond the legal text in the judgment - or allowing gaps and contradictions in the legal text - and the associated inaccessibility outside the narrow circles of judges and prosecutors. Even French legal scholars are not allowed to consult the archives of the courts. But as the American researcher with exceptional access notes, the report and the conclusion are the private property of the judge and the "avocat general" who prepared it, so very often after the case is closed they simply take this "private property" out of the file and take it home with them (Lasser 1995:1358). So only the files that have been recently closed and still contain all the documents are taken into account. Each year, tens of thousands of such reports and conclusions are produced, three or four of which are published in the Recueil Dalloz, a journal that publishes "analytical notes" on High Court judgments. As Lasser writes, the 50- to 60-page reports and conclusions he has found in the judicial archives are published in the Recueil Dalloz in an abridged form of only five to six pages (Lasser 1995:1362). The complexity of law, the indispensability of further normative supports beyond the textual level, is thus also evident in French legal life. But while this was openly admitted and accepted in other countries from the mid-18th century onwards, the French solved this problem by duplicating the legal sphere of communication. Reduced to the textual level of law, public judgment presents judicial decision-making as a syllogistic machine, but in the absence of publicity, judicial precedents, legal dogmatic monographs and the requirements of general legal principles and ideas are always included alongside the use of legal texts. 3.3 The lack of conceptual control in English law In anticipation of the discussion that follows, it can be briefly stated that English law, unlike the major legal systems on the continent, did not experience an abstraction of legal norms; on the contrary, after the medieval initiatives in this direction, the obligation to follow precedents, the principle of stare decisis, became increasingly strict from the 1700s onwards. At the end of the 19th century, this culminated in the House of Lords, the highest court, declaring itself bound by its own earlier decisions, which were soon followed by all higher courts (which had previously only been bound by the precedents of the hierarchically superior court). With the advent of statute law around this time, the laws enacted by parliament and government were absorbed into this legal structure and the legal practice socialised upon it, so that the 'hermeneutic buffer' found on the continent, the transformation of law sandwiched between the statutory text and its case-by-case application, is only marginally present here. As we shall see, however, this does not make life easy for the English Parliament and government, and a number of measures have been taken over the last century to correct the negative effects of lawyers' adherence to the literal interpretation of the law. Adherence to precedent and state rules was not always so strict in England. In the 1500s there were still strong signs of a merging of the common law rules that had by then become established in the practice of the central royal courts with broader equity principles, and the equity jurisprudence that 26 arose to correct these rules incorporated a number of broad Roman legal principles into English law (David 1977: 145-149). However, the process of assimilating Roman law in England stalled, and the technique of following judicial precedents began to be perfected rather than abstracting the law. The teaching of Roman law in the early English universities thus increasingly faltered, and the shaping of the law, the training of jurists, the authentic record of the law became monopolised by practitioners. As we have seen, the way in which law was recorded and demonstrated was crucial in the countries of the continent. In the German territories, academic jurisprudence became the repository of Roman law alongside the dissolving local customary law, and in France, the secrecy of the law administered by judges has greatly influenced the development of French law to this day. In England, the law was written by barristers (solicitors) who belonged to a guild and closely controlled the supply of legal professionals. The 'reports' of judicial decisions were kept in yearbooks until the mid-15th century, after which a collection of judgments by a single great judge was published (e.g. Chief Justice Coke's 11-volume collection in the early 16th century). In the mid-18th century, the central bodies of the two classes of lawyers, barristers and solicitors, formed an organisation (Council on Law Reporters) to register and publish regular reports of important Supreme Court decisions. Henceforth, of course, omitted decisions are binding, and if a barrister certifies a report on them, it is also law and can be cited in court if a case arises to that effect (Allen 1964: 85). Law is what is decided, "reported" and culled from collections and court records by lawyers and their appointed members of the high courts as the legal basis for subsequent judgments. Jurisprudence has no say in this structure of customary law. More specifically, it should be pointed out that English jurisprudence is not to be confused with the systematic-abstract academic jurisprudence in the continental sense. In the development of the law, the milestones of English jurisprudence are the works of the senior judges and practitioners (Glanville, Bracton, Coke, Blackstone, etc.), which, despite their systematic approach, are more closely associated with judicial decision-making (Allen 1964: 265). Until the end of the last century, there was no university jurisprudence in England that could influence the actual functioning of practical law. John Austin's few attempts to lecture at the university at the beginning of the last century ended in complete indifference, the psychological consequences of which Austin 'rested' in Germany for decades afterwards. It was not until the last decades of the last century that the teaching of English law began at Oxford and Cambridge (Dawson 1968: 96). However, the subsequent translation of the more abstract systematic works into practical law encountered a number of obstacles. In the middle of the last century, one of the "Law Lords" in the House of Lords could still say with some pride that the latest product of legal scholarship for him was Blackstone's then 100-year-old commentaries. In 1814, Lord Eldon had declared in a dictum (a commentary on a court judgment that goes beyond the reasons for the decision) that a jurist who had not formed his opinion in a situation of jurisprudence should not be cited as an authority in court (Paton 1972: 264). Later, at the beginning of the century, this rule was relaxed to the extent that a living author could not be cited in court, and even after his death, only as a supporting argument to prove an established right. The rigid "ratio decidendi" of English common law causes many problems for legal scholarship itself. Earlier precedents that have proved inadequate can be located, uprooted and thus quietly forced to die by the technique of "distinguishing" (i.e. only precedents on exactly the same earlier case are binding, so that one can escape them by showing any difference), or precedents that have proved inadequate or have become inadequate due to social changes can be corrected in a slow process by means of "overruling" by the higher courts. The rapid changes on all sides and the multiple interconnections of events in today's world are leading to more and more crisis phenomena in the English rigidity of the common law. In many recent cases, judges and lawyers themselves have urged the parliamentary legislature to enact a law to remove an anomaly that cannot be remedied by a change in the jurisprudence. However, because of the attitudes that have developed, all lawyers still regard laws that change the rules of the common law as an evil that must be condoned by the force of an outside power in order to do as little harm as possible (Allen 1964:456). The progress of technical improvements in precedents and the resulting resistance to parliamentary legislation, which increased from the 19th century onwards, has led to a narrowing of the interpretation of written law. The rules for the interpretation of statutes and other public enactments were laid down in a judgment in the Heydon case in 1584, which had an impact for several centuries. This is the 'mischief rule', according to which a judge, in applying a statute, must take into account what mischief the legislature intended it to remedy, what remedy it has provided for that purpose, and judges must proceed in every case so as to make the remedy as effective as possible and the mischief to be remedied as complete as possible (Allen 1964: 495). 27 In the course of the defence against the strengthening of parliamentary legislation in the first half of the last century (1836), a dictum was adopted which, instead of the guiding principle of the "mischief rule", which focused on the intention of the legislature, limited the duty of the judge to interpret the main rule to a literal interpretation, whereby the intention of the legislature could only be taken into account if it was expressed literally in the statutory text. Deviation is now only possible if the interpretation would lead to absurd consequences for the judgment in the case in question. This was supplemented by the dictum of a judgment delivered some decades later by Lord Halsbury: When a statute uses broad terms and concepts, it can only be interpreted narrowly to mean those things which the text literally uses in context (Odgers 1967: 184). In judicial practice, however, an even stricter literal interpretation of the law is often adhered to, and since these rules are dictum and not ratio decidendi - such a broad meaning cannot be contained in a ratio decidendi - some judges may adhere to the wording of the law even at the cost of absurdity. This is encouraged by the House of Lords' adherence to a narrower text than this dictum in many judgments. And if, as a result, the judgment does not lead to absurdity but only to nonsense, the judge cannot remove it even under this dictum. An example of this was the application of an 1870 law which for a long time - until a later law literally changed the anomalous provision - applied to the wife's separate property during marriage. The Act stated that the wife could dispose of such property independently of the husband and could sue in that connection, but because the drafter of the Act had failed to provide that the wife could sue independently on the separate property, the courts for decades insisted on parallel actions by the husband in such cases (Allen 1964: 497). English judges are subordinate to Parliament and the government in all cases, provided that they have set out their intentions and purposes literally in the law. However, this is not discussed beyond the text. The preamble has been recognised as part of the law since 1957, but consideration of parliamentary material from before the law was passed or ministerial justifications is prohibited by several high-level dicta for the courts. Legislators have resisted, with varying degrees of success, the literal interpretation of the law by an "overly loyal" judiciary. On the one hand, they try with extreme precision to include every possible case with a literal mention in the text and to enumerate all possible exceptions, so that this "current English style of legislation" produces laws of incredible and absurd detail for the continental jurist (Denning 1983:98). On the other hand, at the end of the last century, an Interpretation Act was passed requiring the courts to make certain precisely stated "laxities". For example, if a law uses the singular, the judge is obliged to apply the provision of the law also in cases where the plural occurs; if the text speaks of "man", it also means "woman", and so on. Furthermore, a group of words is henceforth defined in the singular, and if it occurs in the text of a law, judges must assume that the legislator meant it that way when it was included in the text. This dictionary of definitions is always on the drafter's desk, and judges are obliged to understand the terms in this way. This is perhaps the greatest possible expression of the lack of a "hermeneutic buffer", but the legislature and the accumulation of minute details, insertions and exceptions make this legal structure an almost unbearable burden for judges and lawyers. They see a way out in intensifying research into the legislature's intentions. No matter how many monographs the analyst reads to overcome the absurdity of literal interpretation, the only solution is purposive interpretation (see, for example, the book by Lord Denning, the main practical promoter of this method: 1983). 3.4. US law: the gradual loosening of precedents The starting point for the development of American law after independence was the English common law established there, but in the two centuries since then the consolidation of English precedent has not been followed; on the contrary, American law has, for various reasons, aligned itself with continental European practice. If we have concluded our analysis of English law by noting that no "hermeneutic buffer" has been created there between the statutory text and its case-by-case implementation - and that this causes growing problems above a certain level of complexity - some degree of it can be mentioned here in the introduction. Interpretative statutes with dictionaries of terms also exist here in the laws of the individual member states, and a number of statutes also define a complete list of the most important terms used in their law, as it were by attaching a binding dictionary to the statute (Zweigert/Kötz 1984: 309).The structure of American law, however, has been able to become more complex and flexible than was the case in English law. If one looks at the entire 28 professional institutional system of law and not only at the corpus of law, the differences between the American and English patterns are only apparent, which on the other hand makes the differences at the level of the corpus of law understandable. There are already fundamental differences between the internal structure of the English and American legal professions. Whereas in England a guild-like closed group of barristers disposes of the law and the members of the higher courts are drawn exclusively from this group - the higher the court, the longer the tenure of the barrister - in the United States, on the one hand, legal education and the bar examination are institutionalised in a competitive and open university system, and on the other hand, no prerequisites other than a law degree are required for appointment to the bench (Abraham 1980: 25).This open and competitive internal legal profession made it impossible for the profession to centrally control the law from the beginning, whereas in England the centralised profession, concentrated in a handful of "law lords" in the House of Lords, could take possession of the law like a disciplined army. Another important difference in law compared to England is not the existence of a written constitution in the United States - this is more important for the internal structure of the political system - but the establishment of basic constitutional rights and the direct relationship of individual laws to them. In the 19th century, after sporadic attempts, this played only a minor role, but in the last half century it has become a dominant feature. Comparison here is not just a matter for the Supreme Court, as it is on the Continent, but is open to all courts. In England, some publicists caused some controversy in the mid-1970s with their call for an abstract human rights law, and the European Charter of Human Rights hovered as a threat over the judicial technique of literal statutory interpretation, but the matter was eventually shelved by the appointment of a parliamentary committee. In the United States, on the other hand, the judiciary has been more receptive to fundamental rights and has used them in many cases to rewrite simple laws. This willingness to go beyond a narrow technical view of the law is reinforced by the political element in the selection of judges. Judges at the state level are usually elected, and although this election is formal, the political 'bosses' who control them also take into account political interests and public participation in appointing individual judges (for the distorting dangers of this approach, see Abraham 1980:23-99). This has created a judiciary that is more responsive to socio-political considerations, and the abstract level of fundamental rights is placed in the hands of this court. Perhaps the most important difference from the structure of English law is the lack of uniformity in American common law: the substance of English common law, once adopted, has been developed in different directions by individual member states over the centuries, or, since these issues are the responsibility of national legislatures, the intrusion of written law into this body of law has developed the once uniform common law in different directions. All these differences have led to a different role for academic jurisprudence than in England. From the end of the 19th century, the initial training of lawyers in law firms, like the initial training of lawyers in university law schools, was replaced by the training of law students in universities, with students from all Member States flocking to one of the more prestigious universities. The common law of the 50 Member States could not be taught, so the emphasis was spontaneously placed on teaching the general legal institutions and legal methods. Within a few decades, the positions of American legal life were occupied by judges and lawyers trained in this way, and the influence of academic jurisprudence on practical jurisprudence soon became apparent (Rheinstein 1970:4). At the end of the last century and in the first decades of ours, the structure of American law approached the features of continental European law in great leaps and bounds. Organised by the American Law Institute, the most eminent professors of a particular field of law drew up the main doctrinal systems and rules of that field of law in voluminous volumes abstracted from the common law rules of the various member states, and then published them in consultation with members of the higher courts and distinguished jurists as "Restatements". By the 1930s, 27 volumes summarised "professorial law" as a unified American common law (Paton 1972:265). Although they ultimately did not fulfil the hopes their organisers and drafters associated with them, these informal codes had a profound impact on judicial practice (Rheinstein 1970:7). In some cases, these works also inspired the creation of federal laws. For example, they led to a breakthrough and the previously scattered rules of precedent were replaced by a uniform legal institution of "unjust enrichment", whereas in England an entire movement to achieve this could not even force it (Martinek 1983:285). The fragmented American common law thus found an integrating instrument in the more unified group of university law professors and the nationally renowned university law schools, which also created a more European-style legal dogmatic filter here. In recent decades, the role of law professors 29 does not seem to have diminished, but the emphasis within this group has shifted (Rheinstein 1970:7), i.e. the legal-dogmatic-analytical orientation of the first decades of the century has increasingly given way to a dominant mentality within this group that is more and more attentive to socio-political consequences. The reasons for this are the influence of the social science education that has become common in the colleges, the socio-political climate of state willingness to intervene that has been growing for some time, but also the effects of the fundamental rights debates and the civil rights movements that have been intensifying since the 1950s (Rheinstein 1970:8). These changing trends in American legal theory will be discussed in detail later. To summarise these considerations once again, a "hermeneutic buffer" can be observed in the structure of American law through legal dogmatics and the consideration of basic constitutional principles, even if it does not reach the dimensions of the German or French legal systems. 4. Law as a professional institutional system Following Niklas Luhmann's social theory, the functional subsystems of society have been conceptualised as professional institutional systems (see Pokol 1999 for a detailed discussion). Let us examine the main features of the professional institutional system of law in comparison to the others. 4.1 A stricter legal system In most institutional professional systems, the systemic character of meaningful relationships is only ensured by orientation towards a common binary code and the socialisation, evaluation and reward mechanisms required for this. In the field of law, however, a system of meaningful coherence in the narrower sense must also be guaranteed. In science, for example, the scientist is only bound by the professional ethos of scientific true/false judgement and the rules of evidence etc. that are accepted within the scientific community at the time. However, within a particular discipline, contradictory and competing theories and analyses can easily coexist over a long period of time. In other words: Scientific assertions need not converge in content into an unchallenged conceptual whole within a discipline in a given era. Within the professional institutional legal system, on the other hand, the legal texts of a given period need not only be homogenised in terms of evaluation, but the normative legal system must also be uniform and coherent. Ensuring that there are no substantive contradictions above a certain level of complexity becomes increasingly problematic and requires extensive thinking. Precisely parallel to the positivisation of law, the level of legal dogmatic activity to ensure the absence of contradictions came to the fore in continental legal systems from the beginning of the 19th century (cf. Larenz 1979: 2-143). In this way, several levels of legal decision-making, some of which are separate from each other, have emerged within the legal institutional system, and the contradictions between the different functions of law and the changes in the weighting between these functions have led to theories of law over the last century and a half that have reduced the complex legal system to one level or another. The development of the complex legal system can be traced from the body of law, which could be freely changed in the legislative process and appeared in a fixed hierarchy of legal sources, to the partly independent further development of legal doctrine and the ad hoc application of the law, to the system of customary norms, which citizens routinely use as a guide in everyday life, Legal positivism, conceptual jurisprudence and the sociologies of law of the early 20th century, which linked the law with the legal system, have all been part of the development of the complex legal system. The legal positivism, conceptual jurisprudence and legal sociologies of the early 20th century, which identified law with the legal text or the legal conceptual world or, on the contrary, with the "living law" of everyday life, turn out to be legal concepts that reduce the multi-layered legal system to a single level. What are the connections between the different layers of the institutional legal system? It seems to us that the reconstruction of these relations depends essentially on which function of modern law we consider decisive. The instrumentalist view of law considers the implementation of state-political goals in social practice as the dominant function of law and unconsciously reduces law to the legal text 30 as it appears in the legal sources. The legal-dogmatic layer is then seen only as a "servant" of legislation and as a field for the subsequent stabilisation of the spinning legislative spiral). The legal dogmatic layer, however, is not positivised, not as quickly changeable as law on paper, and so in this view conservative legal dogmatics appears as an inconvenient obstacle to the law of law, which must be made changeable as quickly as possible in positivised legal texts (see, in addition to Luhmann's early material, especially the work of Nonet and Selznick 1979). This legal positivism can be contested from two sides. It was denied by the various sociological currents of law at the turn of the century on the side of the separation of law on paper from the norms actually followed in life (Ehrlich 1913; Pound 1981; for an analysis of this problem in Hungarian, see Kulcsár 1976). But it can also be denied from a completely different direction: from the defence of the legal dogmatic categories that ensure the internal unity and conceptual systematics of the body of law. Legislation is much more bound to existing legal dogmatic categories, definitions, special legal concepts, etc. than would be the case if the formulation emphasising the "ex post stabilising" role of legal dogmatics were sufficient. This formulation is problematic from the perspective of systems theory. The application of a legal text to a concrete case within a coherent legal system in accordance with the overall context is only possible if, when the legal text was drafted (i.e. when its meaning was determined), terms, distinctions and designations were used that were already inserted into the overall legal context. If the regulation of a new situation occurs in which the inclusion of previously undefined objects or everyday terms becomes necessary, this only loses its irritating character if the classification of the new terms and objects in the existing conceptual material is clarified within a short time. (On the relationship between everyday language and legal specification, see Podlech 1984.) In other words, legal dogmatics does not take up its work only when the result of "free" legislation has been established, but it is and must be already there when new laws are drafted, and it is already there when the translation of political goals into legal language takes place. There is also a degree of mutual autonomy between the state of development of legal doctrine and the mechanisms of law change. A small degree of "overrunning", i.e. working with non-established legal concepts, can be tolerated by jurisprudence without major risk, and judges can insert new, still unlawful concepts into the ground-up legal categories. However, when this threshold is crossed by the flood of incoming non-legal concepts, the world of law begins to become chaotic, and the jurist takes refuge in practical case-by-case solutions (cf. de Lazzer 1975:85). On the other hand, the further development of legal dogmatics is also not exclusively tied to legislation in order to systematise its new normative texts ex post, but also seeks to explore the gaps and possibilities for change in the world of legal concepts by creating thought constructions and hypothetical legal cases. This in turn opens up the possibility of creating further areas of regulation without there already being a law (Esser 1972:104). It seems to us, therefore, that the complexity of the legal system can best be grasped by focusing on the level of legal doctrine, its categories and its further development, and from there looking at both the materials produced in the legislative process and the decisions handed down in case law. As we have already seen, this multi-layered nature of law can already be found in the literature on legal theory in various thematic forms. While at the beginning of the century the sociologies of law contrasted the "living" normative material with paper law, in recent decades another level of law has been added to the level of legal texts, namely on the part of the categories that embody the systematics of law. Arthur Kaufmann expresses this by separating "law" and "law". "Law and law are not the same. They are not accidentally different, but ontologically and essentially different. Law and right relate to each other like "potency" and "actus", like "possibility" and "reality". The law is not yet the reality of law, but only a step, albeit a necessary one, on the way to the realisation of law. The law is a general norm for a multitude of possible situations, whereas the law decides a real situation 'here and now'." (Kaufmann 1972:157). Even more clearly than Kaufmann, Josef Esser goes in the direction we have indicated with his category of "pre-understanding", which points beyond the level of the legal text to the conceptual context of the legal whole (Esser 1970). Friedrich Müller points to the same two-layeredness with his separation of "legal norm" and "norm text" (Müller 1972:42-146). Positivising the text of the law thus attracts the attention of the legal theorist excessively. This is based on the unconscious assumption that, for the case-by-case application of the law, the meaning of the legal norm is unproblematically contained in the text and that this meaning can be fully extracted from the text by established methods of legal interpretation. On the other hand, there is the conviction, going back to Montesquieu, that the law of the legislature can be applied to the individual case by the judiciary as a "subsuming automaton". 31 A closer analysis of a particular interpretative transformation reveals the illusions here. Forstoff showed in the late 1950s what far-reaching consequences the seemingly insignificant changes that characterised the practice of the Federal Constitutional Court for a time had for the law as a whole. In a number of important decisions, the Constitutional Court had adopted Rudolf Smend's interpretation of the fundamental rights from the Basic Law of 1928 and conceived them as values that were both decisive for the interpretation of the constitution as a whole and underlying the entire legal system. The nature of values, however, is different from that of legal norms, and the firmer paths of legal interpretation tied to them were therefore excluded from the practice of constitutional law. „By declaring these fundamental rights, hitherto understood as individual rights, to be values, Smend has not only added a new aspect to the previous understanding of law, but has shifted them into another logical dimension." (Forstoff 1965:157) Forstoff then goes on to describe cases in which the Constitutional Court, by placing one of these fundamental values behind another constitutional provision and using it as a kind of lever, declared a series of legal provisions unconstitutional, even though they would undoubtedly have been constitutional according to traditional methods of legal interpretation. We are not concerned here with Forstoff's specific examples - we will deal in detail with the question of the constitutionalisation of fundamental rights in a later chapter - but only with pointing out the malleability of legislative texts depending on the interpretation currently applied. This applies not only to the field of constitutional law, but to a lesser extent also to dogmatically closed areas of law such as criminal law (cf. Pavlowsky 1984:34). Continental law is therefore able to ensure the intellectual coherence of the law as a whole more or less easily by presenting the body of law as a legal text and by building up a level of legal doctrine that mediates between legislation and the application of the law. However, the level of legal doctrine not only has a mediating and thus coherent function vis-à-vis legislation and the application of the law, but also plays a decisive role in integrating the entire professional institutional system of the law. As mentioned in the introduction, the most important aspects of a professional institutional system are the mechanisms of recruitment, socialisation and evaluation and reward of professional participants. In these aspects, the central value duality must come into play in order, on the one hand, to homogenise the activities within the system from the point of view of evaluation selection - and thus to create the framework for a complex system of meaning contexts - and, on the other hand, to allow a comprehensive and spontaneous formation of order to emerge beyond a purely organisationalhierarchical system formation. Universal value dualities, however, do not appear "naked" to the participants in these aspects, but are embedded in professional ethos, typologies and a one-way sequence of steps in the procedures of evidence-interpretation. The dominance of the central value dual enables the routine repression of other value aspects, which can only unfold their decisioninfluencing/alternative-selecting role in the prism of the central value dual. In the case of law, the recruitment and socialisation mechanisms of the legal profession can produce this routine attitude of evaluation, limited to right and wrong, which has different effects in different countries. In this respect, there is a fundamental difference between the English and American models of legal education, which are closely linked to the legal profession, and the German and French models of legal education, which are integrated into the general education of intellectuals (see especially Rüschemeyer 1976; David 1977:288-306; Varga 1967.) American and English legal education is more narrowly focused on the teaching of essential features of law and the socialisation of a specific legal perspective for future generations of lawyers than the Franco-German university model, which teaches more diffuse aspects of value. The latter train intellectuals first and professional specialists second. But even in the Franco-German model, the material of legal education consists of a set of fixed legal dogmatic categories for each area of law, methods of interpretation to be observed in the practical application of the law, and the teaching of specific legal argumentation and logic. The problem of a legal-theoretical orientation that restricts law to positive legal texts is particularly evident in legal education. The teaching of rapidly changing legal texts is pointless, since most of them are already out of force by the time the law degree is awarded. A longer-term legal education should teach the deeper layers of law, the legal doctrines of the branches of law, and thus socialise the future lawyer for life. For the teaching of the deeper doctrines of law, the legal texts in force at the time can only be used as examples. A law that does not have such an established set of legal categories is largely unteachable and for this reason alone is likely to remain a paper law. However, there is an important distinction to be made here. Our basic starting point is that if a legal system has not been able to develop a set of legal dogmatic categories and a level of decisionmaking and further development specialised in maintaining them, then there is an "evolutionary standstill" in that area of law and unteachable, uninterpretable, inapplicable law cannot have any real 32 effect on social practice. A comparison between administrative law and traditional areas of law (private law, criminal law) sheds light on this observation. It is well known that legal dogmatic categories have been developed only rudimentarily in administrative law, and this is especially true in the area of financial law (cf. Sajó 1983:118). However, if one compares this difference with another important difference between these two areas of law, some interesting insights can be gained. The presence or absence of dogmatics in each area of law coincides inversely with the presence or absence of organisational hierarchies underlying that area. Behind private law or criminal law there is no organisational hierarchy with a strong dogma that can change this body of law ad hoc through sublegal rules and always rebuild it when circumstances change, and even then, when applied ad hoc, enforce the rules with the help of the authorities. Here, abstract code-like law with a systematic level of legal doctrine and decision-making behind it is sufficient, whereas in case law only the higher levels of judicial hierarchy help to ensure a uniform system. In contrast, behind the chaos of administrative and financial legislation, instead of a rudimentary legal dogmatic unity, a strong and structured organisational hierarchy emerges, where the upper levels of the hierarchy themselves create the concrete body of law and the lower levels control the applicable law on a case-by-case basis. By installing an organisational hierarchy behind the body of law and shifting this hierarchy ad hoc by disseminating new instructions at short intervals, one can establish a more stable legal dogmatic unity up to a certain level of complexity. This also means that in such a case, the dominance of legal/illegal evaluation criteria decreases and political priorities radiate more down through the rungs of the organisational hierarchy. In this context, it is also worth mentioning the structural similarity with the situation in the education sector. In the absence of a central duality of values and thus a spontaneous formation of order, a strong organisational-systemic structure also develops there when the multi-level educational sphere has reached a certain degree of complexity. The underdevelopment of legal dogmatics in administrative and financial law is a reflection of the organisational power of the legal/ non-legal value duality itself and therefore requires a strong organisational hierarchy in this area of law, which can replace the integrative power of legal dogmatics to a certain extent. On the other side of the comparison, important trends can be foreseen in view of the increasing efficiency of administrative justice in the last century. The resulting system of legal dogmatic categories also brings this area of law closer to the structure of traditional areas of law, which may work towards the dismantling of the extensive organisational hierarchies created in the future. There are also tendencies to dismantle organisational hierarchies in these areas of law, which have other causes. In addition to the strengthening of legal doctrine, changes can also be observed in some areas of law that seem to make the substantive unity of the body of law itself superfluous. For the area of labour law, Günther Teubner has shown, with regard to the procedural law replacing the central unified law and the decentralised collective agreements arising from it, that this development replaces substantive or formal law with a "reflexive" law that only regulates the procedures of decision-making at a few decisive points for the decentralised decision-making levels. Teubner sees this reflexive legal structure extended to a number of other areas (Teubner 1982, 1984, 1986; for his analysis in Hungarian see Pokol 1988:102-118). If one assesses these analyses by Teubner from a broader theoretical perspective, it can now be said that this means the loss of the stricter conceptual systematics of law, which, beyond the uniformly homogenised evaluative aspect, also required a content-free, non-contradictory unity of content within the legal institutional system. In the areas of law where Teubner's law of reflection becomes a reality, systemic coherence is similar to that in the natural sciences, for example, where only true/false evidence procedures and a more flexible evaluation framework ensure conceptual coherence, but there is no unity of content between the different paradigms, theories and starting points. 4.2 Structure of the legal profession Intellectual unity and systemic coherence are mainly ensured by the level of legal doctrine within the institutional legal system, but the different structure of the legal profession in different countries gives different accents to the professional institutional legal system as a whole. And the different structure of the legal profession today is mainly due to the different circumstances and historical changes in the 33 organisational mechanisms that influence society as a whole in the different countries. One must agree with Dietrich Rüschemeyer, who sees the differences between the legal societies of different countries in the extent to which market rationality has been able to develop or whether, on the contrary, state bureaucracy has dominated the organisation of society (Rüschemeyer 1976:2-3). The different dominance of the two organisational principles and the resulting differences in the structure of legal society can be clearly seen in the comparison of American and German legal life. In the development of the German legal profession, the tendencies that have detached the legal sphere from the direct determination of state power and turned it into a more or less autonomous institutional system of society can be seen well. The German judiciary (as in all countries on the continent) has always been characterised by very strong state control. However, the autonomy of the legal profession - and thus of the law - was further limited by the state constraints to which lawyers in Germany were subjected. Until 1879, the predecessors of today's bar associations were not called lawyers but "judicial commissioners" and were appointed by the government in very limited numbers. The fact that there were 100 such judicial commissioners in Berlin in 1879 is indicative of their state control (Rüschemeyer 1976:165). It should be particularly emphasised that this tight state control meant that parallelism between the various legal positions within the legal profession was difficult to establish and that the hierarchical attitude of the state bureaucracy has been transferred to the legal field to this day. (Cf. Scheider 1974:47-119). On the other hand, the strong definition of the state tended to reduce the self-movement within the legal profession, the internal division along dimensions independent of the state. This becomes clear if we compare Germany with the American legal society, which develops according to the opposite model. The core legal profession in the United States consists of lawyers who are completely independent of the state and are in fierce competition with each other. While in Germany the legal profession is still marginalised and hermetically sealed off from the judiciary (i.e. once a lawyer has entered the legal profession, there is no return to the judiciary), in the American legal profession, which is organised through internal competition, the judiciary builds on the legal profession: The judiciary is recruited appointed or elected - from the ranks of lawyers who have already made a name for themselves (David 1977:348-350). The American legal profession, organised on the principle of judicial evaluation, is thus more homogeneous than the German legal profession, which is highly fragmented by internal boundaries. However, the same is true of the English legal profession, although here the historical separation between the "barrister" and "solicitor" strata has not allowed for the creation of internal homogeneity similar to that in the US. It should be noted that this is likely to change in the near future, as the UK government has reportedly pushed through a bill to remove this separation and create freer competition for lawyers. The structure of the American legal profession was thus not created by external hierarchies and assessments. Fierce competition led to a number of distinctive lines of development within the American legal profession. One of these features is the deep professional, wealth and prestige segmentation of the legal profession. Whereas the main figure in the German legal profession was the less specialised individual lawyer who first amassed his fortune and expanded his practice through guild boundaries, the more successful lawyers in the American legal profession have established large law firms over the last hundred years. These large law firms now account for 15-20% of all cases in the United States and, most importantly, these firms are almost exclusively retained to resolve the most complex legal issues. This has allowed the specialised lawyers at large law firms to develop a high level of intellectual problem solving through teamwork. In large law firms, it is possible to specialise in a particular area and rely on the support of other specialists within the firm to deal with complex legal issues. In contrast, the competitive situation in a solo practice precludes collegial support. The difference between the legal services of large US law firms and the services of German lawyers working in a single, guild-like framework can therefore be roughly compared to the difference in expertise between, for example, specialised clinics and general practitioners in the healthcare sector. In terms of dynamics, the weight of large US law firms within the US legal profession is exacerbated by the sources of supply and the differences in quality within the legal profession being exacerbated by the differences in prestige within the legal profession. Indeed, large law firms only hire graduates from elite schools (Harvard, Yale, etc.), while graduates from lesser universities fill the small, nonspecialist firms (Rueschemeyer 1976:39). Of course, the market in the legal sphere also has its dark side, for market rationality exists in every field. The "tricky" layer of lawyers within the profession, the despised dross, is created by the legal market, just as the university market in America has produced a multitude of inferior colleges alongside elite universities. But just as in academia well-functioning reputational rankings indicate 34 quality and show the limits of the "dross" to be avoided, so in the legal field the signalling mechanisms of reputational rankings certainly show the places of quality. It can be said that the "legal market" to some extent brings to bear the hierarchies of reputation created by the internal evaluation mechanisms of law in the organisation of the legal profession, instead of external hierarchies and endowments. In science, academia or even sport, this can be argued without qualification (cf. Pokol 1989c:185-211), but in the legal field it is more nuanced. Here, too, a comparison between the German and American legal spheres can be helpful. In contrast to the American legal profession, where lawyers make up 75% of the profession and judges 3%, it is the very active practice of law in court proceedings that enforces the law, alongside the passive activity of judges. The German legal profession deviates from this picture in two respects. Here the proportion of judges in the legal profession is still much greater than in the USA (Rüschemeyer 1976:31). On the other hand, the role of the judge in German litigation is very active, while the role of the lawyer is much more limited than that of his American counterpart. If one contrasts these different structures of the two legal societies and the different role of the legal market in their organisation, one comes to some interesting conclusions. The American legal space is dominated by a market-oriented legal profession, and the small judiciary builds on the evaluations of the legal mechanisms here - the ranks of lawyers with high reputations - thus expanding the evaluations of the legal market. In contrast, the legal market in Germany is limited even within the legal profession, and the judiciary, which dominates the law, is excluded from any legal market mechanism. At the same time, this judiciary has "absorbed" the law in abstract legal dogmatic concepts, drawing its legal material from systematised jurisprudential textbooks as a coherent whole, rather than in the context of the cross-legal aspects of specific cases, as is the case with the practice of market lawyers in the United States. That is, in the United States, with less systematised legal property and the absence of a more passive judiciary as an integrating force, it is the assessments of the legal market that contribute to the integration of the professional institutional legal system, whereas in Germany it is the active judiciary, which focuses on systematised legal property rather than the vestigial legal market, that creates the systemic unity of the legal sphere. The American legal market can thus in a sense be understood as the functional equivalent of a narrower legal dogmatic category system. The advantage of the legal market is that it creates a more flexible unification than the more rigid legal dogmatic integration. It is of course clear that there can only be a shift in the relationship between the two, and that this substitution is not possible above a certain level. In any case, if one follows Günther Teubner's argument that above a certain level of complexity, the maintenance of material-dogmatic unity is problematic, then the integrating power of the legal market becomes even more important (admittedly, Teubner himself does not see the market but "negotiated", neo-corporatist forms of "reflexive" law as the solution). The disadvantage of the legal market, however, is that it consistently disadvantages the poorer strata of the population in court proceedings by introducing the effect of wealth inequality (of course, this disadvantage can be reduced if a suitable system is set up to finance the legal costs of the socially disadvantaged from the perspective of state social policy). The insights that can be drawn from the structural differences in legal societies can be summarised as follows: The importance and functioning of the legal doctrinal level depends to a large extent on the organising power of market rationality within the law, the share of the different strata of lawyers, their relationships and the characteristics of their activities. 4.3 Hermeneutics and legal dogmatics The internal specificity, the multi-layeredness and the complex structure of the institutional professional system of law have been addressed many times in jurisprudential literature. In Hungarian jurisprudence, Vilmos Peschka chose the path of implementing Lukácsian categories that counter the characteristics of aesthetics (cf. Peschka 1988). Csaba Varga had previously developed an independent line of analysis that counteracted the systemic character, the systematising-codifying activity in law (e.g. Varga 1973), while in later years he developed his analyses primarily around the inner cohesiveness of law (cf. Peschka 1988). András Sajó, who followed a more sociological line of law, underlines the importance of legal dogmatics in his work, in which he traces the shifts in legal scholarship between the legal sphere and science (Sajó 1983:114-124). Legal hermeneutics represents a different approach to law. In the Hungarian literature, we find analyses of it by Vilmos Peschka. In 35 the international literature - especially in the literature of the German and Scandinavian countries these approaches are complemented by an analysis from the side of legal argumentation (see Alexy 1978; Peczenik 1983) or by an analysis from the side of legal logic. We believe that an analysis from the hermeneutic point of view can capture the specificities and the complex functioning of law when combined with the insights of the legal dogmatic literature. The hermeneutic perspective must be seen as fundamental to all socio-cultural formations. Only if this is consistently kept in mind will the researcher be saved from the routine of everyday thinking, which by its very nature presupposes the meaning of words as evident and assumes unproblematic understanding in the millions of situations of daily life when reading or listening to any text. But this unproblematic transmission of meaning disappears immediately when the direct oral transmission of meaning becomes written and is cut off from the common situations that more or less ensure understanding, so that the common background knowledge of the communication partners cannot be assumed. And the modernisation of Europe over the last 200 years has led to an ever greater proportion of the transmission of meaning being shifted to such written forms. Problem-free understanding is thus increasingly losing its presuppositions, but the driving forces of the newly emerging mechanisms based on reading and writing unconsciously continue to focus on the earlier problemlessness of understanding. The new momentum of hermeneutics in recent decades has brought this strongly to the fore (see especially Gadamer 1984; Habermas 1973). The general thesis of hermeneutics can be summarised as follows: the text does not contain the complete meaning, but must be reconstructed by the interpreter through the revival of various contexts in the understanding. Gadamer makes a thought-provoking statement when, in understanding a text, a general theoretical proposition, he rejects the conventional notion of an independent interpretation of these propositions that must be applied only after the fact, and instead assumes that the application (and the ability to apply it!Such an understanding is possible only when the general proposition can be seen directly in the light of a particular or specific case, and so the meaning of the proposition, the mere text, is brought to him by expanding and concretising its abstract contours. The meaning of a specific sentence is then further reinforced by the juxtaposition of other cases, whether or not they fall under that sentence. Only in this way can the meaning of an overall statement be reconstructed. "Application is not a subsequent application to the concrete case of a given general, which is first understood in itself, but only application forms the real understanding of the general that the given text represents for us." (Gadamer 1984:240). In the light of Gadamer's emphasis, then, we should separate from understanding, more than usual, the rote learning that in mass university and scientific life repeats and instructs, like a dead prayer, the misunderstood distinctions, general formulas, and that pollutes teaching and scientific publications as "noise" alongside actual understanding. (The interesting question arises to what extent such stored-ununderstood knowledge can be revived after the dead connections by later communication partners who are blessed with the right judgement to see the meaning of the dead knowledge together with the application, or to what extent the once inherited understanding is permanently destroyed by such transmissions!) Law was a good example for Gadamer to reconstruct the whole process of understanding, which necessarily includes application, because here it is not enough to learn the meaning of the text by heart, but the concrete cases force us to apply it. As a result, canons of hermeneutic-legal analysis developed very early in jurisprudence, aiming to link abstract legal propositions to concrete cases. Not explicitly formulated since the late period of Roman law and in the course of its revival in the Middle Ages (Szájer 1986:4-46), they became explicit from the early nineteenth century (Larenz 1979 28). However, Gadamer's revival of philosophical hermeneutics can also make legal hermeneutics more conscious. The meaning of the legal norm is thus not readily apparent from the positivised legal text, but rather, embedded in a larger context of meaning, lies decisively beyond the text, to which the text only points by signalling and signalling. So where is this meaning to be sought? It seems to us to go less in the direction indicated by Arthur Kaufmann, who explicitly guides legal hermeneutics, towards "from the law to the 'law'", which ultimately considers the decisions of the user of the law as law beyond the text of the law. It is the court in which law exists in its spatial density (Kaufmann 1972: 163). Rather, it is Esser's "pre-understanding" that points to the legal dogmatic system between the case law and the legal text that makes the layers of complex law most appropriate to reality. The hermeneutic starting point must thus quickly change to a legal dogmatic perspective, and thus the hermeneutic problems can be understood (it is precisely this accent that Kaufmann misses in his collection of studies published in the mid-1980s: cf. Kaufmann 1984). 36 In order to understand the specificities and inherent complexity of law, it is therefore essential to reconsider the local value of legal doctrine. Luhmann conceives of legal dogmatics as a filtering mechanism installed on the input side of the legal system, which dissects the information coming from the environment and puts it into a new order of battle according to the internal concepts and distinctions of law, in accordance with the systemic specificity of law. "Legal dogmatics guides the transformation from input to output". (Luhamann 1974: 24.) Here, too, the comparison of jurisprudence with other professions raises interesting questions that can lead us to a better understanding of legal doctrine. In this way, it immediately becomes clear that dogmatics does not exist in every institutional system, and that when, for example, scientific statements become dogma within science, the scientific character dies. So the question arises: why is dogmatics necessary in the case of law, and the other side of the question, which is more interesting from a social theoretical point of view, is: how does this systemic coherence come about where there is no dogmatics? We can start from the fact that within social subsystems, or in the terminology used here, professional institutional systems, the mechanisms of recruitment, socialisation, evaluation and reward mentioned above create a homogeneity of evaluation in the activities of the subsystems, in accordance with the central value dualities. In most of these institutional systems, system homogeneity is simply the exclusion of activities dominated by other value dualities beyond the value-homogenised professional participants, and the reduction of their influence within the system through these mechanisms. However, this does not yet create a unified system of meaningful coherence, but only a homogeneity of evaluation. Furthermore, legal dogmatics condenses systemic coherence within the professional legal system into a contradiction-free conceptual coherence. On a more general level, it can even be hypothesised that in institutional systems that do not produce mere 'experiences', i.e. products of thought, but define the activities of the social world in a more action-oriented way, there is a greater need to ensure a more rigorous sense of systemic coherence beyond simple value homogeneity, and a greater pressure to create contradictory contexts of meaning. (On the distinction between 'experiencing' and 'acting', see Luhmann 1984:191-242). Thus, for example, in the ideological transformation of the propositions of science that produces mere experience, the transformation of plural, unstructured scientific truths into contradiction-free contexts of meaning is already intensified, and the ideological premises are gradually withdrawn from questioning. More precisely, the arguments of the "opposing" ideology are becoming resistant to the arguments of the adherents of that ideology. But even in the state-political sphere closest to action, the functioning, contradiction-free state target system and the alternatives ready as the opposition's contradictory party programme are hermetically isolated, at least institutionally. Legal dogmatics defends the established conceptual coherence of law beyond the homogeneity of evaluation. In the literature on legal doctrine, there is confusion as to what this conceptual coherence is, i.e. what is the logic of legal doctrine? Most answers assume that the lawyer or jurist working dogmatically is bound by the text of the law or existing case law. "Basically, a working method can be called dogmatic if it is determined by binding texts, laws, judgments and their relevant criteria, by authorities." (Esser 1972:97) Or in other words:" Dogmatics is the class of theories of jurisprudence whose object is the applicable law." (Lazzer 1975:91) In contrast to this is the approach that ties legal dogmatics not to the text of positivised law, but to the legal categories, typologies and distinctions that have been developed, and on the basis of which it seeks to make the governing legal text itself the object of critique. In this formulation, the authority of the legal text is softened and the importance of the underlying legal category system is brought to the fore. This concept of legal dogmatics becomes particularly clear in Simitis' analysis: "Laws are only drafts of freedom which only become realised laws when they pass through the filter of dogmatics". (Simitis 1972:132.) On this basis, Luhmann also draws the principled conclusion that legal dogmatics encompasses not only the applicable law but also the world of the "legally possible", and here the distinction between de lege lata and de lege ferenda loses its meaning (Luhmann 1974:21). From our analysis so far, it has become obvious that this latter conception of legal dogmatics corresponds to the autonomous systemic character of law according to our overall conceptual framework, and we consider the filter of legal dogmatics necessary before political priorities are translated into legal texts. 37 5. The place of legal education in the legal system If we want to grasp law in its entirety, we must include in the concept of law not only the legal norms, but also the system of terms used by the norms. Norms only express behaviour, whether obligatory or prohibited, if the concepts they contain are understood in a certain way. In more developed societies, these legal concepts are woven into an increasingly complex system of relationships, forming a dense web of legal principles behind laws and codes. Legal theories that exclude the legal dogmatic conceptual level from law and only include legal norms in the concept of law are the cause of the reduction of law as it actually functions. One could say that they thereby elevate the lay perspective to a theory of law, because the only thing that really appears on the surface of law is the creation, application and implementation of legal norms. But anyone who can look at the law from the inside and is familiar with the decision-making dilemmas that arise again and again in the face of thousands of cases knows that without the dense web of legal rules and their binding force, every judicial decision would be arbitrary, despite the thousands and tens of thousands of detailed legal rules. Through this expansion of the concept of law, in addition to law as a system of norms, law as a system of meaning also comes more strongly into view, and the spheres of legal action are supplemented by spheres of the creation, application and enforcement of norms, in addition to those that ensure the creation and maintenance of the system of meaning of law. In this role, reference has already been made several times to the sphere of jurisprudential-dogmatic activity. It is now the area of legal education that must be considered. 5.1. The basic functions of legal education As a starting point, it should be noted that the results of the activities to identify and develop legal dogmatic contexts must be constantly transferred to the activities of the entire legal profession, as this is only done by a part of the legal profession (academics and some members of the higher courts), but new norms must be created and applied with constant consideration of legal dogmatic contexts. This implementation is ensured through jurisprudential publications, the participation of law professors in the drafting of concepts in legislation, especially in the case of major amendments of a legislative nature, etc. However, the communication of the entire body of legal doctrine to the entire legal profession, as well as the constant exchange of information, can only take place within the framework of legal education and training. The emphasis on the conceptual system of law and its understanding as the basis of law thus makes the process of legal education a central element of law. From another perspective, we can add that legal education preparing for legal work could, from a static point of view, be located outside the legal system, but if we look at the dynamics of the legal system, the need for its inclusion becomes clear. The education of today's lawyers determines the sphere of action of tomorrow's judges, prosecutors and lawyers. In addition to this function, legal education has to fulfil another fundamental function for the intellectual system of law. Indeed, legal education must create in the future lawyer a way of thinking that makes it routine to evaluate world events in terms of the dimension "right/wrong", while excluding evaluation according to political struggles that go beyond this, evaluation according to ideological differences and evaluation of events from other possible points of view. The stable functioning of the legal system always includes this double achievement of legal education: the teaching of the legal doctrinal system of the most important branches of law in broad outline and the anchored willingness to see the events of reality in a legal/legal dimension and to accept political, ideological, etc. values that are alien to it. Beyond this, functions of legal education are possible and may be complemented by different functions in different countries. For example, while the higher education system in European countries has developed as a single degree combining general liberal education with professional training, in the United States the separation of undergraduate and graduate education has led to a separation of legal education from professional training. However, let us disregard this possibility for the moment and 38 focus our analysis solely on vocational education in the context of the basic functions of legal education. The question also arises as to how, in the case of the legal subsystem of society, it is possible to include university legal education so strongly in this subsystem, since the university sector is essentially an institutional part of the scientific subsystem, along with the research institutes. To answer this question, we can start from the dual nature of jurisprudence. Unlike most other disciplines, in jurisprudence not only the true/false dimension is evaluated, but also another subsystem, the legal/unlegal dimension. Thus, in addition to the identification, grouping and classification of facts that predominate in the sociology and history of law, a logically coherent system must be sought that ensures the absence of contradictions among the thousands and tens of thousands of legal norms. This activity combines the abstract and logical dimension of scientific thought with the normative approach to facts and conflicts from the activity of legal practice, thus creating a comprehensive system of legal dogmatics for each area of law. If science approaches law in the true/false dimension, then this approach to jurisprudence in the just/unjust dimension can pose problems of classification. For example, the German Franz Jerusalem in the late 1940s or the Hungarian András Sajó in the early 1980s addressed the "doubtful" scientific status of jurisprudence (Jerusalem 1948, Sajó 1983). These characteristics thus explain the stronger integration of legal doctrine and university education into the legal system, whereas for a number of other societal subsystems, university vocational education remains more embedded in the university-academic subsystem and only after university education, after dispersion in the subsystems, does integration into the respective subsystems occur. 5.2. The dilemmas of legal education (Legal dogmatic-theoretical training or legal practical training) Legal education in European countries has followed the model of legal dogmatic training in recent centuries, especially in areas influenced by German law, but since the 20th century it has been subject to constant criticism. However, this model has been and continues to be subject to constant criticism, and both in Western European countries and in the United States there have been repeated efforts in legal circles to reform legal education. One of these persistent criticisms of legal education is that its subjects and teaching methods are too focused on teaching abstract legal concepts and do not do their best to produce a more or less finished practical lawyer as a recent graduate. This criticism is a constant not only in the more abstract European legal education countries, but also in the much more practical American education. A witty formulation compares theoretical legal education to a driving school trying to teach how to drive a car by teaching the detailed instructions for the car and then letting those so trained out on the road (Ostertag 1993). Funny as this analogy is, it is based on a profound misunderstanding, and for this reason the role of legal theory in the legal system and the role of legal education in it need to be clarified. University legal education is the only place in the system of the functioning of law where the categories of established legal doctrines and their interrelationships can be passed on in their entirety to prospective lawyers, and it is a secondary question whether the teaching of practical legal skills should be integrated into university education and to what extent, or whether this should rather be left to a large extent to post-university practical training and organised by the organisations of lawyers, prosecutors and judges. One of the fundamental dilemmas of legal education is therefore the following: Should legal doctrines be taught first and foremost, with applicable legal norms and jurisprudence taught only from the point of view of deepening the understanding of legal doctrinal categories through application, or should the educational goal be to produce a "finished" jurist who is as fully prepared as possible for immediate practical work? It should be mentioned in passing that legal education is a complete dead end, in which neither legal doctrine nor practical legal skills are taught, but students only learn the current law and are forced to take new rules into account in their final examinations due to the changes in the law that have taken place in a short period of time. Apart from this dead-end education, the 39 illegitimacy of which is widely recognised, there is opposition in the legal circles of all countries to resolve this fundamental dilemma. This opposition is largely characterised by a greater emphasis in academic legal circles on the importance of legal dogmatically oriented training, while practitioners are more critical of the "sterile" and abstract nature of academic training. If one looks at Hungarian legal education - in comparison to other models of legal education - the criticism is partly justified. Indeed, during the five-year training, organised participation in practical legal life is hardly possible. Despite constant criticism of this, little has been done in recent years. Let us look at two solutions aimed at introducing more practical legal skills and knowledge into higher legal education. One is the German two-stage legal education, in which the first stage teaches the basics of legal doctrine and legal history, and after the first state examination the second stage lasts two and a half years and provides the "Referendariat", which has already passed the first state examination, with skills mainly in the judiciary, but also partly in the professions of public prosecutor and lawyer. This second, practical training is concluded with the second state examination, which qualifies the trainee to become a fully qualified lawyer. He can then apply for admission to the bar without further examination or training, but if he becomes a judge or public prosecutor, he must complete further, more specialised training within this framework (Ostertag 1993). In this model, therefore, the teaching of practical legal knowledge and skills is not integrated into legal training at the expense of legal teaching, but by extending the duration of training and by centralising practical training outside the university and partly by linking it to the university through the second university examination. Another way of increasing the proportion of practical training in legal education is the American "legal clinical training path" (see Amsterdam 1984, Floyd 1997, Rekosch 1998, Wilson 1998). The three-year basic legal training, which follows the four-year (general) basic training, is purely dedicated to the teaching of legal subjects, and on the other hand, although it is also geared towards teaching a system of legal dogmatic categories, as in the European model, the role of jurisprudence, practical training is much stronger here in this function than in continental Europe. Nevertheless, criticism of a legal education that is "too abstract" is also repeatedly voiced here, and since the 1980s there has been an attempt at reform to involve law students directly in practical legal work. The idea dates back to 1933, when the jurist Jerome Frank suggested in an article that legal education should be steered in this direction, along the lines of clinical-practical training in medicine. The "fundamental rights revolution" that began in the 1960s loosened both the internal resistance of law schools and the public opinion of intellectual and media power circles, creating a good political backdrop for legal education reform. In a number of areas, the more politicised constitutional processes began to replace the traditional doctrine-driven processes, and the litigation route became one of the main avenues for radical change in society. In essence, this involves making students (initially only third year graduates, later second and even first year students were admitted) from poorer backgrounds and lower incomes available for legal advice in law clinics or even entrusted with trial preparation tasks under the supervision of a supervising lawyer (Amsterdam 1984, Floyd 1998). Another solution is to only simulate and have students act out among themselves the different legal roles of participating in a trial or providing legal advice. However, the purpose of legal clinics clearly goes beyond the legal education of students, and one of the main goals is to facilitate access to justice for poorer groups (blacks, other people of colour, immigrants, etc.) (Rekosch 1998, Floyd 1997). For all the grandeur of this humanitarian goal, it should be mentioned that through clinical education students inevitably become involved in the intellectualpolitical struggles between social groups, and this character of legal clinics often goes hand in hand with the construction of positions for movement lawyers within the university (cf. Scheingold 1998:118-151). In any case, legal clinics have become widespread in American law schools in recent years, and although they have not achieved the status of a compulsory course, a minority of students take one or another as part of their studies. It is also important for Hungarian legal education to consider these two alternatives to practical legal training, because legal clinics have already been established in some Central and Eastern European countries with the support of American foundations, and ELTE Law School has already set up one of its bases in Hungary (see the presentation of the presence of legal clinics in Central Europe on the internet: http://www.pili.org/publications/colloquim2000/index.html). 40 We can only fully assess this if we see that practical training in Hungarian legal education was not developed in the university context, as was the case with the second state examination on the German model, but in the organised training of the individual legal professions (lawyer training, judge training, prosecutor training, notary training) after the university. It is therefore misleading to look only at the overall picture of university legal training. This already makes it clear that the complete legal training they offer consists of university training followed by specialised legal training. If one is dissatisfied with the practical training thus created, which is completely disconnected from the university training, then there is the possibility of opening up to the German model and, by extending the training period, integrating the practical training more strongly into the university legal training and evaluating its role through the subsequent awarding of the state examinations. This would thus be the way to a two-tier legal education. Of course, there are still strong voices in German jurisprudence against a move away from the two-tier system and in favour of more in-depth preparation for the legal professions after law school as in our system (Coing 1973, Weber 1989). In any case, the German solution has the advantage that the time frame for basic legal training is maintained and practical training does not increase at the expense of practical training. This is where the problems of the American legal clerkship lie, especially when first and second year law students are already involved in the close cases of practical legal life beyond the graduate students. This calls into question the aforementioned basic functions of university legal education: the ability to teach the totality of legal doctrines is limited and cannot later be replaced by trained lawyers. This in turn threatens the disintegration of the conceptual system of law. The other basic function mentioned above could also be endangered if clinical legal education becomes more involved in sociopolitical struggles through movement lawyers: Instead of processing what is happening in reality in a neutral and unemotional legal/illegal dimension and anchoring the willingness to do so, an attitude of revolutionary change in social conditions could emerge at the end of legal education. This other distortion can of course be reduced if only the above-mentioned simulation method of legal/clinical training is used for practical training and the function of the "social worker" and the associated right to move are removed from this form. (Judicial or legal training) Another dilemma of legal training can be seen in the controversies surrounding German legal training (cf. Coing 1973, Weber 1989, Ostertag 1993). This training is essentially geared towards the judiciary, which is reflected both in the fact that most of the practical training in the second stage of the two-stage legal education is devoted to learning the work of the judiciary, and in the fact that proposals by lawyers' groups to expand the area of legal education that is important to them are regularly rejected by the law faculties of the universities. The wider work of lawyers in many ways goes beyond purely legal work and requires partial involvement in tax advice, finance, business, etc., which presupposes knowledge that is almost entirely outside the scope of legal education. In contrast to the German judge-centred training, the American version is more lawyer-centred, and the prevailing legal doctrine training here shows that a comprehensive legal doctrine training can be achieved with this version. In any case, the bar organisations here and authors who advocate their point of view often criticise the fact that most courses are focused on the lawyer in the higher courts and prepare the future lawyer for the jurisprudence and reasoning of the higher courts. In contrast, critics see the teaching of a broader knowledge of the legal profession as paving the way for the necessary reform of legal education, which would move subjects away from a broader legal doctrinal context and largely towards knowledge outside the law (Floyd 1997). If one considers these solutions with regard to the core functions highlighted above, the German, judge-centred legal education can be described as optimal. By focusing on the position of the judge, which remains more clearly embedded in the inner logic of law, the legal dogmatic system of categories can be better taught. An intermediate solution could be the lawyer-oriented training of lawyers with regard to the procedure and jurisprudence of the higher courts, which focuses more on legal issues. Finally, the most problematic proposal is to base legal education on the figure of the lawyer who transcends law and reaches into other fields. This would be in stark contrast to legal education, which is the intellectual embodiment of all law, and would lead the legal system into a state of decay of the intellectual aspects of law. (Legal dogmatic training or social science training) A number of legal concepts emphasise the need for more social science training in legal education alongside the dismantling of legal dogmatic 41 training. This emphasis emerged with the American legal realists after the Marxist legal theorists of the last century and is emphasised today especially by the proponents of economic legal theory. The fact is that since the early 1900s, the subjects of economics, sociology, philosophy, political science and statistics have been introduced into legal education in short introductory courses. Moreover, there is still room in American undergraduate education for introductory courses in a number of disciplines. The debate is rather about whether this should be expanded with additional hours in legal education and how deeply the legal scholar himself should base the knowledge, rules and dogmatic solutions of each field of law on relevant social science knowledge. In other words, this means on the one hand a more comprehensive social science education for law students, but on the other hand also the demand for a social science approach to jurisprudence and legal dogmatics. If we look at the various legal concepts as starting points in this direction, we see that Marxist legal theories, for example, saw the possibility of complete conscious social control at the end of the 19th century and that the "scientific" state could treat legislation as a means for planned social change. Under the influence of the Hungarian Gyula Pikler or Bódog Somló, this was the overall view of law for a time (cf. Pikler 1892, Somló 1901). But for similar reasons, the American legal realists, who believed in the "social engineering" of lawyers, saw society as controllable and changeable - albeit through judicial legislation rather than legislation - and sought to use the results of the newly emerging branches of social science to achieve this. In the wake of the realists, today's proponents of the economic theory of law, while sceptical about the availability of legal doctrinal control and guidance of judicial decisions, seek to guide judges with insights from the social sciences and therefore to shift legal education from legal dogmatics to social science education (see Posner 1990). The systems theory approach, which addresses the complexity of society and recognises the importance of law as a social subsystem in its own right, urges us to be cautious in this area. Niklas Luhmann, who despite his own legal training (and practice) has developed a profound knowledge of sociology, philosophy, economics and a range of other social sciences over half a century of academic work, has always warned against the euphoria of a "social scientification" of law (see Luhmann 1974, 1981). The autonomy of law demands that the incorporation of social scientific knowledge into law may only take place while preserving the integrity of legal dogmatics. On this basis, it can be argued that it is not necessary to bring relevant social science knowledge into lawmaking by attempting to train lawyers themselves in a range of such knowledge, but rather by bringing representatives of the various social sciences into the lawmaking process as experts to ensure a more complex view. Similarly, in the judicial process, we need to retrain fewer judges to be economists, sociologists, etc., but involve more experts. The introductory subjects in economics, sociology, etc. that are already taught today should prepare future lawyers to be able to judge the subject matter of the experts involved to some extent. In summary, the central task of university legal education is to teach legal doctrines and to develop law students' reality processing in the legal-legal dimension. Social science education is complementary to this, just as the teaching of practical legal skills can only be a part of university legal education. By extending the duration of training - as is the case in Germany with the two-stage law degree and the two-stage state examination - progress can perhaps be made in these two areas, but not at the expense of legal dogmatics. 5.3. The theory of Critical legal studies (CLS) of legal education The analysis of the situation of legal education outlined above is based on some system-theoretical considerations that need to be made explicit in order to understand our reservations about the different views on legal education. One of these starting points is the multi-layered nature of modern legal systems, in which we see the primacy of the conceptual levels of law (textual level, legal dogmatic level, judicial jurisdiction level, basic constitutional level) in the legal dogmatic level. Despite the importance of the other legal levels, only the legal dogmatic level can ensure the intellectual unity of the legal system and avoid the chaos that constantly threatens to arise at the level of complex systems. This starting point makes it 42 clear that legal concepts that reduce law to a single level and do not recognise the existence of several levels lead to a different model of legal education, or that legal education itself does not even exist as part of the legal system. For example, concepts of judicial law do not consider law-related activities outside the courtroom as important. But similarly, the text positivist conception of law ignores legal dogmatics and thus the central role of legal education in law, since the new and emerging legal texts that exclusively constitute law in this conception have to be incorporated by lawyers again and again, and university legal education itself has no special function here. An extreme example of this - which had an effect for a time thanks to the optimism of the Enlightenment - is that simple law, which is open to the understanding of all people, should not be left to a narrow profession, the lawyers, and that anyone can perform the functions of a lawyer in civil law. After the French Revolution of 1789, these too contributed to the abolition of university legal education, and it was only after a generation, in the 1820s, that it was resumed here (see Dawson 1968:256). But it also had an impact in the United States, playing a role in reservations about university legal education until the late 1800s (Friedman 1985:606-633). The only way to establish the durability of university education itself is to identify a more durable general intellectual coherence behind the ever-changing legal texts. Without this, more general intellectual training would suffice, but specialised training in law school would be pointless. In our multi-layered understanding of law, this is made conscious by the emphasis on legal doctrine. Another starting point is that political struggles to resolve tensions and injustices in existing social relations and institutions have developed their own paths outside the law in political and ideological subsystems, and that the confluences and compromises of political struggles are only formalised in law, in the laws of parliamentary legislation. Plural mass media and the freedom to form parties and associations provide the institutional framework for this task in modern societies. Alternatively, if there are inadequacies here and the institutional system of political democracy is insufficient to guarantee the formation of the will of society, then the political system must be reformed, but the legal system or the social sciences and academia must not be politicised as a "substitute" for solving these problems. Politicising these areas is too high a price to pay to fix the problems of political institutions and could even lead to a modernisation cul-de-sac if we try to go down this road like an ophthalmologist. These starting points served as a reference point for our definition of the place and core functions of legal education, and they continue to provide a reference point for the critique of various conceptions of legal education. The furthest from our starting point is the American Critical Legal Studies movement, but it too assumes that legal education is a central part of this conception of law. Critical legal scholars, as they call themselves, start from the premise that law is fully part of the political system and is in fact a covert area of social struggle. The critics seek to expose the power interests at work in certain legal constructions and thus the functions of certain legal institutions and legal solutions as means of class struggle. The constructions of legal doctrine are also seen as summarising the interests of the ruling classes, and major changes in legal doctrine are perceived as shifts of power between groups of the ruling classes. It follows from this conception of law that legal education, which aims to teach legal doctrinal categories, is analysed as a field geared towards maintaining the hegemony of the ruling class. It should also be noted that the traditional Marxist vocabulary of ruling class hegemony is very often attributed by critics to the camps of current political struggles in the US and that the vocabulary of the political camps of black people, other people of colour, homosexuals, feminists, etc. is used to capture this sphere as the right of upper class heterosexual white men (see Kennedy 1996:427-437). Legal education, the critique goes, is an eminence of the political-legal sphere of power where future judges, lawyers and prosecutors are inculcated with the hidden instruments of class domination and where, once in office, they can ensure the subordination of oppressed groups (women, blacks, homosexuals, etc.) to the ruling classes. Two tasks for critics arise from this analysis of the situation of legal education. One task is to conduct legal analyses in their studies that show the advantages for the upper class (white males) and the disadvantages for the lower class in certain legal doctrinal constructions, and to analyse the condensations of power-political struggles in legal change in legal historical analysis (cf. Hunt 1986, Tushnet 1991). However, this jurisprudential activity (or rather legal ideological militancy) is not simply a form of publication of scholarly truth in this conception of law, as is the case with most 43 works of legal scholarship, but rather a form of dissemination in legal education after the purge of 'hostile legal education'. In fact, the critics are not simply a jurisprudential grouping, but a legalpolitical fighting group. And because they could not deal directly with the practical application of the legal system, or because this was not possible due to the traditionally conservative nature of legal scholarship, they made the conquest of legal education their primary goal (cf. Tushnet 1991). In terms of dynamics, those who dominate legal education today may have a major impact on the broader fields of law tomorrow through appropriately socialised movement jurists, activist judges, etc. Accordingly, the main activity of critics since their inception in the late 1970s has been in this direction, and although they have since split into internal camps in many ways - feminist legal theory, racist legal theory, etc. - or have turned to postmodern theoretical directions, they are still essentially active on US university campuses. Over the past quarter century, the Crit's activities have contributed greatly to the politicisation of the American legal profession and law schools. Through their successful political organisation, which enabled them to forge political alliances with representatives of groups dissatisfied with various aspects of the status quo, they dominated a number of American law schools in the early 1990s. Both Harry T. Edwards, a Michigan law professor and federal judge, wrote in his stormy and controversial article that in the early 1990s a political stalemate developed at most law schools between the Crits and their allies and the group of academics who wrote and lectured on traditional law doctrine and the hiring of new faculty, When it comes to tenure renewal, and especially tenure at the professorial level, the candidate's allegiance to the two camps is central, and it is solely power relations, rather than actual academic and pedagogical performance, that drive decisions here (Edwards 1992). In legal education, critics advocate that the subjects in which legal dogmatic categories are taught take a back seat and instead the writings of philosophers, sociologists and literary scholars who are close to their political ideology are taught (Edwards 1992). In conclusion, it should be noted that in the ongoing academic struggles, despite all theoretical and ideological differences, the representatives of the economic theory of law are willing to ally themselves with the neo-Marxist critique, and this makes them understandable that in the current situation they can even move in the same direction as the otherwise polar opposite left critics when it comes to "unhinging" the legal doctrine that has prevailed for decades (see Posner's critique of Edwards' article: Posner 1993). Having won the academic battles, however, their prescription for the economic theory of law is not the neo-Marxist repoliticisation of legal education, but the detailed transmission of the knowledge of the social science disciplines, and they want to replace legal education based on legal dogmatics. 44 Chapter II The layer of fundamental constitutional rights 1. General questions of the fundamental rights layer In the literature, the functioning of the constitutional courts is usually analysed from the perspective of parliamentarism. This emphasis is justified for a whole range of constitutional court issues (e.g. the possibility of declaring political parties unconstitutional, the relationship between parliamentary minority and governing party, etc.), but in recent decades the emphasis in this area has shifted in Western European countries and the activity of constitutional courts has concentrated on the direct examination of fundamental rights in legal norms beyond constitutional law and even on their interpretation by the judiciary (Schuppert 1978: 43). These effects of fundamental rights took hold in the United States in the 1920s and 1930s, after a long period of formal non-existence, and then changed the structure of American society in a revolutionary way in the 1950s, when racial segregation became unconstitutional and the civil rights movements followed. In Europe, German constitutionalism of the late 1950s, inspired in part by the American model, led to the entire legal system being measured against fundamental rights, and its spillover effect on Austrian and Italian constitutionalism, and then on the emerging Spanish and Portuguese constitutionalism of the second half of the 1970s, which drew on the German model, has made analysis of the impact of this phenomenon on legal theory important. The growing importance of fundamental rights is also illustrated by the 1971 decision of the French Constitutional Council, which concluded that the 1789 'Declaration of the Rights of Man', mentioned with respect in the preamble to the 1958 Constitution, should be considered valid constitutional material and properly interpreted, and immediately began to use it as a benchmark for the consideration of proposed legislation (Starck 1988: 635; Morton; 1988: 92). However, the Constitution, with its expanded fundamental rights and their reappraisal in jurisprudence, has imperceptibly changed constitutional law as a whole, and the part of constitutional law that attempts to explore the relationships between fundamental rights and the rules, legal principles and legal doctrine of the individual fields of law and to incorporate them into various interpretative models can be described less and less as "state" law. Above all, however, the constitutional jurisprudence of fundamental rights and the fundamental rights doctrine that has grown up around it have fundamentally changed the internal structure of the traditional fields of law, judicial casuistry, jurisprudential-legal dogmatic activity and the relationship between the parliamentary legislature, which enacts the products of these fields (and chooses between possible regulatory alternatives), in several respects. In this process, the constitutionalisation of fundamental rights has created a new, more abstract and largely open layer of law above these traditional layers of law. This development is by no means complete today, and although it has been accelerating and spreading for decades, as we have indicated, it has also, as we shall see, created some fundamental tensions in the traditional legal strata, so that it is impossible to predict whether there will not be a reversal in this area at some point. Who would have thought, for example, that after decades of rapid growth in state intervention, a modernisation impasse would also emerge in Western societies and that the perception of this impasse would at some point trigger a reversal? West German constitutional jurisprudence has lagged furthest behind in this area, so we will take a closer look at it and only mention the differences from the practice of other countries that are relevant in terms of legal theory. 45 1.1 Problems of the fundamental rights layer In the original American version, two main reasons prevented the fundamental rights enshrined in the Constitution from being removed from the traditional structure of the legal system. On the one hand, the task of confronting these rights with ordinary law became the task of the ordinary courts, and the particularly important constitutional jurisdiction, which is the supreme forum, was developed as one of the functions of the Supreme Court. More precisely, it has claimed this right since 1803. In contrast, separate constitutional courts were created according to the European model, with their activities focused on the constitution and in particular on fundamental rights. This organisational compartmentalisation provided a major impetus for the establishment of fundamental rights as an independent standard, but it also meant that the creation of a constitutional complaint to be lodged directly by citizens was of particular importance in German constitutional jurisprudence. This removed the level of fundamental rights from the traditional legal structure, since although only judges are empowered, for example, to file a constitutional complaint, the Constitutional Court is not the only judge. a civil code and an abstract fundamental right (such as: "human dignity is inviolable") and to initiate constitutional proceedings, the binding force of the socialisation of the legal profession and the imprint of the legal dogmatic models anchored in it make the functioning of fundamental rights as an independent legal layer seem unlikely (cf. Zweigert 1976: 66). For the layman, however, a traditional legal norm is no less abstract than a fundamental right, and when the way was opened for this, the German Federal Constitutional Court was flooded with thousands of such complaints every year (a similar situation can be found at the Spanish Constitutional Court after the German model was made possible to the extent of a constitutional complaint). See Sommermann 1986: 35). The constitutional complaint "shook up" the machinery of constitutional jurisprudence on fundamental rights, and the Federal Constitutional Court did not shy away from drawing concrete consequences from fundamental rights, declaring a number of legal regulations null and void for unconstitutionality from the mid-1950s onwards. This in turn made the sporadic reflections on fundamental rights and their relationship to the legal order a central theme. Thus, alongside constitutional law, there has been a rapid development of the concretisation of fundamental rights in possible legal dogmatic models and the provision of concrete standards, as well as the linking of dogmatically clarified legal principles in traditional areas of law with merely constitutionally enshrined fundamental rights, which appear more as ethical-philosophical theses than as standards of assessment. We have just mentioned two reasons that contributed to the disembedding of fundamental rights and then, over the years, to their development as an independent (at least partial) legal doctrine. However, it is important to mention another factor that keeps these rights in the legal sphere and prevents them from slipping into the political sphere. The areas from which the members of the Constitutional Court can be chosen play an important role in this. The abstract ethical-philosophical character of fundamental rights has the spontaneous effect of displacing them from the legal sphere and tending to shift the adjudication of fundamental rights into the political sphere, which is (also) primarily concerned with ideological and moral arguments. This can only be "tamed" and kept within the bounds of the law by a model in which the constitutional judges consist largely of members of the higher courts, whose decades of practice and thinking honed in legal dogmatic models dampen the immediate moralising influence inherent in this activity. In Europe, the Greek Constitutional Court is the most integrated into the judiciary, as its judges consist exclusively of the members of the highest courts in the various fields. However, Portuguese constitutional law provides for a substantial proportion of judges (six out of 13), Spanish somewhat less, Italian one third and German constitutional law half (Weber 1986: 45-56). In German practice, this proportion is usually even exceeded, with the majority of constitutional judges recruited from higher courts. The judiciary is much freer from party politics than the rest of the legal profession, especially the legal profession. Many years of judicial practice thus filter out party politicians posing as lawyers, even though the election of constitutional judges is dominated by the parliamentary factions of the political parties. After the more politicised composition of the early years, the Federal Constitutional Court has also moved closer to the traditional courts, and members from the judiciary are usually supplemented by university professors of law who have produced significant work on fundamental rights doctrine and other aspects of constitutional jurisprudence prior to their election. 46 It is thus a right and not just a remoralisation of law, which is often bitterly lamented by German practitioners and legal dogmatists of traditional areas of law (Krawietz 1987: 212; Götz 1990: 85), but it differs radically in its essence from the traditional layers of law cobbled together over centuries, even after decades of legal dogmatic taming and concretisation. If one approaches the individual fundamental rights, it also becomes apparent that there are major differences in the extent to which they are abstract, merely ethically defined and can be concretised in legal doctrine. For example, traditional freedoms such as the right of association, the right of assembly or the right to a free press, freedom of religion, etc. pose fewer problems for constitutional jurisprudence. However, the issue of the right to equality in legislation is already a serious problem, all the more so because a number of inequalities, including natural inequalities, make it possible to challenge the inequality of the rules on the basis of this right. The real problem, however, arises from the formula of the inviolability of human dignity. As early as the 1950s, Josef Esser, on the basis of his experiences in the early years, described it as "hopelessly impossible" to base an immediate judicial review on these declarations (Esser 1956: 73). And it is precisely in the case of the more easily grasped rights to freedom that the number of constitutional complaints in Germany has been vanishingly small in the decades to date (about 100 out of about a hundred per year), with the right to equality and the human dignity clause being the most popular grounds for attack. Sometimes two thirds of all complaints in a year are on these grounds (Blankenburg/Treiber 1982: 14; Landfried 1985: 65), which cannot be assessed with the conventional methods of legal interpretation. Ernst Forstoff's attempts to propagate this since the late 1950s were practically completely ineffective (Forstoff 1964: 154-176). The Federal Constitutional Court did not even accept attempts to limit the scope of such "hopelessly abstract and empty" fundamental rights, advising that implementation be left to parliament, and only saw the remaining fundamental rights as more or less precise. Of course, the trauma of the Germans' "parliamentary bankruptcy" in the 1950s, which legally enabled a party that openly proclaimed the destruction of democracy to come to power before the Second World War, also contributed to this. In recent decades, the main method of enriching the content of these fundamental rights has been to make them interdependent. It is possible that the right to equality in itself offers little guidance for the assessment of individual cases, but when it is made more precise by the implications of the constitutional anchoring of the welfare state and linked, for example, with the fundamental right to freedom of occupation, which is also enshrined in the constitution, the constitutional judge has gained more orientation for his decision. The subsequent - ever-widening - flock of legal scholars specialising in the doctrine of fundamental rights then further condenses the decision-making criteria in the wake of such constitutional court rulings into a series of inflammatory, critical and critiquing writings; they formulate concise standards and maxims, and this has, over the years, woven shut the all-too-large discretionary gaps (Grimm 1982: 51). This "juridification" is of course only partially enforced by some impenetrable barriers. One such limitation is that these fundamental rights are only compatible with each other at a very general level, where their conflicting guidelines can be better resolved by discretion in individual cases, limiting one or the other. However, it is not possible to concretise fundamental rights coherently at the level of rules, as is the case with the traditional substance of law (Alexy 1985: 71-78). To do so, many would have to be sacrificed, some would have to be relegated to a subordinate position, and only in certain aspects would they prevail, ground down to one or two fundamental rights, which would then be given a privileged position. However, these remaining rights would then no longer be fundamental rights proclaimed with absolute clarity, but would be integrated into the legal order as normalised and limited "grey" rights. This would probably not even require a constitutional court, since rights that are dogmatically uncontroversial can be defended within the system of remedies of a normal constitutional state. Another obstacle to juridification is the highly divergent interpretations of the nature of fundamental rights, none of which is closer to an arguably correct standard by comparison with which the others might be considered far-fetched or less convincing. Böckenförde, in a summary of the most important developments in this area in 1974, distinguished five major interpretative paths, and in this order the discretion of the Constitutional Court is radically expanded along the interpretations of ever broader theories of fundamental rights (Böckenförde 1974: 1529-1538). The narrowest interpretation is that of the liberal theories of fundamental rights, which see fundamental rights as guarantees that keep the state at a distance; the institutional conception of fundamental rights, which sees them not as individual guarantees but as guarantees of comprehensive institutions and mechanisms, opens the way to a control of the entire legal system; This line is continued by the conception of fundamental rights as fundamental values of law; a new turn is prepared by the theory of fundamental rights as rights of 47 participation; however, their potential only unfolds through the theory of welfare state fundamental rights, which defines fundamental rights as the respective subjective right of the citizen to certain state benefits. Legal reasoning cannot do them justice. Both have a rational core of thought, but in each case a polar opposite result can be achieved, depending on which one the constitutional court takes as a basis. One only has to think of the first "numerus clausus" ruling of the German Federal Constitutional Court in 1972, which was based on a challenge to a law that had been passed only a short time before. This law allowed for the restriction of university admission due to overcrowding at medical universities. Some young people who had not been admitted saw this as a restriction on their constitutional freedom to choose a career. They argued that the state would only guarantee this right if, in addition to the formal declaration, it also created the financial conditions for it. In other words, a state education policy and the budget that implements it that does not build universities with sufficient places, but violates the constitutional freedom to choose a profession by introducing a numerus clausus, is unconstitutional. On the basis of the constitutional complaint, the Federal Constitutional Court agreed with this line of argument and stated that fundamental rights must indeed be interpreted in this way and that the state budget must also create the financial conditions for this. Moreover, in the specific case - as is unanimously pointed out in the commentary literature - it has of course inconsequentially allowed the numerus clausus rule to continue to apply (cf. e.g. Götz 1990: 88). In later rulings on similar issues, the Federal Constitutional Court cautiously retracted a good part of this welfare state interpretation after a logical run-through of the counter-arguments showed where it would lead if applied to all fundamental rights. In practice, this would have required the entire organisation and financing of social life by the state, which would have required the abolition of the market economy. This was hotly debated in the political-ideological disputes of the Western world in the 1970s, supported by some parties and attacked by others. Thus, in the legal garb of fundamental rights, the Constitutional Court would have defended one of the major political alternatives as "constitutional". Since we are primarily concerned with legal theory here, we conclude by pointing out that placing all state policy under the direct control of the Constitutional Court would drive the rule of law into the ultimate erosion of parliamentary democracy. However, since this cannot be decided by strict legal reasoning, it would lead to an over-politicisation of constitutionalism. More important in terms of legal theory is another dimension of the interpretation of fundamental rights, in which they are understood as directly enforceable rights, and since fundamental rights are guaranteed by the highest level of law, the level of the constitution, they displace and reorganise the simple areas of law of private law, labour law, etc. and the subject rights and duties they confer. In German legal literature, this is referred to as the "Drittwirkung" of fundamental rights, i.e. the effect of fundamental rights on relations between citizens. At the time of their conception in ethics and philosophy, these rights were originally related to the relationship between the state and the individual, but with the expansion of the catalogue of fundamental rights and their subsequent incorporation into the constitution, they came into direct contact with the problems of their concrete realisation, and what had remained unnoticed in their abstract state was inevitably raised here in everyday constitutional life: What is to be done with human dignity, the right to equality, etc.? or with the other acts which are limited by private autonomy and which, although they are in perfect conformity with the provisions of the Civil Code, for example, may come into conflict with one of the fundamental rights guaranteed by the Constitution? Right in the early years, in the early 1950s, after the Basic Law came into force, the Federal Labour Court went the boldest route and recognised the direct effect and subjective nature of the fundamental rights that precede the simple labour laws. In one of those famous 1957 rulings, it declared a clause in an employment contract null and void and unconstitutional because it provided between an employer and a female employee that the employment relationship would be automatically terminated if the woman married. However, when this happened and the employment relationship was terminated by the employer, the court found, at the request of the opposing party, that the fundamental right to freedom and protection of marriage enshrined in the Constitution had been violated. Thus, citing Article 6 of the Bonn Basic Law, it declared this clause of the employment contract invalid (Götz 1990: 37). Numerous similar rulings were made in the 1950s, and studies have shown in great detail where courts lead when they follow this path over a long period of time (in particular, an article by Günther Dürig from 1956 showed the full scope of the dangers). All this led to a decision of the Federal Constitutional Court in 1958, which established in principle the meaning and limits of fundamental rights for private law and other simple areas of law. However, the courts are obliged to interpret the 48 Civil Code and other legal texts in the light of fundamental rights and, in particular, to interpret the general clauses in the light of their constellation. This was only extended by a decision of the Federal Constitutional Court in 1971, according to which German law is to be applied in cases of private international law if, according to the conflict-of-law rules, a foreign law is to be applied, the specific regulation of which is incompatible with the fundamental rights of the Bonn Basic Law. (The case in question concerned the marriage of a Spanish man who had worked in Germany for several years and a divorced German woman. According to the conflict-of-laws rules of private international law, Spanish law would have applied, but it did not recognise the divorce and therefore did not permit the marriage. However, this is in contradiction to the article of the Bonn Basic Law that establishes the freedom to marry as a fundamental right). In recent decades, the effect of fundamental rights on broad areas of law has stabilised in this indirect form in the German legal system and was then adopted in this form in Italian and, since the end of the 1970s, in Spanish constitutional court practice (in the Austrian fundamental rights literature, this indirect effect was finally rejected after a long discussion). In Germany, this indirect effect can also be directly challenged by citizens with a constitutional complaint and gives the courts an incentive to include the resulting constitutional fundamental rights in the interpretation of ordinary law. Constitutional complaints against court rulings can thus be lodged on two grounds: firstly, if the citizen considers the underlying law to be contrary to fundamental rights and, since the Lüth ruling of 1958, also if he or she only considers the courts' interpretation of the law to be insufficiently in conformity with fundamental rights (Hesse 1984: 98).And as we have seen, these mostly relate to the postulates of human dignity, equality and the welfare state. As an open legal layer organised by ad hoc rulings of individual constitutional courts, the fundamental rights layer has thus stabilised over decades, protected by the casuistry of the judiciary and the legal-dogmatic-systematising activity of the traditional legal fields and the parliamentary legislation based on them. However, this stabilisation has not only added another level to the complex legal structure, but has also restructured the relationships that have developed between the other levels over many decades. Let us take a closer look. 1.2 Fundamental rights and legal layers It is not possible to draw a uniform picture of the inner structure of law, and even for an approximately good description it is not sufficient to separate continental European law from the common law systems. A deepening is possible if one first analytically separates the inner layers of the complex legal sphere and then looks at the structure in which the distribution of weights has stabilised and the relationships between the individual layers have developed. Thus, in modern legal systems, law is (1) established by a parliament of politicians; (2) the regulatory models in law are developed by the legaldogmatic-legal-scientific sphere, which is partly embedded in academia; (3) but it relies crucially on new problems and case decisions arising in judicial casuistry (for a different emphasis on these three layers, see Esser 1956; Larenz 1979; Kriele 1975 for their conceptions of law). If one looks at the development of the relationship of these legal layers to each other in a historical dimension, one can start from judicial casuistry as the "common initial legal layer" of modern legal systems, above which the other legal layers have grown to varying degrees since the late Middle Ages. In French legal development, at the beginning of the 19th century, the results of judicial casuistry and legal doctrine based on Roman law, which had been taken over from the Middle Ages, had placed law in the hands of the political legislator in the Napoleonic Codes, which drew its ideological basis from Montesquieu's legal positivism. Here, from then on, almost until our own time, law was equated with the legal text enacted by the political legislator, which was seen as a guide for judicial judgement without any assistance. In the nineteenth century, the role of judicial casuistry in the development of law was even more intact, and it was not so much the text of the political legislator that took precedence over the text of the law, but the legal dogmatic-systematising activity of the jurisprudence of the academic world, which in the meantime had grown by leaps and bounds. (One of the clearest products of this development was the Civil Code of 1900, developed by Pandecta Jurisprudence and Conceptual Jurisprudence). The development of English law remained the reality of law, confined to the legal level of law, until the beginning of the 20th century. Here, the practice of following precedent was rationalised by the precise elaboration of the principles of ratio decidendi and stare decisis and by 49 linking them to the hierarchy of higher courts, as well as by the continuous recording of precedents and their publication in the official records, replacing the continental solution of a hierarchy of legal sources over judicial practice. Finally, American legal development, while taking the characteristics of English common law as a starting point (or, after some hesitation, retaining them), early on adopted the concept of legal change through political legislation from continental law; from the first decades of the twentieth century, legal dogmatic-categorical activity on the German model also developed here to some extent. From then on, American law took on a new dimension with the early constitutionalisation of fundamental rights and the Supreme Court's practice based on it. This in turn brought a more abstract and open layer of legal principles into the law, alongside judicial precedent, political legislation and legal doctrine. All these layers created transitions and interactions between them. After the rigid one-sidedness of the 19th century (French legal positivism, German legal dogmatic positivism and the strict adherence to the English ratio decidendi), it is also possible to identify here the German legal dogmatic and legal casuistic layer at the beginning of the 20th century. The German legal dogmatic and legal casuistic layer was joined by the jurisprudential layer and its independent development under the influence of evaluative jurisprudence (or the school of liberal law, which was the heir to interest jurisprudence). The structure of English law has also gradually expanded in recent decades to include an independent layer of legal principles, although it remains more closely linked to judicial precedents (a sign of this is the valorisation of the obiter dictum part of precedents as opposed to the ratio decidendi, which contains a set of settled legal principles). Cf. Esser 1956: 376; and Schlüter 1973: 47). However, the role of academic jurisprudence has remained subordinate to this day (cf. Kötz 1988: 648). The weight of the written law of the political legislature also increased in English law, but it was not integrated with the common law material based on the principles of law supported by the ratio decidendi and obiter dictums, but its strongly situational normative material and the common law material were split, and thus the expansion of the legal structure was achieved in a state of disintegration (cf. Fikentscher 1975: 275). The influence of French legal positivism, insofar as its spirit is still alive today, has waned, and judicial casuistry, forced to illegality and to follow the text of the law to the letter, has become more liberated in recent decades (Morton 1988: 96). In summary, it can be said that the fragmentation of the various legal layers in modern legal systems can be found everywhere to a certain extent, but that their share and the dominance of the individual layers over the others varies from legal system to legal system. In recent decades, the layer of the Basic Law outlined above, inserted at the top of the law, has broken into this traditionally grown, organically evolved legal structure and has restructured the relationship between the other layers. A significant consequence of this is that the possibilities of the political legislator have been further restricted. This is even more dramatic in a legal positivist view of the law, from which a hitherto unrestricted legislature is subjected to scrutiny. In the overall structure of the law, however, this can only be seen as a gradual narrowing. In traditional jurisdictions with legal doctrine, the legislature's real option even before this was to choose between the regulatory model alternatives developed by judicial casuistry and the legal doctrine cooperating with it, supported by lawyers and law professors who were better able to explain the different interests and underlying ideological principles of the various regulatory alternatives and who belonged to different political parties. This freedom of choice was curtailed by the constitutionalisation of fundamental rights. It is now no longer sufficient for the parties in parliament to have sympathetic law professors who can provide them with regulatory alternatives to the party programme for the pending or desired amendment of the law, but they "look anxiously to Karlsruhe" (seat of the Federal Constitutional Court) and have special expert opinions prepared to predict whether the law will subsequently pass the filter of the Federal Constitutional Court. In quite a few cases, the Constitutional Court is so accommodating that, having just declared a provision of a law unconstitutional in one case, it summarises in an annex to the judgement the most important criteria which, if met, will lead it to recognise a corresponding law as constitutional in the future. (Similar cases have occurred in the practice of the Spanish Constitutional Court, which closely follows the German model, cf. Sommermann 1986:34). More important is the impact of the fundamental rights level on the functioning of the legaldogmatic and legal-scientific level. In short, this could be summarised as a tendency to shift the focus of legal doctrine and jurisprudence from concentrating on judicial casuistry and the resulting "gradually growing" paths of legal development towards more abstract legal principles and fundamental rights. This is confirmed by two developments. On the one hand, a "higher" fundamental rights doctrine and personnel have developed in German jurisprudence (to name just a few of the most 50 renowned authorities: Nipperdey, Dürig, Krüger, Schwabe, Häberle, Böckenförde, Leibholz, Bleckmann, Friedrich Müller, more recently Grimm, Alexy, etc.). On the other hand, a cadre of legal scholars is emerging in the traditional fields of law who are more able and inclined to think in conceptual and abstract dogmatic models, and whose members are now developing the subject matter, legal principles and dogmatic institutions of their fields of law in the light of fundamental rights doctrine. Finally, as far as the judicial casuistry of the traditional jurisdictions is concerned, it is influenced in two directions by the emergence of the fundamental rights level. On the one hand, the judges' freedom of movement is expanded, since in addition to the traditional techniques of legal interpretation (grammatical, logical, taxonomical, historical, teleological), they have been given the power by the Constitutional Court to base their legal interpretation on fundamental rights. (However, this right is rarely exercised by the German courts; between 1951 and 1974, only about 400 such proceedings were initiated, of which the Federal Constitutional Court declared the challenged provisions unconstitutional in 100 cases (Blankenburg/Treiber 1982: 18). In Italy the number is much higher, up to 1,000 per year, although there is no citizen's constitutional complaint there and the requirements for initiation are less strict (Ritterspach 1986: 228). In addition to this freedom of movement, however, we believe that the stabilisation of the fundamental rights level fundamentally reduces the importance of judicial casuistry in the development of law in the overall structure of the law. With such regular interference by the Constitutional Court in the judicial decision-making process, and even in constitutional complaints against judicial interpretation of the law, as has occurred in recent decades in the aforementioned Western countries, especially in Germany, judicial casuistry is not in a position to engage in independent legal development. If Josef Esser's legal concept of judicial casuistry was realistic in the mid-1950s, it has become illusory in the last decades (see Esser 1956). The stabilisation of the fundamental rights level, as it took place in the German model and in the successor states, thus has two big losers: In addition to the "narrowing from below" (legal dogmatics, judicial casuistry) by the Constitutional Court (and the new fundamental rights dogmatics staff behind it), the role of the political legislator was reduced from above. In extreme cases, as described above, this could completely restrict his freedom of movement. Judicial casuistry, in contrast to the image of the "heroic judge" left over from the turn of the century, is increasingly reduced to the role of a diligent purveyor of jurisprudence for the systematising legal dogmatics and the constitutional jurisdiction above it. In compensation for the reduction of its role in legal development, it has also been given the right to set the machinery of constitutional jurisprudence in motion through the institution of concrete review of norms. Compared to these two losers, the role of the legal profession as a whole in the disposition of law has increased, but the focus of the legal profession has shifted more towards the representatives of the more abstract legal-dogmatic layer. 1.3 Question marks regarding the fundamental rights layer It should be noted at the outset that the problems outlined below do not apply to fundamental rights constitutionalism in general, but only to the extended model of German constitutionalism in particular. With the political freedoms precisely defined in the constitution, their interrelationships more or less precisely worked out in legal doctrine and their concise constitutional anchoring, an approximation to the predictable and comprehensible legal practice made possible by traditional legal texts is possible. However, "human dignity", the "welfare state postulate" etc. can no more be judged by the Constitutional Court on a case-by-case basis than can the parties and their legal experts, who publicly control each other in the course of legislative battles. The situation is similar with most fundamental rights of a social and economic nature. As tasks to be fulfilled, these can play an important role as constitutional objectives to be addressed to parliamentary legislators. For example, in parliamentary debates to underpin arguments heard live by millions of citizens, and so these rights remain alive. But these fundamental rights cannot be encapsulated in a reasonably precise legal dogmatic model so that a neutral authority can steer parliamentary democracy through them in a predictable way. The drafters of the 1949 Bonn Basic Law, who had learned from the failure of the Weimar Constitution in this regard, did not include these basic social and economic rights, but the welfare state political orientation of the 1950s and 1960s, 51 with its reference to the constitutional anchoring of the welfare state postulate, led to the constitutionmakers actually adopting them in the subsequent period. One possible solution to reconcile such broad fundamental rights with the stability of the legal order could be the one developed by the prudent Spanish constitution makers in 1978. Here, the rich experience of the previous decades on the advantages and disadvantages of the different variants of European constitutionalism was already available, so that they did not simply copy the legal constructions but made a conscious choice). The main innovation of the fundamental rights regime here is that while they were broadly enshrined in the constitution - what was once and somewhere carved out as a fundamental right and incorporated into the constitution is found here - they were not then juxtaposed with constitutionalism as a single avenue of legal protection, but were divided into internal categories that can only be invoked in the case of certain groups of fundamental rights. (In practice, fundamental rights of a social and economic nature are excluded from the possibility of constitutional court review through a constitutional complaint and only affect legislative programmes as constitutional tasks). The overall structure of law is made very open by an overly broad interpretation of fundamental rights, and this endangers the very special contribution that only the legal order can make to society and other institutions: a calculable legal performance that can be equally measured in the future. Law is structurally open through political legislation, and a more aggressive state political watchdog could threaten the inner dogmatic unity of law by translating political goals directly into law (cf. Voigt 1980; Teubner 1984). Or the law is open to a certain extent through the ethical norms that flow directly into the law through the personality of the judges. In a consolidated parliamentary democracy, however, the resulting danger of structural distortion can be kept below a threshold. The constitutionalisation of fundamental rights reduces this political openness by placing them under the control of the parliamentary legislature, but it also opens the legal order to direct ethical-ideological debate. Below a certain level, this openness is not a serious problem, and the adoption of some principles and norms expressed in extra-legal debates only increases the innovative potential of the law. In the case of a number of these fundamental rights, it was clearly observable that hitherto declarative ethical and ideological principles have been clarified and enriched in the practice of constitutional courts over the decades by internal norms and internal conceptual divisions linking broad groups of cases. The emergence of traditional legal principles and their stabilisation with independent names always followed a long process of formulation, in which their relationship to other existing legal principles and to the relevant case groups was clarified step by step. In contrast, fundamental rights, as products of early social contract theory, were only developed on the level of political claims in ideologicalpolitical debates, which only showed their inconsistency in the confrontation with concrete everyday legal cases through the establishment of constitutional law. However, it then very quickly became apparent that some of these fundamental rights or other ethically important requirements, such as the protection of human dignity, cannot be decided directly on a case-by-case basis. When the Federal Constitutional Court begins to classify legislation as unconstitutional on the basis of such an untraceable Basic Law, a problematic aspect of constitutional jurisdiction emerges with particular force. The fundamental question arises: What justifies the constitutional court in its action when it declares the laws of a parliament directly elected by the people null and void? There can be only one such justification: the fact that the constitutional corpus on the basis of which it issues these annulment judgments is legally established and based on legal doctrines that are the consensus of the entire legal profession and can be held to account by the public opinion of the legal profession in its judgments. The Constitutional Court, which is otherwise not subject to control by any other body, is then not without control. This legitimacy can be triggered by two things in particular. The first is when party politicians, disguised as lawyers, become dominant in the composition of the body. The other cause of such corrosion can be that open principles and fundamental rights postulates become the focus of constitutional jurisprudence, which evade legal dogmatic clarification even in retrospect. It is no coincidence that this problem has come to the fore in the French Constitutional Council over the last ten years. The composition of this body is much more composed of lawyers who are closer to politics than is otherwise the case in Western European countries. It did not play a particular role until the early 1970s, when, following the 1971 Constitutional Council decision reactivating the above-mentioned "Declaration of Human Rights", it began relatively frequently to declare draft laws submitted to it unconstitutional. Since there is neither a citizens' constitutional complaint nor a concrete review of norms by judges, and since only the parliamentary opposition makes a final attempt to declare a law unconstitutional after it has been passed in the parliamentary struggle, startled government politicians wondered how the Constitutional Council came to do this.And indeed, what is 52 so indefensible in other Western European constitutional courts, with their professional judges, solid legal history and the legal profession socialising and supervising them, is almost indefensible in the more politicised French Constitutional Council. However, open fundamental rights jurisprudence largely undermines this legitimacy even in these cases. Serious signs of this were seen in the German constitutional courts in the 1970s, when their popularity plummeted after some highly controversial decisions (cf. Landfried 1985: 79), although it should be noted that the serious, dignified demeanour of the constitutional courts and the calm, reasoned tone of their judgments generally lend them a high degree of public confidence for external reasons. However, this cannot compensate for the erosion of their real legal legitimacy brought about by the overly broad application of fundamental rights jurisprudence (some critics have said that the Constitutional Court, with its dignified theatricality and emphatically legalistic argumentation, mimics the consensus that can no longer be achieved in the parliaments of political parties. See Hase/Ladeur 1980: 224; Ladeur 1982: 395). The advent of constitutionalism has not only restructured the overall structure of law, but also the political will-forming process of society as a whole in Western countries by shifting some of the political debates that were previously conducted outside of law from the ideological realm to constitutionalism. Once this forum was stabilised by fundamental rights and opened up to ideology, participants in these debates have sought to use it as the main avenue for concluding the debates. The context relevant here can be briefly summarised as follows: The internal development trends of the competitive party system since the years after the Second World War have increasingly detached the will-formation of political parties from the earlier more rigid ideological-normative determination and they formulate their political programme according to the respective share of the political voting bloc. On the one hand, the formation of public will has also been transformed in the area of parliamentary and governmental decisions into an ad hoc decision-making process of the parties, which react more flexibly in this way, and on the other hand, in the preparation of individual laws, the details of the decisions are "negotiated" ad hoc by the top interest associations involved, delegates from ministries, party politicians and experts. In other words, decision-making processes in public policy are more characterised by case-by-case problem-solving than the more ideologically driven mechanisms of the past (Pokol 1981; 1987). Constitutional jurisdiction and its practice, on the other hand, puts a system of principles established on a more abstract level as eternal back at the centre of the formation of will and brings the products of case-by-case compromise decision-making processes under control. This can have an important positive effect on fundamental rights, which could approach legal dogmatic clarification through their more localisable content. For fundamental rights that go beyond this, however, constitutionalism only freezes the possibility of more flexible compromises, as critics of the problem point out (Hesse 1984). Once an important public institution has stabilised and gained weight, it is instrumentalised by participants in political debates and used in the course of the debate or to end it. This is the case with the Constitutional Court. It is now considered an alternative to the legislature of parliaments composed of political parties to settle important socio-political disputes. After such a debate has been conducted with great social resonance, an alternative to solving the problem at the legislative level is to highlight the core of the problem, formulate it in the form of a "basic law" and demand that it be enshrined in the constitution, thus removing the debate from the political arena. Below a certain threshold, this is not too much of a problem. However, the growing social movements of the last decade have created a hidden tension here as well. An open judgment on fundamental rights and a constitutional court that lacks moderation could thus turn fundamental rights into "traps". In Europe, no principled separation from politicisation has emerged in the practice of constitutional courts, even if, as indicated, the predominance of professional judges has so far reduced this danger. Related to the latter suggestion, albeit of a more technical nature, is the problem that while in parliamentary legislation the consolidated replacement of existing laws and their unproblematic amendment from time to time is possible, such a consolidated amendment of the fundamental rights judgments of the Constitutional Court is not ascertainable for many fundamental rights. In empirical debates, it is not difficult to make changes without invoking perpetuity, but constitutional court reasoning that focuses on fundamental rights created for perpetuity is not so easy to correct in retrospect. Therefore, if it is only possible to imitate the absolute character of a fundamental right, it is better to refrain from doing so and leave the decisions to a more flexible parliamentary legislation. 53 1.4. The theoretical significance of constitutional fundamental rights Historically, human rights are a product of dissatisfaction with the status quo, as is the idea of a constitution in the modern sense. In his new volume, Gerald Stourz systematically traces the process by which the concept of "constitutio" as the "body" of the state, after its antecedents in seventeenthcentury England, took on a new quality in arguments in support of American independence from the first decade of the seventeenth century and then in the climate of French socio-political tensions (Stourz 1989: 39-87). In this reinterpretation, the concept of the constitution, which had previously been used only sporadically and in the sense of public laws, was located to designate the state's power structures, and the basic structure thus emphasised became the contested subject of social contract theories, the relationship between the rights of man and the state. The American colonies, striving for independence and reaching one level lower than the otherwise sovereign English legislature, now claimed a violation of the (ideologically located) Constitution. The French, too, suddenly realised that they did not actually have a constitution (Luhmann 1989:6). Whereas the term had previously been used only for public laws without differentiation, it was later located on the basic structure of the state and alternative structures were formulated in cultural-ideological debates. Without social discontent and revolution, the emergence of constitutional law and its underlying cultural discourse could not have taken place, as the example of England shows, where the "embedding" of basic structures and principles in common law remained unbroken. This is the starting point for understanding the importance of constitutional control in legal theory. The stabilisation of constitutional jurisprudence vis-à-vis other fields of law in the case of the first "organisational-procedural" constitutions (Alexy) has lifted the discourse on the structure and functioning of the state-political system out of the previous case-by-case diffuse debates and ways of thinking. After several decades of debating the basic structure of the state, and subtle refinements, systematisations, clarifications with new thought constructs and semantics emerging from the comparison of alternative concepts, the entire previous level of thinking was discounted as inadequate. Niklas Luhmann's analysis of the years leading up to the drafting of the US Constitution shows that fundamental questions were raised and decided in the debates, some of which were concretised within a few months, which were of importance for many decades of later constitutional development but had not arisen at all before (Luhmann 1989: 19-26). When a political-cultural discourse has reached this level and the positions developed in the debate are anchored at this abstract, principled level in the entire political culture of the society concerned, then ad hoc arguments about the details of the state and the wider political sphere can only be regarded as additions to it. And if they are not relevant to these, they cannot be expected to appear irrelevant in the discourse on these issues. The Basic Law, with its expanded fundamental rights, and the constitutional jurisprudence that has developed about it, have set in motion this tendency towards abstraction and accentuation across all areas of law in recent decades. The period almost half a century ago, for example in Germany, which institutionalised very extensive constitutional jurisprudence on fundamental rights, has already revealed some of the resulting tendencies, but we believe that the real effects will only become apparent in the future over a longer period of time. Depending on which type of constitutional court (more legal or more political) takes control of fundamental rights, different changes occur in the ideological, political and legal subsystem of a given society. 1. Ideological constitutionalism. The practice of a largely activist body of constitutional judges who conceive of fundamental rights as an abstract moral principle is the subject of great social controversy. This type, if it can stabilise over a longer period of time despite the heated debates triggered by the decision, becomes the focus of the ideological field. The direct ideological debates that are always triggered after each decision of the Constitutional Court gradually organise themselves around these decisions; the practical political sphere receives new impulses to form camps in the sense of abstract, principled politicisation; some of the public writers and artists with a political mindset, who become quasi-constitutional law experts, devote their activities to the debates here. If no European constitutional court has moved in this direction with such clarity, there are some brief developmental steps in all of them that come close, with the effects mentioned above. For example, the West German Constitutional Court in the early 1970s after its decision to challenge the law ratifying the state treaty between the two German states, or even in the mid-1950s after declaring extremist parties unconstitutional. The decisions of the French Constitutional Council in the early 54 1980s to declare a series of nationalisation decisions by the new socialist government unconstitutional on ideological grounds could also be placed in this category (in subsequent debates, some of the more rigorous proposals also recommended the abolition of the Constitutional Council for consideration). Cf. Morton 1988:94.) But the US Supreme Court also played a similar role when it vetoed the New Deal in the 1930s, and from the second half of the 1950s, after the appointment of Chief Justice Earl Warren, this body became a focal point of fundamental rights activism in particular. However, these are only exceptionally clear representations of the ideological implications of the activity of the constitutional courts. Although not as strong, these influences make the constitutional courts an important point of reference for today's ideological spheres. 2. Political constitutionalism. A relatively clear case in point is the French Constitutional Council, before which neither courts nor citizens can initiate proceedings, but only a limited number of members of parliament (i.e. the head of government, the head of state and the presidents of the two chambers of parliament). This is because it is predominantly the opposition that attempts to correct the failure of bills in parliament by declaring them unconstitutional in the last instance (Starck 1988: 643). Although abstract norm control is a procedure practised in most European courts, it plays a subordinate role elsewhere compared to procedures in concrete cases, and its beneficial "disqualifying" effect is also impressed on the sporadic abstract norm control decisions that give the Constitutional Court sufficient resistance to politicisation. 3. Strictly judicial constitutionalism. This is the type of constitutionalism we have been studying, and West German constitutionalism has been the best example of it, and the spillover effect is that most constitutional courts in Western Europe are moving in this direction. This type, in our opinion, has a real explosive power because it combines human rights developed in moral-ideological discourse with procedures refined over centuries of legal and legal-dogmatic activity, and confronts these fundamental rights year after year with concrete real-life cases rather than the sporadic and abstract debates of the past. The political or ideological type, on the other hand, merely prolongs the political and ideological struggles already taking place in these areas without giving them a truly new quality. Admittedly, this is contrasted with the fact that the all-too-direct application of abstract fundamental rights often conjures up the danger of disintegrating the legal system and legal doctrine that embraces them (Krawietz 1987:215). However, if these excesses can be kept below one level, the gradually developing fundamental rights doctrine can integrate them more or less organically into the law. But even in this optimal case, fundamental rights create changes in the legal system. Only the most important ones: I. Through the doctrine of fundamental rights, the effect of the constitution, which was previously raised through simple laws, is gradually extended to public-political life and has relegated the activity of the administration and the ad hoc problems of the state to a subordinate role by localising the basic structures here. The same effect is now the localisation of the most important aspects of all areas of law in the form of abstract principles, devaluing the independent role of casuistry in the development of law. The hundreds of constitutional court cases per year that invade judicial casuistry on the basis of abstract principles (and the mass of fundamental rights monographs that lie behind them) largely interrupt the organic path of legal development, in which a legal principle or institution is subsequently purified by a series of court decisions over several years, fumbling through the mass of cases. II Constitutionalism based on fundamental rights also brings about an important change in the nature of the legal texts in force. The rule character of legal norms is broken, legal obligations and juridification are created on the basis of open legal principles (Alexy 1985: 69). Although the seamless derivability of rules from the law is often an illusion even in the case of rules in simple areas of law, the decisional content of the rule makes judicial rulings largely predictable through legal dogmatic contexts that enjoy consensus within the underlying legal community. Due to the rule character of legal provisions, it is now possible to distinguish more or less precisely between jurisprudential-legal dogmatic solutions that interpret the existing body of law and proposals de lege ferenda. The latter, even if they enjoy great authority within the legal profession, are "only" jurisprudential products, "options" that may be reflected in the applicable rules in the future in the event of a certain change in the law. In the case of fundamental rights, this separation between "mere" academic opinions and the dogmatics of the applicable law is broken. Here, there are only polar opposites - we have seen the divergences between the five theories of fundamental rights - and it is always the Constitutional Court that decides what is constitutional and thus legitimate. Of course, this has to be tempered by the fact that the Constitutional Court more or less insists on such an interpretation in a given period of time, which in a way sets the currently "applicable" fundamental rights doctrine apart from the others. And the choice of the Constitutional Court is - 55 influenced by the changing consensus within the profession. The German literature on fundamental rights does a good job of showing how the jurisprudence of the Federal Constitutional Court, embedded in the core of the profession, tracks the jurisprudential development of the various interpretations of fundamental rights and the changing consensus of the profession from one to the other (Häberle 1987: 136). Nevertheless, the dissolution of the boundary between de lege lata and de lege ferenda poses a threat to the law that should not be underestimated, and many reflections have suggested the dissolution of modern European law as a whole as a possible end state (Forstoff 1964; Krawietz 1987). It remains to be seen whether these dangers will not become acute in the future or whether, on the contrary, the legal dogmatic taming and progressive concretisation of the regulations optimistically assumed in our study will occur. III Another significant effect of the fundamental rights jurisprudence is that the will of the political parties in the parliamentary legislature is subjected to control by the legal profession. The relationship that had developed between the parliamentary legislature and the party system behind it since the beginning of the 19th century is reversing itself in our century after a long period of time. Laws passed by parliament formally enter into force, but their final incorporation into the legal order still depends on whether they pass through the filter of constitutional law. Although in practice the vast majority of provisions pass this filter (and, as mentioned above, the anticipation of the expected reaction of the Constitutional Court is already present when the law is drafted), it is precisely the most important provisions that are subject to the heightened attention of the Constitutional Court. The fact that only the bodies and persons authorised to initiate external proceedings can appeal to the Constitutional Court does not prevent this. Thus, in German practice, with 1,500 to 2,000 constitutional complaints per year, almost every important regulation is challenged in some way, and as analytical articles have shown, there is a very deliberate selection process in which the six "filter committees" set up alongside the Federal Constitutional Court for this purpose are about one in six. In Italy, too, the threshold for a specific review of norms is set so low that judges annually submit hundreds of cases for constitutional review, from which the Constitutional Court can select and develop its own constitutional and legal policy (Ritterspach 1986: 234). As a result, the earlier political openness of the law tends to diminish, and the Constitutional Court, embedded in the judiciary, gives the legal profession broader control over the movement of the law. To be sure, the precise normative character of the law is further relaxed, and the freer application of law that jurisprudential evaluation has developed in recent decades in traditional areas of law at the expense of the text of the law. For example, the construction of the "gap-filling" of legal principles by teleological reduction in Larenz (1979: 362) or Wilburg's "movable system" for overcoming concrete rules (Wilburg 1950 and more recently again in Bydlinski/Krejcietz 1989). In the picture outlined, law thus appears as a professional institutional system, and the constitutionalisation of fundamental rights can only complete this development path under certain conditions (judicial embedding and gradual dogmatisation of fundamental rights). If these are lacking, however, the dangers that its critics repeatedly emphasise could arise. 2 The Hungarian Constitutional Adjudication Let me begin by pointing out an important line of demarcation within modern constitutions and constitutional jurisprudence that gives the demarcated parts a different significance for the legal system as a whole. Constitutions traditionally regulate the basic structures of the state and the political institutions, procedures and elections that surround them. The constitutional courts established since the 20th century, which have ruled on the basis of such constitutions, have mainly dealt with constitutional law and certain aspects of administrative law in their judgments. Put simply, constitutional jurisdiction in the case of a "state constitution" can be regarded as the task and internal affair of constitutional lawyers. The constitutional part of constitutions was gradually supplemented by human rights, which had emerged from political and ideological struggles and debates, i.e. they became fundamental constitutional rights after their inclusion in the constitution. The political freedoms emphasised at the beginning still belonged to the political-organisational sphere of the constitution, but with the expansion and above all the shift in emphasis of the catalogue of fundamental rights, constitutional jurisdiction increasingly shifted beyond this and the Constitutional 56 Court became the controller not primarily of the institutions of state power, but of the entire legal order. Therefore, today a distinction must be made between the "constitutional review of the organisation of the state", which concerns questions of state power and policy, and the "constitutional review of fundamental rights", which may also concern such questions, but relates more to the review of the rules of traditional areas of law (civil law, criminal law, etc.). Having distinguished between the two areas, it should be noted that the analysis focuses mainly on the second area and the relationship between fundamental rights and the rules of the various branches of law. This problem will be addressed by examining the functioning of the Hungarian Constitutional Court and its decisions in this regard. Before this, however, a legal-theoretical position will be outlined in two shorter sections, and only against this background will the analysis of the Constitutional Court's decisions begin. 2.1 Structure and concepts of law If we want to briefly outline the influential legal concepts of the last century and a half of modern legal theory, we can highlight the following main types of legal concepts. 1) Legal positivism or also called text positivism. According to this concept, law is synonymous with the text of the law as it appears in the recognised legal sources of a given country. According to this concept, the legislature can only prescribe rules of conduct at will, bound by the hierarchy of legal sources, but sovereign within them - and the law is equal to the totality of these rules. The most important expressions of this concept are: the French "exegetical school" of the first half of the last century, which dominated French legal theory for most of the 19th century; in England, John Austin's concept of law can be classified here in some respects; in Germany, Hans Kelsen's legal theory provides such a concept of law; and, with quite different ideological roots, Stalinist legal theory can also be classified here. 2) The positivist concept of legal dogmatics. According to this conception of law, at the centre of a legal order is the system of legal dogmatics, refined over centuries, which forms the basis for the various branches and areas of law and which, in relation to each other, already fairly precisely defines the framework of possible concrete legislation. The legislative parliament and the judges who apply the rules on a case-by-case basis are bound by the established categories of legal doctrine, and it is the academics and/or the members of the higher courts who have the real power over them. The historically purest expression of this concept of law was the German Begriffsjurisprudenz of the second half of the last century, but in a loosened form, under the name of "evaluative jurisprudence", it is also one of the dominant positions in contemporary German jurisprudence. However, in the latter case, the emphasis has shifted from a legal conceptual pyramid based on pure deductive logic to more flexible and evaluative legal dogmatic principles. Karl Larenz, the Austrian Walter Wilburg and, more recently, Franz Bydlinski are the most important representatives of this conception of law. 3) In passing, mention should be made of the concepts of judicial law that identified law with judicial practice, but I see that they no longer play a significant role in the Western legal world after the great influence of the first decades of our century. Perhaps more in the tamed form that gives judicial law formation a decisive importance alongside legal doctrine and the legislature. As an example, consider the name of the German Josef Esser, who has had a great influence on the German legal system in recent decades. 4) In fact, however, Esser's theory of law already points to a multi-layered concept of law in which certain aspects emphasised by the previous one-sided concepts of law are present in a complementarycorrecting and synthesising way. Here we can mention, in historical order, the names of Carl Friedrich von Savigny, later the Frenchman Francois Gény and finally Benjamin Cardozo, who was fundamentally influenced by him. These have been processed and synthesised in Josef Esser's multilayered concept of law since the 1950s. 5) As a new development in legal theory, it is worth highlighting Ronald Dworkin's concept of law, which can be called the fundamental rights concept and which, in contrast to the positivism of law respecting parliament or the positivism of legal dogmatics respecting legal dogmatics, is based on the fact that the centre of gravity of law is located around constitutional fundamental rights. A court judgment may be lawful, but it is only truly legitimate if it is also constitutional in the light of fundamental rights. What is constitutional - and thus legitimate - is always determined by the Constitutional Court. In addition to the unilateral legal concepts outlined above, this legal concept thus 57 establishes a new unilateralism. Of course, it should be noted that Dworkin's legal concept has also been adopted by the dogmatically more disciplined German legal science since the beginning of the 1980s, and its further developers have attempted to tame it here in recent years by means of a stricter legal doctrine. Should this succeed in the future, a new, multi-layered concept of law will emerge, in which fundamental rights will stand on an equal footing - and tamed - alongside the text of the law and legal dogmatics. However, there is not even any talk of such a synthesis on German soil today. In any case, the names of Robert Alexy and Ralf Dreier should be mentioned here, around whom German Dworkinists began to group in recent years and who describe themselves as "consequentialists" in opposition to the "legalists" who still cling to fundamental rights activism (cf. Alexy 1986; Dreier 1988). I would also like to mention briefly that János Kis in Hungary in the mid-1980s based his moral philosophical views in his small monograph "Are There Fundamental Rights?" - alongside John Rawls - based on the writings of Ronald Dworkin (Kis 1986: 13 - 73). However, these arguments of János Kis are mainly based on moral reasoning and theories of justice and only to a small extent concern the functioning of actual legal systems. It is only the further development that builds the doctrine of fundamental rights directly on these moral philosophical arguments that becomes open to criticism. It is precisely here that Dworkin can be criticised. The standards of justice and arguments of Rawls and Dworkin can and should be used to great effect in parliamentary debates, political-ideological discourse and party platform battles - of course in the popularised form demanded by politicians. However, if we directly apply constitutional jurisprudence, which already operates at the level of the concreteness of the individual case, to it, the "fine mechanics" of law will be destroyed: the direct remoralisation of the legal system will destroy law. 2.2 Legal concepts of the constitutional adjudication These general legal concepts are thus available to constitutional jurisdiction, but the specific task at hand allows them to be applied at this level only in certain aspects. This allows us to locate in constitutional jurisprudence more specific legal concepts derived from the former, which determine the legal approach and the resulting role of individual constitutional judges. The fundamental rights underlying constitutional jurisprudence are so abstract and unpolished in legal dogmatics that a pure legal positivism or legal dogmatic positivism is inconceivable. However, these general legal conceptual attitudes, which affect the legal order as a whole, when they affect a particular constitutional judge, give his judgments a particular accent in one direction or another. However, the concept of fundamental rights, which Ronald Dworkin developed into a general legal concept, has of course proved particularly suitable for shaping the specific legal concept of fundamental rights scholarship. However, considering the German attempt to tame this concept with the "doctrine of fundamental rights", it can be said that the Dworkinist concept of the general level of fundamental law can exist in two versions at the level of the more specific jurisprudence of fundamental rights. On the one hand, a distinction can be made between an "activist conception of fundamental rights", which is more in line with Dworkin's intentions, and a "doctrinaire conception of fundamental rights". Following these introductory remarks, I believe that the following specific concepts or styles of fundamental rights jurisprudence can be located in the work of the various constitutional judges: 1. The concept of the friend of parliamentary law. In its pure form, this view effectively illegitimises the entire constitutional judiciary, which, on the basis of empty sweeping declarations, makes the legislature of the popularly elected parliament the ward of the people and forces the popularly anointed MPs to incorporate the unpredictable decisions of the constitutional judges into their laws. Let me cite for this type a justification for a judgment by the American Chief Justice Oliver Wendell Holmes, who, as a member of the Supreme Court there in the first decades of our century, had a lasting influence on all American legal thinking: "I am far from saying that I regard this law as a reasoned rule. It is not for me to do so. But if the people of the State of New York have expressed through their elected representatives that they desire this law, I see nothing in the Constitution of the United States to prevent that will. (quoted in Fikentscher 1975 Vol. II: 180). In terms of effect, such a constitutional judge can be seen as a constant counter to his "activist jurist" colleague, a heavyweight on the activists' backs and thus their tamer, if he can join forces with other like-minded colleagues to impose his activist-inhibiting approach. It is also important to point 58 out that when he works beyond negative restraint, he tends to work with colleagues who are gentler than activists in trying to develop fundamental rights doctrines and sound jurisprudential standards. (This second activity was also important for Chief Justice Holmes, mentioned above, and e.g. In response to the tension between freedom of expression and offences against state and public order, he developed the "clear and present danger" formula that eventually became accepted in American law and solved the difficulties in fundamental law here for a long time). 2) The next type is the advocate of "fundamental rights dogmatics", who is more concerned with the elimination of predictability in jurisprudence than with the marginalisation of parliament, and who, as a supporter of a legal dogmatic tempo embodying predictability, shies away from fundamental rights that are, metaphorically speaking, "dynamites built into the law". On the one hand, this type respects the dogmatic principles of order and law of traditional areas of law (private law, criminal law, etc.) and sees them as the limit of fundamental rights jurisprudence; on the other hand, it is primarily concerned with enclosing the broad framework of fundamental rights in internal norms and resolving the contradictions of individual fundamental rights by setting a legal maximum for a particular group of cases. In other words, it is concerned with summarising the fundamental rights of a moral-political nature a posteriori and providing them with a fundamental rights doctrine. Therefore, it tries to avoid invoking fundamental rights that are not yet endowed with such a fundamental rights doctrine. Its typical argument in such cases is: "The given constitutional text does not allow us to decide the present case by constitutional interpretation and we should therefore refrain from deciding it." 3) The "activist fundamentalist" is our third type who, according to Dworkin's intention - "Taking Rights Seriously" - really only takes fundamental rights seriously and, if his sense of justice dictates, tries to use the most neglected fundamental rights to be able to undermine laws. This is the legal conceptual table on the basis of which we will analyse the first two years of the Hungarian Constitutional Court's activity and decisions, and on the basis of the dissenting and parallel opinions we will try to locate the legal conceptual background of each judge. 2.3 The legal concepts of the Hungarian constitutional adjudication To briefly summarise and anticipate the point of the following discussion, it can be said that the style of Hungarian constitutional adjudication in the first years of its development shows an arc in which the first judgments began with the almost legalistic style of a solid county court, and then right after the first judgments - almost incidentally, Later, this activist mindset continued in a number of decisions, but also in some dissenting opinions, and the opposite concept of "pro-parliamentary law" began to appear, and the term "pro-legal" also began to appear in the Court's judgments. The concept of "fundamental rights doctrine", which pays more attention to the simple areas of law and legal doctrine than to fundamental rights activism. Subsequently, over the years, an internal division has emerged among the judges of our Constitutional Court according to these legal views: Three or four judges can be located as distinctly anti-activist, while some constitutional judges seem to be more on the activist side. Let us look at the development of this outlined arc in the light of the previous decisions of our Constitutional Court. In the decision 2/1990 (II. 18) AB, the provisions of the Electoral Act on recommendation slips were examined from the point of view of whether they violated the constitutional principle of secrecy of the ballot. The Constitutional Court answered in the negative, but here we are only concerned with the court's reasoning, which shows its understanding of fundamental rights at that time: "The requirements of secrecy of the ballot cannot be interpreted so extensively.....such a broad interpretation would not only be devoid of any legal basis, but would also entail unforeseeable harmful requirements, as it would practically exclude the review of the legality of the marking..." (emphasis mine - P. B. Decisions of the Constitutional Court 1990. 19 p.). In my view, no special activism was needed here to destroy the institution of roll call voting on the basis of the "function" and essential purpose of secrecy - at the expense of the headaches of legislators in devising a replacement for that institution. However, it is almost reminiscent of the style of a solid district court to ask what the "legal basis" is for an extension of a fundamental right that might be mandated by a law. Decisions 3/1990 and 4/1990 reflect a similar fundamental rights solidarity. Decision 5/1990 is also worth stopping at only because here the Minister of Finance and the President of the Constitutional Court, who were asked to comment, issued a "super-anti-activist" statement of a 59 fundamental rights nature, which would have required the Constitutional Court to make a fundamental finding of the effect of fundamental rights even without any activism. The statement in question reads as follows. The only constitutional provision relating to taxation is contained in Article 70/I, which, however, does not limit the right of the State to levy taxes..... The right of the State to levy taxes is not restricted in substance by the provisions of Act II of 1979 relating to State finances in the field of taxation. This statement is typical of the attitude that the Constitution affects an area only insofar as it contains a provision explicitly relating to it, and it follows that the effect of fundamental rights is completely negated. The Federal Constitutional Court, on the other hand, has not commented on this "provocation of fundamental rights" and has declared it unconstitutional on formal grounds. Similarly, the Constitutional Court's initial anti-activist stance is well supported by its frequent references to the justification of the laws under review and its efforts to ascertain the will and intentions of the legislature. At the end of the reasoning of AB decision 8/1990, one can see the aforementioned major turnaround after the solid stance of the preceding months. The most abstract fundamental right of the constitution, the right to human dignity, was here qualified by the Constitutional Court as a basic case of the "general right of personality" and was not included in the constitution as a simple fundamental right, but as a "mother right". The text of the decision states: "It is a mother right, i.e. a subsidiary fundamental right, which both the Constitutional Court and the courts may invoke in any case to protect the autonomy of the individual if none of the specific fundamental rights mentioned applies to the concrete facts" (Decisions of the Constitutional Court 1990, p. 45). In our view, this quotation can be understood as the "activist credo". In the light of later decisions, it can be said that the minimum of constitutional binding force disappears from the decisions of the Constitutional Court based on it and only a naked sense of justice forms the basis for its decisions. (It should be noted here that after one and a half years, a member of the then five-member Constitutional Court will say this in a dissenting opinion). A 9/1990. The AB decision in a sense continues this activist line by resolving the contradiction between paragraph (1) of Article 70/A of the Constitution, which establishes formal equality of rights, and paragraph (3), which provides for the constitutional objective of increasing equality of opportunity, which is contradicted by taking the two to a more abstract level and, literally following Ronald Dworkin, taking "treatment as a person of equal dignity" as the formula that satisfies both the requirement of formal equality of rights and derogation from it. (For an analysis of the contradiction between formal and substantive equality, see Bragyova 1991). The transition from an activist to a doctrinaire position on fundamental rights could be achieved in this case by the Constitutional Court not trying to hide the contradiction between the two requirements in a more abstract formula, but openly admitting it and trying to develop internal norms and maxims that resolve the contradiction in the more important groups of cases - sometimes by reducing one and sometimes by reducing the other. An example of this possibility can be found in the development of American law, in the formulation of the "clear and present danger" formula already mentioned by Chief Justice Holmes, which was used to resolve the contradiction between freedom of expression and offences against public order. This formula has made it possible to decide in principle which offences are unconstitutional and which are justified, even in the case of freedom of expression. Of course, this presupposed that the antagonistic contradiction between the two requirements was first recognised and not circumvented by shifting it to a more abstract level. AB Decision 21/1990 indicates a regression of activism towards more precise dogmatic solutions for fundamental rights. Here it can be seen that the previous decision already attempted to make the rather Dodonian formula of "equal dignity" interpretable by defining the conditions for positive discrimination (for a positive evaluation of this solution: Eörsi/Kis 1991). This essentially means that the constitutionality of discrimination depends on the certainty that the discrimination between the persons concerned was established in a procedure in which the views of the persons concerned were weighed with equal care and impartiality. In my view, the AB 23/1990 decision on the unconstitutionality of the death penalty has, on the one hand, once again produced dissenting opinions that represent the height of activism and, on the other hand, for the first time, the "pro-legal" position of the Parliament is expressed in a dissenting opinion that rejects activism. The parallel opinions of the constitutional judges Tamás Lábady and Ödön Tersztyánszky largely agree with the arguments of the joint decision, but the degree of their recourse to the formula of human dignity in interpreting the entire constitution and their unquestioning inference from the abstract formula to the decision of concrete questions makes them, in my opinion, activists. For the aspect we 60 are examining, therefore, it is only this localisability that is worth highlighting. In particular, it is activism to deny the power of the state, in this case parliament, the right to decide on fundamental constitutional rights, even when it comes to their rank. "The state cannot therefore, by virtue of its punitive power, deprive a person of life and human dignity because it arbitrarily rearranges the aforementioned values protected by the Constitution through the death penalty." (Decisions of the Federal Constitutional Court, 1990, p. 96). This statement essentially permanently ousts Parliament, which holds the power of the State, from regulating the fundamental rights section of the Constitution. It could follow that at some point in the future, if the majority tendency within our Constitutional Court were to lean towards activism, even if Parliament were to create a constitutional amendment that explicitly adds a limiting restriction to a fundamental right or simply omits a fundamental right that was previously included, that amendment would be rejected by the Constitutional Court as unconstitutional. (2) The parallel statement by László Sólyom also shows an activist-fundamentalist attitude. His opinion repeats in the first lines the "activist creed" of Decision 8/1990, with the additional reinforcement that here he does not simply refer to "subsidiary material" in the right to human dignity, but understands it as "a source of freedoms not yet named" (Decisions of the Constitutional Court 1990. p. 97). A similar activism is evident in this parallel opinion in the Constitutional Court's view of the relationship with Parliament and the existing Constitution. "Parliament can retain, abolish or reintroduce the death penalty at will - as long as the Constitutional Court has not had its final say on the constitutionality of that penalty." (ibid.) From a non-activist perspective, the final word on constitutionality is always decided by the body (parliament) that established the constitution - with the introduction of qualified majority voting and other possible procedures. This formulation of the parallel opinion raises again the possibility, already hinted at in the previous opinion, that if our Constitutional Court - based on an abstract constitutional formula - has declared something concrete unconstitutional against the manifest will of the parliamentary majority, parliament cannot take it back by an explicit constitutional amendment, because this constitutional amendment can now be declared unconstitutional by the Constitutional Court. (In the practice of the Austrian parliament, it used to happen frequently that it neutralised the unconstitutionality of a declaration afterwards by amending the constitution, but the Hungarian parliament also used this method in the first years of its activity after the fall of the system). Just to avoid misunderstandings: It is by no means a matter of arguing for the reintroduction of the death penalty in this way, but only of pointing out in advance the "lasting effect" of the examined statement: the radical restriction of parliamentary rights of control over the constitution, the possibility of declaring the constitutional amendment unconstitutional, which is already contained in the two parallel statements examined. This path was taken - unlike in Austria - by the German Federal Constitutional Court, but there it was placed on a constitutional basis by a constitutional provision, albeit in a narrow form (cf. Art. 79 (3) GG and the Federal Constitutional Court ruling 253/1956, which extends it). However, nowhere in the Hungarian constitutional text is such a possibility provided for. Another formulation of the activist approach to the Constitution in this parallel opinion is as follows: "The Constitutional Court should continue its work of interpreting the Constitution and the rights contained therein, creating a coherent system of judgments that serves as an "invisible constitution" above the Constitution as a sure standard of constitutionality and therefore cannot conflict with the new Constitution to be adopted or with future constitutions" (98 p.). If one contrasts this concept of the invisible constitution - the "real constitution" behind the written constitution - with the earlier "unconstitutional parliamentary constitutional amendment", the true scope of both the first and second assertions becomes clearer: in short, the assumption of power by parliament, representing a multiparty system, over constitution-making and the placing of the entire legal system under the "guardianship of fundamental rights". Later, one of the constitutional judges, Géza Kilényi, explicitly opposed this development in his dissenting opinion to AB decision 57/1991: "At this point, the constitutional courts of the world... But even this extremely broad legal power is not unlimited, it does not mean that the Constitutional Court can do everything it deems necessary in the interest of the Constitution." (Magyar Közlöny 1991/123 No. 2457 p.) A little later he continues, "Whatever its honourable motives, it is unacceptable that it should seek to remedy a violation of the law at any cost, disregarding the limits of its powers in the particular case." (2458 p.). Among the five judges of decision 8/90, which initiated the activist line of development, a similar dissent can be found in the parallel opinion of János Zlinszky on the 1991 abortion decision: "If the petitioners' view that in today's society the recognition of the full personality of the foetus is justified 61 by law meets with the legislature's approval, it can do so by a positive decision at the constitutional level. By interpretation, the text of the Constitution cannot be used to 'smuggle in' this position." M. K. 1991/139 No. 2826 S.) With regard to our analysis of the Constitutional Court's decision on the death penalty, it is important to highlight the dissenting opinion of Péter Schmidt, which can be seen as a clear formulation of the "pro-parliamentary rights" conception of fundamental rights and was in fact the first open confrontation with the activism observed in some of the decisions of our Constitutional Court: "The Constitutional Court is competent to interpret the Constitution, but it is the right and duty of the Parliament with constitutional power to resolve contradictory constitutional provisions. This power cannot be assumed by the Constitutional Court". (Decisions of the Federal Constitutional Court 1990. p. 94). 4) In this decision, it is worth mentioning the parallel opinion of András Szabó, who focused on penal considerations in this case. It is clear from his individual opinions that he is rather indifferent to the parliamentary friendliness of the law, just as he does not seem to have any explicit activist arguments. His legal conceptual position is only rudimentarily supported - apart from the criminal law dogmatic arguments - by his oral statement at an international conference on "Constitutional Courts in Democracies" in 1991, where he commented on the "invisible constitution" and understood it as the fundamental rights doctrine behind the constitution. However, he has not yet issued a parallel statement rejecting activism. As far as the 1991 decisions of the Arbitral Tribunal are concerned, we must first start with decision 3/1991. This decision dealt with the question of the 4% hurdle for parties to enter parliament and to what extent this violates the equality of electoral law. The panel decided against it, and thus this decision can be described as explicitly anti-activist, because under the strict conditions of positive discrimination they laid down, the 4% hurdle would have been quite conceivable for the stability of parliamentarism and government). It was considered acceptable to violate electoral equality in this case by arguing that "if the electoral system gave seats to parties with the lowest social support, this would endanger both the decision-making order of parliament and the stability of government". (Hungarian Official Gazette 19991/13 No. 438 p.). One does not have to be a comparative constitutional lawyer to know that there are countless techniques that ensure - in other ways - that decision-making is kept at a tolerable level even when there are many parties. So a fundamentalist jurist who is serious about electoral equality could have declared the 4% threshold in question unconstitutional without any activism. For us, this decision is therefore an important example of "selective activism", because the question arises whether the views of the voter who voted for the party that did not get into parliament have been taken into account as an "equal, worthy person"! As an outlook, it seems worthwhile to take a closer look at these two cornerstones of our constitutional jurisprudence, the "general right of personality" and the "right to equal dignity". The occasional fluctuations in our constitutional jurisprudence are perhaps due to the opposition between these two cornerstones. That these two cornerstones are at odds with each other is highlighted by Ronald Dworkin himself in chapters 11 and 12 of his book, Taking Rights Seriously. Dworkin explicitly rejected the conception of the "general right to liberty" beyond individual named liberties because the general right to liberty is incompatible with the right to equality (Dworkin 1977:262-269). For him, the "right to equal dignity" takes the place precisely of the "general right to liberty" which establishes and delimits the scope of each named liberty: "My position is that the assumption of a general right to liberty must be abandoned" (p. 262) "Moreover, I propose that individual rights to specific liberties can be recognised only if it can be shown that the 'right to equal treatment' so requires" (269). By comparison, in the jurisprudence of the Hungarian Constitutional Court, the two cornerstones that Dworkin calls incompatible stand side by side. Our Constitutional Court relies on both Dworkin's "right to equal dignity" and the "general right to autonomy", which he denies. For the former, Dworkin's arguments are adopted, for the latter by the German Federal Constitutional Court (on the relationship of Dworkin's position to the "general right to autonomy" of German constitutional jurisprudence, see Bittner 1988: 68). Going back to the decisions of the Hungarian Constitutional Court of 1991, the analysis should continue with decision 16/1991. This decision of the Constitutional Court aimed to limit the political activism allowed by the law on this issue. It basically made it clear that it did not intend to make use of the possibility offered by the Constitutional Court Act to play the role of an arbiter in political disputes in parliament. So this is an anti-activist decision, but it must be emphasised that the Constitutional 62 Court has thus only taken a step back from political activism, and the activism we have had in mind so far can rather be described as moral activism, which this decision has not taken back at all. In Decision 32/1991 - in the context of the retrospective increase of the interest rate on housing loans - the constitutional principle of the rule of law and the market economy and Article 226 (2) of the PTA, among others, were in conflict. This provision of the PSCA, which is tailored to the statecentred nature of the former social system, allows the state legislature to retroactively change the content of contracts already concluded. The unconstitutionality could have been deduced from the two aforementioned constitutional principles without any special activism - as also shown by a special opinion (cf. M.K. 1991/61 No. 144 p.). This decision also seems to be an example of "selective activism", as it is in favour of a provision that is manifestly contrary to the rule of law and the market economy, and relies to a decisive extent on ideological arguments. With regard to the diminishing role of the state, the decision states: "This process should not, however, lead to a complete elimination of the possibility of state intervention, but only to an approximation to international standards, i.e. to an appropriate construction of a liberal model instead of a socialist planned economy." ( M.K. 19991/61 No. 1136 p.). Indeed, in Europe, but also in Hungary, there are some parties or within these parties some tendencies thinking in this direction. But the Constitutional Court is bound by the text of the Constitution, and in it - as László Sólyom pointed out in his dissenting opinion to another decision - it does not say "social market economy" in our country today, but "social" without the adjective "social". Decision 57/1991 - in connection with the bloodline tracing cases - is the next important stage in the confrontation between the "activist" and the "pro-legal" stance of the Parliament (as we have indicated, until this decision only Péter Schmidt had done so in his dissenting opinion on the decision declaring the unconstitutionality of the death penalty). Here, Géza Kilényi expressed his departure from the activist position in his dissenting opinion, which we have already quoted in part (Péter Schmidt also endorsed this dissenting opinion in a postscript). However, this decision seems to be important for another reason besides the dissenting opinion already mentioned. The Federal Constitutional Court fundamentally excluded a review of the constitutionality of the legislature's interpretation of the law. Although formally this may seem antiactivist, it was precisely what allowed the challenged provision of the law to be declared unconstitutional in this particular case. (In German constitutional court practice, the answer to this dilemma - in contrast to the Hungarian one - was the "principle of constitutional interpretation", and as long as a declaration of unconstitutionality could be avoided in this way, the Act of Parliament should be considered constitutional (see this constitutional court decision in the collection by Schwabe: 1988: 6). Decision 64/1991 on the abortion issue also marks an important stage in the explicit formation of the legal conceptual background of our constitutional judges. The joint decision itself is formally "parliamentary rights friendly" in that it refrains from a substantive decision, but its reasoning underscores the activist credo of the hitherto developed general personal "mother's right" - affirmed over and above the fundamental rights actually contained in the constitution. Two parallel individual opinions are important here to situate the position of our constitutional judges and their relationship to the activist creed. The single opinion of Tamás Lábady only seems to confirm his previously located activist stance on the right to life and dignity, so from our point of view this opinion is more likely to be considered opinion-preserving. However, the parallel opinion of János Zlinszky - from which I have already quoted an important excerpt - is a novelty compared to the attitudes of the constitutional judges known to us so far. While Péter Schmidt and Géza Kilényi contrasted the activist position with respect for parliamentary powers, this parallel opinion by Zlinsky emphasises the legal dogmatic order of the legal system as an obstacle to activism in matters of fundamental rights. Let us look at the passages from this parallel opinion that prove this. The legislature can decide otherwise, but the Constitutional Court cannot deviate from this in the sense of the applicable law. Otherwise, both the PTK's presumption of the legal capacity of the foetus and the criminal distinction between abortion and killing would be meaningless, and the legal order would be self-contradictory). In a much later paragraph, Zlinszky also considers certain passages of the constitution to be interpretable not by being rooted in a "fundamental rights-bearing mother law" and then interpreted in a scattered manner, but only by being placed in the overall legal order and limited by it: "Grammatically, if interpreted literally, the inclusion of the foetus under the term 'human being' would not contradict the constitutional text. However, since this would fundamentally change the previous conception of the Hungarian legal system, an unambiguous and certain statement is needed in this regard. Otherwise, the relevant passage in the Constitution can only be interpreted within the framework of the legal system as a whole. This is followed by the already quoted rejection of the activist "interpretation by 63 stealth", and against this background it cannot be considered an inadvertent slip of the tongue to connect the Constitutional Court not only with the Constitution as a whole, but also with the legal system in force. Quote: "The Constitutional Court must therefore conclude from the text of the Constitution and the applicable Hungarian legal order as a whole...." (ibid. - emphasis mine P.B.). All this shows that after a short time it was possible to locate clearly different legal conceptual attitudes behind the opinions and decisions of our individual constitutional judges. Let us briefly summarise the main points of our criticism of the activist conception of fundamental rights: 1. activism shifts too much weight of fundamental social decisions from parliament to the Constitutional Court and thus undermines the foundations of a parliamentarism based on elections and parliament; 2. the preferred fundamental rights formulas of activism are the most abstract constitutional declarations without any legal-normative specifications behind them - at least in the consensus of some legal circles. Activism, then, has no legitimacy beyond the inherent civility of the constitutional judge. The argument that sometimes arises when parliament is marginalised, that "the logic of law and the predictable arguments of law then take the place of the struggles of politics", is completely unfounded. 3. derivation from abstract principles is the ultimate substitute for the compromised ad hoc decision-making mechanism of pluralist political systems in activism, and this in turn makes society rigid. This decision-making mechanism is insufficient to reconcile the thousands of internal contradictions of a complex society - and thus to sustain society. The emergence and consolidation of constitutionalism in the Western world has also created tensions in the traditional structure of law, in the interplay between political legislation, legal doctrine and judicial legal development. Activism dangerously exacerbates this tension, leading to a "dynamic" of fundamental rights that damages the legal system over time. Finally, these problems may lead to the radical reintroduction of constitutional jurisdiction or, in extreme cases, the abolition of constitutional jurisdiction being seriously considered by the ruling political forces in the Hungarian political system. Activism is therefore self-destructive for the institution of constitutional review - it is not only dangerous for the legal system and parliamentarism. 3. Legal theory in German constitutional adjudication Earlier, there was no domestic constitutional adjudication in Hungary, and at the beginning in 1989, it could not rely on domestic traditions, and, therefore, the foreign model of choice was Germany. The analysis of German constitutional adjudication is still important for us, as it has become one of the decisive points of reference in Europe in recent decades. From this point of view, the relationship between the German and the other European constitutional courts can be summarised as follows: In recent decades, Germany has generally taken a pioneering role in building the autonomy of constitutional jurisdiction vis-à-vis parliaments and the ordinary courts, and a number of advances it has made have subsequently been adopted, with varying degrees of reluctance, by the others. However, this constitutional court has not only taken a pioneering role, but has also developed a number of activist solutions that have not been adopted by other comparable institutions in Western Europe. As we have seen in the previous section, the Hungarian Constitutional Court tended to adopt some of these activist features already in its early years. A closer look at the German constitutional jurisdiction as a whole is therefore necessary to understand the problems that arise here. First, we will briefly outline the basic features of German fundamental rights legislation; then we will look at the rulings of the German Constitutional Court that have highlighted the basic features of the treatment of fundamental rights in Germany as cornerstones; finally, in a third section, we will try to compare the German and Hungarian "cornerstones of jurisprudence". 3.1 The German fundamental rights regime In contrast to the usual solutions in modern constitutions, the basic rights legislation of the German Basic Law has some special features which we will focus on here. 64 The first feature of this ordinance is its chiselled, elaborate character. In most constitutions, the small or large catalogue of human rights adopted over the last two hundred years is merely a succession of brief declarations. The German Basic Law, on the other hand, has attempted to give precise content to most of these fundamental rights, with a few important exceptions, and as it has incorporated human rights into the constitution with the requirement of accountability in individual cases, it has also attempted to think through systematically the limitations that are necessary in some cases. The necessity of this special regulation also resulted from the fact that the Basic Law provides in an explicit provision (Art. 1 (2)) for the fundamental rights as "directly applicable law" vis-à-vis the state and the judiciary. With the introduction of the direct applicability of fundamental rights, the Constitutional Court was placed above the entire legal system and controlled not only the legislative process, but also the entire judicial hierarchy and the application of the law. The direct fundamental rights character of the German Basic Law made the German drafters shy away from economic and social rights, so that these - in addition to defining the "social" character of the German state - were deleted from the Basic Law. The features listed so far show a distinctive constitutional conception of fundamental rights. It can be said that this attempt at a consistent way of thinking attempted to solve problems in the German Basic Law that had already been identified in American constitutional jurisprudence of the last century in the area of fundamental rights. The declarative character of human rights was thus shifted from a declaratory to a more precise formulation of human rights in the constitution, which was necessary for predictable jurisprudence. But a contrary development can also be observed in the German Basic Law. After the horrors of totalitarian dictatorship and war, the radical return to the German humanist tradition emphasised with renewed vigour moral imperatives such as the "inviolability of human dignity" or the "principle of freedom of human self-development", and in this climate these abstract formulas were placed alongside traditional fundamental rights (freedom of association, freedom of assembly, etc.). In other words: In addition to the constitutional fundamental rights already concretised in American constitutional jurisprudence, a much more abstract and normatively empty level of fundamental rights was thus introduced into the German Basic Law. Another important peculiarity is that the German Basic Law contains an explicit provision prohibiting the amendment of the articles of fundamental rights and constitutional principles that enshrine the "inviolability of human dignity" and the "social and democratic" character of the constitution (Articles 1 and 20). In other words, within this narrow framework, it has given the Constitutional Court the power to declare an "unconstitutional amendment". 3.2 Cornerstones of German fundamental rights adjudication Fundamental rights bring back to the fore the more primarily ethical evaluation of the legal order against the background of the right/wrong evaluation of the legal order. The pursuit of justice instead of/alongside justice thus raises the underlying dilemma in the relationship between freedom and equality and the contradictions between the formal or substantive orientation of equality. In countries where the jurisprudence on fundamental rights has evolved in a more robust manner around separate standards for each fundamental right, these dilemmas are limited to the respective fundamental rights. However, when the Constitutional Court seeks to integrate the individual fundamental rights into a comprehensive system of values, the fundamental question of justice necessarily raises the question of how to answer these dilemmas on a comprehensive level, and the answers may have implications for the interpretation of all fundamental rights. In practice, this means that such a constitutional court will focus somewhere on the relationship between equality and freedom, or on the formal or substantive nature of equality, and will flesh out the "fundamental rights value system" in the directions that correspond to these choices. The Federal Constitutional Court has clearly opted for the coherent value system of fundamental rights by choosing freedom in the freedom/equality dilemma and formal equality in the formal/material dimension of equality. Admittedly, the latter decision may have been guided by the fact that the constitutional text, when regulating the right to equality, did not contain a provision that would have restricted formal legal equality at the level of the Basic Law in favour of the overriding requirement of substantive equality (an activist solution could, of course, have included this in the 65 constitution, for instance on the basis of the principle of the "social rule of law", since this is contained in the Basic Law). In order to solve this dilemma, we must first analyse the results of two groups of judgments. One concerns the construction of "general freedom of action" in German fundamental rights jurisprudence, the other an interpretation of the right to equality. 1) The general right to freedom of action. The German Basic Law contains a number of specific freedoms that guarantee the individual's freedom of action and thought in different ways. However, the first articles of the section on fundamental rights also contain two provisions - the purely ethical principles mentioned above - which generally go beyond the specific freedoms, although no specific normative guidelines can be derived from them. Article 1 enshrines the "inviolability of human liberty" and Article 2(1) declares the "right to free development of the personality". A constitutional court seeking the certainty of predictable constitutional norms would have left these otherwise important principles "floating on the horizon" as declarations and sought to give effect to these requirements in relation to the aforementioned freedoms. However, the German Federal Constitutional Court adopted the so-called "Basic Law" in 1957. However, in 1957, the Federal Constitutional Court concluded in its "Elfes ruling" that by combining these two articles, a "general freedom of action" (or, under a different name, a general right of personality) could be created which, in addition to the freedoms mentioned, allowed the construction of freedoms not yet mentioned but raised by new life problems. In the practice of the Federal Constitutional Court, this "further erosion of fundamental rights" - although highly controversial in all decisions of this kind - has usually taken place within the framework of a compromise. For example, the "right to informational self-determination", created in the early 1980s to limit the unrestricted collection of data on citizens to constitutional limits, recognised the constitutionality of data collection in cases of "overriding public interest" (BVerfGe 65, 1. in: Schwabe: 1988: 38/a). More important was the effect that the "Elfes ruling" had in loosening the Constitutional Court's ties to the constitutional text and thus, in a sense, elevating the Constitutional Court above the constitution. 2) The interpretation of the right to equality. Article 3 of the German Basic Law regulates the right to equality and recognises it only in the sense of formal legal equality, without mentioning the accompanying substantive equality. This solution thus limits from the outset the possibility of the Constitutional Court to further increase its independence vis-à-vis the parliamentary legislature in the area of tension between these two strands of equality - with an emphasis on one or the other strand by deciding de facto sovereignly on the constitutionality of individual laws (cf. Bragyova 1992). In two important judgments of the Constitutional Court in the 1950s and 1960s, the Court laid the foundations for its equality jurisprudence. The first of these cornerstones was the 1959 Uno. "Midwives' Ruling". The reason for the ruling was a law that prohibited midwives from practising their profession after the age of 70, while there was no age limit for doctors. A midwife concerned saw this as a violation of the right to equal rights, since the age-related loss of capacity affected doctors in obstetrics just as much as midwives. The constitutional complaint was finally rejected by the Constitutional Court, which in its reasoning pointed to the differences between the general organisation of medical practice and the organisation of midwifery practice, which justify the possibility of different and unequal regulation. In particular, it referred to the centuries-long development of medical practice as a free profession, which provides for the control of the individual doctor in the abstract and traditionally leaves the assumption of individual risk to the doctor, whereas the profession of midwifery has always been more controlled and not characterised by individual risk-taking. The abiding essence of the judgment was that the Constitutional Court does not purport to decide and examine substantive truth, but only establishes the requirement for a derogation from the equality rule that an existing difference between the situations at issue must justify a different regulation. If this is the case, the constitutionality of the regulation cannot be challenged under the principle of equality (in a sense, this is the "distinguishing" method of English precedent law, which allows the judge to depart from previous precedents if he can show a relevant difference from them). Ten years after the "midwives ruling", a later ruling on the constitutionality of a tax law further specified the interpretation of the right to equality. Here, the anti-activist tendency is reflected even more clearly in the text: "In exploring taxation, the legislature has a wide margin of discretion. This ends where the equal or unequal treatment of the regulated circumstances is incompatible with an approach based on the idea of justice, where there is no plausible reason for unequal treatment. The Federal Constitutional Court only examines compliance with these outer limits of legislative freedom 66 ('prohibition of arbitrariness'), but not whether the legislature has found the most expedient, reasonable and just solution in the individual case." (BVerGE 26,302 in: Schwabe 1988: 65) In summary, it can be said about the German constitutional understanding of equality. The formal standard of equality is the starting point for constitutional review; however, the legislature has great freedom to deviate from it; there is only one external barrier to deviation - and this is indeed the content of German equality law - namely that there must be a real difference behind the unequal regulation. This conception thus essentially leaves it to the legislator to include or exclude life differences in the legislative process and thus to determine the optimal level of justice on a case-by-case basis. 3) Jurisprudence and fundamental rights. The great dilemma of fundamental rights jurisprudence is whether it declares the effect of fundamental rights only vis-à-vis the legislature - that is, whether it limits the legislature's freedom to the framework provided by fundamental rights - or whether it also recognises the effect of fundamental rights vis-à-vis the judiciary and binds the judiciary's discretion in interpreting the law to the requirements of fundamental rights (Stern 1988: 1511-25). In summary, in the latter case, judges are obliged to interpret the law in conformity with the Constitution and must select from among the possible interpretations of the law those that conflict with one of the fundamental rights. Already in the first years of its activity, the Federal Constitutional Court declared its control over judges and obliged them to "interpret the law in conformity with the Constitution" and specified this in several judgments. In this context, three main requirements can be highlighted. (1) As long as a statutory provision can be interpreted in such a way that the constitutionality of the provision can be established, it cannot be declared unconstitutional (this is the "parliamentary law-friendly" aspect of the obligation to "interpret in conformity with the constitution"). If, however, the meaning of the law in question clearly emerges from the text of the law and the recognisable legislative intentions, the law cannot be given a contrary meaning by way of "interpretation in conformity with the constitution" (BVerGE 8,28 in: Schwabe 1988: 5). 3. With this orientation, the Federal Constitutional Court shifted its focus to the inner workings of the law and took more control over the micro-processes of the law and the courts that administered it, including the supreme courts. In this way, the Federal Constitutional Court can be seen as the "supreme authority" and its balancing effect is that in the event of a dispute over the final decision of a case, the judgment of the Constitutional Court is authoritative and binding on the other side. The other side of this obligation to interpret in conformity with the constitution is the "parliamentary legal friendship" already mentioned. In parliamentary political systems, the legislature, formed by periodic elections, is central and the constitutional courts have no legitimacy to compete with parliament. It is therefore in line with the logic of parliamentarism. 4) The "horizontal effect" of fundamental rights. Human rights - and, after their constitutionalisation, constitutional fundamental rights - were originally conceived in the relationship between the individual and the state representing the community and protected the individual against certain manifestations of the state. The expansion of the catalogue of fundamental rights beyond the traditional political freedoms and the recognition of their direct applicability raised the question early on in German constitutional jurisprudence of the effects of fundamental rights on the legal relations of private individuals. What about when contractual relations between private parties comply with the rules of civil law, labour law, etc., but may violate one of the constitutional fundamental rights? Can a litigant request that the judge take into account in his decision not only the relevant provision of the Civil Code, but also other fundamental rights that might lead to a different result? After years of academic debate and divergent supreme court rulings, the German Federal Constitutional Court has ruled in favour of the so-called "Federal Constitutional Court". In 1958, the German Federal Constitutional Court took a fundamental position on this issue in the "Lüth case". One possible position would have been to recognise the direct effect of fundamental rights in the contractual relations of private parties, which the Federal Labour Court had assumed in a judgement shortly before. In the longer term, this would have had unforeseeable consequences, as it would have subordinated the entire traditional structure of the law, based on rules systematised and predictable by legal doctrine, to the judgement of fundamental rights, which lacked precision and was often burdened with ad hoc notions of justice. This is the exact opposite of the solution that does not allow simple law to be overridden by reference to fundamental rights in relations between private parties (e.g. the Austrian decision after analysing the German initiatives). In the Lüth case, the German Federal Constitutional Court chose an intermediate solution and, without recognising the direct effect of fundamental rights on contractual relations between private parties, declared the primacy of the rules 67 of relevant ordinary law (civil law, labour law, etc.). However, when interpreting these rules, the judge is obliged to take into account the guidelines of fundamental rights that may be relevant and interpret the rule in the light of these guidelines. A further consequence of this is that the aggrieved party can now challenge such a judgment before the Constitutional Court on the grounds that the interpretation is based on a failure to take fundamental rights into account. "The judge is obliged by the constitution to examine whether the substantive civil law norms applied by him ... are affected from the point of view of fundamental rights; if this is the case, he must, in applying and interpreting these norms, take into account the resulting changes in the private law norms. This is the basis of the binding of the judge in civil cases to the fundamental rights". (BVerfGE 7,198 in: Schwabe 1988: 99). 5) The question of unconstitutional constitutional amendment. In Article 79(3), the German Basic Law lays down a narrow framework of articles that cannot be affected by a constitutional amendment. From a fundamental rights perspective, Article 1 (the requirement of the inviolability of human dignity and the declaration of the direct validity of fundamental rights) and Article 20 (the article on the social and democratic character of the German state) were thus excluded from the possibility of constitutional amendment. For the sake of completeness, it should be noted that the content of these two articles has remained constitutionally amendable in a two-step procedure, as the unamendability of Article 79 itself has not been included in this provision. A complete "freeze" would only be logical if Article 79 itself had been declared unamendable. Only a revolution could then really change such a provision. The German Federal Constitutional Court expressed its opinion on this in the second part of the "Elfes ruling" of 1957, which has already been analysed (as already mentioned, the first part of the ruling established the "general right to freedom of action"). The already quoted Article 79 - the exclusion of Articles 1 and 20 from the possibility of constitutional amendment - interprets them as supreme principles of constitutional values and then, by extending its mandate, also provides for the control of constitutional amendments in the light of the entire constitutional values and unwritten constitutional principles. "The supreme principles of the constitutional order of values (Art. 1, 20, according to Art. 79(3)) are protected against constitutional amendments. Transgression of the constitution is excluded; the Constitutional Court is the guardian of the legislature's compliance with constitutional norms. Laws are not "constitutional" merely by virtue of the fact that they have been formally and properly passed (i.e. with the majority required for constitutional amendment). They must still comply with the supreme fundamental values of the free democratic basic order, the constitutional values, but also with the unwritten democratic constitutional principles. Namely, the principles of the rule of law and the welfare state". (BVerfGE 6,32 in: Schwabe 1988: 32). The result of this expansion is that the Constitutional Court has been given far more powers over the Constitution beyond the original provision of the Constitution on an unclear basis of "fundamental rights" and unwritten constitutional principles than was intended by the framers. For the sake of completeness, of course, it should be noted that the vast majority of judgments in recent decades apart from a few activist judgments - have been motivated by a desire to preserve parliamentary legislative sovereignty and a predictable legal order in German constitutional jurisprudence. These constructs only become dangerous in the hands of a constitutional court that adopts these activist solutions without these mitigating aspects - "parliamentary legislative friendliness" or the desire to provide a predictable legal service. From this point of view, the characteristics of German and Hungarian constitutional jurisdiction will be compared. 3. 3. Differences and similarities We will not go into the organisational and judicial differences between the Hungarian and German Constitutional Courts and their impact on their rulings, but will only look at the differences and similarities in relation to the crucial German fundamental rights rulings mentioned above. Of the five basic issues listed, one has not yet appeared before the Constitutional Court (the issue of "horizontal effect"), and another (the issue of unconstitutional constitutional amendment) has been raised only indirectly and only in dissenting opinions. In the other three cases, however, a fundamental position can be found. Before taking a closer look at the decisions of the Hungarian Constitutional Court, which form the cornerstones of its jurisprudence so far, some general remarks should be made on the general features 68 of its fundamental rights jurisprudence as a whole. As we have seen, in the case of German constitutional jurisprudence, the linking of three things has been important: 1. another peculiarity is that German constitutional jurisprudence has opted for freedom in the relationship between liberty and equality in determining the apex of the "fundamental rights value system". 3. another special feature is that it has clearly opted for the formal equality standard as the yardstick between the formal and substantive orientation of equality law. In comparison, the general attitude of the Hungarian Constitutional Court can be summarised as follows. Already in the first months of their jurisprudence, our constitutional judges assumed that they would combine the individual fundamental rights into a "fundamental rights system". This becomes particularly clear in Decision 23/1990 - the decision on the constitutionality of the death penalty - and the parallel opinions on this decision. The relevant part of the joint decision reads: "Human life and human dignity are inseparable and constitute the supreme value which is above all others. The right to life and the dignity of the human person is also an indivisible and inalienable fundamental right, forming an integral whole which is the source and precondition of many other fundamental rights". In the parallel opinions of Constitutional Judges Lábady and Tersztyánszky, this is expressed in the form of a prohibition on the state "arbitrarily transforming a value protected by the Constitution" (Decision 23/1990 (X. 31) AB, para. 2). Finally, in a parallel opinion by László Sólyom, the concept of the "invisible constitution" reflects this fundamental value (cf. Constitutional Court Hat. 1990: 96-99). After the adoption of the "fundamental rights values", the Hungarian Constitutional Court chose a unique path in the history of constitutional jurisprudence to solve the dilemma of freedom and equality. It adopted - and further radicalised - the concept of general freedom of action from German practice, but at the same time adopted Ronald Dworkin's position on the "right to equal dignity", which elevated the initiatives of American constitutionalism to the level of moral philosophy. While Dworkin himself pointed out that the premise of a "general freedom of action" was incompatible with his ideas on the right to equal dignity (cf. Dworkin 1977: 271-279; for further discussion, cf. Bittner 1899), the Hungarian Constitutional Court employed two cornerstones in the interpretation of the individual constitutional provisions that were not to be found in this form in any other constitutional court. This is because in American constitutional court practice only certain freedoms are recognised, and the "right to equal dignity" on which Dworkin relies only appeared here in one particular period as a recognition of the constitutionality of positive discrimination (in the period 1953-69, the "Warren Court" phase of the US Supreme Court). The German Constitutional Court, as we have seen, did not adopt the solution of generalising the right to equality, but even this "semi-activist" position has only gained limited acceptance in the constitutional court practice of other Western countries. The Hungarian Constitutional Court, on the other hand, started from the "top" in its first months of operation and did not hesitate to adopt the activist solutions found in various places. The further fundamental choice between the formal and the substantive direction of equality has already been indicated above. The Hungarian constitutional text declares both the formal right to equality and the need to implement the corresponding substantive right to equality. Within this playing field, the Constitutional Court in its decision 9/1990 decided to focus on the pursuit of substantive equality. These, then, were the general characteristics of Hungarian constitutional jurisprudence as a whole, and we will now look at the differences between its most important fundamental rights rulings and the German solutions already described. The general right to freedom of action. This right is sometimes referred to by the German Federal Constitutional Court as the "general right of personality" and was adopted by the Hungarian Constitutional Court in its decision 8/1990. Of course, variations can be observed in the Hungarian constitutional jurisprudence in the designation and justification of the "general right of freedom" itself. According to the dissenting opinions, László Sólyom, the "spiritual father" of the adoption, is a constitutional judge and occasionally considers the right to human dignity to be a "mother right" himself (see his individual opinion on the death penalty). German constitutional jurisprudence has actually derived this "mother right" not from human dignity, but from the right to "free development of personality", adding the right to human dignity only as a further reinforcement. However, the Hungarian Constitution does not contain a "right to free development", and our Constitutional Court did not even attempt to compare the fundamental rights provisions of the Hungarian Constitution and somehow base its momentous decision on the construction of the "mother's right" on them. Instead, it referred to "modern constitutional jurisprudence" with a general reference to this general right to freedom as evidence. Our practice also differs from the German one in that the Hungarian one emphasises the "still unnamed nature of the mother right as a cause of further fundamental rights", as 69 the German one never did. In practice, such "further fundamental rights" were also made by the Germans with interruptions of several years, but these were only gradual advances and not subsequent open realisations of a principle. Such a principled basis cannot be given, and the outcry of the advanced German constitutional law and legal theory circles in the professional journals after such a decision forces the German constitutional judges to write months of subsequent justifications in the professional journals and requires clarifications in various aspects, approximations to the overall legal structure of this "further thawing of fundamental rights". In Hungarian jurisprudence, on the other hand, the authentic constitutional and legal-theoretical debates and their circles were practically destroyed in the decades of the state party, and the incipient revival does not yet constitute a serious check on the Constitutional Court. In summary, the conception of "general mother law" of Hungarian constitutionalism is more radical than that of German constitutionalism in two respects. On the one hand, there is hardly any textual basis for this approach in the Hungarian constitution, so that a fictitious reference to "modern constitutional jurisprudence" only justifies it. The Hungarian formulation of this parent law, on the other hand, is more radical and openly envisages the eradication of further fundamental rights. The question of equality law. We have already dealt with this in more detail in the general characterisation, so it only needs to be pointed out again here that the Hungarian Constitutional Court, unlike the German one, used the playing field between the two directions of equality law. Whereas the German court took formal equality law as its yardstick and left any deviation from it to the legislature, leaving only an external framework for constitutionality, the Hungarian Constitutional Court basically took substantive equality as its central yardstick and retained only enough of formal equality to ensure that the views of those adversely affected by positive discrimination - i.e. legislation aimed at substantive equality - were also taken into account in the drafting of the legislation. (See AB Decisions 9/1990 and 21/1990). It can be said that this makes the formal equality aspect of equality law a "procedural claim" and that it must be documented that the disadvantaged were also taken into account in the drafting of the unequal legislation. However, it does not have to be taken into account, so that the Constitutional Court can always decide ad hoc on the constitutionality of the challenged legislation. In other words, with this formula, our Constitutional Court seems to control the parliamentary legislature more than the German one, which refrains from such a detailed examination of individual cases and leaves it to the legislature to decide between formal and substantive equality on a case-by-case basis. Thus, this cornerstone of Hungarian constitutionalism has once again proven to be more active than the German one. The activist character of the Hungarian constitutional jurisdiction in the application of equality law can be better understood if we also analyse the concepts of positive discrimination and "treatment as a person with equal dignity", which the Hungarian Constitutional Court adopted from the American constitutional jurisdiction in its decisions 9/1990 and 21/1990. It is worth taking a look at the differences that emerged after the adoption. They can be summarised as the Hungarian Constitutional Court applying these concepts to a much wider area of legislative control than was the case in the original US version. In Hungarian constitutional jurisprudence, the test of "treatment as a person with equal dignity" means - as we have already indicated - that the Constitutional Court examines the drafting process of a particular law from the point of view of whether the aspects of the disadvantaged strata could be taken into account in the drafting process of the respective law. This form of control over the legislature in the US constitutional administration has been established in a much narrower framework. The first ruling on which it was based dates back to 1938 and essentially states that if a prejudiced minority in society is affected by discrimination, the Constitutional Court must be suspicious and examine whether the prejudiced minority's views were taken into account in the drafting of the law. Originally this was examined in the case of black people, but later other minorities were included, broadening the scope of scrutiny of the constitutionality of discrimination in legislation. The Hungarian Constitutional Court has already declared its control over the parliamentary legislature in terms of "treatment as persons of equal dignity" without any limitation and has not tied this formula to cases involving disadvantaged social groups or minorities (e.g. with decision 21/1990, which clarified this formula, it arose between different assets and owners). Similar to this extension, the Hungarian Constitutional Court has defined the concept of positive discrimination more broadly than the original American practice. The US Constitution and the constitutional jurisprudence based on it are based on formal equality, and since the 1950s affirmative action has been recognised as a means of improving social (material) equality for socially 70 disadvantaged groups. In particular, it was about helping black people gain admission to universities, and it enabled black people to gain access to better universities by providing a quota for lowerperforming students. This creates a positive inequality for them, and white students with the same results are still not admitted to these universities. When some non-admitted white students challenged such university admission rules on the grounds of unconstitutionality, the Federal Court recognised the possibility of affirmative action as constitutional in some of its decisions (for details see Dworkin 1986: 293-334). In deciding to stand on the ground of substantive equality in the constitutional playing field, the Hungarian constitutional judges have accepted the possibility of positive discrimination to a much greater extent than in the US. Accordingly, positive discrimination is acceptable for any kind of discrimination as long as the "treatment of the other side as a person with equal dignity" can be documented in the legislative process. However, the scrutiny of the legislature by the Constitutional Court is thereby enormously increased compared to what the formula of positive discrimination allows in US constitutional jurisprudence. To sum up, the declaration of substantive equality as the main rule - in contrast to the German and American models - and the formulas of "positive discrimination" and "treatment as a person with equal dignity" which specify it, give the Hungarian Constitutional Court incomparably greater control over the legislature than the two formulas of the American model. It is doubtful, however, whether the Constitutional Court is in a better position than Parliament to decide to what extent the inequalities created by such a law serve the cause of substantive equality. The question of unconstitutional constitutional amendment. The Hungarian constitution does not provide for such a possibility at all, in contrast to the narrow possibility mentioned in Germany. However, the activism of the Hungarian Constitutional Court, which surpasses that of the German court, raises the question here as well. For just as they were able to impose the construction of the "mother law giving birth to fundamental rights", they can find a passage in the Hungarian Constitution with the same loose justification for this question, from which they can read the possibility of doing so. We have not yet seen such an advance in a joint decision, but the two parallel opinions to the already quoted decision 23/1990 - those of László Sólyom and the Lábady/Tersztyánszky authors already contain the bases for it in some points. In the latter case, the already quoted prohibition on the state "arbitrarily transforming the values protected by the Constitution" indicates this, and in the case of Laszlo Sólyom, the statement that the Constitutional Court has the final say on the position of the Parliament in constitutional matters. "Parliament may retain, abolish or reintroduce the death penalty as it wishes - until the Constitutional Court has the final word on the constitutionality of that penalty." (Decisions of the Federal Constitutional Court 1990, 97). It remains to be noted that the premise of a "fundamental rights value system", which is only loosely connected to the constitutional text, implies a general statement about the possibility of an "unconstitutional constitutional amendment". (To clarify, it should be added that in 1992 both constitutional judges Sólyom and Lábady - when this question was explicitly raised - verbally distanced themselves from the possibility of declaring an "unconstitutional constitutional amendment" at an academic conference). Jurisprudence and fundamental rights. A landmark decision on this issue can be found in AB decision 57/1991, by which the Constitutional Court refrains from direct control of the interpretation of the law in its application. This represents a departure from German constitutional court practice in two respects. On the one hand, it is less "parliamentary law friendly" because it does not attempt to avoid the unconstitutionality of laws, provided that a constitutional interpretation of a law is possible. On the other hand, it deviates from German practice in that it recognises the Supreme Court's monopoly on judicial interpretation of the law. This is also due to the fact that fundamental rights jurisdiction has not yet penetrated into the micro-processes of law. Judges cannot interpret the relevant body of law in the light of fundamental rights, in contravention of Supreme Court decisions, if this would lead to a conflict. The judge can only suspend the proceedings in such a case and apply to the Constitutional Court for the annulment of the underlying law. 4. Efforts to "constitutionalise" the application of the law 71 The complex relations of modern societies can only be adequately regulated by law if it is divided into several internal layers. Under the superficial layer of the text, the conceptual categories of the various fields of law form the dogmatic layer of law, and next to it, judicial jurisprudence - the precedents of the higher courts and the judicial practice that clarifies the overt use of words in laws and regulations forms the third layer of law. The relationships between these three levels of law and their interrelationships vary from one legal system to another, but all three are present to some degree in the legal systems of the last few centuries. A new development was the emergence of constitutional jurisdiction, which, after its beginnings in the United States in the 19th century, spread to several European countries from the late 1940s onwards and became established in most Central and Eastern European countries in the wake of the 1989 wave of democratisation. Compared to the traditional legal system, which was dogmatically consolidated and clarified through jurisprudence, this new layer of law, which originally appeared as a set of ideological-political demands outside the existing legal systems in the form of human rights, has quite different characteristics. One of these differences is that the normative content of constitutional fundamental rights and principles is much more abstract than the rules of the traditional legal sphere. The other difference is that the individual fundamental rights are often in irreconcilable tension with each other and one can often only be enforced at the expense of the other. These characteristics were only a problem when they had to be fought for as ideal conditions for changing the status quo in order to confront human rights with realities. However, since constitutional fundamental rights are applied on a case-by-case basis, it is often the court decisions based on them that lead to the greatest legal uncertainty. 4.1 The three dimensions of constitutionalism This level of fundamental constitutional rights does not pose a serious problem for predictable jurisprudence as long as it affects the legislature and other legislators. It has been the main rule in the last half century in the countries where the institution of constitutional jurisdiction has emerged. The constitutional fundamental rights and principles then guide the legislature in its choice of alternatives by directing the content of legislation in the drafting of laws and regulations in a direction that better reflects the abstract guidelines of the fundamental rights and principles. At most, this raises the problem of democracy through overly broad constitutional scrutiny. The expression of the empirical will of the people in parliaments, which is shaped by the election of millions of people, is overridden by the decisions of a few constitutional judges. Despite this problematic nature of democracy, fundamental rights, which also include comprehensive justice aspects, can reduce the fluctuations of the empirical will of the people, which are based on short-term and rather emotional mass sentiments. To put it somewhat aristocratically, one can say that the "radical-subversive" element built into mass democracy can be tamed by a constitutional judiciary that thinks and decides according to the standards of the upper class. The real problem arises only when this decision-making body is permanently and comprehensively opposed by a legislature based on the empirical will of the people and authoritative political elites. The "activism" of the Constitutional Court is an indication of this, and the question of constitutional activism in this direction - i.e. in relation to the National Assembly and the party elites there - has also arisen in Hungary in the last ten years. It is a new dimension when constitutional fundamental rights go beyond the definition of legislation and begin to exert a direct determining force on the micro-processes of law, on individual judicial decisions. In addition to these two dimensions, juridification can also affect legal dogmatic activity, and then the internal questions and legal dogmatic constructions of each field of law are linked to the basic constitutional rights and principles, and the dogmatic system of the field of law is more or less derived from the basic rights. The individual legal fields then appear as "constitutional legal fields" "constitutional criminal law", "constitutional tax law", "constitutional civil law", etc. - and when this becomes established in the legal circles of the respective legal areas, then, in addition to the legalpolitical criticism of the creation of law, the "constitutional fundamental rights of the legal area" also begin to function as a basis for interpretation for the legislator of the legal area. The individual constitutionalised legal principles can thus act in two different directions: vis-à-vis the legislator as a new legal policy evaluation system that now condemns the existing legal situation as not conforming to fundamental rights, but also vis-à-vis the administration of justice as a new aspect of judicial lawmaking that aligns legal interpretation with the fundamental constitutional rights of the legal field. In Hungary, few seem to have raised the issue of constitutionalising legal principles, but even this more as a guideline for legislation than for the application of the law. In the field of criminal law, for 72 example, the efforts of András Szabó in this direction were visible in the early 1990s, opposed by Ferenc Nagy and Imre Wiener A. Wiener from the narrower circle of criminal law entered the debate, and more recently Dániel Deák from the field of tax law seems to aim at the development of a "constitutional tax law" (see Deák 2000:168-176). In this part of the chapter, we will examine the functioning of the level of fundamental constitutional rights exclusively from the perspective of the application of law and highlight the problems that arise in this process. By breaking down the three dimensions and using the term "constitutionalisation of the application of law", the impact of the constitutional level on the legal system can be assessed more accurately than if one were to speak indiscriminately of the constitutionalisation of the entire legal system. For example, at the World Congress of Comparative Law in Bristol in 1998, the papers on this topic were grouped under the term "constitutionalisation of the legal system", while much of the discussion dealt with the state of constitutional control of the legislature in the individual countries (see Koch 1998, Poplawska 1998). The differentiated treatment of the topic makes it possible to assess the effects of constitutionalisation in each dimension independently, and the negative or positive assessment of one dimension has no influence on the assessment of the other dimension. 4.2 Two directions of constitutionalisation of the application of law When the level of fundamental rights escapes the control of the legislature and begins to directly influence jurisprudence, these effects can be examined in two different directions. In the first case, in addition to the relevant statutory provisions, the judge may also decide the case in terms of fundamental constitutional rights. That is, in this case, the fundamental constitutional rights not only affect the judge's decision by shaping the law he or she applies, but also/alongside/instead of them directly appear in the shaping of these decisions. On the other hand, the constitutionalisation of the application of law is promoted when participation in litigation is detached from personal concern and broader groups and associations can participate in the judicial process for whom the subject matter of the specific litigation is not important, but are perceived as a means of shaping the overall case and fighting for a particular outcome of the litigation. Let us look more closely at the two dimensions of constitutional justification - which we can also call the substantive and procedural aspects of this process - and their problems. 4.2.1. The substantive legal side of constitutionalisation. While in most countries where the institution of constitutional adjudication was created, it remained limited to the control of the legislature and did not assign a direct role to fundamental constitutional rights and principles in the micro-processes of law, efforts in this direction began in Germany and the United States in the mid1950s. In Germany, as we have seen above, the problem was referred to as the "horizontal" effect of fundamental rights or, from another angle, as "third-party effect", while in the United States, since the 1960s, after the new development of law had been theorised, studies on this subject have been and are being carried out under the heading of "constitutionalisation" of the administration of justice and the solution of social problems. The two thematisations capture the issues at stake in different breadths, and the broader American thematisation corresponded to the fact that the constitutionalisation of the application of law was broader in scope and had a greater impact on the functioning of law in the United States than in Germany. In Germany, the Basic Law declares fundamental rights to be directly applicable rights, and since the mid-1950s, the question has arisen in judicial decision-making processes as to what role, in addition to the applicable statutory provisions, constitutional fundamental rights can play in individual cases if they appear relevant. Logically, three positions are possible. The first could be that the judge does not need to consider fundamental rights at all because the legislature has already been controlled and determined by them or by the decisions of the Constitutional Court interpreting them. The role of fundamental rights is one step stronger in this direction if the judge, while in principle bound by the relevant statutory provisions in formulating his decisions, must in his interpretative work take into account the requirements of the relevant fundamental rights and their constitutional court decisions and exercise his discretion in their direction. Finally, the third - and strongest - position of fundamental rights in shaping the judicial decision is achieved when the judge can (or must) not only resort to fundamental rights in his interpretation, but can also override the applicable statutory provisions and 73 base his decision entirely on the constitutional provisions. These three positions emerged in German legal literature from the early 1950s onwards when analysing the possible effects of fundamental constitutional rights on direct judicial decisions, and the problem was referred to as the "horizontal effect" of fundamental rights, since fundamental rights originally protected the individual vis-à-vis the state and the larger collective in a "vertical direction". The issue here is their impact on - horizontal - relations between citizens. The Federal Constitutional Court has dealt with the issue in detail and, after the Federal Labour Court overruled labour law provisions in a labour law dispute and ruled directly on the basis of the Constitution - a major legal literature debate has developed on the consequences of this legal turn - has taken the position that fundamental rights can only be indirectly incorporated into judicial decisions and that only by interpreting the openness of legal provisions can a judicial decision be based on them, but not laws can be overruled. If a judge is of the opinion that the applicable statutory provision violates a constitutional fundamental right, they may stay the proceedings and refer the matter to the Constitutional Court to have the constitutionality of the provision reviewed. However, they may not set it aside. After the Germans, the Italians and then the Spaniards also took an intermediate position, while the Austrians, after examining the question, decided not to recognise the horizontal role of fundamental rights even to this extent. But even in these countries, despite the declaratory recognition, the inclusion of constitutional fundamental rights in judicial decisions, even in such an indirect role, remained restrained. In the United States, the practice of constitutionalisation was much more widespread and had farreaching effects both on the functioning of the legal system and on political life. As a result, a reversal of the trend began in the 1970s, leading first to a halt in further constitutionalisation and then to a significant reversal from the early 1990s onwards (see Grey 1996). In the United States, the constitutionalisation of lawmaking was largely related to the differential dominance of political forces at the state and federal levels, and to the antagonism between the two that led, among other things, to the Civil War in the 1860s. The federal constitution, the federal legislature and the federal court system developed to implement it have always been the custodians of the central will of the unifying United States vis-à-vis the laws and courts of the states, and in the last century the steady expansion of federal powers has been achieved through the ever-expanding constitutional interpretation of the federal courts, most notably the Supreme Court. One aspect of this (in addition to the expansion of the legislative power of the federal Congress at the expense of state legislatures) has been the incorporation of the provisions of the federal Constitution into the judicial branch of government, thereby displacing state laws (and thus the state courts entrusted with their application). To understand this, it may be useful to consider the example of a case in which a university entered into a two-year contract with a gymnastics instructor in the early 1980s, but terminated the contract after one year. The gymnastics instructor did not seek to challenge the legality of the termination under labour laws - which would have been a matter for the state court - but instead viewed the loss of his salary as a loss of his property and based his claim on the provision of the federal constitution that "no person shall be deprived of his property without due process of law". This basis for litigation already leads to the case being brought in federal court, and if judges tend to define the concept of property so broadly, then a significant amount of employment litigation is brought as a violation of a fundamental constitutional right and a suit to remove it. This case, however, was tried before Richard Posner, Chief Justice of the Federal Court of Appeals in Chicago, who, as an opponent of constitutional rights, dismissed the suit and advised the plaintiff gymnastics teacher that he would probably get justice if he were sued in state court under the employment laws (see Cohen 1985:11171118). The point, then, is to double the litigation by creating the possibility of a constitutional suit, and the plaintiff can choose whether to bring a constitutional suit or to resolve his problem on the basis of simple laws. This trend reached its peak in the mid-1970s, and a "constitutional" administration of justice developed in the federal courts in parallel with traditional procedures. Resistance within the legal profession and the courts led to public and political awareness of the problems involved, and legal politicians, especially from the Republican political camp, increasingly campaigned for a reversal of this process. In the early 1980s, President Reagan included in his election platform that, if elected, he would seek to appoint federal judges who would oppose the "constitutionalisation" of court decisions. After his election, the president's judicial administration succeeded in the 1980s, and with the refreshment of the federal judiciary, further constitutionalisation of the judiciary was largely halted. In the early 1990s, the majority of the nine judges of the Federal Supreme Court finally managed to turn 74 the tide and stop constitutionalisation by filling the vacancies on the nine-member body. In contrast to the "constitutional" line that began with Chief Justice Earl Warren in 1953, continued with Hugo Black, and continued with William J. Brennan, William O. Douglas, Abe Fortas and the initially hopeless struggle with them alone, Felix Frankfurter, John M. Harlan, William H. Rehnquist, Sandra Day 'O Cooner and Antonin Scalia are the reversalists who in recent years - since 1992 - have been the majority of the US Supreme Court. In academia, Ronald Dworkin must be considered the main supporter of the constitutionalist line, while Alexander M. Bickel began the fight against it in the 1960s, followed by Robert Bork in the 1970s and Antonin Scalia in the 1980s, who wrote important works to advance it (Scalia was even successfully appointed to the Supreme Court in the mid-1980s, while Robert Bork's nomination failed due to the political and media strength of the united opponents). Compared to the German "horizontal effect", the United States was thus able for a time to achieve a more radical degree of constitutionalisation of the application of the law. Here, too, the interpretation of the law is about the constitutional fundamental rights and the supreme court decisions interpreting them, but here, too, the independent constitutional court action makes it possible to repeal the laws in the manner described above. A broad understanding of basic constitutional rights - and the derivation of a number of normative references from basic constitutional principles - can completely displace simple statutes and the legal dogmatic constructions behind them, and a judicial case decision can be based on basic constitutional rights and the basic rights literature extending them, rather than on a legal dogmatically clarified statutory provision (for US family law, see Schneider 1988:79-121). From a legal technical point of view, it is perhaps not impossible that after a longer period of time a new kind of predictability could be created - even if it is unclear how this could happen at all, given the mass of changes required - but in any case, after a trend of about twenty years, the mainstream of American legal life has again slid in the opposite direction. 4.2.2 The procedural side of constitutionalization. In addition to the substantive reference of constitutional adjudication, there has also been a development in the United States since the 1960s on the procedural side to shift traditional jurisprudence to the constitutional level. This has led to individual lawsuits being replaced by mass lawsuits, thus increasing the importance of the judiciary for the struggles of broader social groups. And does the implementation of mass lawsuits in terms of basic constitutional rights essentially offer social groups an alternative to organising themselves into parties and pushing through their goals in the legislature by changing the law, or fighting for them through the legal process that has been restructured in this way? The shift of traditional litigation in this direction has taken two interrelated paths since the mid1960s. The first was the emergence of "public interest litigation", also known as "public law litigation", and the second was the emergence of class actions. (The public lawsuit) A traditional private lawsuit can only be brought by someone or join a lawsuit that has already been brought by someone who has a legally protected interest that is directly affected by the matter in dispute. The outcome of a major court case often affects the situation of other people in a similar situation, especially if jurisdiction plays a major role in the legal system of the country concerned. The reason for this is that the decision becomes a precedent for others in a similar situation and the outcome of the case is therefore particularly important for those in a similar situation to the individual plaintiff. This is the reason for the phenomenon that in the United States, since the end of the last century, there has been a tendency for outsiders to intervene in the administration of justice. The first form of this was the so-called "judicial review". "This consisted of a respected jurist or law professor presenting a legal viewpoint to 'facilitate' the adjudication of a case. In it, arguments and rules from other countries are cited to push the judges deciding the case in a certain direction. This activity is usually carried out by respected lawyers, government officials and experts from large companies before the higher courts make more far-reaching decisions if the outcome of the case is important to them. One version of the amicus curiae brief is the un. Brandeis brief, which sets out to the deciding judges not only the legal arguments but also the changed social facts in order to depart from the previous relevant precedents. Louis Brandeis, who later became a member of the US Supreme Judicial Forum himself, wrote his model brief in an important case in 1908, in which, after two pages of traditional legal argument, he set out in a 110-page paper the social changes that required judges to make new decisions in relation to the old precedent. In the euphoria of the "social engineering of law", this kind of writing became the model for the "social engineering" lawyers of the next decades. This history can be used to trace the development of public law litigation since the 1960s. At that 75 time, a procedural amendment was introduced that allowed a party whose interests were affected by ongoing proceedings to intervene in the proceedings if a party in a similar position in the proceedings was unable to adequately represent those interests. The judge was then obliged to grant the litigation, but in addition, another paragraph allowed the interested party to intervene in the litigation even if the interest at issue was adequately represented, if a broad question of fact or law was involved in the litigation. In such a case, however, the judge has a discretion to allow such intervention (Vreeland 1990: 279-310). Following this change in procedural law, such intervention has developed in a wide range of litigation and now broader interest groups and associations can influence the judge's decision not only from the outside, in the form of an amicus curiae brief or Brandeis brief, but also as a party to the litigation. However, the litigation changes fundamentally and the focus shifts from the specific interests of the individual to win a case to the long-term interests of the larger social group. Litigation is then conducted with the aim of achieving a permanently better legal position for the associations of the affected social group. With this change in character, the courtroom more closely resembles the atmosphere of a legislative chamber, with its enormous media coverage and publicity, than a traditional venue for neutral legal debate. And for political interest groups, litigation provides an alternative to lobbying or appearing as a party in parliament to get a law changed (see Chayes 1982). Minorities, races, etc. in particular benefit from the choice of political struggle through public law litigation, as it is more difficult for them to get their way in majority legislation. For example, a 1984 attempt to curtail this area was justified by a Congressional preparatory subcommittee as follows: "Members of a particular race or gender can easily constitute a group, making federal judges inclined to recognise the due process rights of sociologically defined social groups. Abstract fundamental rights provide a basis for such groups, making fundamental rights litigation between class plaintiffs more akin to legislation than to traditional litigation" (cited in Feinberg 1984:272). The heyday of public rights litigation was in the 1960s, but even between 1986 and 1989, 171 such cases could be found in a survey of litigation in federal courts. By this time, however, much of the staff of the federal courts had been renewed and judges had become stricter in their assessment of whether to intervene in the admission of suits, so that the conversion of suits into public suits had been curbed to some extent. Looking at the American influence in this regard in Western European countries, one finds that the emergence of public court proceedings has been very limited. Here, it is usually the public prosecutors who have the power to intervene when the interest pursued is not adequately represented and is of greater social importance (for a comparative analysis, see Feldman 1992). Nevertheless, there are some developments in the direction of judicial enforcement of EU law against potentially conflicting national laws through recourse to the European Court of Justice in a particular case where the affected social groups have not been able to enforce it due to the resistance of national legislators (see Feldman 1992). In its chirality, this is the same thing that has led to the "constitutionalisation" of law enforcement in the struggle between federal and state political forces in the United States over the last 40 years. And here, too, there has often been a greater subordination of national legislatures to the Union by expanding the powers of the European Court of Justice through a broad interpretation of the EU Treaty. At present, however, there is no Charter of Fundamental Rights at the EU level (the European Court of Human Rights applies the European Convention on Human Rights beyond the EU to all member states of the Council of Europe), so the "push" of Brussels' will has not been able to lead to progress in the broad application of fundamental rights. Thus, although the situation of relations between the European Union and its Member States is in every respect similar to the situation in the United States at the end of the 19th and beginning of the 20th century, and this situation there led to a large extent to the enactment of the (federal) law, it cannot now give rise to similar phenomena in the EU Member States. However, if a Charter of Fundamental Rights with real legal force were to be established in the European Union - as some political groupings are striving for - the creation of a United States of Europe would probably be accelerated in this way. In the context of public law disputes, it is worth mentioning the phenomenon of strategic litigation. This phenomenon is due to the fact that there is precedent in countries where precedent plays a more important role than otherwise, and in the United States it is often the reason that public law litigation takes on the character of strategic litigation. This is because powerful interest groups are not interested in winning a particular case, nor do they sue and intervene primarily to win a particular case, but to obtain a precedent decision in their favour. One of the consequences of this is that if the prospects in a particular case are unfavourable, they will try to reach a settlement with the opposing party - perhaps even accepting worse terms than could be fought out in the case - in order to avoid a judgment and thus not leave a "legal mark" on the case. Conversely, if there is a good chance of 76 success, there is no tendency to settle, as the main goal is to set a precedent (cf. Tushnet/Schneider/Kovner 1988:975). (Class action) This form of litigation has developed primarily in mass actions where a large company's product liability or an environmental incident affects thousands or even tens of thousands of people. In this case, those affected join together to form a litigation community and sue as a quasi-association of interests in order to obtain compensation from the courts. However, with the proliferation of class actions, this form of litigation has expanded to a number of other areas and is often used to challenge the actions of government agencies, school boards, etc. With this spread, class actions have often merged with public law disputes (see Elhauge 1991:72-77). There is even a tendency for those who can demonstrate "class membership" - that is, that they are in the same position as the litigants - to receive judicial certification of eligibility without having been formally involved in the litigation, making the judicial decision fully equivalent to a legislative determination, since the judge, rather than the individual parties, decides for a broad social mass, as does any legislature. 4.3. Efforts to constitutionalise Hungarian law First of all, it should be noted that there were no significant shifts towards constitutionalisation in Hungarian legal practice until the years before the turn of the millennium, but recently there have been some efforts that indicate that ideas in this direction are also emerging in Hungary. As we shall see, these are fundamentally different perspectives, and the representatives of each aspiration would probably not agree at all with other, similar ideas. It is also worth putting these ideas into a common framework - this is what is meant by addressing them under the heading of "constitutionalising the application of law" - so that the various proponents of the "can't but will" aspirations can better identify the problems that arise. It is also worth dividing the analysis of these efforts in relation to the domestic situation and examining the procedural dimension separately from the substantive dimension of constitutionalisation. 4.3.1. The substantive legal side of constitutionalisation. The analysis of the situation in Hungary should start with the fact that the Constitutional Court in that country has been given enormous powers to annul laws and has even extended these powers beyond that, but has not yet made any progress in the application of the law by the judiciary. The provisions of the Constitution did not allow for this either, but - since this was not a problem for them in respects other than the expansion of their powers - it was more important that the Constitutional Judges themselves, in 1991, their first term in office, decided, in the tension of their expansive approach to the legislature, that they did not want to compete with the overall judicial interpretation of the law by the Supreme Court (see AB Decision 57/1991). This position seems to be changing with the effort to give constitutional judges the possibility to exercise constitutional control over the decisions of the Supreme Court. Although formally a bill proposed by the Ministry of Justice, there are indications that some constitutional judges are also in favour of this initiative. The problem is that this would be the first time that the direct effect of fundamental constitutional rights and principles would be formally recognised vis-à-vis judicial interpretation of the law. So far, constitutional judges have only participated in law-making above the level of judges, and it is only here that constitutional rights and principles have a formative effect. This step would be a fundamental breakthrough and would bring abstract fundamental rights directly into the application of the law. Another concern is that if we open the way for direct constitutional review of judicial decisions, it is simply no longer justifiable to stop at other decisions of the highest court that also constitute precedent. Once the path to constitutional review of judicial interpretation and application of the law is opened, it would inevitably run through the entire jurisprudence of the Supreme Court. If this is the case, it becomes a primary task of lawyers to seek help at the level of fundamental constitutional rights and principles, in addition to provisions at the level of the law that are unfavourable to the lawyer's individual client. They are abstract and malleable enough to make any case that looks like a loser defensible from any angle. And the courts, whether at the lower or middle level, cannot refuse to refer 77 a case to the constitutional level, as they do today, citing AB 57/1991 (see e.g. 1998, Court Order No. BH 223). In summary, if the case law were subjected to constitutional review, we could soon take the necessary steps to constitutionalise the application of the law in the substantive dimension, even if the majority of constitutional judges would probably not support this at all. Whether this would then remain a "medium" degree - as we have seen in the case of the Germans with the horizontal effect of fundamental rights - or would shift to the level of direct constitutional disputes, as is the case in US federal jurisprudence (alongside private law, labour law, criminal law disputes, etc.), cannot be predicted. The latter has already happened once in the national legal system, in the case of the socalled "little girl from Davod", when the Baja court decided the case on the basis of the Constitution and overruled the relevant legal provisions. This was received with great approval in smaller legal circles, but the legal public and the judiciary as a whole reacted negatively to this decision (see Fundamentum 1999/3 for the reaction of legal politicians organised in the journal Fundamentum). Another approach to constitutionalising the application of the law has been proposed by Gábor Gadó, who would like to amend the introductory provision of the Civil Code on the interpretation of the law to the effect that judges are obliged to interpret the provisions of the Civil Code in the light of fundamental constitutional rights and principles (see Gadó 2000). For then the lawyer - if he is in danger of losing - could see one of his main means of argumentation in reversing the prospects of litigation on the basis of the open standards of fundamental constitutional rights and principles. Jurisprudence in this area of law could then evolve from one based on dogmatically clear rules of private law to a completely open judicial decision-making process. And if it prevails here, how can we prevent this procedural technique from being transferred to criminal law, labour law and all other areas of law! By way of illustration, it should be noted that there have been attempts to legislate in Poland in Central and Eastern Europe and that until 1997 the Constitutional Court there had the power to interpret the laws in a way that was binding on the courts. An interpretation of the law based on abstract fundamental rights increasingly brings ideological-political considerations into play, which ultimately led to an open confrontation between the supreme body of judges and the constitutional judges. As a result of this confrontation, the new Polish Constitution of 1997 abolished the mandatory power of constitutional judges to interpret the law and their right to intervene in the application of the law (see Poplawska 1998:132-133). 4.3.2 The procedural side of constitutionalisation As noted in the analysis of the constitutionalisation of the US judicial process, in this dimension, the publicity and constitutionalisation of the litigation occurs in such a way that broader social groups can be involved in the litigation in addition to those specifically interested and affected. This shifts the focus from winning a concrete case to indirect, longer-term effects. This implies both more permanent legal effects (e.g. setting a precedent in a higher court that can provide a broad range of stakeholders with a legal basis for future lawsuits) and the involvement of the broader political public in the process. If one looks at the domestic legal landscape, one can immediately see that - in contrast to the extensive public lawsuits and class actions with political undertones in the USA - these are not common in our country. The aforementioned case of the "little girl of David" in connection with the abortion issue, which was the only example of an attempt at substantive constitutionalisation, appeared in the media and in the political public sphere as a clash of opposing social views involving the antiabortion association, the data protection commissioner, who claimed to be defending a fundamental constitutional right, as well as the legal politicians of the journal „Fundamentum Circle”, who fought for a comprehensive constitutionalisation of the legal process. Moreover, in some ethnically tinged criminal cases, human rights organisations with significant media support, such as the Roma Parliament and the National Office for the Rights of Ethnic Minorities, were observed defending Roma-origin offenders and addressing the problems of criminal proceedings largely in the light of constitutional law rather than criminal law and procedure. On a broader level, however, this phenomenon has not yet taken hold in national legal life. If one breaks down this summary statement and separates the relevant legal framework from the sociological-institutional and practical background of the issue, one can say that there is nothing at the 78 level of the legal framework that would prevent a shift of judicial procedures towards public law. In private lawsuits, there is a comprehensive right of action for public prosecutors in Hungary - in accordance with the European regulation - although this right was even restricted by the changes in the law after the fall of communism in 1989 and the decision of the Supreme Council 1/1994 declared part of the former unlimited prosecutorial powers unconstitutional. However, even today the prosecutor has the general power to initiate proceedings if for any reason he or she is unable to protect the rights of the plaintiff (see Section 9(1) of the Code of Civil Procedure). In addition, some specific legislation gives the public prosecutor the right to bring charges in certain cases and to intervene in civil proceedings that have already been initiated (see pages 36-47 of the Explanatory Memorandum to the PP). In addition to the Public Prosecutor's Office, some legislation has also given social organisations rights to act and intervene in a specific area. For example, Article 109(2) of Act LIII of 1995 gave citizens' environmental organisations a general right of action if they find an activity anywhere that is harmful to the environment. But also in the case of consumer damage, consumer protection associations were granted such a right in Article 39 of Act CLV of 1997 (see pp. 40-41 of the PP Commentary). However, a broad legal framework for the public-political revival of civil procedure is also provided by Articles 54-57 of the PP, which regulate intervention in the process. It can be argued that they allow for an even broader intervention than the solutions in the US described above, as there interested parties can intervene in the litigation even if the interest at stake is not adequately represented. The Hungarian legislation, on the other hand, makes no such restriction, and anyone who has "a legal interest in the outcome of pending litigation between other persons may intervene in the proceedings until the end of the hearing before the first instance judgment in order to promote the success of the party with the same interest" (PP § 54 (1)). The broad wording leaves it to the respective court practice to determine what the legal interest is and how directly it must be affected in order to intervene. In the United States, for example, in the 1960s and 1970s, when the general political public was very much in favour of social change through the law, judges already accepted as a legal interest that any citizen could be affected as a taxpayer in matters of greater consequence (see Chayes 1982). In Hungary, at any rate, case law has interpreted the interests justifying intervention narrowly, but this rule has remained unproblematic mainly because Hungarian NGOs have not yet added the pursuit of their goals through the legal process to their repertoire. On the other hand, Hungarian legislation provides for the re-functionalisation of civil procedure in public law through the establishment of the "pertársaság", which is regulated in § 51 of the PP. It is essentially identical to the American class action and, with a possible change of strategy by Hungarian civil society organisations, could be as appropriate a means of shifting litigation towards public law and politics as was the case in the USA in the 1960s and 1970s. For example, under subsection (c) of this section, a joint action is permitted if "the claims in the action have a similar factual and legal basis". In criminal proceedings, the participation of broader social groups, possibly associations, is made possible by the fact that section 57 of the Be provides for the participation of "other interested parties" in the trial. Admittedly, this innocent procedural right only has a truly comprehensive effect if the other parties involved in the criminal proceedings - possibly associations of the most diverse participants or their representatives - invoke fundamental constitutional rights instead of procedural and substantive criminal law rules and thus re-functionalise the proceedings. The same applies, of course, to the private prosecution described above. Here, too, it is the shift of the substantive legal basis towards fundamental constitutional rights and principles and their constitutional court jurisprudence that, alongside the procedural side of mass litigation, constitutes the actual public law character. It is the combined effect of these two dimensions that truly transforms traditional litigation. In Hungary, therefore, the legal framework for the constitutionalisation of the application of law in the procedural dimension is ready, and apart from the restrictive influence of European legal culture, it is only the lack of a corresponding strategy on the part of the Hungarian civil sector that has so far prevented the shift of the domestic application of law towards constitutionalisation. However, it seems that the strong openness of the dominant groups in the intellectual-media sphere to the intellectual influences of American intellectual circles makes such a shift more likely in our country than it has been in Western European countries in recent decades. 79 Chapter III Other issues in the multi-layered legal system 1. On the nature of legal dogmatics Very little has been said about legal dogmatics in the Hungarian legal theoretical literature of recent decades. Exploring the reasons for this would require a study of its own, so only two circumstances can be mentioned here that explain to some extent the retreat of legal dogmatics into the background. One of these reasons is to be found in the text positivism of the "official" socialist theory of law. According to this concept, law is found in its entirety in the text of the state decision, which the state body responsible for it has published as a legal norm in a legal source (law, legal ordinance, regulation, etc.). This conception of law is perhaps most clearly expressed in Hungary in Imre Szabó's great monograph "Interpretation of Legislation", but has not been so consciously the prevailing attitude in our theoretical legal thinking in recent decades. This attitude makes law completely dependent on state decisions and does not tolerate an independent legal logic, a special legal thinking, being mixed with the arbitrary expression of the will of the state. Theoretical reflections on legal doctrine, systematic models of legal concepts and principles and proof of their binding nature for the political legislator of the time would have fundamentally challenged this "decisionist" text positivism ("everything can be made law by decision") and would have been the greatest danger - and in the 1960s and 1970s at least an existential nuisance - for the legal scholar who dared to do so in the 1950s. Another reason - perhaps not unrelated to the first - is the jurisprudential approach of recent decades. This can be briefly summarised by the fact that jurisprudence as a theoretical premise has been placed in the realm of the social sciences in the broader sense, and the few studies that have looked more closely at the relationship between jurisprudence and legal practice have only dealt with jurisprudence as a pure (social) science. In this way, the doctrinal-legal dogmatic side was practically excluded from the jurisprudential discussion (cf. Peschka 1980: 215-234). However, if one looks at the actual activity of university lawyers - beyond teaching - one could observe in this period, as in the rest of Europe, a predominantly doctrinaire legal dogmatic activity. Thus, the image of a unilaterally mutilated jurisprudence has emerged - and it is precisely this that has displaced the actual activity of academic jurisprudence from the thematisation of legal theory. A radical correction of this conception of jurisprudence was attempted by András Sajó in his 1983 work "Critical Treatise on Jurisprudence", and here the doctrinal-legal-dogmatic activity was indeed placed at the centre. However, the book placed this new emphasis on doctrinal-legal-dogmatic aspects within a "jurisprudentially urgent" framework, denying the scientific nature of jurisprudence to such an extent that it remained unacceptable to academic jurisprudence. Sajó himself, however, did not pursue this important emphasis in his later writings, and in the legal literature of recent decades, perhaps only a 1986 study by Imre Békés should be mentioned, which deliberately focuses on legal dogmatics - at least with regard to criminal law (Békés 1985). After the fall of communism, from the mid-1990s onwards, interest in this topic seems to have opened up in Hungarian legal scholarship (see Miklós Szabó 1996). Within the framework of a conception of law that consciously seeks to break away from the reduction of law to a state decision, the nature and aspects of legal doctrine must be systematically explored. Following our earlier preliminary studies, we want to do this in the first part of this chapter (see Pokol 1990; 1991). 1. 1 Theories of legal dogmatics 80 The historical merit of the emergence of modern law based on systematic-abstract categories lies in the Pandecist jurisprudence of the second half of the last century, which, after the rational legal systematisation of the 17th and 18th centuries, reorganised the categories and concepts of practical law into a conceptual system. French jurisprudence, which regained a foothold towards the end of the 19th century, drew its greatest inspiration from this, just as John Austin in England and the American legal thought that emerged in his wake had taken German jurisprudence as their model. In the 20th century, German legal literature continues to deal most extensively with the conceptual context of law and is referred to as "legal dogmatics" in German legal literature, while the term "legal doctrines" is more common in French and American usage. The analysis and "reflexive observation" of legal doctrine itself - beyond the cultivation of legal doctrine itself in the direction of practical law - is still found primarily in German-language legal literature. Starting from this legal literature, we will look at the various theories on the nature of legal dogmatics. From the huge mass of material piled on top of each other, only a selection of the most important approaches will be presented here in a shorter contribution, highlighting those authors who, compared to the others, represent an original moment in illuminating the essence of legal dogmatics. It is therefore not our aim here to give a complete account of the legal doctrine of a single author. Niklas Luhmann's theory of legal dogmatics is a good starting point for analysing approaches because he embeds the legal system as a whole in society and analyses legal dogmatics in comparison to other social subsystems. At this level of abstraction, where each social subsystem (economy, science, art, etc.) appears as a specific, uniform form of communication in the social world, legal dogmatics can be understood as a homogenisation of law as a social subsystem. This homogenisation reorganises - as in all functional subsystems - social events and contexts in a homogeneous field of evaluation from a specific point of view, dissolves those that are connected in another field of evaluation and connects those that are separated in order to process the social world from the point of view of the evaluation of law. In law, this homogeneity of evaluation is essentially ensured by evaluation according to the value pair right/wrong, just as evaluation homogeneity is represented in science by true/false and in economics by profitable/unprofitable. However, these value pairs (Luhmann calls them binary codes of a subsystem) alone only enable the separation of the different fields of evaluation, but what is legitimate or scientifically true etc. can only be decided by further concretisation mechanisms, and only together with these can a value pair constitute a homogeneous sphere of evaluation in real social events. In science, logics, theories of science, rules of evidence, etc. make it possible to decide the question of the scientific truth or falsity of certain statements; the question of artistic beauty is settled by aesthetics and art criticism; and finally, the question of right or wrong in a concrete case is decided by the fixed rules of law, the various theories of interpretation and the conceptual order of legal dogmatics, which ensures that the rules are free of contradictions (Luhmann 1971: 232-252; 1974: 6; 1981: 194). In other words, the underlying binary codes (or, in other words, pairs of values) ensure the distinctness of the individual fields of evaluation, but these codes must be supplemented by concretising programmes in order to apply them to every case. However, it is necessary to go beyond Luhmann and it can be argued that the functional system of law is also subject to a stricter systemic order than most other such subsystems. For while in most cases it is sufficient to ensure a purely evaluative homogeneity, and e.g. in the case of law, it is not necessary to always combine individual scientific assertions in a scientific field into a contradictionfree whole - it is precisely the juxtaposition of individual contradictory and competing scientific assertions that always moves science forward, Within the respective applicable law there must also be a stricter prohibition of contradiction, and alternative legal regulation proposals that contradict it must be precisely delimited from the applicable law as de lege ferenda proposals (as "scientific only" proposals). This stricter systemic coherence - beyond mere evaluative homogeneity - is given to the legal order by legal dogmatics. Josef Esser made this function of legal dogmatics for a stricter system particularly clear in his writings. "Dogmatics ... is, within the framework of a system, the control mechanism which ensures the compatibility of solutions with other regulations." (Esser 1972:104) In another essay, Esser also clearly highlights the question of the binding nature of dogmatic order. "The question of order is closely connected with the question of dogmatics. Those principles which are largely systematising principles are more or less fixed and binding views of law" (Esser 1972b:15). This question is frequently asked in the literature on legal doctrine: To what extent are legal doctrines and categories binding and when can they be transgressed? Assuming the above-mentioned function of legal doctrine to ensure the meaningful coherence of the applicable law, this question can 81 be answered by saying that the legal order of doctrine and its components are nothing more than contextualisation. The only way around this, then, is to reorder the relevant contexts in the body of law - expressed in abbreviated terms by a legal dogmatic distinction or category - in a coherent manner and to present a legal dogmatic model that embodies a new alternative order without contradictions. In other words, legal dogmatics means "making it difficult" to change certain rules by making the possibility of doing so conditional on thinking through the implications of that change. But if the effects are examined and fit into the general legal-dogmatic order, then dogmatics allows the rule to be changed as it is. Or, if it would even affect the broader dogmatic order, this can only happen if the broader dogmatic order itself is also transformed into a new order - while retaining the desired rule change. The binding nature of legal dogmatics is therefore not absolute - and it is by no means intended to eliminate thinking - but, if it insists on changing the rules, it is intended to stimulate broad thinking and make it an imperative to think through the overall context. On the other hand, of course, it also relieves the burden of thinking - and this is especially helpful when applying the law in individual cases - because it facilitates the linking of the individual rules with the concrete case through the legal dogmatic steps practised in legal training. It is therefore important to emphasise that legal dogmatic thinking is not bound to the rules of positive law, not to these "dogmas" that are mandatorily given to the legal dogmatist, but to the underlying sets of categories that shaped these rules in their formation, i.e. the underlying system of categories that connects the rules of positive law is the dogmatic order of positive law, and this is the only binding consideration. As we have seen, it is also only binding until an alternative order of coherence can be demonstrated. Of course, this must be introduced outside the existing material, in the academic legal world of de lege ferenda proposals, and from there even through legislation, in most cases into positive law, in order to restore the dogmatic order of positive law. It is of course also possible that the rules of positive law remain textually unchanged and that the rules are interpreted in the new order by replacing certain parts of the underlying dogmatic order, and that case law arrives at different judgments despite the unchanged text. Spiro Simitis formulated the function of legal doctrine to ensure the absence of contradictions as a higher level of predictability in modern law. "In the mechanisms of dogmatic reflection, the need for predictability, which already manifests itself in the positivisation of law, is concretised. Dogmatics is thus nothing other than the logical continuation of this positivism." (Simitis 1972: 131). Another aspect of legal theory is the question of "consequence orientation" in individual cases. This question was raised very radically by Luhmann and has triggered heated debates in recent years. Luhmann's starting thesis in this line of thought is that by systematically embedding individual case decisions in a world of right and wrong - and that it is precisely through this embedding that law as a whole fulfils its social function - legal doctrine becomes increasingly indifferent to the external, social consequences of the "legally correct" decision (Luhmann 1974: 31). The "consequence orientation" is more characteristic of the political sphere, and law maintains its separation from the logic of the political system by - and as long as - legal doctrine blocks the judge's consequence orientation in judicial decision-making. Luhmann, however, is pessimistic about the possibility of maintaining this role of legal doctrine - and thus the separation of law and politics - under the conditions of state social organisation. This is because the modern interventionist state increasingly uses law to impose political goals on society, and this change in the focus of the decision to apply certain legal provisions to the intended effect reinforces the orientation towards consequences. This always implies individualisation, so that in the recent development of law, a slow decay of classificatory legal doctrine can be observed. All this, Luhmann predicts, is a harbinger of the fusion of all law with politics (Luhmann 1974: 32). This pessimistic diagnosis has been contested by many (e.g. Teubner 1975), and it has been pointed out that although it is difficult in legal theory to give the judge a precise prescription for the relationship of "legal dogmatic hindsight" to the possibly opposite "consequent foresight" in any judgment, in practice both attitudes together shape judicial decisions. The danger only exists if the focus on legal doctrine is largely displaced by the focus on consequences. Carl-Wilhelm Canaris formulated the same idea - albeit with reversed signs - in the relationship between legal dogmatic correctness and justice. In this formulation, legal dogmatic correctness appears as justice that stands above the particular, ad hoc perspective of justice on the level of the overall context. "The unity and internal order of law ... belong to the fundamental requirements of legal ethics and are ultimately rooted in the very idea of law. Thus the demand for an internal order free of contradiction is to be judged without further ado from the postulate of recognised justice, 'the same in the same way, the different in the degree of difference'" (Canaris 1968: 16). The correct legal 82 dogmatic decision, based on the legal dogmatic categories, thus transfers the aspects of justice that have already been verified in the broader context into the individual judgement and enables the judge to 'ennoble' the more particular justice associated with the particularities of the case on a more general level. This linking of justice and legal dogmatic correctness is admittedly based on the premise of formal equality - which must be emphasised when assessing Canaris' thesis - while consequence orientation in case decisions, on the other hand, is aimed more at individualised material equality. The decrease in the tension in legal doctrine in the 20th century in the Western continental states and, on the other hand, the increase in the proportion of consequence-oriented judgements in the 20th century is thus related to the fundamental change in ethical attitudes, which in the last century and a half has given material equality a higher priority than formal equality and the development of the welfare state and its instrument, regulatory law. In any case, Canaris' highlighting shows important connections between legal dogmatics and justice, and a more systematic analysis could probably reveal further shaping according to principles of justice in the construction of legal dogmatic distinctions and categories. This could be expressed as legal dogmatics taking aspects of justice and making them legally operationalisable and emotionally neutral for the judge. Following Canaris, Niklas Luhmann came to this conclusion in a study (Luhmann 1973: 376). A more comprehensive understanding of the character of legal dogmatics results from a consideration of the distancing effect of the text produced by legal dogmatics. Legal dogmatics makes the body of law malleable for the judge. Thus, he can decipher the meaning of a legal text on the basis of a series of underlying logical concepts by relating legal dogmatic principles to each other. Since alternative relationships can be developed in the underlying legal literature, the unmodified legal text can also provide the judge with alternative decision-making options for the individual case. The associated dangers of arbitrary legal reasoning are fortunately mitigated by the system of appeals and, of course, by the fact that in the lower instances, where the vast majority of cases are decided in the first and last instance, the most common interpretations are routinely applied by most judges rather than consulting legal treatises. In the higher instances, it is more common to consult alternative doctrines, but here the binding nature of one's own previous decision-making practice provides the necessary continuity. In the history of legal theory, an important school of legal dogmatics also emerged at the end of the last century with the "objective theory of interpretation", which formulates the effect of legal dogmatics as distinct from the text. One of its most important representatives, Joseph Kohler, described it thus: " Interpretation must penetrate the law in such a way that the legal principles contained therein come to the surface and the individual legal provisions appear as the outflow of these legal principles.... However, legal principles do not always find their way into the law without restriction and without hindrance. It is then the task of interpretation to remove the inevitable confusions from the expression of the law and to develop the incomplete law according to the principles of law" (emphasis mine - P. B.; quoted in Larenz 1979: 36). On this basis, Karl Larenz developed the theory of the "hidden legal gap" and the technique of "teleological reduction" to close it, which can also be formulated as the legal centring of jurisprudential activity on the development of legal dogmatic models against the will of the text and the legislator. According to Larenz, a legal loophole exists when a legal text contains a specific provision for a group of cases, but requires the introduction of an exception to implement a more general legal principle elsewhere in the text. One speaks of a "hidden" gap in the law when the law contains a provision applicable to a specific group of cases, but this provision does not correspond to the meaning and purpose of the law as a whole for this group of cases because the provision has overlooked a certain relevant feature. The gap consists in the fact that no limitation is provided. (Larenz, 362) The judge must then make up for the legislature's omission by inserting an exception to the legal principle by way of "teleological reduction", thus correcting the application of the legal principle to the case in question. To illustrate this model of legal interpretation, reference can be made to a recent case before the Hungarian Constitutional Court concerning the problems related to the determination of parentage (see 57/1991. AB. 6. Magyar Közlöny 1991/123. No. 2452p.). In this case, it was not possible to apply a more general provision of the Family Law Act due to the lack of an exception. This was a prime example of Larenz's hidden legal loophole, and an objective theory of interpretation could have compensated for the "forgetfulness of the legislator". By adopting the common interpretation that better corresponds to the wording, our Constitutional Court finally declared this provision null and void. 83 In the emphasis on the objective theory of interpretation and Larenz, the legal doctrinal order now becomes the real centre of law - and the truly binding legal layer between the legal strata - and the text of the law or the aims of the political legislator can only have a filtered effect in the individual judgments of the judges. In connection with the mention of the aims of the political legislator, the question must be asked to what extent legal doctrinal categories are politically neutral or, on the contrary, to what extent are they simply political categories translated into the language of law and introducing political interests and considerations into law? In the United States, the movement of "critical legal studies" holds that law is politics and that the categories of legal doctrine and their changes are an expression of the state of political struggle and the interests of the socially dominant capitalist group. The kernel of truth inherent in this approach, and at the same time its excesses, can be shown if one separates the shortterm and naked political pursuit of the political interests of daily political struggles from the intellectual objectifications with a longer-term fixation. The separation of law and politics merely means that the expressions of interest and political conflicts of opinion that are given free rein in democracies cannot influence judicial decisions, the conceptual work of jurisprudence and even legislation, but only within the limits of the existing conceptual contexts. But even the more abstract justifications of individual, permanent, larger social groups and the principles and value premises sublimated from them have a great influence on the formation of legal dogmatic categories and their interpretation. An example of the sublimation of political interests as principles is the principle of separation of powers. Its general reason and its generally stated aim is to prevent the concentration of power and the superiority of one group, but in a narrower sense it expresses the empirical interest of groups interested in the status quo, in the preservation of the status quo. The more power is divided, the more formalised the change plans of the political force that wins the election, and usually everything remains essentially as it was. In the sublimated state, however, this narrow interest disappears and only the general argument of "eternity" appears in the emphasis on the importance of power sharing. In this form, it can be said that legal dogmatic categories also contain built-in political preferences, but this does not mean that the daily struggles of democratic political battles have not separated these categories and the legal decisions that guide them. This falls under the "law is politics!" thesis of the American school of thought mentioned earlier. 1.2 Legislation and legal dogmatics Generally speaking, when deciding individual cases, judges are bound by the wording of the relevant laws and thus by the underlying legal doctrinal models, deriving from the text the "jurist" who has jurisdiction over the case. Continuing, the question now arises to what extent the final drafter of the legal text has leeway vis-à-vis the legal doctrinal models, whether in parliament or elsewhere, or to what extent he or she merely "puts on paper" the results of the preliminary legal doctrinal work already done. Historically, three periods can be distinguished in the relationship between the political legislature and legal doctrine and jurisprudence. Before the advent of codification, in the 17th and 18th centuries, legal doctrine was the systematic unification of law and one of the main drivers of legal development in most countries of continental Europe. The codifications of the late 18th century formally marked the emergence of the state's dominion over law, but in terms of content, jurisprudential legal dogmatics persisted in formulating the content of the codes. The Codex Maximilianeus Bavaricus Civilis from 1756, for example, can be regarded as a "legal textbook", as it is purely jurisprudential in character and therefore far removed from practical law. But the Prussian Land Law of 1794 was also the exclusive creation of three jurists, and even the German Civil Code of the late 19th century was - at least in its first drafts - largely the product of jurists, while the Swiss Civil Code of 1907 was the exclusive product of a single jurist (Seiler 1989:117-1120). The actual increase in the role of political legislation can only be observed since the beginning of the 20th century, and where a system of political organisations - i.e. parliamentary multi-party politics - has emerged, which are in opposition to each other and are constantly vying for governmental power, the purely jurisprudential-legal-dogmatic activity loses its exclusive role in determining the field of law. But here, too, the political "legislator" is in fact dependent on the products of the preceding doctrinal-legal-dogmatic activity, since it must intervene in a systematically interwoven web when it 84 enacts or amends laws of a penal, civil, labour, etc. nature. Each relevant part of these laws is harmonised in some indirect way with other rules of the respective field of law. In the age of modern political legislation, the legislator is thus dependent on the preliminary results of legal dogmatics, while the legal dogmatists are dependent on the political legislator to translate their models into positive law. Let us look at this relationship from two angles. We will first try to give a brief overview of the structural connections between legislation and legal doctrine and then illustrate some connections between the abstract overview and the abstract by means of a concrete example. In order to understand the relationship between political legislation and doctrinal-legal-dogmatic activity, it should be pointed out in advance that we are dealing with the different logics and evaluative aspects of two different functional subsystems, whereby the logic of politics - in the type of multiparty parliamentary system, which we have in mind here - is organised around the value pair "being in government/being in opposition" and individual political decisions are determined by this, while the logic of law is organised around the value pair "lawful/unlawful", which is given a more concrete form in a particular area of law by the legal dogmatic order behind the law in force. These two different logics must necessarily be brought closer together to ensure that the logic of politics does not completely dominate legislation, but also that the resulting products are not dictated by a purely doctrinaire legal dogmatic activity. To fulfil this task, a mediating legal-political sphere has emerged in the stable Western parliamentary democracies, involving both lawyer-politicians from the political parties and more politicised law professors from the purely legal sphere. At conferences of law associations, in their journals, etc., competing legal teaching models are selected according to their social impact and presented to the general public - beyond the professional circles. Similarly, a political party that has its own legal experts tries to select de lege ferenda legal proposals that already have a higher level of consensus and tries to find models that are more in line with its party programme and include them in its legislative programme. Through this mutual approach, some of the doctrinal-legal-dogmatic products are brought into the realm of broad political debates, and the factional politicians of the respective legislatures argue about them - while the legal-dogmatic systematist, absorbed in dry monographs and judicial jurisprudence, continues to work on de lege ferenda proposals in academic study halls or while preparing higher court cases. This is, of course, an ideal picture: in many cases, politics, which sees itself as a sovereign legislator, tries to create the legal provisions itself - leaving aside the legal dogmatic proposals that apply to it. However, if this kind of lawmaking is exercised too much, the internal inconsistency of the law becomes fragmented and the legal system becomes chaotic. This in turn becomes a political problem, forcing such a policy to self-correct after some time. Thus, one of the great political opportunities for opposition parties' legal politicians to attack the ruling parties is precisely to publicly denounce such problems. Cf. e.g. the attacks of this kind by the former CDU secretary-general Heiner Geißler against the Social Democrats at the end of the 1970s, who, as the governing party, were confronted with the Federal Constitutional Court in a number of cases, which the CDU legal politician knew how to instrumentalise as "proof of the deep unconstitutionality of the Social Democrats" (Geißler 1978:156). The legislature cannot, therefore, drag out the legal dogmatics underlying the relevant provisions with impunity. Let us now consider an example from the theoretical criminal law literature that illustrates the relationship between legal policy alternatives and legal dogmatic models. This example takes as its starting point a new trend in the criminal law literature, described in the German legal literature as a turn towards a "victim-oriented legal dogmatics". In the recent literature on criminal law theory, three major legal dogmatic alternatives can be distinguished that have shaped and continue to shape criminal law in recent decades. The greatest consensus has developed in recent decades on the question of general prevention through criminal law and the resocialisation of offenders for this purpose. As an alternative to the spectacularly failed efforts to reform offenders and achieve the opposite effect of criminalisation and socialisation in the context of deprivation of liberty, there is a trend towards two newer models of criminal justice. One of them, which accepts the impossibility of re-socialisation as a reality, places retribution at the centre of the institutional system of criminal law (see the clear explanation and confirmation of this statement in Hungarian in the dissenting opinion of András Szabó, judge of the Constitutional Court, in AB 23/1990). The latter alternative is to shift the focus away from general prevention to the prevention of "future victimisation" and to put the focus on the victim of the concrete case, the reparation of the victim's harm as far as possible and thus the active participation of the concrete victim in the criminal proceedings (Seelmann: 1990:160-165). One of the most important effects of this development is that 85 the reconciliation of the offender with the victim and the reparation of the damage caused by the offender is upgraded in some way in the criminal proceedings and allows for the discontinuation of the proceedings or the suspension of the imposed sentence to probation. Conversely, the powers of the public prosecutor are devalued compared to the powers of the victim and his or her lawyer to initiate proceedings. Another change is the shift to a victim-centred jurisprudence in which compensation for harm done is institutionalised as a sanction in its own right, as was introduced in England and the United States in the early 1980s (Seelmann 1990:162). This "de-civilisation" of criminal law also means that the potential responsibility of the victim and the role his or her behaviour played in committing the crime are now also taken into account. Another effect of this kind of legal dogmatic alternative is that the active participation of the victim in the criminal proceedings becomes possible and necessary. In addition to the prosecution, the victim and his or her lawyer are also given farreaching decision-making rights in the course of the criminal proceedings (e.g. in the United States this is an important dogmatic change in the case of economic offences). The relationship between legal doctrine and legal policy is thus well illustrated by these three dogmatic alternatives in criminal law. The elaboration of each alternative requires a detailed overview of all criminal law, both substantive and procedural, and the elaboration of the solution models required for each alternative, which can only be done by a criminal law dogmatist with conceptual understanding. Only after this legal dogmatic work has been completed can a legal policy decision and the transition to an alternative model to the current one be considered. Otherwise, the mass of contradictory influences would soon throw criminal justice into chaos. 1.3 Logic and evaluation in legal dogmatics Legal dogmatics was developed most clearly in German legal thought in the second half of the last century, and it is from there that the image of legal dogmatic work, which is widespread in legal scholarship today, originates. This in turn made the classificatory-logical features of legal doctrine exclusive, and the image of the "subsumption" of the application of law under legislation built on such logically clear concepts emerged in this context. We have seen this image of legal dogmatics in both Luhmann and Josef Esser, and this image emerged not only at the level of theoretical considerations, but also - in the period of pan-didactic jurisprudence at the end of the last century - as an insight that largely shaped labour law. Codifications written by pure jurists were recognised in this period as models for a unified system of concepts and pure derivations, which were, however, of very limited use in solving real social problems. (When the first draft of the German Civil Code, mainly by the great candidate lawyer Windscheid, was published in the 1880s, practising lawyers and judges were horrified to discover how far removed from practice this draft was, cf. Larenz 1979). As is well known, this led to a strong rejection of "conceptual jurisprudence" in continental legal thought and a turn towards liberal law and the sociology of law. But even without this strict rejection, there were efforts to address the problems of a purely classificatory legal doctrine. An example of this is the legal theory of Karl Larenz, who wanted to move from a conceptual legal dogmatics to an evaluative legal dogmatics, as a variant of the dogmatics of the late 19th century. In this, the separation of the three categories "concept", "type" and "general clause" fundamentally helps him. Let us briefly look at his reflections on these topics. If the legislature wants to define the facts to which the provision attaches the legal consequences in a conceptually precise manner, it must, in contrast to a standard formulation, cover all conceptual features. "A term is so established by its definition that it is always applicable to a particular transaction or state of affairs when all the conceptual features of the definition are present. This is not the case with writing. The presence of some or all of the characteristics listed in the description of the type is not essential; they may be present in varying degrees in individual cases. They can often be divided into grades, and to a certain extent one characteristic may be interchangeable with another" (Larenz 1979: 200). In the case of a type, therefore, what matters is not the individual conceptual features, but whether the case as a whole corresponds to the type that is recorded as a fact in the legislation. It follows that the individual case cannot be subsumed under such a law, but that the judge must assess the conformity of the case with a certain type. On the other hand, he must match the exemplary enumeration of the characteristics of the type and the overall picture derived from it to the specific case in order to decide the question of conformity or deviation. 86 Larenz rates the looser type of fixation better than the conceptual fixation of facts, because in the case of conceptually precise factual features, the real cases usually lie outside the conceptual features; quite a few are missing, and a number of additional factual features go beyond the conceptual description of the legal facts. Ultimately, this only creates an "appearance of precision" in which the judge is always forced to "mime" the subsumability of the facts of life under the rigid elements of the offence. On the other hand, Larenz points out that after a series of clarifications of the facts established in types - which is only possible in the course of the emergence of a mass of court cases - it is often possible to arrive at a conceptual fixation. In this way, the fixation of facts in types can also be understood as a preliminary stage to conceptual precision. The "relaxation" goes even further by moving away from the concept when the legal instrument no longer defines types but merely applies general rules. These include, for example, the "reasonable period of time", the "good cause" or the "reasonable relationship" between performance and consideration. Here the legislator only provides an abstract value criterion that does not contain any conceptual elements, and only a skilful clarification of judicial casuistry can subsequently give them a normative content, or the "legal sense" of general legal consciousness supports their application (Larenz 1979: 203). After analysing this triad, Larenz attempts to supplement the purely conceptual legal doctrine of the last century with a legal doctrine that works with types that enable evaluation. In this direction of development, he has succeeded in overcoming the timelessness of legal dogmatics by avoiding the trait of the legal liberal and legal sociological schools, which reject the entire conceptual context of law for the same reasons. Josef Esser attempts to reconcile the conceptual version of legal doctrine and the evaluations required by jurisprudence in a different way. He adopts the image of a classificatory jurisprudence that emerged towards the end of the last century, but furthermore places the evaluations within the jurisprudential themes (Esser 1956: 310). The legal themes revived by Theodor Viehweg in the early 1950s are formulated by Esser as "normative fixations of the first order" in judicial practice, as judicial maxims that develop in accordance with judicial legal socialisation from the interrelated principles of comprehensive law on the one hand and case justice on the other. In Esser's formulation, legal dogmatics - understood in the original conceptual-classifying sense - then assumes the role of a subsequent selector of first-order normatives, a conceptual clarifier and thus a systematiser of these normatives in law as a whole (Esser 1956: 313-315). In contrast to Larenz's extended evaluative legal dogmatics, evaluation thus slides into the field of legal topics and legal dogmatics remains the field of conceptual systematisation. In other words, the field of logic is narrowed for the scholar and only the possibility of evaluation is opened for the judge. Larenz's triad - concept, type, general clause - can also be a good starting point for exploring the possibility of a dogmatics of fundamental constitutional rights. A conceptual clarification is hardly conceivable in this area, and a typological definition of the facts is also only possible to a limited extent. Basically, it is only in the void of the general clause that fundamental rights are included in the constitution, and the Constitutional Court is granted the right to declare simple laws, formulated in a conceptually or at least typologically precise manner, null and void on the basis of these rights. In constitutional court practice, the general clauses can always be filled out with internal, clarifying maxims for certain groups of cases that arise, but their edges and contours must always remain contentious when assessing the merits of subsequent cases. Thus, the doctrine of fundamental rights cannot achieve the precision that Larenz's evaluative legal doctrine gives to types, and on the other hand, such precision always leaves more room for evaluation by constitutional judges. Logic (drawing compelling conclusions from the provisions of the constitution) is only marginally apparent here; rather, the consensus of fundamental rights jurists provides the framework for a freer assessment of the decisions of the respective constitutional judges. However, the norms and maxims of fundamental rights jurisprudence, which "legitimise" the general rules, offer a certain predictability in the assessment of fundamental rights. Those fundamental rights, however, which themselves elude such clarification (e.g. the inviolability of human dignity, the "right of the individual to free development of his or her personality", etc.) are beyond the law, and a legal consensus on their normative formulation in individual cases is inconceivable. 87 2. The legal topics By analysing the historical reasons for the dominance of the legal class or, conversely, the judiciary, or the varying degrees of their attachment to the legal text in different legal systems, useful insights could be gained for a more comprehensive understanding of the structure of law. Another approach to the same problem is to analyse the relationship between current and systemic thinking within law. In the theoretical and methodological reflections of the continental legal systems, topical thinking adopted from Roman legal thought was finally defeated by the middle of the 17th century, only to be all but forgotten in the 19th century under the dominance of conceptual jurisprudence, the polar opposite of it, this centuries-old tradition. The idea of a return to themes as a possible way out did not even appear in the writings of the free jurists or legal realists who later opposed conceptual jurisprudence. In the last century and a half, legal topica, which had finally fallen into oblivion, was at best the hunting ground of a few eccentric legal historians when, in 1952, Theodor Viehweg, with a comprehensive theoretical claim, once again highlighted it as a form of legal thinking equal to, and in some respects even superior to, the dogmatic-systematic kind (Viehweg 1953, 5th revised edition 1973, used here). In the two decades after its publication, this book was one of the most controversial works, especially in Germany, but also influenced legal thought in most countries when it was translated into several languages (cf. Ballweg 1982: 14). Among the authors analysed in this volume, Josef Esser and Martin Kriele have taken Viehweg's reawakened relevance in different directions. The focus on topicality and thinking in legal systems can reveal new aspects of the inner aspects of the professional institutional system of law as well as the limits of its detachment from everyday thinking. This is the focus of this section of the chapter, but since Viehweg's topical revival has been largely left out of analyses of Hungarian legal theory literature in recent decades, it seems worthwhile to first briefly summarise his thinking and the main criticisms of it. 2.1 The changing role of the legal topics in history To briefly summarise the relationship between systematic thinking and topics, Aristotle should be mentioned first. He developed the logic of apodictic (necessary) deduction and then reverted to the Sophists' favourite method, dialectic, based only on probable premises. These he called topics, and by enriching them with his own doctrine of narrow logical deduction, he integrated topics into the structure of his logic as a secondary method of argumentation. The theme popularised by Cicero became a central element of Roman intellectual life, the ars inveniendi (art of argumentation), and was part of legal and general education for many centuries thereafter, until the end of the Middle Ages. Within legal thought, the work of the glossators, who revived Roman law from 1100 onwards, and then the post-glossators, relied on topical thinking, and it was only from the early 16th century that this was countered by a general rush into legal topics, sporadically at first, then within general philosophical and logical thought, following the turn to axiomatic logic. By the next century, the debate within legal thought had been settled, and the streamlined systematic form of thought developed at the philosophical level took the place of legal topics (Otte 1970: 190-194). The centuries-long attraction of legal thought to topicality becomes understandable when one realises that Aristotle considered apodictic logic applicable if the premises are true, and that precisely as an aid to decision-making in many areas of life he resorted to the topical mode of argumentation attacked by Socrates and Plato (Viehweg 1973: 18), the characteristic of which is that the truth of the underlying propositions is not verifiable but is generally held to be true. In order to facilitate such "conjectural" statements of truth, Aristotle attempted to systematise some general aspects that , while not providing apodictic premises of truth, can make the truth of certain propositions or the presumed falsity of certain propositions more or less probable. The latter became important for Cicero when, at the request of his lawyer friend Trebatius Testa, he tried to make him understand Aristotle's themes. It is a book with which one can support every assertion in some way", he answered his friend's question when he saw the book). With Cicero, issues became a "recipe book" in which the debater who mastered it could find some kind of argument (pro or con) for every argument that came up. Here, the formerly subordinate role of topics disappeared alongside tight logical argumentation and it established itself as a natural form of educated thought 88 (Viehweg 1973: 26). The basic problem of thematic thinking is that the premises and approaches to the subject matter are highly interchangeable, and especially someone who has worked his way through the thematic catalogues can draw a number of contradictory conclusions about one and the same subject matter in front of a somewhat less experienced discussion partner - in true sophist fashion - by simply exchanging the premises that are equally applicable to the subject matter. As an example, this is still possible today, let us mention the two rules of legal logic , the propositions "argumentum a simili" and "argumentum a contrario", which were once developed as topos and with which one can lead the argumentation in polar opposite directions. In a case where exceptions to a cardinal rule have been established by law and a life circumstance has occurred that does not fall under the established exceptions, analogy can be used to insert it as a new exception on the basis of the similarity argument, but the argumentum a contrario can be used to argue that the legislature's omission was precisely to indicate that the cardinal rule applies here. In the Middle Ages, there were a number of attempts to eliminate arbitrariness in the use of thematic catalogues. Typical of this is the late attempt by Leibniz in the early 1300s to bring thematic thinking closer to a more rigorous logic by developing the "ars combinatoria" developed by Raimund Lullus, but the ambiguity of the ordinary terms used in the themes doomed him to failure, and in the course of his deliberations to overcome this by developing a precise conceptual language, he finally abandoned thematic thinking and turned to axiomatic logic (Viehweg 1973): 80). Fifty years after Leibniz, Gian Battista Vico was already a lost cause when he argued for the advantages of the current thinking of the "ancients" over the "new thinking" of Descartes. The "new thinking", which tends to be rigorous, wants to recognise only truths that cannot be destroyed by doubt, and then proceeds from these with apodictic necessity. The advantage of the new method of study, according to Vico, if the premise on which it is based is indeed true, lies in its accuracy and sharpness; the disadvantages, on the other hand , seem overwhelming, for they consist in the loss of reason, in the abridgement of imagination and memory, in the immaturity of judgment, in short, in the suppression of the human moment." Rhetorical themes, on the other hand, "... teach human wisdom, the erudition of memory and imagination, and offer a way of looking at an issue from different angles, that is, of inventing a series of points of view." (Viehweg 1973: 17) Contrary to the spirit of the times, Vico's highlights disappeared without a trace for a long time, and the advance of apodictic thinking favoured tense doctrines of reason and axiomatic techniques of thought in all areas of intellectual life. On the path marked out by Descartes, Spinoza and Kant, there was no place for current thinking. 2.2.Revival and critique of the juridical topics The elementary impact of Viehweg's 1953 work lies perhaps not so much in its intellectual originality, but rather in its presentation of an astonishingly unknown dimension of the possibility of attacking rigid legal dogmatics. For these attacks, beginning with Jhering in the second half of the last century, and then by the various schools of legal sociology, the liberty rights movement, legal realism, etc., did not challenge the logical basis itself or the inherent disadvantages of conceptual jurisprudence, and the arguments of the attacks, repeated in waves, lost their intellectual originality over the decades. Viehweg's counter-arguments, on the other hand, challenged the entire foundation of modern continental jurisprudence, which had not been disturbed for 200 years, by placing the subject at the centre and, in order to eliminate its oblivion, reconstructing it historically. In his original version, Viehweg denied the possibility of systematic dogmatics within all legal science and presented current thought as its substitute. It was precisely this exaggeration that gave him his provocative and astonishing power, and in his wake a process of unification, or even antagonism, began in the legal theoretical literature. His lasting reintegration into legal thought, however, was achieved by taming the legal doctrinal system in an attempt to find a place for legal themes in the structure of continental law. Viehweg himself later softened his early thesis of the incompatibility of topicality and systems thinking in a series of shorter essays (e.g. Viehweg 1968), but the inclusion of topicality became properly effective in the thematisation of Josef Esser, who monographically presented the process of the emergence of topical maxims, parömias, legal principles and norms and their dogmatic reworking from judicial casuistry on the basis of extensive empirical material (Esser 89 1956). After Viehweg had already pointed out the logical limits of legal dogmatic systematisation, Esser was able to take up a series of legal phenomena on this theoretical basis, which offer the judge a point of reference in the sometimes quite large gaps in dogmatics, but also the possibility of controlling his judgements. Alongside these topical maxims, norms also play such a role. Their function is "... to enable the judge to determine the norm, subject only to the constraints of non-codified principles of value and under the judge's control only, while establishing extra-legal but nevertheless 'objective', i.e. conventional norms, which occur with varying frequency and are based on a variable empirical foundation." (Esser 1956:150) The norms of the "bonus et dirigens paterfamilias", the " merchandise customary in trade", the "industrious trader" etc. do not lend themselves to a legal dogmatic compulsory conclusion in individual cases in life because of their fluid boundaries, but insofar as these types are encountered with sufficient frequency in life, a legal regulation based on such norms is more than the application of empty generalities and makes the judgments applying them controllable. Continuing the Viehweg-Esser line, Karl-Heinz Strache clarified norms as a technique of typification alongside conceptual classification. Norms refer to normative forms of everyday life. Conceptual classification necessarily obscures the transitions between the phenomena of everyday practice and, by fixing the specifics of difference, only thematises them from their other side. Typologies, on the other hand, are better able to take transitions into account (Strache 1968: 23; Teubner 1971: 48). In addition to ideal types, which can be used in scientific thinking , norm types, i.e. the norms that realistically occur in everyday life, are particularly important in labour law. In trade, the "unfairness" of competition, the limits of "abuse of rights", norms that have recently come to play a central role in constitutional law, such as "proportionality", "overreaching", etc., Waldemar Schreckenberger has even attempted to develop a more precise typology of constitutional norms, and where conflicting norms appear - such as the rule of law principle and the welfare state postulate, which in most cases requires contradictory consequences - the rhetorical competence of the constitutional court, which judges on the basis of these norms, is greatly expanded. "The decisionmaker's rhetorical competence depends on the degree of diversity of the topos for situational problemsolving." (Schreckenberger 1978: 362) What was written earlier about the constitutional court jurisprudence on fundamental rights can be clarified here to the effect that the subsequent clarification of fundamental rights such as the right to equality or the "protection of human dignity", which represent a gap in the general clauses, means above all the development of such norms for a group of cases, in addition to the implied dogmatic insertion. They keep the "rhetorical competence" of the Constitutional Court broad, but also make the predictability of the judgments of the Constitutional Court based on them more precise than the original constitutional text. We believe that Claus-Wilhelm Canaris, following Esser, has developed the components of systematic legal doctrine and legal theories for modern continental legal systems in a theoretically sound manner. In a number of statements, Esser, in his opposition to legal positivism and legal dogmatics, which rigorously deny the contribution of the judiciary, tends to deny the role of jurisprudence in the systematic activity of practical law. In a few places in his writings, a more nuanced position is found as an "unofficial" version of his theory, and here he considered a systematic legal dogmatic revision of the current maxims, parms and norms of judicial casuistry necessary (Esser 1956: 311-318). Canaris, a student of Larenz, considered this to be Esser's authentic position, and consciously aligned with it, he developed a principled acuity in the relationship between legal dogmatics and issues. Canaris shows that Viehweg's more recent efforts to incorporate legal themes into a comprehensive system demonstrate that there is a qualitative leap between topics and systems thinking, and that abandoning it does not make these efforts promising. "More recently, Viehweg has resisted the interpretation that his attacks were directed against any kind of systems thinking in jurisprudence, and he has now explicitly formulated his critique of the use of 'deductive systems'.... , explicitly linking topics and systems thinking into a 'topical system'.... Such a procedure, however, is contradictory, for a procedure that abhors constraints, that seeks only to give clues, and that is essentially oriented only to the narrowest formulated individual problem or even individual case, ... can never satisfy the idea of unity and the idea of an inner system and thus the basic condition of the concept of system. For Viehweg is not concerned with the few general principles that constitute the unity of a field, but with a multitude of more or less arbitrary aspects..." (Canaris 1968:134.) It was worth quoting Canaris at length because here he vividly sums up the basic problem of current thinking as well as his own idea of overcoming it. For Canaris sees in the phase of revision from topos to general principles of law the qualitative leap with which he fends off Viehweg's attack 90 on the systematic legal thinking of the last two centuries. On this theoretical basis, Canaris finds the place of current thought in the structure of law in the gaps of systematic legal doctrine. In private law, which is dogmatically systematised, they therefore help above all to fill in the general gaps, but in constitutional law, for example, which lacks dogmatics in many respects, their role can be particularly important. He points out, however, that topical support is only a preliminary stage of juridification and that there are compelling tendencies in continental law to move in a generalising-abstract direction towards a more rigorous legal dogmatic system (Canaris 1968:150). As for the disadvantages, the most decisive is the undeniable arbitrariness of the choice between the maxims that emerge. "For the theorist, the possible solutions to a problem stand on an equal footing. In the current mode of thought, which consists only in the aggregation of the points of view arising from argumentation, it is not possible to decide which solution should be given priority." (Diderichsen 1966:703) In the case of compensation for damage caused by a car accident, for example, the following topos arises: 1. the judge can pay attention to whether the driver is at fault; 2. he can also assume that in the case of a dangerous instrument such as a car, compensation does not have to take fault into account; 3. it is no less likely to introduce considerations of justice if the judge takes as a basis the differing financial circumstances of the driver and the injured party; 4. he can take into account the different financial circumstances of the driver and the injured party; 5. he can take into account the different financial circumstances of the injured party; 6. he can take into account the different financial circumstances of the driver and the injured party; 6. he can take into account the different financial circumstances of the injured party. but he can get a good argument against it with the maxim "the law knows no difference between rich and poor"; 5. the judge can also ask to what extent the injured party himself was to blame for the accident; 6. whether the accident was caused by an irresistible influence; 7. Whether the injured party was insured may be central to the assessment of damages in a particular case; 8. The fact that the state takes responsibility for the person by allowing the use of such dangerous means may also be a new consideration in some cases. (Cf. on these aspects Canaris 1968: 143.) Those who have been socialised in the aspects of the legal dogmatic systematisation of the last 150 years are of course familiar with the solutions for the choice, emphasis and subordination of these aspects, but in a legal system based on current maxims, the choice between them can only be made on a case-by-case basis and thus largely arbitrarily. Gerhard Otte presents the arbitrariness of current maxims and the possibilities of overcoming it from a different perspective by separating comparative and classificatory theorems. In many cases, one can choose whether to formulate a decision criterion comparatively or classificationally. The formulation in the classificatory mode is more precise in its own way, but if one wants to use it in a broader sense, one is forced to use a vague term. In contrast, a single element in a comparative formulation is not very meaningful in itself, even if it can use a more precise term, because it is not localised due to its formulation. The referential character of the comparative formulation, however, makes it possible to combine several such sentences, on the basis of which it is then possible to mutually clarify sentences that are empty in themselves (Otte 1970: 195). Otte's suggestion, then, is that our sentences of comparative formulation should be interconnected rather than sentences that use obtuse terms and therefore only appear to be classificatory. Having said all this, it seems to me more urgent to construct a moving system of comparative theorems than to work on a thematic revival of problem solving' (Otte 1970: 195). Wilburg's "movable system" of legal principles thus appears here again as the right middle way between themes and a rigid dogmatic system. Waldemar Schreckenberger, a representative of the rhetorical school of legal theory, has developed a similar substantive distinction as Otte in his analysis of constitutional court decisions. He distinguishes the basic approaches underlying certain parts of constitutional court decisions as "holistic" or "topical-rhetorical" interpretations. The essence of holistic interpretation is that the Constitutional Court considers each constitutional provision in the light of the "fundamental decisions" of the Constitution as a whole - which of them can be considered fundamental decisions and how they relate to each other is for the Court to decide - and the Constitution as a whole thus provides the conceptual context that determines the precise content of each provision in a particular case: ".... the court ... takes the provisions out of the context of the constitutional text and reintroduces them into the interpretation of the constitution by shaping them into a general scheme." (Schreckenberger 1978: 172.) (In Otte's case, this was expressed in a broader formulation of current maxims on comparative law principles, taking the legal principles from a loose juxtaposition to a Wilburgian movable system). Schreckenberger then goes on to discuss the decisions of the Federal Constitutional Court in which the court abandoned the interdependence of fundamental rights and developed them only on the basis of situationally applied maxims (Schreckenberger 1978: 317-363). It can be said that in constitutional 91 law, unlike in most areas of continental law, topical thinking is still present almost on an equal footing with dogmatics and does not play a subordinate role. Since the constitutional jurisdiction and the commentary and development staffs behind it come from the legal profession and a large part of the members of the constitutional jurisdiction also come from the judiciary, a more systematic constitutional dogmatics is likely to prevail in the future. This is Canaris' solution, which one can agree with in principle, but which must be supplemented in the overall structure of law by a reference to the role of current maxims and guidelines in the field of legislation (Walter 1971:134). As already indicated, in the dogmatically systematised areas of law, the freedom of political legislation is severely restricted and is essentially reduced to a choice between various alternative models of regulation put forward in jurisprudence, weighing the different effects of these models on the interests of different social strata. This choice is only possible through legal policy and the staffs of policy scholars who mediate between the different policy platforms and jurisdictional models. The arguments of the legal subjects provide plausible arguments for the debates here, for the adherence of the political legislators to different models, for their support of these models - or also for their criticism from the other camp. To conclude a description of Viehweg's themes and some of his criticisms and further developments, some of the most frequently used topical maxims are listed here. e.g. "jura scripta vigilantibus" (laws are written for the vigilant) is argued in several places when regulating the various limitation periods, "in dubio reo" (in doubt for the accused) in several places when regulating criminal procedure, or "ne ultra petita" (the judge must not go beyond the claims of the parties) when regulating civil proceedings; "negantis nulla probatio" (the one who denies an allegation is not obliged to prove it, but only the one who alleges it) also provides guidance in the regulation of proceedings; "voluntatis vel affectionis aestimatio non habebitur" (a damage not existing in money cannot be compensated in money); "no contract may be concluded to the detriment of a third party"; "what is not expected may not be demanded"; "de minimis non curat lex" (the law does not concern itself with trifles); "contra minorem non currit praesciptio" (the limitation period does not run for a minor); "prior tempore potior jure" (the earlier, the better legally protected), etc. (Struck 1971: 21-23; Liebs 1983). 2.3 Legal topics and the professional institutional system of law For our overall theoretical framework , the timeliness of the connection of the topics with "common sense", with everyday wisdom, is particularly important. In constructing this framework, we have assumed that law as a professional institutional system forms an internal unit of meaning and that separate professional staffs emerge from everyday life to attend to it, just as they are separate from the evaluative dimensions of other professional institutional systems. The current maxims make use of the distinctions and semantics of everyday thinking and communicating; their standards take up the mass of norms (the "careful merchant", the "reliable civil servant", the "careful family man") and standards (the "good merchandise customary in trade", etc.) of everyday life as the basis for legal judgements. A legal space that relies entirely on such maxims - in making its rules and applying them to individual cases - does not allow for professional emergence from everyday life, even though the process of setting norms in a legal space based on current maxims presupposes an already specialised legal staff. We have seen that, for example. In the medieval German legal sphere, these specialists were the lay judges and later, through the "referral procedure", the university professors who were regularly involved in practical law, and the role of the judge, unfamiliar with the law, was for a long time limited to reading out judgments and directing their execution; in French, on the other hand, the figure of the jurist who specialised in law appeared in the layer of judges, and in English the barristers and the judges elected from among them together formed the layer of jurists. But even in this form, this layer of jurists was primarily oriented towards the justice aspects of daily life and pronounced the law in a given case on the basis of these judgements or developed a standard body of current maxims loosely connected to these judgements. The legal sphere as a professional institutional system emerges when, beyond the case-related justice aspects of everyday thinking - which are generalised to an abstract level and the justice aspects are considered in the light of the overall context of emerging current maxims and the most appropriate ones are highlighted - the dimension of rightful/wrongful evaluation dominates and the other such 92 dimensions (economic impact of the consequences of the judgement, aspects of political priorities, aspects of scientific truth, etc.) fade into the background) can only function through this prism. As already mentioned, the legislative sphere appears in this thematisation as a mediating mechanism between the functioning legal sphere and the political system (or science, the sphere of production, etc.), in which the other dimensions of evaluation can be equally present alongside the dimension of right/injustice (in the dogmatically covered sphere, this can consist of a choice between different dogmatic alternatives). In this context, special attention can and should be paid to the aspects beyond the legitimation/illegitimation dimension, but they can only play a subordinate role within the functioning legal sphere. Of course, this always presupposes that society changes only gradually and that the existing laws and their dogmatic models are adapted. We have seen the failure of the French Code Civil, created at the beginning of the last century, and its consequences, or else the fate of the German Civil Code, which underwent drastic changes after the First World War when some general clauses took its place and jurisprudence subordinated the actual content of the text. Similar signs can now be observed in the Hungarian legal sphere, where the same penal code is often applied by the prosecution with polar opposite prosecution practices - and the existing text is considered essentially unproblematic - manipulated by the empty formula of "danger to society", due to the radically changed political system. In modern continental legal systems, on the other hand, political legislation, the entire legal dogmatic system structure and the judicial casuistry cooperating with it normally function more or less smoothly with the dimension of right-unright evaluation in jurisprudence, which has risen above the diffuse evaluation aspects of everyday life and is becoming uniform. The legal sphere based on current maxims cannot establish this salience and essentially remains in the intellectual context of everyday thought. This does not change when the legal stratum in a country is internally closed, as was the case in the development of English law. For many centuries, the English legal system was characterised by a legal service strictly tied to everyday thinking, which has only been loosened somewhat in recent decades by attempts to create a more comprehensive system. Despite this attachment to everyday life, the English legal profession was hermetically sealed off from the outside world by the guilds of barristers who, on the one hand, controlled the recruitment of their junior staff, legal education and, on the other, the "recording" of the law and had a decisive influence on the staffing of the courts (see Dawson 1968; Allen 1964). The difference between the closure of the guilds and the emergence of a professional institutional system that remains in the intellectual context, evaluations and semantics of everyday life can be illustrated by a comparison with the English legal sphere. In the world of the social, after the emergence of societies of great complexity, it is less and less possible to conceive of individual social entities in terms of groups of people, although the reflections that are part of everyday thinking tend to be naturally foreshortened, even in contemporary scientific theories. These groups of people are only the bearers of the real substance of the world of the social, of intellectual relations: Semantics, forms of thought, values, principles, cognitive and normative mechanisms based on them. These mentalised forms are embedded in people through socialisation mechanisms, and the institutional systems of modern societies operate through motivational mechanisms (evaluation, reward, sanction) that use their personalities. However, their closure is no longer based on the systematic closure of groups of people, but on the systemic closure of the mental contexts that connect them. This theoretical solution distances itself in its basic features from traditional social theory in the same way as Luhmann's radical solution, which excludes the individual from the world of the social. In a certain way, then, Antony Giddens' concept of the "doubly bound structure" emerges here (Giddens 1984), which in the case at hand only makes it possible to separate, on a conceptual level, the zünftige Schließung within the legal sphere from the system formation beyond it. (Another example in quite different circumstances would be the closure of the scientific sphere in the Stalinist era of social organisation, when, while abolishing the actual scientific dimension of evaluation, a more rustic closure separated this sphere from the rest of everyday life and passage was only possible to the ideological-power-political sphere). The dominance of actuality in a contemporary legal system can thus be understood as a particular distortion of emergence from everyday life. The optimal case, on the other hand, is when the legal doctrine of the unity of meaning dominates, thereby creating the autonomous binary code of the professional institutional legal system, the centrality of the lawful/unlawful. Topics then become, according to Esser-Canaris' solution, a preliminary stage of this, a preparatory activity for the development of the dogmatic material of new areas of law. Seen in this light, the topicals can be integrated into a typology that observes the emergence of the legal sphere in different countries from the everyday life of the world from the point of view of possible distortions. A harmonious emergence is very rarely observed, and one-sidedness is more likely to be found in 93 the actual historical processes, after which only subsequent corrections, solutions that resolve individual one-sidedness through mutual acceptance, have created complex, multi-layered legal systems in modern societies in recent decades. Thus, the emergence of the German legal sphere from everyday life has been overly integrated into the academic system through its incorporation into the academic sphere. The German conceptual jurisprudence of the last century and its striving for a strictly scientific law can only be seen as the final stage of this process. Its product, the BGB, was a problem for practice for a long time because of its abstract-generalising formulation and regulation, but especially when the first draft of this code was published - mainly the work of Windscheid, the greatest representative of Begriffsjurisprudenz at that time - even some legal scholars who admired the rigour of Begriffsjurisprudenz were surprised by its abstractness (cf. Gény: 1917b: 544). Practical law, which followed logic, semantics and the attitudes of science to the extreme, proved inapplicable in real life. Another distortion occurs when the formation of the legal system from everyday life becomes too embedded in the political system. In legal theory, this has been condensed in legal positivism. In the few decades after the French Revolution, it became relatively evident and was then replaced by the "mimesis" of binding the law to the legal text, as shown in the previous chapter. In the Eastern European countries , a legal model integrated into the sphere of power was also implemented in the course of the Stalinist organisation of society, and here too the legal theory of law condensed into a specific text positivism. The legal sphere based on current legal education and application ultimately emerges as a legal system that remains in the intellectual context of everyday life and is organised there with a guild-like closure. The relatively pure implementation has, as said, arisen through the history of the English legal sphere and has only been loosened somewhat in recent decades. The relationship between the different strata of the legal profession and the shift in dominance between them has thus proved central to the analysis of legal issues. The legal sphere as an intellectual system - and thus as a professional institutional system - that rises above everyday life can only be realised if there are specific constellations between the strata within the legal profession. In individual areas of law, the dominance of a single legal doctrine and the supreme courts administering it (as in France) or of a layer of jurists (as in Germany) over current maxims can best ensure this. However, excessive dominance can lead to the distortions mentioned above. 3. The law and the legal system The connections between the internal structure of the legal profession and the activities of the legal profession have already been partly shown in earlier analyses. A deeper exploration of the structure of the law now requires a more systematic approach. The self-organisation of the judiciary, or on the contrary its greater political subordination, is determined by the existence of a large and self-contained prosecution service within the overall structure of the bar, or on the contrary by the constant mobility between the prosecution service and the other legal professions, or on the contrary by the fact that there is no separate prosecution service at all and that lawyers perform this function. Equally important is the position of the judiciary within the legal profession and the form of its relations with the public prosecutor's office, the legal profession and academia. The next important point is the internal structure of the bar. Is there a single layer of lawyers in the bar in a country, or is it divided, and if so, to what extent are the layers of lawyers in the bar compartmentalised from each other, and to what extent does the state control each layer of the divided bar. The question of academic lawyers has so far only been considered in the context of the impact of jurisprudential and legal dogmatic activity on the functioning of the legal system of each country in the course of its historical development (i.e. to what extent the academic pre-formalisation of the respective legal system has taken place in the meantime). 3.1. The professional lawyer Historically, the separation of the legal system from the diffuse evaluative aspects of everyday life and 94 its functioning as an intellectual system in its own right was brought about by the emergence of the figure of the qualified jurist and its spread in the legal service. The judge, the trustee of the king or the municipal authorities, or the procurator, the legal adviser (lawyer) who assisted and represented the litigant, was not a trained jurist in any European country for a long time, and in this state law and the administration of justice were hardly separated from the other activities of the royal court or urban life. The initial process of separation of law in continental Europe generally began with a kind of compilation and codification of scattered customary laws and judicial decision-making practices. After the creation of urban collections of law or nationally organised codes of customary law, such as the three-volume Hungarian Werbőczy Code, it was only possible to adjudicate or effectively assist litigants on the basis of more thorough knowledge. The courts, which were composed of laymen and mere confidants, and the public prosecutors who assisted the litigants, were less and less capable of dispensing justice after a certain stage of development of the body of law. And the training at the universities of Italy, southern France and Germany, where Roman law was taught, enabled only a small number of people from a number of countries on the continent to come here, and where, on the other hand, Roman law was only partially received and the law was based on the systematisation of local customary law, the knowledge of those trained in Roman law was of little help. The dominance of the figure of the trained jurist and the exclusion of the layman from the legal profession took different paths in the countries of the continent. In the German territories, where the adoption of Roman law and the foundations of the administration of justice were most clearly and fully developed, the professionalisation of the administration of justice began at the level of the lower courts with the development of the "referral procedure" already described and the staffing of the members and lawyers of the higher courts with jurists (cf. Bónis 1972:110-119). University professors were thus placed in a key position in the administration of justice vis-à-vis lay judges and sitting judges, either by appointing university professors directly as judges in the higher courts and by requiring that lawyers working there be licensed. Towards the end of the 16th century and even more so from the beginning of the 17th century, however, only university graduates of all levels were increasingly appointed as judges or worked as lawyers in German courts (Králik 1903:162). The qualification of a praetor, which was lower than that of a lawyer and had only a pre-court function, did not require a university degree, but was acquired through "apprenticeship" with a practising praetor. It should be noted that this duplication of lawyers was common in all countries of the Middle Ages, including Hungary, and that the lower procurators (attorneys in English, later solicitors, procureurs in French, etc.) were called not only "avocats" but also "avocats".) was also necessary at that time because, in addition to general illiteracy, the parties were usually not able to read and write at all and therefore, in addition to the lawyers (avocat, advocat), who were the "legal experts", the lower procurators directly represented the parties solely on the basis of their literacy skills, formulated their claims in the first instance and received the lawyer and went with him to court on behalf of the party, where he further formulated the case as a legal claim. Later, the generalisation of literacy and the rise in educational levels made this dual representation in litigation - the presence of a purely reading person alongside the actual lawyer - superfluous, and e.g. in Prussia it has not existed since the mid17th century, in French the dual role of avocat and avoué was abandoned at the end of the 1960s, and only in English are barrister and solicitor separated to this day, but here too there was a reform at the end of the millennium. In the Hungarian legal system, the figure of the professionally trained jurist could only establish itself later. In Hungary, the professionalisation of the judiciary through the involvement of universities was not possible, especially since the first Hungarian law school in Nagyszombat did not operate unhindered and continuously until 1711. The few judges who were able to prove their Roman legal training in the national courts or in the service of the cities were only a minority of those involved in the administration of justice. But domestic law was in any case only partly based on Roman legal concepts and rules, so that their training was only of limited use for the domestic administration of justice. The obligation to undergo preliminary legal training and take examinations was first introduced for lawyers in the mid-17th century, but the office of judge was not linked to legal training until a century later, in 1869 (Varga 1937; Králik 1903:187-207). The first step towards a closed profession was taken on a national level in Hungary in 1694, when Lipót I issued the first national code for lawyers, which prescribed the taking of an oath of office ("patvarkodási oath") before the courts. The oath could be taken before the judges of the royal court, 95 the county and city authorities, and a certificate was issued according to which the person taking the oath could appear as a representative in court. After much opposition, this was eventually put into practice, and in 1724 Parliament made the oath of advocacy a general practice (Act 38 of 1723), and in 1725 the first census of advocates and registration of those who had taken the oath took place. Those who had taken the oath, however, had not yet received any further training: "Those who had gone to foreign universities had acquired theoretical legal knowledge, especially in Roman law and canon law, but saw little use of it in domestic practice. Those who could not afford to travel - and there were many - acquired their profession only in a purely artificial way, through practice, working alongside a more experienced jurist" (Varga 1937:9). From 1711, the well-developing law faculty in Nagyszombat and, from 1740, the law faculty in Eger offered more systematic training for graduates, but for several decades there was no obligation for those working in the legal service to complete it. The systematic regulation of the proceedings of the national central courts and the tightening of the rules of procedure finally forced lawyers to undergo prior training and examination from the second half of the 17th century. For a long time, it was possible to correct procedural errors after the fact by way of so-called "judicial review". "For a long time, procedural errors could be corrected by the so-called 'lawyer's word', but from then on, in the ever tightening procedural order, the error of the unqualified lawyer became more and more fatal. Thus, the consolidation of the new Curia Rules in 1727 had already led to the introduction of a preliminary examination for lawyers, but it was not until the Diet of 1751 that the subject was seriously discussed. At that time, a committee for the reform of the Hungarian judiciary was set up, in the framework of which the introduction of a jurist's examination was worked out for the year 1764 (cf. Varga 1937:13-14). On this basis, the second national bar code was drawn up in 1769, which already provided that only those could be admitted to the bar who, after passing a compulsory internship (or completing their studies), had "proved themselves sufficiently qualified for the legal profession before the royal, the ban or a district committee" (Varga 1937:16). This made becoming a lawyer conditional on passing an exam, but not on attending law school or law school. Those who passed the exam could become lawyers without formal legal training. This was abolished by Joseph II's 1785 decree "on the new legal order", according to which, from 1786, only those who had previously "completed legal studies at one of the universities or academies of the empire and then also completed a compulsory internship" could take the bar exam (Varga 1937:19; Králik 1903:196). This completed the professionalisation of the legal profession, but the judiciary did not reach this stage until a hundred years later. Even then, however, there was a qualification gap to the disadvantage of the judiciary compared to the legal profession, on the one hand because the postgraduate law exam was somewhat easier than the bar exam, and on the other hand because in 1875 a new legal regulation - originally justified by making it more difficult to enter the rapidly growing legal profession - made the practice of law conditional on obtaining a doctorate in law. Previously, a doctorate in law was a very exceptional qualification reserved for those with ambitions to be 'learned lawyers', but now it was made a general requirement. Of course, university professors could not resist the pressure, and it was not the doctorate in law that ultimately limited the number of lawyers, but it became a mass-produced and formalised degree that was easy to obtain. At the beginning of the 20th century, the partially devalued doctorate in law was finally generalised and awarded to all university graduates. 3.2 The public prosecutor's office and the legal profession The public prosecutor's office was an invention of the French Revolution, which placed state power above the law, even though the first forms of criminal prosecution and representation of the state prosecuting authority were established in the Netherlands in the 16th century. In France, on the other hand, these law enforcers with modest powers were promoted to superiors of the entire legal staff at the beginning of the 19th century: The public prosecutor was the head of the criminal police, but also had supervisory powers over judges, lawyers and notaries (Kintzi 1988:87). In today's legal systems, there are major differences in the internal structure of the prosecution, the scope of its activities and its relationship to the other levels of the judiciary. The most striking feature of the French is the closed and decisive role of the public prosecutor's office in lawmaking (apart, of 96 course, from the legal systems of recent decades in Eastern European countries, where the public prosecutor's office was decisively involved in lawmaking during certain periods). Even if the activity of the prosecution in Germany is in some fundamental aspects narrower and less closed than in France, its links to political power and its important role in the administration of justice are still present. The United States can be seen as a transition to a legal system without prosecutors, since although there is a separate prosecutorial organisation, prosecutors are always drawn back into the legal profession, which is the main form of the legal profession. In contrast to France, England is an example of a prosecution service that plays only a minimal role and where lawyers also represent the prosecution in court in simple criminal cases, usually on a case-by-case basis. French jurisprudence is an excellent example of the omnipotence of the state over the law. Here, the state has fragmented the legal profession and, after basic legal training, has introduced longer legal training for those who choose it, separate from the training of lawyers, with strict control over the number of admissions and the training process. Thus, the term "lawyer" itself can only be used with reservation, as it represents a fundamental separation of the legal professions. Among the legal professions controlled by the state, the professions of public prosecutor and judge are privileged, even though the state established the Centre nationale d' judiciare in 1958 as part of the elite system of the "grand école" after a four-year basic legal training at the university, which provides a further three years of regular training for future judges and public prosecutors (Zweigert/Kötz 1971: 139). In Germany, too, there is a strong, centralised prosecution level that is hermetically sealed off from the legal profession, but open to the ministries of justice. An important difference to France, however, is that here the separation only takes place after the completion of the entire legal education. All law students who graduate from law school without dropping out are enrolled in the uniform trainee lawyer programme, which is an eight-year training programme including university, and become "full lawyers" after passing the trainee lawyer exam. Without further training or examinations, you can immediately register as a lawyer or apply to become a judge, public prosecutor or administrative lawyer. However, the number of the latter three is already determined by the state, and only some of the applicants can be admitted. The separation of the German legal profession from the other, otherwise uniformly trained parts of the legal profession also creates walls. There is no path from the bar back to the public prosecutor's office or the judiciary, although formally there is nothing to prevent lawyers from doing so. On the contrary, there is an overlap between the judiciary and the public prosecutor's office, especially in the southern parts of Germany, particularly in Bavaria (Kintzi 1988: 89). The public prosecutor's office is centralised, with the chief public prosecutor being able to issue instructions to the hierarchically subordinate public prosecutors in individual cases, and with the Minister of Justice at the top (more precisely, the public prosecutors working in the federal jurisdiction are appointed by the Federal Minister of Justice under the direction of the Prosecutor General, and the provincial public prosecutors are appointed by the Minister of Justice of the provinces). (The Russian procuratura, the public prosecutor's office on the French model, was called the "eye of the Tsar" in the last century, and after Lenin's completion it bore the title "sword of the revolution". (Cf. Ehrmann 1976: 63.) An example of the use of the direct intervention potential of centralised criminal prosecution in Germany is the fact that, for example, a few years ago a justice minister of a federal state issued a circular asking his public prosecutors not to prosecute petty thefts - through a generous interpretation of a relevant provision of criminal procedure - in order to relieve the courts. In Italy, until the 1970s, there was a public prosecutor's office subordinate to the Minister of Justice and separate from the judiciary, as is common in continental European countries. In the course of the fight against the Mafia, however, the status of the public prosecutor was increasingly aligned with that of the judge and at the same time separated from the parliamentary majority government and its Ministry of Justice. This gradually led to the emergence of a unified judiciary in recent decades (see Pokol 2003). In the United States, as already mentioned, a separate organisation of the public prosecutor's office has been created, but unlike in Europe, a separate cadre of prosecutors has not emerged, but a small number of junior lawyers apply for the positions of "public prosecutor" or "district attorney" or for the positions of "assistant district attorney" at the federal level (Reiss 1976: 84). The young lawyer who holds the position of public prosecutor in the US for a few years does not usually come from Harvard or Yale, nor does he or she have the best credentials, and the few years as a public prosecutor are seen rather as a good stepping stone to a later career as a lawyer specialising in criminal procedure. The latter, of course, does not itself have a particularly high standing in the legal profession and is in the 97 lower regions of the American legal profession in terms of income and external social indicators (Wice 1978: 35). To some extent, this picture can be mitigated by the fact that there are many applicants for federal prosecutorships from better universities and better graduates. However, compared to European prosecutors, the overall picture is one of a prosecutorial profession with low prestige and a steady flow back to the lower regions of the legal profession. Unlike in Europe, where there is mobility between the judiciary and the prosecution, here prosecutors are unlikely to rise to the ranks of the highly respected judges (Reiss 1976: 81). The attachment of national prosecutors is also different, not to ministries of justice as we have seen in Europe, but to the community that elects them (prosecutors are elected at the national level for a short term, just like politicians). This makes them less servants of a single central legal policy and more responsive to changes in political public opinion in a given city. The result is, for example, that prosecutors focus on spectacular crimes, which gives the prosecutor good publicity. Or the prosecutors' efforts to increase their "conviction rate", as this way they can really prove themselves to the public. These efforts have greatly facilitated the development of "plea bargaining" in the American criminal justice system - which has since spread throughout Western Europe. This involves a "plea bargain" between the prosecutor and the defence lawyer in which the prosecutor agrees to plead to a lesser charge in lieu of the original charge or to waive the lower limit of the original charge in exchange for the defendant's confession (Wice 1978: 112-114). Finally, England can be cited as an example of a public prosecutor's office that plays only a marginal role. Here, prosecution is the exclusive responsibility of the police, who employ lawyers - on a case-by-case or permanent basis - to keep an eye on legal relevance (e.g. what facts still need to be established for a successful prosecution, etc.). And they hire lawyers to represent the prosecution in court, as they were not authorised to appear in court in the past. So in this solution the state, as a "private party" with a special interest in the prosecution, is represented by a lawyer just like the accused. Even though there are of course only a very small number of individual prosecutors, the orders issued to represent the "Crown" show the location of a circle of lawyers in which the members are more often active in the function of representing the prosecution (Rüschemeyer 1976: 124). It should also be noted that the institution of the "Attorney General" was created here in more recent times, who, however, only acts as prosecutor in very serious offences. 3.3 Structure of the legal profession Within the legal profession, the weight of lawyers is significant in all countries, if only in terms of their share. In common law countries, however, it can also be seen as the basis for all legal professions, from which judges, prosecutors and administrative lawyers emerge, leave them (temporarily or permanently) and then return to the profession . Despite the traditional dominance of lawyers in common law countries, the number of lawyers in continental law countries has exploded in recent decades, while the more state-controlled professions of judges and prosecutors have seen only slow growth. In addition to this numerical growth, it is of particular significance that the continent has also seen an acceleration in the emergence of large law firms that are beginning to dominate the 'legal market' (Winters 1990: 236-277). The United States has the greatest dominance of lawyers in the legal profession and the greatest freedom from government control for the legal profession - and all the legal professions that flow from it. With a law degree, everyone formally becomes a full lawyer, and then competition and the indicators of the market for legal activities determine whether, for example, a young lawyer's career path is a good one . or become a member of a law firm dealing with large and complex legal cases, from where he or she can build a reputation and become a judge, or enter the legal representation of huge corporations and become an internationally known lawyer, or even temporarily enter the political arena as a candidate for governor, senator or representative. (Although the proportion and dominance of lawyers in US politics has declined somewhat in recent decades - 70% of all presidents, vicepresidents and federal ministers between 1877 and 1934 were lawyers - they still account for almost half of the supply of lawyers to fill political posts. See Eulau 1964: 11.) An American lawyer can be anything. In a formally uniform legal profession, however, competence is pushed to the extreme at every stage of the career, and success or failure in this field determines the future prospects of the aspiring 98 lawyer by precise surface indicators. Early on, much is closed off by the prestige of the university at which the student has successfully enrolled, or opened up for later, depending on how high that prestige is. But academic performance, with grades ranging from one to one hundred and exams striving for objectivity, is also an important indicator that later secures a career for the lawyer or, in the case of poor results , puts him at a disadvantage - in terms of prestige, income and the possibility of further advancement. Only graduates of the most prestigious law schools can play a dominant role in later life. The growing weight of large law firms recruited from elite universities is important to the functioning of the legal system. The United States has been a leader in the development of large law firms since the early 1950s, but since the 1960s, "mega-firms" with hundreds of lawyers have been increasingly established. By the early 1980s, there were 250 such "mega-firms" operating in the US legal services market, using a range of intermediary forms and penetrating the Western European legal services market in a number of areas. Continuing the trend, it is reasonable to expect that 20-30 such firms with a few thousand members will emerge in a decade or two, as full Western European integration removes the barriers that exist today (Gibbons 1990: 284). As indicated in an earlier chapter, this structure of lawyers favours specialisation, and specialised lawyers, building on each other's work, can grow within a single law firm to handle the most complex legal cases, such as those arising from large transactions and possible litigation by a multinational company, when the laws of different countries become relevant and the most remote provisions of those countries need to be considered. Such legal work requires a broadly and theoretically trained legal profession with an intellectual capacity not dissimilar to that of academics. The domination of American law by elite groups of lawyers has thus had a major impact on shifting the weighting of the various levels of law in the overall structure of that law. Another important feature of the legal structure is the enormous breadth of the US legal profession. Unlike in Europe, where all countries have restricted the practice of law to some degree, lawyers in the United States can locate anywhere their services are accepted. In other words, not only is there competition within the legal profession for some of the traditional legal work, but lawyers are able to penetrate other professions and have secured much of the financial, tax, accounting, etc. work that is only loosely related to legal work (Blankenburg 1987: 206; Winters 1990: 264-277). This legal extension is particularly important for the structure of law because it means that the binary code of law, right/wrong, not only influences the selection of a variety of actions and decisions from the courtroom onwards, but moreover is constantly asserted as a relevant aspect in a wide range of life. If the sociologist of law wants to investigate whether the legal techniques and rules developed at the top of the legal institutional system persist as paper law or pass into the mass-followed routines of everyday life, he cannot ignore this expansion of advocacy. The German legal profession, in addition to the American one we have just seen, is another manifestation of the unified legal profession. In this case, however, this level does not play the role of a base for the entire legal profession as analysed above. Admittedly, there are also changing trends here - and they are called "Americanisation" - and in recent years the proportion of lawyers in the total legal profession has doubled (in the 1960s there were as many judges as lawyers), and half of the 120,000 lawyers in Germany are Rechtsanwälte (Stobbe 1990: 226). On the other hand, in recent years there has been an increasing push for more administrative lawyers and academics than lawyers to join the judges' courtrooms. For example, a few years ago the possibility was created for retired former administrative lawyers to continue to work as lawyers, or the Bavarian Administrative Court ruled in a decision in the 1980s that law professors could perform the duties of lawyers in cases pending before it without prior permission (Ostler 1987: 265). For those who have entered the profession of judge or public prosecutor, however, reflux is still not possible, with the career path for the novice public prosecutor and judge leading via the rungs of the internal hierarchy. Another important difference for the German legal profession is the relatively strong state control of its activities. The guild-like restrictions limiting the number of law firms are still in place, but most importantly, the law prohibits lawyers from going beyond traditional legal work into areas only loosely related to law. (True, these provisions in return prohibit members of other professions from engaging in traditional legal work, while the expansive American legal profession competes with the law firms of members of other professions. And in the bloated mass of lawyers, it is difficult for clients to navigate without the superficial indicators of reputation rankings (in the US, advertising for lawyers is already permitted under a 1976 Supreme Court decision). But it is not only the state regulations that make it difficult for large law firms to become competent and dominated by specialised members, they are also in decline, if one looks at the trends 99 of the last decades. Especially in the German bar associations, the guild idea is still very much alive. The swelling of the number of law students from the 1970s onwards and the subsequent radical increase in the number of lawyers, accompanied by the demand for the introduction of the numerus clausus and the discussion about the dangers of the "lawyer glut", were on the agenda of the annual general meetings of the lawyers' associations for years. (Unlike with doctors, however, the extension of the numerus clausus to law schools was not pushed through by the lawyers' associations, since there is no cheaper university education than that of lawyers). The same instinct was triggered by the decisions to admit the aforementioned administrative lawyers and university lawyers as competitors in the lawyers' arena. Of course, there is also a more open-minded camp of the legal profession that would like to Americanise the framework of the legal profession and orient it towards expansion rather than self-defence of the guild (see Winters' 1990 book or Blankenburg's proposals along these lines: Blankenburg 1987: 204-209). The English legal profession has so far represented a special case of the split legal profession. The structure of the German legal profession differs from that of the English legal profession in the absence of a public prosecutor's office, in the existence of a judiciary intertwined with a layer of lawyers, the barristers, and in the fact that the solicitor-barrister layer, unlike the German one, has been able to extend its practice beyond the traditional areas of law without restriction. The latter has now become heavily Americanised in terms of the way the profession is practised, the increasing size of law firms and their internal specialisation (Abel 1989b: 294). Unlike the Americans, however, this competence has been separated from the more narrowly defined legal profession by the separation of barristers by walls. With the desired dismantling of the walls between barristers and solicitors, a number of interesting developments can thus be expected in the English legal sphere in the future. In the Italian legal profession, there is also a functional division between the "procuratore" and the "avvocato", with the former group of lawyers performing only the technical tasks of litigation carrying out the routine actions necessary for the continuation of the proceedings on behalf of the client - and the "avvocato" dealing exclusively with the strategic aspects of the proceedings. "In short, while the role of the procurator is not discretionary but procedural, the avvocato acts primarily within the discretionary authority of the expert." (Certoma 1985: 46) Compared to the English solicitor and barrister divisions, however, we are not dealing here with permanently separate layers of lawyers, but with a division by age that serves to make this functional separation. In other words, the trainee lawyer becomes a procuratore and after a few years of practice grows up into the layer of avvocato. The layer of "avvocato" is further differentiated by age, and as the number of years in practice increases, the aging lawyer becomes one who is initially admitted to practice only in a court of first instance and may later practice in a court of appeal. (While an American lawyer can rise to the top relatively young under merit-based evaluation mechanisms if he or she attended a good university and achieved the highest grades, age does not protect the older lawyer from falling behind in the absence of such a mechanism). The Italian legal profession is also limited in its scope of practice. The development of the profession in Italy, comparable to the spread of English solicitors or American lawyers, is already limited by the emergence of a separate profession of commercial lawyers in Italy, with separate registration lists and precise state requirements for registration linked to a degree in economics, separate from the legal profession (Certoma 1985: 59). It is precisely the most dynamic areas of the legal profession (tax procedures, finance, auditing etc.) that are thus excluded from the legal profession. The separation of the legal profession from the judiciary and the public prosecutor's office has developed along the lines of the German one. Formally, it is possible to bypass this career path and run for a judgeship, but in practice this is almost impossible. After graduation, therefore, there is also a split between the legal profession on the one hand and the judiciary/advocacy on the other. The university bar is more open to the legal profession, which is isolated from the judges. A very large proportion of Italian university lawyers are also lawyers. In many cases, success as a lawyer is the basis for the prestige of university professors (Ranieri 1998:10). In France, too, there was a divided bar until the early 1970s, with the layers of "avoué" and "avocat". Not even by age, but with a complete separation of personnel and a division of tasks roughly as described above, with the "avocat" as the "prima donna" of the law appearing only before the courts and the "avoué" taking care of the technical aspects of litigation (Ancel 1976: 23). Despite this standardisation, a unified legal profession has not really emerged, for in addition to the avocats, there is also a group of "counsel juridique", roughly equivalent to the functions of the Italian "dottore commercialiste", who specialise in the economic-financial sphere and into which the lawyers cannot 100 penetrate (Winters 1990: 248). Another internal division of the French legal profession is the sharp division of the group of notaries. And these have traditionally developed, especially in the countryside, as general legal advisers in a variety of private matters. Like lawyers, they are in private practice, have an office and a number of assistants. The thus fragmented areas of private legal practice are all under strict state supervision and regulation, and registration in the lists of lawyers, notaries etc. is only possible under state control and with a maximum number of persons (the power of approval usually lies with the Minister of Justice). Expansion, specialisation and competence independent of the state are thus prevented from the outset. Measuring differences in performance is a matter for state examinations, which are used as frequently at certain stages of legal careers as they are found in all areas of French society. In 1980, France had a total of just under 23,000 lawyers, of whom 15,000 were avocats, notaries and "conseil juridique", while in England, with a similar population, there were 45,000 solicitors (and 4,000 barristers) and in Italy, as in Germany, 45,000 lawyers (Lewis 1986: 81). This is the culmination of the fragmentation of the legal profession in France. In this context, the legal profession cannot be seen as a base stream of the legal profession from which other groups of lawyers emerge and then flow back into it. The French model, with its separate entry lists, contingent staff, separate schooling and examination system, without reversal or conversion, is the exact opposite of the American model, which is considered the starting point. Of course, there is movement here, because the situation of the French bar was even worse until the 1970s - the number of lawyers just mentioned already includes a doubling compared to previous years. On the other hand, in the 1980s, the French bar associations (especially the competence-oriented Paris Bar Association) succeeded in persuading the government to adopt radical reform plans aimed at dismantling the walls (Winters 1990: 248). 3.4 The judiciary and the bar If the legal profession can be seen as the mediating medium that "spreads" the law in most modern Western societies and professionally records the law/injustice aspects in everyday life situations, among other evaluative aspects, in Eastern Europe during the Stalinist organisation of society administrative orders spread the will of the authorities, which was enacted as law, and above all the extensive public prosecutor's office with its economic and other police forces supervised its enforcement - so that in addition to this mediating "medium" the judiciary can be seen as the guardian of the applicable law. The way in which the laws recorded on paper (which are themselves the result of a series of preparatory legal dogmatic, legal policy and then direct political selection activities) are translated into individual judicial decisions is determined to a decisive degree by the connections of the judiciary, its established characteristics of activity and its relations with the legal profession, academia and the actors of the political system, not least by the degree of sociological dependence of the individual judges on the political bodies, the administration of justice or the internal self-governing bodies of the judiciary. From these points of view, it is possible to divide the judiciary of each country into different types. The English judiciary is characterised by a high degree of independence from forces outside the legal profession, and within the legal profession, strongly isolated from the academic legal profession, it is intertwined with the layers of barrister-advocates confined to the judiciary. The result is that English law has a case law character specific to the situation already analysed, and that this legal structure is a brake on the expansion of law in English society. Of course, here too there is this expansion through the "statutory law" of the public-political corporations, but the "judiciary" and the "bar", which form the core of the law, have maintained their separation from the law of the publicpolitical corporations as an enclave in the middle of the law. The US judiciary is also embedded in the legal profession, but here it is a sprawling stratum completely free of state control and guild boundaries. Moreover, judicial decision-making here is guided not only by basic precedent, but also by the more abstract legal dogmatic classifications and legal principle elaborations of academic jurisprudence. One indicator of this, in addition to the reflection of supreme court jurisprudence in the legal system literature (cf. Kötz 1973, 1988), is the composition of the supreme courts of the Federation and the Länder, in which, among other things, law professors from universities with previous reputations are used as a basis for selection. The US 101 judiciary is usually recruited from the legal profession and, as mentioned above, in the case of the Supreme Court, also from the academic legal profession. However, their selection is subject to a political filter, as national judges are either directly elected by the citizens or appointed by the legislature of the member state concerned and, in some cases, by the governor. Federal judges are appointed by the President of the United States, and while state court judges are re-elected at regular intervals, federal judges are appointed for life and are protected by a number of safeguards for judicial independence (Abraham 1980). Nor does political selection mean that the judge, once appointed, is dependent on the judicial administration or political bodies. Rather, this type of selection is itself a provision according to which the judges selected are more likely to include lawyers and law professors who resonate with sociopolitical issues and have earned a reputation as a result. Such a position is usually reserved for those who have had a long and successful legal career, although preference is given (especially for appointment to the Supreme Court bench) to those who have a history of public engagement (Abraham 1980: 233). This is, of course, to be understood as a commitment to legal policy issues and not as uncommitted political activity. In the German judiciary, in addition to the separation from the legal profession, there is an increasing attachment to academia and a shift of focus from politics to the administration of justice. The traditionally strong influence of academics within the German legal profession has already been mentioned several times and can therefore only be repeated here in relation to the judiciary. Although the Italian judiciary is closed to academics, until recently one of the most important factors in the development of judicial careers was that judges wrote academic dissertations. The Italian judge who rose to the top had to demonstrate his mastery of and ability to safely handle a comprehensive system of legal categories by regularly writing dissertations (Federico 1976: 120). This requirement disappeared as a by-product of a reform in the late 1960s, but is still alive in the established judicial culture because of the long tradition. The reform itself aimed to limit the discretion of SJCs in the promotion of judges in order to increase the independence of judges and to introduce a system of automatic promotion with age. However, in most cases this means only promotion in terms of title and salary, since the number of senior judgeships is of course limited. In any case, all Italian judges can now reach the title and salary of head of division at the Court of Cassation, the highest court, at the end of their career (Federico 1976: 127). The picture of the French judiciary has already emerged from the analysis of the other levels of the judiciary. Separated from the private bar, but also largely from the academic bar, the French judiciary is internally strongly oligarchic, having been trained together with the prosecution. (The reform mentioned above was also introduced in Italy to address this problem). Technically, a number of trial preparation tasks are relieved from the judges by the staff of "greffiers", who are trained in the basics of the law and can act independently in these tasks. In criminal cases, the pre-trial activity of the investigating judge ("juge d' instruction"), in which the taking of witness statements and a large part of the evidence has already taken place and the facts of the case are thus only presented to the judge by reading out the record, additionally relieves the judge of the task of fact-checking. The judge is thus largely relieved of the technical task of establishing the facts and only has to decide on questions of law (Ancel 1976: 28; Heitmann 1988: 97). 3.5 Academics and legal practitioners In analysing the integration of academia into legal practice, it is worthwhile first to recall the differences between countries in the nature of academia and the extent of abstract-generalised legal practice. The rules of German law and the style of judicial decision-making still have the origins of the 'professorial law' of the past, and the return to this practical law is not significantly different for the academic lawyer. The historical tradition of Italian law, but also, since the last century, after a brief interlude of the French Code Napoléon and the "exegetical" legal positivism it adopted, the overwhelming influence of German pandekten jurisprudence on the development of law here, have also brought practical law close to academic legal doctrine. In the case of French law, as we saw in an earlier chapter, systematic academic jurisprudence could only ever shape practical law through the filter of the judiciary. In the legal system of the United States, academic jurisprudence could at one period or another formulate and generalise practical law, but here this jurisprudence itself hardly 102 emerged from practical law, and only a small part of it could be considered jurisprudence in the European sense. Until the 1930s, the law faculties of small American universities were taught almost exclusively by lawyers on the side in order to earn some extra money). In recent decades, of course, this has changed, and there are trends towards systematising and upgrading practical law. Finally, in English law, although there has been some relaxation since the mid-1900s, the influence of academia on practical law has remained largely absent to this day. In England, it was not until the 1950s that basic legal training became a compulsory requirement for the training of barristers organised by the national bar associations and for the appointment of judges from the ranks of the bar associations. For example, the famous "Law Lord" of the post-war years, Lord Denning, still studied mathematics at university (Ranieri 1998:14). This, then, is the overall picture and an indication of the extent to which the law in the individual countries is scientifically preformed and the extent to which it is therefore appropriate for the academic jurist to deal with it today. The chances for a German university lawyer to work in practice are therefore good from the point of view of the quality of the law. In addition, like all future judges, lawyers and public prosecutors, he will receive a full legal education including the state examination. Some of them also practice law for a few years after graduation and only then become university lawyers. According to an empirical study by Ekkehard Klausa in 1978, 43% of German university lawyers have a secondary occupation in which they work as judges (12.3%), lawyers (3%), legal advisers (1.5%) or lawyers for economic institutions or associations (13.8%) (Klausa 1981: 161). It is particularly noteworthy that especially in the highest courts, university professors of high standing are often appointed as judges. Another continuous form of involvement is expert advice on legal issues in litigation. This has been the practice of German academics since the end of the last century, continuing the centuries-old practice of sending files to universities. And the income here is many times higher than university salaries, especially for renowned university professors. In some cases, of course, this has led to the practice, difficult to reconcile with the academic ethos, of a head of department virtually abandoning his academic work and transforming his department, with the assistants he hires to support it, into what is in effect a "law firm disguised as a department" (Klausa 1981: 158). American academic advocacy is even more closely related to the functions of the practitioner (which is admittedly also due, as we have seen, to the fact that the closeness here is guaranteed less by the "juridification" of practical law than by the lower degree to which academic advocacy has emerged from practical law). In any case, according to Klausa's 1978 surveys, 72.4% of university teachers had a regular part-time legal job, and half of them tried to use their university knowledge as lawyers (Klausa 1981: 160). But even then, there is still a great need for university lawyers in a wide variety of state agencies and specialised bodies. It is important for the definition of law that one of the bases for the appointment of judges to the highest federal and state courts is the appointment of law professors with university degrees. Unfortunately, we have not found any data on this aspect of the French legal system, but we can draw some conclusions here from the structure of legal training. Since there is only one basic legal education in France, followed by several years of separate training for judges, prosecutors and lawyers, the return to the profession can only be one way or the other. Due to the rigid French entry requirements and the tough, competitive examination system prior to any admission, which is tailored to the specifics of the legal profession and of limited use to the work of the university lawyer, a greater return to practical law by university lawyers is unlikely. Of course, the prospects for an English academic lawyer are bleakest when it comes to entering the world of practical law. Even today, this law is so far removed from the mindset of the ordinary theoretical jurist that when the academic jurist delves into it, he loses the generalising and abstracting ability that distinguishes the scholar, and if he does not, it is difficult to call him a jurist, at least in English law. It seems that the English academic jurist would have to smash this law and the closed legal profession itself to approach it. And indeed, in the last 30 years, this has been one of his main activities in relation to practical law, especially under a Labour government that sought to relax traditional English clauses. Wherever reform commissions were set up alongside the government to change certain legal institutions or certain forms of the legal profession with the help of the state, many academics were also represented (Wilson 1987: 842). However, they were denied the appointment of judges. Even today, there is a hostile and sometimes contemptuous attitude on the part of practising lawyers, as the then Lord Chancellor Lord Simon put it in the 1940s: "I do not want the judiciary to be crowded with men who, though undoubtedly very learned, may live in complete isolation, out of touch with the world" (quoted in Glasser 1987: 697). 103 For the English academic lawyer , this leaves membership in reform committees of the political government and involvement in the drafting of individual laws as a way of getting involved. The latter is, of course, limited by the English drafting practice of literal law already analysed, which allows only a small degree of generalisation. The specific skills that give the academic lawyer an advantage over the practitioner are therefore difficult to harness here as well. If we want to express this limited potential in structural local terms, we can definitely speak of the involvement of the English academic lawyer in legal policy, whereas in the American and German legal systems, the more prestigious members of the academic legal profession can also be involved at the top of the judiciary. 4. Legal policy and legal system In a state governed by the rule of law, the use of the legal system becomes indispensable for politics to achieve its goals, as does the adaptation to the alternatives of regulatory models developed in the legal sphere, to the specific conceptual apparatus and categories of law, since it must somehow permeate the law in order to realise these goals in society. This relationship is achieved through a variety of mechanisms, so we will highlight here only a few areas that are present in most countries in some form . Before doing so, however, it is necessary to analyse the situation of legal policy as a whole and its relationship to the other levels of law, as well as the impact of certain legal concepts on the delimitation of legal policy. 4.1. Legal policy and the layers of law Different legal concepts cover the different levels of law to varying degrees, and only particularly complex legal theories are able to address all levels of law. The guiding principles of the various legal concepts play an equally decisive role in defining the boundaries of legal policy. In the legal positivist, Montesquieuian conception of law, for example, the notion of a parliament and a closely related judiciary that exclusively determines the law makes it impossible to speak of legal policy in isolation from the other areas of politics. Even with the concept of judicial law, a legal policy with its own field of activity can remain unmentioned, as the dominant role of politics and parliament disappears from the overall concept of legal development. Moreover, among the more complex theories of law, legal policy is left out when it focuses on the relationship between judicial casuistry and legal doctrine and closes the possibility of lawmaking to the political legislature. The outline of legal policy became important for the analyses in this volume because we found Josef Esser's arguments for the justification of legal development by judicial casuistry and legal doctrine convincing, but by contrasting them with Karl Larenz's analyses and then synthesising the coinciding elements from both theories, the necessary inclusion of political lawmaking in a multi-layered concept of law became clear to us. In other words, the correction of Larenz by Esser - and of Esser's analyses by Larenz's spontaneously revealed a white spot that neither had addressed due to their concept of law - and that is the area of legal policy. It seems worthwhile here to compare the delimitations of the sphere of legal policy thus obtained with Ota Weinberger's analyses of legal policy, since Weinberger attached particular importance to the sphere of legal policy in his concept of law. At this point, however, it should be pointed out that the boundaries of this sphere can be drawn elsewhere due to the differences in the conception of law on which we base our approach. Weinberger draws the main boundary within the legal sphere between legal arguments de lege lata and de lege ferenda, the former being the subject of a narrower normogical analysis and essentially characterised by the logic of subsumption, while the latter is the domain of arguments justifying the former norms (Weinberger 1987: 218). In Weinberger's formulation, this second normogical domain is the terrain of legal policy. In this thematisation, then, most legal communication, apart from legal arguments and decisions of sub-summative importance, falls within the domain of legal policy. "Legal policy argumentation has two distinct, though often overlapping, forms. Constructive reasoning is that which develops proposals for acceptable solutions to social problems, and critical reasoning is that which takes an evaluative stance on political realities 104 and existing or proposed institutions. (Weinberger 1987: 219). In contrast to Esser-Larenz's concept of law, on which our analysis is based, what is seen here as the domain of evaluative legal theory belongs to the (constructive) part of legal policy for Larenz. After the corrections we have made, the inclusion of legal policy has only become important beyond this in order to characterise areas that are closer to the binary code and the evaluative aspects of policy . In this way, however, the picture that emerges for us is of a more politicised legal policy than Weinberger's. For him, the development of regulatory models de lege ferenda, of alternatives to existing legal solutions, is inherently the domain of legal policy. If, on the other hand, one looks at the specifics of law, politics, science etc.. - and their demarcation from each other - are realised along the dominance of their different binary codes, then in the case of law, the elaboration of regulatory models de lege ferenda, their integration into comprehensive legal principles and legal dogmatic institutions, can also take place along the binary code of law, the dominance of the legal/illegal. And in the case of university jurisprudence freed from party politics this is quite possible. It is therefore misleading to call this activity legal politics. There is only one explanation for this, namely if we consider the legal activity working with a subsuming logic before legal policy as "real" law and Larenz's evaluative legal theory as the transition from law to policy. It has been shown in the previous chapters that beyond the realm of subsumption of judicial decisions, the vast majority of legal activity is constituted by the interplay of legal maxims, legal principles, legal dogmatic categories and fundamental constitutional rights, and that the binary code of law can dominate over them. The fact that Weinberger "takes legal policy deeper into law" and replaces Larenz's evaluative legal theory is also shown by the fact that he considers it a distortion of legal policy to see the characteristics of the political sphere itself also appear in legal policy debates. For example, the use of ideological demarcations or simplistic headings (environmental protection, democratisation, etc.) in legal policy debates is seen as distorting the "scientific" understanding of legal policy. But one-sided evaluations from a party-political point of view are also thematised as distortions in this framework (Weinberger 1987: 223-226), i.e. it is precisely the decline in the dominance of the legal binary code and the intensification of the governmental/oppositional code of politics - the transition from legal dogmatics to legal politics in debates and decisions about law - that he sees as distortions of legal policy. In contrast to him, Wolfgang Naucke, writing in the context of criminal law policy, is absolutely right: "Many call for the de-scientification of politics and the adoption of the 'good', scientific models of criminal law by politics from legal science. This is a futile game, however, because they imagine an abstract-utopian public policy that can be scientific if it is above party politics." (Naucke 1987: 30) Weinberger's concept of legal politics is thus not useful for us because it locates it too much within law and displaces from it the actually non-political activity of turning it into politics. 4.2 Spheres of legal policy In our underlying concept of law, it seems important to make a distinction within the body of rules created by the state-political organs - parliament, government. Modern law - apart from the precedentbased law in common law countries - takes the form of decisions by these organs: laws, decrees. However, once these forms are established, they can also take on a range of content that cannot be considered de facto law ( we are not referring here to the examples of the enactment of major events or memorials to individuals.) ) Within these forms, we consider it important to distinguish between, on the one hand, the content of decisions that serve to achieve the objectives of public-political bodies, which are implemented in social practice with the help of authorising authorities and then modified at short intervals according to the effects of feedback, and, on the other hand, the content of decisions that are the subject of a central role in implementation, whose courts have already stabilised and which compare the rules with concrete situations in the context of individual case debates. We are inclined to consider only the latter as law and to see the conferral of legal status on state rules in the fact that the mere enforcement of state authority is gradually overridden by judicial practice and put into practice. This distinction allows us to locate legal policy in the political sphere par excellence, thus showing it as a genuine intermediate field on both sides of the border between the institutional systems of law and politics. There are always heated debates about the hundreds of laws passed by parliaments every year, but the vast majority of them are not debates on legal policy. Debates on legal policy are those 105 whose content and alternatives to the regulatory models here are based on longstanding and continuous jurisprudence and the legal dogmatics that systematise it, which have covered the complex regulatory field with specific distinctions, typologies, maxims and legal principles - and thus with a specific language - in order to ensure its coherence. Past historical experience has shown that political authorities are only unbound if they can dissolve the underlying layers of law with their language, typologies, etc. The most radical attempt to do this was the French Revolution, which tried to dismantle law along with everything else, and its complete failure in this regard, as we have seen in the previous chapters, leads us to conclude that law beyond a complexity can only function in dismantled layers and that state legislation can only be successful if it is based on and bound by them. Thus, if these layers of law already exist, then policy becomes more linked to the realisation of its goals in these areas - i.e. it becomes legal policy. If this localisation of legal policy within the overall policy (imposed by the law itself) is observed, one can conclude, conversely, that if a stable judicial practice and legal dogmatics has not yet emerged in an area of regulation, one cannot speak of legal policy at the boundaries of politics. This is because within politics there are no constraints that would bring the dimension of legal/illegal evaluation more into play alongside the dominance of the binary code of government/opposition and also take its categories and language into account, albeit subordinately. If such a level of legal doctrine is already established in the regulatory sphere of a given law, then in a political system based on pluralism, the political debate on the issue necessarily becomes localised and linked to legal policy, i.e. a choice between the regulatory models developed by legal doctrine and judicial casuistry. In the case of law, this localisation is easy, if only because of the high proportion of lawyers in the politician corps, some of whom had some legal practice before becoming politicians (see Eulau 1964). Within this broader legal policy guard, however, is a narrower cadre of politicians from each political party - in the case of the governing parties, the later ministers of justice and political state secretaries who are considered experts in the field of legal policy (i.e. the legal sphere covered by a legal doctrinal layer). This staff constantly follows the main themes of the more "legalistic" legal policy events and debates that have emerged from the legal dogmatic sphere and tries to explore what social consequences can be expected from the specialised debates on the various de lege ferenda proposals and how these will affect the details of the party programmes and the interests of the major groups behind the parties. In other words, the debates and alternative explorations in favour of a legal/illegal binary code are viewed from a completely different perspective and enriched and fleshed out with details from that perspective. Of course, this also includes when a militant party politician tries to expose the weaknesses of the legal policies of the other parties that are the main opponents and to communicate them to the public with effective arguments. An example of this is some legal policy writings and lectures by the former Christian Democrat Secretary General Heiner Geißler from the late 1970s, which, in connection with some laws passed by the ruling Social Democrats and later overturned by the Constitutional Court as unconstitutional, gave the impression that social democracy as a whole tended towards unconstitutional solutions (see e.g. Such debates, however, show that legal policy is moving away from pure party politics. The legal policy institutions at the party political level are, of course, generally further removed from such pure party politics and are usually not even located in the party apparatus but in the parliamentary groups. Either as deputies or as employees of the academic services of the party factions, we see politicians who have specialised in legal policy (Rödig 1975; Pokol 1981b). and policy are usually the permanent staff of the foundations affiliated to the various parties, as well as the adult education centres and training centres affiliated to and financed by the parties, whose 1 main activities include the selective observation of debates in the purely academic-scientific field and the organisation of regular conferences to discuss "scientific" points of the party programmes. They can only be described as scientific in inverted commas, since the university professors and academics involved are selected in a thorough selection process in which their affiliation to the party programme and the underlying ideological theses is proven by repeated examinations. The binary true/false code of science and the paradigms created on the basis of this code are replaced by more concrete allegiance to a firmer ideological camp, including the main principles of the party programme in force. Only details can be discussed. Anyone who wants to question the basics at these events in is removed from the list of invited participants after one or two conferences and has no chance of moving up into the ranks of the faction politicians. Legal policy at the party political level thus also takes place in this broader grey area. Every year, volumes setting out the legal policy and main priorities of a major party are published after such events, and the journals of the major legal associations regularly publish a pamphlet (see, for example, 106 the "Deutsche Richterzeitung" of the German Judges' Association or the "Anwaltsblatt" of the Lawyers' Association). The legal policy of a major party is thus located in the general party policy, and its own staffs, events etc. ensure its "cultivation" in the light of new and fresh impulses from the law. However, legal policy has also developed institutions on the other side of the border, on the side of the law. In contrast to the earlier sphere of legal politics, the dominant ideological theorems and party maxims here are not the code of government/opposition and the ideological theorems and party maxims developed in the value dimension of government/opposition, but the dominance of the binary code of law remains. However, this is increasingly accompanied by a growing awareness of the social implications of the ever-evolving legal solutions. Compared to pure legal doctrine, which considers new laws and important court decisions primarily from the point of view of the taxonomic feasibility of new legal solutions and the extensibility of existing principles and dogmatic categories, and constructs even hypothetical legal cases to test the dogmatic system from all sides, legal policy is becoming more and more consequence-oriented. Although the legal policy debate also pays attention to the dogmatic distinctions and their effects in a given area of law, this change of perspective also brings new distinctions to the fore. In the discussion on criminal law policy, shoplifting, for example, emerges as a separate category because the vast majority of offenders here are not criminals at all, and although the dogmatic elements of this offence may coincide with those of crimes committed by habitual criminals, this "sociological" difference makes it a category of its own that must be treated separately in terms of legal policy (Hassemer 1987). In the case of a central public prosecutor's office, this can be brought into the criminal justice system in such a way that the legal-political category "danger to society" is given the right to be treated sovereignly by this authority, and the precisely crafted legal-dogmatic categories then function as a decorative element, so to speak. In this case, it is a legal-political "softening" of legal doctrine, to which the more legalistic alternative could be to transfer these legal-politically desired differentiations to the judiciary through a further expansion of legal doctrine. It should also be noted that the separation of legal policy and legal doctrine, of debates and mechanisms, only occurs where the concept of law permeating the legal sphere demarcates and neutralises legal scholars from politics par excellence. With the legal profession constantly oriented towards primary ethical principles and the judiciary and bar socialised in this way, the orientation towards consequences becomes all-encompassing and the interior of the law itself is permeated by legal politics. Legal-dogmatic-political action thus becomes a deviation under the dominance of this concept of law, and the heroic-activist "progressive" judge and politicising lawyer becomes the role model. The distortion in the other direction can be seen in the German conceptual jurisprudence of the last century, which in its concept of law did not want to recognise anything other than neutral legal dogmatics as legal activity and saw in the creation of a code a mere summary of the results of legal dogmatic-systematic work (Coing 1960: 8). As mentioned in an earlier chapter, this was the result of the first draft of the German Civil Code, which appeared to practising judges to be a "jurisprudential crank". In today's complex Western legal systems, legal policy mechanisms have been created everywhere to complement the legal policy activities of party politics and to translate the results of legal doctrine into policy. The central institutions are, on the one hand, the associations of the legal profession and the journals and periodicals they publish, and, on the other hand, the national lawyers' associations covering the entire legal profession in a country. In Germany, for example, judges and public prosecutors have joined together in the German Judges' Association in recent decades, and the Deutsche Richterzeitung publishes high-quality articles on legal theory and legal history, but the vast majority of these articles contain proposals for or against changes to the current law and legal sphere. Legal education, for example, has been an ongoing topic for many years, and the advantages and disadvantages of the various models have been the subject of numerous articles and have been reflected in the pages of this journal. The question of the disclosure of possible minority opinions in court decisions, their impact on the development of law and the associated strengthening of the role of the judiciary have also been the subject of long debates. The German Bar Association is also very active in legal policy issues and regularly discusses some fundamental questions of procedural law, the basic organisational problems of the judiciary and their possible solutions at its annual general meetings. Its newspaper "Anwaltsblatt" observes the internal structure of the legal profession in other countries, the forms of practice of the legal profession, etc. with a wealth of comparative law analyses. This body functions as an institution for the entire German legal profession, with members of the academic legal profession and members of the higher courts being particularly active at the biennial 107 meetings (Dilcher 1980: 15). Although there is some control by the DJT presidium over the compilation of the agenda for the upcoming assemblies and the invitation to speak, anyone can submit suggestions for topics via a circular letter, which are eventually selected and the agenda for the biennial assemblies drawn up. After several days of plenary sessions, the conferences conclude with the adoption by majority vote of recommendations on a number of topics discussed, which are sent to the parliamentary groups and to the state and federal ministries of justice. According to Dilcher's analysis, in a number of cases between 1960 and 1980, these recommendations led to the redrafting of the relevant bills or stimulated the start of new legislative preparations (Dilcher 1980: 89-95). These conference debates and recommendations of the DJT show in condensed form the characteristics of a legal-political sphere that ran from within along numerous threads and transformed the purely legaldogmatic activity . In addition to the regular publication of the recommendations, after each DJT conference the papers given there are published in a volume, the analysis of which also gives a good indication of the initial stage of legal-political change, especially when the researcher contrasts them with the material from the legal-political staffs of the party-political sphere. Legal doctrine, legal policy and pure party politics are thus separated, and the internal division of the mechanisms of legal policy further increases the number of stages of transition between the institutional systems of law and politics. However, these discernible localisations can be viewed in a more nuanced way if the growing importance of constitutional jurisdiction is included in the analysis. The chapter on this topic pointed out that in a number of cases the dogmatic constraints of constitutional law are weak and that abstractly formulated or primarily ethico-social considerations are given greater weight. In relation to the locus of legal policy, this can be seen in the fact that with the increasing preponderance of fundamental rights jurisprudence, the separate legal dogmatic and legal policy layers of simple areas of law grow more closely together in a more diffuse sphere of legal policy. Or in those legal concepts that focus on this level of law (fundamental rights, legal principles), legal doctrine is devalued and a more politicised legal activity is exemplified (for example, the legal concepts of Dworkin or the German Alexy, Dreier, Kriele). In our opinion, it is therefore essential to recruit the majority of the members of the Constitutional Court from the judiciary in order to contain the politicisation of fundamental rights and to maintain the role of a more neutral legal doctrine, which, in addition to a more stable legal anchoring of past practice , would also better ensure that the court does not become partisan. Finally, if one wants to summarise the place of legal policy in the structure of law in definitional terms, it can be characterised as an activity which, by focusing on the social consequences of certain regulatory models, relates legal regulations only partially to the internal distinctions and category sets of legal doctrine and, on the other hand, includes the differences between different social strata in the analysis for the evaluation of certain regulatory models . In other words, legal policy compares the various regulatory alternatives with politically articulated social differences, while the main criterion in legal doctrine and jurisprudence is taxonomic alignment. The gap between the different evaluative aspects of law and politics is conceived by legal politics as a split into two transformative spheres. The "legal" sphere of legal policy relied primarily on the major legal associations, their journals and conferences, while the "party political" sphere of legal policy relied on the parliamentary groups and their academic support services. This is the only way to consolidate the political influence of the law on the one hand, and to tame pure party politics and link it to established court practice and legal doctrine on the other. 4.3 The politicisation of litigation In the European legal systems, the constant political struggles and competition of decision-making alternatives, which emerged after political democratisation in the western parts of the continent in the second half of the 19th century and were reintroduced in the eastern parts after the political changes of 1989, are organised in and around parliament. The translation of political aspirations into state decisions, such as laws, government regulations, etc., is the main way to legalise the negotiated outcomes and compromises of political struggles. The divergent logics of law and politics are then transformed by an intermediary legal-political sphere and brought closer together through multiple transformations. In this way, the divergent logics of the two subsystems - the law-unjust approach in law and the evaluative dualism of government participation/counterparticipation as the logic of politics - remain more or less intact, and politics can still translate the majority priorities of the empirical 108 popular will into law, into the content of law. As we have seen above, the legal-political intermediate sphere between the separate subsystems of law and politics is, on the one hand, on the side of the legal subsystem - in the form of lawyers' associations and other professional-political organisations - which are no longer forums for the elaboration of legal-dogmatic models but for the choice between them, the choice between the regulatory models being based de lege ferenda on the social consequences and not only on the technical aspects of legal-dogmatic non-contradiction. On the other hand, legal policy institutions are also established on the side of the political system as departments of the legal policy makers of the individual parties, for example, the legal working groups of the parliamentary groups, the legal departments of the party schools and events. Through this dual structure of legal policy, regulatory models from the law are transformed into laws in two steps, and those that find a parliamentary majority are transformed into legal provisions. This organisation of legal policy can be observed wherever a multi-party system and parliamentary legislation are at the centre of the political system or legal order. In Western European countries and - after the political change of 1989 - in Central and Eastern European countries, this model of legal policy is the main way of linking law and politics. Alongside this, however, another model of the intertwining of law and politics can be observed, in which attempts are made to translate political goals into law through litigation. This development began in the early 1960s in the United States, where it seemed to dominate for a decade and a half, but declined in many respects from the 1970s onwards. However, through American intellectual-political influences, despite its decline at home, it has gained acceptance to some extent in some Western European countries and is now finding favour in some legal circles, especially in the new Central European democracies. This is how the institutions of litigation politics have emerged in the United States, and where this link between law and politics is established, these institutions also emerge. 4.3.1 The emergence of political struggles through judicial processes Where there is political democracy, where alternative political aspirations and interests can be openly expressed, opposing political forces are also likely to be present in the places where law is determined. Thus, when Supreme Court precedents play an important role in determining law within the legal system, some political groups will understandably push to influence them, as these precedents subsequently determine the possibilities for action as law for thousands of actors. However, the way in which this push towards judicial decisions takes place is determined by a number of structural circumstances. To understand these, it is worth comparing the two main common law countries, England and the United States, where adjudication has traditionally played a major role, as these two countries, despite their common starting point, have the most diverse situations of politics through litigation. In England, the class of barristers and the judiciary that emerged from them, which decisively defined the law and in particular the law, remained politically homogeneous throughout and essentially relied on the values of the upper class interested in the status quo. Here, political change in relation to existing institutions and solutions can only be decisively achieved through the struggles of parliamentary parties. This situation is exacerbated by the fact that the mechanisms of the barristers' and judges' careers after law school select those who climb the ladder on the basis of identification with the existing institutions. Barristers are admitted to the Queen's Counsellors on the recommendation of the Lord Chancellor and from there are appointed to the higher courts, but only one level down, so judges appointed to the House of Lords pass through a series of filters over several years. This career path precludes a lawyer with an activist, movement-oriented mindset from playing even a small, significant role in defining English law. In contrast, in the United States, the focus of legal education increasingly shifted to universities from the early 1900s, and with the opening of universities to broad classes in the 1960s and 1970s, the supply of lawyers spread across the social spectrum. Since then, the American legal profession has consisted of both black activists who grew up with Marxism and Leninism and militant feminists, gay and lesbian rights activists, etc., as well as militant conservative rights activists organised in opposition to them. This internal political camp division has become entrenched in university faculties with chairs working according to different legal concepts, and likewise the judiciary is staffed with prominent feminist activists, black civil rights activists and opposing militant conservative judges - depending on whether the more conservative Republicans or the liberal-minded Democrats provide the president of the United States and with him 109 the administration of justice. These two contrasting organisations of the legal profession have created different opportunities for the emergence of Litigation Politics. While in England the path to litigation politics is blocked and the political forces instead try to bring about the changes they need through parliamentary legislation, in the United States the politically heterogeneous internal groups within the legal profession and their dispersion across large parts of the law professoriate and the judiciary have created a good precondition for this. However, a legal profession divided into politically internal camps could not have created the politics of litigation alone. Another development was the "fundamental rights revolution" that began in the United States after the appointment of Earl Warren as Chief Justice of the Supreme Court in 1953. Previously, there had been signs that the chief justices ruled according to constitutional rights rather than legal provisions, but after Warren's appointment, a majority gradually emerged here that saw the possibility of changing American society by attempting social change based on fundamental rights. A number of policies failed in Congress and state legislatures because they were supported only by small groups in society and rejected by the vast majority of society. In this situation, Warren was appointed Chief Justice and after Felix Frankfurter, who had opposed an activist judiciary, retired from the Supreme Court in 1962, the "fundamental rights revolution", a trend towards social change through litigation based on fundamental constitutional rights, was able to develop unhindered. Crucial to this, of course, was the fact that in the 1960s the Democrats were the presidents of the United States - in the early years President Kennedy, who was later assassinated, and later Lyndon Johnson - who most avidly supported law professors and legal activists who were supporters of the constitutional revolution in their appointments to the federal judiciary. And federal judges so appointed, following supportive Supreme Court precedents, increasingly accepted litigation on the basis of fundamental rights, overruling both congressional and state laws, including state courts. Lawyers and citizens became increasingly "fundamental rights conscious" and - following the supportive federal judiciary - increasingly preferred to base their suits on fundamental rights and abandoned causes of action based on simple statutory provisions. This development has been widely supported by the major newspapers and most of the media, and has gradually created a favourable climate for fundamental rights jurisprudence in the academic and intellectual world. (A recurring favourite scene in American films of the 1960s and 70s was the simple black working woman (cleaner, secretary, etc.) standing in court who, looking at the façade of the courthouse and reading the constitutional text scrawled on it, suddenly realises that she has fundamental rights and, in the courtroom, puts the eloquent lawyers in their place with simple words...). In a favourable media and intellectual climate, first the black civil rights movements, then the feminist movements in the 1970s and finally the gay and lesbian movements in the 1980s built their institutions. These three fundamental rights movements, which largely allied to dominate a number of American universities and cultural institutions from the 1980s onwards, then provided a template for the politics of litigation for movements of all kinds. Movements of immigrants, environmentalists, homeless people, animal rights activists, etc. have all sought to achieve their political goals through the litigation strategy thus developed. Alongside the formation of political will on the basis of laws, parties and parliamentary lobbying, a "second political system" has developed in the United States since the 1960s, based on constitutional fundamental rights through the legal process. Although this development trend was increasingly broken from the mid-1970s onwards and thoroughly reversed under the Republican presidents of the 1980s (Reagan, Bush), there are still considerable clashes of interests in litigation policy today. 4.3.2 The legal framework for political struggles in judicial processes Politically internalised advocacy can only use litigation for political struggles if some substantive and procedural rules are adapted - or reinterpreted - so that instead of individual plaintiffs, broad social groups can be involved in litigation in terms of abstract and thus politically easily bendable fundamental rights instead of simple legal norms. The dimension of fundamental rights has already been discussed, so we will now look at the procedural rules that facilitate this shift. One of these is the expansion of standing, i.e. the right to bring or intervene in a case, which gives such a right not only to the person who is specifically and personally involved in the case, but also to the person who is only marginally involved. This expansion took place in the United States in the early 110 1960s, and there were judges who accepted the plaintiff's interest on the grounds that, as a taxpaying citizen, he was only involved in some way in a case with wider implications. Another procedural expansion was the extension of the possibility of class actions, where a group of up to several thousand participants and their lawyers' associations can be involved in the process, e.g. in an action for damages due to the harmful effects of a manufacturer's product or in a class action against a regulatory order. Another form is "public interest litigation", also known as "public interest litigation", which also developed in the 1960s. The idea behind it is that anyone who is in any way affected by the matter can join the lawsuit if it involves a broad question of law or fact. And movement lawyers specialising in litigation policy ensure that the focus of the litigation is not on a simple statutory provision and its narrow question of law, but on a broad question of fundamental rights. Finally, an important legal tool for the development of litigation policy was the enactment of federal legislation in the 1960s that, under pressure from pro-litigation presidential administrations, allowed for the payment of legal costs by the state if the plaintiff prevailed in a constitutional case, and allowed for a deferral of the payment of legal costs until the end of the trial. All this has also laid the foundation for the unfettered development of litigation politics in the United States. 4.3.3 The organisation of political struggles through litigation The organisational basis of this "litigation policy" consists of non-profit law firms, human rights institutions and the legal departments of various movements and associations. Their mass presence in a country is a prerequisite for this kind of litigation to become a more serious matter than traditional litigation. Even if the judiciary becomes receptive to litigation politics and tries to move certain sectors of society towards radical change, mass litigation will fail to materialise and without a lasting impact, the entire litigation politics will soon stagnate. For example, the Indian Supreme Judicial Forum introduced a social-activist sentencing procedure in the late 1970s on the American model, but it fizzled out ineffectively after some time for these reasons (see Epp 1998:90-110). Not so in the United States. Here, it had already begun to organise itself at the beginning of the 19th century, even though the judiciary at that time resisted the temptation of fundamental rights most strongly and their fidelity to the law was characterised by a firm conservative adherence to the letter of the law. When, on rare occasions, they opposed a law on fundamental rights grounds, they did so more in the interests of the political forces that preserved the status quo and the balance of power, as in the Lochner case of 1905, which became a symbol of conservative activism for decades. Nevertheless, the first major fundamental rights organisation, the ACLU (American Civil Liberties Union), was founded in the United States in the early 1920s, followed by the NAACP (National Association for the Advancement of Colored People) and a number of other fundamental rights organisations. The most important of these organisations was from the beginning - and still is today - the ACLU, which was financially supported from the start by US financial interests interested in change and was initially the catalyst for the creation of other similar organisations by helping to organise and fund them (see Epp 1998:27-49). Without these organisations, it would have been unthinkable to bring about a fundamental rights turnaround, as the costs of protracted, multi-stage litigation far exceed the financial means of the individual plaintiff. Only the financial support of the ACLU and the other fundamental rights organisations it co-founded ensured that simple litigation could be extended to constitutional fundamental rights. The presence of fundamental rights organisations was also important because with the knowledge and methods of traditional lawyers, a fundamental rights discussion that incorporated moral philosophical, sociological and other knowledge would not have stood a chance. This could only be developed by lawyers from specialised organisations. After these beginnings, in the late 1930s, as conservative judges opposed to the New Deal slowly flipped the Supreme Court majority in favour of a "progressive" turn, the mood of "away from fundamental rights, towards progressive rights" slowly began to spread at the top of the federal judiciary against the conservative legislative majority. This process was almost complete in 1947, but it was not until the appointment of Earl Warren in 1953 that the turn was finally made. The willingness of the anti-lawyer majority of the Supreme Court to use fundamental rights activism gave further impetus to the movement's advocacy organisations, and by the 1980s a multitude of them had emerged (Menkel-Meadow 1998:31-68). In addition to the fundamental rights associations that were 111 incorporated into the movements and developed as subsidiary organisations, the system of non-profit law firms emerged from this time onwards, which were formally independent firms like normal law firms, but whose staff were and are actually legal activists as advocates for a cause, rather than neutral lawyers working for fees. (The latter are often disparagingly referred to among legal activists as "hired guns", which is in contrast to their selfless, dedicated work.) However, as constitutional litigation became publicly funded under statutory provisions in the 1960s and large numbers of such suits were filed, the initial "dedicated" lawyers were joined by more neutral ones, lawyers who work primarily for money, distinguishing the "legal technicians" from the true legal activists who work primarily for a lawyer's fee but remain neutral in their relationship to the litigant and the client (see MacCann/Silverstein1998:261-292). Hundreds of law firms of this type employed five to six thousand movement lawyers, including the more neutral paralegals, in the 1970s, and this number has not declined since, although the turn to textualism in the federal judiciary since the 1980s has significantly reduced the chances of winning cases in this activity (Scheingold 1998:118-150). Litigation conducted by movement lawyers (or, as they themselves say, "cause lawyers") is fundamentally different from traditional, normal legal practice in a number of ways. These features highlight the direct involvement of political considerations in the legal aspects of the case, which are different from traditional litigation. Five main differences can be identified in the litigation of movement lawyers compared to traditional litigation (see Trubek/Kransberger 1998:202-205 for a summary). 1. The "humanisation" of the process, i.e. the attempt to avoid traditional legal reasoning and the compulsion to frame the case in legal categories, and to present the case with as comprehensive a sociological factual account as possible. This trial technique has great advantages in American procedure, which relies on the extensive use of lay juries, with juries not only in criminal cases but also in private law and other areas of law. It is no coincidence that fundamental rights activists keep calling for the role of juries to be further strengthened. The "humanisation" of the trial consists in a comprehensive presentation of the facts with emotional, moral and political undertones instead of a reduction to legal aspects and an appeal to the jurors as much as to the professional judge. 2. the "politicisation" of litigation, which means that instead of the traditional more politically neutral (or, in the words of movement lawyers, more covertly political) legal arguments and concepts, overtly feminist, anti-racist, movement legal arguments, etc. are used, depending on the sector of the movement in which the politics of litigation are being discussed. It is worth noting here that academic sections of American movement jurisprudence from the 1970s and 1980s onwards, once they had gained a foothold in university law schools, deliberately sought to develop conceptual modifications and from these conceptualisations to develop branches of law that were overtly feminist, racialised (Black, Coloured) or gay and lesbian legal constructions. These are then used by movement lawyers in litigation, avoiding traditional legal doctrinal concepts as much as possible. This is because, in their view, they are misogynistic, racist and heterosexist. 3. The "collectivisation" of litigation means that the individual plaintiff should be joined by as many other people as possible who are in a similar situation. As mentioned above, the introduction of public interest litigation, class actions and the staffing of the federal courts with judges open to such litigation provided a way to achieve this in the 1960s. 4. The "mediatisation" of the process means that in the course of the process the goal of winning the process is combined with the goal of presenting the process (and the "cause of the movement") in the mass media. Indeed, maximising media exposure through the process has an effect that goes beyond winning the case, as it makes the "cause" known to a wide section of society and possibly gains a large number of sympathisers or encourages the launching of similar cases in other parts of the country following the model presented in the media. For this reason, the movement's lawyers often resort to the surefire means of perversion when the circumstances of the litigation make a large media coverage likely. However, this can run counter to the goal of setting an important precedent, which is also an important goal of fundamental rights litigation by movement lawyers (strategic litigation), and this encourages them to refrain from suits that are doomed to fail. The material on cause lawyering also points out that there is often a major struggle between nonlawyer movement activists who prefer any media coverage and lawyer movement activists who prefer strategic legal goals (MacCann/Silverstein 1998:263-274). 5. The next feature is the emotionalisation of the litigation, i.e. the emotional bond between the party - often a multitude of parties - and the lawyer. The lawyer of the movement, the "lawyer of the cause", is not simply a "hired gun" in the hands of the party who uses his brilliant legal technique on behalf of the party of his choice for a reasonable fee, but a "fellow traveller" and "comrade" 112 who lives the cause as much as the client he represents. However, this often leads to the conflict that the client - out of self-interest - tends to settle and usually focuses on his own case, while the dedicated "lawyer" advocates for the case as a whole. This tension can be alleviated by involving as many clients as possible in the litigation, as the overall character of the case becomes clearer and the motion lawyer focusing on the overall case can be more independent of the individual client. All these characteristics can unfold even more when the costs of the constitutional process are borne by the state, and then the lawyer in the movement is almost only an alibi for the litigant and can even pay the party formally involved as plaintiff under some title to initiate the proceedings on its basis. Since the client in this case does not have to bear any financial burden, the lawyer is free to shape the case according to the features mentioned above. For this reason, the greatest danger to litigation policy is that public funding for constitutional actions at the federal or state legislature level will be cut, as has been the case in the United States in recent decades, not to mention the numerous bills introduced at the federal and state levels for this purpose. Having described this, let us now briefly consider this way of linking law and politics at the level of evaluation. While the legal-political sphere, organised around parliament, is based on keeping the logic of the two subsystems intact, bringing in regulatory proposals from the legal-dogmatic sphere through a double transformation without jeopardising the conceptual coherence of the law, litigation politics brings the political struggle and its aspects directly into the courtroom. Moreover, and this is the precondition, it also politicises the law faculties of the universities, and here openly political legal theories and legal constructions emerge that take on openly political aspects. Litigation politics thus bypasses the legislature and, using abstract basic constitutional rights as a weapon, turns directly to the courtroom to achieve its goal directly in law, preferably with a large media presence and live broadcast to the public, with the help of movement jurisprudence - activists of university law professors and "case lawyers" in the courtroom. 4.3.4 Signs of the emergence of politicised litigation in Hungary European legal culture and the organisation of the legal profession are not as conducive to the development of litigation policy in Europe as in other European countries. Here, the organisation of politics is more aligned with parliamentary power and university law schools are more tied to politically neutral, traditional legal doctrines. The deeply rooted attitude of legal ethics is one tied to dryly elegant courtroom reasoning and committed to the exclusion of direct political undertones. For this reason, the litigation policy has not been able to prevail in the countries where constitutional jurisdiction has developed (first, since the late 1940s, in Germany, Italy and Austria, then, since the late 1970s, in Greece, Portugal and Spain and, after the political change of 1989, in most countries of Central and Eastern Europe). Germany also went furthest in this direction by recognising the indirect effect of fundamental rights in the interpretation of legislation, but this legal option did not develop into a litigation policy, but rather in the opposite direction, the inclusion of fundamental rights in the interpretation of legislation led to their "disempowerment". In other words, it was more about dogmatising and thus "taming" fundamental rights than politicising them in the courtroom. Against this background, it seems surprising that although the existence of basic constitutional rights and constitutional jurisdiction in Hungary is barely ten years old, small legal circles have already begun to use the possibilities of litigation politics. In terms of sources of funding and intellectual impetus, these developments stem directly from social groups interested in litigation politics in the US and are essentially a transfer to Hungary of institutions and solutions that have proven themselves there for decades. This relies mainly on the financial base of the American Soros Foundations, the Central European University, the Fundamentum Human Rights and Documentation Center and some movement lawyers from various ethnic rights organisations and movements. Let's see what chances they have to establish the practice of American litigation policy on a larger scale in our country. What increases their chances is mainly extralegal. The very strong media background is the advantage this small group enjoys, and the extreme centralisation of the media in the capital, which shapes national public opinion, and the intertwining of personalities in the leading circles of the press, radio and television make this advantage very serious. The politics of litigation relies on the media, as 113 we have seen in the United States, and it was through the media that the "fundamental rights revolution" was slowly achieved from the 1920s onwards. However, the legal realities speak against this judicial policy strategy. The internal careers of the judiciary have decoupled from politics in 1997, and the appointment of judges and promotion in the hierarchy are only possible on the basis of patterns that are accepted by the entire judiciary. This judicial career offers few opportunities to the movement jurist who has broken with centuries of European legal culture, one might assume. Another obstacle to the further expansion of movement law is that the current domestic movement lawyers are almost exclusively academics or legal experts in an organisation, but cannot act as lawyers. The few lawyers who more often include a human rights motive in their arguments - whether they are defending themselves against the police in an investigation or threatening to file a complaint in Strasbourg after being defeated in their home country - are expanding traditional legal concepts rather than actually acting as movement lawyers. Among university lawyers, on the other hand, there tends to be an atmosphere of sympathy with movement jurisprudence, but this tends to be due to a lack of awareness of the impact of movement jurisprudence and litigation politics on the subject matter of every discipline - and every department! Rather, the positive attitude is that "fundamental constitutional rights are a very noble thing after all!" In itself, this is true. In summary, after the euphoria of the 1960s and 1970s in the United States, trial politics, having experienced the threat to the legal system, has taken a sharp turnaround and is now only a shadow of its former self. When we began to introduce constitutional jurisdiction as a counter to dictatorship after 1989, there was a complete lack of information about it, and the further shift of fundamental constitutional rights into the courtrooms of the ordinary courts was often perceived by the public as a strengthening of democracy. 5. State versus private control of the law Law and legal norms stand out from the world of social norms and moral standards in that they are ultimately sanctioned by the state. In legal theory, however, the question remains open to what extent the state can control law as a whole or, on the contrary, to what extent the dominant power of private parties and private forces can prevail. If one disregards the few views of law that completely identify law and the state (e.g. Hans Kelsen or the Hungarian legal theory of Somló Bódog), one finds an explanation of the partial autonomy of law from the state in most legal theories, but without any detailed analysis of how this happens. From the material of legal history, it can be concluded that law and law enforcement in early times were more strongly influenced by the parties, primarily the aggrieved party, and that in the course of legal development, more and more stages of the legal process were subject to state determination. Thus, for example, in Roman legal development, the "private criminal law" of the early stages was transferred to public law only after a longer period of time, and the private victim authorisation for prosecution was joined by the offences to be prosecuted by the state (cf. Coing 1996; Marton 1993: 40-52; Zlinszky 1991:10-13). But even beyond this, a number of trends show that the increasingly extensive state apparatus is assuming dominant power at many points in the legal process. This is evident in the creation of law as well as in its application and the enforcement of court decisions. However, it can also be linked to this train of thought that the system of landed estates with their punitive power over the feudal lord, landlord-tenant law and the system of serf jurisdiction in the Middle Ages represented, alongside the state administration of justice, the influence of private power on the making of law, which gradually came to an end with the development of modern law and the establishment of a state judicial monopoly. In general, it can be deduced from all this that the historical development shows that in modern societies the rule of law is increasingly shifting from what used to be extensive private provision to state determination. However, in addition to the general truth of the thesis, there are also a number of points where contrary trends can be observed, and only concrete analyses can provide a reassuring answer. The following analyses will examine the cases of state determination in the creation of legal 114 norms and the application of these norms to concrete cases, as well as the cases of the persistence of private determination. We will then turn to an analysis of the situation of enforcement of jurisdiction from this point of view. Let us first examine the trends in the growing power of the state, then the forms of private regulation and their scope. 5.1 The increasing control of state power over law 5.1.1 State control over the creation of law There is a clear tendency in this part of the legal process: From a certain stage of development of a society, the role of the state as the organiser of the entire community in the creation of legal norms becomes stronger and stronger, and factors outside the state recede into the background. This tendency can be seen in the development of Roman law as well as in the development of medieval and modern European law, but the development of North American law in the 20th century also shows the rapid increase in the role of the state apparatus following the emergence of more complex social relations. In the development of Roman law, after the development of customary law and then juridical law, the free legislative power of the emperor was recognised, and already the Digestas contained the thesis of the "Princeps legibus solutus", which implied the emperor's legislative power (Caenegem 1980:616). Thus the law of early republican Rome, which had been largely independent of the state, was increasingly determined by the imperial state apparatus. In the development of early medieval European law, the path already taken in the development of Roman law was repeated, and the initial spontaneous formation of law within the framework of customary law was replaced over the course of several centuries by law created by the central power of the state, the end of the 17th century. In the 12th century, after the discovery of the Digestas, a dispute arose over the power of the ruling legislature. In contrast to the Digestas passage mentioned above, Accursius found a passage in Gratianus' Institutio that suggested more of a connection with sovereign law, and took the position against the "princeps legibus solutus" that "re vera maius imperio est submittere legibus principatum" (Caenegem 1980:619). With the strengthening of the centralist state apparatus in the late medieval development, however, the thesis of the "princeps legibus solutus" became prominent again among the old Roman legal principles, and Jean Bodin, for example, later built the thesis of absolute sovereignty on it. In the course of the Enlightenment and the political revolutions around 1800, only the subject of the state's creation of law changed, and the parliamentary legislator took the place of the sovereign (on the transition from the codification of customary law to the conscious creation of written law, see the excellent work by Csaba Varga, Varga 1976). In Anglo-Saxon legal development, this is only coloured by the fact that statutory law only developed here in the course of the 20th century. However, the complex social conditions and the associated need for appropriate legal regulation are increasingly forcing the primacy of the law created by the state apparatus (cf. MacCormick/Summers 1991). 5.1.2. State control over the application of the law The development of state control over the application of the law has several aspects. One of these aspects is the determination of the legal decision in each individual case on the basis of the legal norms and the decision-making power of the state. In England, from 1066, immediately after the Norman Conquest, the adjudication of individual disputes was placed in the hands of the king's itinerant judges, whose cumulative decisions gave rise to the common law. But even with later changes, the members of the higher courts were appointed by the central power of the state at the time, although this became increasingly entrenched, and after a time only the class of barrister-advocates could be appointed by the Lord Chancellor. In contrast, in the development of German law, the judge was for a long time rather the executor of 115 the judgement, and the content of the judgement itself was developed by the law professors of the university faculties in the so-called file dispatch. This procedure was reduced with the establishment of the absolutist state government around 1700, but it was not until the middle of the 18th century that the judicial individual decision-making power was completely abolished and the judicial decisionmaking power was completed (Dawson 1968). Another issue is the extent of the state's and private parties' decision-making power in the conduct of court proceedings. The role and scope of the public judge in shaping litigation has been and continues to be fundamentally different in Anglo-Saxon legal systems and continental European legal systems. In the latter, the role of the judge is central to the shaping of the litigation, and the judge dominates the litigation both in finding facts and evidence and in deciding questions of law vis-à-vis the parties and their lawyers. In English and American litigation, on the other hand, the role of the judge is much more passive, and the presentation of the facts, their proof and the shaping of the whole issue are in the hands of the litigants (Thalmann 1989; Maxeiner 1990), and the judge can almost only judge the final factual outcome. This can even be in stark contrast to the facts of the case he believes to be correct and the judgement that corresponds to them. However, if the person concerned does not bring forward the necessary facts - or if he has brought them forward but cannot prove them - the judge can, against his better knowledge, only take the established facts as a basis. The case is thus shaped more by the private parties, and the role of the judge, who embodies public authority, is less important. Recently, however, in both England and the United States, at least in private litigation, there has been a shift towards a more judge-dominated perversion of the law in continental Europe (see Sobich 1999). The more active litigation powers of the judge have to some extent curtailed the procedural powers of private parties and their lawyers. This shows that the demands of a complex society for predictable law have forced the strengthening of the state element, as already observed in continental legal systems from 1800 onwards. However, the role of juries continues to limit the role of state judges in determining the law in US law. In contrast to England, where the role of juries in private justice has largely disappeared since the end of the 19th century and has been reduced in criminal justice, the involvement of juries in court proceedings has actually increased in the United States. And in a trial already dominated by the parties' lawyers, it is the conviction of the lay jurors that decides the verdict that the judge, in the role of policeman, pronounces as a sentence. In continental European legal systems, on the other hand, lay jurors and lay judges play a much smaller role than the state-appointed judges who decide the trial, and their role has continued to decline in recent decades. 5.2 Forms of private supra-legal regulation The predominance of state power in the entire legal process, both in the creation and application of law, can be understood as a tendency towards a higher level of social development. However, the opposite trend can also be observed in certain areas of law, namely a strong increase in the influence of private power. Four of these trends are examined below. One of them is the possibility of abrogating the law through arbitration; another is the "private" labour law of collective agreements alongside state labour law; the partial privatisation of criminal procedure and criminal law is represented by the emergence of "victim-oriented" legal doctrines, in which the offender's lawyer and the victim's negotiator take precedence over the state's punitive power in certain respects; and finally, the privatisation of the penal system can be included in this circle. 5.2.1 The possibility to override state law: the Arbitration In private law relations, modern legal systems offer the possibility, especially in economic matters, to dispense with state law and ordinary jurisdiction and instead resort to arbitration, which is mutually controlled by the parties. The extent of this possibility differs fundamentally depending on whether the 116 organisation of society as a whole has traditionally been largely through the state or whether, on the contrary, the power of the state to organise society is less (Kotzorek 1987). For example, in Soviettype societies, which were fully state-organised, arbitration was non-existent or insignificant, whereas after the regime change in 1989 its importance increased by orders of magnitude in these countries, including ours. Arbitration was generally characterised by the fact that it could take place in relations between professionals, but as a result of the increasing trend in recent decades, it is becoming the general rule that it is sufficient for one of the parties to be involved. In Germany, for example, the law has developed in this direction (Wolfgang 1994:120-125), and the Model Law developed by the United Nations Commission on International Trade Law (UNICITRAL) recommends it (cf. Kecskés/Wallacher 1995:III-V). In Hungary it was also enacted in this form in the euphoria of liberalisation after the fall of communism and is now valid law. The main feature of arbitration is that it is single-tiered and no appeal against the award is possible. An arbitral award can only be appealed to the ordinary court on grounds of invalidity, but this is only possible in a minority of cases due to the narrow delimitation of the grounds for invalidity. The decision of the arbitral tribunal is then enforceable in the same way as the final decision of the ordinary court, whereby there is no difference between a "private" and a public arbitration. The attractiveness of this form of adjudication lies in its speed, and its popularity is greatly enhanced by the multi-level nature of ordinary public adjudication and the proliferation of litigation techniques in ordinary adjudication due to the inclusion of various procedural guarantees. But the increase in opportunities to challenge and circumvent contracts on "softer" legal grounds with the advent of constitutional review and other means of review can also be cited as a reason. And time is money, and this is especially true for those who work professionally in business. So winning a lawsuit after several years is hardly better than losing it, and the former can lead to bankruptcy as much as the latter. In a way, then, the growing role of the defendant can be seen as "payback" for the increased guarantee of legal service. This explains why it is now possible for one party to be a professional economic operator and the other a private party. The actual extent of the use of arbitration in Western European countries is illustrated by a figure from the early 1990s, according to which it was agreed by the contracting parties in 80% of all export contracts in German mechanical engineering (Böckstiegel 1992). In Hungary, the Arbitration Act of 1994 created one of the most liberal solutions in the world, but the actual use of this legal option remained low in the 1990s (see the annual issues of the journal Gazdaság és Jog, which includes a permanent section with comments on arbitration decisions). To what extent is there a "private" element in arbitration, and to what extent is the dominant power of the state still present? The answer to this question comes from distinguishing the role of the parties in the selection of arbitrators and in determining the course of the proceedings. The appointment of the arbitrator is essentially based on the agreement of the parties. In domestic practice, the parties usually select their own arbitrators from a list of arbitrators drawn up by the Chamber of Commerce and Industry, which includes lawyers, academics and other professionals. However, the parties may also agree on an arbitrator not on the list. The arbitrator himself/herself may enter into a civil law contract with the parties for the performance of his/her task and commit himself/herself by setting a deadline to reach a decision within a certain period of time (Wallacher 1994:115). Arbitration rules are also essentially based on the agreement of the parties and may even be part of their contract to regulate how arbitration will proceed in the event of a dispute between the parties. However, if they do not regulate this procedure, the relevant provisions in a separate law on arbitration or in the laws on ordinary jurisdiction apply (the national legislation has laid down the rules for this case in Act LXXV of 1994 on Arbitration). This "privatisation" of our legal services will undoubtedly radically speed up the resolution of disputes between parties, but it will also result in the potential economic and other inequalities between parties being better taken into account in the resolution of disputes. For this reason, the former German law provided, for example, that an agreement concluded by taking advantage of the economic or social situation of one of the parties was void. However, this "softened" this procedure and made the arbitral award more vulnerable to challenge on strict grounds of nullity - thus calling into question its function - and the new legislation abolished it (Wolfgang 1997:125). The abolition of 117 state law and state courts is thus better achieved through more liberal legislation. 5.2.2 State labour law and "private" labour law In the field of employment regulation, the openness of the relationship between state regulation and private definition outside the state is particularly striking. In societies where the state comprehensively organises social life and where the characteristics of etatism generally prevail, the regulation of employment relationships is predominantly carried out through detailed state regulations, which result in employment contracts being removed from the private sphere. Conversely, in countries where society is less organised by the state, employment contracts, like other contracts, are essentially regulated by private law and the state intervenes only in a few places. Accordingly, in the Soviet-style organisation of society, including for a long time in Hungary, labour law was exclusively state labour law and employment relationships were completely disconnected from private law. In the employment contract, the parties had to take into account a series of binding legal provisions that regulated the employment relationship in all decisive points at the central level (cf. Czuglerné 1990). After the regime change in 1989, Hungary also moved to a market-based labour law system under democratic political conditions. In the process, state regulation was abolished at crucial points in labour relations and agreement was either left entirely to the parties to labour contracts or regulated by collective agreements between the representative bodies of employers and employees. In reality, however, the situation in the 1990s developed in such a way that the "private" labour law of collective agreements could only absorb a very small part of the regressive state labour law. The reasons for this are, on the one hand, that the fragmentation of trade unions on the employee side does not usually allow for agreement and, on the other hand, that the employer side has no interest in concluding collective agreements (cf. D. J. 1998; Kádár 1998). Indeed, if no collective agreement is reached in a company or in a whole sector, the employment contract tends to have the characteristics of a private contract, and the economic and other imbalance of power between the parties shifts the power of determination in favour of the employers. Moreover, one can see in our current labour law a regulatory technique that prescribes a minimum set of things for workers, and that only in the collective agreement can a number of issues be deviated from in favour of workers. This in turn gives employers the incentive not to conclude a collective agreement. Thus today, at the turn of the millennium, only just under 30% of companies have collective agreements, and only a third of these have been extended to cover entire sectors, i.e. barely 10-12% of all sectors have a collective agreement today (cf. D.J. 1998). Moreover, these collective agreements almost only cover wages, leaving the regulation of other aspects of industrial relations to individual employment contracts. Of the three levels of employment regulation, the private employment contract is the predominant one in national legislation today, and the "private" employment law of collective agreements has only gradually developed alongside retired state employment law. In Western European countries, on the other hand, the emphasis is on private labour law, with representative bodies of employers and employees negotiating the detailed regulation of labour relations on a sectoral basis (see Rupp 1998; Sodan 1998). It should be noted that in recent decades an influential legal concept has also emerged that aims to develop a "negotiated" labour law alongside state law as a model for other areas of law. This is the concept of "reflexive law", developed by the German legal scholars Günther Teubner and Helmut Willke in the first half of the 1980s. This concept of law takes its social theoretical starting point in the theory of complex systems and argues that the development of society and its sectors has reached a level of complexity that makes it increasingly futile for central legislation to understand and adequately regulate relations. In this situation, the laws of the state centre, while trying to solve problems by keeping some things in mind, themselves create a series of new problems because the effects of the overall situation in the other direction are not seen through, and then the new laws made to solve them multiply the mass of new problems. The Teubners see the direction of the solution in the fact that the state must give up the hopeless struggle at the level of legislation and leave it to the opposing interest groups of the individual sectors of society, the top-level associations, to negotiate the internal regulation of the respective sectors of society among themselves. This extended collective 118 bargaining law would only be supplemented by the state through its enforcement apparatus, while the procedure for negotiating collective agreements would be regulated in the crucial points by state legislation, so that the stronger position would not be able to abuse its position and the regulation would actually be the result of compromises between the participants of the respective sector. Beyond labour relations, this solution would mean that in higher education, health care, mass media, etc., the representative bodies and umbrella organisations of the opposing groups would decide on regulation, as "reflexive law" instead of the current state law (cf. Teubner 1982; 1986; Teubner/Wilke 1984). 5.2.3 The crucial role of the private party in criminal law In criminal law, there are clear tendencies for the "private" criminal law of simple societies to be replaced in the course of development by the law of crimes prosecuted by the state, and for criminal law, which was originally the law of communal support for the victim's private revenge, to be transformed into the law of the state's criminal power (cf. Marton 1992; Zlinszki 1991), whereby the harm to the crime victim is eclipsed by the protection of the community as a whole through the prevention of future crimes. The public prosecutor as the representative of the state's penal power thus becomes the central figure in criminal law and criminal proceedings, facing the accused and his or her lawyer before the judge, who is also on the side of the state's judicial power. In this structure, the victim of the crime and the specific harm suffered by the victim recede into the background. This process naturally proceeded at different speeds in the legal development of European countries, and while in continental countries, with the nationwide establishment of the public prosecutor's office, the state had already taken over the task of solving crimes in the second half of the 19th century, in the English development at the beginning of the 20th century it was much more the responsibility of the crime victim to take steps to solve the crime, gather evidence and prosecute it in court (Günther 1973). The private prosecution of petty offences thus remained more widespread in England than in continental criminal law, which was shaped by the prosecution service, but the role of the state as a prosecuting authority also became more important here in the 20th century. This long-term tendency seems to be changing with the new criminal policy that has emerged in recent years, which aims to place more emphasis on the reparation of the victim of a crime than on the punitive power of the state and the protection of the community as a whole (from future perpetration) (cf. Seelmann 1990). The main objective of criminal law thus becomes the reparation of the victim's harm, and consequently the punishment of the offender is also made dependent on the extent to which he commits himself to reparation of the victim's harm (whereas this does not play a role in a punishment policy aimed at preventing future offences, and the severity of the offence committed and the degree of guilt or culpability of the offender are the really decisive factors). This "victim-oriented" criminal policy also leads to a fundamental change in the criminal procedure by reducing the central role of the public prosecutor and bringing the victim and his or her lawyer to the fore. For the offender, reconciliation with the victim in the context of reparation has an influence on the entire further criminal proceedings and can even lead to the discontinuation of further proceedings or at least to a much lower sentence for the offender's crime, while failure, on the other hand, results in a much higher sentence (Seelmann 1990:165). In practice, this amendment makes the series of negotiations between the lawyers of the accused and the victim the centre of the criminal proceedings, while the powers of the public prosecutor, who represents the penal power of the state in the criminal proceedings, become dependent on the negotiations of the two lawyers. The Germans have even suggested that a central state fund be set up from the fines, from which an offender who undertakes to make amends to his victim can take out a low-interest loan, since the offender's financial situation often makes a settlement impossible (see Rixen 1994). This change brings criminal procedure very close to the structure of private lawsuits and can be described as the "privatisation" of criminal law. To the extent that the passive role of the judge in establishing the facts contributes, as it does even more in Anglo-Saxon legal systems than in continental European legal systems, the role of the victim's and defendant's lawyers becomes even more dominant. This change began in the United States, but to a lesser extent there have also been shifts in this 119 direction in continental European countries. It remains to be seen to what extent this "privatised" criminal law will be temporary or permanent. 5.2.4 The privatisation of the penal system In the course of the Enlightenment, it became increasingly accepted that the use of force by private parties, by private powers, is forbidden and the exclusive right of the state in society, and that the state, with its monopoly on legitimate force, must be placed under the control of society. This idea has become one of the cornerstones of the modern democratic constitutional state, and it is therefore interesting to consider the developments that have taken place in recent years in the most exclusive area of the state, the penal system. Here, in a liberal constitutional state, the harshest possible sanction can take place through the legal deprivation of liberty by imprisonment, the execution of which has been the most exclusive task of the liberal constitutional state since the Enlightenment (Flügge 2000:259-262). Nevertheless, the privatisation of prisons began in the mid-1980s in the United States, Great Britain and to some extent France have followed, but also in Germany there are influential legalpolitical groups that strive for this (cf. Smartt 1995; Maelicke 1999; Lilly 1999; Paulus 2000). The original American idea, which formed the basis for the construction of private prisons at lower security levels as part of the general "denationalisation" initiated by President Reagan in the mid1980s, was that contractors would receive funding per prisoner per day from the state to be used for the execution of the prison sentence on the prisoners. The most important aspects of the prison system are regulated by state law, otherwise it is up to the prison contractor to organise the prison system. Of course, the state prison inspectorate tries to control order in private prisons through random inspections. For example, in the late 1990s, a private prison in South Carolina was not renewed under the annual state contract because it was found that a group of inmates were constantly shackled hand and foot (Lilly 1999:78-80). In any case, in 1998 there were 102 private prisons in the USA with 75,000 inmates, although the total prison population at that time was 1.6 million (Maelicke 1999). In Great Britain, this approach was adopted in 1988, following the American model, because experience showed that private prisons could organise the execution of custodial sentences at 15-20 % lower costs and still make a profit, so that venture capital could participate in the construction of private prisons (Braum/Varwig/Bader 1999). The Thatcher cabinet, under pressure from overcrowded British prisons but unwilling to increase state involvement, then decided to solve the problem by having the newly built prisons run by private companies. This development policy has not changed since, despite changes in government, and the current Labour government is also essentially using private prisons to solve the problems of lack of space in the prison development programme until 2005 (Lilly 1999; Maelicke 1999). In France, too, there was a development in this direction from the 1990s onwards, but here state control over the operation of prisons was retained in several places, so that one can only speak of partial privatisation here. In Germany, on the other hand, partial privatisation has not yet taken place, but the CDU and the Greens have already included the institutionalisation of private prisons in their programmes. It is true that in the provinces where these parties are in government and have the legal possibility to do so, they have not taken the initiative, which is an indication of the realisation potential and limits here. But even in Germany, it is generally doubted that the legal possibility of using private detention - and thus legitimate private violence - would pass, given the broad powers of constitutional jurisdiction (Flügge 2000:259). According to these views, the detention of citizens and the use of coercive measures in this context cannot be in the hands of private entrepreneurs, but should only be reserved for the state under community control. In summary, on the privatisation of the prison system, the situation today is completely open, and while in most countries the state monopoly still exists, some important countries are making great strides in privatisation. ******************************************************** 120 The position of the state as a determinant of law is therefore more colourful than the traditional views of legal theory at the level of legal concepts. While there are fundamental trends towards the development of complex societies that reveal an increasing dominance of the state at key points in the legal process, there are also, as our analysis has shown, a number of points where significant opposing trends emerge. In order to make sound statements on legal theory, we need detailed information on the changes in the individual areas of law. 121 Chapter IV Sources, interpretation and validity of the law 1. The sources of law The diversity of approaches from the philosophy of law, the sociology of law and general legal doctrine to the question of the sources of law had already begun to appear in the first decades of the 20th century. The classic summary by Alf Ross, published in 1929, reduces the theories of the sources of law to three different approaches. The causal approach to legal norms tries to answer the question "Where does it come from?" by examining the sources of law. The question "What gives it validity?" characterises the approach of the other group of legal source theories, and finally the question "How can we know?" A closer look at the three groups reveals that the first group includes those who, from a sociological perspective, ask what causally produces a legal system content. More specifically, they ask about the causes that have a determinative force for the actions that are the lawgivers in a law. These include tradition, prevailing religious or moral views, economic power relations, class interests, etc. The second category includes those who ask about the ethical determinants of the legal basis that give moral force to law. These are, for example, theories about the source of law based on the will of God, reason, a contract, recognition, etc. Finally, the third group includes those that ask about the cognitive foundations of law. Ross points out that this third occurs in the first two conceptions of the source of law (i.e. they must all be recognised in some way), so as a source of cognition they must also have a factor in each. This, then, is the fundamental starting point. Looking at Ross' summary of his own conception of the source of law and law, one can say that he tries to take an intermediate position between Kelsen and the sociological (Ehrlich, Kornfeld) conception of law. Law is a totality of social norms defined by the changing facts of social reality and the resulting totality (by which he essentially means a system of meaning!). Kelsen's legal system, which starts from a single basic norm, is not correct - instead, law must be a totality based on social reality, and then law is not a simple logical inference, but a comprehensive system of coherences ("continuous coherence"): "The logic of the legal system consists in total coherence". It follows that the only ultimate source of law is the system itself, i.e. the overall coherence. For Ross, law is only the very concretely formulated law, so abstract law is only a hypothesis. Every norm only makes sense in context, which is why the ultimate source of law is the system itself. At the same time, Ross also distances himself from the sociological conception of law, whose representatives dissolve law in the determination of social facts. On the contrary, "... a factual phenomenon acquires its legal quality only through its incorporation into a system". (Ross 1929:311) Ross thus believes that the right path can be found between the Scylla of Celtic positivism and the Kharübdis of sociological legal theory. It also shows that the quality of law lies not in its theorisation but in its social aspect. In other words, the fact that it already functions habitually as a right gives it its decisive moment, and that the postulated right becomes a right by being transformed into a right: "Ultimately, all rights function as customary law". Finally, Ross analyses the determinants of law under the heading of sources of law and places the system last, with the legislature and the judge as independent legislators. "Whether a factor is deductively concrete only within the framework of the law or whether it is an independent legislator outside the law depends on the existence of a determinant for the particular legal context. For the legal context is not only deductively but also inductively constantly constructed" (Ross 1929:32). That is, 122 the sources of law are the system ("continuous coherence"), judicial decisions and legislative decisions. Among contemporary authors, Klaus Adomeit holds a similar view, although he even considers public opinion to be the ultimate source of law. In his view, law has four places of formation: the legislature, the judges, the legal dogmatists and the public. "The four places of law formation are essentially the same, since the determinants emanating from them are recognised as law". Therefore, Kelsen's reduction to the legislator as the sole source of law is wrong (Adomeit 1986:199). In Hungarian legal literature, Vilmos Peschka has dealt most extensively with the problem of sources of law (Peschka 1965; 1995), and his summary has usually been the most influential in the discussions of other Hungarian authors in recent decades. He quotes Salmond on the distinction between substantive and formal sources of law: "The formal source of law is that from which the force and validity of the law is derived. From it derives the power of the law. The substantive source, on the other hand, is that from which the substance and not the validity of the rights is derived." (Peshcka 1995:15) He then cites the neo-Kantian distinction between the inner and outer source of law from Somló Bódog's Foundations of Law: "The inner source of law is the factor from which law derives, and the outer source of law is the manifestation in which law appears." (Peshcka 1995:16.) He implies that the latter is nothing but another internal bifurcation of the latter (formal) from the substantive/formal disjunctive, implying also the elimination of the substantive source of law. Peschka then summarises that some concepts of sources of law consider sources of law in terms of the genesis of law, while others conceptualise them in terms of the source of knowledge of law. Thus, we can summarise the many different definitions in the genetic and gnoseological concepts of legal sources. Miklós Szabó, in his discussion, reduces the many approaches to a thematisation of the way law is formed and a focus on the bearers of law and the knowability of that law, agreeing to some extent with Peschka, but considering that this is best captured in Bodenheimer's jurisprudence with its distinction between formal and anti-formal sources of law (Szabó 1995:33). Returning to Peschka's distinction, "There can be little doubt that the genetic concept of legal source focuses on the legislative process, whereas the gnoseological concept of legal source focuses on the process of the realisation and application of law", he writes, after pointing out that the distinction between substantive law and subjective law must also be seen in the light of the genetic-gnoseological division of the concept of legal source (Peschka 1995:18). To summarise these considerations, the analyst is presented with a picture of the sequence "genetic source of the concept of law - legislation - subject of law" alongside the sequence "gnoseological source of law - application of law - subject of law". In this article, on the other hand, we would like to argue that it is better to look at the whole problem of the source of law from the point of view of the judge who applies the law. From there, the law can be seen in all its verticality, provided of course that we have a sufficiently broad concept of law and understand it on several levels! 1.1. Sources of law in the concept of the multi-layer legal system The theoretical thematisation of legal sources is decisively influenced by the authors' conception of law, and depending on whether they draw the boundaries of law more broadly or more narrowly and where they place their emphasis in describing the overall structure of law, a framework for the thematisation of legal sources emerges. Our concept of law starts from the multi-layered nature of law and sees the conceptual context of law in three traditional conceptual levels (text, legal doctrine, judicial casuistry) and, more recently, in the constitutional level of fundamental rights, which has been superimposed on them. The proportions of the "three plus one" layers of law and their relationship to each other can be empirically examined in the various modern legal systems, and these layers can be discerned everywhere, albeit with some differences. For an understanding of the concept of legal source, reference should be made to the analysis of Niklas Luhmann, who understands legal sources as forms of decision (cf. Luhmann 1981). Luhmann emphasises that the concept of legal source did not appear in the Middle Ages and only became an important category in legal theory from 1800 onwards. In a world of unchanging law, in which the "old good customs" were law and their abolition was out of the question, it would have been pointless to look for another source of law besides the existing law. The sources of law were then the existing 123 laws themselves, the codes of law. It was only when the practice of constantly changing existing law became commonplace and it became apparent that the source of law was not the existing law itself, but that it derived from an underlying determinant and that new laws were always emerging, that the question of the sources of law arose. In other words, the positioning of law, its dependence on decisions, accelerated after the modern era, forcing one to question the sources of law (Luhmann 1981:67-71). This idea can be summarised as the emergence of law as decision and the institutionalisation of the forms of decision that lead to such decisions. In our analysis, we will follow this line. The completeness of the factors to be considered as sources of law can best be brought into the analysis by going to the level of the sentencing judge. The summation of the layers of law makes the law act as a vertical, the resting point of which is always in the individual case decisions. Of course, it is important to place oneself only at the level of the judge's decision and not in his position, since the judge necessarily views the law through the prism of the case, whereas the external observer cannot do so and must include in his analysis the relationship between the legislative and the fundamental levels of the law, or between both and legal doctrine. The judicial decision, only as the last link in a vertical chain of intellectual determination, is a good position for an analysis of the layers of law together. To summarise the concept of the source of law: The forms of decision-making that regularly affect judicial and administrative decisions and whose norms and normative-conceptual guidelines are made binding on judges by written law (constitutional law, statutory law, etc.) or, in its absence, are sanctioned as customary law and impose constraints on judges, constitute the broad spectrum of decisions that are considered sources of law in a legal system. According to recent international surveys (MacCormick/Summers 1991, 1997), judges in different jurisdictions are constrained in their decision-making by the following factors - written or customary: 1. norms of state power (constitution, statutes, ordinances, municipal codes, etc.) 2. guidelines contained in the decision-preparing materials of the legislature, constitutional legislators, legislators expressing their will or intent 3. normative factors established by a decision of the Constitutional Court. 4. various decisions of the Supreme Judicial Forum and/or norms that have become entrenched in judicial practice. 5. normative guidelines in established jurisprudential opinions. In each European legal system, the normative determinants from these five sources (forms of decision-making) are pronounced to varying degrees and guide judges in their decisions. For example, while in Sweden normative determinants play a very strong role in shaping individual court decisions, elsewhere they are less present or not present at all as a source of law (cf. Peczenik/Bergholz 1991:311-358). Similarly, there are legal systems in which almost every decision of a higher court contains a reference to the (prevailing) jurisprudential opinion and the study or monograph containing it (e.g. The same differences can also be observed in the recognition of precedents and case law as a source of law between countries. In the following, the path chosen is to present the functioning of the five sources of law primarily on the basis of the Hungarian legal system and to make some comparative references to other legal systems when analysing the individual sources of law. 1.2 The sources of law in the Hungarian legal system With regard to the Hungarian legal system, it is particularly important to include in the analysis not only the sources of law formally enshrined in the Constitution or in statute, but also those enshrined in customary law, if one does not want to lose sight of the realities of domestic legal life. It should be noted that in presenting the Hungarian legal source situation we rely on our empirical surveys which analysed the judgments of Hungarian judges on the basis of a total of about 900 decisions of the higher courts published in the Judicial Decisions in recent years (see Pokol 1999b, 2000). 1) The forms of decision-making that norms of state power (constitution, law, decree, etc.) create as sources of law. In the Hungarian legal system, the norms of state power play a central role for judges and other decision-makers who judge on a case-by-case basis. On a scale of the different areas of law, the attachment to the text of state norms - i.e. the meaning expressed by the text - is strongest in administrative law, followed by criminal law and, to a lesser extent, civil law. The strong text- 124 binding nature of administrative law means that the source of law is narrowed to the norms of state power and the judge or other legal practitioner does not receive normative guidance from other sources. This is one of the consequences of the detailed nature of state administrative regulations (statutory provisions, ordinances, etc.). Only in this constellation can a predictable narrowing of the scope of jurisdiction and a predictable administration of justice be ensured. In criminal law, the relatively strong attachment to the text - due to the use of abstract terms with open evaluations - is only possible through the inclusion of additional sources of law, and only in conjunction with these is it possible to achieve predictable judicial decisions and jurisdiction. The same applies to an even greater extent to civil law. As far as the legal source character of the rules of state power is concerned, the limited role of the Constitution in jurisprudence should also be noted. In the Hungarian legal system - unlike, for example, in the American or to some extent in the German legal system - the role of the Constitution as a source of law is directed at the legislature and other state legislative procedures, and it exerts its effect in the formulation of statutory provisions and ordinances (or if it "does not have sufficient effect" and the requirements derived from the provisions of the Constitution are not taken into account in the drafting of the respective law, the Constitutional Court annuls it by order). In individual rulings, however, the constitutional provisions are no longer an independent point of reference, but only reach the judges through the statutory provision by being integrated into it. After the regime change in 1989, when the institution of constitutional jurisdiction emerged in Hungarian law, the Hungarian judiciary and the legal profession - in addition to the traditions of the preceding decades - were reinforced in this direction by a landmark decision of the Constitutional Court in 1991, which states that the Constitutional Court does not intend to challenge the Supreme Court's monopoly of jurisdiction and that its decisions are always limited to the applicable legal provisions themselves. (cf. AB decision 57/1991). This is in contrast, for example, to the Germans, who have established the principle of constitutional interpretation for the adjudicating judge and prescribed its essential elements. The Germans have thus incorporated the provisions of the Constitution (and thus the decisions of the Constitutional Court) into the decision-making of judges and other jurists. While the Hungarians, without intending to do so, have excluded the level of the Constitution and the decisions of the Constitutional Court from the determination of judicial verdicts. 2) The legislative processes for the creation of norms of state power in modern democratic states produce a number of documents which have an informative effect on the meaning of the legislation adopted at the end of each legislative process. The question has therefore arisen very early on to what extent these documents can or should be taken into account by the judge when applying the legislation in question. A prohibition in this area only formally exists in the English legal system, but even without a prohibition it is quite rare in modern legal systems for judges to refer to them. Apart from the sporadic occurrence, this is relatively common, especially in the Swedish legal system. For this reason, the documents prepared during the drafting of each law (guidelines containing the concept of the law prepared by the Ministry of Justice as a starting point for the drafting of the law, a document summarising the opinions expressed in the debates of the parliamentary committees, etc.) are always published in the special publications alongside the text of the law and are eventually published together with the adopted text of the law as a kind of "back-up". Because of this tradition, the definitions of meaning and normative specifications in the Swedish legislative text can remain at a rather abstract level, as the back-up in the preparatory material serves as a detail (cf. Bergholz/Peczenik 1991: 327). In the Hungarian legal system, court rulings sometimes refer in the abstract to the will of the legislature, to the "obvious intention" of the legislature, but never refer to preparatory materials as evidence of this. Instead, court rulings sometimes refer to the ministerial explanatory memorandum of the law, but this has little to do with the actual intentions of the parliament and is rather an expression of the will of the ministerial preparatory apparatus. (In Hungarian parliamentary debates, the explanatory memorandum is not even included in the text that is supposed to be affected by proposed amendments, whereas, in contrast, proposed amendments to refine the text of the law are often adopted en masse in parliamentary debates on the law). In any case, it is noticeable that the reference to the ministerial explanatory memorandum has receded into the background in recent years, even in court decisions, whereas this was still common in the 1970s. 3) The legal source character of constitutional court decisions. The legal source character of 125 domestic constitutional court decisions cannot be overestimated in the creation of laws and other legislation. An important aspect in the drafting of laws is the analysis of the normative requirements in the relevant decisions of the Constitutional Court and the corresponding shaping of the content of the draft law or other draft legislation. The almost unlimited right to appeal to the Constitutional Court and the far-reaching right of the Constitutional Court to declare laws null and void - or to prevent the promulgation of an adopted law by declaring it unconstitutional - give the greatest weight to the legal source character of the Constitutional Court's decisions at the level of creating norms of state power. However, enabled by the above-mentioned decision of the Constitutional Court 57/1991 (which the Supreme Court noted with great satisfaction and confirmed in its own decision vis-à-vis the lower instances, see e.g. ECJ 1998/223), the practice has developed that the arguments of the Constitutional Court decisions and the normative guidelines contained therein are not taken up in case law. An analysis of the hundreds of decisions of the Supreme Court has shown that only in two or three cases reference has been made to a constitutional court decision and that even when a decision of the highest court gives a constitutional interpretation of fundamental rights, the interpretation is essentially determined by a different weighting than that found in the decisions of the constitutional judges. In summary, the legal source of the Constitutional Court's decisions is found primarily in the wording of the statutory provisions, and it is only when they are incorporated by them that they are transferred into the jurisprudence of the courts. 4) Decisions of the Supreme Court as sources of law. Here it is particularly important to highlight the differences between written law and customary law. At the level of formal law, Article 47 of the Constitution provides that one form of Supreme Court decision, the decision of the judiciary, is binding on the courts, i.e. it is a source of law. This constitutional provision came into force on 1 October 1997, and until then, at the level of written law, the other two forms of decision of the supreme judicial body, the directive and the landmark decision, were binding on the courts. The normative guidance published in these forms was to be taken into account and decided accordingly by judges when deciding questions of law arising under the relevant legislation. Since the new form of jurisprudence introduced in October 1997, they are no longer binding on judges at the level of written law, but our empirical surveys show that judges still regard them as binding and that when they do not do so, Supreme Court judges set aside the judgments before them as unlawful on appeal or review. From written law to the level of customary law and sanction, but no less as a source of law, the policy decisions and the directives are still in force. The existence of a body of norms accumulated over the years in the form of these decisions could not have changed the situation because if they ceased to exist, the thousands of legal dilemmas that arise daily between abstract legal texts would be decided differently in different parts of the country, quickly leading to chaos in the administration of justice. It can be said that these two forms of decision have reached the level that has always characterised the collegiate positions of the Supreme Court. The most important legal norms of this form of decision have never had the character of a source of law at the level of written law, but have been sanctioned by customary law for decades. An analysis of the Supreme Court's decisions has shown that in about one fifth of the cases, reference is made to fundamental decisions, guidelines and opinions of the College, and that failure to comply with one of the relevant norms in one of these three forms of decision leads to the annulment or amendment of the judgment in appeal or revision proceedings (formerly: cassation proceedings). This change in character is due to the inconsistent nature of the constitutional amendment of October 1997. This amendment does not regulate the fate of the normative material accumulated in landmark decisions and guidelines, and the removal of the binding nature of these forms of decisions does not answer the question of what should happen to the normative material accumulated in these forms. If one had wanted to eliminate the normative material of the Supreme Court that restricts the discretion of judges in individual cases, then one should have prohibited it, given the existence of the normative material created. (Of course, as mentioned above, the uniformity of jurisprudence at the national level would then have been abolished very quickly). If they had wanted to transfer it to the new legal form of case law, they could have authorised the new judicial bodies, setting a deadline, to promulgate and issue the previous body of norms as case law after a selection procedure. In this case, the normative material available in the third form of decision, the collegial decisions, could also have been transferred here after a selection. Since this did not happen, but the judicial hierarchy remained unchanged under the control of the Supreme Court, the character changed spontaneously and the 126 sources of law changed from the binding force of formal law to the binding force of customary law. In any case, no new normative material is created any more by our supreme judges in this form, but these norms are only changed in case law. In addition to the three main sources of judicial law examined, there is a fourth source of law found in and consolidated by the jurisprudence of the Supreme Court. This area has undergone significant changes in recent decades. According to our empirical surveys, in the 1970s, in the field of criminal law, reference to the relevant previous decisions of the Supreme Court to resolve legal dilemmas left open by case law was relatively rare (about one tenth of criminal judgments), while in civil judgments it was almost absent at that time. By contrast, in the 1990s and increasingly each year, almost half of the criminal judgments and one fifth of the civil judgments of the supreme courts relied on these guidelines in addition to the statutory provisions. An indication of the strength of the sanction is the fact that Supreme Court judges often consider it a violation of the law if they have not followed their previous relevant case law and the legal practice developed in relation to it in the lower court judgments before them. Even if a single judgment is not yet considered binding, it is considered binding for legal practice if several such higher court decisions have already pronounced a normative guideline, and deviations from this are sanctioned by the Supreme Court judges in the cases before them. Therefore, in order to summarise the sources of law under the Supreme Court's forms of decision, the case law considered binding in written law, the landmark decision, the guideline and the supreme court case law established in court practice should be highlighted as sources of law that are binding and sanctioned under customary law. 5) The legal source character of normative guidelines in jurisprudential opinions. The summaries of the established legal dogmatic conceptual systems and classifications are contained in legal textbooks, monographs and studies and are widely taken into account in the drafting of legislation. Moreover, these systems of categories and classifications are passed on in the process of legal socialisation throughout the legal profession and are used as evidence by lawyers involved in lawmaking. Similarly, the results of studies analysing the relationship between individual fundamental rights and the overall problem of fundamental rights jurisprudence in most countries with constitutional jurisdiction are important evidence for the decisions of constitutional courts working with the emerging constitutional level of fundamental rights. Furthermore, at the level of judicial decision-making, the study aims to explore the role of jurisprudential opinions and guidelines in the development of individual judicial decisions, in the concretisation of abstract legal provisions for a particular case. According to the view already set out in our starting point, a factor containing normative guidance may be considered a source of law if it is prescribed by formal or common law as a compelling force for the formation of a case law or other decision of the courts. It is therefore necessary to examine whether, in addition to statutes, precedents, judicial practice and constitutional court decisions, jurisprudential guidance is referred to in judicial decisions when it comes to resolving legal dilemmas left open by a particular piece of legislation, and whether the frequency of such references reaches a level where they are accompanied by the idea of coercive force. If, within a legal system, the practice of referring to the relevant jurisprudential guidelines reaches this level, then at least the established jurisprudential guidelines are considered to be a source of law. If we look at modern legal systems, we see that there are major differences in this area. In several countries, judges are prohibited from referring to legal opinions, e.g. in England and France. In Poland, the naming of an author is not permitted when citing a legal opinion in a court decision, but relevant legal opinions may be cited (cf. Wróblewski 1991:267). In any case, this form of citation does not seem to be widespread in Poland either. In Germany, however, it is quite common to refer to relevant jurisprudential authors and their works in supreme court decisions when deciding legal dilemmas. The term "prevailing opinion" should be mentioned here, as it is an established source of law in Germany. The German courts - still in the heyday of conceptual jurisprudence in the last century often referred to the "prevailing doctrine" as a basis for their decisions when applying a particular law. The "prevailing doctrine" was disseminated in jurisprudence purely as a jurisprudential product and by naming the author or authors who advocated it. From 1900 onwards, when conceptual jurisprudence and thus the dominance of pure jurisprudence receded into the background and the role of the higher 127 courts as legislators increased in contrast, "prevailing doctrine" was replaced by "prevailing opinion". This is already an indication of the legal opinion held by the judiciary. In this form, the reference to the "hM" ("prevailing opinion") is still quite frequent in German judgments of the higher courts. The case law confirmed by judicial practice can therefore be regarded as a source of law in Germany due to its frequency and the fact that it is sanctioned by customary law. In the Hungarian legal system, empirical research has shown that jurisprudential guidelines cannot be considered a source of law. The analysis of several hundred Supreme Court decisions revealed that in hardly one or two cases reference is made to a "legal opinion". What is new in this area, however, is the emerging style of judicial decisions. Here, the focus is on analysing the opinions of legal scholars with specific authors and works - in deciding legal dilemmas, and the legal issues raised are often decided on the basis of one of these opinions. However, the small number of decisions in jurisprudence - barely thirty in the two years since its introduction - does not yet allow for concrete statements to be made in this area. However, if this form of decision takes root and the need to amend the Supreme Court's existing body of norms accelerates its issuance, in time this style of decision may lend the sanction of common law to prevailing legal opinions at other levels of the jurisprudence. In the longer term, the decision-making style of the Supreme Court will determine the decision-making style of the entire judicial hierarchy in each country. Summarising the position of the sources of law in the domestic legal order, apart from the role of the norms of state power, which primarily include the laws, the four sources of law of the Supreme Court (the case law decision with written legal fixation, the principle decision, the directive and the case law decisions of the Supreme Court consolidated in legal practice) should be mentioned; the "bisection" of the decisions of the Constitutional Court, which are specifically addressed to the legislative level (and go in the direction of case law), and finally the role of jurisprudential guidelines as a source of law. 2 The interpretation of the law The following analyses are presented as questions of legal interpretation in domestic jurisprudence, and this is the title chosen here. However, if one starts from the concept of a multi-layered law, in which, in addition to the textual layer of the law, the layer of legal doctrine, the layer of norms, maxims and other decision-making aids laid down in judicial casuistry, and the layer of fundamental constitutional rights and principles appear as an independent layer of law, then the questions traditionally analysed as the interpretation of "the law" can only be formulated in the context of the textual layer. One could say that this analysis shows the functioning of a particular part of the law by starting from the textual level. The thematisation of legal interpretation and the highlighting of its main problems for Hungarian legal life and legal education was undertaken by Imre Szabó (Szabó 1958; 1960), and the theses he emphasised have since been the guideline for answers when someone talks about legal interpretation after they have become established in the knowledge of several generations of lawyers. This thematisation, however, dates from a time when decisionist text positivism was most influential in shaping the understanding of law ("Law is that which the state authority proclaims in its decisions.") Thus, the complete textualisation of legal interpretation could indeed be derived from Szabó's thematisation of legal interpretation. The extent to which this was a consequence of the power relations of the time is, of course, clear from Imre Szabó's remark that according to the "former Soviet position" legal interpretation in the application of the law was not even possible, but only the interpretation of the authorities meant legal interpretation, and in the case of the judge, independently of this, there was only talk of the application of the law, and here legal interpretation was not even made possible (Szabó 1960:55). However, it is not difficult to see that in the conception of law that closely tied the law to state-party decisions, legal interpretation - even after overcoming the "former Soviet position" - already appeared as a loosening activity, and thus Imre Szabó's thematisation of legal interpretation, which is still valid today, implicitly conveys this today as well. On the other hand, the backward-looking interpretation of the law during this period also meant that these issues were not dealt with in detail in case law. For legal education, it was enough to mention 128 grammar, logic, taxonomy and historical interpretation, but it would be empty theory to deal with something that does not work in practice anyway. In the last ten years, since the beginning of the 1990s, the situation in this area has changed fundamentally and the work of judges is beginning to breathe life into judicial interpretation of the law. Indeed, the criticism expressed shows that judges, in their suddenly increased freedom of decision, often make the most divergent decisions in one and the same case or decide on an unusual legal basis. This increased judicial discretion will not lead to legal arbitrariness and predictable jurisprudence unless we systematically reconsider the fundamental issues of legal interpretation in jurisprudence and identify the focal points that can be observed in this area in Western legal systems. Judicial jurisprudence cannot do this from within - under the pressure of the daily burden of decision-making. Our analysis of legal interpretation is inspired by this insight. The research of the "Bielefeld Circle", in which a number of distinguished scholars from various countries in Europe and America examined the current state of legal interpretation between 1985 and 1991, was a crucial help and orientation (for a summary see MacCormick/Summers 1991). 2.1 The foundations of legal interpretation If we do not limit ourselves to the legal system of a single country, but look at a number of legal systems together, we can identify twelve bases of legal interpretation by which we can determine the meaning of laws and other legal provisions. In some countries, of course, these bases of interpretation are not equally important, and some are completely unknown, while in others almost all are used to some extent. Interpretation of the legal text according to the ordinary meaning of the words used; 2. interpretation of the legal text according to the special technical meaning of certain words, if a word or phrase has such a meaning in addition to its ordinary meaning, or if it has only such a meaning at all. 3. Contextual interpretation: the interpretation of a legal text in such a way that the words of individual provisions are given their meaning by placing them in the context of the whole law or a set of related laws. Interpretation of a legal text on the basis of logical maxims. 5. interpretation of a legal text by analogy. 6. interpretation of a legal text on the basis of precedents established in the previous application of the law in question. 7. 8. Interpretation of the legal text in the light of the legal principles of the field of law or the general principles of law. 9. the interpretation of the legal text in the light of fundamental constitutional rights and principles. 10. the interpretation of the legal text in the light of the ethical values underlying the law or a particular area of law. 11. the interpretation of the legal text in the light of the objectives of the legislation concerned. 12. and finally, the interpretation of the legal text in the light of the will of the legislator. Let us look at the context of these interpretative principles a little more closely. 2.1.1 Interpretation based on the general meaning of the words One of the questions to be decided in the interpretation of words and phrases is whether, if a word has a particular technical meaning, that meaning should be preferred or whether the general, everyday meaning of the word should be the one that guides the jurist. This dilemma is solved by different practices in different countries. In Poland, if there is no explicit legal definition of a term, the judge must adopt the ordinary meaning. In contrast, in France, when there is a conflict between the ordinary and the special technical meaning of a word, the latter prevails (see Wróblewski 1991:262 for Poland; Troper/Grzegorczyk/Gardies 1991:185 for France). In interpreting English written law, words must also be given their ordinary common meaning, on the grounds that legislation which is generally addressed to all should be drafted in such a way that it can be understood by lay people. Nevertheless, there are areas of law - such as tax law - whose details can only be understood by experts due to the abundance of technical terms. The next question arises from the change in meaning of words. Particularly in the case of legislation enacted many decades earlier, there may be a discrepancy in the meaning of certain words between when the legislation was enacted and when it is applied today. Even without political regime changes, the everyday meaning of words and expressions can change within a few decades. The most important rule in 129 this context is that the meaning at the time of application should always be the starting point, not the meaning of the words at the time the legislation was drafted. However, if interpretation in the light of the intention and will of the legislator plays a prominent role in a legal system - this is the basis for the interpretation explained in point 12 - then it is precisely the meaning at the time of drafting that is important and not the meaning today that is decisive. In any case, the reason for the solution given as the main rule is that if the new meaning of the words had been contrary to the intention of the legislature at the time, the legislature would already have made a change in the law, and the failure to make such a change would have created a presumption of support for the new meaning by the legislature. 2.1.2 The subject-specific literal interpretation A distinction must be made here between the legal-technical meaning of words and the meaning that arises in other professions, which is different from the ordinary meaning. While the former prevails in all jurisdictions, the special technical meaning of words used in other professions cannot override the ordinary meaning in most jurisdictions. However, there are tendencies towards a "social science" jurisprudence, and some groups of jurists are trying to integrate the arguments and language of economics, sociology, political science and social philosophy more fully into judicial decision-making processes. In so doing, they are being used in place of the ordinary meaning of words (such tendencies have been reported in the United States in particular, see Summers:1991:413). Finally, for the first two bases of interpretation - which can be summarised as grammatical interpretation - the question arises as to how far the meaning thus obtained is sufficient for the judge and when he can also fall back on other bases of interpretation. The fact that these two grammatical bases of interpretation form the starting point for the courts' decision is generally not disputed in any legal system. However, there are already major differences between countries as to when one should stop at this interpretation and immediately pass judgement. In France, it is quite clearly established that the judge or other jurist is obliged to stick to the literal interpretation if it is clearly the rule for deciding the case. The same is true in Poland, and the judge who finds that the relevant legal provisions clearly form the basis for the judgment - 'lex clara est', a clear sense of law is present - issues the judgment (Wróblewski 1991:269). A similar "formalism" can also be observed in the Finnish practice of legal interpretation. As one Finnish author points out, in the face of tsarist rule in the 19th century, people here insisted on their own laws, which is why literal interpretation of the law prevailed over the course of a century (Aarnio 1991:155). In a number of other legal systems, however, the grammatical-literal interpretation is only a preliminary stage on the way to the final legal meaning, and the decision-making process passes through other bases of legal interpretation. 2.1.3 Contextual interpretation This interpretive basis tests the meaning of individual words, phrases and sentences by placing them in a broader context. This contextualisation can itself be multi-layered and circular. The meaning of individual words, phrases and sentences can be interpreted in the context of the law as a whole, each individual part of the law, the law as a whole and, finally, the complementary laws and the laws within each area of law. The latter comprehensive level of embedding, however, increasingly leads to a legal doctrinal interpretation, since the meaning of several legal acts can only be predictably determined in the light of systematic categories organised by legal doctrine. Such an interpretation already solves the rigidity of interpretation as opposed to insisting on literal meaning. If in a legal culture the grammatical-literal interpretation is decisive, the legislator must indeed be careful in the formulation of every sentence, in the choice of every word and every expression. If, on the other hand, literal interpretation is usually followed by contextual interpretation, the legislator can be more relaxed. This, of course, increases the judge's latitude of interpretation and may steer the case law in different directions than the legislature intended when drafting the individual provisions. In Sweden, grammatical interpretation is always understood to mean the linguistic meaning embedded in the context (Peczenik/Bergholz 1991:325), while in France the emphasis is on a tighter grammatical interpretation rather than a looser contextual interpretation. In most continental European 130 countries, with the exception of France and partly Finland, the grammatical interpretation is usually accompanied by the contextual interpretation, and if it is necessary to change the purely grammatical meaning on this basis, this is done by the judges. 2.1.4 Logical interpretation Even in the mature phase of Roman law, legal maxims were known to guide the application of the law in individual cases when navigating between conflicting legal provisions and could also provide a clue to the meaning of a provision. The most commonly used logical formulae are: argumentum a contrario (argument from the opposite); argumentum a minore ad maius or argumentum a maiore ad minus (argument from less to more or from more to less); argumentum ad absurdum (argument from the absurd); lex specialis derogat legi generali (special rule precedes general rule). The argumentum a contrario, the "argument from the opposite" (i.e. essentially this maxim that "what is true in advance is also true in reverse") is the most common logical interpretation used in most legal systems. An example of this argument is the provision that "a person under eighteen years of age is a minor". This provision necessarily provides that persons over eighteen years of age are considered adults, even if this is not literally stated in the legislation. But the counter-argument helps with a more complex problem. For example, if the Constitution states in the list of obstacles to referendums - that is, what cannot be decided by referendum - that a particular section of the Constitution cannot be amended, it necessarily follows that the rest of the Constitution is not excluded from amendment by that means. The problem with using the a contrario argument, however, is the use of a contrary argument, the argumentum a simili, the "argument of similarity". This argument states that if there is a statutory rule for a certain situation, another similar case can be included in the circle of cases that can be decided by the statutory rule using this argument. Rather, on the basis of the a contrario argument, it is argued that precisely because the drafter of the statutory provision did not include the case, the opposite of that provision applies to it, i.e. it cannot be covered by it and decided by that statutory provision. In many cases, it may indeed be a problem which of the two opposing ways of interpretation is applicable, and then, for example, a broader legal dogmatic interpretation, an interpretation in the light of legal principles, fundamental constitutional rights and principles, or a search for the will of the legislator may help to choose between them. However, two circumstances may also directly guide the choice between the two opposing paths. On the one hand, a provision that is within a taxonomy is more likely to be inferred by implication and not subsumed under the similarity argument. On the other hand, if the possibility of a different case already existed at the time of the creation of the provision in question and did not only arise as a result of a later socio-technical change, it is also preferable to opt against the argument of inclusion and similarity. For cases that arose later, on the other hand, the possibility of inclusion tends to argue against this argument. The argumentum a minore ad maius (from less to more) and the argumentum a maiore ad minus (from more to less) as twin interpretations can interpret the legal prohibitions and permissions with a fixed orientation - going beyond the grammatical meaning of the text. (The two interpretations are the two subcases of the argumentum a fortiori argument, the content of which can be translated as "That's just the truth!"). In the case of prohibition, the inference from less to more can take us further than the original text of the prohibition literally indicates. For example, if a constitutional court ruling states that an implicit constitutional amendment cannot be implemented by referendum, then it is a fortiori forbidden to implement an explicit constitutional amendment in this way, because if less is forbidden, more is a fortiori forbidden. Without this formula, someone who stops at the grammatical interpretation could argue in the case of a referendum to openly initiate a constitutional amendment that there is no "tacit" constitutional amendment involved here and therefore the cited decision of the Constitutional Court cannot prevent it. In the case of a statutory enabling norm, on the other hand, the derivation of more from less may go beyond the authorisation of the original text by providing a firm guideline. For if the more is allowed, the less must of course be allowed even more. For example, if an association law gives the general assembly the power to adopt new bylaws by a certain majority, then the same majority can of course amend the bylaws, even if this is not explicitly provided for. However, the above logical maxims do not work in reverse! If a bylaw prohibits more, it is still possible that less is allowed. And if a provision allows less, it is by no means certain that the legislator would not prohibit more. 131 The argumentum ad absurdum, the argument from absurdity, helps to reject a particular interpretation. In many cases, an interpretive result does not seem problematic, but logically, if we do this now, in other cases we will get untenable results if we apply it in a stringent way, and this may lead us to reject the given interpretive result. This argument was made, for example, by the Germans in the 1950s when the Federal Labour Court there ruled on the direct effect of fundamental rights in private disputes, and on that basis declared the possibility of overruling simple statutory material. Legal scholars criticise, however, that if this were to apply generally in the future and all fundamental rights were subjected to this possibility, all codes of law could be relativised and overridden, which would lead to legal chaos in a short time. The Federal Constitutional Court has not followed this line of argument and has refrained from affirming the direct applicability of fundamental rights in private disputes (Alexy 1985). The argument lex specialis derogat legi generalis, "the specific provision derogates from the general one", can often guide the interpretation of different provisions in the same case. For example, there is a provision on the DPO's procedure which allows him to take public action against a controller who has carried out a defective processing operation and to publish his name and the processing problem he has created if he does not comply with the DPO's request to rectify the processing problem within 30 days. Under this provision, the DPO cannot go public before 30 days have elapsed, even if there is otherwise a general provision in a law applicable to him that would normally allow his activities to be made public. A contrary assertion would violate the principle lex specialis derogat legi generalis. The lex specialis argument can also be helpful in conflicts between an earlier and a later rule of law. In principle, the legal maxim that the later rule differs from the earlier rule ("lex posterior derogat legi priori") also applies here, but if the later rule is the general rule in relation to the earlier, more specific rule, then this principle prevails and the earlier one will continue to apply. Of course, this only applies in the case of conflict between laws of the same level, since the principle that the "higher law gives way to the lower law" ("lex superior derogat legi inferiori") is the overriding principle between all three laws. In other words, an earlier higher law cannot be overridden by a later lower law, and even if a higher law is more general and a lower one more specific, the higher law prevails. What the judge can do varies, of course, from one legal system to another. For example, he or she may stay the proceedings if a lower law specific to the case is to be applied and ask the Constitutional Court, an administrative court or another court designated for this purpose to set aside the lower law on the basis of the higher, more general, conflicting law. However, there may be a legal system in which the legislator leaves the decision on the above dilemma to the judge. Such a solution exists in France. Here, the legislative practice is that, unlike in Hungary for example, when a new law is enacted, the final provisions of the law do not list which previous laws or which provisions of previous laws are repealed, but simply declare the repeal of the previous laws in conflict with the law just enacted in a general formula: "All previous laws in conflict with the provisions of this law are deemed repealed" (cited in Troper/Grzegorczyk/Gardies 1991:175). This formula makes the distinction between specific and general legal norms particularly important, as the judge must apply the former or the latter legal norm in deciding the case, depending on how he or she judges the two conflicting norms. If the latter is more general than the former special rule, the former must be upheld, as it can only be declared null and void by the judge if there is a later special rule with a contrary meaning. In other words, the order of precedence between the three "corrosive formulas" is that the corrosive effect of the higher rule comes first, followed - at the same level of the source - by the corrosive effect of the special rule, and only at the end of the row is the subsequent corrosive effect. 2.1.5 Interpretation in the light of case law Although the obligation to follow precedents, i.e. previous court decisions of the same or a higher instance, is not formally enshrined in any continental legal system, as it is in the Anglo-Saxon legal systems, it has developed to a greater or lesser extent in a number of European countries in recent decades. The French seem to have been the least likely to explicitly invoke precedent in their judgments, but the other European countries have increasingly moved from implicit to explicit adherence to precedent. In Italy, where a strongly text-positivist jurisprudence prevailed in the 19th century, largely copying the French model, this has changed since the beginning of the 20th century to a freer interpretation of the law along German lines, and following precedents of higher courts is now the norm. 132 This is where precedents need to be set. The Italians have set up a special department within the Corte di Cassazione (Italy's highest court) that extracts the judgments of the court's judges, strips them of the non-essential details of the case and extracts the "massime", the authoritative precedent - the essential elements of the facts and the associated legal position - and publishes them separately (La Torre/Pattaro/Taruffo 1991:235). A similar phenomenon has been observed in Finland since 1980, where the role of the Supreme Court as an appellate court has been radically reduced and the focus shifted to decisions of principle. Here, the "ratio decindendi", the core of the decision, is summarised in a separate section that precedes the LB's decisions (Aarnio 1991:154). This precedent technique detaches the precedent to be followed from the case and formally moves it closer to the actual sources of law containing general norms. This is in contrast to English precedent, which is fully oriented towards the concreteness of the case. The law, already interpreted in the light of precedent, may be perceived as narrowing in certain directions, and the judge is deprived of the possibility of indicating other, grammatically still possible meanings and basing his decision on them. Empirical research has shown that in about half of the decisions of the Federal Supreme Court, reference is made to previous court decisions. In Poland, the practice of following precedents is also very pronounced. And in Sweden, the quasi-mandatory nature of this procedure is reflected in the fact that if the Supreme Court wishes to deviate from previous case law, it must convene a plenary session of the Judicial Council intending to do so, and only the judgment rendered in this way may deviate (Peczenik/Bergholz 1991:324). 2.1.6 Interpretation by analogy A decision by analogy occurs when, after interpreting a legal provision that appears relevant to a case, it turns out that it does not cover the case in question - i.e. a legal loophole is discernible here - but the case is nevertheless decided either on the basis of a legal provision tailored to obvious cases (statutory analogy) or on the basis of a legal situation derived from the general legal principles of the respective field of law (legal analogy). In practice, the problem of distinguishing between expansive interpretation and analogy often arises. If, with reference to a legal text, a legal rule can be used as a basis for decision by grammatical or logical interpretation of a case, it is not an analogy and the case cannot be regarded as a legal gap. This distinction is important because in most legal systems there is a clear prohibition against making a legal decision by analogy. It is forbidden to decide by analogy in criminal law or in tax law or to transfer a legal provision that establishes an exception to another exception. It is therefore common to see judges disguise their interpretation by analogy as an expansive interpretation (MacCormick/Summers 1991:535). Even in the case of a genuine exception, expansive interpretation is prohibited, and the maxim from Roman law still applies in most jurisdictions today: "A rule that is an exception must be interpreted narrowly." This phenomenon is particularly prevalent in France, where the prohibition of analogy is a general rule and the gaplessness of the law is still a living doctrine. In Italy, it is common practice that, if possible, a legal analogy is first consulted to try to solve the case of a legal gap and that the legal analogy, which is further removed from the written law, is of limited use. The Germans distinguish between an original and a subsequent legal gap and require a stricter test in the case of an original legal gap as to whether the case was not deliberately included in the narrower statutory provision, whereas in the case of a subsequent legal gap a decision by way of legal analogy is more justifiable. 2.1.7 Jurisprudential-legal dogmatic interpretation First of all, it must be stated that a legal dogmatic interpretation in the narrower sense already exists in the special technical type of grammatical-literary interpretation, when the special meaning, deviating from the ordinary meaning or specifically representing a legal concept, is given to the word in question by the jurists. Even if there are technical clarifications of the ordinary meaning of a word that do not embed the clarified word in a broader legal dogmatic context (e.g. if the law defines a room as having a floor area of more than 12 square metres and a window), in many cases the legal term technicus is defined as part of a 133 broader legal dogmatic institution. This is the case with the legal interpretation basis under discussion here and goes beyond the concrete legal technical interpretation. This interpretation is already more detached from the provisions of the legal text, as the elements of the broader legal dogmatic context, their combinations and the possibilities of their recombination are contained in extensive works of jurisprudence. Since a number of more or less different jurisprudential models have been developed in the legal literature of a country or, in particular, in the international literature for a given legal dogmatic context, this can lead to a certain arbitrariness in the interpretation of the law and thus create a basis for judicial arbitrariness if there is no doctrinal-legal dogmatic interpretation that is bound to the wording of the legal provisions or at least to the general consensus within the legal community of the country concerned on the doctrine in question. If we look at different countries, we must start with France, which is at the end of the scale and where doctrinal interpretation has played the smallest role among the countries of the continent. Italy and Poland, to take just one example, can be seen as transitional to countries that allow greater freedom of doctrinal interpretation, with Germany as the end point, even if it no longer reaches the level that conceptual jurisprudence had in the second half of the last century. In the Scandinavian countries, the role of this interpretative basis is to some extent limited. It should be noted in passing that in the English legal system there is still a minimal possibility of deviating from the text of written law by way of dogmatic interpretation. The basis of doctrinal analysis thus goes beyond the text of the interpreted legislation, even though it is a fundamental requirement that some textual anchoring can be demonstrated. The question therefore arises as to how this basis for interpretation that goes beyond the text of the law is reflected in the reasons for the judgment. In German supreme court judgments it is customary to cite relevant jurisprudential works and their authors by name (Kötz 1973; 1988), and in Poland and Italy legal works are also frequently cited in support, although in the latter case it is not customary to mention the authors themselves by name (see Wróblewski 1991:384; La Torre/Pattaro/Taruffo 1991:235). In France, any reference to an academic opinion is excluded, and in English there is a dictum that it is not appropriate to refer to a living author in a courtroom. It should also be pointed out that there are great differences not only between countries in the degree of freedom of doctrinal-legal dogmatic interpretation, but also within countries, depending on the branch of law. For example, in criminal law, which has a more pronounced doctrine, as well as in civil and procedural law, there is far greater agreement between the legal professions on a legal dogmatic model, which is thus also reflected in the legal texts relevant here. Thus, it would simply be unthinkable for the legal practitioner to accept a different interpretation of the doctrine without textual support. In contrast, in constitutional law, for example, it is more likely to be observed - also because of the greater political involvement - that after a change of power, it is possible to deviate from the constitutional texts to a greater extent by invoking the doctrine, without causing a major uproar. An example of this is the development in Hungarian constitutional law in 1991, when the constitutional judges began to interpret the Hungarian constitutional order according to the principle of separation of powers, although the Hungarian constitution does not mention the principle of separation of powers in a single word, as do the constitutions of the parliamentary constitutional system in Western Europe. Due to the underlying political balance of power, the thesis of the separation of powers in the Hungarian constitution was accepted by the public within a few months, without any debate or resistance. 2.1.8 Interpretation in the light of legal principles This interpretation can be regarded as a special form of dogmatic interpretation, since the legal principles of a field of law are a form of the dogmatic models of a field of law formulated in principles, and the competing dogmatic models contain the systemic interrelations of the field of law as common, noncontroversial parts. However, some legal principles may be considered overarching legal principles for several areas of law, although they are more likely to be principles of legal justice and a transition to an interpretation in the light of the ethical values underlying the law. However, they also lead to an interpretation in the light of basic constitutional rights/principles, since the legal principles considered valid in such an overall legal system are often contained in the constitutional text. In Germany, for example, there has been a shift in the latter direction, and in particular the "fundamental rights" decisions 134 of the Constitutional Court there have elevated German legal principle interpretation even further to the level of the Constitutional Court (cf. Dreier 1988). In any case, the legal principles are set out textually in the individual laws, which allows for an interpretation based on them and the correction of grammatical and literal interpretation by them. On the other hand, however, they are set out in detail in legal doctrine, and it is only by reference to them that such an interpretation can be made beyond the wording of the legislation. Even in French jurisprudence, which strictly adheres to the wording, an interpretation in the light of the legal principles of the respective field of law is permissible, although the references in the text are even more indispensable (Troper/Grzegorczyk/Gardies 1991:187). That the interpretation of laws on the basis of legal principles can of course often be intractable is illustrated by the example given in studies of how a judge should proceed in proceedings to decide an application for a widow's pension in a criminal case, in the case of a widow whose only source of support was her widow's pension but who had killed her husband in order to receive it. The principle that "no one may benefit from his own wrong" is in irreconcilable conflict with the widow's right to social security. In life, there are countless cases where otherwise unchallengeable legal principles clash and make a divergent interpretation of the law unresolvable. 2.1.9 Interpretation in the light of fundamental constitutional rights/principles This room for interpretation is greatest in the western half of the continent in Germany, followed by Italy and Spain, and least in Austria, where only laws that explicitly violate the constitutional text are deemed unconstitutional. In the Scandinavian countries and the smaller Western European countries (Belgium, the Netherlands, Denmark) there is no constitutional jurisprudence, and although the maxim has emerged in Swedish court practice that the judge may refuse to apply a law if it is manifestly contrary to a provision of the constitution, this is in fact the rarest case (Peczenik/Bergholz 1991:336). For Germans, the unconstitutionality of certain legislation may lead to its repeal, but even without establishing this, there is a mandatory interpretation of the constitutionality of the law by judges. The content of this obligation is threefold: 1. if the Constitutional Court has declared a certain interpretation of a law unconstitutional, judges are prohibited from applying this interpretation to the law; 2. the Constitutional Court will not repeal a certain legal norm as long as it is possible to give this norm a meaning that is compatible with the Constitution without violating its grammatical meaning. 3 In other words, an interpretation in conformity with the Constitution cannot violate the grammatical horizon of interpretation if the legal provision is otherwise grammatically unambiguous. However, in the absence of such an interpretation - in the case of ambiguous words, words that are amenable to evaluation constitutional interpretation becomes freer (Alexy 1985). 2.1.10. Interpretation in the light of the ethical values behind the law Interpretation in the light of legal principles, fundamental constitutional rights and principles, gradually dissolves the precise, rule-based interpretation of law and leads jurisprudence more towards a value-based consideration of justice. This is reinforced when it is possible in a legal system to interpret legal texts in such a way that ethical values or other values that have a prominent position in the hierarchy of values in society are taken into account in the adjudication of a particular case. This is not common in European countries, although in some places constitutional rights/principles are so broad that they are interpreted solely on the basis of considerations of justice. In the United States, it can be observed that fundamental constitutional rights are not extended in this direction - there they are essentially traditional political freedoms - but sometimes direct reference is made to them when evaluating American society (see Summers 1991:432). An example of this is the ruling in the unconventional Holy Trinity case. For a time, it was illegal by law in the United States to enter into an employment contract with a non-citizen, as this could be prosecuted, but a small church hired a priest of foreign nationality in clear violation of this law. However, the Supreme Court ultimately ruled that the role of churches in American society was so highly valued that the court could rule against the literal provision of the law (Summers 1991:422). Of course, such a decision against a law (contra legem 135 decision) is rare in the United States, but the use of such values in interpreting laws and correcting the meaning of the text by reference to them is more common than it would be in Europe. 2.1.11. interpretation in accordance with the purpose of the legislation In different countries, to varying degrees, but in most cases, interpretation is undertaken which attempts to explore the grammatical meaning of a legal text, especially when the legal provision is problematic (ambiguous, equivocal, open-ended), in the light of the purpose of the legal provision and its general function. In contrast to interpretation based on the will of the legislature, which will be discussed in the next section, the objective purpose of the law is at issue here, and some textual record in the statutory provision is needed to base the interpretation on. (This may, of course, be the preamble preceding the law.) In Germany, this interpretation is based on the assumption of an ideal and rational legislator, as opposed to the subjective will of the legislator, conceived as a solver of the social problems existing at the time of the enactment of the law, which is regarded as the objective purpose of the law (Alexy/Dreier 1991:143). Especially in the United States, this "purpose-driven" interpretation has spread as a result of the influential concept of the "social engineering of law" of the 1920s, and the use of this interpretation is strongest here of all countries. In a sense, this interpretation can be seen as an alternative to contextual interpretation, but whereas there the meaning of individual words is logically inserted into a larger context and thus corrected, here the context is replaced by a purpose, the meaning of the meaning. In other words: While contextual interpretation leads the grammarian in a more logical-systematic direction, purposive interpretation, i.e. interpretation according to an objective purpose, pushes the grammarian more towards the value level and leaves the judge greater freedom. A subtype of this interpretation is the consequence-oriented interpretation of the law, which has been discussed and influenced mainly in German legal literature. It consists of the judge placing the effects of his decision, which is the result of grammatical and other interpretations that drive it, in the circumstances of the litigants or, in a criminal case, the defendant, and examining the change that his judgment will bring about. In addition to evaluating this change from various points of view, it could also be compared to the purpose of the existing law. If the likely consequences differ more fundamentally from the effects intended by the purpose of the law, the judge should choose a different alternative decision that is more consistent with the law. Conversely, if these consequences are consistent with the purpose of the legal provision, then this consequence orientation reinforces the grammatical interpretation. 2.1.12. Interpretation according to the will/intention of the legislator This interpretation is - erroneously - narrowed down to the "legislative objectives" that the law was intended to achieve, and in this sense understood as a subjective/intentional counterpart to the earlier objective legislative objective. Since this is also a possible part of the type of interpretation discussed here, in those countries where this subjective intention of the legislature is considered to be decisive for the objective purpose of the law, the search for the purpose of the law is sought not only in the text of the law but also in the various legislative materials, and in the light of these, an attempt is made to reveal the actual intention of the legislature (MacCormick/Summers 1991:522). However, interpretation according to the will/intention of the legislature is broader and may in fact include all the above types of interpretation. What did the legislator mean, how did he intend the words he used to be understood - in their everyday meaning, in their technical sense - and to what extent did he choose to embed those words contextually? Did he consider the logical formulae in advance, and, assuming he did, did he not formulate the necessary corollaries in the text, or did he not think of them at all? Did he have the principles of the particular field of law in mind when drafting the legal text and did he understand the individual legal provisions in the light of these principles, etc.? So, depending on whether great weight is given to the will/intention of the legislator in a particular legal system, this can be examined for all types of interpretation. Or, if they do not attach great importance to it, the search for the will of the legislator will be overshadowed in all of them. The two extreme poles are Sweden, where this interpretation is most widespread, and England, where 136 judges are expressly forbidden to determine the will of the legislature on the basis of extra-legal texts. The English consider the words and expressions of a legal text to be the most authentic indicators of the legislator's will. If great weight is attached to the will of the legislator in the interpretation of a legal text, the preparatory materials are included in the interpretation in addition to the actual legal provision. In Sweden, therefore, the practice has been established that after the adoption of a law, not only the text of the law is published in the Official Gazette, but also a number of preparatory materials are published in the Official Gazettes regularly established for this purpose when the law is created. Thus, the initiation of a law begins there with the drafting of a directive, after which a preparatory committee is set up, whose more detailed legislative concept is published, and then the final government bill is published, similar to the report summarising the debates and results of the parliamentary committees. All these texts are published together with the text of the law after it has been passed, so that the law itself is only used as an introductory text to a more comprehensive material (see Pecznenik/Bergholz 1991:324; Eörsi 1974). It naturally follows that the text of the law is not overly detailed and is assumed to be used in conjunction with and interpreted in the light of the published background material. In other countries, the will of the legislator is not given as much weight in the interpretation of the law - even in the Nordic countries - but to a lesser extent, and where it is clearly expressed in the text of the law, it also determines the judgments of the courts. ********************************************************** The twelve ways of legal interpretation outlined above reflect the interpretative possibilities of judges in modern legal systems in a more differentiated way than one might assume on the basis of the fourfold canon of interpretation - grammatical, logical, taxonomic and historical - established in Hungarian literature since Imre Szabó. Nevertheless, we can divide them into four main categories, and as grammatical we can call the first two forms, as taxonomic those between points 3 and 8 (contextual, logical, interpretation in the light of precedents, interpretation by analogy, interpretation in the light of legal dogmatics and legal principles), as teleological-judgmental interpretation the 9th form.-Finally, interpretation according to the will of the legislator forms its own group in number 12, which is listed in numbers 9 to 11 (interpretation in the light of fundamental rights and ethical values, and interpretation according to the purpose of the legislation). As can be seen, the individual interpretative operations are shifted here in comparison to the four interpretative canons, and the change in comparison to the two interpretations of Imre Szabó is that the logical is eliminated as a separate type - all interpretative operations classified as taxonomic also contain logical elements - and on the other hand, the taxonomic interpretation is broken down into much more differentiated internal forms. Another change in comparison to Imre Szabó's quartet is that teleological-judgmental interpretation also appears here, divided into three different internal types. 2.2. The interpretation of the case law of the Hungarian Supreme Court According to the general table presented above, judges in modern legal systems have twelve ways of interpreting the law at their disposal, which they use to decide on the basis of the wording of the legal provisions in the case before them. In some countries, of course, these bases of interpretation are not used to the same extent and some are completely unknown, while in others almost all are used to some extent. What methods of legal interpretation are used by the Hungarian higher courts? In the following, we would like to outline the answer to this question based on an analysis of about 600 decisions of the Court. Given the different characteristics of criminal and civil legal interpretation, we have selected a roughly equal number of cases from both areas of law, avoiding appellate cases arising from disputes over the interpretation of procedural law in both areas and including only cases involving substantive disputes. On the other hand, in order to examine the development of legal interpretation over the past decades, we examined the number of court decisions in 1998 and the first half of 1999 for the practice of 1977, 1988 137 and the 1990s. In this way, the differences between the 1970s, 1980s and 1990s could be determined on the basis of about one hundred criminal and civil judgments each. It should also be mentioned that the decisions referred to in the court decisions are mostly decisions of the third instance of the Supreme Court, resulting from a challenge to the law or an objection to its legality (or, more recently, from a petition for review), and that the description of the cases includes a description of the legal interpretation of the lower instance's decisions. Thus, in addition to the Supreme Court, the case law of the district courts is also disclosed. 2.2.1 Grammatical-linguistic interpretation This interpretation seems to be of central importance in the practice of the Hungarian higher courts between civil and criminal judgments, with the difference that in the latter the grammatical interpretation is often interwoven with and appears embedded in the legal dogmatic interpretation. Whether an offence is to be classified as preparatory, attempted or completed, whether it is a qualified case of one of the offences of the Criminal Code or rather a case of another offence stuck in the attempted stage, whether it is a case of an accomplice or rather an accessory, whether the intent of the offence is to be classified as possible or whether the facts of the case suggest direct intent, etc. - these questions also constantly permeate the grammatical interpretation in criminal cases. In contrast, in civil cases, the grammatical interpretation of acts of life is less embedded in the legal doctrinal interpretation framework (although, as we shall see, there is an increasing trend here as well). Another difference in grammatical interpretation between the two areas of law is that in criminal cases the common sense meaning of words is adhered to, whereas in civil cases the meaning of words is dealt with more freely. Thus, an expansive or restrictive interpretation is far more common in civil cases, whereas in criminal cases the generally accepted meaning of words is usually the basis for determining the facts on which judgments are based. Nevertheless, it often happens in criminal cases that by assigning a restrictive or expansive meaning to the wording of the law, the opposite is decided as if the generally accepted meaning of the words had been retained (see Endre Bócz's critique of such a case: Bócz 1991:355-359). Let us look at some examples from the field of grammatical-syllabic interpretation. In the criminal case published in BH 1998/8, the two perpetrators were charged with thirteen property offences, and although most of these offences were committed jointly, the Supreme Court, in an appeal, declared that the finding of a "conspiracy" to commit the offences was wrong because the circumstances showed that they were only ever planned "occasionally in concert". According to Article 137(6) of the Criminal Code, a criminal conspiracy exists if "two or more persons commit or agree to commit the offences in an organised manner", but the restrictive grammatical interpretation precluded such a finding. According to the usual literal interpretation of the words, the verdict would have been the other way round. A restrictive interpretation is also found in the criminal case reported as BH 1998/263. The three defendants were angry with the editor of the city newspaper for an earlier article about them and staged a fake bomb attack by making an object that looked like a bomb and placing it in front of the door of the city's cathedral. They wanted to see how the city newspaper would distort the events of the fake bombing. Traffic in the city centre was paralysed for hours after the church grounds were closed. The court of first instance rejected the prosecution's request for a conviction for endangering public safety and found the three perpetrators not guilty. It interpreted the offence of endangering public safety (section 270/A (1) StGB) narrowly and, due to the innocent toy character of the bomb, only saw the offence of damage to property, although it appeared to be a real bomb (the court of second instance, which rejected the prosecution's appeal, confirmed this interpretation). The legality of the extension of the grammatical interpretation was also the subject of a dispute in a civil case published under BH 1999/13, which concerned the extent of the pecuniary liability of an outside member of a limited partnership. Under section 100 (1) of Act VI of 1988 on Commercial Partnerships, "the outside member is liable in the same way as the inside member if his name appears in the partnership's articles." In the present case, the initials of the surnames of the outside member and the inside member were the initials of the company name of Bt. The courts of first and second instance interpreted the wording of the law broadly and found the inclusion of the initials of the name sufficient to establish the external member's liability and ordered the external member to pay the 8.5 million forints in 138 the lawsuit. In the appeal proceedings, however, the Supreme Court panel rejected this broad interpretation. A restrictive interpretation also decided the outcome of the inheritance case published in BH 1999/69. The elderly testator had concluded an inheritance contract with the plaintiff in which he undertook to provide for his care, maintenance and proper burial after his death; in return, he became heir to all his movable and immovable property. After a few months he died, and in the probate proceedings it turned out that the person thus appointed as heir could neither read nor write, and since according to section 624 (3) of the Civil Code an illiterate person can only make a will in open form - according to section 656 of the Civil Code the illiterate person can only make a will in open form.According to section 656 of the Civil Code, the form of the will applies to the contract of inheritance, and therefore the court of first instance declared the will invalid in the initiated proceedings, even though the testator himself could read and write, because the beneficiary of the contract of inheritance was illiterate. However, in an appeal, the Supreme Court narrowly interpreted the rules on the form of the will in the context of the inheritance contract and ruled that it was sufficient that the party of the testator who concluded the inheritance contract could read and write and declared the contested inheritance contract valid. For perspective, it should be noted that even restrictive and expansive interpretations seem to prevail to a lesser extent in grammatical interpretations in administrative court cases, and the decisions of Supreme Court administrative judges strictly adhere to the generally accepted meaning of words in their judgments. As one author on the subject writes, Supreme Court judges routinely overturn district-level rulings when they deviate from the generally accepted meaning of words through expansive or restrictive interpretation (Dudás 1997:603). Thus, adherence to textual interpretation is most pronounced among national courts in the field of administrative law. 2.2.2 Interpretation on the basis of legal dogmatics As we have seen, this interpretation is more common in criminal cases, but if we look at the development of the proportion of this interpretation, we can see that the frequency of this interpretation has increased in both areas compared to the 1970s. In criminal judgments, a legal dogma interpretation was found in one out of five 1977 judgments, while it was found in one out of two 1988 judgments and remained unchanged in the 1998-99 judgments. In civil judgments, legal doctrine was found in only one in ten judgments in 1977, but in one in five in 1988 and to the same extent in 1998-99. The role of legal doctrine has thus increased in both areas, but the discrepancy between criminal and civil judgments is similar today as it was in the 1970s, albeit at a higher level. Let us look at some examples of legal dogmatic interpretations in both areas of law. In the criminal case BH 1999/148 the perpetrators of a series of robberies of banks and post office boxes were charged with multiple robberies, and in one of the cases - when they had already forced a postal employee onto the floor of the post office, but had to flee due to the unexpected entry of a customer and stopped the act there was a dispute between the court of first instance and the court of second instance as to whether voluntary resignation could be established in this case? The court of first instance held that the robbery consisted of two elements - use of force and theft - so that after the first element (the use of force) voluntary renunciation was no longer possible. The court of second instance, on the other hand, considered it possible to establish this in such a case: "Dogmatically wrong, however, is the argumentation that 'the two-stage character of robbery conceptually excludes the applicability of the voluntary abandonment of the attempt'. The complexity of the robbery does not preclude a finding of voluntary abandonment of the attempt'. The complications of the dual nature of robbery also formed the basis for the debate on the interpretation of the law in BH case 1999/152. The two perpetrators managed to take the belongings of an elderly woman through an open door without violence, but managed to make off with the belongings and jewellery by pushing a neighbour who came to their aid. The items were taken from the owner without force, which is essential to establish the offence of robbery, but the court stated that "in a robbery, the person who suffers the force and the owner of the items do not have to be the same person". A legal dogmatic debate in civil proceedings can also be found in the case published in BH 1998/18. It was agreed between the litigants that the plaintiff and his deceased wife would purchase the property owned by the defendant for a purchase price of HUF 1,650,000. This was secured by a deposit of HUF 139 300,000 on the day of signing and HUF 200,000 a few days later. The sale was thwarted by the death of one of the buyers, as the other buyer withdrew in view of this, and in the action to recover the deposit the court treated only the HUF 300,000 paid at signing as a deposit and the later HUF 200,000 as a deposit only in relation to the later total purchase price. Similar to the previous case, the dogmatic issues of the down payment were also the subject of the legal interpretation in BH 1998/333, which led to the judgment. A plot of land with an offer price of HUF 20 million was to be sold by tender, and participation in the tender was made conditional on the payment of a tender security of HUF 2 million, which was to be included in the purchase price. As no one had applied on the day of the tender, the tender was unsuccessful and, on the basis of a decision of the representative body of the municipality wishing to sell the land, the purchase contract could be concluded with any applicant within 30 days without a new tender being held. Within this period, the applicant appeared and paid the amount of HUF 2 million, which was registered as a "deposit" by an employee of the defendant municipality. Although the hopeful buyer claimed back double the amount of two million, the courts found: "The nature of the deposit presupposes the existence of a valid contract..., but at that time there was no contract and the negotiations between the parties began only afterwards." Thus, despite the incorrect designation of the "deposit" by the municipality's employee, according to a dogmatic interpretation of the deposit, the court qualified the two million forints paid as a simple tender security, so that only this amount, and not double the amount, had to be returned to the plaintiff. 2.2.3 Interpretation based on case law or precedents The interpretation referring to judicial practice ("consistently followed case law", "settled case law", etc.) and precedents must be considered together, as the reference to precedents is often made by citing one or more Supreme Court decisions confirming the reference to judicial practice. It is also common to refer to case law without citing precedent, but also to refer to a Constitutional Court decision without citing case law. In terms of frequency, the reference to case law is ahead of the reference to precedents, and also in terms of weight of argumentation, case law is the most important. In a judgment of the court of first instance, the dispute between the court of first instance and the court of appeal was precisely whether the LB Council decision cited by the court of first instance actually reflected the relevant case law, as the court of first instance had claimed, or whether it contradicted it. The Court of Second Instance found that the common court practice was in contradiction with the cited LB Council case law and stated that the LB Council decisions were not binding on the lower courts and therefore preferred to follow court practice (see AB 1998/232). If we look at the development over time of the frequency of references to case law and precedents, we see that in 1977 they were already frequent in criminal judgments, while they were almost non-existent in civil judgments. In 1988, they became more frequent in civil judgments, and in the 1998-1999 judgments, their frequency completely corresponded to the frequency of references in criminal judgments. In criminal judgments, one in five judgments contained a reference to case law in 1977 and one in twenty contained a reference to precedent. In 1988, this changed so that the proportion of references to precedent reached the proportion of references to case law, i.e. one in five judgments contained a reference to precedent, and this remained the case in 1998-99. In contrast, in 1977 there was no reference to case law and only one reference to case law in civil judgments, but in 1988 there was a reference to case law in one in ten judgments and a reference to case law in one in twenty judgments, and in 1998-99 there was a reference to case law in one in five judgments and a reference to case law in one in ten judgments. In other words, even though there is even less reference to precedent in civil cases than in criminal cases, recourse to case law is now just as common. Overall, it can be said that the changes of the last twenty years - not to use the judgmental term "development" - have increasingly brought Supreme Court case law and the judicial practice that has developed around it to the forefront of the law. Increasingly, Supreme Court decisions and judicial practice in both criminal and civil cases will have to be taken into account when calculating future sentences. The same, of course, applies to the design of legal education: law can increasingly only be taught in conjunction with judicial practice, and the text of the law is proving increasingly inadequate for this purpose. To avoid misunderstandings, it should be mentioned that the above figures and the resulting trend have not yet been discussed in the context of the Supreme Court's policy decisions, guidelines and 140 collegial positions. These are not case law or precedents, but detailed criminal and civil implementing legislation with all the characteristics of an abstract legal norm (last year, due to the short time since their introduction, we did not examine the case law that replaced the guidelines and policy decisions providing general guidance for judicial practice in specific cases). Independently of the figures relating to judicial practice and jurisprudence, it is interesting to look at the frequency of interpretations and changes of interpretation in relation to these types of normative decisions of the LB. In criminal cases, in 1977, one in eight decisions referred to a college decision, one in five to a BED or a guideline; in 1988, the frequency of reference to college decisions remained unchanged, while the number of references to BEDs or guidelines halved (one in ten criminal convictions); in 1998-99, there were one or two cases of reference to college decisions and only slightly more references to guidelines or BEDs. In civil cases, on the other hand, the importance has not diminished, and if one looks at the sentences, one finds a reference to a College decision in every fifth sentence in 1998-99, just as in 1977. Admittedly, the reference to PEDs (basic civil decisions) has always been very small here. 2.2.4 Interpretation on the basis of decisions of the Constitutional Court This way of interpreting the law was not self-evident before the socio-political changes of '89, but by the end of the '90s it was already appearing in judgements. If we wish to highlight the most important finding in this context at the outset, it can be said that interpretations based on fundamental constitutional rights and, in particular, on the judgments of the Constitutional Court, play a negligible role in the interpretation of the law. In contrast to the central role played by the national constitutional court, which has the most comprehensive jurisprudence in the world, in establishing laws and repealing laws, it is virtually absent in the application of the law. One of the reasons for this is that the Constitutional Court itself, at the beginning of its activity, declared the exclusive role of the Supreme Court in the interpretation of the law and the development of a uniform jurisprudence (see AB Decision 57/1881: Hungarian State Gazette 1991/123, p. 2456). Indeed, several cases could be found in the judgments examined where a panel of the Supreme Court had ruled on an issue on which there are long and detailed decisions of the Constitutional Court (e.g. in the area of acquired rights or in cases of data protection), but where there was no reference to this in the judgments issued (see the published cases on the interpretation of acquired rights under AB 1999/18 and AB 1999/113). A more complete picture emerges if one distinguishes internally between the cases of interpretation of law on the basis of constitutional rights, thus clarifying the attitude of the Supreme Court and the higher courts towards them. On several occasions, the plaintiffs have referred to a decision of the Constitutional Court, but the court has not reacted to it, and in this respect there has been neither a positive nor a negative opinion. Another distinction is that the court sometimes (also) refers to fundamental constitutional rights when interpreting the law, but not to the relevant decision(s) of the Constitutional Court. Furthermore, a distinction should be made between criminal and civil cases. In criminal cases, the court sometimes also refers to fundamental constitutional rights, while in civil cases judges do not do so, only the parties refer to them in some cases. The figures show that in the criminal convictions examined in 1998 there were three references to Constitutional Court decisions, and in two other cases the court invoked a fundamental right without citing a Constitutional Court decision. In the criminal convictions in 1999, there were only two references to Constitutional Court decisions, one of which concerned the Szabolcs-Szatmár County Court, and the case did not go all the way to the National Court. As far as the civil judgments are concerned, in 1998 the parties referred to decisions of the Constitutional Court in four cases, but the court only reacted in two cases, and in these two cases it included the arguments of the constitutional judges in its interpretation of the law. However, there was no such reference in the 1999 civil judgments, and although two cases were brought on the basis of acquired rights and the Supreme Court Judicial Council interpreted the issue of acquired rights, it did not once refer to the relevant AB decisions (see AB decisions 43/1995 and 16/1996 on the interpretation of acquired rights). The few cases in which the Supreme Court judges exceptionally refer to constitutional fundamental 141 rights allow conclusions to be drawn about their understanding of fundamental rights. It can be said that, unlike the constitutional judges and the ombudsmen who also play a role in this area, the Supreme Court judges, on the one hand, link the scope of certain fundamental constitutional rights and the limits of their violation to empirical social perceptions and general public opinion and, on the other hand, have a much narrower understanding of them. An example of this is the judgment published in the Collection of Case Law 1998/223. The reasoning states that the plaintiff considered it a violation of his human dignity that the campsite staff wanted to keep his identity card for the duration of his stay at the campsite and only gave it back to him on the last day after he had paid for the pitch. The case went to the Appeals Chamber of the Supreme Court, which ruled that a violation of human dignity can only be established if it is generally accepted in society. In the present case, it is not a generally accepted social opinion that withholding an identity card is a violation of human dignity and can be considered a common practice at campsites. On the contrary, the Constitutional Court - at least the majority of judges in the first nine-year legislature - tended to rule against the most widely held social opinion in finding a violation of human dignity, and would probably not have been far from finding a violation of human dignity in the case in question. Indeed, the Constitutional Court has often sought to initiate social change of opinion precisely through decisions based on fundamental constitutional rights. Similarly, in the decision BH 1998/412, there is a link to empirical social public opinion with regard to the offence of violation of human dignity and suitability for defamation: "It is the general opinion, the general moral and public opinion in society that is to be taken into account in deciding whether the allegation or rumour of a fact is suitable for defamation in an individual case." The judges of the Supreme Court (LB) have a narrower understanding of the violation of human dignity, seeing it only in the relations between persons: "Human dignity is an expression of the requirement to treat the person, the individual, according to the minimum requirements of the socially established manners" (BH 1998/412.). On the contrary, the Constitutional Court (AB) has often used this formula, even when it has found other types of restriction of liberty. For example, it considered it a violation of human dignity if an adopted child wanted to find out the identity of his or her biological parents after reaching the age of majority, but this was prevented by the relevant provision of family law (see AB 57/1991). 2.2.5 Interpretation based on the will or intention of the legislator In about 300 civil judgments, seven cases referred to the ministerial justification of the law applied in order to interpret the law, and two cases referred to the "obvious intention of the legislator", but without giving reasons. In contrast, in the 300 criminal judgments examined, there is only one case in which a reference to a ministerial justification can be found. (It should be added that, in addition to the abovementioned cases, five of the 15 other cases examined in the 1981 court decisions also contained a reference to ministerial justification in interpreting the law, which is understandable when one considers that for several years after the adoption of the new Criminal Code in 1978, ministerial justification still played an important role as a basis for interpreting the law in the court decisions. However, the analysis of the 1988 criminal judgments shows the main rule in this area and no interpretation based on ministerial justification was found). Thus, in the judgments of the Hungarian Supreme Court there are very few interpretations referring to the intention of the legislator, even at the level of ministerial justifications, not to mention that the judges would like to know the intention of the legislator from the materials preparing the law (see the Swedish practice of legal interpretation in this direction: Peczenik/Bergholz 1991; and Eörsi 1974). Looking at the judgments of the total of 300 civil law cases examined, we find that in the 1977 BH judgments there were still four such references, in the 1988 judgments this number dropped to three, in 1998 there were still two such judgments, but in the judgments of the first half of 1999 there were none. And the only reference to ministerial justification in the judgements of the 300 criminal cases dates back to 1977 (as mentioned above, the 1981 cases could be considered an exception resulting from the practice of applying the new Code). 2.2.6. Summary 142 As can be seen from the picture above, some of the ways of interpretation are completely missing in our higher court jurisprudence. In none of the 600 BH cases could one find an interpretation of law that was implemented with the help of logical formulae. Interpretation of legal literature is also a recent phenomenon in our country and in the last two years only one interpretation was found which referred to the Btk and Ptk commentaries (the Btk commentary was referred to in interpreting the law in the 1998/270 judgment and the Ptk commentary in the 1999/117 judgment). A freer interpretation of the legal literature, such as reference to a monograph or a legal study, was not found in any of the 600 cases (however, this seems to be widespread in the newly published case law decisions, but this new form of interpretation was not covered by the systematic analysis, as indicated). Nor could any interpretation be found that would have created a greater distance from the text of the law by referring to the principles of law or the general principles of law. As we have seen, the higher courts are also very sensitive when it comes to interpreting the law in the light of fundamental constitutional rights. Thus, if judicial "activism" can be used as an indication of a greater detachment from the text of the law - which in Hungary has so far been expressed as criticism of the decisions of the first term of the Constitutional Court - then the interpretation of the law by the higher courts cannot be called "activist" in the least. On the other hand, it cannot be argued that the text positivist style of the 1970s was still the same in the late 1980s and especially in the late 1990s. As can be seen from the above analyses, legal interpretation that goes beyond grammatical-scriptural interpretation has been used to a considerable extent in several cases. Thus, legal doctrinal interpretation has greatly increased in importance in both civil and criminal cases; the number of interpretations based on judicial practice and precedents has also increased significantly compared to the judgments of the 1970s. The prevalence of more complex interpretations based on multiple legal interpretations is also reflected in the increasing length of judgments published in court decisions. While most judgments from 1977 were less than half a page, most judgments from 1998-99 were two to three pages long. According to my calculations, most BH judgments today are between 1,200 and 1,500 words, while the notoriously laconic French Supreme Court judgments average 200 words, German judgments average 2,000 words and American judgments average 8,000 words (see MacCormick/Summers 1991 and Kötz 1973; 1988). This shows that even the increase in the length of national judgments and the more complete presentation of judicial interpretation and reasoning cannot today be regarded as excessively detailed. It is undisputed that the reasoning of our judges would be even more extensive if all the important considerations and the reasons for their decisions were set out in their judgments. Knowing the tendencies in the legal theory of Western legal systems that favour this, one can predict that this will also be the case in our country in the future (Wróblewski 1991; Alexy/Dreier 1991). 3. The validity of the law 3.1 Multi-layered legal system and validity of the law The validity of law is related to the separation of validity/enforceability among the basic concepts of law in legal education. According to this view, the validity of a law (a regulation) refers to the period between its formal promulgation and its termination by a subsequent legal act, while validity refers to the preliminary question of whether the rules of procedure for the creation and promulgation of the law have been observed. When a law has been created and promulgated in the prescribed form, it is valid and remains in force in other respects until it is repealed by a new law or, if it has provided for its own validity until a certain date, until that date. However, this conception of validity is implicitly based on an earlier conception of law that became predominant in Hungary, especially in the second half of the 20th century and particularly in the field of administrative law. According to this concept, the law corresponds to the text of the decision of the competent state body, taken in an appropriate form. Thus, only the fact that the text of the decision was 143 made in the appropriate form can invalidate the law. Admittedly, this legal concept has not been fully accepted in civil law in recent decades either, since the actual meaning of new laws is interpreted by the courts through a legal dogmatic filter and the rules themselves are constructed in such a way that the actual normative guideline of the individual texts is only revealed in the light of the underlying legal dogmatic order and only through a formulation on a more abstract level. The acceptance of this approach in the field of administrative law can be explained by the fact that the legal doctrine that has existed for a century and the dense judicial practice of further development in this area have developed only slightly in the traditional areas of law (private law, criminal law). In the field of public administrative law, the binding of the user of the law to the text - and thus to legal detail down to the last detail - is a real phenomenon, and this narrow concept of law is less out of touch with reality. In the traditional areas of law, however, this concept of law is a denial of reality, since the text of the codes does not in itself indicate the law applicable in a particular case. The strength of the text-bound nature of law in these areas of law is naturally greater in Hungary today than in the German-Austrian area of continental law, in which Hungarian legal life has developed over the past centuries. Here, the text of the law, the product of the political legislator, is even more under the control of legal dogmatic models and supreme court practice than was possible in recent decades, and these three layers of law together provide the valid "legitimate" conditions for the individual case in this more comprehensive space. Thus, if our concept of law has been expanded from the text of the law and assumes a multi-layered concept of law, then the above-mentioned concept of state-inspired validity must also be expanded. That is, it addresses the conditions of "always justifiable" with regard to an individual case-related legal decision only within one level of law - the textual level of law - which is still not sufficient to fully grasp the conditions of "justifiable" in this context. Continental European legal systems consist of a series of statutory texts, the underlying legal doctrine and the normative rules of supreme court jurisprudence that further develop them. In recent decades, the level of constitutional fundamental rights has been added to these traditional levels of law in a number of countries, and the products of the three previous levels of law only become part of the legal system after the filter of the fundamental rights level. To put it pedantically, since this change, it can also be said that the validity of a new legal provision is thus - in some cases - postponed to a certain extent and that even after the mere promulgation of a law, the successful passing of the constitutional court test gives it indisputable validity. The conceptual levels of the legal system in continental law are thus divided into several layers, and no one level of law alone provides the judge with the "jurist" to speak to in every situation. Nor is it helpful to include all the above levels of law in the analysis, although this is a prerequisite for going in that direction. So far, I have only succeeded in describing the relationship between political legislation, legal doctrine, judicial casuistry and the overlying layer of fundamental law in the legal order of a country, differentiated according to the various fields of law, and their general interrelationships. The concept of applicable law goes beyond this and defines the law that results from the interdependence of these layers of law in specific situations. In a given situation, governing law is ideally defined by the text of the political legislature, which obtains its current form by choosing between previous legal dogmatic models and, when applied by the courts, is always concretised by referring back to these legal dogmatic models, or else the text of the law is shaped in the light of the relevant fundamental constitutional rights. In short, it can perhaps be called applicable law - a legal system that is concretised through the superimposition of the various layers of a multi-layered legal system. 3.2. Theoretical thematisations of validity of law The concept of multi-layered law gives rise to the above concepts of validity and governing law. However, a number of different formulations of legal validity are known in the literature on legal theory, and by contrasting these formulations, the meaning of legal validity as used here can be better deciphered. 1) The concept of legal validity outlined above referred to the internal context of the legal order, and this "internal" concept of legal validity must be distinguished from the external or "sociological validity" of law. The schools of sociology of law that flourished in the years after the turn of the century, noting the "remaining" of laws and regulations issued by state organs on paper and their running away from the 144 actual practice of society, linked the concept of valid law (as opposed to law remaining on paper) to its actual realisation and observance in everyday practice. In this sense, the concept of applicable law, as opposed to "paper law", denotes the law that is actually followed. Eugen Ehrlich used the term "living law" for this, which for him represented "real" law in contrast to mere paper law constituted by the state (Ehrlich 1913). In a similar sense, Leon Duguit contrasted "objective law" with "positive law". As an aside, it should be noted that this thematisation concerns the more general question arising from the conceptual nature of social phenomena, which makes it impossible to answer the objective existence of these phenomena in the same way as we do for physical and biological existence. A word, a concept, a technology, a scientific statement, etc. that someone invents and describes exists immediately as a conceptual product, but as long as it is used by only one or two people, it hardly exists socially. It is only their dissemination and constant use that gives them a broader social "existence", and it is for this that we used the term "existential relevance" in the analysis of the first volume. In other words, the "sociological validity" of law can be understood as a subset of the more general problem of existential relevance. Max Weber also used the term legal validity in this sense, but for him it did not mean reducing the concept of law to the regularities of actually lived everyday practice. Weber separated this aspect, which he called sociological or factual legal validity, from ideological legal validity, which for him meant validity in the inner context of the meaning of law. If we compare this distinction with what we have said above, we can see that we have proceeded along Weber's concept of ideational validity and not along the line of factual validity. 2) another formulation of the preceding train of thought, in which the validity of law is tied to judicial practice. The concepts of American legal realism or the German school of liberal law, which were influential at the beginning of the 20th century, used the concept of legal validity in this sense. Within the framework of existing paper law (i.e. law enacted by state organs), only the law sanctioned by case law and implemented in judicial decisions is valid. Here, factual and ideal validity merge - in contrast to the pure facticity of Ehrlich's "living law" or in contrast to Weber's dichotomy mentioned above - and thus also the result of a narrowed concept of law. 3) The validity of the law in relation to its ethical content has been discussed from various points of view. Here, the most important tendency is to formulate the validity of law from the concept of natural law. In this case, the law created by the state is considered valid only insofar as it conforms to the requirements of natural law as formulated in various ways; in the part that contradicts this, the fact that the state created and promulgated the law does not make it valid law. This ethical validity of law has been linked to constitutional fundamental rights in recent decades with the incorporation of human rights into the constitution and the development of a systematic jurisprudence of fundamental rights - by an influential current that originally goes back to Ronald Dworkin's American concept of law, but already exists in German legal scholarship on a more general basis (cf. This development has the most drastic impact on the validity of law, because while the effect of the other layers of law on this layer of law beyond the textual layer of law in a legal order is usually not formulated by a textual authorisation, the control of fundamental rights has such a character. In its strongest form, the Constitutional Court, after declaring a certain part of the text of the law unconstitutional, can declare this part of the text of the law null and void and thus remove it from the applicable law. However, the lower degrees also formally specify the direction of the concretisation of the given legal text into de facto applicable law. This can be seen, for example, in the German case of the transformation of the "interpretation of a law in conformity with the constitution" into a principle of law, where the Constitutional Court does not declare the text of a law null and void, but prohibits the courts from giving a certain meaning because it considers this meaning to be unconstitutional. The ethical validity mediated by the constitutional review is more precise than the older validity of natural law in that it depends on the determination of the other legal strata in the individual case, in the concrete constitutional court proceedings and still on a text - albeit abstract - laid down in the constitution. However, this may revert to the more diffuse level of the philosophical-interpretative discourse of the time when the Constitutional Court starts to overrule the layers of rights on the basis of some rather empty formulas of basic constitutional rights (e.g. the "right to equal human dignity"). There are signs of this in German and, more recently, Hungarian fundamental rights jurisprudence. The control of the fundamental law, on which the validity of the law - and in the case of repeal, the validity of a law - depends, then becomes unpredictable again, as was the case with the mere formulation of natural law, but with the increased effect that now a body - the Constitutional Court - can actually repeal the legislative texts and 145 other laws on the basis of this control. Dworkin's radical formulation also underlines that in a legal system that recognises the control of fundamental constitutional rights over ordinary law, citizens should be granted the right to disobey the law in principle. Laws that violate fundamental rights are not valid law, according to this view, so citizens can refuse to obey them. Dworkin thus goes beyond most theorists of "civil disobedience", for with them the validity of the law is not denied and the legitimacy of the punishment imposed on the disobedient citizen is not questioned. It is precisely the act of punishment that gives the disobedient citizen the moral underpinning to rouse the masses to recognise that it is a morally reprehensible law and thus demand its change en masse. 4) Finally, the dogmatic validity of the law must be emphasised in order to analyse the more complex concept of validity that we are trying to develop. According to this conception, which was developed with particular clarity by the German "conceptual jurisprudence" of the 19th century, the validity of a textual layer of law always depends on the extent to which it corresponds to the underlying legal dogmatic categories, the principles of law. If this is not the case, judges must interpret the text in the direction that corresponds to the underlying legal doctrine. The text is thus malleable in this concept, subordinate - as of course in other directions of validity in ethics or jurisprudence - and the source of the law's validity becomes the legal dogmatic order. As a criticism of this concept, besides the definitive denial of the influence of the other legal strata on the validity of the law, it can also be said that it exaggerates the unity of the underlying legal dogmatic order. Since the 20th century, the growing number of academic legal scholars has led to the constant development of a number of alternative models of legal doctrine between which to choose, and the political legislator can add something original and opt for an original way of "making law" by having the legal politicians of one party seek precisely those models of legal doctrine that better fit that party's programme and have been developed in advance. The wording of the law is thus often based on the choice of one particular legal doctrinal model among a number of other possible models, and challenging the textual meaning of the law on the assumption of "one" single legal doctrinal order may therefore mean denying the existence of another legal doctrinal model deliberately chosen by the legislator. The validity of the legal doctrine itself must therefore be considered as limiting in relation to the validity resulting from the superimposition of all layers of law. 3.3. Ways to challenge the validity of the law Following the theoretical discussion above, the concept of multi-layered law can also provide useful insights for lawyers' practice. In recent years, especially when the value of the subject matter of the dispute is high or there are other incentives for the parties' lawyers, the strategy of challenging the constitutionality of the applicable law in order to win the case has emerged alongside traditional litigation techniques. However, looking at the overall structure of the law, a number of other ways of challenging the validity of the law emerge. For some of them there are no procedural provisions in our existing law, others are theoretically possible but have not become established in national jurisprudence, but can nevertheless be listed in a logical order and briefly described below. Some of them may be incorporated into the applicable law in the future or simply become commonplace in the course of changing procedural practice in national legal life. Taking into account the overall structure of the law, the question of the validity of the law arises at the level of the text of the law, at the level of legal dogma, at the level of case law and at the level of constitutional rules and fundamental rights. The connection of the law with the moral sphere also raises the possibility of questioning, and the prevalence of the law in everyday practice, or the lack thereof, may also raise the possibility of invalidity for the lawyer concerned and his client. Taking all this into account, there are 11 different avenues available to the good lawyer to challenge the validity of a law, based on the concept of multi-layered law. Let us look at these briefly. 3.3.1 Questioning the wording of the legal norm. 146 There are three main survey routes, but the third can be divided into three further options, so that a total of five survey routes can be listed here. 1. Questioning on the basis of competence. If the lawyer has come to the conclusion that the law in force is perverse, the first way to avoid this is to ask whether the body, institution or person responsible for enacting the law enacted it. For example, it should have been enacted by law but was only enacted in the form of a government decree, or it should have required a ministerial decree, since the provision also gives rise to rights and obligations for citizens and legal persons, but was enacted in the form of a ministerial decree or circular. 2. The challenge for violation of the legislative process. Particularly in the case of higher sources of law, the constitution, statute or other law specifies the manner in which law is made at that level. In the case of legislation, for example, the Law on Legislation and Sources of Law provides for mandatory procedural elements, but also the Rules of Procedure of Parliament (e.g. mandatory consultation of the representative bodies of the area to be regulated). However, it is also conceivable that the government's rules of procedure contain such legislative elements for the drafting of a government decree. Thus, it is possible to challenge the law in force on the grounds that a prescribed consultation procedure was not followed, or that the law was passed after a parliamentary committee had rejected the law - contrary to the rules of the House, or that the legislative body demonstrably lacked a quorum, but the disputed law was nevertheless passed, etc. In this respect, the validity of the law can also be challenged in certain cases in the applicable domestic law, which has already been done several times before the Constitutional Court. Where there is an administrative court, this is possible to an even greater extent and can also be a possible route to successful litigation in the case of lower level legislation. 3. The possibility of challenging the law on the basis of a higher conflict standard. Lower level legislation generally cannot conflict with higher level legislation, but there are usually mechanisms that extend to the statutory level. Above the statutory level, however, there is more uncertainty and thus more room for challenge. These are the three most important cases. a. The law in force violates a constitutional provision so that it is questionable on that ground. For example, if the Constitution lists something in a taxonomy and a law sets out another case on top of that, its unconstitutionality can be argued, but it falls into the same category if the law in force can be contrasted with a precise constitutional provision that contradicts it. In domestic law, this is possible through the Constitutional Court. b. A constitutional fundamental right is violated by the current regulation. This challenge is much broader than the first, as fundamental rights are abstract norms that are only guidelines and can therefore be challenged by a range of legal acts. However, the style of jurisprudence of constitutional judges - activist or more constitutional interpretation - allows for varying degrees of challenge on this basis in different countries. It should be noted that Hungarian constitutional court practice has allowed this type of questioning to a very large extent in recent years. c. If it is an EU Member State, the next option is to invoke the conflict of national law with EU law. Hungary is not yet an EU member state, but is likely to become one in a few years, so this avenue could be of more than theoretical legal significance. EU "laws" - Council regulations, but also to some extent Commission directives - are directly applicable law in EU member states, and since the 1960s the European Court of Justice has redefined the relationship between EU law and national law so that national courts are obliged to set aside national laws and other national legislation that contradicts an EU provision. In addition, a lawyer practising in a Member State may subsequently be liable for damages under the statutory liability if he or she has failed to draw the court's attention to the relevant EU law provision and has thereby caused damage to the party he or she represents. Practical knowledge of the extensive body of EU law and the ability to challenge the validity of the applicable national law in individual cases - in the event of a conflict - could represent a great opportunity for domestic lawyers in the future. It should also be noted that in the first two cases, the lawyer can only point out the violation of a constitutional error or a fundamental constitutional right by the applicable legal provision and request 147 that the provision in question be challenged before the Constitutional Court under a stay of proceedings, whereas in this third case, he or she can immediately request the repeal of the domestic regulation. 3.3.2 Questioning at the level of legal doctrine Two ways of challenging the validity of the law can be highlighted here. 1. The interpretation of the applicable legal rule embedded in existing concepts of legal doctrine can be questioned and an alternative conceptual framework for interpretation can be proposed, which may lead to a polar different judgment. For example, if one interprets the Hungarian constitutional rules on the basis of the American separation of powers at the level of the central organs of the state, quite different legal concretisations are possible in a number of areas of public law than if, on the other hand, the principle of separation of powers is interpreted as a mere separation of powers. In recent years, since the change of power in 1989, strong opinion groups in public life have interpreted the Hungarian constitution according to the American separation of powers - in our opinion wrongly - and the reinterpretation of this constitutional doctrine in the public perception as a simple separation of powers has radically changed the possible provisions of our public law - with the constitutional text remaining essentially unchanged. Now, as this example shows, the reinterpretation of the dogmatic order underlying the text of the law within a particular area of law can lead to very different judgments. Of course, due to the complexity of these cases, it is probably only possible to challenge legal doctrine and introduce new legal principles by involving legal experts from specialised fields, but the involvement of legal experts in the form of regular expert assignments - at least in sensational legal disputes - could become a more general practice in the future. The underlying legal dogmatic embedding of the applicable legal norm can also be challenged by the legal team interested in the claim attempting to override the entire conceptual embedding and replace the existing conceptual framework with the arguments of legal research jurisprudence. Or conversely, if this is the underlying conceptual framework in an area of law, the legal researcher seeks to replace it with the classical conceptual arguments in order to find the meaning of the applicable passage of law. 3.3.3. Questioning the sociological validity of a legal norm Again, we consider three options to be feasible. In the first two cases, invalidity can be invoked on the basis of practice's deviation from the applicable law; in the third case, it is the other way round: practice's failure to apply a recently introduced law, its "not yet living" character, is invoked as a reason for invalidity. 1. "Derogation I". Let us call the case where we question the validity of a certain legal provision on the basis of the fact that a large - and growing - part of society has not followed it for a long time and that the contrary behaviour is even characteristic of the situation. This is a case of "breaking the law" of the traditional common law exception, and even if there is no statutory provision, this is very much taken into account by law enforcement authorities in continental European legal systems. 2. "Derogation II". is the questioning based not so much on the reduction of actual compliance - still many people comply with the norm - but on the fact that in the case of non-compliance the sanctioning has largely disappeared, so that only a deviation from the legal sanctioning has taken place. Of course, after a long time, if some interest beyond the law does not support the survival of the norm, the norm itself will also be completely extinguished, but with this disjunctive, the deviation from the legal sanctioning already allows the invocation of legal invalidity. Questioning the validity of a legal norm that is not yet in force, or at least demanding its application with less severe consequences, is a common argument for sanctioning violations of a number of new legal obligations, so much so that it can now be considered a living practice. Ignorance of the law is no excuse, but in the first stage of the process of bringing new legal norms to life, i.e. to become established in practice, major concessions are often made in imposing sanctions for their violation, and this can therefore be counted among the arguments for sociological challenges to validity. 148 3.3.4 Ethical questioning of the law The last possibility to challenge the validity of the applicable rule is to invoke contradiction with ethical norms. In the era of natural law doctrine, this was one of the most important grounds for nullity (e.g. the basis for the subsequent prosecution of law-abiding people in National Socialist Germany after World War II), but since the era of constitutional principles and fundamental rights strengthened by constitutionalism, this particular ethical challenge has faded into the background. One could also say that it has been "infused" into the question with an ethical dimension through fundamental rights. However, it is not excluded that, in the case of an applicable law, a purely "ethical wrong" can be asserted in addition. An example of this was provided by the Federal Constitutional Court when, in the 1950s, it had to rule on a case of forfeiture of inheritance as a result of an openly anti-Semitic pre-war law and declared the law in question invalid without reference to fundamental constitutional rights because of its "high and manifestly immoral" character. ********************************************************** To summarise, on closer examination, if not in the context of the legal work of an average routine case, then in more important cases - and based on the cooperation of a larger legal team - there are a number of legal theories to challenge the invalidity of the applicable legal provision and in this way win the case. One of the central ideas of Rudolf von Jhering, the great German jurist of the last century, was "the struggle for the right". For even if the law is given, lawyers and other jurists can do much to steer the law in a certain direction - for example, by fighting for a new constitution - and to interpret existing legal texts in new directions and develop their practice of applying the law in that direction. Although lawyers bound to the routine of a single practice may play a subordinate role in this, larger law firms can take the lead in the "fight for the law" by dividing the work internally and taking on more complex cases. 149 Chapter V The legal layer of judicial precedents There is a widespread perception in the legal community and among the general public that precedent jurisprudence is a feature of Anglo-Saxon legal systems and that the dominance of codified statutory law and other written legislation supplementing it has prevailed in continental Europe since the last century. Empirical studies in recent years, however, show that the contrast between the Anglo-Saxon and continental legal systems can no longer be asserted so blatantly in terms of the sources and vehicles of law. Following indications in the 1970s and 1980s, a group of legal scholars known as the 'Bielefeld Circle' carried out systematic studies of the role of precedent in a number of European countries and in the United States in the first half of the 1990s (see MacCormick/Summers 1997). These studies have shown that in the last twenty to thirty years the role of precedents of the higher courts, especially the Supreme Court, has increased in most countries. On the other hand, even in English law, the written law, the "statute law", is increasingly becoming the primary body of rules, and precedents are changing from their former role as "primary body of rules" to interpretive precedents of statutes. However, the bilateral convergence between these legal families - to use René David's well-known expression - still leaves a number of essential differences, and even in the nature of precedents there are fundamental differences between the new precedent-friendly legal systems and the Anglo-Saxon common law legal systems. For a better understanding of the issues, the paper will be divided into two parts, the first dealing with general issues of case law and the second analysing the issues of case law from the perspective of the Hungarian legal system. 1. General questions of judicial precedent law We approach the issue in three main dimensions. First, we need to distinguish the type of interpretative precedents from the type of precedents they primarily govern; second, we need to look at what is binding in precedents and what versions of it have developed in precedent practice so far. Finally, the degree to which precedents are binding must be analysed so that the differences between the legal systems of the various European countries can be well examined from the point of view of precedent. After discussing these dimensions, we will outline the common features of precedent in continental legal systems that further distinguish these legal systems from Anglo-American precedent. 1.1. Interpretation precedents and case law The most important difference between English and American law and the continental legal structure has always been that while there have been statutory provisions in certain areas of law, a number of legal institutions have been developed primarily through judicial precedent and are not governed by statute. In addition, in Anglo-Saxon legal systems, there are interpretative precedents that provide a more precise interpretation of a statutory provision and are applied by judges in the light of these precedents. However, it should be noted that English legislation is inherently more detailed and specific than legislation in the codes of continental jurisdictions. In the legal systems of continental countries, however, precedent jurisprudence has played a major 150 role in recent decades. It must be said that the increase in the role of precedent law in this case actually means an increase in the mass of interpretative precedents, not the emergence of primarily regulatory precedents. An abstract body of law - its abstract legal concepts, the precise meanings of its comprehensive language - is circumscribed by the factual material of hundreds of cases arising from a multitude of judicial interpretative precedents, in addition to the reasoning of the judgments in each case for the judges who later rule on them. It can thus be seen that the growing role of precedent law through the separation of the two types of precedent means not only a convergence of continental legal systems with the common law, but at least as much a convergence with the written law of continental law itself, and above all because in the age of complex social relations the validation of divergent expertise in the formation of a legal norm at the level of judicial decision-making is becoming increasingly difficult and can only be coordinated through the state legislative apparatus. But judges bring the statutory provisions, which thus increasingly take the form of statutory law, closer to the inner world of the law through interpretative precedents. The convergence in both directions can rightly be described as a greater decomposition of law into two layers, both in England - with the dissolution of written law over precedent, pushing precedent into an interpretative role - and in continental European countries, where judicial precedents interpreting the law are becoming more prominent in the public mind alongside written law. 1.2. What is a binding precedent? The answer to this question must first be found in Anglo-American common law systems, for it is there that the practice of precedent has its oldest history and the theoretical considerations of the phenomenon of precedent are the most detailed. Historically, there are three different views on what a judge who follows precedent should take into account in his or her judgment (see Marshall 1997:510-515; for an examination of this question in Hungarian, see Badó 1992). Until the end of the 18th century, the development of English law established only that a judge should base his judgment on the earlier judgment in a similar case and use it as a basis for deciding the dispute. However, this principle of 'stare decisis' or 'ancient decision' took the whole of the earlier judicial decision as precedent up to that point, and the question of whether a more precise rule in the precedent that decided the case should be regarded as binding was not made any stricter. Judges who were bound by the precedent as a whole could thus rule on a looser basis in their subsequent judgments. The emergence of a uniform system for publishing earlier precedents, on the one hand, and the growing criticism of judicial arbitrariness at the end of the 18th century, on the other, led judges to be increasingly bound by more precise precedents. (Jeremy Bentham derided the judiciary as "Judge and Co" as opposed to written law (cf. Peczenik 1997:461)). In the process, the idea slowly developed that it is the "ration of decision", the "ratio decidendi", that binds the judge. It is significant for this gradual development that in 1762 the first indication can be found that within the precedents a "core of decision" is the really binding one, but the term "ratio decidendi" was only used by John Austin in the 1830s. Numerous approaches to the concept of ratio decidendi have emerged over the last century and a half, but despite the theoretical debates, this understanding of precedent has firmly dominated Anglo-American jurisprudence. One of the debates revolves around whether subsequent judges should be guided more by the subjective opinion of the judge who set the precedent (as expressed in his decision) or by the objective rule of law expressed in the precedent. Another debate has long been whether the "declaratory theory" is the basis for the binding nature of precedents or the "constitutive theory"? Until the end of the 18th century, precedents were understood on the basis of the "declaratory theory", and on the basis of natural law it was assumed that the judge in his decision merely declares a legal norm that already exists in natural law. After the decline of natural law thought from 1800 onwards, the factual legislative character of judicial precedents became increasingly accepted, and this change also led to a more precise rule within precedents, namely the localisation of the grounds for the decision. The third answer to the question of the binding nature of precedent has become established in AngloAmerican legal thought in recent decades and focuses not on the precise rule or decision-making rationale of a precedent, but on the underlying legal principle expressed by the precedent. This development is primarily due to the influence of Ronald Dworkin's theory, and the resulting change in the concept of precedent reflects particularly well the functioning of precedent in continental legal systems. 151 With regard to the continental European legal systems, the differences between the three responses to precedent binding are meaningful because here the different legal systems have developed their precedent law with different characteristics (although, as we shall see, there are also similarities between the precedent law systems of the countries of the continental European area compared to Anglo-American common law). The main difference between the continental legal systems in relation to precedent is whether the supreme court(s), which by its very nature plays a central role in the creation of precedent, has been removed from the appellate system and only refers cases to the court at its discretion with the intention of creating precedent, or whether it has remained in the day-to-day running of the appellate process. If the former, then by selecting cases and referring only those that raise legally significant issues, the Supreme Court creates a few hundred precedents each year, which are carefully circulated and published in the Official Journals to develop questions of law. In the latter case, where there is no right to choose which cases are appealed, the Supreme Forum judges make thousands or tens of thousands of decisions each year, repeating dozens of the same cases each week, and the enormous volume of decisions prevents both a thorough examination of the legal issues and a chaotic mass of decisions in the lower courts. An example of the latter is the workload of Italy's highest court, the Corte di Cassazione, with 2530 thousand decisions per year, which it can only manage with 400 judges spread across a multitude of courts. By its very nature, it is difficult to produce a uniform judgment with such a large number of judges - and many courts - and this limits the guidance that its precedents can give to the lower courts. The Italians have opted for the technique of publishing the precedents of the highest courts by publishing all these precedents - tens of thousands every year - in official publications, which, however, only reproduce the essential extracts, the "massima" (Taruffo/LaTorre 1997:156). These "massimas" are produced by a special office of the Corte di Cassazione, which extracts eight to ten lines of legal statements from the judgments. They are the only ones available to the lower courts and the only ones that form the basis for their decisions. This technique of creating precedents is fundamentally different from Anglo-Saxon precedents in its effect. The description of the facts on which the legal findings of the judgment in the case are based is omitted and the "maxims" are formulated in more general rather than concrete terms. However, since the "maxims" are born in tens of thousands of cases per year with varying degrees of concreteness, but are then always raised to a more general level, the judges of the lower courts may encounter contradictory maxims in one and the same case. In the presence of concrete facts, the differences could be perceived by the judges as a "distinction", but in the absence of facts, only the contradictory legal positions can be seen in the maxims on a more general level. Some selection is already possible in the German case, although here the judicial hierarchy is divided into five different judicial hierarchies with separate supreme courts and thus the effect of the supreme jurisdiction of each sector (general, labour, finance, economy, administration) is more pronounced without selection (Alexy/Dreier 1997:34). The Nordic legal systems have undergone the greatest change in the area of precedent law. In Sweden, the role of the Supreme Judicial Forum in appeals was reduced to extraordinary appeal in 1971, and since then it has been up to the Supreme Judicial Forum to decide whether to hear and decide a case if it considers it to be of general legal importance (Bergholtz/Peczenik 1997:298). Following the Swedish example, the Finns moved to the possibility of case selection in 1980, explicitly emphasising that this was to strengthen the Supreme Court's ability to establish precedents (Aarnio 1997:72). In 1995, the Norwegians did the same, with the same aim. This change reduced the number of Supreme Judicial Forum decisions per year from several thousand to a few hundred that are officially published. The functioning of precedent in the Nordic countries is already similar to that of Anglo-Saxon common law, but here too only an abbreviated version of the full facts of the case is published. On the other hand, later judges are less guided by the localised "ratio decedendi" of the precedents, but rather by the totality of the earlier case law. This is also generally true of most continental legal systems, where precedents have been established with increasing frequency in recent decades. 1.3. Degree of compelling precedents There is a widespread perception in the legal world that, in contrast to the formal compulsion to follow precedents by the highest courts in Anglo-Saxon legal systems, the de facto binding nature of precedents 152 is emphasised in continental legal systems. However, a closer look at the distinction between de jure and de facto reveals that it would imply a conceptual contradiction between the distinction between normatively binding and de facto binding and the distinction between "de facto binding" but not normatively binding. For that which is obligatory is precisely that which is normative. The normative compulsion to follow precedent is thus different in Anglo-Saxon legal systems than in continental legal systems (Bankowski/MacCormick 1997:487). In transforming the contrast into a unified scale of coercive power, it therefore seems more appropriate to divide it into four levels: 1. The coercion to follow case law is strongest when it is formally binding, and failure to do so may result in the lower court's judgment being set aside for infringement. (This is primarily peculiar to common law jurisdictions.) 2. 3. At the third level, the reliance on precedents has only the value of a supporting argument, if it only increases the soundness of the judge's legal position as an additional argument, but its absence does not have a significant impact on the fate of the judgment rendered on appeal. 4. finally, the weakest force of precedents is when they are only used as an illustration to better understand the legal position of the court. In continental legal systems, the binding force of precedents is usually established at the level of the last three degrees. Thus, France seems to be the only exception in the whole of Europe, where it is still forbidden to refer to previous judgments. However, the particular duality of judicial decision-making in France and the existence of a closed and confidential judicial sphere of communication behind the public, syllogistic judicial rulings also gives a role to judicial precedents, as we have already seen. In this closed and exclusive sphere of judicial communication, the relevant decisions of the highest judicial instances are always taken into account and referred to when it comes to filling the wide margin of discretion left by the legislation (see Lasser 1995). In the other continental legal systems, the Scandinavian countries and, to a lesser extent, Germany are most affected by the binding nature of precedents. Here, it is advisable for lower courts to cite and follow the relevant Supreme Court precedents and, if they deviate, to carefully justify it. And for the judicial panels within the supreme judicial forum in these countries, it is formally obligatory that if they wish to depart from the jurisprudence previously established in similar cases, they must so indicate, and in such cases only various specialised panels or a plenary session of all the judges of the supreme judicial forum itself can decide (Summers/Eng 1997:531-551). In the southern European countries (Italy, Spain) and in Poland, the need to follow precedents is less pronounced. In this case, citing relevant precedents from higher instances is more of a supporting argument, and although the frequency of such precedents is increasing, their absence is not in itself a reason to change the judgment in the appeal proceedings. 1.4. Common features of continental precedent law Despite the convergence observed in recent decades, the operation of precedent law in continental legal systems differs in many respects from that observed in the English legal system. The most important differences can be summarised as follows. 1. The role of legal-dogmatic processing. Just as the development and application of law in continental legal systems is based on a conceptual legal-dogmatic framework, so too is the influence of precedents on the work of legal scholars. The constant commentary on the judgments of the higher courts, highlighting and examining a key judgment, is crucial in determining which precedents will have a broader impact and which will later die out. The "buffer function" of legal doctrine and legal scholars can be observed both between earlier and later court decisions and between the political legislator and the judges applying the law. Empirical studies in Germany, Italy, Spain and Poland have confirmed the existence of precedent law based on legal doctrinal elaboration (cf. Alexy/Dreier 1997:19; Taruffo/La Torre 1997:196; Miguel/Laporta 1997:267; Morawski/Zirk-Sadowski 1997:234). In French legal life, this mediating role of legal doctrine is particularly important. Here, as shown, judges do not cite precedents - they are forbidden to do so by law - but the legal guidelines of Supreme Court decisions play an important role in French jurisprudence. However, the judgments are so brief and concise that they are not in themselves suitable for unifying subsequent judgments and ensuring a uniform interpretation of the law (cf. Kötz 153 1973; 1988 and Tropper/Grzegorczyk 1997:123). Based on the concise explanations of the judgments, legal scholars explain the legal positions of the precedents and the legal connections between them in commentary studies. For the lower courts and the legal profession as a whole, these legal dogmatic commentaries represent the current legal interpretation of the Court of Cassation. In addition to commentary, judicial selection is also important, as this judicial body cannot itself select cases for appeal and its councils issue some 25 000 judgments annually. 2. Published precedents with abbreviated facts. The publication of full judgments is not common in any continental legal system; instead, only abbreviated factual presentations are published by the highest judges in their legal positions in a judgment. The Italian solution is the pinnacle of this practice, where no facts are published at all and only a summary of the legal reasoning. Moreover, this is not done by the judges who handed down the judgment, but by a separate office whose members were not involved in the judgment, so they only have indirect insight into the case. In most continental countries, a few lines of the preface of published judgments highlight the legal findings in bold, as is the case with domestic court decisions. This, together with the influence of continental Roman legal culture, makes following precedents here seem more like following rules in the abstract and less like following legal positions based on deep and detailed nuances of facts. 3. Follow judicial practice rather than individual precedents. In the English common law legal system, precedents that follow a detailed set of facts usually have the effect of adding nuance to a decision on a new question of law through further judgments, highlighting new aspects, establishing exceptions or further articulating the position on the new question of law, and ultimately regulating a particular area of life in great detail as a "leading case" and a series of surrounding individual precedents. In contrast, in continental law, the 'groping around' precedents are not severed and thus do not survive, but are embedded in a more diffuse judicial practice that passes on their existence to them, as it were, and only the judicial practice survives. One reason for this is that the more conceptual continental legal culture is simply not capable of the case-based casuistry common in English legal culture. However, the jurisprudential-dogmatic treatments also mean that the fixation of legal issues in continental countries is shifted to a more abstract level and the legal position is more tied to loose court practice than to precedent. 4. The emergence of decisions of the constitutional courts interpreting the law. In English law, the interpretation of supreme court jurisprudence is always case-specific, which, as has been shown, creates the most detailed fact-specific precedent. In several continental jurisdictions, the Constitutional Court has entered the realm of statutory interpretation, and where this constitutional power exists, it is also the highest forum for statutory interpretation among the courts. This is the case in France, Poland and Germany. This means that constitutional judges may not only interpret the Constitution, but may also be called upon to interpret the law and to interpret the law in question in the light of constitutional principles and fundamental rights. For example, in 1993, the Polish Constitutional Court, whose powers of constitutional review of laws are much narrower than those of our constitutional courts, gave an interpretation of the law in 14 cases, which must be taken into account by the judges of the Polish Supreme Court (Morawski/Zirk-Sadowski 1997:232). ******************************************************* Precedent jurisprudence has thus become more open in continental legal systems in recent decades than was previously the case, but the decomposition of the meaning of law into multiple layers, as opposed to the decomposition of English law into a single layer of law, still distinguishes continental legal systems from the common law system. The layers of statutory law, precedent interpretation and legal doctrine together contain the full meaning of these legal systems. The apparent appearance of precedent only makes the multi-layered workings of the legal system more apparent. 2. The Hungarian precedent law 154 In analysing the main avenues of legal interpretation in domestic jurisprudence, it became clear that the way in which judicial decisions rely on previous judgments and judicial practice has changed significantly from the 1970s to the present day. At that time, there were hardly any references to previous Supreme Court jurisprudence or judicial practice in civil cases, while there were relatively few in criminal cases, but in recent decades the number of such references in criminal judgments has continued to increase significantly, and they are also included to a considerable extent in judgments deciding civil cases. (Judgments based on Supreme Court policy decisions, guidelines and collegial opinions have been excluded from the analysis and not considered part of case law, as they have all the characteristics of abstract norms and have emerged through mechanisms other than case law. A separate discussion of changes in the frequency of their use can be found in the preceding sections). This increase in importance justifies a closer look at the existence of precedents in Hungarian law and the characteristics of their functioning. To this end, we have drawn on the Supreme Court case law from the 1990s published in the court decisions on substantive civil and criminal law, and the following findings are based on their analysis. We searched the collection of case law from 1991 to the summer of 1999 and found a total of 145 judgments in criminal cases and 94 judgments in civil cases in which a reference to previous judgments or to court practice or both formed the basis for the legal position of the judgment. 2.1. The weight of the judicial law The development of reference to previous Supreme Court precedents and judicial practice since the 1970s has shown that there is a divergence between criminal and civil judgments in this respect and that this divergence persists, albeit to a lesser extent, in the greater frequency of judgments based on precedents. However, the proportion of judgments based on precedent and case law is now very high in both jurisdictions, i.e. the law is less and less 'carried' by the statutory text and other legislation, but is increasingly linked to the materials of the arbitral tribunals. The fluctuation of this weight and its reduction can be better seen by looking at the development of the absolute frequency of references from 1991 to the present, broken down by year: in 1991 there were 3 references to previous relevant BH or court practice in civil cases and 16 in criminal cases; in 1992 there were 8 in civil cases and 21 in criminal cases; in 1993 there were 5 and 18 respectively; in 1994 there were 10 and 16 such references; in 1995 there were 12 and 15, respectively; in 1996 there were 10 and 20, respectively; in 1997 there were 16 and 17, respectively; and in 1998 there were 21 and 17, respectively. It should be noted that the 21 references to precedents in civil cases relate to 104 civil cases, whereas behind the 17 references to criminal precedents we were only able to analyse 62 criminal BHs, as this was the only figure published that year. This means that the frequency of criminal cases is still higher than that of civil cases. Finally, we found 9 cases of civil precedent and 10 cases of criminal precedent in the first half of 1999. 2.2 The binding nature of precedents and case law The constitutionally anchored and formally binding precedents of the former supreme courts are only binding in Anglo-Saxon legal systems. Here, the principle of "stare decisis", the "old decision", formally provides the case law as a source of law. In continental legal systems, the binding nature of precedents is not established at this level, but as shown in the first part of the study, this binding nature exists to varying degrees in non-formal form. One question that needs to be examined in the context of the domestic legal system is the relationship between individual judicial decisions and judicial practice in terms of binding force. To what extent is a relevant decision of a higher court binding in itself, and to what extent is judicial practice invoked in its own right? As the comparative analysis of continental European countries has shown, in contrast to the Anglo-Saxon legal systems, a relevant precedent of a higher court is usually not binding in itself, but only if a broader legal practice develops from the position of many precedents pointing in the same direction. This phenomenon can also be observed in our country, and in most of the 240 references to case law 155 found from 1991 to the present, it is typical that a particular case law is cited as the main justification for the legal position taken in the judgment, and one or more decisions of the Court are cited as examples of this case law (in two of the 240 cases, a decision of the Supreme Court was cited which was not published in the collection of case law). However, it is also very common to merely state that the legal opinion is supported by case law, but not to cite any case law. Sometimes this arouses the analyst's suspicion, as in Case No. 1998/467, in which the court in a fatal traffic accident case referred five times to legal practice to support various legal positions, but never once produced a concrete case decision to verify this. The actual existence of a judicial practice may also be questioned by the analyst if the court bases its legal position on a "settled practice of the Supreme Court" but can only refer to case law not published in the case law, as in BH 1998/277, where the alleged "settled practice" was supported by an unpublished case law from four years earlier. In fewer cases, but more frequently than when merely referring to case law, only relevant case law is cited as a basis for the legal opinion of the judgment, without claiming that it is case law. Case BH 1997/391, for example, dealt with the nullity of a contract with a "contractor", a person without a business licence, and the legality of charging VAT on the contractor's fees. The defendant "contractor" had carried out the work with minor defects which could be considered complete once they had been remedied. The plaintiff disputed that the "contractor" could charge VAT. In the appeal proceedings, the Supreme Court pointed out that the new Act V of 1990 on Self-Employment came into force on 15 April 1990, and in Case No. BH 1994/186, the LB stated, in view of the shaping of case law, that if the law does not prohibit an activity, the fact that the contractor does not have a business licence for that work does not in itself render the contract of employment null and void. Consequently, VAT may be charged on the performance of such an activity," the court said, explaining its decision with this single BH. It is also common for the court, while not citing prevalence in practice as a basis for a legal position, to point to "several Supreme Court decisions" in general that consistently hold this position on the issue, and cite one or two BHs in particular to support it. For example, in Case No. 1998/79, the court justifies its position with this solution: "As the Supreme Court has already held in several judgments, the tenderer is not obliged to conclude a contract." In one case there was a dispute about the relationship between a mere individual case decision and case law with regard to the binding effect. This was the case in BH 1998/232, where the court of first instance relied in its judgment on a relevant case law of the Supreme Court to justify its legal position and claimed that there was case law corresponding to this decision. On the contrary, the court of second instance argued that this LB jurisprudence was indeed contrary to established case law: "... the LB jurisprudence relied upon by the court of first instance has not been confirmed in judicial practice and, moreover, the jurisprudence is not binding on the lower courts." This argument was already made in the review proceedings, where the LB judges consistently cited and ultimately accepted the second instance position. It follows that the binding nature of the case law of the higher courts, which has been incorporated into and complements judicial practice, is also recognised by the judges of the highest court, as was the case with the judges of the second instance. On a constitutional level, of course, even precedents that flow into and complement judicial practice are not binding, so that the argument cited above only expresses the actual position of the judiciary. However, this brings us to the question of the binding nature of Hungarian judicial law. 2.3 Degree of binding force of the judicial law In total, there are four levels of binding force of precedent in each country. It is strongest when a violation of it leads to the overturning of the judgment in every case; it is weakest when it is possible to deviate from a previous relevant precedent by explicit argumentation if it convinces the appellate court; the binding effect is even weaker when the precedent is only an auxiliary argument but is used to create additional legal grounds (e.g. a statutory provision, a constitutional fundamental right, etc.). e.g. a statutory provision, a constitutional fundamental right, a prevailing legal opinion, etc.); finally, the binding effect is weakest if one or more earlier decisions of the case law are merely used to illustrate the legal position. In Hungarian jurisprudence, at least in criminal and civil cases, all four degrees can be observed. There are numerous cases of judgments in which, in violation of the relevant case law and the legal 156 practice based on it, a violation of the law or other violations of the law was established and, by setting aside the judgment of the lower court, the court that issued such a judgment was ordered to initiate new proceedings. This was established, for example, in Case No. BH 1999/211, which concerned the recovery of a gift in a civil case and the basis for recovery was livelihood vulnerability and the dispute was whether the living conditions of the gift-giving plaintiff justified livelihood vulnerability? 582(1) of the Civil Code allows for this possibility, and the court of second instance found that the plaintiff's living conditions justified such a claim and upheld it. In the appeal proceedings, however, the judges of the Supreme Court argued that "the Supreme Court has already stated in several decisions that the assessment of the threat to existence cannot be limited to clarifying the material means to cover daily needs, but that in assessing the threat to existence, in addition to the donor's income and asset situation, the extent to which he is in need due to his age and state of health and whether this situation is temporary or permanent must also be taken into account." After considering this, he eventually amended the final judgment. What interests us here is that this decision was based by the Supreme Forum judges on the "illegality of the final judgment due to the misapplication of substantive rules". In other words, the judges' ruling, which did not follow several LB decisions, was not simply described as "contrary to case law", as the reasoning states, but as "contrary to the law". This example is not an isolated phenomenon, but in many cases of the review process this level of strength can be found in the case law in both civil and criminal cases. As an example of criminal cases, consider the BH 1999/100 case, where the second instance found, among other offences, the misuse of public documents because during a search of the suspect's house - which had been ordered for another offence - two passports issued in the name of another person were found. The court based its legal opinion on the fact that the accused had concealed other public documents in this way. In the appeal proceedings, however, the LB judges pointed out, with reference to settled case law and a BH, that the mere fact of keeping public documents of another person in the flat could only not be considered as concealment if the suspect had denied a question from the owner or, for example, the authorities. Because of this violation of case law, the Supreme Court ruled on appeal that there had been "a violation of the rules of substantive criminal law" and therefore overturned this part of the judgement. Even though at the level of the Constitution, where only the law and case law are declared legally binding on the courts, case law and judicial practice shaped by case law do not constitute law, this is explicitly stated in Supreme Court judgments. However, this is only the case in some, perhaps most, cases, as the reference to precedents in the AB is often only supportive or illustrative. In other words, since the degree of binding force of "a precedent", "several LB decisions" and "judicial practices" is not formally established in Hungarian law, they are often referred to only in a supportive or illustrative way, while their violation is considered a breach of the law in other cases. The binding nature is often also called into question by the fact that there are very different interpretative decisions in the case law of the Supreme Court. A good example of this is the two 1998 cases on the offence of defamation, BH 1998/211 and BH 1998/570, which are very contradictory. Already in the title it says, underlined in bold: "The case law on the offence of defamation is wrong, according to which complaints, criticisms and communications addressed to public and social institutions for the protection of the public interest or legitimate private interests do not constitute a danger to society even if their content is wholly or partly untrue." It then ruled against an "erroneous legal practice". In Case No. 1998/570, a defamation offence was also raised in the form of an advertisement, but in the appeal proceedings, the LB judges, without referring to the precedent of only a few months ago, ruled according to the previous "erroneous legal practice" and invoked the BH judges of a few years ago. This phenomenon has been observed repeatedly in the analysis of hundreds of BHs. In this context, the possibility of a formalised review of precedents should also be mentioned. The institutional instrument for this is the judicial review procedure introduced at the end of 1997, which is used when "a question of principle in the case-law needs to be decided in order to develop the case-law or to ensure uniformity in the case-law; or when a Chamber of the Supreme Court wishes to depart from the decision of another Chamber of the Supreme Court on a question of law" (1997. The first thing to note is that this new body, which has only been in existence for a few years, removes the decisions of the judges of the Supreme Court from the jurisprudence of the Court of Cassation and Justice - the jurisprudence published in the Collection of Case Law - and makes them formally binding on the other judges of the Supreme Court. This binding nature means that it can only be departed from in special procedures, by a request for a case law and a decision admitting it. A new legal institution replacing another institution with a decades-long history - in this case the 157 Supreme Court's landmark decisions, guidelines and collegial decisions - can only be implemented with difficulty and in small steps. It is therefore understandable that in these one and a half years a total of 24 decisions were issued in the areas of civil, criminal, administrative and labour law (in 1998, for example, there was one decision in the area of labour law, two civil, three administrative and six criminal cases, and in autumn 1999 there were three civil, three administrative and five criminal cases). This means that, for example, there were just under six such judgments for about 150 criminal and criminal procedure judgments in 1998, or two such judgments for about 200 civil judgments. The analysis of the hundreds of BHs mentioned above has shown that there is indeed much more divergent jurisprudence and case law than is clarified at the jurisdictional level. For example, the BH 1998/211 case mentioned earlier was itself about correcting the "erroneous jurisprudence" in the defamation case without seeking adjudication, and as could be seen, the LB's other judgment in BH 1998/570 passed over it without mention. In any case, the body is fundamentally suited to a formalised review of precedent, and time is likely to make it even more so. 2.4 The binding nature of precedents As we have seen so far, the weight of case law in Hungarian law has increased considerably, which means, on the one hand, the frequency of judgments based on previous Supreme Court rulings and, on the other hand, the increasing binding force of previous precedents, reflected in the fact that their violation their disregard - is often punished as a breach of law by the judges of the highest judicial body. This increase in importance raises the question: What is the relationship between the newly created level of jurisprudence and the text of legislative texts and legislation in general? To what extent are precedents of concrete interpretation, and to what extent do they represent a possible overruling of statutory provisions? It is also worth posing this question openly because the two hitherto influential theories of judicial law, the "free law school" of the early 20th century and the "legal realism" that prevailed in the United States in the 1930s, promoted the displacement of the law and the legislature through the propagation of judicial law (cf. Fikentscher 1975). By integrating the one-sided accents of the various legal concepts into a multi-layered concept of law, the judiciary as a legal layer can be formulated as a problem-free inclusion - already in the light of the legal development of the last century (cf. Pokol 1989; 1998a), but in fact the judiciary can develop in both directions, and only an empirical study can show which version is implemented in a particular country. The starting point for answering this question can be found in the entire case law of our higher courts. As we have shown in the previous section by analysing 600 decisions of the higher courts - published in Judicial Decisions - Hungarian judicial interpretation of law is essentially characterised by fidelity to the text, and a slight detachment from the text of the law occurs only by including legal dogmatic concepts in the interpretation, but the interpretation of fundamental law or general principles of law beyond this is not typical of Hungarian judges. While it is undisputed that our judges have moved towards a freer interpretation of the law in recent years compared to the explicitly text-positivist legal interpretation of the 1970s, as our study mentioned above has shown. However, this in no way fundamentally calls into question the text-bound nature of domestic legal interpretation by the courts. This attitude also determines the nature of judicial precedents in national law. A study conducted prior to the preparation of this study of 240 other Supreme Court decisions that explicitly referred to precedents and judicial practice in developing their legal positions revealed that judicial precedent in our country does not consist of normative precedents that would overrule the relevant statutory provisions, but rather of interpretative-concretising precedents of those statutory provisions. These precedents provide a normative decision in one direction or the other on the decision-making dilemmas that arise in the colourful tangle of individual cases when applying a particular legal norm and that can be decided either one way or the other within the framework of the legal norm. The judges, who are confronted daily with the dilemmas left open by case law, can decide them uniformly in one direction nationwide with the help of the concrete interpretative precedents. Thus, case law does not take away the legislature's decision-making power, but rather limits the discretion of the individual judge. Below the level of legislative texts is the level of judicial precedent, which provides concrete interpretations and gives judges the binding basis for their decisions with a high degree of precision. Overall, it can be said that domestic judicial law - at least in its development so far - is harmoniously 158 adapted to the statutory texts and does not represent a proliferation of "free illegality" of judges. This does not mean, however, that there will be no changes in the future in the direction of the abolition of statutory law, since the self-organisation of the judiciary and the disappearance of the powers of the judicial policy, which is a parliamentary majority, in the appointment of judges is only a few years ago. It is therefore necessary to support the development of a judicial level as a concretiser of the law, while ensuring that the legislature is able to identify any tendency to drift and take the necessary countermeasures. 159 Part Two Legal theories and theoretical schools ******************************************************************* Chapter VI History of legal theory 1. The history of legal theory In the following chapters of the book, we will discuss the history of the development of legal theory in the main Western countries and in Hungary, as well as contemporary legal theories. Further on, we will look at the most important insights of German and American legal theories, which have developed considerably over the last two centuries and exert international influence. German legal thought dominated in the nineteenth century, and after the first decades of the twentieth century, American legal theory gradually began to influence the paradigms of legal theory in industrialised countries. Before going into detail, however, it seems appropriate to outline the main legal theories that have developed over the last two centuries and their relationship to the different strata of law. 1.1. Legal theories and layers of law The levels of law are judicial casuistry, the jurisprudential-legal dogmatic sphere, the legislative sphere and, in recent decades , the practice of constitutional jurisdiction over constitutional fundamental rights in a number of legal systems. With this overall picture in mind, it is possible to divide the narrowings and one-sidedness of the main legal theories into main types and to better appreciate those legal concepts that can better capture the overall structure of law. First, we will consider some examples of legal positivist conceptions of law that narrow law to the legal text, then an approach that narrows law to the legal dogmatic level, then we will briefly discuss the concept that identifies law with judicial practice, and finally, as a more recent development, we will consider an approach that relates law to fundamental constitutional rights. Many sociological approaches to law, especially at the beginning of the 20th century, identified law with everyday practice, so we will briefly address this as one of the important limitations. 1.1.1. Delimitation of decisionist positivism This approach focuses on an important aspect of modern legal systems and identifies it with law. The law consists of decisions of specific instances (higher courts, state agencies) from which judges and other legal 160 practitioners interpret the judgments on a case-by-case basis. There are two sides to this interpretation of law, which must be evaluated differently. On the one hand law in this view is synonymous with the text of judgments in formalised legal sources. This side contains important truths from the perspective of the practising judge, at least as far as the main direction of his orientation is concerned. The other side of the decisionist view of the law is the really problematic one, which regards the totality of the rulings in these sources of law as the very product of the public institution issuing them, and thus declares, or at least fails to declare, that it follows from them that any change is arbitrary. If one puts this latter aspect, i.e. arbitrary change, into practice, it immediately becomes clear that the assumption that the judge is bound by the text of the law contains a limitation that remains hidden only as long as the text of the law consists of legal dogmatic categories of action and the constructions they permit, which socialise and coordinate the judges' decision-making criteria and derivations. However, as long as this is the case, legal positivism does not pose much of a problem for judges. The first clear formulation of the decisionist conception of law goes back to Hobbes (Perelmann 1983:428), who, in contrast to Locke's earlier ideas, places no limits on the sovereign ruler, who suspends the primordial state of nature, in the creation of law. Rousseau's popular sovereignty already takes this sovereign law-making further, and Montesquieu's theory of the separation of powers, in which the judge as the "mouth of law" only pronounces judgement, fulfils this ideal. In France, this theoretical background and the successful Napoleonic codes led to the "école de l'exégese", the "exegetical school", being dominant from the beginning of the 19th century and refusing for almost a hundred years to recognise anything other than the text of the codes as law. Since one of its representatives, Bugnet, declared that he knew no such concept of private law, he applied the Code Napoleon exclusively (Kramer 1969:6). In Germany, Bergbohm's Jurisprudenz und Rechtsphilosophie, published in 1896, was the first clear formulation of the decisionist conception of law, which never really caught on here, however, as it did in France. In England, due to the special nature of common law, theories never played a major role in the actual development of law, so that here the legal theory of Jeremy Bentham and, in his wake, John Austin, which based law on the commandments of the state, only had theoretical significance. Austin had a greater influence on 19th century American legal theory, which was more integrated into legal practice and thus better able to influence American legal reality. Here, however, it was not Austin's definitive conception of law based on state commands that became important, but his analytical conception of law, which emphasised the categories of law behind the law (the American legal realists later turned against this and turned to judicial practice, as did the school of free law, which turned against German conceptual jurisprudence). Thus, Austin's definitive conception of law is more akin to ethical conceptions of law only because of his definitive conception of law (see Ott 1983:425). One of the most effective formulations of decisionist legal positivism is undoubtedly that of Hans Kelsen. From this point of view, the most important feature of Kellenian Pure Jurisprudence is that it breaks with the concept of the conceptual unity of law established in German jurisprudence since Savigny and Puchta, without explicitly refuting it, and replaces it with a concept of valid unity. The traditional answer to the question of what constitutes unity in the diversity of legal norms was that of an underlying uniform legal dogmatic system of categories. In contrast, Kelsen sees unity in the traceability of individual legal decisions to earlier decisions, ultimately to the constitution and behind it to a hypothetical basic norm (Kelsen 1934: 63). The special feature of law is that a state decision attaches an artificial legal consequence to a causal fact of life. Law is thus a special technique which, through this linkage - a hypothetical judgement - can connect everything with everything and must be regarded as law. The only prerequisite is that this state decision comes about in a procedure and within a framework that a previous state decision has established for it (Kelsen 1934: 24). In this formal stage of validity, the unity of law is established. 1.1.2 The exclusivity of the legal dogmatics The pan-Danish jurisprudence that prevailed in German jurisprudence in the second half of the last century - or in the name of its critics "conceptual jurisprudence" - clearly shows another possible narrowing of the legal structure alongside the decisionist legal positivism. In this approach, law is a system of concepts, of legal principles that can be logically derived from one another, which bind both the 161 legislator - once he has reached into the law - and the judges when he applies the law or the system of legal concepts created by the legal dogmatics-legal science layer to the individual case. In this understanding of the law, the legal profession is the bearer of the law, but at the centre of the legal profession is academic jurisprudence, which alone can guarantee the systematic and scientific nature of the concepts. Even concepts established by the legislator can only be justified by derivability from the concepts of the legal system, and conceptual jurisprudence thus stands in sharp contrast to legal positivism" (Jerusalem 1948: 149). 1.1.3. The law as judicial law This view of the law was largely realistic in relation to the predominantly judicial precedents of the 19th century English common law system. However, on the continent, but also in the United States, where, in contrast to adherence to rigid English precedents, statutory law already played a greater role at that time and a more abstract legal doctrine and legal dogmatic level of mediation emerged, the emphasis on sovereign judicial legislation can be seen as a narrowing of the overall structure of law. In Germany, Oscar Bülow's 1895 work "Gesetz und Richteramt" (Law and the Judiciary) can be seen as an introduction to the liberal legal school of legal theory, which transferred law from legal doctrine and jurisprudence to individual judicial decision and practice. In this conception of law, the artificial constructs of legal doctrine became the main point of attack on the functioning of law and only secondarily the legislation of the state. The latter was granted a certain binding force, which was primarily directed against the predominance of the jurisprudential-dogmatic layer. This was also the line of thought of Eugen Ehrlich, who later expanded the legal substrate even further in his sociology of law and found the "living law" in the practices of everyday life. However, in the writings of Ernst Fuchs, perhaps the most militant figure of the free school of law, the positions of the judge's concept of law can still be clearly seen). Fuchs went furthest in explaining the judge's freedom from the law and from dogmatic categories in his insightful 1909 essay ("The Public Harmfulness of Constructive Jurisprudence"), in which he sees the judge as empowered to rule against the express provision of the law on the basis of principles of equity or justice (Fuchs 1909: 99). In America, K. N. Llewellyn and Jerome Frank are largely responsible for legal realism, which focused on judges and was influential here for a brief period between 1930 and 1940. This movement merely completed the move away from the analytical view of law that O.W. Holmes had already begun at the end of the last century and, like the German Freethinkers, believed that law was to be found in the individual judgement of the judge. Llewellyn summarised: "What the judges entrusted with the administration of justice decide in a legal case is, in my opinion, the law itself" (Llewellyn 1930: 12). Jerome Frank was even more radical in his rejection of the permanent-constructible moments of law, and by focusing on the image of the judge as influenced by myriad psychological, contingent circumstances, he also denied the binding force of earlier judicial precedents. If the same case is later decided by a different judge, with different lawyers and different litigants, the verdict will be quite different, depending on his or her impressions (whereas for Llewellyn, the established rules still provided some guidance for the judge, though not the decisive force). 1.1.4. The law as a layer of fundamental rights In contrast to Hart's conception of law as a narrowing of rules, Ronald Dworkin, from the late 1960s onwards, with a view primarily to fundamental constitutional rights, attempted to include the layer of legal principles in law and to interpret it as a double layer of rules and legal principles (see Dworkin 1977a). In this thematisation, the absence of a specific rule for deciding a case does not mean that the judge is left with a free discretion - which follows from Hart's conception - but that he has to decide the case on the basis of the principles of law as another part of the law. However, this is often the case even when there is an apparently concrete rule, but it would lead to a manifestly unjust result. Dworkin cites examples from case law where, in such a case, the court has overruled a rule at the rule level by relying on an underlying legal principle. For example, a person named in a will who had killed the testator - 162 following a criminal conviction - would not have been excluded from the inheritance under the statutory provision, so the court deprived the heir of the inheritance by invoking an overriding legal principle - "no one shall be benefited by his own tort". A particular narrowing is found in Dworkin - and this is the important point for us - when he focuses on the fundamental rights principles enshrined in the Constitution and ascribes to them the actual force of law and, on the basis of these principles, exempts citizens from the duty to obey provisions of ordinary law if they contradict fundamental rights. "The ability to violate the law is not an isolated right, but a supplement to the other rights vis-à-vis the government. It is simply a feature of fundamental rights.... and it cannot be denied without denying those rights themselves." (Dworkin 1977b: 211). Or to put it another way, "... any society which recognises these fundamental rights must reject the idea of universal obedience to the law which applies to all cases" (216 p.). In this thematisation, true law is reduced to the constitutional level of fundamental rights, it gives citizens their primary subject rights, and simple rules of law at the level of rules are only conditionally valid and must be conditionally obeyed. 1.1.5. Law as an everyday practice The layers of the professional legal system that emerge from the world of everyday customary norms are in many ways free from the mundane routines followed by the masses and can shape those routines through a variety of mediating mechanisms. Too much distance, however, quickly makes lawyers aware of the limits of this freedom. This is where can identify a " niche for change" as far as the separation between professional law and everyday routines and beliefs can go. As a countermovement to the creation of written law, which did not become established until the 19th century, and to the dominance of legal concepts foreign to everyday language, some legal theorists have, since the end of the last century, turned away from legal positivism and dogmatic positivism and, in search of "true" law under "paper law", have moved from judge-made law to everyday practice. At the end of the 19th century, the Frenchman Léon Duguit, faced with the rigid positivism of the "école de l'exégese" that prevailed in France, completely rejected the idea of an autonomous sphere of law that would rise above everyday practice. For him, true law was "objective law", and the positive law of the state was only valid insofar as it represented this objective law. "The collective state of consciousness that cries out for sanctions is the source of constitutive law." (Duguit 1920: 206) An economic or moral rule becomes a norm of law when the conviction takes hold in the minds of the masses that the social group concerned, or those who exercise the greatest power among them, can intervene to stop the violation of these rules. In the same years, Eugen Ehrlich arrived at similar ideas in the German-speaking world, as can be seen in Duguit. Beyond judicial practice, Ehrlich eventually found "living law" in everyday practice. As he writes, he went through six hundred volumes of judicial decisions to find the true law beneath the paper of the law books. "Soon, however, I became more interested in reality than in jurisprudence. (Ehrlich 1977: 71). The Pole Leo Petrazsiczkij also comes to similar conclusions in his 1907 study in search of "true law" under paper law. Where should we look for legal phenomena?" he asks and then explains. It recognises the law not where it actually occurs, but where it does not occur in the world... that is.... in the world outside the experiencing subject." (Petrazhitsky 1981: 125) In other words, he finds the real law to be the same in the psyche of the individual. He calls this "intuitive law", which thus varies from person to person and on which the positive law of the state acts only as one factor among others that determine it. Mention should also be made here of the American Graham Sumner, who also established the same relationship between "popular custom" and positive law in other terms at the turn of the century, as was seen in Ehrlich's "living law" or Duguit's "objective law". 1.1.6. Theories about the complex legal system The balanced, multi-level approaches are the exception rather than the rule in the history of legal theory, in contrast to the narrowing of law to a single level. Perhaps the most prominent representative of modern 163 legal theory, the approach of Friedrich C. von Savigny, clearly belongs to this group. Savigny links the development of law to everyday practice - with the somewhat unfortunate choice of linking it to the mystical-sounding "Volksgeist" - and emphasises the classification of diffuse and obscure legal norms into legal-dogmatic-legal categories. (See Larenz 1979: 14-25.) His complex legal approach was later thinned out by his followers in the course of the narrowing of the historical school of law to a "conceptual jurisprudence", but Savigny's own theoretical orientation can still serve as an example. At the turn of the century, Francois Gény succeeded in breaking the dominance of the legal positivism of the French "exegetical school" and avoiding the opposite extreme of the contemporary Duguit by developing a complex concept of law that preserved the freedom of the autonomous layers of law vis-à-vis everyday practice. Gény's starting point for presenting the components of law is the separation between the level "given" to law and the level "constructed" by legal activity (Gény 1917: 6). By the former, he means the necessary inclusion and recognition of the order of social phenomena beyond law in law, and by the latter, the legal techniques created by legal activity. For Gény, "legal technique" is roughly what was meant in nineteenth-century German jurisprudence by the legal dogmatic categories and special legal distinctions that ordered the tangled and complex social phenomena, but for him these are not part of a general legal system, but only as elements that help the judge connect rules and facts. Even though Gény lacks the emphasis on the systemic idea behind the rules, he places the German BGB, which is based on a coherent legal dogmatic system, first as an ideal work in comparison with the Code Napoleon, the German BGB and the Swiss Civil Code , which had just been completed at the time, and condemns the looser French and Swiss codes for their systemic deficiencies (Gény 1917b: 548). In addition to the technical level of law below the textual level of law, he also introduces the idea of the autonomous role of legal principles. "Under what conditions do judicial decisions go beyond the level of legislative acts and approach legislative acts? In this respect, is there no room for a distinction between judgments? What are we to make of 'norms' that are guidelines rather than precise rules?" (Gény 1981: 207). Even though Gény's analyses often lack logical rigour, it is precisely this multidirectional attention in his writings that creates the picture of a multi-layered, more complex law (for a systematic analysis of Gény's theory, see also Fikentscher 1975 vol. 1: 460-497). Like Gény - and influenced above all by him - we see a multi-layered concept of law in Benjamin N. Cardozo in American legal theory around the turn of the century. In addition to the "ratio decidendi" of precedent and written law typical of Anglo-Saxon law, Cardozo focuses on the role of the "general ratio decidendi", the principles of law that arise from multiple precedents and prevail over the rules. He also isolates the basic legal ideas that underlie precedents and guide judges in their decisions (Cardozo 1921:20). In his analysis, law appears as a set of legal rules, precedents, legal concepts that provide regularity, dogmatic categories and legal principles and maxims that stand above the rules of decision. In later years, Cardozo himself moved away from the legal approach of his 1921 book and closer to the movement that Holmes radicalised towards legal realism, but this little book has proved to be one of the most influential works of the last century , not only in the United States but also, through Josef Esser, in German legal theory since the 1950s. Thus, in addition to the narrowing concepts of legal theory, the history of legal theory has also been marked by influential theories that have focused on the multi-layered nature of law. These should still be taken as a basis today if we want to explore the layers of complex legal systems on a broad basis. 1.2. Overview of the development of Western legal theory The history of theoretical thinking about law from the beginning of the 19th century should focus on German jurisprudence. For various reasons, the other major Western European countries, which were important for the development of modern society, could not contribute much to the definition of modern legal thought at that time. In England, after the final standstill in the reception of Roman law from the 17th century onwards, the way in which judicial precedents were followed became increasingly formalised, which pushed theoretical legal thought, which had risen above practical law, out of England for a long time. The only significant English legal theorist of the first half of the 19th century, John Austin (1792-1856), remained an outsider in his own country and had to move to Germany for years because of 164 the lack of resonance of his theory at home. In France, the decades-long closure of the judiciary and law faculties, which had been abolished or driven into emigration by the Revolution, destroyed already advanced legal thinking, and the dominance of "legal positivism" in French jurisprudence, which derived from Montesquieu's concept of law, also fundamentally hindered the revival of theoretical legal thinking. German jurisprudence thus arguably represented the most important branch of theoretical legal thought in the modern world in the nineteenth century, and the transformed adoption of its insights by most countries from the end of the last century formed the basis for the development of the legal theories that prevail today. We therefore begin with a brief outline of the history of legal theory in the 19th century in German legal theory, then move on to the revival of French legal theory since the end of the last century and conclude with a brief summary of the changes in the positions of English and, building on this, American legal theory. 1.2.1. The development of German legal theory The history of German legal theory in the last century should begin with the work of Friedrich Carl von Savigny (1779-1861). Savigny is considered one of the founders of the historical school of law, who placed law in the collective consciousness of a particular society and conceived of it as a "people's spirit". On the other hand, he ruled out the possibility of a law created by a conscious state decision on the law, which developed organically in the life of society, and programmatically directed attention to everyday practice and its historical changes. However, this widespread image of Savigny and the historical school of law only partially reflects the complexity of his theory. A twofold correction is necessary, concerning Savigny's theory on the one hand and making the rapid development of the historical school of law into a "conceptual jurisprudence" understandable on the other. In his 1815 essay "The Task of Our Time in the Field of Legislation and Jurisprudence", Savigny - in a departure from his own earlier legal positivism - does identify the main source of law in the popular spirit, but points out that the typical legal institutions of life are yet to emerge from this source, the clarification and breakdown of which into rules still requires jurisprudential analysis, and only then are the products of the popular spirit suitable to function as law. In their jurisprudence, judges already apply the law in this way in the form of rules, and it follows from Savigny's concept of law that judges should always interpret the applicable rules in the light of the larger legal institutions. The legal institutes of popular origin, the jurisprudential system of categories that breaks them down into rules and systematises them, and the interrelated activities of judicial jurisprudence form the life of the law in Savigny's conception of law. This concept of law meant that the historical school of law should have studied the norms and typical institutions of everyday life, but ultimately very few studies were conducted in this direction. Instead of the programmatic inscription of the "people's spirit", the school during Savigny's lifetime increasingly shifted its focus to the importance of analytical-systematic jurisprudence, and the "people's spirit" became a mere point of reference in later years. Georg Friedrich Puchta (1798-1946) provided the decisive impetus. Puchta took up Savigny's multi-layered conception of law, but clearly placed the jurisprudential and legal dogmatic system of categories of law at the centre, which he saw as the starting point for both the creation and the application of law. Within this framework , law is a conceptual pyramid that has been ground together according to a formal logic, and the further development of law means a further expansion of the existing and ground legal concepts and the creation of further conceptual derivations according to the rules of logic. The normative character of everyday social life and the dependence of jurisprudential categories on these norms disappear in this concept of law, as does the emphasis on the importance of jurisprudence in the life of law. The later development of German legal theory was in many ways able to build on the critique of conceptual jurisprudence created by Puchta, but this concept of law narrowed to legal dogmatics also led to very important positive developments in the second half of the 19th century. One of these positive developments was that with this narrowing, legal thinking succeeded in suppressing political, ideological and economic aspects that had previously been unconsciously taken into account and thus, albeit with extreme exaggeration, developed a system of legal categories and a set of legal principles that guaranteed the autonomy of the inner logic of law. When, in later years, attempts 165 were made to reintegrate aspects beyond law to a certain extent into the concept of law, this could be done on the basis of independent and systematic concepts of law. The second half of the 19th century saw a further positive development of this narrow concept. After German unification, the development of uniform German codes was on the agenda, which without the category system and the results of conceptual jurisprudence would have been nothing more than repetitions of the pre-Apoleonic codes, which by this time had become anachronistic in many respects even for the French. But the Swiss Civil Code or the Austrian, Italian and Hungarian legal developments also needed the results of German pandectic jurisprudence. Bernhard Windscheid (1817-1892) became the jurist who finally synthesised the results of punditry of the last century (called conceptual jurisprudence by its opponents) and introduced this synthesis into the BGB by being elected a member of the Codification Committee of the BGB and fundamentally determined the work of the committee. The first draft of the BGB was published in 1884 for discussion among German jurists, and the problems of this draft already showed the negative aspects of the Pandecists' concept of law, which was limited to legal doctrine. In fact, the draft remained so much on the abstract-categorical level that it appeared to practising members of the High Court and other practising lawyers as a jurisprudential "monstrosity" that was hopelessly far removed from the answers to concrete legal cases. Windscheid then withdrew from further work on the codification and died before the final adoption of the Civil Code in 1892, but the structure of the law has remained in force to this day despite further concretisation within the framework he provided. The legal concept of pan-Dutch jurisprudence went beyond the field of private law and had great influence on German constitutional law, especially on Karl Wilhelm Gerber (1823-1891) and Paul Laband (1838-1918). Gerber, as a student of Puchta, brought the legal-dogmatic-systematic approach to constitutional law, and later Laband, with greater influence, made his work known. As a conclusion to conceptual jurisprudence, the theory of objective interpretation should be mentioned, which in the 1880s exacerbated the internal tensions of the "four of legal interpretation" (grammatical, logical-systematic, historical and teleological) going back to Savigny and rejected certain methods of legal interpretation as subjective legal interpretation. The theory of objective interpretation was developed in parallel by Karl Binding (1841-1920), Joseph Kohler (1849-1919) and Adolf Wach (1843-1926) , but was mainly shaped by Kohler's formulation. For Savigny, there were four other complementary ways of interpreting legal texts: grammatical, logical-systematic, historical and teleological. The unfolding of the legal dogmatic system of categories in the course of the 19th century and, on the other hand, the growing share of legislation created by legislative acts in the total body of law soon revealed the tensions that existed here. There were no particular problems with the elementary methods of interpretation - grammar and logic of placing the legal text in the overall text. However, the method of historical interpretation of the law, which seeks to understand the historical will of the legislature, and the method of taxonomic interpretation, which places the text of the law in the system of dogmatic categories of the law as a whole, do not simply continue to interpret the law in the same direction, but represent opposing directions of interpretation for the judge. The historical interpretation (i.e. the "subjective" interpretation, which looks for the empirical will and intentions of the legislature) means that the judge can interpret the text of the law, the ambiguity of its wording, the possible ministerial explanatory memorandum attached to the law and other documents that emerged at the time the law was passed by parliament, The judge who prefers a systemic (objective) interpretation is indifferent to the intentions of the legislature and considers the law, once it has entered into force, as definitively detached from its political author. The judge, on the other hand, views the text of the law in the light of the legal dogmatic categories, distinctions and legal principles that express the unity of the law. Moreover, not only is he indifferent to the intention of the legislator, but also the text itself, according to a taxonomic interpretation, can remain intact only insofar as it is consistent with the guidelines that emerge from the more general legal principles and legal dogmatic categories in relation to the case in question. The freedom of the objective theory of interpretation vis-à-vis the legislature and the text of the law is, in the formulation of Joseph Kohler: " Interpretation must reinterpret the law in such a way that the legal principles contained in it come to light and the individual provisions of the law appear as the outflow of these legal principles.... However, legal principles do not always find their way into the law without restriction and without hindrance. It is then the task of interpretation to remove the inevitable confusions from the expression of the law and to develop the incomplete law according to the principles of law' (emphasis mine - P. B.; quoted in Larenz 1979: 36). This contrast between the taxonomic and the 166 historical path of legal interpretation is subsequently found in all legal systems in which, in addition to the political legislator, legal dogmatic-legal scholarly activity has played an important role in the legal life of the country concerned. The Pandectists dominated German legal life towards the end of the 19th century and had great influence on all countries on the European continent. But they were already criticised in the 1860s, and after the publication of the BGB, this approach was finally driven out of German law in the first years of this century. Rudolf von Jhering (1818 - 1892) was the first to speak out against the pandectic approach to law as early as 1861. Jhering had previously radicalised the starting points of Puchta's "juridical pyramid of concepts" and was himself an advocate of this approach. During this period, he tried to improve the logical rigour of conceptual jurisprudence along the lines of the natural sciences. However, this radicalisation soon made him realise that the conceptual world of law and its logical derivations are by no means synonymous with the practical validity of law. After this change of mind, Jhering did not interpret legal norms in the light of their underlying legal dogmatic categories, but replaced them with the "concrete social purpose underlying every legal norm". With this turn of phrase, Jhering directs attention from the logic of legal concepts to the socio-political forces behind the law: Individual laws have a social function, and law must be examined as such, not within a closed legal dogmatic framework, says Jhering, in contrast to the pan-dogmatists' concept of law. This criticism of Jhering later developed into "interest jurisprudence", whose main figure was Philipp Heck (1858-1943). This tendency went back to a certain extent to the historical interpretation of the law and said that judges should go back to the historical origins of the applicable law when deciding cases. But then it is not the subjective intentions of the legislature that are to be inquired into, but the actual interests that influenced the creation of the law, and once these are known, the judge must apply the norm in the light of that interest and in a manner that does it justice. "The focus here shifts from the legislator's personal decision and his psychologically perceived will to the motives behind it and the causal factors that lead him to it." (Larenz 1979: 55). Interest jurisprudence has contributed significantly to the problems and one-sidedness inherent in the pandectists' pursuit of conceptual rigour. Practitioners' problems with abstract and closed conceptualism have also been increasingly criticised since the last years of the last century. After the promulgation of the Civil Code in 1896, these criticisms were intensified by the incipient difficulties in applying the law. This gave rise to the "free school of law" of German jurisprudence, which advocated a "free juridification" of judges. The true reality of the law became increasingly apparent in the practice of the judiciary. On the one hand, this meant a criticism of the role of the legislature - and of legal positivism - but the main target of their attack was the legal dogmatic positivism of the pan-dogmatists, if only because this movement was still very influential in Germany at the time and the representatives of legal positivism were only known from France. Oskar Bülow, later Ernst Fuchs (1859 - 1929) and Hermann Kantorowitz (1877 1940) were the main representatives of the "Freirechtsbewegung". Eugen Ehrlich (1862 - 1922) also started from the free school of law and believed that law was to be found in judicial practice, but later shifted his investigations further and contrasted the laws of everyday practice, which were followed en masse, with "written paper law" as "living law". In this way, the dichotomy begun by Savigny - the "popular spirit" and the layer of legal doctrine systematising and dismantling it - was continued by Puchta, who also created a peculiarly one-sided concept of law in this other direction. Ehrlich's contribution to the development of legal sociological thought is great, but this should not obscure the fact that his "living law" has narrowed the complex structure of modern law just as much as the "conceptual jurisprudence" advanced by Puchta in the other direction. In German legal theory of recent decades, however, a number of synthesising legal concepts have already unravelled the multilayered structure of law. (The Legal Theory of Hans Kelsen) By the 1920s, the influence of legal research and the liberal school had finally displaced legal positivism, which had dominated German legal theory until the end of the 19th century. In the course of the tensions triggered by the world economic crisis that began in 1929 and later by the social crisis, the formerly more rigid German legal system was replaced by the role of the higher courts in the development of law, which also took into account aspects of evaluation beyond the law and weighed social and justice aspects on a case-by-case basis. In this situation, the abolition of the special rationality of law and its narrowed perspective of right and wrong became inevitable, and the concepts of judicial right and freedom, which once appeared as theoretical eccentricities, became a reality of practical law. At the same time, however, the chaos of legal life has become increasingly evident in the 167 wake of the case-oriented practice of the higher courts. Hans Kelsen's (1881 - 1973) work "Reine Rechtswissenschaft" (Pure Jurisprudence), published in 1934, should be understood against this intellectual background. Kelsen made the sharpest break with developments in legal theory that rejected 19th century positivism and the most radical attempt to counter sociological and natural law concepts of law. As later analysts have written, Kelsen's strict legal positivism was the "death knell of German jurisprudence" due to the prevailing relaxing influence of liberal jurists (Larenz 1979: 124). Kelsen's influence in the last decades cannot be overestimated, so great was it for legal theory in Europe and throughout the world. An important feature of Kelsen's work is that his starting points attempt to separate the characteristics of "sociality" in general from the biological and psychological components of the human being, and he consistently keeps this starting point in mind when analysing each legal proposition. His realisation that the specific world of sociality - and thus of law - is not constituted by physical events, by the "external acts" of man in his physical-biological reality, but by the meanings added to the "external acts" in each sphere of sociality. Let us consider a plasmatic quotation: "Law is a social phenomenon, but society is a completely different subject from nature, since it is a completely different relation of elements". If we do not want jurisprudence to be absorbed into natural science, we must separate law from nature as clearly as possible.... If we take away one of the facts called law..., we can distinguish two elements in it: one is a perceptible action, an external event, usually human behaviour, which takes place in space and time; the other is a meaning, a specific meaning inherent in or connected with that action or event." (Kelsen 1988: 1-2). Sociality thus stands above biological-psychological events, and social science should therefore study social phenomena in isolation and not in a naive anthropomorphising manner. Kelsen, however, goes further and tries to find the specificity of law in social being understood in this way. His truly original contribution lies in his answer to this question. For Kelsen breaks with the starting point of law as a rule of conduct, which seems obvious, which is why no one has ever questioned it, and assumes that the realm of law lies beyond the world of norms that prescribe rules of conduct for people that are desirable, commanded or forbidden. These norms fall within the realm of morality, and law is sharply separated from it. Law is a normative order built precisely on the counterfactual counterparts of the rules of conduct required or desired by other norms of conduct, and states that when they occur - as events external to law law will act and assign them a legal consequence. The world of law thus does not consist of forbidden or demanded norms of behaviour, but of a technique of linking their contradictory opposites and a legal consequence (If X... then Y.) The desired, demanded or forbidden norms belong to the moral sphere beyond law. Law is therefore not addressed to the citizens, but to the legislative authorities, so that they can set the legislative machinery in motion when the facts of life specified by the legislator occur and enforce the legal consequences that the law imposes on them. Law thus consists of legal consequences and their occasional "invocation". The model for Kelsen is criminal law and administrative law, but private law can also be understood in this way. The subjective right of the subject of a private right in a given situation means that, empowered by the law, he or she can participate in bringing about legal consequences (by bringing an action). The next feature of Kelsen's theory of law is that he associates law entirely with the state, separate from morality and the norms that prescribe people's behaviour in general. For him, the state is nothing other than a legal order of constraints, seen from the standpoint of the prescriber and his apparatus of drive and application. Law and state thus coincide in this narrowing (Kelsen 1988: 64-69). Kelsen's astonishing and original ideas can only be approached critically if one repeatedly deals with and keeps an eye on the various views of law (this is why in recent decades an extensive literature on legal theory has attempted to deal with some basic features of Kelsen's legal theory). At this point, it should only be pointed out that Kelsen's focus on norms disregards the legal-dogmatic-legal-scientific activity, which is indispensable for the "systematic-contradiction-free" functioning of "legal techniques" and is necessarily separate from the state. We find in him a peculiarly one-sided Montesquieuian legal positivism: for the judge, the dictates of the state in a given passage of law provide the precise framework for the decision. This is also Montesquieu's belief in Kelsen, which excludes the need to link thousands of legal locations in different legal dogmatic models: "The 'scientific commentaries' that are supposed to support the activity of law enforcement are entirely legal-political." (Kelsen 1988: 55). On the other hand, he acknowledges that there are many considerations for judges to take into account in the context of any legal locus, and while he denies that these 'gaps' need to be filled by the interrelation of underlying legal dogmatic 168 categories and principles - this is only the legal political ambition of legal scholars - he sees them as possible to fill on the basis of moral and justificatory considerations. Everything for the state, and what may remain in the gaps between the laws, for morality, but nothing for the jurisprudential-dogmatic level - this is how Kelsen's concept of law can be summarised. He adds that it is no longer a question of law in the niches of law. Compared to legal dogmatic positivism, this view of law denied the possibility of state command in law and placed the legal dogmatic activity of jurisprudence at the centre of law, holding that it was not direct moral aspects in the individual legal gaps that were responsible, but rather the interrelation of legal dogmatic principles. If, on the other hand, one compares Kelsen's theory with that of John Austin, the main difference with the latter is that Austin, after stating that the "law is a command of the state", introduces the underlying legal dogmatic categories into the law. In many ways, Kelsen's views contributed to the move away from the free school of law and the increased focus on the inner logic of law in later German legal theory. However, his extremely consistent views never became accepted as a concept of law in legal practice and never could. 1.2.2. The development of French legal theory The peculiarities of French legal development meant that no serious jurisprudential thinking could develop for a long time, and it was not until the beginning of the 17th century that more comprehensive jurisprudential works emerged that went beyond the mere description of practical legal cases. Jean Domat (1625-1695), followed by Robert Joseph Pothier (1699-1772), summarised private law in comprehensive tables, and the Code Civil drafted by Jean Portalis, largely based on their work, led to this code, which is still valid today. Apart from the early glossaries of Roman law from around 1200, theoretical legal thought in France only reached a higher level in the decades before the Revolution. However, the revolution and the events that followed set back the possibility of theoretical legal thinking for a long time. The closure and dissolution of the law faculties meant that a whole generation of lawyers was excluded from legal education, and it was not until the 1820s that legal life and legal education began to reorganise. At this time, French legal theory was developing out of polar opposites, as expressed in the historical school of German law and its leading representative Savigny, which was then experiencing its heyday. On French soil, since Jean Bodin, no "existing" liability had developed vis-à-vis the sovereign state legislator, which in French legal thought at the beginning of the last century had led to an extreme reversion of law to the will of the state. According to this view, the law is the text of the law, which leaves the judge full freedom of decision in deciding the cases brought before him. This conception of law was predominant throughout the 19th century, and its representatives have gone down in the history of legal theory as the "école de l'exégese" (exegetical school). In the first half of the last century, one of the most important representatives of this school was Alexander Duranton (1783 - 1866), who annotated the Code Napoleon in 22 volumes in an exegetical - literally interpretative - style. Maurice Troplong, as president of the French Court of Cassation, was also the first man in the court hierarchy for decades, and his "imaginative" interpretation was the culmination of exegetical interpretation taken to extremes, taking the individual passages of the legal text without any taxonomic or historical context as the basis for their judgements and treatises (Fikentscher 1975 vol. 1: 443). The way out of the exegetical school was pointed out to the French very early on by a German jurist, Charles Salomo Zachariae (1769 - 1843). As a representative of the historical school of law, he had already elaborated on the Code Civil, which had appeared only a few years earlier, in 1811 in a comprehensive two-volume monograph in which he attempted to fathom an underlying system of categories. Zachariae's work was later to have a great influence on the revival of French jurisprudence, and the Strasbourg law professors Aubry and Rau endeavoured in the second half of the century to introduce the German pan-Danish doctrine of law into the exegetical school. However, the unconditional respect for the state that prevailed in French jurisprudence also allowed them to turn from the text to the logic of the entire legal system only to a limited extent. They therefore put the search for the "historical will" of the legislator first, alongside the exegetical interpretation of the law, and only secondarily the more comprehensive taxonomical requirements. For legal practice, this jurisprudence did not have much to offer. Within a few decades, the illusory 169 nature of this legal concept became clear to judges and other practitioners who "imitated" the literal application of the law book, and after a few critical voices, the disintegration of the exegetical school of law began in legal circles towards the end of the last century. By this time, the more prominent representatives of the school - e.g. Charles Beudant, Bufnoir, Labbé - had already begun to produce "analytical notes" that placed the decisions of the supreme courts in a broader context and commented on them in this way, which meant an increasing turning away from exegetical positions. The real break with this method was first made by Raymond Saleilles (1855-1912), who, in addition to a freer treatment of the text of the law, recognised the role of customary law as it developed in judicial practice as a source of law equal to the law and taught in this sense as a law professor. After Saleilles, who published little, his student Francois Gény (1861-1959) followed the ideas of his "master" and systematically criticised the untenability of the exegetical school's conception of law in a major monograph of 1899. From Gény's conception of law, the "école scientifique" (scientific school) developed in 20th century France, in which the "free scientific research" of the jurist and the jurisprudence of the judge contribute just as much to the creation of law as the activity of the legislator. In France, however, the concept of pure judge's law never gained the importance that the "free school of law" had in Germany at the time. In the 1930s, there were some representatives of this concept in France, such as René Savatier, but their legal concept remained unknown in the French legal world. At the same time, in the 1930s, Jacques Maury created a particular version of the concept of judicial law by substituting judicial practice for the text and the historical intention of the legislature, but with the consensus of the entire judiciary as a background. In his view, the rules developed in judicial practice can only be valid legal norms if they are supported by and accepted by the majority of the entire legal profession. This is reminiscent, albeit in a somewhat more sociological form, of the positions of the pandetective conception of law of the last century (where the logical unity of the categories of law dealt with by the legal profession and traceability to them gave a rule validity, whereas here it was recognition by the legal profession). For the French, Leon Duguit's (1959-1928) concept of law is what Eugen Ehrlich's "living law" was at the turn of the century, at the end point of German legal theory, as opposed to the "paper law" created by the legislature. Duguit sociologised the concept of law to its full extent by placing the regularities of everyday practice as "objective law" before written, state-created law. The latter can only state the rules of "objective law", but if it deviates from them, state law is not valid. In legal theory this conception caused a stir, and Duguit's writings were a great success in America, just as Ehrlich's conception of law was the most successful there, but his views had no influence on actual French legal theory. It is not possible to stray so far from the exegetical school. 1.2.3. The Development of English Legal Theory At the beginning of the modern era, the countries of continental Europe had received Roman law to varying degrees, which had given rise to a more abstract and systematic system of legal-dogmatic categories beyond case-based law. By 1700, jurisprudential thought, which demanded ever more philosophical awareness and logical rigour, had become an indispensable part of legal life in every country. This is the basis for the flourishing diversity of modern continental legal theories since 1800 and their great influence on the life of practical law. In Britain, on the other hand, with the exception of Scotland, the reception of Roman law stagnated, which quickly brought English legal theory, which had developed promisingly until around 1400, to a halt. The result was not the organisation and rationalisation of case-based jurisprudence on the basis of a more abstract system of categories, but the formalisation of jurisprudence as binding precedent and thus the creation of predictable jurisprudence as required under more modern conditions. This formalisation has strengthened the obligation in case law to follow previous precedents by providing precise criteria and clues for adjustment between them. On the other hand, it has also increasingly displaced the use of more abstract legal principles and legal arguments from legal life to achieve this. At the turn of the 19th century, this development had reached its peak, and English law since that time has been characterised by the most rigorous adherence to precedent - the principle of stare decisis. In contrast to the countries of continental Europe - and especially to the German legal landscape the English legal system during this period was hostile to theoretical legal thinking in every respect. 170 John Austin (1790 - 1859), the only truly significant thinker in 19th century English legal theory, thus fought a losing battle to create a comprehensive legal theory. There are two important aspects of Austin's legal theory that had a major influence on later developments. One of these significant developments was his conception of law "as the orders of the sovereign state"; another was his emphasis on the legal categories of order-analytic law over law. These two features of Austin's legal theory gradually crystallised in his thought. In the first decades of the last century, influenced in particular by the social philosophy of Jeremy Bentham (1748-1832), he developed the thesis of state legislation being alien to English common law and of the reduction of all law to the will of the state. "The law is the sovereign command of the unrestricted ruler, which the subjects are bound to obey." (quoted in Hart 1961: 18) He attempted to think through this concept of law systematically and presented it to the intelligentsia in a series of university lectures in a manner unique to England at the time. For philosophers and other social thinkers interested in Bentham's ideas, Austin's ideas were of some interest, but they were less receptive to more specific legal problems. English jurisprudence, on the other hand, was completely indifferent to ideas that were alien to the spirit of English law. After an indifferent experiment, Austin moved to Germany and spent twenty years there studying the emerging historical school of law and the legal concepts of Puchta. The systematisations of Roman legal categories had an elementary influence on him, and so, in addition to the concept of "law as a state commandment", the need to develop analytical-systematic categories of law behind law became important to him. After his return to England, he looked at English legal life from this angle and, in his renewed academic lectures, challenged the jurisprudential thinking of Blackstone, whom he had previously regarded as his legal model, in order to develop a unified system of categories for English law. His own success in this regard was limited in his time, and it was only after his death that his lecture notes in English were used. For a long time after the death of the lonely Austin, there was no law school at the university in 19th century England - legal education was purely practical in the chanceries and large legal societies and organisations - and it was only towards the end of the century that regular university lectures on various legal topics began. In this intellectual climate, only a few introductory books on legal theory could be written, but they drew on Austin's work in many ways. The most notable of these was Salmond, who consciously rejected Austin's 'command theory' and sought to advance his analytical approach to law, i.e. his conception of law as a system of legal categories that stand above the rules. However, the output of English legal theory remained low until the middle of the century, and it was American legal theories that developed the features of Austin's analytical legal theory to a higher level. After a long dry spell, H. L. A. Hart (1907-1993) provided an upswing in English legal theory from the 1950s onwards. Hart's most important work is The Concept of Law, published in 1961. Hart goes back to Austin's theory but rejects his command theory, expands the sources of law and recognises law as part of law, including law created by precedent. His main theses can be summarised as follows. 1) There are two distinct areas of law, and most theories of law err by narrowing the law in one direction and either treating the other area as irrelevant or attempting to reinterpret it as the "other half" of the law. In criminal law and in the areas of law that have adopted its structure, the rules that impose duties and prohibitions on individuals make up one half of the law, whereas in private law and in the areas of law that have adopted its structure, the law is only "power-conferring rules". For example, the rules of inheritance law confer legal powers on the citizen as testator by granting him, under certain conditions (e.g. in the presence of two witnesses), the legal enforceability of certain acts through the legal apparatus. The two areas of law, then, are the 'rules establishing law' and the 'rules of coercion'. Hart's example of a faulty legal-theoretical narrowing is Kelsen's "Reine Rechtslehre", which only considered the second as law - also narrowed there to the application of the legal consequence - and the first (the rules that confer legal force) only in its image (Hart 1961: 35). (2) However, these two spheres of law constitute only the sphere of primary rules, and as indicated in the first part of this chapter, Hart considers the formation of secondary rules behind the primary rules as the distinctive feature of law. The formation of primary rules is initiated in every community, even at the most primitive stage of development. However, (part of) this normative material is only specified, "condensed" into law, through the gradual fulfilment of three conditions. In the development of law and its concretisation within the primary normative world of society, three "secondary rules" take shape: (1) the "rule of recognition" already outlined, (2) the "rule of amendment", which specifies the order in which the primary rules are to be amended, (3) and the "rule of jurisdiction", which specifies which persons and 171 organs apply the primary rules to a particular case. From this brief sketch it can perhaps be seen that Hart was strongly influenced by Kelsen's distinction between primary and secondary norms, only while Kelsen excluded rules of conduct towards citizens as moral etc. norms as secondary norms. norms as secondary norms, Hart - in explicit criticism of Kelsen also includes them. Hart's "secondary rules" are particularly important because they draw attention to mechanisms that operate unnoticed and which, precisely because they are self-evident, are normally left out of the analysis. In particular, the 'recognition rule' provides an important point of reference for comparing different legal systems (Dworkin, in his later critique of Hart, referred to this secondary rule in Hart's theory of law as the 'master rule of law': Dworkin 1987: 9). The recognition of authoritative texts as law or the rule of the creation of law by enactment, but also the recognition of general declarations by particular persons as law or the binding of previous court decisions as law, as exemplified by the rule of Anglo-Saxon law of stare decisis. 3) The basis of every legal system is thus not coercion, as in Austin's or Kelsen's theory, but the secondary rule that decides from which source the norm recognised as law can originate. Hart therefore distinguishes between the highest rule in the hierarchy of legal sources, the constitution, and the "ultimate rule", the rule of recognition, which underlies the entire legal system. Even if the latter is not enshrined in the constitution or in any formalised legislation, it is the basis of the entire legal system - simply because it is the basis on which the entire legal system actually operates (the validity of this can be tested, for example, by toying with the idea of a draft law in Hungary that would in future prescribe the development of the applicable body of law in a source law based on the English precedent model...). 4) Finally, an important feature of Hart's concept of law is the strict separation of the spheres of law and morality. In the case of law, one internal area of the moral sphere is particularly important: the norms of justice, which prescribe "equal standards in equal cases" when judging others. Justice requires an equal distribution of burdens and goods, which is also reflected in one's legal system. Hart's solution is the same as Kelsen's: moral norms and therein norms of justice are separate from the law, but the "open texture of the law", which provides a general framework for judicial decisions in legal gaps, can be enriched by moral norms beyond the law in interpretation (Hart 1961: 122-125). This concept by Hart had a great impact not only in England and the English-speaking world, but also in the countries of continental Europe in the 1960s and 1970s. His English critics particularly criticised the sharp separation of the realms of law and morality in Hart's conception of law, and Lon Fuller, for example, tried to correct this. But Hart found his real opponent in Ronald Dworkin. Dworkin's attack on Hart's conception of law was directed against the reduction of law to rules as early as the late 1960s. Dworkin did not start from English legal doctrine, which is characterised by rigid precedents and statutory binding, but took as his model American jurisprudence, which is also based on broader legal principles and abstract constitutional fundamental rights. Starting from this basis, he then shows that, in addition to rules, there are also legal principles and fundamental rights as an "upper" level of law that guide the judge even without rules, and that if rules would lead to a judgement that would be in conflict with legal principles and fundamental rights, the latter would have to be taken into account (Dworkin 1977a: 76). The title of his programmatic paper "Taking Rights Seriously" captures the essence of Dworkin's concept of rights. On reflection, however, and given the focus of his more detailed discussion, it might be better to formulate this concept of rights in such a way that only fundamental rights should be taken seriously and, in the event of a conflict, both legal norms and any precedents should take a back seat. The focus of the law would then shift to constitutional jurisprudence and the abstract level of fundamental rights and principles. In England, of course, this aspiration could only be a utopia for the life of practical law, but it caused great intellectual excitement in academic legal circles and in many ways led to Hart's conception of law taking a back seat. In America, however, Dworkin has been a resounding success by any standards and has given further impetus to constitutional jurisprudence in recent decades. In the more Western countries of continental Europe, this concept of "fundamental rights" has also had a major impact, and in Germany in particular it has led to a reordering of the legal-theoretical front. The confrontation between the "constitutionalists", who carried on Dworkin's ideas, and the "legalists", who stuck more to the legal text structures prescribed by traditional legal doctrine, is the most important front line of legal theory here (cf. Dreier 1988: 145). 1.2.4. Overview of the development of American legal theory 172 From the 19th century onwards, the legal life of the American colonies, which seceded from England, increasingly diverged from the legal order of the English mother country. The written Constitution and the fundamental constitutional rights incorporated into it through constitutional amendments reorganised the structure of legal life in the United States from the very beginning. The organisation of the American legal profession and judiciary also contrasted with the English model. Whereas in England national associations of "barristers" controlled every detail of English common law, including its interpretation, and a small body of judges recruited from a closed circle of barristers and meeting at a summit in the House of Lords had full control over the law, in the United States the legal profession consisted of a disparate and competing layer of lawyers, and the decentralised organisation of states and municipalities produced a multiplicity of courts. The fragmentation of the law meant that law schools and law faculties at nationally ranked universities increasingly became the expression of the unity of the law, which improved the position of university lawyers in contrast to the situation in England. Against this background, it is understandable that theoretical legal thought in America developed in contrast to the meagre English legal theory of the 19th century. John Austin's "dual" conception of law also became influential for analytical legal theory here, as it was continued in England by Salmond. However, with one exception, no particularly significant legal theory was developed within the analytical school of law in the 19th century. The only influential legal theoretical concept within the analytic concept was developed here by Wesley Newcomb Hohfeld (1879-1918). Hohfeld analysed the basic concepts of law and attempted to create a unified system of categories for legal theory. His small volume on legal theory, published after his early death, had a great influence on American legal theory in the first half of this century. This analytical legal theory has been displaced by two important influences since the end of the last century. One important development was the transformation of higher legal education. The name Christopher Columbus Langdell (1826-1906) is known less for his jurisprudential work than for his innovative work as Dean of the Harvard University Law School. In the early 1870s, Langdell broke with the standard American law schools' method of teaching abstract legal categories and developed a method of teaching law through strictly legal cases. The idea was that students would learn the main principles and categories of a narrow area of law not in a summary and abstract way, but by working through a selection of cases that illustrated these categories. The entire understanding of law was thus transferred from an abstract system of categories to the level of concrete cases. In a sense, this was a return to the spirit of the original English chancery education, but here, firstly, the selection of cases was made more consciously in the light of the whole legal system - rather than being subordinated to the lawyer's haphazard practice - and secondly, despite the turn to practice, the training of lawyers remained in the more intellectualised atmosphere of the university, as opposed to the 'lawyerly inconsistency' that socialised the more particularistic habits of the chanceries. Langdell's method was adopted by most prestigious American law schools within a few decades and changed the entire socialisation of the legal profession towards a case-based approach. Another important influence on the emergence of modern American legal theory was the work of Oliver Wendell Holmes (1841-1932) at the end of the last century. He most effectively challenged the analytical view of law. In order to understand the essence of Holmes' concept of law, it is necessary to examine his positions in three directions. From the 1880s onwards, his criticism was directed primarily against the abstract-systematic character of analytical legal theory, in contrast to which he understood law as regularities of legal practice. His famous dictum later became the watchword of American advocates of judicial law. "To predict the way courts will decide particular cases, and nothing beyond that, is what I mean by law". (Holmes 1897; quoted in Fikentscher 1975 vol. II: 181) This understanding of law thus denies the categorical-legal-dogmatic level of law and places it at the centre of legal casuistry. But Holmes is also a radical democrat, and from this he concludes that the ultimate sovereign creation of law through parliamentary legislation is the only way to create it. Among the legal strata, Holmes thus relegates the jurisprudential-dogmatic stratum to the background, but shifts to the judiciary and even accepts political legislation. This also gives rise to his position in the third direction: his relationship to the level of fundamental constitutional rights. After many years of academic and legal practice, Holmes became first a state court 173 judge and then, from 1902 to 1932, the Supreme Court of the United States. During these 30 years as Chief Justice, Holmes was able to exert a lasting direct influence on American legal life and legal theory. During this period, his rejection of activist constitutionalism, which relied heavily on fundamental rights, became determinative of his thinking and was expressed in hundreds of judgments. His position on a national prohibition law - banning the sale of alcohol - is clearly stated: "I am far from saying that I think this law is a well thought-out regulation. It is not my job to do so. However, if the people of the State of New York have expressed through their elected representatives that they desire this law, I see nothing in the Constitution of the United States that would prevent that desire. (Of course, abstract basic constitutional rights can in any case be used to derive one (and more!) "constitutional solutions" on the basis of which one can repeal the laws of the legislature as unconstitutional, but Holmes' radical democratic conception did not allow for such an activist conception of basic rights. Holmes' great influence - apart from his 30 years as Chief Justice - lay in the ambiguity of his concept of law and its multidirectional character. In many ways, the development of American legal theory in the first half of the twentieth century was a unilateral continuation of Holmes' concept of law. In the first decades after the turn of the century, Roscoe Pound (1870-1964) moved Holmes' positions closer to the judiciary and tied the focus of legal development more closely to judicial practice than Holmes' respect for legislation would have suggested. Pound's central thesis was the dichotomy of "law in book and law in action", and in this sense he left the legislature little room for legislative activity (cf. Kulcsár 1976: 48-49). However, Pound also turned against the positions of the later radicalising American judicial law movement - the Legal Realists. Whereas he had previously seen the analytical conception of law as his main opponent, from the 1930s onwards he attacked in his writings the concepts of legal realism, which advocated the exclusive development of judicial law. This more balanced view of law is found in the works of Benjamin N. Cardozo (1870 - 1938), who, however, in contrast to Holmes' and Pound's view of law, also included the underlying categorical system of law. With this starting point, he succeeded - at least until the 1920s - in avoiding the great error of the "sociological theories" that had their heyday in the first decades of the century. This error consisted, as we have indicated in the first parts of this chapter, in the fact that the legal currents, which were averse to abstract legal concepts and the "paper law" of legislation, increasingly saw the "real" law in the regularities of everyday life and thus completely neglected the functioning of law and its significance for modern societies. (In Europe, this culminated in Ehrlich's "living law" and Duguit's "objective law", but Roscoe Pound also approached this direction by distinguishing between "book law" and "life law"). Cardozo, however, was able to perceive the more subtle connections between rules, legal principles and legal dogmatic categories above the regularities of everyday life. In this way, he brought back to a certain extent the force of the analytical conception of law, whose last great representative in America, besides Langdell, was Hohfeld, and from whom Holmes had sharply distanced himself. Cardozo's influence was manifold. As we have already indicated, he later provided the conceptual framework for the German Josef Esser, who adopted it not only in America but also in Germany in the 1950s, giving German legal theory a new direction in many respects. Another fork led later from Cardozo through Ronald Dworkin. We have seen in the outlines of English legal theory Dworkin's concept of a right based on fundamental rights. In this, Dworkin starts precisely from Cardozo, and in order to show the layer of legal principles above rules, he relies on the famous decision of the Chief Justice of Cardozo, though it should be noted that in Cardozo the multi-layered structure of law is of equal importance, whereas in Dworkin the layer of fundamental rights is above all others. Whereas Cardozo, on the other hand, speaks of a layer of legal principles above the rules, with a view to the most diverse local legal doctrinal principles, for Dworkin these principles are primarily the more direct moral constitutional fundamental rights. This in turn leads to the fact that Dworkin's conception of law, in contrast to Cardozo's, is a strongly re-moralised conception of law (this is precisely what makes Dworkin's appeal to the wider intelligentsia!). In his later years, Cardozo could not resist the theses of "legal realism" that briefly dominated his work between 1930 and 1940, and moved away from a multi-layered theory of law towards a focus on the practice of law itself. Legal realism was the culmination of Holmes' movement away from analytical legal categories towards legal practice, a movement that even the democratic-minded Holmes recoiled from. Karl Nickerson Llewellyn (1893-1967) and especially Jerome Frank (1889-1957), the main proponents of legal realism, placed legal practice at the centre of law. Not only did they proclaim the minor importance of written law, but they also described the binding nature of precedents in American jurisprudence as fiction. 174 Judges, they argued, are exposed to a multitude of influences, of which the relevant precedents or statutory provisions play a completely subordinate role. In the years of the Great Depression and the years that followed, a plethora of exceptional situations shook the pillars of jurisprudence in the United States, and the application of earlier precedents and statutory provisions in exceptional situations often led to anachronistic results. Legal realism thus suddenly took off here and became the dominant legal current between 1930 and 1940. However, as the crisis subsided and the anarchist phenomena of the liberalised judiciary took hold, the popularity of this concept waned (in France, the departure from the phenomenon of the "Magnaud, the good judge" who proclaimed the free administration of justice ended with a similar bang at the turn of the century). If one summarises the development of English and American legal theory as a whole, the starting point was Austin's dual conception of law - the fixation of the thesis "law equals the state command", on the other hand, the emphasis on analytical legal categories - and then the analytical approach to law was continued in England and America; the main figure here is Salmond in England and Hohfeld in America. Later, in America, with Holmes' conception of law, there is a turn towards the freedom of justice; Cardozo develops this into a multi-layered conception of law, but later himself joins the legal realism led by Roscoe Pound and advocated by Llewellyn and Jerome Frank. After its decline, Cardozo's early multilayered understanding of law became the dominant American legal theory from the 1940s onwards. In England, from the 1950s onwards, Hart's conception of law, based on Austin's ideas, focused on the rules layer of law, and Dworkin's critique of it drew on Cardozo's American conception of the dualism of "legal principles and laws" and replaced it with a conception of law based on a basic constitutional rights layer. In England, this could only have intellectual impact because of the structure of English law, which excluded academic debate, but in America - and since the 1980s also in Germany - it brought the fundamental rights layer further to the fore. Dworkin's morally charged conception of fundamental rights thus competes today with Cardozo's multi-layered conception of rights, which dominated American legal thought. In addition, Cardozo's conception of law, which was transferred to Germany under Josef Esser, was synthesised with certain positions of the former "Begriffsjuridsprudenz" (by Canaris and Larenz) and is today the dominant German position, and the German adoption of Dworkin's concept of fundamental rights (by Alexy and Dreier) also created the front lines of "constitutionalist" and "legalist" legal views here, it is evident that a high degree of similarity has developed in the course of interaction and mutual transmission in large parts of the Western world. 2. The Interest Jurisprudence In the Hungarian legal-theoretical-legal-philosophical literature, the position of legal interest research built up by Philipp Heck in the early 1900s following Rudolf von Jhering has remained practically unanalysed, and the few analyses of it that have been preserved are rather "by-products" of the works of legal theorists. Thus, one can mention the study of Endre Nizsalovszky "Conceptual and Interest Research Jurisprudence, the Free School of Law and Pure Jurisprudence", who points out that the methodology of interest research jurisprudence appeared more in the studies of Ferenc Nagy and Ödön Kuncz, who analysed mainly the field of tort law at the beginning of the century (Nizsalovszky 1984:21). This ignorance in the Hungarian legal theory literature cannot be considered accidental. The prevailing tone of these works was always characterised by general philosophical problems beyond law, and the most comprehensive interrelations of law were not understood from the internal mechanisms of law, but approached as an application of general philosophical and/or social theoretical theses. Thus Imre Csatskó, Antal Virozsil and Tivadar Pauler, who marked the beginning of Hungarian legal theory in the 19th century, were the first to develop a philosophical and legal-philosophical approach to the theory of law. They could not start from the inner conceptual system of law and the problems it contains, if only because of neo-Kantianism's striving for a "pure" methodology, and as a consequence of the focus on a priori purity, questions of empirical jurisprudence were marginalised in their analyses (see Pokol: 1998a; 1998b). Interest-oriented jurisprudence, on the other hand, proceeds precisely from the operating legal mechanisms, from questions of the interpretative work of the judiciary, from the underlying determinants of the meaning of laws, and thus these were alien to the overall social view of pure legal philosophy or historical materialism. 175 In this short section, we will try to identify the elements of the legal research concept and compare them with the paradigms of legal theory mentioned several times, text positivism, conceptual jurisprudence and the ideas of the free legal scholars who advocate the freedom of judicial interpretation. 2.1. The Emergence of Interest Jurisprudence In the second half of the 19th century, the undisputed dominance of the legal concept of pandectic jurisprudence shaped the prevailing conception of law in German jurisprudence and legal practice. By this time, the historical school of law's emphasis on the elements of customary law had long since been abandoned, and the dominant legal concepts were undoubtedly those of the academics who had developed the legal conceptual systems behind the legal norms and those of other jurists who had adopted their analytical style. In this intellectual climate, the thesis that legal norms are only consequences and that they result from the legal conceptual system underlying the body of law prevailed. In applying the law, the judge must therefore first and foremost take into account the underlying legal concepts and derive his judgment, especially when the interpretation of the applicable provision is unclear, from the legal concepts underlying the rules. For a time, Rudolf von Jhering (1818-1892) was the most consistent advocate of this conceptual jurisprudence, but after taking the shift in the focus of legal life from legislation to legal concepts to extremes, he himself recognised the impasse of this shift and set out to criticise it (Jhering 1872:12, and for an analysis of this turn Larenz 1970:135-141). Previously, Jhering had called the method by which the jurist works out the concepts underlying positive legal norms and reduces them to a more general concept 'higher jurisprudence', so that under this more general concept can be brought areas that were not covered by the original legal norms, and the judge can then base his judgments on them. The development of law thus follows the line of conceptual development in jurisprudence, and the judge studies and applies jurisprudential conceptual systems alongside/instead of rules (see von Rümelin 1974:72-87 for a characterisation of this). In the last years of his life, Jhering broke with this view and attempted, on the one hand, to tie the development of law more closely to state legislation and, on the other hand, to refer judges in their jurisprudence not to legal concepts but to the search for the purpose of the respective law: "The whole legal order and the author of every law has a purpose; there is no legal act that does not owe its existence to a purpose, that is, to a practical motive.(...) The highest task of jurisprudence is to search for the purposes of legal norms, and this applies to legal dogmatics as well as to legal history" (quoted in Jhering, Larenz 1970:36). These arguments by Jhering formed the starting point for two schools of German jurisprudence. In the years immediately following his death in 1892, the free jurists (Oskar Bülow, Ernst Fuchs, Hermann Kantorowitz and others), who called for judicial freedom of decision and its detachment from the text of the law and jurisprudential constructions, followed in his footsteps and left deep traces not only in German and European legal thought, but also in legal realism and in the sociological schools of American legal theory, which were largely inspired by him. Since the 1910s, however, another current in legal theory began to emerge, which did not detach the judge from the law to the extent demanded by the Freethinkers, nor did it discard legal concepts, but rather sought to link them more closely to the conflicts of interest in the life situation regulated by law. The founder of this "jurisprudence of interests" was first and foremost Philipp Heck (1858-1943), but alongside him Ernst Stampe and above all Rudorf Müller-Erzbach substantially developed this concept of law (the latter, as we shall see, later shifted the position of the sociology of law towards the sociology of law under the name of "causal legal thinking"). Heck's attitude to Jhering is well reflected in Karl Larenz's assessment: "Jhering did not succeed in making his new conception of legal purpose clear to the practitioner of the law by means of practical instructions or in shaping it into a well thought-out legal methodology. The man who did so was Philipp Heck. His groundbreaking work was not published until two decades after Jhering's death" (Larenz 1970:135). Before turning to the analysis of the concept of law in jurisprudential interest research, it is worth pointing out the socio-historical change that has provided the background and impetus for the break with conceptual jurisprudence in Germany. In short, this change can be understood as the extension of the 176 monolithic will of the sovereign to the political articulation of interests, which supported the central will of the state via the creation of law to competing political interest groups and parties. This shook the ground beneath the fiction that the rules of law are the higher products of neutral scientific rationality that can be generated by lawyers free from politics and interest struggles through the rules of logic. Positivised law, i.e. legislation transferred from the formation of customary law to the disposal of the central will of the state, has tended to move with this socio-historical change from the monolithic office of the monarch/chancellor to the institutions of political democracy (parliament, parties, etc.), even if this was only half-realised in Germany in the early 1900s and only completed in the Weimar Republic. Interest-led jurisprudence took this visible political struggle of interests as its basis and made it the main determinant of legislation, basing legislation on interests (rather than mere logic). 2.2. The concept of of „interest jurist” Compared to the competing legal concepts of the time - text positivism, which emphasised the binding nature of the law, the freethought school, which proclaimed the independence of the judge from the law, and conceptual law, which focused on the conceptual systematics of law - the legal concept of legal research can be characterised by the following two distinctions: 1. 1. it does not reject legal concepts completely, as the freethinkers do, but grants them only a subordinate role in reaching a judgement and attempts to include the interests and conflicts of interest of the regulatory area of each norm in the legal concepts instead of merely formulating them logically. The starting point of the legal conception of interest jurisprudence is that the legislator does not derive concrete legal norms from legal concepts, but starts from the interests of the area to be regulated and their conflicts and advocates for one of the interests, i.e. favours one and pushes the other into the background. The judge can therefore best apply the law by first looking at the interests and conflicts of interests in the regulated area and then seeing which of these interests the legislature has chosen. In the present case, it must also start from this statutory balancing of interests and decide between the parties accordingly. Let us consider this in Heck's formulation: "... every case decision can be understood as the identification of conflicts of interest and the weighing of these interests according to value judgements and value judgements (...) The transfer of the value judgement of the law to the value judgement of the case decision consists in the comparison of the conflict of interest before the decision with the value judgement of the law. Therefore, the judge must not grasp the concrete interests of the whole reality, but must emphasise the features that are already appreciated in the legal order" (Heck 1968:35). For this method to work well, Heck and other advocacy lawyers argue that changes need to be made in three areas: 1. in legal concepts, legal scholars need to develop concepts that better articulate (classify, categorise, etc.) conflicts of interest; 2. similarly, this requires a change in legal education and a shift from "foreign" abstract legal education to the knowledge and ability to understand and manage real conflicts of interest. Finally, judicial work requires constant attention to economic and other struggles and conflicts of interest, in addition to the work of navigating legislation and legal concepts. To sum up, the method of interest research is fragmentarily inherent in law, without being consciously perceived by legal theory, claim interest jurists, but only by making it conscious and perfecting it in certain areas of legal life does it become complete. The interest jurist, like the concept jurist but unlike the text positivist, recognises that there are legal gaps and leaves it to the judge to fill them, not by generalising concepts, but by transposing the result of the legislative weighing of interests into the gap: "I find the argumentation quite correct", writes Heck, "that there are legal gaps and that they must be filled not by construction but by a weighing of interests" (Heck 1974:35). In the same way, the interest jurist is prepared to correct the legal text (like the concept jurist), but he does not do so in the light of the legal concepts behind the legal text. Such a correction occurs when the interest jurist finds that the interest situation has changed since the enactment of the law in such a way that the legislator's interest balancing decision at that time can only be satisfied if he now decides against the text. He must then also make his judgement against the text provision with reference to this earlier interest weighing decision (cf. Hubmann 1956:54). According to this legal view, the essence of the law lies in the legislative balancing of interests decisions behind the text, and the judge must primarily abide by them. 177 Let us consider an example of the different approach of a lawyer and a conceptual lawyer in assessing a case. Consider the case of a law student who borrows a valuable law book from a fellow student and sells it to an antiquarian book dealer in an unconvincing way to solve his financial problems. The classmate discovers that the antiquarian owns his own book and sues him for refusing to return it. If the judge follows the conceptual legal training, he can assume that "no one can transfer more property than he owns" and thus dismiss the fact that the antiquarian acquired ownership of the book from the non-owning law student as conceptual nonsense. On this basis, the book reverts to the fellow student as the rightful owner. A lawyer with an interest, on the other hand, would not bother with the simple logical deductions from the legal concepts and consider which of the two conflicting interests, the interest of the owner and the interest of the antiquarian who bought the book in good faith, should prevail. Ultimately, both interests are legally defensible, but an interest must be found in the action that could tip the balance in favour of one or the other. This consideration may be that the classmate himself, by trusting in the law student's acquaintance by borrowing his book, contributed to the antiquarian's bona fide acquisition of the book. The latter might have inferred from his possession of the book that he was buying it from the owner. (Another point for the above discussion: on the other hand, if the original owner of a stolen book were to appear before the antiquary, he would already have the right of ownership of the book in the above case according to the previous consideration). The example is taken from Karl Engisch's 1956 book on the comparison of legal methods (Engisch 1956:187-188), but perhaps it illustrates the different ways of thinking of the conceptual jurist and the interest jurist. One fork is the "causal legal thinking" that Rudolf Müller-Erzbach attempted to develop as a further development of the legal theory of interest research (cf. Müller-Erzbach 1950), for he came to the conclusion that the concept of law based only on interests and interest struggles among the many factors that shape law is too narrow. Based on this conception of law, jurisprudence must analyse the social determinants that influence the making and application of law - a view that necessarily dissolves the sociology of law into a sociology of law. For this reason, "causal legal thinking" could not develop into a systematic legal methodology. 2.3. The critique of the Interest Jurisprudence Already at the beginning of the 20th century, critics of interest jurists accused them of seeing only economic conflicts of interest behind legal conflicts, which narrowed and distorted the functioning of the law. It is undeniable that in every life situation there are to some extent elements that divide the confrontation of the parties according to economic interests, but to base a legal treatment of the whole situation on this alone is to distort it in a certain direction. There is no denying that there may be societies or certain social groups in any society where the aspect of economic interest is more important than other aspects in the assessment of the whole life situation, but again it would be too far-fetched to base the law on this aspect alone. Heck and the interest advocates argued against this criticism by pointing out that they understand by interests not only economic interests, but also spiritual, religious and other interests. An example of this expanded concept of interest is the thesis of Müller-Erzbach (from the time before the turn to "causal legal thinking"), who writes in his analysis of the origins of copyright that this area of law developed after the technical invention of printing, because until then the laborious copying of books by hand simply did not create the interest that copyright law served, "the interest that copyright law could serve was not there" (quoted in Nizsalovszky 1984):15). It is thus possible to broaden the concept of interest and then to capture conflicts as conflicts of interest in a number of areas, but with this broadening, valuation aspects increasingly take the place of the economic interests originally targeted. This shift in emphasis has led to the emergence of what is often referred to as interest jurisprudence or valuation jurisprudence (see Larenz 1960:46). In this evolution, the earlier sharp opposition to conceptual jurisprudence has been softened, and so, on the one hand, certain elements of conceptual jurisprudence have been absorbed by value interest jurisprudence (which, however, now has a combination of legal values and principles behind the legal text rather than the logical rigidity of conceptual jurisprudence), and, on the other hand, a more realistic approach to law has been created, bringing the whole legal process closer to real life aspects. In this form, which can be understood as the integration of conceptual jurisprudence and interest jurisprudence, interest jurisprudence has 178 become the dominant legal concept in the German legal system in recent decades and thus also in the rest of continental Europe. Larenz wrote as early as 1960: "Interest jurisprudence has indeed revolutionised the application of law in German jurisprudence by replacing formal legal subordination to rigid legal concepts with reflexive assessment of complex facts and consideration of the interests at stake as the standard of evaluation" (Larenz 1969:58). In its original form, however, the jurist's jurisprudence had to be criticised in two respects. He clearly sought to reject notions of the systematic nature of law as "unrealistic legalism" and to encourage the judge to weigh the interests of the case. The call for a case-by-case approach may be justified in the face of a law that has become a completely abstract pyramid of concepts - which conceptual law had developed into by the end of the 19th century. Moreover, the other critique of the original interest-lawyer thinking can be formulated in the other direction: While the struggles of the political-ideological sphere generalise the opposing conflicts and fix them in social consciousness on the level of general legalspiritual disputes, the interest lawyer wants to detach these conflicts from a more intellectual processing again and reduce them to the level of naked material conflicts of interest. This not only obscures essential value conflicts, but also unnecessarily exacerbates social tensions and tends to undermine the integrating power that the broader ideological-spiritual realms achieve. In some areas of law, however, this narrow definition of interest law may not be problematic. This certainly includes the property law part of private law, as Endre Nizsalovszky noted in the 1930s: "Commercial law was codified by merchants, so that in the codification itself the consideration of interest was more clearly expressed than in other codifications, and so commercial law scholars soon found their way to interest jurisprudence" (Nizsalovszky 1984:39). In other areas of law, however, the positive aspects of interest jurisprudence only appear in the form of jurisprudence transformed into evaluative jurisprudence. 3 The Development of Hungarian Legal Theory 3.1. Hungarian legal theory of the 19th century. For a long time since Imre Szabó's 1955 book The Civic Philosophy of State and Law in Hungary, there has not been even a brief overview of the development of Hungarian legal theory in the nineteenth century, although it is generally acknowledged that this work - despite its thoroughness - can be regarded as an ideological battle cry rather than the product of actual scholarly analysis. In the study of the history of Hungarian legal theory before 1945, the works of Gyula Moór and Barna Horváth have received attention (cf. Paczolay 1989; Zsidai 1989; Szabadfalvi 1994), while the works of the 19th century are the most important. Among the 19th-century Hungarian legal philosophers, Ágost Pulszky and Gyula Pikler deserve special mention (Kupa 1996; Szabadfalvi 1996; Loss 1996). The following is a brief overview of the personalities of contemporary Hungarian legal philosophy and the development of Hungarian legal theory. 3.1.1. The Hungarian "jurists of reason": Csatskó, Virozsil, Pauler In Hungarian legal education, the subject of legal theory was introduced as early as the 1770s - the decree issued by Maria Theresa for the law faculty of Nagyszombat University made it compulsory under the name "Natural Law" - but the materials in Hungarian did not appear until the 1830s. Law was still taught exclusively in Latin, and when part of the book on natural law by the Viennese professor Karl Martini was translated into Hungarian in 1792, it was published again in Latin due to the lack of interest, as lawyers and students preferred to read it in that language (Pauler 1878:231-244). Another obstacle to the development of legal theory in Hungary was the fact that with the introduction of natural law, the Viennese court made Karl Martini's book based on Christian Wolf's philosophy compulsory, which 179 remained so until 1848. This compulsory textbook also served to prevent the spread of Kantian philosophy, which had become widespread in German cultural life at the beginning of the last century and whose works on reason were seen as a critique of the existing law. Despite these obstacles, Kantian Vernunftrecht gained a foothold in national legal intellectual life in the 1830s, and two works based on it were published in 1839. Imre Csatskó's "Introduction to Natural Law and Pure General Natural Law" was published in Hungarian, Anton Virozsil's "Elements of Universal Natural or Reason Law" in Latin. The latter was not translated into Hungarian and published until 1861. Hungarian legal theory thus begins with Imre Csatskó (1804-1874), who, as a teacher at the Győr Academy of Law in the 1830s and after the publication of the "Tudománytár" and the "Themis", dealt with the doctrine of natural law. (Csatskó later became a judge, and after the Compromise he played an important role in the codification of the Code of Criminal Procedure as a highly respected jurist). Despite the difficulty of the contemporary Hungarian language, the separation between Kantian internal law-making (morality) and external law-making (law), as well as the subordination of "acquired law" (the law created by the state) to the principles of law derived from human reason, emerges clearly in Csatskó's theory: "Acquired law (jus positivum) is formed from the laws acquired, i.e. directly dependent on the arbitrary will of intelligent beings. i.e. directly dependent on the arbitrary will of intelligent beings, and is either divine or human, according to the difference in the laws of which it is composed, as, for example. they are directly dependent on the will of God or of a human being. By vested right and vested laws is usually understood the right that lies in the civil sphere and is agreed upon by the citizens or established by the power of the sovereign" (Csatskó 1839:107). However, state law ("acquired law") is subordinate to the laws of reason that can be derived from reason and is considered illegitimate in the event of conflict: "All the provisions of acquired law must be such that they can be recognised by reason; the content of acquired law is therefore, if not directly, at least indirectly, contained in natural law" (Csatskó 1839:114). According to this conception, however, the law of reason not only supports (controls) state legislation, but also regulates the application of the "acquired right" and its replacement. After Csatskó has presented this conception of law, he explains, starting from the "right of personality", which for him is the starting point of all fundamental rights that can be derived from reason, the most diverse fundamental rights that determine both private law and public law (in its beginnings "public law") and the law of "punishment" (criminal law) one after the other. Only the "acquired" right that corresponds to these is considered permissible by the law of reason - he explains. (It should only be noted in passing that the reasoning behind the claim of the fundamental rights of reason to define the entire legal order bears an uncanny resemblance to some of the rulings of the National Constitutional Court and, in particular, to László Sólyom's concept of the "invisible constitution". Reading these contemporary works, we can even see the Constitutional Court's conception of law, described as activist, as a counter-revolution of the concept of law, reversing the conception of law of constitutional democracy established over the last hundred years). Anton Virozsil (1792-1868) developed essentially the same Kantian common sense as Csatskó, but because he played a central role in the training of lawyers in Pest for several decades - he had previously taught natural law and public law at the Academy of Law in Bratislava - he had a greater influence on the thinking of Hungarian jurists. Because he did not speak Hungarian - he was born in Selmecbánya in the Highlands, but not in a Hungarian environment - he was temporarily relegated as a lecturer at the University of Pest before 1848, when Hungarian became temporarily compulsory for all legal subjects, but from the autumn of 1849 he taught in German again until the early 1860s (Pauler 1878:202-230). In Virozsil, the difference between law derived from reason and "active" law (state law) is only made clear in a weakened form, in that the latter is described as illegitimate and presented as an aid to the interpretation of law by judges and lawyers.to judges, jurists and lawyers, so that they can explain and apply (active) law more easily, and so that they can use it as an aid in cases where there is no law, but the law must be pronounced according to the general principles of natural justice and equity" (Virozsil 1861:35). The next - and last - Hungarian jurist of reason, Tivadar Pauler (1815-1880), a student of Virozsil, differed from his master in two fundamental respects. Although his main work is entitled "Voran" (Before the Law of Reason), in many respects he incorporates the starting points of the historical school of law into his legal philosophy. In addition, the position of the law of reason vis-à-vis substantive law and the emphasis on the inadmissibility of the latter when its rules collide with the principles of the law of reason are expressed more clearly. The latter, of course, may also be due to the fact that Pauler wrote his main 180 works on legal philosophy immediately after 1848, in the 1850s, and that the open Austrian state autocracy over Hungarian society was at its strongest at that time. In his Encyclopaedia of Law and Political Science, published in 1851, he wrote about the relationship between reason and law: "The law of reason is the basis of the law of propositions, because in the existence of natural principles of law only arbitrary commands, but not legal relations, can be conceived; it is a real inner characteristic of the truth of acquired rights, independent of the prejudices of the time, since only rules which do not contradict its principles can be binding on beings possessing reason, and therefore it is the natural standard of the practice of law-making. The law of things, however, which applies the principles of natural law to the circumstances of the moment, is more closely determined according to the requirements of reason, and, as a reflection of the legal feeling of popular life, is by its nature not only not opposed to reason, but is most closely connected with it" (Pauler 1851:15). The right of the subject that runs counter to the eternal laws of reason - Pauler now uses this term in particular instead of the earlier concept of "acquired" right "cannot usurp the sacred name of right". Pauler pays attention not only to the rules of substantive law, but also to the incorporation of jurisprudential concepts and principles into all law: "In the rules of substantive law, besides the strictly juridical element, the principles of idealism are also very important, since they can be considered as the results of several factors" (Pauler 1851:15). Let us look at the most important passages from him: "In addition to written law, principles of law are binding in all nations, which are based on the morals of the people, the concurring judgments of judges or the opinions of jurists, and form what is known as unwritten law or customary law, and have a decisive influence on the development of legislation. History shows that ancient peoples were largely governed by custom ... and only later supplemented by written laws" (Pauler 1851:17). This reason law is already far removed from the pure reason law conception of Csatsko and Virozsil from 1839 and harmoniously combines reason law principles in all aspects of law formation known today. Pauler, on the other hand, in his work written more than a decade after the book cited above, uses the results of the historical school of law to oppose a theory that traces all law back to the popular mind and customary law. In the historical development of law, the historical school of law seeks its principles, which, in contrast to the northern one, emerged towards the end of the last century; its champions were Burke and Gustave Hugo, its leaders in Nemethon: Savigny, Göschen, Eichorn, in France: Giraud, Laboulaye" (Pauler 1864:30-31). 3.1.2 The legal theory of Ágost Pulszky We can be justifiably proud of the balance of Tivadar Pauler's legal approach and the broad spectrum of knowledge he used in his legal philosophy. His successor at the University of Pest was Ágost Pulszky (1846-1901), who wanted to further develop this balanced legal philosophy, but rejected the law of reason. Immediately after his birth, Pulszky's parents had to emigrate following their defeat in the 1948 War of Independence, and so he grew up in England, only returning to Hungary in the years before reunification, where he learned English as well as German (Kupa 1996:19). When he was appointed professor of legal philosophy at Pázmány Péter University after Pauler's death, he made a complete break with the Kantian conception of the law of reason and attempted to develop a legal-philosophical system within a comprehensive social theory. Based on the latest sociological and social-theoretical work of his time, he wrote his book Principles of the Philosophy of Law and State in 1885. Before we begin with a brief introduction to his conception of law, it should be noted that Pulszky's break with reason and his turn to sociology marked the beginning of a process in the course of which his student Gyula Pikler moved to a one-sided materialist conception of society and law, and his successor Bódog Somló - in the first half of his career - also continued this process. It was only after Bódog Somló's radical break with the naturalistic conception of society and law in Hungarian legal theory at the beginning of the 1910s that the views of Bódog Somló, who had converted to neo-Kantianism, were continued by his student Gyula Moór and, to a certain extent, by Barna Horváth in the 1920s and 1930s. For Pulsky himself, the sociologisation of theory did not mean one-sidedness. His social theory was based on Spencer's theory of evolution, and his concept of the narrower historical development of law was based on Henry Maine's comparative works on the law of the East (Pulszky translated Maine's book "The 181 Ancient Age of Law" into Hungarian as early as 1875!) His concept of law is exemplary in its versatility and takes equal account of all components of law. This character was of course also the result of the fortunate historical time in which the above-mentioned work of 1885 was written, when the intellectual climate of jurisprudence had already been thoroughly reshaped by the results of the historical school of law and the conceptual constructions of Pandecotean jurisprudence that supported it had also raised systematic legal thought to a higher level, Jhering's critique of the excesses of legal formalism had also already deepened legal theory, but the attack on the liberal school, which completely despised legal concepts and placed judicial injustice above all else, had not yet exploded. In the decades following Pulszky, legal theory was divided into sharply opposing camps, and in retrospect, Pulszky's conception of law seems remarkably balanced from the perspective of the tendencies at the time to regard certain components of law as exclusively "the" law. It contains all the elements of a multi-layered concept of law, although the one-sidedness of the legal theories of the last century and the other lines of research developed in response have led to a much deeper knowledge of the individual layers of law and the overall picture to be worked out from this can be more detailed than was possible in Pulszky's time. Drawing on his extensive knowledge of comparative law, Pulszky distinguishes between three different conceptions of law with regard to the inner components of law and the areas associated with them. These three concepts are reflected in the names given to law in the different phases of its development. Thus, in the development of Roman law, the binding of law to religious norms was emphasised by the designations "fas" and "sacra", while the other direction of the binding of law, the moral binding, is indicated by the designations "jus" and "justum". Finally, the human constitution of law is emphasised by the Roman designations "plebiscitum" and "lex" (Pulszky 1885:257). Similarly, in the Greek of Solon's time, law was understood as "... the law created by the decision of those who are called to it", while later Stoic philosophy emphasised the natural and moral aspects of law. Pulszky points out that after the long predominance of the German conception of the law of reason, law was increasingly understood as consciously constituted: "... precisely because, under the influence of the historical school and the teachings of Hegel, law was increasingly understood as the enforcement and limitation of the will" (Pulszky 1885:258). Apart from the legal concepts that can be derived from the various terms, according to Pulszky, the differences between the legal concepts can be better grasped by contrasting the most important principles that each term emphasises. Here, too, the three classes mentioned above emerge, albeit with some modifications. He divides the main principles of law into theological, metaphysical (or moral) and finally empirical: "To the first belong those which identify the principle of the law with the will or essence of the Deity; to the second belong those which are based on the order or laws of nature, or on human reason, or on practical reason; finally, those which refer to the meaning of the law as an inherent, eternal and indissoluble quality in man. To the third class belong the utilitarian theories, the theory of power, and those which derive the main principle of law from the sense of law, but regard it as something knowable only through experience and not as an absolute, immutable and final principle" (Pulszky 1885:275). Pulszky therefore carefully scoured the history of legal philosophy before developing his own conception of law. This multi-layered and unbiased approach enabled him to arrive at profound insights when analysing a particular movement. For example, in describing the struggle between the Northern school of law and the historical school of law, he points out the great discrepancy between the explanations of the latter and its actual functioning. The real reason for the conflict between the two schools is not that the reason school derives law from concepts and abstract principles, while the historical school tries to extract it from the customs of the people, but that, while the Northern jurists derive Roman legal concepts and institutions from "reason", the historical jurists give precedence to German legal institutions, but otherwise distil them into abstract concepts as well. In other words, the historical school rejects only the reasoning of law, but not the conceptual technique itself, and so the customary law formation and the conceptual activity of law remain together (Pulszky 1885:286). Pulsky's balanced conception of law is most evident in his analysis of the sources and forms of law. such as those arising from the codes of reason and natural law. Pulsky thus encompasses conscious legislation, judicial practice, jurisprudence and the legal application of general ideals, and there is nothing new to add to this today. But he not only lists the components of law, but also describes their relative parts in a balanced way: "A higher degree of progress can only be achieved with a definite aim in legislation and scientific activity; both Maine and Jhering treat these points of view separately, and treat separately the activity and results of legislation, jurisprudence, legal theory and scientific jurisprudence, as well as 182 legislation, by which means, at any rate, they have succeeded in replacing the doctrines of the historical school with doctrines which come closer to the actual points of view" (Pulszky 1885:337). He adds that neither purely "made" laws nor pure customary law can survive in the modern world. In summary, Ágost Pulszky's legal view is the most balanced legal view in Hungarian legal theory. 3.1.3. Gyula Pikler's materialist theory of law From the 1890s onwards, Pulszky became increasingly involved in political life, briefly holding the office of Secretary of State in addition to his position as a Member of Parliament, which he had already held for many years. All this increasingly distracted him from regular academic work. During these years, his former pupil Gyula Pikler (1864-1937) began preparing his major studies and books, and soon he too became a professor at Péter Pázmány University in Budapest. Similar to Pulszky, who took a comprehensive approach to research, he did not stop at the boundaries of a narrow philosophy of law, but tried to develop a general theory primarily within the framework of general sociology. Unlike Pulsky, he also tried to include the authors of economics in the development of his general theory of society, paying close attention to the writings of Marx and then drawing on the writings of historical materialism based on Marx's teachings. Two of Pikler's works are to be analysed from the point of view of his theory of law. His book Introduction to the Philosophy of Law, published in 1892, contains the most comprehensive account of his theory of law. In 1897, he published a more detailed excerpt from this book in his second book On the Origin and Development of Law. Compared to the strictly scientific work, the latter is to a certain extent a "legal-political struggle", but in any case it is more clearly formulated and reveals the specific features of Pikler's conception of law. The essence of Pikler's conception of law can be summarised from the outset as follows: In contrast to Pulsky's description of the formation of law, which focuses on several components, the focus here is on the exclusive legislation of the state legislature, whose rules can only be systematised by jurisprudence, but cannot intervene in the formation of law in a formative way; likewise, the judge can only strictly apply the rule, and "unplanned" customary law can only be regarded as an archaic remnant. This was the view of the nineteenth century, which, especially in Marxism, but also in other currents of the time, assumed the possibility of arriving in the future at a perfect social order based on the recognition of the laws of society, and thus expected a rational transformation of the existing and irrational traditions and institutions. Pikler's optimism about the transparency of society and the possibility of its planned control on this basis was also based on the fact that, as a genuine historical materialist, he believed that the ideological and conscious factors could be traced back to a clear material determination. And knowledge of the world, which is ultimately material in nature, can advance ever more rapidly with the development of the natural sciences and later of economics and sociology. To illustrate this optimism, consider a striking quote from Pikler: "Let us now suppose that one of us ... knew with the greatest perfection the laws of nature which govern the human body, and possessed an apparatus with which he could recognise the state of the nervous system of his fellow men at any given moment. Such a man would be able to predict with the greatest accuracy the actions of his fellow-men, and would feel the least want of knowledge of their consciousness" (Pikler 1892:111). Such an image of society clearly implies the exclusive role of the central state legislator, who always transfers the ideas of the "scientised" state apparatus to the members of society. Pikler's 1897 book on the development of law went furthest in this direction, calling for an exclusive central change of law. But he goes further in this book by not only asserting the exclusivity of conscious legislation in the creation of new law, but in a frontal attack on the historical school of law's view of law as customary and the development of the popular mind, he seeks to provide evidence of consciousness even in the creation of law itself: "It is, after all, remarkable that Bentham and his followers, who set up expediency as a practical principle for legislation, did not even dare to set up the theoretical doctrine that law arose and developed from insight into expediency" (Pikler 1897:21). Pikler does not hesitate to explain this by calling his theory of law a "theory of the law of reason", which emphasises the role of conscious reason in contrast to the "instinctive conception of law" of the historical school of law, and since the decision on the shape of law and society was also the subject of a current political struggle in the broader intellectual community, 183 this made his "theory of the law of reason" widely known. Law is thus defined by the scientific state, although he points out, on the basis of Marxist doctrines, that this is only realistic if the state of the whole people, rather than the state mediating class determination, constitutes law. This is complemented in his analyses by the exclusion of jurisprudence - or "jurisprudence" in his parlance - from the creation of law. He considers it a legalistic error for this to happen, and prescribes the role of jurisprudence (Rechtswissenschaft) to strictly assist in the application of the law as it is made: 'Jurisprudence... is in the service of those who wish to apply the law to particular cases (...)The jurisprudential error in legislation occurs when a jurist, in changing a particular law, says that a new institution or rule is wrong because it contradicts the theory he has derived from the existing law" (Pikler 1892:2-14). Similarly, it is a "mistake of law" if, in applying the law to a case, the judge does not follow the probable intention of the legislature, but "... adopts instead a theory of law which, without regard to justice or expediency, subjects the case in question to a particular rule solely on the basis of its formal characteristics" (Pikler 1892:19). The assistant of state legislation, freed from the influence of jurisprudence, would be for Pikler a philosophy of law defined differently from the usual one, and which for him is completely detached from the internal (applicative) view of law, and in contrast "... Philosophy of law is the science of the making of law, whereas jurisprudence is the science of the application of law. It is only confusing for the philosopher of law to learn about the law of a country from a jurist who applies the law - it is better to get such a description of the law of a country from, say, a traveller of average education or an economist, etc. - but it is equally confusing for the jurist to read a work of legal philosophy on the effects and causes of law (Pikler 1892:2-12). The origin of law and the application of law are two separate worlds for Pikler, and he moves the former out of the hands of the jurist or legislator and into the hands of the social science state legislator. To conclude the presentation of Pikler's theory, it should be noted that he regarded the philosophy of law, understood as part of social science, as the study of the laws that determine human action, and since he saw this determination in the processes of the nervous system, from the beginning of the 19th century he turned increasingly to physiological research on the nervous system and wrote a large number of studies in this field. This consistent materialism, however, led him far away from the law, and the increasingly clear research into the ideological organisation of society made his views more and more controversial at the beginning of the 20th century. And in his personal career he was marginalised after 1919, when most of his former intellectual comrades and students became leaders of the Soviet Republic in 1919, and the resulting trauma of Trianon pushed Pikler out of Hungarian intellectual life. 3.1.4. Somló Bódog's theory of law In the course of his short life, Bódog Somló (1873-1920) took two different paths in the development of his legal theory. In the first phase of his career, he came under the influence of Pikler - although he was not a student of his and only came to Pest for some time after his doctorate and career in Cluj-Napoca and for more than ten years, between 1897 and 1909, he tried to develop his general social theoretical views and a theory of law consistent with them, based on Pikler's theory of law and Spencer's philosophy, which provided the intellectual background for it, as well as on the works of Marxian historical materialism (see Moór 1921:19-21, and Ződi 1996:65-69). Two works on legal theory survive from this period of his thought: a short summary from 1901 entitled Philosophy of Law and, in 1905/6, two volumes of a more systematic theory of law entitled Lectures on the Philosophy of Law. In these volumes, his causal and materialist conception of law and his thesis of the social embeddedness of law become clear. The latter points out that it is indeed wrong to separate the philosophy of law from the social sciences and to cultivate it as an independent science in order to give law a certain autonomy vis-à-vis social laws and the moral sphere. The correct thing would be to treat the philosophy of law as part of a general sociology (Somló 1901:7).... it must be said that it is a mistake to see only the economy as a social phenomenon... historical materialism, and here it ignores the fact that the economy is just as much a human instrument in the struggle for existence as law, or, if you like, that law is no less a social phenomenon than the economy (Somló 1901:22). In this period of his thought, he rejected the division of society into a causal and an independent 184 spiritual world and tried to make a connection between the two great scientific movements of his time that rejected them, Spencerian social philosophy and Marxian historical materialism, in order to understand a unified materialist world. In the late 1890s, under the influence of Pikler, he took the Marxist direction, but in later years he preferred the Spencerian version (he also translated a work on Spencer's theory into Hungarian). Both types of materialist theory had in common that they affirmed the causal determination of mental phenomena and even shared the assumption that the laws of society point causally through inevitable phases towards the creation of an ideal society. However, while Marx's doctrine was collectivist in nature and predicted the emergence of the ideal future community - communist society - Spencer was concerned with the prevalence of increasing individualisation as the perfect future society. In this divergence, Somló sided with Marx's historical materialism, but followed Spencer's systems theory in his systemic conception of society and his conception of the individual social spheres as subsystems: "The individual branches of social organisation: science, art and morals, as well as law and economics, are to be regarded as complementary parts of this complexly functioning social organisation" (Somló 1901:23). In addition, purely Marxist theses can also be found in the writings of this period of his thought. According to his master, Somló was also fascinated by Marx's utopia of the realisation of a perfect social order, which results from the increasing scientific transparency of society and the unlimited mutability of law. This freedom of change has two limits. Law is still surrounded by certain sanctities, but above all by the opposition of the ruling and exploiting classes. Apart from these oppositions, the desire to change the law has already been granted a high degree of freedom. However, the rationalisation of law progressed by leaps and bounds towards its perfect realisation (Somló 1905:103). By these "sanctities" that limit the change of law, Somló means the traditions, which, however, are dissolving, and thus "... law itself becomes a collection of purely expedient rules" (Somló 1905:104). Tradition, customary law, the nature of the inner conceptual fabric of law as an obstacle to legislation cannot be taken into account by Somlo, and this conception of law is at its core just as characterised by a decisionist legal positivism as the sophisticated legal theory of his then teacher Gyula Pikler. The move away from this theory is initially through the works of Rudolf Stammler, whom Somló initially read only for a better understanding of Marxist historical materialism - Stammler, in addition to his critique of this doctrine, also gave an excellent summary of the legal view of historical materialism - and after becoming acquainted with Stammler's works analysing Kantian philosophy, Somló also begins to study Kant. (Prior to the publication of the 1905 work on the philosophy of law, Somló makes no reference to Kant, but the approaches of Kantian philosophy were largely alien to his overall intellectual background at the time). Signs of a turning point appear in Somló's writings around 1908, when he rejects the psychological foundation of legal philosophy - a heated argument ensues between him and Pikler, leading to the final break - and then begins to call for the purification of legal philosophy from sociology, and by 1911 the turning point is complete: Somló becomes a follower and later a recognised figure of the Neo-Kantianism then emerging in Germany (Moór 1921:26-29). At first he differs from Kant in that he does not reduce the moral sphere to autonomous moral values, but sees them realised in the positive morality of society at all times, but after a few years, in the last years of his life, he is already fully committed to strict Kantian moral values. His student Gyula Moór writes about this in his memorial speech dedicated to Somló. There is no other morality than positive morality.... How positive morality comes about.... is a sociological question of fact" (Moór 1921:34). During this second period, Somló wrote his "Principles of Law", published in Germany in 1917, which were to become one of the founding works of neo-Kantian legal philosophy. In 1920, he published an abridged version of this work in Hungarian for university lectures under the title "Philosophy of Law" (the latter contains - apart from an introductory chapter analysing the authors of the philosophy of law the entire intellectual material of the major work, so that in the following I will quote from this work published in Hungarian). Of decisive importance for his concept of law is that Somló excludes the substantive legal concepts on which the rules of substantive law are based from his investigations and only includes the "necessary" concepts and elements arising from the concept of law in his legal doctrine (Somló 1995:9). Legal science and legal scholars thus play only a subordinate role in the shaping of law, and besides the legislature, only the shapers of customary law have been entrusted with this task. Somló's earlier state-centred view of law remains largely intact - even if the role of the state in shaping scientific society is no longer mentioned and the state is still the most important determinant of law. In Somló's conception, the state itself considering the specificity of a state-organised society among the social formations that have emerged in 185 history - is nothing other than the form of society in which the members of society follow the rules of a legislative power. The state is thus the legislative power itself: "There can be no concept of the state that does not encompass its law, and no concept of law that does not encompass its state. The common constituent element of these two concepts is the concept of legislative power" (Somló 1995:70). In Somló's concept, the legislator plays the central role in the creation of law, but he also recognises the subordinate role of folk customs and judicial practice in the creation of customary law. This subordination is also reflected in the fact that Somló links the creation of legal quality in the case of both folk customs and customs arising in judicial practice to the fiction that they acquire their customary character by virtue of having been tacitly approved by the legislature. The other side of the coin is that the legislature can later at any time enact regulations that contradict them and thus deprive them of their legal character. The centre of law in this conception of law is thus the state legislator, and the - tacit - approval of this centre is required to give legal character to customs that arise far from it. If it is a popular custom and the judges adopt it in their judgments, the first stage of sanctification has taken place, but this sanctification will only be complete if the passage of time shows that the state legislator, who does nothing to prevent it, tacitly approves of this adoption. The same is true if it is an established custom in judicial practice. Here, too, the legal character is created by the tacit approval of the state legislature - the legislature. Somló opposes the school of free law, which assigns the central rather than the subordinate role of the legislature to judicial lawmaking, but also the strict form of decisionist legal positivism, which would ban customary law lawmaking altogether and demand that customary law be explicitly enshrined in statute (Somló 1995:109). As we have seen, this was Somló's earlier position, and the most important change in his conception of law was the departure from it in his second period of thought. To summarise this view of law, state legislation plays a central role, the legislative power of popular custom and judicial practice is recognised as limited and, finally, legal doctrine and jurisprudence are almost completely superseded. Gyula Moór and later Barna Horváth were able to develop their theories on the basis of these teachings, and while Moór adopted Somló's starting points more in the direction of the state's definition of law, Horváth placed the jurisprudence of the free school of law at the centre of his concept of law. 3.2. The Legal Concept of Gyula Moór and Barna Horváth Before we begin the analysis, it is necessary to state our view that the history of legal theory in Hungarian legal life in the last century can only be presented in its entirety through a joint analysis of two different schools of thought. On the one hand, the directions and authors explicitly designated as legal philosophers within this tradition of thought must be examined, but on the other hand, it must also be seen that between the analyses of the legal scholars who further define the concept of law in practical legal life, there runs a direction of legal-theoretical thought that often has a fundamentally different theme from that which can be gleaned from the former. Thus, if we look at the development of Hungarian legal philosophy through the representatives of the explicitly legal-philosophical line, Antal Virozsil, Ágost Pulszky, Gyula Pikler, Bódog Somló, Gyula Moór and Barna Horváth represent for us "the" Hungarian legal theory. But if we browse through the major Hungarian legal journals of the time - e.g. Hungarian Law Journal, Hungarian Legal Review, Legal Studies Bulletin, Legal State, Hungarian Legal Theoretical Commentaries, - and highlight the articles with legal-theoretical relevance, we find dozens of private lawyers, administrative lawyers and other authors mainly dealing with specialised legal theory who wrote in other legaltheoretical traditions besides the "official" legal-philosophical authors of the time. In general, it can be said that only a minority of the problems and ideas raised in the works of legal philosophy of the period under study were relevant to the intellectual climate of practical legal life, and while the problems of legal theory induced by the internal problems of legal life were discussed here, the ideas and analyses of the "official" legal philosophers were largely focused on questions of general social philosophy. Therefore, the works of Gyula Moór or Barna Horváth, for example, are at least as important for the national history of Hungarian social theory and theoretical sociology as they are for the analysts of legal philosophy. In many respects, however, the comprehensive questions of practical law were left out of their analyses, so that such studies spontaneously passed into the realm of theoretically oriented specialist jurists (e.g. the 186 legal-theoretical studies of Nizsalovszky, Szladits, Salamon Beck written in the 1930s should be mentioned here). The main reason for this was the starting point of neo-Kantian philosophy of law, and even though both Gyula Moór and Barna Horváth have left this tendency behind - to different degrees and to varying degrees - the former starting point defined the framework of their research in the philosophy of law (or in Horváth's case: in the theoretical sociology of law). In turn, this starting point states that in the study of phenomena, the a priori forms of thought must be separated from the a posteriori, i.e. empirical phenomena. Pure a priori, pre-experiential forms of thought can be investigated independently as presuppositions of experience. This Kantian philosophical thought was consistently carried forward by Somló in his work Legal Foundations, published in German by Bódog Bódog in 1917, and the role of legal philosophy was limited to the analysis of the a priori foundations of law that arise from the concept of law itself (Somló 1996:5-7). This starting point then determined the legal-theoretical thinking of Somló's student Gyula Moór and Barna Horváth, who also started from the Neo-Kantians and socialised with the works of Gyula Moór. Particularly in Moór's work, there are explicit references that reject "general jurisprudence", which examines empirical legal concepts, as not being a true philosophy of law (Moór 1945:24; 1994:82) and consider only the "pure" legal concepts that derive from the concept of law and the sociological connections of causal reality that are necessary for this, as well as the problem of legal values, as belonging to the realm of legal philosophy. Let us take a closer look at the main components of Gyula Moór's and Barna Horváth's theoretical thinking and legal conception. 3.2.1. The framework of Gyula Moór's legal theory After the death of Bódog Somló in 1920, Gyula Moór (1888-1950), professor at the Ferencz József University in Szeged, was "the" legal philosopher for a decade, before the now rising Barna Horváth, with his support, made a greater name for himself as a legal philosopher in Hungarian intellectual life from the 1930s onwards. Of Moór's theoretical reflections and analyses, three strands of thought will be highlighted below: his conception of the essence of social existence (1), his reflections on the structure of law (2) and finally his position between the different currents of legal philosophy (3). 3.2.1.1. The essence of social existence Moor's most original reflections concerned the nature of social existence, starting from law and discussed as a precondition for its existence. In this area, we can see a twofold demarcation in him that defines his position. He distanced himself from the "naturalistic" view of social existence, which, in the study and formulation of social phenomena, regarded society as a "piece of nature" and attempted to understand social phenomena and events according to the laws of natural causality. The views of 19th century sociology were his model for this conception, and the more he characterised these views as "natural sociology", the more he saw in them an abstraction from the spiritual nature of society. He recognised the dissolution of this distortion and the approach to the specificity of social existence in the spiritualscientific method developed by the German philosopher Wilhelm Dilthey, which emphasised the spiritual character of sociality and separated this realm of existence from natural reality (Moór 1936:24). In addition to rejecting naturalism, which reduces sociality to the laws of natural reality, Moór turned as a further extreme against the neo-Kantian solution, which in its understanding of social phenomena shifts the social phenomena to be studied towards causality on the one hand and towards a validity separate from causality on the other, juxtaposing them as spheres of rigidly separate being and ought. In this way, causal being becomes completely separate from the world of being, which is subject to evaluation and norms. On this ideological basis, the neo-Kantian philosophy of law located law as a norm in the realm of being, which it thus separated from all temporal and spatial causal influences and conceived as purely ideal validity. Gyula Moór saw in this school of thought the loss of essence of sociality - and of law in it - just as in naturalistic sociology, which removed the specificity of meaningful moments from the study of social phenomena. Before arriving at a solution, it should be pointed out that there were two schools of thought in neo-Kantian philosophy, one of which, the so-called Marburg School, proceeded from a complete 187 denial of reality independent of intellectual apprehension and regarded reality as a construct created by the concepts of the knower, while the so-called Baden or South German School recognised reality independent of intellectual apprehension. Heinrich Rickert (1857-1932), a representative of the latter school, developed a concept of sociality that went beyond the rigid separation of value and reality and conceived of it as "valuable reality", i.e. as reality permeated by values and ideas (cf. Rickert 1987:98157). With Rickert's help, Moór already came up with the idea in the early 1920s of starting from the uniform social reality permeated by values and ideas instead of the neo-Kantian separation of being and ought (this idea was a great inspiration for Barna Horváth, who was then at the beginning of the development of his legal theory and later wanted to solve the systematic link between being and ought in his legal theory in the same way, albeit with a different concrete solution). Besides Rickert, Nicolai Hartmann's theory of the order of being from 1933 also contributed to overcoming the neo-Kantian separation of the duality of being and becoming, and on this strengthened theoretical basis he wrote in his 1934 study: "Social being is the resultant of two different kinds of components. Those components which belong to the realm of psychophysical reality follow the law of strict causal necessity of experiential reality. The mental content, however, which creates and holds society together, is not subject to the laws of psycho-physical reality, but is governed by its own separate laws, the laws of the inner logic of ideas" (Moór 1934: 12). Social phenomena, he now says, following Hartmann's theory, are therefore not to be understood through the separation of being and ought, but through the interdependence of the processes of the physical-mental and the processes of the spiritual above it. It should be noted that Hartmann assumes that the higher of the interdependent spheres of existence can only function by building on the lower sphere of existence, but if there is a higher sphere of existence, it functions by transforming the laws of the lower sphere of existence on which it acts. In the present case, the products of spiritual existence are constantly transforming the causal laws of bodily-spiritual existence and interfering with their functioning (Hartmann 1972; 1974). Since the last half century has seen a more precise formulation of the Dilthey-Rickert-Hartmann body of thought on the spiritual-intellectual nature and functioning of social existence - the entire theory of Niklas Luhmann, for example, has revolved around this for many years - it is clear that Gyula Moór, in retrospect, has been stuck at this level halfway towards grasping the essence of social existence. For if social phenomena mean the unity of mental-intellectual moments interwoven in mental processes, then the focus of the investigation of the functioning of a social phenomenon - such as law, art, science, etc. should have been on those meaningful connections. - should have been on those meaningful connections that ensure the "mental links" and "mental unitary conclusions" between individual actions. But while Moór formulated most concretely at the level of social theory in his study cited above that "... human acts... are combined into social phenomena through mental links...", in the case of law as a social phenomenon in his systematic works (1923 "Introduction to the Philosophy of Law", p. 1923 and in his "Philosophy of Law", an expanded form of which was first published in 1936), he contented himself with stating the specific legal rules that give legal meaning to individual acts as such a link. But what connects the entire legal system into a single spiritual unity?! In Moór's work we find two solutions to this question that go in opposite directions, and while one points to a legal dogmatic conceptual system - this is found in only one of his writings (Moór 1928:7) - the other, the "official" one (for this is what emerges from his complete works and from some of his writings), focuses on the legislative will of the state. Thus, while he was able to raise the most elementary social theoretical question of his time with the deepest insight, he failed to draw the necessary conclusions from it in sufficient depth, rejecting the previous naïve naturalist answer to the question of the nature of sociality and the neo-Kantian solution, which was misleading in other directions. 3.2.1.2. The internal structure of the law In this direction, the main framework of Moor's thinking can be outlined as follows: (1) Basically, he excludes from the field of legal philosophy to deal with general legal concepts used in the rules of substantive law, and as already indicated, this was due to his adoption of Bódog Somló's "pure doctrine of law". Although he overcame the neo-Kantianism of his former master at the level of social 188 theory, he retained Somló's idea as the starting point for his legal theory. Therefore, he does not actually analyse general legal concepts in his philosophy of law, but analyses legal dogmatic activity in the context of the methodology of legal theories in the context of the methodology of theoretical jurisprudence (Moór 1994:51-65). It follows from this approach that he is thus only marginally concerned with the internal structural problems of law. (2) However, the tangential treatment also reveals his understanding of the relationship between substantive law and legal dogmatic categories, and here we must return to the analysis of his two-sided solutions to the conceptual unity of law, as indicated above. He also takes note of the intellectual turn in the assessment of legal dogmatics that occurred in the late nineteenth century with the decline of pandogmatic jurisprudence and treats it not as a system of categories that is binding for the specialised law, but merely as a subsequent systematiser of the specialised rules of law, as a unifier of their scattered concepts: ".... the doctrine of substantive law has a firm ground, the law, and its activity is limited to collecting the laws created by the legislator, classifying them in a clear system and explaining their interpretation. What the legislator says must be accepted as dogma by the theorists.... " (Moór 1994:51). One can summarise Gyula Moór's position on the basis of the above passage, and to confirm it, one can quote his position on the role of the more self-confident legal dogmatists of the last century: 'We must not fall into the mistake that the specialist jurists of the last century often made, of regarding these legal concepts, which were created by analysing the changing specialist law, as something immutable, binding also on the legislator' (Moór 1994:53). This is the so-called inversion process, says Philip Heck, and should not be accepted in this view (Moór 1923:76; 1994:63). However, there is a study by Gyula Moór from 1928 that comes to the opposite conclusion. In this study, after stating the position of the German legal philosopher Max Salomon on the unlimitedness of state legislation and his view that there is no unity of meaning (content) within law, but that only the will of the legislator brought in from outside creates it, he writes: "In my opinion, Salomon is mistaken. I do not believe that Solomon's view is correct. On the other hand, there is no doubt that, while it depends on the will of the legislator what he makes into law, on the other hand the legislator, regardless of his will, is dependent on the limits of his activity, which determine whether he can make his will into law at all. I could therefore say that it is not the will of the legislator that constitutes the unity of the legal order, but that, on the contrary, it is the aspect of the logical unity of the legal order that determines what the legislator can make into law" (Moór 1928:7). This, then, is the position of the 'inversion' condemned above, and while the former view is more reminiscent of Solomon in its genesis as Moór's position, here he repeats the arguments of the nineteenth-century legal dogmatists who called for a greater role in determining legislation. It seems partly an intellectual puzzle why Moór stopped thinking further about the notion of legal dogmatics and the resulting concept of law after this study, but perhaps we are not far from the truth when we point out, that the intellectual climate of the 1920s and 1930s and the prevailing intellectual struggle between the liberal jurists and the legal realists who favoured judicial law, on the one hand, and between Kelsen and the legal positivists, on the other, would have condemned the "nineteenth century" to complete loneliness. Kelsen was the "old-fashioned" legal doctrine of the nineteenth century, and the late Gyula Moor, who struggled at the time to assume the dominant role of legal dogmatics. Thus, Gyula Moór's entire work professes the omission of legal dogmatics and the free disposal of the legislator in the creation of specific law and can be criticised on a comprehensive level of social theory. For in this way the connection is lost that above a certain level of complexity (or, to put it another way, complexity) the mental interrelationships of social phenomena do not sink into chaos and their continuous functioning is only possible if a certain degree of systemic coherence is guaranteed. The more complex the network of meaningful interrelationships of a social phenomenon becomes, the more changes to the structure and functioning of the phenomenon can only be made with regard to the meaningful pillars (structures) that ensure systemic coherence. Modern complex legal systems thus differ from the normative systems of society beyond law not only in that these norms are ultimately enforced through sanctioning as Gyula Moór writes in his Philosophy of Law (1994:177) - but also in that the individual rules in law are built on the conceptual apparatus that ensures complex conceptual-systemic coherence. But even then, the legislator can only intervene in concrete law and plan changes by making changes in the space left free by the possibilities of legal dogmatic categories. Admittedly, this no longer refers to the dominance of legal dogmatics in the 20th century, which this concept of legal dogmatics brought with it in the previous century. Today, those working in the dismantled academic legal sphere constantly produce and publish masses of de lege ferenda proposals, from which the politicians of the legislature select this or 189 that proposal, weighing up the social consequences. In the last century, on the other hand, before the institutions of political democracy were created, a great law professor, as the authority chosen by the monarch or his minister, was the only person who could directly draft the most important laws and codes. The neglect of conceptual complexity is, in our opinion, the reason why the legislator, in his "official" conception of Moór, declares his freedom not bound by legal doctrine. Of course, he then concedes - for rather practical reasons - that the legislator is bound, but only without any theoretical local value: "It often happens that the legislator can also resort to the legal concepts that legal theories construct. When the legislator enacts a new provision, he must be aware of how this new provision fits into the existing legislation. He must therefore be familiar with the existing law" (Moór 1994:56). Legal dogmatics thus, Moór concedes, conveys to the legislator but does not revise his thesis of the legislator's freedom in showing uniformity. Indeed, in his Philosophy of Law, a few pages after the previous quotation, he calls it a degeneration of legal dogmatics if "... legal concepts derived from the content of legislation were regarded as an independent and unchanging legal reality from which new laws could be derived" (p. 63). (3) At this point, Gyula Moór's concept of legal policy should be discussed. The main elements of this concept can be summarised as follows: - Legal policy is the criticism of existing law and the development of alternative legal rules, the socalled de lege ferenda regulatory models; - This critique of law is carried out "from the point of view of human goals, national and generally human and moral ideals" (Moór 1994:19). - Finally, a third feature of this concept of legal policy is that it asserts that legal policy is a science, and that if legal criticism is based on the general (moral) value standards of legal philosophy, then legal policy can be understood as an applied science of legal philosophy (Moór 1994:69). Let us take a closer look at the basic assumptions of this conception of legal policy in contrast to other concepts of legal policy (cf. Larenz 1979; Weinberger 1986). First, there is the question of regulatory models de lege ferenda in legal policy. In our view, this decision by Moór is related to his conception of legal doctrine analysed above. He sees the role of legal doctrine as subordinate to concrete legal norms and only in their systematisation. However, if one looks at the content of the scheme for the development of regulatory models de lege ferenda, one finds that it is always carried out with a two-pronged approach. The author of a regulatory proposal may be motivated by tensions in practical legal life, where a regulation and its application in a particular case may lead to tensions with the legal sensibilities and/or interests and values of certain social groups, or simply by the absence of an existing regulation due to changes in the reality of life to begin his or her work. In addition to these extra-legal impulses, however, it is crucial for the development of a regulatory model de lege ferenda that the regulatory proposal is also informed by reference to the legal-dogmatic categories, disciplines and their interrelationships within the regulatory field. And since hundreds - and in larger countries thousands - of lawyers have been trained in academia over the last century to do much of this work, the ethos of the profession and its remuneration and disciplinary mechanisms compel those drafting de lege ferenda proposals to take this into account. In essence, then, de lege ferenda proposals are also a product of legal scholarship, and many of them are found in the products of legal journals and law reviews. It therefore seems worthwhile to separate criticism of existing legislation, insofar as it is carried out in the light of legal dogmatic categories, from legal criticism aimed at political consequences. It should be noted at the outset that this is particularly important in legal systems of countries where there is a disintegrated multi-party political system, and that as a result individual party politicians systematically gather proposals for legislative changes that are more in line with the interests and values of their own political groupings, and de lege ferenda attack proposals that promote the interests/values of other social groups. One must of course add that Hungary already had such a multi-party system at the time of Gyula Moór, in the decades between the two world wars, but the development of systematic party-political legal programmes and legal-political struggles had not yet been developed. In the present situation, however, in which more distinct party-political legal struggles have slowly developed in our country as well, the affiliation of jurisprudential models de lege ferenda to legal dogmatic activity and their separation from legal politics can be seen more clearly. Another criticism of Gyula Moór's conception of legal policy is that he derives his critique of existing legal norms from "general human goals", "moral ideals", etc., and thus legal policy can be confused with legal values. This is due, on the one hand, to the fact that Moór's analysis of society as a whole generally 190 does not address the social struggles that result from the separation of interests and confines itself to pointing out the contradictions and struggles of ethical ideals and values, and, on the other hand, to the immaturity of the political articulation of interests that existed in his time. Of course, deeper value conflicts may lie behind the political struggles and confrontations, but they cannot obscure the primary political antagonisms and the efforts to change the laws on their basis. It can be argued that if Gyula Moór had paid more attention to the political struggles and their ideological mechanisms, he would have been able to better separate the scholarly work on de lege ferenda models of legal doctrine from the legalpolitical aspect of the political struggles in 1930s Hungary. Thirdly, the treatment of legal policy as a science in Moór's conception is also to be criticised. If this activity is scientific, it belongs more to the legal-doctrinal realm, and if it is really legal-political, it means the development of plans to change the law from the point of view of interest struggles, which is no longer a science, but a policy. To sum up, Gyula Moór's conception of legal policy must be described as flawed in every respect, and the area he has in mind, namely the area of regulatory models de lege ferenda oriented (also) to ideal values and conceptual systems, must be assigned to the area of legal dogmatics and not to the empirically well-locatable area of legal policy. Moór's entire position on the structure of law gives us a new insight into the debate on the theory of the legal vacuum (Moór 1939): In his "Philosophy of Law" and in the other writings studied so far, we could read mainly the rejection of natural law, the acceptance of legal dogmatics in a marginal role and the respect for state legislation, but it was difficult to find a clear position on the evaluation of the development of judicial law. For this reason, this study from 1939 seems important, as it most clearly expresses the rejection of the active role of the judiciary, which can only be derived from other writings. One of the two opposing views on the gaplessness of law was the theory of the logical closure of law, most clearly advocated in Hungary by Bódog Somló before Gyula Moór (see the new edition of his 1911 study in Somló 1996), and opposed by the theory of the recognition of the legal gap. In line with the first position, Moór sees the assumption of a legal vacuum in law as a logical contradiction. For if the law does not regulate a detail, it is not a gap, but legally indifferent, so that one can act freely in this respect. On the other hand, those who criticise this existing legal situation and want to bring about a judicial decision speak of a legal gap. Proponents of the legal loophole theory argue that the legislator may have forgotten to regulate a certain detail when he comprehensively regulated it, or that life has changed so much in the time since the time of regulation that a legal loophole has arisen. Proponents of logical closure of the law, such as Moór, argue that when life changes, or even a life situation requires legal regulation without one, the legislature, not the judge, should be thrust into that role. He argues convincingly why proponents of free legislation and legal vacuums do not call for legislation with this open attitude, but seek to fill the legal vacuum themselves: "The reason why this legal criticism, which can only be regarded as salutary from the standpoint of legislation, does not openly appear as such under the banner of lex ferenda, and why it does not fight with an open helmet for the amendment of existing rules that are considered wrong, is perhaps because under the false appearance of legality, under the deceptive banner of lex lata, it seems easier to triumph over undeveloped efforts at reform" (Moór 1939:16). What emerges most clearly from the study is Moór's rejection of free legislation and judicial legislation, and on the other hand, his rejection of complete control of the law by the state legislature. The partial eclipse of legal doctrine in favour of the free decision of the state legislator is complemented here by the restriction of judicial application of the law to its utmost limits. 3.2.1.3. Evaluation of Moór’s philosophy of law Gyula Moór's third area of research concerns the history of ideas in legal theory, and perhaps the most important part of his complete works are the related reflections and analyses. Their consideration gives us a new insight into the framework of Moór's concept of law (the latter also means that we should only consider Moór's relevant analyses from this perspective). Apart from the smaller works, two of the larger works should be included in the analysis. A detailed and systematic analysis of our subject can be found in the 1936 volume Philosophy of Law (Moór 1994:80-164) and in the smaller volume Problems of the Philosophy of Law published in 1945 (Moór 1945), which is entirely devoted to the analysis of the philosophical currents of law. For our examination 191 of Moór's concept of law, three points should be emphasised here. He welcomes the displacement of the concept of natural law from the 19th century onwards, emphasising the merits of the historical school of law, but rejects the sociological conceptions of law also developed in the 19th century, which he regards as fundamentally flawed in their social-theoretical foundations, in addition to their abstractions about the specificity of law; finally, he sees in the theory of law a new system of legal values corresponding to the period after the displacement of natural law, which finds its applied science in the science of legal policy. Let us look a little more closely at his arguments on this point and the contours of his concept of law that can be derived from them. Moór considers the idea of an eternal law to be incompatible with the changing conditions of society and points out that, whereas in Greek times and in medieval scholasticism the conception of natural law only "... established some very general and basic moral rules as requirements of natural law, the conception of natural law established by Grotius in the 17th century, and which was continued in the 18th century, is not compatible with the changing conditions of society. This, however, is utopian, as they want to create a law with concrete content that is timeless in the context of a changing society. Moór's opposition to natural law is made clear by the fact that he focuses on the historical school of law, which is usually discussed as a tendency against conscious legislation, as the breaker of eternal natural law: "... all law develops historically, and so there can be no other, higher law above the human law of the subject" (Moór 1945:15). It should be noted that this thematisation of the historical school of law is correct in retrospect, but looking forward - the 19th century was the century of increasingly unfolding conscious state legislation - the historical school of law also cut in the 'other direction' and was an obstacle to the creation of new law vis-à-vis the existing, prevailing law. However, Moór's views on the free legislation of the rules of propositional law, set out above, make it clear that this is not his focus when he praises the historical school of law. Two points stand out in his conception of law and legal theory. The first is that he discusses them as a modern substitute for the utopian idea of natural law, and the second is that the importance of juridical value in his analysis of legal theory follows naturally from his basic social theory - "society is a valuable reality". Let us first consider the problem of law as a substitute for natural law: "..... Determining the rightness or wrongness of law means judging the content of a given law in terms of a higher standard of value ... the rightness of law can mean nothing other than a moral evaluation.... The rightness of law therefore means only a relative rightness in a particular historical situation and not an absolute value. The mistake of the conception of natural law is that it has not come to this insight" (Moór 1994:247-248). A little later, he clarifies law in contrast to natural law: "But law also differs from natural law in that natural law did not care about reality and often set up unrealisable claims as the ideal of natural law, whereas in law the question of unrealisability does not arise, since law is a real existing propositional law. A given law can be right or wrong depending on the extent to which it fulfils or fails to fulfil the norm of rightness" (Moór 1994:254). Thus, there is no other "higher law" above the right (or wrong) law, but only different ethical standards of value, which can be numerous and contradictory. According to Moór's own understanding, this standard of value can only be a moral standard of value - he rejects naturalistic or evolutionistic standards of value - but he points out that because of the great differences in moral concepts, a multiplicity of standards of value is possible: "On the question of the moral standard of value to be applied in assessing the rightness of a right, scientific legal philosophical enquiry can do no more than consciously indicate the moral conception it applies in evaluating the right" (Moór 1994:252). Another aspect of Moór's legal theory of value and his analysis of law is that, following Rickert, he conceives of society as a "valuable reality" and thus assigns a prominent role to the realisation of value in law as a social phenomenon. Hence his emphasis on the politics of law as a critique and evaluation of law as such, which, as already indicated, he sees as carried out along ideal values and goals. Thus, the overall picture of the constituent elements of law emerges from his analyses, about which he writes in the last pages of his 1945 life summary, according to which law is a unity of intellectual content (jurisprudence), values (legal policy) and their causal realisation (history of law, sociology of law) (Moór 1945:61). This multi-layered conception of law can be criticised in two respects: Moór thereby incorporates legal dogmatic categories too much into the intellectual content of legal norms and thus deprives them of their independent functional capacity and further development; his other mistake is the exclusion of the legalpolitical struggles of interests and institutions from the analysis and, at the same time, their excessive inclusion in the sphere of ideal values and the regulatory models de lege ferenda that arise on this basis. 192 In summary, Gyula Moór's understanding of law centres on the state creator of substantive law and its free decision; it recognises legal dogmatic activity as subordinate, and this too is narrowly thematised, as he assigns part of it, the sphere of de lege ferenda proposals, to legal policy; it sees the openness of law to the moral sphere also embedded in legal policy evaluations and critiques; and finally, it brings causal reality into the understanding of law as environmental condition. Overall, his conception of law can be described as strict legal positivism, with the strongest commitment to the judiciary of free law, but to a lesser extent also rejecting legal dogmatic positivism. 3.2.2. Barna Horváth's theory of law Alongside Gyula Moór, Barna Horváth became a renowned Hungarian legal philosopher in the decades between the two world wars, who also attracted attention in international legal philosophy. At the beginning of his career, he was supported by Gyula Moór - as well as by Bódog Somló - who crowned his academic support and the mediation of his international contacts by appointing Horváth Barna to the post of professor of legal philosophy at the Faculty of Law of Ferencz József University in Szeged, after he had been appointed professor at Péter Pázmány University in Budapest as Bódog Somló's successor. This good relationship soon deteriorated and led to a profound enmity between them, for which three causes can be reconstructed in retrospect. The immediate cause of the deterioration in relations between the two legal philosophers was that Moór accused his former student of plagiarism, for the idea of correcting the concept of law and society based on the rigid separation of being and ought, which Moór had already developed in the early 1920s to overcome neo-Kantianism, was taken up by Horváth with a different solution and made the basis of his "Sociology of Law", published in German in 1934, which he presented to international experts. Moór felt that his former pupil had thereby committed his own long-standing intellectual labour, for although it was known in domestic professional circles that he had already worked in this direction, it was only through Barna Horváth's lecture that this idea became known to the German and wider public. However, this personal conflict developed into an irreconcilable opposition between them because two much deeper differences arose. The first was a conflict over political values, the second was the increasingly obvious contrast between their narrow views of the law. The political contrast was that Moór placed the national-Christian organisation of the country at the centre of his political creed, while Horváth, on the one hand, sympathised with left-wing, socialist ideas, and, on the other, was rather indifferent to the problems of the national community and more open to cosmopolitanism. This was probably the deeper reason why Gyula Moór's action against Horváth, which in some respects was actually suspected of plagiarism, was inexcusable for him. While Moór explored the problems of legal theory on the basis of a strictly legal positivist conception of law, Horváth increasingly focused on the development of judicial law in the free school of law and the role of political-moral public opinion in the making of law. It should be recalled that the intellectual climate in Hungary at the time favoured Gyula Moór and the rapid career of Barna Horváth, who was described as a cosmopolitan, came to a halt in the second half of the 1930s. It was probably due to the instability of Horváth's personality that this external cause also disrupted his inner intellectual development, and the young legal philosopher, who had started out extraordinarily productive, published only his earlier works, but there was no sign of any intellectual progress. His entanglement in political life after 1945 and his emigration to the West after the Soviet revolution in 1949 brought his intellectual development to a halt, and he produced no more legal theory than a few reviews in German and American journals. The last 35 years of the life of the legal philosopher, who was 77 at the time of his death in 1973, can be neglected, and it is the works written between 1926-37 that are of interest for analysis. Three books deserve special attention. With "The Nature of the Moral Norm", published in 1926, the young scholar made his breakthrough in Hungarian intellectual life at the age of barely thirty. Gyula Moór, who was enthusiastic about his high level of writing, arranged a position for Horváth as a private lecturer at the law faculty in Szeged and immediately afterwards provided him with a scholarship in Vienna, where he received a position with the world-famous Viennese legal philosopher Hans Kelsen. A few years later came the support of Kelsen, with whom Barna Horváth spent a six-month scholarship in London in 1929 (cf. Horváth 1993:70-71; Zsidai 1996:10-19), which enabled him to study the latest German, English, American and French literature and bring it home for processing. His two other main 193 works were his "Sociology of Law", published in Germany in 1934, and his "Grundriss der Rechtstheorie" (1937), in which he developed it further with a thoroughly legal-theoretical theme. He also published an extensive book entitled "English Theory of Law" in 1943. However, the actual drafting of this book dates back to his study trip to London in 1929, and its publication was delayed only due to publishing difficulties. On the other hand, there is no more theoretically exciting material from him in this book, which can rather be regarded as a collection of descriptive texts. In the analysis we will therefore leave the latter aside and concentrate only on the three works mentioned above when examining Horváth's theory of law. Before we begin a detailed analysis, it should be noted that these three books were written over a period of more than ten years (1926-37), and although some intellectual developments can be discerned in the compilation of the results of the three volumes, they are not overly significant, and the three works can be regarded as complementary. Therefore, it is not necessary to discuss them in chronological order, but the thematic connections can be focused on in the following analysis. 3.2.2.1. On the nature of social existence Barna Horváth, like Gyula Moór, based his analysis of the nature of society and law on neo-Kantian philosophy. Moór, on the other hand, drew his foundations from the South German school of the NeoKantians, especially from Rickert's analyses - and later synthesised them with Nicolai Hartmann's theory of the sphere of being, which was based on the New Hegelian school - and was thus able to formulate the social sphere of being as a connection between natural reality and values and ideas. Horváth, on the other hand, took his cue from the other neo-Kantian school, the Marburg School, and began his analysis of society and law in the light of the strict separation of natural reality and values. However, he also sees that in social phenomena, causal reality and values or ideas are interwoven, so that while he starts from the first step of establishing their separate objectivity, he takes as the second step the "Zusammenschau" or "synopsis" or, in other words, the "synoptic" conceptualisation of the separate objectivities. His whole concept of society derives from this perspective. His whole theory is nothing but the "looking together" of two separate spheres and the constant assertion of the necessity of separateness. One could say that in this way, although all his efforts are directed towards overcoming the neo-Kantian separation of being and beingness, and all his critical analyses emphasise the negative consequences of this separation, for example in relation to law, he himself has always remained a prisoner of neo-Kantian assumptions. It so happens that, despite his frequent references to Rickert and Nicolai Hartmann, he does not even touch upon the idea of social existence, the concept of "valuable reality" as an independent being, in developing his own conception. Thus, in their attempt at transcendence, the neo-Kantians share with Gyula Moór the fact that in terms of content they profess the cooperation of ideas and values with causal reality, but whereas Moór consistently rejects the idea of the complete separation of the two spheres and conceives of social existence as an independent, unified reality consisting of different components, Horváth sees the two spheres, conceived as separate objects of cognition, only as objects of thought. In terms of content, however, they often say the same thing, despite Horváth's "synoptic" expression: "... law is not an object of cognition, but a way of looking at and socially objectifying norms and facts, i.e. mutually exclusive objects of cognition, in a certain scheme of constant mutual relatedness. This is the basic idea of the synoptic method. That is, it is not component (synthetic), but merely co-extensive or congruent (synoptic) (Horváth 1937:VIII). To sum up, Horváth remains entrenched in the neo-Kantian dichotomy of being and ought, but ultimately transcends it in the same direction as Gyula Moór did before him. One could also say that Gyula Moór did not go further here, because he did recognise social being as interwoven with intellectual and spiritual content, following Rickert and Hartmann, but since he did not recognise the intellectual systematics of this content and its consequences, he did not go further than Barna Horváth did after him. Horváth, of course, had no chance to do this because of his attachment to the neo-Kantian starting point. 3.2.2.2. Social norms and the moral sphere Although this part of Horváth's theory is essentially concerned with the contexts beyond law, these 194 analyses become important at the points where law interacts with other social and moral norms. The starting point of the relationship between moral values and the social normative world in this theory is the separation of the sphere of logical validity, moral material values and finally causal reality, and after the separation, the conception of these in the "ethos" as an independent component of the ethical sphere. Let us look at the relevant passages by Barna Horváth: "As long as we consider ethos in direct experience, we do not need the logical sphere. We can experience ethos in all its fullness directly without having to resort to logical functions. It is just that we cannot claim objectivity, validity, for this ethos that is only directly experienced. If we imagine the ethos, which has already been recognised as objective and valid in the logical sphere, as if it were relegated to a state of mere alogical experience, we have before us the image of a validity deprived of its objectivity (...) The ethos is fully realised through the three spheres: the spheres of validity, value and the normative, and... the meaning of the three spheres in the meaning of ethos is entirely the same (.... ) Validity was identified as the 'logical air' of ethos, and as the particular fundamental phenomenon of moral value we identified the non-sensuous matrix of value as opposed to pure cognition.... Validity is opposed to pure consciousness, value to pure intuition, norm to the psychic reality of flesh and blood man. In this picture of the ethical sphere, then, the separate logical sphere and the moral sphere of values given in immediate moral intuition stand above the human being living in causal reality, and the objective validity of the latter is established only by "immersing" them in the logical sphere and thereby "refining" them with logical reason. Logically reworked values become norms, moral norms, when they are formulated as obligations and commands towards people with opposing wills in real life situations. The moral norm thus has both moral value and logical validity. In approaching law, we need to address the difference and interrelation between moral and empirical social norms. In a first approach, we can characterise the latter as a further reduction of the incentive of pure values in relation to moral norms, and in contrast, as a further increase of the determinative power of the contexts and laws of (causal) reality. In these norms, the value reference is only present as a "root value" (Horváth 1926:123). These norms include social customs, linguistic rules, rules of fashion, rules of the game and finally laws. In these empirical social norms, such as law, moral values are present only by reference, but these references not only separate law and other norms but also link them to moral values, according to Horváth. In the case of law, the locus of this linkage is found in the effect of positive morality on law, which flows into law as "free law" through the gaps in law. Let us look at Horváth's description of this: "At the beginning of the phenomenological sequence is the moral norm, which is distinguished ... from absolute value ... by its relation to reality ... Conscience (which is a sense of the positive moral norm) follows in the phenomenological sequence, which ... independent of our will (and) cannot contradict our best beliefs, but necessarily agrees with them...Third in the phenomenological order is positive morality (another meaning of positive moral standard). Our conscience and our retrospective moral conception may differ. We can call aloud for the death of the criminal, but if we should pronounce it under the weight of the sentence, if our conscience speaks, we decide differently" (Horváth 1926:141). The path from the moral norm to the law thus leads via the positive morality that has emerged in external public opinion, which Barna Horváth also calls moral public opinion, and this is the starting point of the process of law-making. This also means that he rejects the idea of an absolute natural law that stands above positive law and recognises it only as a sphere of moral values beyond law. We have thus moved from moral value, via the moral norm and the conscience close to it, to the positive morality of society or, in other words, to the concept of moral public opinion. This latter terminology is introduced in his 1937 book, and the connection of this phenomenon with jurisprudence is clarified by two other categories, "natural law public opinion" and "free law": "Natural law public opinion is that part of moral public opinion which concerns the rightness of law.... Free law, that part of public opinion about natural law which is about to pass into practice, that is, into concrete law.... The influx of free law flows uninterruptedly through the gaps of the law" (Horváth 1937:X). To summarise Barna Horváth's picture of the connections and disconnections between morality and law, we can proceed along the line of moral value -- filtering through logical validity -- moral norm -conscience -- moral public opinion -- public opinion on natural law -- free law -- the law of propositions. In addition to the relationship between law and morality, Barna Horváth also points out that he not only attributes a role in the mechanisms of the creation of law to the customs prevailing in society, but that the rules of written law only become "alive" when they can subsequently become habitual. His complete picture of law emerging from the world of social norms (in the terminology of his works written in the 195 1930s: the system of "social procedures") is as follows: "The oldest layer is habit, whose roots go back to the biological depths to the phenomenon of the automaticity of useful reactions.... But habit is not only the basis of all higher developed procedures, but also their constant companion. Written law is a ius vigens, a living law, only insofar as it exists in practice, insofar as it is a legal custom. Even the most advanced procedure is only a modernised, mobilised custom" (Horváth 1937:30). This description reflects the developmental path of the people of a society that has emerged from nature, which starts from instinctive behavioural reactions and gradually develops out of experience into the habitualisation of reactions and their routinisation, which, after the initial, almost instinctive rigidity, slowly begins to dissolve in the direction of legal revision, in order to move on to the increasingly conscious formation of norms after the stage of the development of customary law. But even a reflexive, conscious world of legal norms can only fulfil its function to a large extent if it becomes habitual. By expanding Barna Horváth's picture of social norms ("procedural order"), the description of written law as a "mobilised and modernised" custom becomes more comprehensible. 3.2.2.3. Barna Horváth's concept of law Horváth calls his own legal theory both synoptic or congruent legal theory and procedural legal theory, and this too is a formulation from two different schools of thought. In the first case, the terminology emphasises the neo-Kantian conception of being and becoming as separate, while the other, procedural legal theory, simply refers to the legal conception of jurisprudence prevalent in the 1930s at the time of writing. We have already briefly analysed the first meaning, which is related to Horváth's whole conception of social theory; here, in analysing his conception of law, we will consider the second problem, which is called "procedural legal theory". "At the heart of the proceduralist conception of law is the idea that law is neither a mere statement (norm) nor a mere fact (factum), but a relation between these two, an abstract pattern of conduct and a corresponding actual conduct. The conceptual relationship between these two is procedure: and social procedure is the generic concept of law. The process theory of law assumes that law can be defined as the most advanced social procedure (...)... law is not a mere norm, but a norm that can be read off from actual valid legal cases that can be made positive in facts - that is, a procedure" (Horváth 1937:V-VII). In this formulation, the problem of the neo-Kantian dualism of being and becoming largely disappears, and we have before us the juristic case-law approach as formulated by the free jurists in Europe and the Legal Realists in America: Law is constituted by norms that are concretised in the situations of processes and the process of concretisation itself, and not simply by abstract laws promulgated as propositional law. The classification of Horváth's theory of law in the legal case law approach is also confirmed by his analyses of the connections between legislation, law enforcement and legal interpretation. Let us look at the most important passages: "... legal doctrine is not yet complete law, and therefore law always has a fragmentary sense and a sense that still has to be completed. The practical jurist is never interested in an abstract, abstracted meaning of law, but only in its concrete meaning relevant to a particular case.... The criterion which (...) guides the logic of jurists is none other than public opinion in natural law. Law is shaped by the whole social community through the vacuum of law, but not directly, but through the social processes most directly concerned with law.... Legislation is not a mere creation, it did not come out of nothing.... This great truth is expressed in the common basic idea of the historical school, the English common law doctrine and the free law school, that law cannot be 'made' arbitrarily..., that law is not actually created, not created, but merely 'found'" (Horváth 1937:174-178). From this long quotation, Horváth's conception of legislation and law-making becomes clear, especially if we recall what he said a few pages earlier about the relationship between moral norms and legal norms. This conception of law implies both closure and rejection in two directions, while in two other directions it explicitly opens up the freedom to dispose of law. On the one hand, it is open to the moral public opinion of society as a whole, expressed as free law, and on the other hand, it is open to the judiciary, which is empowered to incorporate the free law "extracted" from public opinion into concrete law. In contrast, Barna Horváth's concept of law is closed and rejects the state legislator, and by denying the possibility of conscious ("made") legislation, he allows him only "injustice". Not explicitly, but implicitly, however, the above quotation already refers to the rejection of the making of law by the legal dogmatic activity of jurisprudence. "The criterion that guides juridical logic is none other than public 196 opinion about natural law", Horváth says, "and not the convoluted conceptual dogmatics that stand behind the law", we could add the unspoken second half of the sentence here. This rejection can be found in his 1934 work. Let us take a closer look at the relevant passages: "Legal logism ... is the logical error of supposing that one can anticipate subsequent experience by means of concepts abstracted from experience ... Logicism is logical dogmatism, logical natural law ... Legal dogmatism is the specific branch of legal dogmatism, joglogism, which treats positive historical law as timeless generality asserted without presuppositions or proofs. Legal dogmatism neglects the historicity, the spatio-temporality and the changeability of historical-spatio-temporal-changeable law, and in comparison to the timeless validity of the general legal act, it especially ignores the unrepeatable uniqueness of the legal act" (Horváth 1996:84). In this theory of law, legal dogmatics only plays a role as a "dogma critique", and Barna Horváth rejects an "abstract dogmatics of meaning" as opposed to the uniqueness of law in individual cases. In an intellectual counter-reaction to the phenomenon of legal life dominated by legal dogmatics in the second half of the 19th century, Horváth even rejects legal dogmatics, which was retained by Gyula Moór in a subordinate role, in the ex post role of systematising legal doctrines, and allows its limited functioning only within the framework of a case-oriented legal perspective.... the recognition of the dogmatic interests of jurisprudence is only harmless if it allows the hindsight of jurisprudence to be unrestricted, if the dogmatic conclusion is regarded as fully valid only in its verification of jurisprudence..."(Horváth 1996:130). It seems worth mentioning that the elements of Barna Horváth's conception of law - the notion of case law, the minimisation of legal doctrine, the rejection of conscious legislation by state political bodies and the development of law by broad public opinion - correspond to some extent to the features of AngloSaxon legal theory. But even this is not entirely accurate, since here, in addition to precedent law, the increasing role of statute law and written law can be observed, and the legal dogmatic-systematic activity that has intensified in American legal life in particular over the last century is no longer covered by Horváth's concept of law. In the legal systems of continental Europe, however, this legal theory is completely out of place in their understanding of law. We also have little to do with the legal policy ideas of Barna Horváth. Whereas for Gyula Moór legal policy meant the critique of law in the light of ideal values and goals - i.e. the applied field of law - and this excluded research into the institutions of legal policy that (also) take shape in political struggles, Barna Horváth shifts legal policy towards science. " The object of legal policy depoliticised as science policy can only be that which lies between error and truth, i.e. progressive knowledge" (Horváth 1996:322). Of course, some strands of legal policy discussion in this theory of law have no local value, and this corresponds to the fact that law here is closed to conscious political legislation anyway. Finally, it should be noted that criticism of two great figures in Hungarian legal philosophy could be based on the major legal theories that have emerged abroad in the last fifty years (cf. Pokol 1991; 1994 for a discussion of these theories), but it should be pointed out that after the disappearance of Moór and Horváth, the production of legal theories worth analysing ceased in Hungary for many decades and it is only since the 1980s that such works can be found again. They should therefore be treated with the greatest respect alongside criticism. 3.3. The Development of Hungarian legal theory in the decades of the soviet system With the regime change in 1989, an era came to an end. Vysinsky and his "Magyarisation" of Soviet legal theory are slowly being forgotten, and his former representatives no longer play a role in Hungarian theoretical legal thought. As a result of the liberalisation of "Kádárism", however, Hungary was in a certain sense in an exceptional position among Eastern European countries, since from the mid-1970s onwards some legal theorists attempted, in addition to the obligatory citation of Soviet legal theoretical positions - and then their reduction to a minimum - to build up their own legal theoretical concept, which made use of the tendencies of modern civil law theory. Therefore, in our current starting points, we can focus not only on the accumulated legal-theoretical insights of Western legal literature, but also on indigenous "post-Stalinist" legal-theoretical initiatives. In order to compare these with the official legal theory of the 1950s and 1960s, we will first briefly outline the legal-theoretical positions of Imre Szabó, then begin our analysis of the break with "official" 197 legal theory by examining the works of Vilmos Peschka and Kálmán Kulcsár, and finally conclude our analysis by presenting the legal-theoretical positions of András Sajó and Csaba Varga, which matured in the 1980s. It should also be noted that in our legal theory literature we focus only on the contexts relevant to the concept of law and disregard in this brief sketch the legal theory works of both the authors considered here and other theoretical jurists not mentioned here who are not directly concerned with this topic. 3.3.1 Imre Szabó and the "official" theory of law It can be seen as a certain stroke of luck of Hungarian theoretical legal thought - under the conditions of total state and ideological control from the 1950s onwards - that Imre Szabó, who was educated in the previous system and thus a qualified, linguistically gifted man, became the main holder of the most important academic-political and power position in the field - and remained so for almost forty years. When the liberalisation of the Kádár regime at the end of the 1960s reduced the tight control of power over the social sciences, this limited liberalisation was able to spill over, at least to some extent, into theoretical legal thinking, and if this was not enough to produce pronounced "dissidents" - as was the case in philosophy and sociology at the turn of the 1970s - certain initiatives were possible. On the other hand, this continuity of "managerial jurisprudence" until the mid-1980s can also be seen as negative, which is why there was no major break with official Marxism-Leninism in this field. While it would have been absurd in philosophy, but also in economics and historical studies since the early 1970s, to sell mere repetitions of the teachings of the official ideology as science, the prevailing tone in theoretical jurisprudence and political science remained rather shaped by the official ideology. This aspect of the continuity of the "leading jurists" should not be forgotten either. Perhaps the clearest exposition of Imre Szabó's positions on legal theory can be found in his 1960 monograph "Interpretation of Legislation". Although his later work of a synthesis nature ("The Foundations of Legal Theory") was published in 1971, it is - at least in our opinion - so interwoven with the official Marxist social theory theses of the time that the 1960 work better reflects the clarity of the concept of legal theory. And this concept of legal theory can be defined as a "decisionist" or, in other words, a "text positivist" concept of law. Imre Szabó's ability to pose and answer the fundamental question that has been relevant ever since in a certain direction to support this concept shows the outstanding level of his thinking. He traces the answer to the question "What is law?" back to an underlying question, making the correspondence between language and thought the basis of his answer. Those who say - and this is their starting point that language is fundamentally capable of expressing thought will find law itself in the text of law, but those who deny this and see the linguistic expression of thought as an approximate indication of it will seek law outside the text of law. Imre Szabó's dissociation reveals a profound insight. The last 30 years have been a triumph of hermeneutics in the social sciences, and it is precisely in answering this question that he has laid this multi-layered foundation and demonstrated the fragmentary expressiveness of thought and opinion formation through the means of language. This results in the basic statement of hermeneutics: the 'fixed meaning' of thought can only ever be reconstructed in retrospect from the written text after a long reconstruction and always only fragmentarily, in retrospect - again and again (cf. Gadamer 1984; Habermas 1973). In 1960, however, Imre Szabó answers this fundamental question with the opposite sign and optimistically sees, based on Stalin's views on the theory of language, that the results of thought can easily be expressed and recorded linguistically - the legal texts are thus the authentic oracles of law. In addition to the linguistic foundations mentioned above, Montesquieu's concept of law also supports this conviction. At the beginning of the development of bourgeois law, which had a relatively high degree of democracy, this concept of law was still dominant, the author notes, but with the development towards imperialism, respect for law increasingly receded into the background and Montesquieu's "beautiful idea" was replaced by the legal concepts of judge-made law and natural law. Imre Szabó provides the explanation for this change by quoting Engels: the letter of bourgeois law obscures its class element, so that the respect for law emphasised by Montesquieu cannot necessarily prevail there. The judge of bourgeois law can only apply this "concealment of the letter of the law" by reinterpreting it, by revealing 198 the "class principle" behind the appearance of the text. It is this bourgeois characteristic that leads to concepts of law that seek law beyond the text of the law, for example in judicial practice. However, the decline of respect for the law and the recognition of judicial law in the development of the liberal school inevitably led to the arbitrariness of fascist law, Szabó argues (18 p.). From this arises the socialist conception of law. For here the class element is not hidden behind the letter of the law; proletarian law clearly shows its class element. The beautiful dream of Montesquieu can thus finally be realised here: the maximum respect for the text of the law and the submissive subordination of judges to these texts (ibid. 26 p.). In this way, the importance of legislative interpretation in socialist law is also reduced, and this reduction is reinforced by the fact that socialist parliaments have discarded the ponderousness of bourgeois parliaments in the field of legislation. The revolutionary legislature is reluctant to discard obsolete laws and makes new laws whenever it seems necessary. Imre Szabó's legal view is well illustrated by his position in the debate between the "objective" and the "subjective" theory of interpretation. In contrast to the "subjective" theory of interpretation, which focused on the "empirical, historically demonstrable will" of the legislator, the German Joseph Kohler, Karl Binding and Adolf Wach at the end of the last century focused on the "objective" theory of interpretation in the light of legal principles and legal concepts expressing the legal system as a whole, which was a logical consequence of the concept-centricity of the pan-Danish conception of law that prevailed in the second half of the last century. Imre Szabó, on the other hand, derives objective interpretation from the peculiarities of bourgeois law with its "hidden class element", since in his view the general principles of law express the true essence of bourgeois law - and their role grows with the advance of imperialism. The objective theory of interpretation, which goes beyond the text of the law, is able to capture with it the "naked class interests" and commands the judge to apply them in individual cases (Szabó 1960: 67). Thus Imre Szabó rejects the interpretation of legal texts in the light of the law as a whole and tends towards a subjective theory of interpretation, but - and this also indicates a strong text positivism - he rejects the excessive deviation from the text in search of the "historical will" of the legislator as an abuse in the other direction: The will of the legislature - through the ability of language to authentically express thought - is to be found in the text of the law itself. Therefore, it is also an abuse to reinterpret the legislative text in the light of the materials of the drafting process. His main criticism is of course directed against the objective theory of interpretation, and he gets into an interesting debate with one of the leading Hungarian civil law scholars of the time, Miklós Világhy. In a 1959 university paper, Világhy adopts some of the positions of German "evaluative jurisprudence", which had continued the objective theory of interpretation, and counts the analysis of legal texts in the light of legal principles among his starting points. Imre Szabó, who criticises this, points out that this can only be accepted if the legal principles expressed in the legal text itself are also expressed in the legal text itself (Szabó 1960: 108). The law is thus synonymous with the legal texts, the interpretation of which, beyond the elementary grammatical and logical phase of interpretation, can only point to the historical will of the legislator. However, too much "liberality" in this direction is also to be criticised. Imre Szabó also departs from the subjective theory of interpretation by not emphasising the importance of the "origin" materials (the preparation of the law) in researching the historical will of the legislator, but considers interpretation in the light of the current will of the Labour Party as the correct direction of researching the legislative will according to the "unvarnished class fact" of socialist law (Szabó 1960: 220-221). In The Foundations of Legal Theory, published in 1971, we can discern certain shifts in Imre Szabó's conception of law. We can briefly summarise the nature of the shift by emphasising a certain degree of dissolution of the earlier positivism of the hard texts. On the other hand, the foundations of social theory also change, as the earlier Stalinist-Leninist theorems are replaced by Marxian and Hegelian social philosophical theorems. Indeed, the internal analyses of law are often replaced by analyses of Marx's overarching social theoretical theses, whereas in the earlier 1960 work a greater role was given, albeit in a disparaging style, to the analysis of modern lawyers. In contrast to the previous ones, hard text positivism is presented here as a position to be rejected, indicating the "normativist" view of the criticised Vysinsky, but in addition to this declarative rejection, different substantive positions also emerge in the analysis of certain details of the law. Here, in the description of the application of the law, the naive Montesquieuian concept of the "mouth of the law", positively cited earlier, is now condemned as an image of the mechanical application of the law. Imre Szabó then discovers the central thesis of the German Karl Engisch, described almost two decades earlier, 199 about the judge's "back and forth shifting of gaze" and the process of mutual convergence of case and law: "the so-called individual case is not in its rawness, but already legally filtered, "evaluated" and thus generalised to a certain extent" (Szabó 1971: 124). The hard text positivism of Imre Szabó was thus dissolved in 1971. But in which direction did his concept of law shift? In the second half of the last century, the departure of French legal theory from the similarly hard text positivism of the "ecole de l'exégese" led to a turn of Léon Duguit's concept of law towards the regularities of everyday life, just as the German Eugen Ehrlich's concept of law shifted towards "living law" in the same period. For François Gény, the search for the centre of gravity of law shifted to "legal techniques", legal principles and legal concepts that express the specific logic of law. For the Germans, too, this shift took place, on the one hand, towards the "sociology of law", towards judicial law and everyday practice, and, on the other hand, towards the development of an "evaluative jurisprudence", towards the inner principles and legal concepts of law (cf. in detail Fikentscher 1975: 443456; Larenz 1979). Imre Szabó rejects both directions, and neither the "sociological direction of law" nor the inner conceptual and legal world of law can be accepted by him. In his critique of Ehrlich's "living law", he writes that the non-observance of a law does not mean that the rule no longer exists. "This may be a fact of legal life, but it cannot be a principle of legal theory" (Szabó 1971: 152). His concept of law is also closed to comprehensive legal concepts and principles. He finds a way out in Marx's social theory, and in his search for the essence of law he returns to the relations of production": "... The state creates law, but it does not create it because in its content, as a social relation, as "property" or even as a political power relation, it has already been created, historically created before, it "already exists" (Szabó 1971: 182). The same is evident in his attempt to break out in a different direction by trying to shift the focus of the functioning of law to legal consciousness. In doing so, he seeks the role of legal consciousness not in the direction of the inner conceptual, legal-principled order of law - and the activity of the professional law bearers (lawyers) - but in the context of class and everyday consciousness. (Imre Szabó 1971: 200) One could also say that Imre Szabó's analyses of legal consciousness reproduce Savigny's former "popular spirit" and its jurisprudential "replica" in a kind of Marxist vocabulary. Let us look at a vivid quotation: "Seen in this way, jurisprudence in its generality is the principle expressor, formulator and at the same time the "reintegrator" into society, the shaper and disseminator as legal ideology of the conception of law that society carries within itself parallel to positive law. For jurisprudence, legal consciousness is in a sense a raw preliminary stage, a body of consciousness waiting to be shaped; at the same time, however, it is itself an active, influencing shaper of general legal consciousness" (Szabó 1971: 261). As is well known, the concept of law going back to Savigny's "popular spirit" increasingly developed via Puchta and Begriffsjurisprudenz into a concept of law that found the specificity of law in the legal dogmatic order, and from there evaluative jurisprudence in the Germans developed - and critically - a complex, multilayered concept of law by the end of the 1950s, and the French school did likewise in the succession of Francois Gény. Imre Szabó, however, was uncritically closed to this line of development of modern "bourgeois" legal theory. 3.3.2. Attempts to go beyond the "official" theory of law Vilmos Peschka can be considered one of the first initiators of the break with the positions of "official" legal theory in Hungarian legal theory. Peschka drew on the general social theoretical views of György Lukács and later attempted to transfer Lukács's analyses of the specifics of aesthetics analogously to the analysis of law in order to formulate the specifics of law there. (See in particular Peschka 1965, 1972, 1979, 1980; 1988). In this approach, law is not seen simply as a (textually fixed) decision of the state, but as a specific form of action, as the result of a "legal homogenisation" that is not an aesthetic homogenisation. Peschka's early efforts in this direction culminated in the mid-1980s in a study of legal hermeneutics (Peschka 1986), which most clearly challenges the earlier pure "text positivism" of official legal theory. However, in examining the particularities of law in Vilmos Peschka's analyses, we believe that some problematic starting points emerge that have in some ways distorted his analyses. For Peschka, one such problematic starting point is the conception of jurisprudence - both in terms of the unproblematic assumption of the "scientific nature" of this activity and its relationship to practical 200 legal activity. In the last century and a half, the question of the scientific or more doctrinaire legal dogmatic character of jurisprudence has been raised several times (see Jerusalem 1948 for a summary of these debates; Sajó 1983). Apart from this question, most of European academic jurisprudence is indeed engaged in doctrinaire-legal-dogmatic activity, and this and its respective results, with a reduced implementation and transformation, live constantly together with the application of jurisprudence and especially with the judgments of the higher courts. Vilmos Peschka, on the other hand, takes the characteristics of science in general - or György Lukács' analyses of science - as his starting point when writing about jurisprudence, and the emphasis on the doctrinaire-legal-dogmatic side practically disappears from his analyses (see, for example, Peschka 1980: 215-334). In our view, this starting point proved fatal to Peschka's analyses of the specificity of law, because it prevented him from really grasping the "juridical homogeneity" he had adopted from Lukács' writings on the specificity of aesthetics, and replaced the specificity of law with general theories of science or the internal structure of legal practice with derivations from general social practice. Kálmán Kulcsár tried to go beyond the "official" theory of law in another direction, namely that of the sociology of law. Since the 1960s, Kulcsár tried to gain a deeper insight into the functioning of law by analysing the sociology of law in the post-war period, and his central experience was the analysis of the interrelations between the "paper law" created by mere state decision and the regularities of everyday life (Kulcsár 1976). Imre Szabó and the "decizionism" of official legal theory, the unhindered and rapid "Leninist legislation", are cautiously opposed in Kulcsár's work, although - as was generally typical of Hungarian social sciences in the decades of the state party - there is no explicit confrontation with the positions of official legal theory in Kulcsár's work either. Ehrlich's "living law" in contrast to the "paper law" of the state or Roscoe Pound's distinction between "law in book and law in action" play a central role in Kálmán Kulcsár's sociology of law. Just like the question of the "change gap" between these two layers of law, the possibility of a law dependent on state decision to break away from the regularities followed in everyday practice is emphasised here, following Pound (Kulcsár 1976: 139). Compared to the everyday norms followed by the masses, the state's goals that deviate from them can only be carefully translated into the required rules of conduct, otherwise the law becomes bloated and becomes a paper law. State supremacy over law can therefore only be accepted within narrow limits. These analyses by Kulcsár addressed the binding of law to the norms of everyday life, which has influenced Hungarian legal theory in recent years. Perhaps the only criticism of Kulcsár's sociological writings on law can be that the inner layers of law, the relations between legal professional activities, are left out of the analysis and law is only thematised as "state law" in contrast to everyday practice. However, the aspect he highlights can easily be integrated into a complex theory of law that is able to capture the interrelations between the professional levels of law and everyday practice. The work of András Sajó also marks - after the initiatives of Kulcsár and Peschka - a departure from the positions of official legal theory in the second half of the 1970s. In particular, his small monograph "A Critical Treatise on Jurisprudence" from 1983 contains special emphases on the internal structure of law. His sceptical attitude towards the role of law as an instrument represents a fundamental departure from "official" legal theory. "He opposes the thesis of 'law as an instrument of political ends' from the point of view of the specific rationality of law (Sajó 1983: 164; 1980: 15) and attempts in a series of analyses to show the components of the formal rationality of law. A further departure from the text positivism of "official" legal theory can be observed in the sociology of law initiated by Kulcsár: The norms created in the legislative process are only realised through the context of the world of norms in society as a whole, which soon shows the limits of state arbitrariness (Sajó 1980: 74-91). However, in our opinion, Sajó's truly original thought in the Hungarian legal theory literature concerns the internal structure of jurisprudence and its relationship to the functioning of law. He goes far beyond Vilmos Peschka's analysis of the integration of jurisprudence into the overall science and, denying the scientific character of contemporary jurisprudence, brings academic legal activity into a closer relationship with legal practice (Sajó 1983: 105-126). In Sajó's approach, doctrinal-legal dogmatic activity becomes the focus of contemporary jurisprudence, with particular emphasis on the importance of legal dogmatic activity, which has become indispensable with the increasing complexity of legal systems (Sajó 1983: 118). It is only regrettable that Sajó's insight ultimately remained unrealised for a long time, both in his own work and in the works of other scholars of Hungarian legal theory. Yet Sajó even establishes - albeit in a somewhat piquant footnote - a connection between the problems of "legal homogeneity" highlighted by Peschka and the problem of legal dogmatic homogeneity emphasised by 201 Niklas Luhmann (ibid., p. 171). The peculiar way of breaking away from the "official" legal theory was practised by Csaba Varga in Hungarian legal literature. In the 1970s, one can detect in his writings an "exaggeration" in the direction of instrumental legal theory - in a style that consciously adopted the instrumentalism of official legal theory. Law is an instrument of politics - as Csaba Varga explained at the time - and he focused on the function of the preamble of laws and the ministerial justification as an expression of the political goal. Likewise, for him, the historical development of codification in conscious state legislation was still at its peak (Varga 1979), and in 1980, in an extensive essay, he welcomed the controversial book by Philip Selznick and Philippe Nonet, in which, enthusiastic about the political instrumentalisation of law, he recommended a profound reorganisation of legal structures (Varga 1980). Compared to the milder instrumentalism of "official" legal theory, this "traditionless overwhelmingness" increasingly disappeared from Vargas' work from the turn of the 1980s. Just as perhaps Jhering's radicalisation of conceptual jurisprudence - to make Puchta's conceptual jurisprudence consistent - was once brought about by a sudden shift to the starting points of interest jurisprudence, a sharp turn can be detected in Csaba Varga's work from the early 1980s onwards. The beginnings of this turn seem to lie in a 1978 study in which, in exploring the nature of the application of law in contrast to the image of the mechanistic legislator, the emphasis is on complex interactions, on the relationship between the law and the individual case (Varga 1979: 345). A few years later, the same line of thought emphasises the more comprehensive character of the overall structure of law as opposed to statute law: 'However provocative or even shocking it may seem.... Law is not simply a synonym or even a logical projection of sentence law. Law is something that always arises out of propositional law, something that is constantly formed anew through the medium of propositional law (Varga 1982: 479). The complex character of law, its "multi-layeredness" beyond the textual level, appears in a 1986 essay as the relationship between mere "formal validity" and "validity in wider spheres of law" (Varga 1986: 1-6). Finally, the clearest expression of his striving for a multi-layered concept of law is found in an article from 1988: "... the living practice of law.... has moved from the centre of interest, and in its place the text has become a demiurgos. And of course it cannot remain without consequences if the textual treatment of texts - legal dogmatics - becomes the leading branch of jurisprudence. In other words, the whole life of law became more and more regarded as an almost mechanical consequence of a text enacted with sufficient formality, while the actual social presence and effect of the institutional legal system became theoretically irrelevant." (Varga 1988: 54) Of course, legal dogmatics is too intertwined with the legal text here - and in this respect András Sajó's 1983 analysis is far more pertinent - but Csaba Varga has brought to the fore here, with exceptional awareness, the need to explore the legal text and the wider layers of law. 3.3.3. Towards a complex theory of law In the second half of the 1980s, the transcendence of "official" socialist legal theory moved from the textual level of law to legal hermeneutics with Vilmos Peschka; Kálmán Kulcsár emphasised the connections of "state law" with everyday practice; András Sajó brought to light the connection between the textual level and legal dogmatic activity; and finally, Csaba Varga arrived at the concept of a multilayered law. However, these solutions run side by side and to some extent in opposite directions. An example of this is Sajó's and Peschka's opposing views of jurisprudence, or the fact that Csaba Varga, unlike Sajó, is too concerned with legal doctrine at the textual level of law. In a complex theory of law, the above-mentioned starting points of legal theory can, in our view, be integrated if one consciously separates 1. the level of law over which parliamentary politicians decide; 2. the doctrinal-legal-dogmatic level administered by scholars and members of the higher courts; 3. and the judicial casuistry, which represents the fund of decision-making maxims, the normative decision-making reference points close to the case, which result from judicial jurisprudence. These three layers of law on the European continent - and to a certain extent in the modern American legal system - together form the legal system of a country in a mutually presupposing, complementary and corrective relationship. The mere doctrinal-legal-dogmatic development of law, if it dominates the law by pushing aside the legal maxims and parömia (legal proverbs) of judicial casuistry, can only create "jurisprudential monstrosities" - such as the German Begriffsjurisprudenz that dominated in the second half of the last century - that 202 cannot be applied to jurisprudence (cf. Coing 1960: 7). But it is also a distortion if judicial casuistry alone dominates legal life and law breaks down into a multitude of "rules of thumb", "judicial maxims", as exemplified by French legal life at the end of the last century (Dawson 1968: 398). The ad hoc judicial maxims that have emerged as good solutions for deciding groups of recurring cases still need to be systematised and abstracted in terms of legal dogma, and those that dogmatically contradict the whole field of law need to be eliminated in order to make the emerging body of law case-correct and systematically inconsistent (cf. Esser 1956; Larenz 1979). The ideal relationship between these two levels of law can be described as the duality of legal doctrine, which is connected to the reality of cases through judicial casuistry, and, on the other hand, as the duality of judicial development, which is disciplined by legal doctrine. However, the results of the two legislative levels must go through a further selection process in the politically dominated parliamentary legislature before they can be enshrined in the legal text. The parliamentary legislature has the choice between regulatory alternatives that are appropriate from a legal dogmatic point of view - and that have already been tested in case law. This is where legal politics becomes a function; this is where the legal politicians and sympathetic law professors of the various parliamentary parties begin to approximate the logic of politics to the logic of law and vice versa. Ideally, the legal politician tries to select from the de lege ferenda and de jure dogmatically correct regulatory proposals published in legal journals those that best suit his party's programme and priorities, or he tries to identify the political disadvantages for large groups of society of the alternatives preferred by the legal politicians of the opposing parties. The logic of law is thus already entangled with the logic of politics. But this is the only way that the regulatory alternatives can have a social impact, and the only way that the results of the political programmes - the programme of the ruling party - can influence the life of society. Ideally, therefore, the logic of law and the logic of political priorities should be combined in the text of the law. A distortion of this relationship - i.e. the relationship between political legislation and legal dogmatic products - occurs when politics pushes aside the regulatory alternatives clarified by legal dogma and politicians, as unbound legislators, actually devise legal regulations themselves. This, as we have seen, is the position of "decissionism", also known as hard text positivism. However, a complex legal system cannot tolerate this political instrumentalisation, and before it collapses, the resulting chaotic phenomena force the "sovereign" politicians to respect the logic of the law. This happened in France after the great revolution in the first decades of the 19th century, but after the Stalinist "administration of justice", the logic of law was reorganised to a certain extent in our country from the 1960s onwards. The layers of law are thus the layers of text (legal policy), legal doctrine and judicial casuistry in a multi-layered relationship. These traditional layers of law have been increasingly supplemented in recent decades in Western European countries by the legal layer of constitutional fundamental rights (the major exception is England, where the internal structure of the law precludes the development of abstract fundamental rights as an independent legal layer). European constitutional courts, in particular, have developed a type of fundamental rights jurisprudence that differs from the traditional legal layers because, unlike the original American version, constitutional courts have developed here outside the system of ordinary courts. As a result, human rights, which were developed beyond law as abstract moral principles, were not "tamed" or "emancipated" after their incorporation into the Constitution, but were elevated above the traditional legal strata while retaining their more fundamental character as moral principles. Due to their anchoring in parliamentary law, the regulatory alternatives elaborated in jurisprudence in a systematised-abstract manner do not yet represent an incorporation into the "final process of law", but must subsequently pass through a fundamental rights filter. After a few decades, however, it can be observed in Western European legal systems that the fundamental rights level - as outlined in thousands of constitutional court decisions - is already taken into account in the development of the maxims of judicial casuistry and that solutions obviously contrary to fundamental rights are not disseminated even more as insufficient normative support. Likewise, doctrinal legal dogmatic activity anticipates the possibility of later fundamental rights challenges and further develops the body of rules and the legal dogmatic order of an area of law in the light of the relevant fundamental rights. But parliamentary legal politicians also examine whether the regulatory models they prefer conflict with the fundamental rights level. In this ideal situation, the constitutional fundamental rights - despite their conception outside the law can easily be superimposed on the traditional legal layers. However, this also means that constitutional jurisprudence on fundamental rights must, to a certain extent, adapt to the legal dogmatic order of the 203 legal system of the respective country and only draw on those concrete fundamental rights whose normative content allows for predictable fundamental rights jurisprudence. In summary, apart from occasional distortions, the traditional layers of law in modern legal systems can live with the newly created layer of fundamental rights with some minor or major tensions, and this new development increases the complexity of modern law. In conclusion, we can once again point out that the pressure that existed until recently to adhere to the theses of a uniform, "official" legal theory is over and that, even if the theoretical legal community in the country is small, there is already the possibility of different schools of legal theory emerging. In this theoretical pluralism that has become possible, we must strive to develop concepts of legal theory that take into account this multi-layered nature of law, the relationships between the different layers of law and the linking back of the layers of law worked on by professional lawyers (legal politicians, legal dogmatists, constitutional judges and judges) to everyday routines and ethical norms. Without a greater dissemination of such legal concepts among a broad spectrum of practitioners, the law itself cannot function fully effectively. To use a new insight from modern sociology of knowledge, the false "selfdescription" and unarticulated self-understanding of law in the law-making activities of practitioners provides an unarticulated map of orientation, and this is itself an incision into the complexity of law. 204 Chapter VII German Legal Theory Today Among modern German legal theories, a number of analyses stand out that attempt to theorise the interplay of deeper layers beneath the legal text. To illustrate this, the theories of Josef Esser, Martin Kriele and Karl Larenz, who are among the influential legal theorists of recent decades, are discussed below, followed by the theory of Jürgen Habermas, who approached law from the outside, as a moral and legal philosopher. 1. The legal theories of Esser, Larenz, Kriele From the second half of the 1950s onwards, contemporary German legal scholarship was particularly influenced by the views of two legal scholars, Josef Esser, who favoured judge-made law, and Karl Larenz, who focused on legal dogmatics, both of whom were constantly at odds with each other. Martin Kriele added new aspects to the focus of their theories by concentrating on the individual court decision from the second half of the 1960s. The ideas they developed still determine to a decisive degree the understanding of law in German legal scholarship, even though the tendency towards the "constitutionalisation" of the legal order has already begun to emerge in recent jurisprudential circles in the United States. 1.1. Josef Esser:Textual legal layer and legal casuistry Esser's- book from the mid-1950s (Esser 1956) had an elementary influence on the- traditional positivist orientation of- German jurisprudence. It is almost impossible to find a comprehensive methodological text in the German-language literature that does not subsequently refer to it. The revival of natural law in legal philosophy after the Second World War left dogmatic jurisprudence largely untouched, and only in the struggles over constitutionalism did it have a serious practical impact (Esser 1956:5). In the influential methodological- works of legal theory- the idea of the subversive judge bound by the text of the law has been lost since this time. The term -" application of law" was also discarded as an ideological remnant of the "naive Montesquieu's conception of law" and replaced by the then- more liberal term "finding of law" or "gaining of law" , which better expressed the independent- performance of the legal judge- . However, there is a great difference between the various schools of legal theory as to which layers and activities are considered dominant under the concept of law. The role of (1) the jurisprudential-dogmatic- system of categories and its further development, (2) legal casuistry, (3) the role of legal principles and their further development behind the textual level, (4) but also the primarily ethical starting points play a central role in some analyses . On the other hand the various tendencies also differ in the extent to which they regard thejudiciary as free from the political evaluation of law and- emphasise the above-mentioned elements under the text. -For example, Karl Larenz, who strongly emphasises the decisive role of the legal dogmatic system below the text of the law- , comes close to Esser's ideas. In this, however, their conceptions of law differ fundamentally, in that Larenz emphasises more strongly the dependence of the judge on the political 205 evaluation laid down in the text of the law, while Esser sees this as an expression of a typically totalitarian, etatist conception of law (Esser 1956:54). In this, Esser has more in common with Martin Kriele, but the main difference between them is that Kriele does not emphasise the role of legal dogmatics in guiding judicial decision-making as much as Esser, but that with him the judge is guided by a primarily justificatory evaluation from which he constructs his "norm hypothesis" and then finds an appropriate legal position with this lantern. (In this way, Kriele comes closest to traditional conceptions of natural law, but in comparison to them he is more concerned with developing a rational sequence of steps that makes the judicial decision-making process controllable, rather than simply postulating a seemingly eternal norm over positive law). An important common feature of the views of law analysed here is that they are essentially based on experience in traditional areas of law, including above all private law, with the difference that Kriele includes constitutional jurisprudence, but repeatedly emphasises that he considers his analyses to be valid for the totality of judicial decision-making (Kriele 1975:43). Thus, the stronger political definition found in the corpus of official law can only be judged negatively from their writings: as a- realm of non-law that characterises this corpus of norms as a body of rules that only takes up the forms- developed in thetraditional realms of law, while lacking the props of law: the layer of legal principles, maxims, parömia that transforms legal principles into law, the elaboration of legal doctrine and the judicial casuistry that presides over them. However, where- an independent judiciary is created alongside the bureaucraticapplication of law-, the same thing begins to happen for them that has happened in the traditional areas of law over many decades: a legal casuistry oriented towards principles of justice slowly takes shape, which conveys the- ethical standards of the legal text and those of society-- and, in the case of divergence, approximates them within certain limits -and generalises the evaluative context of each legal text to the level of legal principles, out of which the systematic jurisprudential activity of the- jurisprudence and the legal doctrine legal institutions forms. Once this is established, a "hermeneutic buffer" loosens and shifts between the judge and the political legislator, to which both orient themselves (Esser 1956:234), or, in Kriele's formulation, the formation stage of the judge's independent "norm hypothesis" is established in the respective case decision, and this steps between the judge's decision and the legal text. Both Esser and Kriele discuss the development of labour law jurisprudence in this way, but their view lacks an analysis of the administrative law areas that make up the bulk of today's body of law and in which, despite the development of administrative jurisprudence- , the political determination of the body of rules to implement state- policy goals is more immediate, making it difficult to imagine the- adoption of the "hermeneutic buffer" developed in the traditional law areas. On the other hand- the judicial freedom and further development of law in the area of criminal law, which Kriele in particular but also Esser include in the overall conception of law, contradicts the established, stronger legal binding in this area as well as the elementary legal principles of criminal law: "nullum crimen sine legem", "nulla poena sine legem". Larenz's critique of them, which is more respectful of the political evaluation manifested in the legal text , therefore proceeds from this danger (Larenz 1979:256). However, all the legal theories analysed here break with "formal" law and its merely subsuming image of the judge disciplined by the logic of law. The fact that this calls into question a central principle of Max Weber's conception of law has implications that go beyond legal theory. By separating formal law from substantive law and defining modern law as formal law (which is only subordinately broken by antiformal tendencies), Weber fell victim to the legal positivism that still dominated the nineteenth century (Kriele 1975:186). The rule-boundness of the judge was never as strong as that of the scribe, and in practice- the more liberal evaluative- judicial decision-making dominated even then, but in the intellectual climate dominated by the legal positivism of the time, judges were thus forced to disguise what was actually a freer evaluation by "imitating" purely subsumptive joglogic through the subsequent elaboration of legal positions (Esser 1956:23). The whole concept of the possibility of formal law is thus, according to these views, an abstraction from reality. Esser also openly criticises Niklas Luhmann's theory of law, which develops Weber's formal-material distinction, for separating laws that work with a "target programme" from those that work with a "conditional" programme: According to Esser, a legal corpus described by a conditional programme that specifies Weberian formal law is not possible. "The system-theoretical sociology cannot mean that the enactment of a law creates a conditional programme which, in- contrast to a target programme, forbids the- consideration of the results of a judgement and the anticipation of consequences. Nor can it be said that such a conditional programme allows the judge to consider the results of the judgment only in 206 exceptional cases." (Esser 1970:144; for Luhmann's first elaboration of this typology, see Luhmann 1964:133; for his discussion of legal dogmatics, see Luhmann 1974)). However, this criticism of Esser's overall position can also be described as exaggerated. For he repeatedly emphasises the importance of relieving the judge of primarily legal and social considerations through the legal dogmatic reappraisal and regards every legal development as complete when the legal dogmatic reappraisal and integration into the existing system context has taken place (Esser 1956:310312-). Weber's formal law, Luhmann's conditional programme, demonstrates this with idealtypical clarity, and only in this way does the difference between substantive law and the areas of law that operate with a conditional programme in modern legal systems become clear. For Esser, who strongly emphasises the evaluative aspect, this seems irritatingly one-sided, but in our opinion it misses an important insight into the different nature of the various areas of modern legal systems, as expressed in the distinction between Weber and Luhmann. It is undisputed, however, that when using the categories of formal or substantive law or conditional programme/target programme their ideal-typical character must be taken into account. In the relationship between the political legislator, legal dogmatics jurisprudence -and judicial casuistry, Esser- assigns a decisive role to the latter, legal dogmatics can only systematise it, and the political legislator merely codifies the resulting, fixed norms in the legal text (Esser 1956:310). According to Esser, the coherence between the individual provisions of the- legal text, the systematic coherence of the body of law, is achieved on two levels, which are also not controlled by the political legislator-, but by the- sphere of legal dogmatic jurisprudence, judicial casuistry-: these are the level of legal principles and the level of legal dogmatic categories (Esser 1956:311318 -and 1970:10). As far as the dynamics of the relationship between these levels are concerned, Esser's view can be summarised as follows: If there is no established legal system in an area or if, due to changed life circumstances, the established rules have become unrealistic, judges will fall back on the basic features of the established system of the general legal system on the one hand and on- the guiding standards of the ethical and moral- norms in the society concerned by on the other, -and thus examine a set of decisionmaking criteria in individual case decisions. After a development phase, the- legal maxims and maxims that have emerged from the current, problem-oriented solutions fix the more comprehensive, tried-andtested decision-making criteria, and the life-oriented norms provide the- judges with a- more or lessusable uniform standard. From the judicial casuistry thus prepared and brought to a somewhat generalised level- , legal doctrinal jurisprudence- can develop a more rigorous system by lifting an- overall idea from the- loose maxim law to an even more general level and on the one hand refining it into a legal instrument by systematically ordering the sub-contexts surrounding it and on the other hand integrating it into the overall legal instrumentarium of the law. "The influence of jurisprudential doctrine on the actual practice of lawmaking ... is always indirect. Academic jurisprudence is not the source of law..." (Esser 1956, 311) In Esser's jurisprudential worldview, politics has no place, and the organic development of law through judicial casuistry and jurisprudential doctrine can only be disrupted by political legislation. For Esser, the legal dogmatic culmination is therefore the high point in the evaluation of the individual areas of law, but also of the legal system as a whole. His sympathies, however, are always evident in thepresentation of the structure of the Anglo-American- legal systems, where the development of legal doctrine lags far behind that of continental law and only at the level of the more open legal principles is there a looser unification of the body of law. The reason for his sympathy lies in the fact that Esser too is aware of the impoverishment of content that accompanies dogmatic unification and sees in conceptual jurisprudence in particular the danger that the function of law will be lost and legal techniques will emerge that can no longer grasp and solve the problems of reality if the striving for dogmatic unification gets out of hand. "A dogmatics which, encouraged by a false 'methodological rigour', forbids reference to the 'metajuridical' truths of ethical and social impulses, must be called 'doctrinaire' rather than 'normativist'." (Esser 1956, 316) Legal dogmatism is a culmination in the development of a legal system or field only if it does not destroy the layer of legal principles, maxims and premises that have not yet been dogmatically consolidated, but cooperates with them in finding law and in the interpretation of legal texts. (Although Esser points out that dogmatic systematisation inevitably undermines to a certain extent the layer of legal maxims and norms established and used up to that point, or cuts off the parts that expand the framework of the system in the process of systematisation). Thus Esser describes with great sympathy the more open and flexible legal norms and maxims of the common law countries in contrast to the continental legal systems with some characteristics of "bad" 207 dogmatics. There is, of course, a great difference between English jurisprudence, which is more closely bound to the "ratio decidendi" of precedents tailored to specific situations , and American practice, which is increasingly breaking away from the rigid precedent-binding of the English system (Esser 1956, 183217-). -Although in recent decades a tendency has also emerged in English law towards a- more comprehensive orientation towards legal principles and the interpretation of precedents in the light of these principles-, Esser sees this tendency primarily in American law, where- a good sense of dogmatic elaboration has also developed. (In the area of "unjust enrichment", for example, a unified doctrine of remedies had developed from the earlier scattered actions by the middle of the 19th century). This development, however, does not break the previously developed layer of more flexible topical maxims and problem-oriented legal principles, which is perhaps also due to the fact that the dogmatic development also takes place within the framework of the higher courts and less in academic jurisprudence isolated from legal practice (Esser 1956:211). For Esser, American legal development thus represents the good synthesis, the system that best integrates the legal strata. Karl Larenz is thus right to a certain extent when he comments on Esser's proposed changes to continental law as an approximation of the law here to the common law (Larenz 1979:123). On the other hand, we have seen that Esser only gives this good report card to the contemporary American legal system on the condition that it has harmoniously adopted the- legal dogmatic layer developed in continental law . After a sifting, a non-doctrinaire legal dogmatic revision- not only preserves the layer of previously established legal maxims and principles,- but also highlights from the systematised body of law- the overarching legal principles of a field of law or of the entire legal order- . -Despite their- conceptual neutrality ,-- the legal dogmatic categories- can be traced back to these most comprehensive legal principles (Esser 1970, 143). Esser thus uses the term legal principles in two ways: the legal maxims developed in judicial casuistry in the pre-dogmatic phase and the layer of comprehensive legal principles after dogmatic revision. So far we have emphasised the valorisation of judicial casuistry and the- subordination of legal doctrine- to jurisprudence -in Esser's view of law, and this is consistent with his position in much of his work. In a number of instances, however, he is more balanced. His nuanced position is perhaps clearest -in his assessment of the relationship between- judicial casuistry and legal dogmatic- activity when, in analysing the- French private law practice of the nineteenth century, he speaks of "purely technical" slogans and " maxims tailored to the courtroom", "rules of thumb". The tension between the rigid system of legal doctrine and the changes in life led to the dominance in judicial practice of ad hoc solutions and the maxims that quickly developed from them. "-With the deepening and refinement of the dogmaticconceptual knowledge, such maxims become superfluous" (Esser 1956:318). As we have seen, however, the role of legal maxims and norms, which- have been improved by dogmatic systematisation- , remains indispensable. According to Esser, these are the starting points for the further development of law when new circumstances of life occur that have not been dogmatically processed or when changes render the existing dogmatic system or parts of it inadequate. So what is the legal text in the light of Esser's analysis? It is a layer of legal maxims, norms, legal parodies (legal proverbs) produced and developed by legal casuistry; the- systematic layer of legal dogmatic jurisprudence, which in the- best case raises legal principles to the conceptual level by focusing on the- judicial casuistry and the "first-order"- generalisations it produces , and in the worst case,- as conceptual jurisprudence shows, pushes aside- casuistry and the level of legal maxims to produce a "doctrinaire" dogmatics based on mere abstraction and logical deduction. -In Esser's estimation, a legal system that is dogmatically systematised but also relates its legal maxims and legal principles more closely to the ethical evaluations of society performs best; the harmony of casuistry and dogmatics can only be disturbed by independent proposals of political legislation. 1.2 Karl Larenz: Legal dogmatics and evaluative jurisprudence Larenz's methodology -has educated generations of lawyers (Larenz 1960, here in the- fourth edition of 1979-), so we must pay particular attention to this work if we want to understand the legal approach that is effective in German jurisprudence today. 208 Larenz distances himself from the concept- of conceptual jurisprudence as "subsuming jurisprudence", but the views of Esser and Kriele are for him without further a modern reincarnation of the theories of the freethinkers (Larenz 1979:336). However, if one does not let oneself be seduced by their explicit debates,which often bordered on the personal, especially between Kriele and Larenz, -and if one compares their legal views in terms of content, their views converge. Larenz is closer to Kriele in his respect for the legislature's judgement of the law, although Kriele, having established the legislature's prerogatives in the legislature (and denying its monopoly on it only as Montesquieu's naivety), does not really address the way this is implemented in the judiciary. However, the whole reason-immoralised- conception of law by Kriele- is - far removed from Larenz's conception. Esser-, who calls his emphasis on the role of the legislator a- totalitarian worship of the law , is further away from him in terms of what is law-bound,- but in terms of content there are only gradual differences, a different emphasis between their theories. A common feature of the legal theory of Larenz and Esser is the focus of legal dogmatics on the textual level of law. Indeed, it can be said that the different structuring of legal doctrine and the different emphasis on the role of the respective legal sphere (judicial casuistry and academic jurisprudence) in its further development give their theories a different character, which is explicitly overemphasised by both. Larenz's objection to Esser's conception of dogmatics is that, on the one hand, he sees it as too narrowly focused on the conceptual construction level of dogmatics, which was only common until the turn of the 19th century, and since then the conception of value- has also found its way into legal dogmatics, but is excluded from Esser's conception of dogmatics. His second objection can be summarised as Esser reducing the role of dogmatics to the subsequent stabilisation of new legal solutions supported by predominantly justificatory ideas. Consider Larenz's formulation on this issue: "The picture Esser draws of dogmatics is obviously oriented towards ideas that were characteristic of nineteenthcentury dogmatic works and were still influential in the first decades of our century (...) and which sought to capture all legal phenomena in terms of concepts. If we understand him correctly, he considers a twotrack approach possible: the actual juridification of law takes place on paths before or outside dogmatics, and alongside this he wants to preserve dogmatics in the old sense in a limited position" (Larenz 1979:205). Based on Esser's statements on explicit dogmatics, these two points of criticism are indeed justified, especially- on the basis of passages from Esser's- book -"Vorverständnis" from 1970 -and his- essays on dogmatics from -1972.- However, if one includes the- picture of dogmatics that emerges- from the substantive explanations of his -1956 book-, the accusation of conceptual reduction must be dropped. -As we have just seen, Esser also distinguishes here between two legal dogmatics, a doctrinaire- conceptual dogmatics and a -"normativist" legal dogmatics, which- leaves legal principles- untouched by selective variation (Esser 1956:318). In many of his statements, he admittedly often uses the term "dogmatic activity" in the sense of a mere conceptualisation and furthermore distinguishes between the levels of legal maxims and legal principles. -Larenz, on the other hand, extends the dogmatic level of law to this legal level in his content analysis and , confronted with Esser's definition of dogmatics, then sees their divergence as- abrupt. Paradoxically, however,- his former student- , while maintaining his earlier criticism of Esser from- the third edition of his work (1975)-- , under the influence of Canaris, has increasingly sharply distinguished the external (conceptual) and the internal (at the level of legal principles) legal systems below the textual level of law, thus coming very close to the ideas of- Esser'sbook of -1956 on this- point -(cf. the distinction between internal and external systems in Canaris: 1968:1961; the same in Larenz: 1979:429475-). So this is not the main difference between them, because they see the same thing under the heading of law in other structures. The other difference is the more important one, namely the fact that Esser reduces this- doctrinal level of legal conceptualism- to an ex post stabilising role in the further development of law and instead introduces ethical- justice aspects more directly as the real engine of legal development. Another difference is that Esser, by narrowing legal doctrine to a conceptual systematisation and treating the- level of legal norms and legal principles separately from it-, foregrounds the role of judicial casuistry and devalues the contribution of academic jurisprudence to the overall structure of law. Larenz, on the other hand, sees the judiciary more in the role of a 'servant' of the law or as an auxiliary to academic jurisprudence by providing a mass of judicial decisions, and focuses on creative jurisprudence. Kriele's heroic judge thus becomes the servant of the law here through Esser's judge, embedded in a total casuistry. Or, more precisely, since in Larenz's view- after the stabilisation of legal doctrine- the legislator can only enact new legal institutes and their systematised propositions developed by legal science, the 209 judge's binding to the law is in fact his binding to the models developed in legal science. It can thus be said that the three major spheres of the legal system (the legislative, the legal dogmatic -and the judicial) have different tasks and possibilities for changing and developing the law- and that this leads to- their often diametrically opposed positions regarding the solutions to be chosen- . We have just seen how Esser balances between judicial casuistry and jurisprudence. Larenz, on the other hand, says: "The relationship between "theoretical jurisprudence" and legal dogmatics or legal practice can be described as reciprocal in a special way. On the one hand, dogmatics provides practice with decisionmaking criteria, which it not infrequently applies, sometimes modified, sometimes misinterpreted. On the other hand, legal practice supplies dogmatics with a large amount of 'material' from which it attempts to develop new decision criteria." (Larenz 1979:216) Judges under pressure to decide cannot, in Larenz's view, rise above the concrete case and combine the typical aspects of each case into a more comprehensive view. "This is where the work of the legal dogmatist comes in" (Larenz 1979:216). Larenz's position, like Esser's in the other direction, must be considered selective. Indeed, the latter article contains pages of examples of legal maxims, premises and norms codifying the "judicial wisdom" generalised from cases in the first instance, but then only mentions the dogmatic institutions derived from them. In contrast, Larenz does not mention this level of law and takes his successful examples of legal development from jurisprudence. For example, the "culpa in contrahendo", which goes back to the work of Jhering, is cited several times as evidence, or the jurisprudential development of the legal institution of direct producer liability (Larenz 1979:218229-). -Likewise, Larenz repeatedly shows that the "groundbreaking" decisions of the supreme courts in continental jurisdictions that establish a new aspect of law are based on recourse to earlier legal literature, while Esser sees as typical here the behaviour of English chief judges, for whom the Blackstone Commentary -often represents the "latest" legal literature experience and for whom the constructions of academic jurisprudence are admittedly not taken into consideration. Larenz thus extends legal dogmatics from the conceptual level to the level of legal principles and places jurisprudential activity at the centre. The other side is that- he sees the introduction of principles of justice/ethics into law not in the case-by-case discretion of the individual judge- , but in a- systematically coordinated form in the jurisprudential- level. The- individual case approach can only ever consider the few obvious aspects of justice, whereas "evaluative" dogmatics realises justice more comprehensively by systematising the broader aspects and binding judges to them. Larenz- sees here, -in agreement with Canaris,- the egalitarian side of justice realised through- a systemic jurisprudence and the equity side of justice brought into the legal system through the introduction of exceptions (Canaris 1968:23; Larenz 1979:321). Following a more optimistic appraisal of legal doctrine, Larenz extends the judges' reliance on the evaluations in the text of the law for case decisions and from there, in a more limited gradual sequence, establishes an obligation on the part of the judge to bring out the "true" will of the legislature. (While Kriele immediately constructs a waiver of the legislature's power to regulate if a passage of law does not provide an immediate answer to the case at hand, Esser opposes a prolonged preoccupation with the text of the law). Larenz emphasises that- the judge, if a decision on the level of the legal principle is found in the text of the law and the- complementary meaning of several legal principles- gives a clear indication, is obliged to follow the weighting that the legislator has given to the relationship of the legal principles to each other and thus to interpret the concrete statements of the law. The importance of this is particularly evident in Larenz's analysis of hidden loopholes. A legal loophole occurs when a legal text contains a specific provision for a certain category of cases, but an exception should have been introduced to implement a more general legal principle laid down in another part of the text. A "hidden" gap in the law exists when the law contains a provision for a specific category of cases, but this provision does not correspond to the meaning and purpose of the law for this category of cases as a whole because the provision has overlooked a certain relevant feature. The gap consists in the fact that no limitation is provided for. (Larenz 1979:362) The judge must then make up for the legislature's omission by inserting an exception to the legal principle by means of a "teleological reduction" and thus applying it to the case in question. Larenz attempts to bind the judiciary to the text of the law and its evaluations, but as can be seen, he does so by introducing or positivising the level of legal principles alongside the normative material of the text of the law and by considering the normative material as applicable in the light of the legal principles. Here, too, a peculiarity of Larenz's "respect for the law" becomes apparent: he seems to bind the judge 210 only to the will of the legislator, since the system of legal principles and their models, which complement and correct each other,- can only be developed by the legal-dogmatic-legal-scientific- sphere. Larenz is also of the opinion that the concrete provisions of the law can always be interpreted by judges through the filter of legal principles. Even if Larenz's understanding of law is not unobjectionable in the light of the traditional understanding of the rule of law-, i.e.- there is always- a hermeneutic-dogmatic -filter between the parliamentary will and the realisation of law, this model is more suitable for the autonomous systemic functioning of law than Esser's understanding of law, not to mention Kriele's model of law, which is tied to the immediate ethical evaluations of individual judges. There was, however, one important insight in Esser's discussion of legal development that we think Larenz treated too lightly. We have in mind the narrowing of the legislature's options, which can be creatively developed- from Esser's- 1956 book Principle and Norm- : If the regulation of a new area by- judicial casuistry and legal dogmatics actually acquires the quality of law, the freedom of the political legislator to make changes independently is already severely restricted. Its role is thus limited to choosing between the regulatory alternatives developed in case law and legal doctrine. Once legal institutions that have been clarified and structured in terms of legal doctrine have been created and combined into a system in a certain area, they can only be intervened in specifically by the- intervention of the judiciary and legal doctrine. The only difference between Esser and Larenz is that Esser focuses on casuistry, while Larenz focuses on jurisprudence. Of course, as long as this elaboration does not take place and the goal is only the primary political management of social tensions, the laws enacted for this purpose (social policy, administrative regulations, etc.) can directly transmit the trade-offs of the decision alternatives raised in the political and parliamentary struggles . However, if the jurisprudence in this area stabilises and a new branch of jurisprudence-, based on its jurisprudence, begins to systematise and abstract the- decision criteria, then the ability of the political legislator to intervene in the established, stable legal institutions will also diminish and the "hermeneutic buffer" (interpretative filter) will be restored. -Larenz addresses this problem insofar as- he- declares the competence of the legislature to decide at the level of overall legal principles (Larenz 1979:418). However, Larenz's entire work is evidence that the individual legal institutions and the legal principles behind them can only have the desired effects in a systematic model, and that these models can only be developed in jurisprudence. For the parliamentary groups of the legislative parliament can only decide something original in such an area, which has already been worked out in legal dogma, if the models developed by legal science become at least partially obvious in their political effects and if they later become political alternatives in the sense of the interests and prevailing opinions of certain social strata. Otherwise, only the technical debates within jurisprudence can be repeated by the lawyers involved in the legislative process in the legislative battles in parliament and in the ministries, and so one of the jurisprudential models will eventually appear as the "will of the law". All this requires the emergence of a transformative sphere between political will-making and legal doctrine, and that is the realm of legal policy. The meeting of the analyses of Larenz and Esser and the synthesis of their views have inevitably led to this hypothesis, and the empirical study of the legal systems of various countries has proved its existence. 1.3. Martin Kriele: law of reason and norm hypotheses Kriele's theory can best be illustrated by comparing it with Esser's. The deviation from it can be given in three directions. Firstly, it differs in that with him the layer of legal maxims and norms developed in legal dogmatics and judicial casuistry is lost from view and judges are guided instead -by considerations of reason that embody above all principles of justice and ethics- . The- next difference is that in Esser the importance of the legislature's political evaluation is almost absent from judicial decisions-, whereas- it is expressed here- , although not to the same extent as in legal positivism. -3 Finally, an important element of Kriele's theory is that he also discovers a "presumptive precedent binding" in continental legal practice and tries to illuminate the positive aspects of it from different angles. 1) The term "legal dogmatics" hardly appears in Kriele's material, and when it is mentioned once, it is without any regular local value. "Likewise ... it is a quality feature of legal dogmatic literature to examine various legal alternatives in terms of their consequences ..." (Kriele 1976:208). Likewise, legal maxims, 211 special legal principles and parömia are left out of his conception of law. Instead- , in his search for the relationship between judicial decisions and legal texts, he focuses on a pre-legal- normative and evaluative material which he calls "considerations of reason". It must be said, however, that despite its central role throughout Krielen's work, this category remains obscure, and it is only through analytical clarification in retrospect that it is possible to outline what he means by it. At three points Kriele also refers to the role of "rational considerations". On the one hand, they result from the comparison of the facts of life with the law, i.e. from the determination of whether what has happened- is unlawful. -The lay client's primary sense of justice -and the assumption that this is supported by the law is also awakened- in the life facts that something has happened to him here that cannot be left alone: "... can a person bear that something like this has happened to him?"(Kriele 1976:198) But the lawyer is also moved by the same sense of justice when he clarifies the norm hypothesis presented to him on the basis of rational legal considerations with the help of his existing knowledge of the law. It should be noted that Kriele combines under the lawyer's "legal knowledge" the knowledge of the legal text with the knowledge of the legal dogmatic level, which is separated by most authors of methodological works. "The lawyer called to give advice also knows from his knowledge of the law what other questions are relevant.... Thus the description of the case which the lawyer gives to the judge is also determined by the existing material of positive law" (Kriele 1976: 201). In this position, the considerations of reason are a substitute for the legal-dogmatic level, but for Kriele they do not form the legal level below the textual level of law, but appear projected in front of the law and placed in the world of legal-ethical values -and norms. Another position of this reflection is the incorporation of this type of assessment into positive law. The other position of reasonableness can be described as anticipating the consequences of a judgment and making them clear in the light of the assessments of justice. Either the client's lawyer outlines the injustice that would result if his client received a judgement unfavourable to him and similar decisions in such cases could be expected in the future, or the judge himself anticipates the consequences of his decision in comparison with the standards of justice. In Kriele's formulation, this is a combination of reasonableness and "consequence orientation": "...since it is reasonableness, it is the demonstration of the consequences of the judgement for the public interest.... " (Kriele 1976:207). Finally, reasonableness appears in a third position in Kriele when the judge cannot find a positive legal decision (a legal text or precedent) and must himself establish the norm for deciding the case. Whereas in traditional legal theories analogy takes place through the use of legal dogmatic categories and closely related legal positions (or, as in Esser, through the formation of legal maxims in judicial casuistry and their subsequent dogmatic insertion), in Krielen the judicial hypothesis of a norm established on the basis of reason provides the guidelines for the creation of a new norm. It is also a matter of anticipating the results of the judgement to be made on the basis of this norm in the light of justice. In this hypothetical situation, which is free of existing legal norms, the judge, if he wants to help justice to prevail, has no choice but to weigh the different variants of his norm hypothesis with regard to the consequences of the one and the consequences of the other ..." (Kriele 1976:198). 2) Kriele thus excludes legal dogmatics as an independent sphere within the law from his analysis and instead places judicial decision-making activity and the legal mode of reasoning on a primarily ethical basis beyond the law, but considers the text of the law and the legislative policy assessment contained therein to be binding on the judge. Contrary to Esser's view that the harmony between judicial casuistry and legal dogmatics can only be disturbed by the intervention of the political legislator in the law, Kriele recognises the prerogatives of the legislator in the further development of the law ( the declaration of a legislative monopoly and the- prohibition of judicial precedent-setting, on the other hand, he considers an excess of legal positivism-). -However, if the judge cannot find a place for the law in the cases presented to him, i.e. if the legislator has not exercised his "prerogative", -- the judge- can himself formulate the rule that decides the case on the basis of the- aforementioned rational ethical- evaluations. The resulting normative material, which complements the legal material, together with the latter forms the system of positive law. This precedent material is thus conceived in this thematisation- not as a- layer of law, as an interpretation of the- legal text, but as a continuation of the same layer. It can be said that positive law in Kriele's formulation consists of a layer of- legal texts and precedents-, among which only the pre-legalethical evaluations of- reason- provide a- basis for the legal service user and the developer of positive law. 3) Kriele attempts to dynamise our notions of law by describing the "presumptive" precedent of judges 212 as a factual situation in continental legal practice. "The presumptive binding force of precedent is a matter of course which every lawyer experiences on a daily basis. (Kriele 1976:243). In continental law, judges are not formally bound by previous judgments, but there is a "presumption in favour of precedent" which judges usually overrule only if there are compelling reasons to reject- their application to the case- even on grounds of reasonableness/justice- . It can thus be seen that Kriele again disregards the broader layer of jurisprudence, the material of legal maxims, norms, legal principles based on the typical aspects of the mass of cases, or its transformative layer of legal dogmatics, and concentrates on the individual judge in the mass of precedents tailored to the cases. These either exonerate the judge when he applies them, or he dismisses the relevant precedents on the basis of common sense considerations, and on this basis, by constructing his normative hypothesis, creates a precedent himself, which is also considered or rejected by judges in subsequent relevant cases. Or to put it another way: Kriele thinks of individual judges in a mass of case-specific precedents who individually construct precedent law on the basis of standards of justice. Esser, on the other hand, is a "collectivist", for him- an individual- judicial decision can only formulate the right answers at the level of presumption when a new situation develops, and a large mass of casuistry can only slowly work its way through the possible solutions and work out the typical features in order to then extract the appropriate general legal ideas at the level of legal maxims or legal principles. Thus, it is not individual judges who build the law with case-specific precedents, but judicial casuistry as a whole, and this embedded in a broader legal level. Esser also points out that in recent decades the rigid 'ratio decidendi' of English law has been relaxed and the importance of obiter dictums in judicial reasoning and guidance has increased, with a number of obiter dictums containing the legal maxims and broader legal principles developed in judicial casuistry (Esser 1956:312). Of course, Kriele highlights a phenomenon existing in- continental practice by looking- to earlier precedents in addition to case law,- but by disregarding legal maxims and legal teaching, he distorts, in our view, actual judicial activity as well as the description of the way law is developed. His analysis here is questionable in two respects. On the one hand, it seems unrealistic to assume that he considers it possible to overrule existing precedents in a particular case with a comprehensive argument and create a new norm by starting all over again the thought process invested in the lost precedent. As legal history shows, a- creative judge, especially in a privileged position in the higher courts, is able to carry out a major innovation, clearly unfold a new legal point of view, etc. (Kriele has been accused of developing his idea of the whole jurisprudence by taking too much inspiration from the practice of the higher courts and thereby distorting it. The creative judges, who- can be found sporadically among the countless ordinary judges,- but do not create new and lasting legal ideas and formulations of legal principles on their own,but- they extract and clarify,- as Esser has documented,- the new legal aspect from the latently elaborated connecting points of a longer series of court decisions. This is thus another distortion by Kriele. It can be said that with this individualisation of judicial practice and- the binding of further development to the individual creative -judge, Kriele has transferred the situation observed in science to the law. Here demands the community of his discipline, which is laid down as a requirement for theindividual scientist : The knowledge accumulated so far and accepted by consensus by his professional colleagues as scientifically true does not have to be accepted, but it must be known and can only be rejected by explicit refutation. Moreover, the mechanisms of science require the- further construction of the current body of knowledge by imposing the obligation of originality-; the mere repetition of a statement once published by someone else without a new point of view is not considered scientific activity. The- mechanisms of peer review in journals and other mechanisms of scientific evaluation usually enforce this (cf. Merton 1973, Hagstrom 1965, Storer 1966 et al.). -However, the scientific system based on this principle can only maintain this validity through extreme specialisation to the point of refutation and, on the other hand, creates a fluidity through which the results of science can only be made accessible to all social subsystems- by introducing a mediating- sphere of coverage. -(E.g. in the case ofapplied industrial research, the technological sphere or the transfer of the results of the- broad social sciences to law , the transformative role of certain branches of jurisprudence- and ideology on politics can be highlighted). However, in the case of a legal system directly aimed at solving practical problems, Kriele's model of law based on "presumptive precedent" seems questionable. Finally, our fundamental criticism of Kriele's conception of justice is that it over-moralises the exercise of justice. The direct influence of considerations of justice on individual judicial decisions and court proceedings, as described by Kriele, would portray the opposing parties as amoral beings in each other's 213 eyes. For the ethics-inspired jurist, who argues directly from a moral standpoint and- throughout his or her career has been guided by the moral indignation "Where would it lead if we left it at that-!"- would be an unbearable burden. Niklas Luhmann has convincingly argued that since Roman law, the lawyer who daily constructs his version of the case (and that of his client), aware of the possibility of polar opposite versions of the opposing case and daily practice, can only do so without the greater ethical stakes, and only in this way can the increasing mass of litigation in modern society become a threat to the integration of society (Luhmann 1972:54). 2. The legal theory of Jürgen Habermas Since his major synthesis The Theory of Communicative Actions (1981), he has expanded Habermas's theory in detail (Habermas 1984), brought it into line with more recent social theories (1985) and written a series of volumes of preliminary studies analysing norms, value commitments and the legal sphere (1983; 1988). In the early 1990s, he published a new systematic work entitled "Facticity and Validity", which deals with the place of law in modern society, theoretical considerations of it and its relationship to politics. Law has always played a prominent role in the analyses of the social philosopher Habermas, and although the tables of legal philosophy compiled by non-lawyers at the end of the 20th century are no longer taken into account by lawyers, it is worthwhile for lawyers to familiarise themselves with this legal theory because of the weight of Habermas's overall theory and his longstanding preoccupation with the relationship between the legal and political spheres. In his new work, however, Habermas not only analyses the internal context of law, but also takes some new steps in his general theory of society, introducing new categories and thus also calling for a broader socio-philosophical and sociological theoretical perspective. In the first part of our analysis, we will try to work out elements of Habermas' concept of law; in the next part, we will examine the tension between human rights and democracy, parliamentary legislation and Habermas' position on it; in the fourth part, we will analyse the local value of a new category, "communicative power", in relation to the relationship between politics and administration; and in the last part, we will look at Habermas' theory of constitutionalism. 2.1. Elements of the Habermasian concept of law Over the last century and a half or two centuries, different legal theories have focused on different layers of the legal world, given different emphases to the formulation of law and narrowed the thematic organisation of the complex legal system in certain directions. Among the numerous theories of law, it is rare to find a theory that is able to analyse the different layers of law in a coherent manner. To name the most important reductions, we must start with the theories that reduced law to its political component, that understood law as a normative codification of the political will of the organs of the state (e.g. the English legal philosopher John Austin in the first half of the last century, the French "exegetical school" that prevailed in France throughout the last century, or the "exegesis" that was the most important school of thought in the 20th century). In this view, law is an instrument of politics, a state order, and the legal texts in the codes and statute books of current law contain all the law, which can be replaced at any time in the event of a change in the will of the state. In contrast to these "text positivist" - also "legal positivist" or "decisionist" - views of law, which include law in state policy from the outset, the German "Begriffsjurisprufenz" at the end of the last century narrowed the field in a different way ( Ott 1983: 413425). This trend emphasised the systematics of categories in legal texts that bind political legislators in drafting new laws and judges in applying them to individual cases. Law is presented here as a system of unitary concepts, leaving out the influence of politics and the ethical considerations that enter through the personalities of judges. A very different narrowing of the field was provided by the concepts of judicial law in the first decades of our century, in the form of the "free school of law" in Germany and, somewhat later, "legal realism" in the United States. Here, law is formulated as judicial practice arising from individual judicial decisions, denying the substantive role of state legislation as well as the role of 214 jurisprudential-legal dogmatic categories and the activity of the judiciary. To these traditional layers of law - text, legal doctrine and judicial practice - has been added in recent decades in Europe, following the United States, the layer of fundamental constitutional rights, supplemented by a constitutional court deciding individual cases. This development has led to a number of tensions in the relations between the traditional legal layers and has restructured these relations in many ways, but in a few decades the coexistence of the new legal layer with the old one has stabilised in most Western European countries. At the level of legal theory, however, an influential concept of law has emerged that has created a new narrowing of the previous narrowing: the concept of law of the American legal philosopher Ronald Dworkin, who found the centre of gravity of law in basic constitutional rights, and this concept of law has had a great influence on legal theorists in continental Europe in the last decade, especially in German legal theory. In addition to these narrowing views of law, the complexity of law has also emerged to varying degrees in the legal theories of recent centuries, in which a more complex picture of law emerges instead of one-sidedness. Carl Friedrich von Savigny, a leading representative of the historical school of law, formulated such a complex theory of law at the beginning of the last century by addressing the connections between legal doctrine, legal practice and legislation. At the turn of the 20th century, the Frenchman Francois Gény succeeded in presenting the complexity of law in a more appropriate language, followed by the American Benjamin Cardozo, and finally, in the 1950s, the German Josef Esser brought all this together and created a complex theory of law. In many ways, among the theories that explore the complexity of law, the German Karl Larenz's concept of law is also worth mentioning. In contrast to narrow conceptions of law, we can thus say that law regulates people's behaviour by grouping thousands of rules into a system of legal categories - a set of legal principles and legal concepts compiled according to areas of law, the everyday decisions of the judiciary now provide ad hoc normative reference points prior to the development of stable rules for new categories of cases, thus giving those working in jurisprudence - legal doctrine - the opportunity to develop new models of regulation by other than deductive-logical means; On this basis, the political legislators in parliament try, with their legal politicians, to single out the regulatory model best suited to their political agenda and to make it law in the parliamentary debates; finally, the products of these layers of law are constantly shaped by the collections of decisions on basic constitutional rights and their interpretation by the constitutional courts, which are based above all on the moral philosophical positions of the dominant social groups. If we want to place Habermas' concept of law in the coordinates thus given, we can briefly summarise it as a starting point by emphasising the connection between law and politics on the one hand and fundamental rights and thus the moral-ethical discourse of the members of society on the other, while the role of the legal-dogmatic-legal-scientific level and judicial practice is neglected in this concept. This neglect in turn leads to an enormous expansion of the freedom of choice of the two former legal strata in Habermas' concept of law. The misunderstanding of the role of legal dogmatics is the main problem with Habermas's concept of law, and this misunderstanding can be summarised by the fact that he formulates the role of legal dogmatics only in terms of judicial decisions to apply pre-existing law. The separation of the legislative and judicial branches certainly seems obvious for pragmatic reasons, since the dogmatic revision of law and the de-scientification of legal theory have resulted in a far-reaching professionalisation of judicial decision-making" (Habermas 1992:212). A few pages later, he also writes that "legal theory, together with legal dogmatics, favours the judicial perspective" (241 p.), which recurs in various contexts in the pages of the book. However, this overlooks the fact that the 'pre-formulation' of legal doctrine is also indispensable for the realistic functioning of law at the level of the political legislature, since the tens of thousands of legal provisions regulating the most diverse spheres of life would become a contradictory chaos if they were not based on a pre-established system of categories of legal doctrine, and the creation of each new combination would require a review of its impact on the wider legal dogmatic context. However, this complex web makes this review - i.e. the development of new regulatory models - possible only for professional lawyers, who develop these models before they appear in legislation. The political legislator is bound by these models and can only intervene in the existing body of law once the legal doctrine of the new regulatory alternatives has been developed and the legal systemic consequences of these alternatives have been examined. Without this, the legal system would quickly become chaotic, and in reality it is more likely that the political legislator will choose between new regulatory alternatives that have been developed in advance and tested against legal doctrine than that he will actually "create" new laws in the 215 original way. Of course, Habermas himself occasionally makes this connection, but this can confidently be described as his "unofficial" concept of legal doctrine, since he nowhere associates it with substantive implications and rather uses the term "legal doctrine installed alongside legal practice" quoted above. "This is the function of codification," he writes, "which gives legislation a high degree of coherence and conceptual elaboration; this is the task of jurisprudence, which prepares the body of law scientifically and subjects it to systematic and dogmatic scrutiny." (Habermas 1992:180). That Habermas's restriction of legal dogmatics to a limited role is not accidental is shown in this respect by his criticism of Weber: "Weber admittedly assigns too much reconstructive conceptualanalytical work to legal prudence. He does not distinguish legal dogmatics strongly enough from legal theory and legal philosophy. The neglect of legal philosophy is perhaps partly due to Weber's scepticism towards the cognitivist approach in moral philosophy now advocated by Rawls or discourse ethics. The too narrow disciplinary integration of cognitive contexts in legal dogmatics does not allow the dual methodological perspective or the contrast between them that Weber at least implicitly suggests to emerge" (Habermas 1992:95). In contrast to Weber's conception of law, which foregrounds legal dogmatics, Habermas emphasises a philosophy of law that is open to moral philosophy, giving legal dogmatics a subordinate role and thus excluding the layer of professional lawyers from influencing the law and assigning a greater role to the politicians and intellectuals who dominate society's moral discourse. The devaluation of legal dogmatics forms the background of the inner legality of law in Habermas's concept of law, and this attitude is also reflected in his analysis of the place and interrelations of law in society as a whole. "Since, historically for the first time, only state-constituted law assumes the specific characteristics of a legal order, Weber's theoretical decision to conceive of law as part of the political system has a certain plausibility. Less plausible, however, is Luhmann's more far-reaching approach of separating law, which is isolated in modern society, from politics and conceptualising it as a subsystem of society alongside public administration, the economy, the family, etc. A different perspective is taken by Parsons who, like Durkheim, sees the development of law as intertwined with the social system" (Habermas 1992:100). Habermas' interpretation of Weber's conception of law as part of the political system - he draws this conclusion from the fact that Weber bases a kind of legitimacy of political rule (Rechtsherrschaft) on the legitimacy of law - can be argued with, since we have just seen that Weber was very much concerned with the particular, self-contained conceptual context of law in Rechtslehre, but more important here is his critique of Luhmann, who conceives of law as a functional subsystem in its own right. Habermas' main criticism is thus again directed against the autonomy of law, while his positive reference is aimed at its integration into politics and its intertwining with the community sphere. However, Habermas himself points to indispensable limits to the embedding of the moral-ethical mechanisms of the communal sphere, and his critique of the concept of law by John Rawls and Ronald Dworkin, who are more radical in this respect, is echoed in his analyses. Let us consider three quotations that broadly mark Habermas's distancing from approaches that trace law back to morality and moral philosophy: "The weakness of the Rawlsian experiment is that it bridges the gap between the ideal requirements of theory and social facticity, which is at a level where it cannot be bridged by ethical theory. For the resistant reality with which normative argumentation seeks to come into contact is formed not only and not primarily from the pluralism of value orientations and conflicting ideals of life, but from the harder material of institutions and systems of action" (Habermas 1992:88). The following quotation extends the criticism of Rawls to philosophical theories of justice in general and illustrates the problem Habermas has just indicated: "The philosophical theory of justice misses the institutional dimension to which the social-scientific discussion of legal theory is inherently oriented. (Habermas 1992:90) Finally, Habermas continues this line of thought in his formulation of the institutional separation of law and morality. "I want to distinguish between law and morality from the outset, in contrast to Rawls' distinction between political justice and morality, which are on the same normative plane" (Habermas 1992:106). The moral philosopher tends to integrate law more closely with politics by integrating it too strongly with the communal sphere of society. Habermas, as we have seen, does the same by denying the self-legitimacy of law, but his critique of Rawls shows his hesitation in this area and his reluctance to adopt this radical solution. In modern complex society, the orientation of behaviour to moral principles is insufficient in three directions, says Habermas. First, they are too abstract, too "cognitively indeterminate" to guide action in specific situations. In the legislative process, this indeterminacy is eliminated by the resulting legislation. 216 This gives rise to the other problem of moral guidance, namely the motivational uncertainty involved in applying generally accepted moral principles to particular situations. Finally, a third problem is the question of assigning obligations arising from moral principles to particular situations. It is a generally accepted principle, Habermas argues, that the person threatened by hunger must be saved, but the breakdown, the clarification of the "circle of addressees", is not so simple, as the contrast between the wealthy citizens of the developed states and the famine areas of the Third World shows (Habermas 1992:148). Moral governance, then, cannot exist without its own right, Habermas concludes. However, this guides his thinking only in the explicit engagement with the moral philosophers, and as we have seen, he rejects precisely the one of the three directions pointed out by Weber, Parsons and Luhmann, which asserts the detachment of law from the socio-moral sphere, and, following Parsons, places the focus of the development of law in the communal sphere. His critique of moral philosophies therefore remains declarative, and one can repeat this critique of him: By denying the self-legitimacy of law, its excessive involvement in the political and moral spheres, he fails to recognise the requirements of the institutional order of law. The contours of his concept of law are revealed from a different angle by placing it between the categories of his comprehensive theory of 1981. In this work, he famously described the structure of modern societies as a duality of lifeworlds and systems that break out of it and partially "colonise" it. He now locates law within this conceptual framework: "From the perspective of communicative action theory, the action system "law" can be understood as a legitimate order of the social component of the lifeworld that has become reflexive.... The code of law, however, not only establishes a connection to the medium of the vernacular through which the socially integrative agreement performances of the lifeworld are produced. This code transforms such rooted information into a form in which it becomes intelligible to a power-driven administration and a money-driven economy. In this respect, the language of law, unlike moral communication, which is confined to the sphere of the lifeworld, would act as a transformer between the lifeworld and the system at the level of society as a whole." (Habermas 1992:108) If Habermas were to take into account the full functional scope of legal dogmatics, the centuries-long formalisation of law by legal dogmatics and its self-regulation by professional lawyers, a "halfway house" into everyday life would become impossible. Indeed, research into a new legal dogmatic context is based on a multitude of individual monographic works, and the institutional order of law contains a wealth of such dogmatic contexts. This results in a multitude of specific legal terms, but also in the use of everyday language in a particular sense. While Habermas accuses moral philosophers of ignoring these, he himself cannot see through them in their full scope. Contrary to Habermas's solution, law is not to be thematised as a mediating sphere between "the" system and the lifeworld, but between the various functional subsystems, which include law, and everyday life, mediating spheres can be identified everywhere, which on the one hand signal the problems of everyday life to the subsystems, and on the other hand signal the products of the subsystems that have risen above everyday life - new semantics, sets of norms, cognitive knowledge, technologies, and so on. - (See Pokol 1999 for an attempt to make this kind of connection between Habermas and Luhmann's theory). Habermas also discovers a difference between law and morality in another dimension, and here too he notes the mediating character of law. Nevertheless, it seems worthwhile to dwell a little here, because interesting conclusions can be drawn for Habermas' entire conception of social theory. New in comparison to his 1981 social theoretical synthesis is Habermas' distinction between "systems of knowledge" and "systems of action", which he elsewhere referred to in older terminology as separate levels of culture and society. In his view, the difference between morality and law can be described by the fact that morality is organised at the level of cultural knowledge, whereas law is organised both at the level of this knowledge and at the level of systems of action. "Law is both: a system of knowledge and a system of action. It can be understood both as a text of norms and interpretations and as an institution, i.e. as a director of action.... Since law is thus simultaneously anchored at the level of society and culture, it can compensate for the weaknesses of the morality of reason, which exists primarily as knowledge." (Habermas 1992:146). In his 1981 synthesis of social theory, Habermas already drew in many respects on the theory of Talcott Parsons and took as his starting point the duality of culture and society, which Parsons treated as separate. While the point here is to draw on the content of this older discipline, Habermas has moved even further away from the post-Parsonsian "sociological turn in knowledge" that was not yet so explicit in his 1981 volume. In America, one of the great achievements of sociological theory since the early 1960s has been the 217 discovery of the continuous cultural malleability of social formations and the mechanisms of their reshaping: all social formations are culturally shaped, constructed by earlier theories and interpretations, and partly reinterpreted and reshaped by later social actions in different situations (see Garfinkel, Cicourel 1984, Berger/Luckmann 1966). Niklas Luhmann radicalised this when he analysed the formalisation of the boundaries of macrosocial spheres and their internal structural organisation by earlier theories (Luhmann 1980). With this solution, Habermas moves even further away from the sociological analysis of society in the sociology of knowledge, or, to put it more critically, we can see a regression to the presociological turn in the sociology of knowledge. This broader socio-theoretical basis for the solution suggested here admittedly only appears in a few one-word sentences, and a final judgement on it can only be made if Habermas also explicitly addresses this problem. In any case, Habermas' already noticeable aversion to the sociological view of knowledge is shown here in a new light. 2.2. Tensions between human rights and democracy. Anyone familiar with the constitutional history of the last century in the United States and of the last decades in Western Europe knows that in constitutionalism there is a constant tension between human rights - or, after their incorporation, constitutional fundamental rights - and the freedom of legislation. The essence of this tension can be formulated as follows: Should the development of social regulations be tied to ongoing parliamentary legislation and the party struggles that emerge from empirical social willformation (and if so, to what extent), or should they instead emerge from the derivations of abstract fundamental rights? In the first case, we leave the sovereign determination of laws to the internal struggles of parliamentary legislatures and politicians bound by the opinion of the majority of the electorate; in the second, we privilege moral philosophical arguments, constitutionalism and the intellectuals behind them who dominate the creation of these intellectual products. Oliver Wendell Holmes, who served as a judge and then chief justice of the US Supreme Court for 30 years from the early 1900s and was a radical democrat rather than a believer in moral philosophical definitions, argued in a decision on a constitutional review of a law banning the sale of alcohol in this particular case, "I am far from saying that I regard this law as a thoughtful provision. It is not my job to do so. However, if the people of the State of New York have expressed through their elected representatives that they want this law, I see nothing in the Constitution of the United States that would prevent that will. (quoted in Fikentscher 1975, Vol. II: 180). Habermas already discovers this problem in the political philosophy of Rousseau and Kant: "In Kant as in Rousseau, there is an unacknowledged competition between morally founded human rights and the principle of popular sovereignty (Habermas 1992:123), whereby Kant, in accordance with his subordination of law to morality, tends to limit legislation, while Rousseau limits not so much human rights as the free legislation of the people. Since the sovereign will of the people can only speak in the language of abstract and general laws, it goes without saying that for Rousseau such a right is based on those same subjective freedoms which for Kant, as morally founded human rights, set limits to the formation of political will' (Habermas 1992:131). The tension between the two possible positions is by no means merely theoretical; we have seen a shift in one direction in Chief Justice Holmes. Habermas himself points out that in the practice of American constitutional jurisprudence over the last century, we have seen a kind of oscillation between these two poles. The political traditions, which I will somewhat simplistically call "liberal" and "republican" in line with the contemporary debate in the United States, conceive of human rights as an expression of moral self-determination and popular sovereignty as an expression of ethical self-realisation. According to this view, human rights and popular sovereignty are in competition with each other rather than complementary .... Liberals invoke the danger of the "tyranny of the majority" and, in contrast, postulate the primacy of human rights, which guarantee the freedom of the individual over politics and set limits to political legislation. Representatives of republican humanism, on the other hand, emphasise the non-instrumentalisable self-value of civic self-organisation, so that in a selfevidently political polity, human rights only acquire binding force as part of one's own and consciously acquired traditions (Habermas 1992:129-130). Habermas endeavours to resolve the tension between human rights and the freedom of the legislature by seeing them as interconnected. In our view, however, he succeeds only nominally on the basis of the principle of discourse, since he actually resolves the dilemma in favour of democracy with its heightened 218 guarantees and rejects the control of human rights over a legislature that is too broad, as we have just seen in Holmes in another argument: "The idea of self-government of citizens should therefore not be reduced to the moral self-government of the individual. Autonomy must be formulated in more general and neutral terms. For this reason, I have introduced the principle of discourse, which does not yet take into account the distinction between morality and law as a starting point. Only through legal institutionalisation must the principle of discourse take the form of the principle of democracy, which in turn gives legitimacy to the legislative process. The crucial idea is that the principle of democracy owes its existence to the link between the discourse principle and its legal form. In the case of radical democratic regulation, Habermas thus leans towards the legislative path of determining the body of law through the legislature or deduction from fundamental rights, and an elitist position of "fundamental rights activism" cannot be supported at all from his conception of law. This distortion is even more evident in the analysis of the grouping of fundamental rights. 2.3. The catalogue of fundamental rights and Habermas' republican credo Right at the outset, it should be pointed out that although Habermas builds a legitimate - i.e. a recognisable - legal order on the realisation of general moral-ethical norms, he assumes that law and morality function separately from each other despite their ultimate unity. He does not abandon this separation even in the case of fundamental rights and - in contrast to the practice of constitutional courts, which often proceed differently - does not regard constitutional fundamental rights as moral principles that are "superimposed" on law, but treats them as rights of the same kind as the rest of law. He distinguishes between five groups of fundamental rights that derive from the idea of right itself and arranges them in a hierarchy following Habermas' concept of right. The central group of fundamental rights, which derives directly from the idea of law, arises from the right to general and equal freedom: "Subjective fundamental freedoms are available to all to the greatest possible extent. Legitimate are only those rules which correspond to the conditions of compatibility of the rights of the individual with the rights of others" (Habermas 1992:157). The other groups of fundamental rights are only guarantees and inclusions of this central group of fundamental rights, but we can draw interesting conclusions about Habermas' concept of rights from them. Habermas derives the second group of fundamental rights from the fact that law and fundamental rights, unlike the norms of morality, are not generally available to individuals, but only as members of a particular legal community. "Legal norms do not - like the norms of morality - regulate in a general sense the possible interactions between individuals capable of speech and action, but as the interaction context of a concrete society." (Habermas 1992:157) The realisation of this goal is the "right to citizenship". By linking these two aspects, we can say that fundamental rights are a right to citizenship, as Habermas' theory suggests. However, the reality is more comprehensive and a number of fundamental rights apply not only to citizens but to all people residing in a country. Or, as in Germany and Spain, the constitution also contains a number of fundamental rights that go beyond the scope of actual citizenship for "Germans" and "Spaniards" respectively. The third group of fundamental rights includes the "right to justice", which is open to all members of the legal community. "The legal institutionalisation of the legal code ultimately requires the guarantee of legal channels through which all persons who feel that their rights have been violated can assert their claims." (Habermas 1992:158). These three groups of fundamental rights are intrinsic to the idea of law, but the concrete extension and formulation of each of them cannot be taken from the idea of law itself, Habermas argues, but "they require interpretation and formulation by another political legislator" (Habermas 1992:157). It is the citizens themselves, in their role as constitution-makers, who can decide on the formulation of fundamental rights, who give the discourse principle the legal shape of democracy" (p. 101). A little later he states again: "This system of rights is not imposed on the constitutionalist as a natural law constraint. Only in a certain constitutional interpretation do these rights reach the level of consciousness at all." (163 p.). With the help of these sentences, we can retrospectively further clarify the contours of Habermas' concept of law and his position on the tension between human rights and democracy analysed above. As the analysis of his concept of law has shown, Habermas downplays the role of legal dogmatics and judicial casuistry in ensuring the self-validation of law and closely links law with politics and the moral- 219 social sphere. However, there is a tension between these two orientations and a preference for democracy would shift the focus of law towards politics and a preference for morally based fundamental rights towards community. In this alternative and in the different emphases of Rousseau and Kant, Habermas opts for democracy and for Rousseau. In light of existing constitutional court practice, which often displays a strong moral activism, especially in the German and Hungarian cases, Habermas' theory of rights can be understood as a critique of it. For example, in its practice, the Federal Constitutional Court has formulated "general freedom of action" - over and above the provisions of the Basic Law - as a "substantive right", which allows this court to undermine further fundamental rights and to repeal parliamentary laws on this basis. The same activism has been displayed by the Hungarian Constitutional Court. Finally, the fifth group of fundamental rights are the socio-economic rights, which are based on the guarantee of adequate living conditions for the exercise of these rights. Habermas himself calls them the most derivative group of rights and does not elaborate on them in his catalogue of fundamental rights. So we leave it aside. 2.4. Communicative power The introduction of the concept of 'communicative power' in the pages of the 1992 volume represents an innovation in Habermas's general picture of social structure, changing the status of the political state, politics and administration in comparison to Habermas's earlier analyses (see especially Habermas 1971:290-329). In recent decades, Habermas has discussed the phenomena of the political sphere on the basis of the two categories "political state and civil society". This is no longer obvious at the beginning of the twentieth century, since the institutional dissolution of the sphere of political parties, interest groups and the political press led, on the one hand, to the organisation of a political field of power beyond the state and, on the other, to the separation of the expanding administrative apparatus and its activities from direct political influence. This phenomenon was already hinted at by Max Weber in the early 1900s: "Simultaneously with the rise of the professional bureaucracy to power, the- figure of the -"political administrator" developed,- albeit with much less perceptible transitions... the- public officials had to divide themselves into two, if not organically, at least visibly distinct categories: professional officials on the one hand and "political officials" on the other. Political" civil servants in the narrower sense are usually outwardly recognisable by the fact that they can be transferred, dismissed or put up for "disposition" at any time. (Weber 1970:396399-) To put it more precisely, and to express this Weberian insight in terms of systems theory, one can see the expansion of the political state with political power and thus the bifurcation of the political subsystem par excellence and the administrative-legal subsystem in the democracies of the 20th century. Habermas's Hegelian-Marxian and 19th century-inspired notion of the political state has always posed a problem in his political analyses (for a critique of this, see Pokol 1984-85). The emergence of the concept of "communicative power" and the separation of politics and administration helps to remedy this problem, but it is also evident that Habermas here draws different boundaries for these spheres than those that can be given in Weber's distinction between politics and administration. In the latter case, one can emphasise the loss of power of the public administration, which results from its submission to the programmes (laws, regulations) created by politics, whereby the concrete use of force is exercised by the public administration regulated by law. Politics, on the other hand, refrains from the direct use of force and merely creates programmes that cause the administration to intervene in certain spheres of society, and it is this sphere that can use force when necessary. The separation of political power and the use of force and the monopoly of force by the public administration is thus an obvious consequence of Weberian thinking. Habermas could have adopted this dichotomy from Weber's analysis, but the notion of a single "political state", which was his starting point at the time, prevented him from doing so. Later, using Hannah Arendt's conceptual distillation of power/power, he came to the same conclusion: "With the concept of communicative power, we only grasp the emergence of political power and not the administrative application of already constituted power, i.e. the process of applying power" (Habermas 1992:186). However, Weber's dichotomy of politics and administration cannot be replaced by the 220 distinction between communicative power and administration, for Habermas bases the communicative power that gives administration its programme not on the political parties but on the sphere of "civil society", which is closer to the everyday discourses of society and which is the activity of various associations and societies (Habermas 1992:435-468)). As a result of this shift in emphasis, politics is seen not as the activity of layers of professional politicians, occasionally measured in the elections and votes of society as a whole through periodic elections and forms of direct democracy, but as the activity of active citizens who are constantly engaged in politics. The making of law is determined in this thematisation by communicative power, as in the theory that adopts Weber's separation of politics and administration, except that here the "civil society" forms that operate at the sub-partisan level emerge as the law-making force: "I therefore propose to conceive of law as the mediating medium through which communicative power is translated into administrative power" (Habermas 1992:187). For us, Habermas' category of "communicative power" is only relevant for a more comprehensive understanding of his theory of law, so we will not go into its political-theoretical ramifications here. However, we should briefly point out the possible consequences of this thematisation that arise from the encounter with the reality in Central and Eastern Europe. Behind the concept of communicative power and the related notion of "civil society" lies a critique of party and parliamentarism that flared up again and again as early as the late 19th and early 20th centuries, seeking to enhance the role of direct democracy over representative, party-based democracy. While Habermas does not reject the existence of parties, he seeks to shift the focus of politics to citizens who are constantly engaged in politics and to political discourse beyond the parties. This embedding of parties and parliamentarism in broader opinionforming processes is acceptable as a normative requirement and can be advocated. In reality, however, political opinion-forming beyond the parties is mainly limited to the politically active and most intellectual strata of society and is organised in the workshops of the mass media. In the countries of Central and Eastern Europe, where the intellectual and cultural infrastructure has traditionally been concentrated in the capitals and where the transition to a pluralist political system has made open politics possible, only the intellectuals are decisively involved. The shift of emphasis from the parties to the "grassroots" thus makes it anything but likely - because of the very narrow nature of the grassroots - that politics will be determined by the broad mass of the same citizens Habermas has in mind. One could also say that the focus has shifted from "party democracy" to "mediocracy". In reality, the shaping of communicative power is to some extent in the hands of the mass media even in the more developed Western societies, but this is particularly the case in the countries of Central and Eastern Europe and in Hungary. Habermas's analysis of "communicative power" can be criticised for the fact that, while in the case of political parties he points to the undisputed problems - the low degree of democratisation of their internal decision-making, their "nationalised" character, etc. - the problems of the mass media are not so clear-cut. - but does not include the problems of the mass media and the phenomenon of "mediocracy" in his analysis, and thus the ideally imagined communicative power unspokenly takes the place of the real structures. In Hungary, this often involves a few hundred politicising intellectuals and a handful of editors-in-chief, reporters and journalists in the mass media, whose political power corresponds to the voices of millions of citizens. Their "communicative power" is even further from the ideal democracy envisioned by Habermas than the democracy offered by political parties competing before millions of voters. In Central and Eastern Europe, we cannot ignore this. 2.5. Constitutionalism, law and politics In the first parts of our analysis, we indicated that Habermas' concept of law formulates law in terms of the moral-communal sphere or the political sphere, and that legal doctrine, which provides the specific intellectual context of law, is subordinate to it. The analysis of his catalogue of fundamental rights also shows that the two spheres favoured by his understanding of law compete with each other - which is also indicated by the tension between parliamentary legislation and the restrictive character of human rights and that Habermas, as a radical democrat, prefers to serve politics as the definer of law and only secondarily to moral-ethical norms. His position becomes clearer in the light of his analyses of constitutionalism and within this constitutionalism of fundamental rights. This is perhaps the most illuminating and revealing part of Habermas' legal theory, and it is probably due to the tension between his reading material and his overall conception of law. Habermas's approach to 221 legal literature is highly selective, and it is typical of him that he is familiar with the American legal philosophy and constitutional law literature, and with those parts of the German legal literature that have been influenced by American legal philosophy in the last 30 years. Thus, John Rawls and Ronald Dworkin from the USA as well as Robert Alexy and Ralf Dreier, who have continued this line of thought in Germany with great influence, are to be mentioned as central authors in his analyses. In recent years, they have distinguished themselves in Germany as "constitutionalists" from the "legalists", who have concentrated on traditional legal doctrine and the rules of law (cf. Dreier 1988). Habermas' treatment of legal literature shows that from his perspective, entire schools of legal theory have fallen out, which in turn have become the dominant schools in Germany in recent decades and on the basis of which generations of lawyers have learned law in legal education. The "legalists" deny the legitimacy of a broad doctrine of fundamental rights and see it as a decomposition of law; the "constitutionalists", on the other hand, place the focus of law on fundamental rights and consider it possible to derive current legal decisions from them, right down to the individual case. Habermas' reading material predisposes him to a "constitutionalist" position: to this reading material - including Dworkin's legal analyses - Habermas attributes, for example, the great cognitive indeterminacy at the level of the law, which the judge must remedy in the individual case by filling in the incomplete normative framework through concretisation (Habermas 1992:298). A legal scholar who takes the legal dogmatic level seriously, on the other hand, knows that provisions that appear indeterminate to the layperson - in the light of the legal dogmatic categorisation underlying the rules - must be interpreted by judges in a series of routine steps in a number of defined directions, and if they are not, the correction of the Court of Appeal will compensate for this. Habermas, following Dworkin, accepts the thesis of cognitive indeterminacy, but his radical democratic stance does not allow him to follow his solution by pushing the basic constitutional court into the role of a comprehensive solver of this problem. While his selective reading of the legal literature connects him to the assumptions of the legal theorists who founded activism, his democratic position mentioned above does not allow him to accept activism - as do the "legalists" who reject activism. However, the tension between his reading material and his position has, in our view, proved fruitful for the way he presents arguments for rejecting activism, and on the other hand, this rejection takes place after a "deeper admission" and prior reflection on his part, in contrast to what one finds in much of the writing of legalists, who often avoid this and reject activism ab ovo. It should be noted that this hesitation also leads to some degree of ambiguity in his final position, and inconsistencies can be found in some of his analyses in this regard. His radical democratic stance becomes clear when he analyses arguments that question the legitimacy of the Constitutional Court itself. How can it be compatible with the idea of popular sovereignty and the separation of powers for the laws of parliament to be subsequently reviewed by an unelected body? He argues that it would be more in line with these principles if Parliament itself were to establish a quasijudicial body from its ranks to undertake this task. "Therefore, it is by no means wrong to think that this function should be reserved for a secondary body that ensures the self-control of the legislature." (Habermas 1992:296; and repeats the same later in a different form on p. 309). It also does not escape Habermas that Hans Kelsen, who worked at the cradle of the European constitutional courts, could not justify the substantive control of the Constitutional Court, unlike Carl Schmitt, who wanted to abolish the Constitutional Court, but could only justify its control of the constitutionality of the legislative process (Habemas 1992:297). What emerges from these analyses is a picture of a narrowly defined model of constitutionalism, and as we shall see, in some respects this can also be seen as Habermas's "official" position on the subject. However, when confronted with the position of liberalism in the European sense - Habermas points out that the doctrine of American "liberalism" corresponds to social democracy in the European sense - which seeks to reduce constitutionalism to a narrow field, he rejects it: "Whatever one's position on the question of the proper institutionalisation of the separation of powers, a return to the liberal understanding of the state, according to which fundamental rights are only subjective rights of freedom vis-à-vis state power and do not constitute binding basic norms vis-à-vis all areas of law, is neither necessary nor possible." (Habermas 1992:319). If one looks at the traditional camp division "constitutionalists versus legalists", Habermas' arguments speak for the activist and the constitutionalist camp. However, his actual position does not fall into this camp. He favours a proceduralist model of constitutionalism, which does not allow the Constitutional Court to review the content of laws, but which must review the actual participation of affected people in 222 the legislative process, and if the participation rights of citizens and political organisations are not represented, the Constitutional Court is entitled to declare the law unconstitutional. "Such a procedural interpretation of the constitution gives a democratic-theoretical twist to the problem of the legitimacy of constitutional jurisdiction" (Habermas 1992:321). With this, Habermas merely repeats what he has already established in his table of fundamental rights: It is the empirical political wills of parliament and citizens that are entitled to formulate concrete measures of the fundamental rights groups derived from the idea of rights, not a system of natural law from which a constitutional court can derive them. In summary, Habermas' concept of constitutionalism can be summarised as the propagation of a certain kind of activism that can only have its justification in securing the real democracy of parliamentary legislation, but which condemns an activism that marginalises parliament. 223 Chapter VIII The American Theory of Law 1. The stages in the development of american legal theory The development of American legal theory began in the 1870s with the introduction of law courses at universities. Over the course of the last century and a half, American legal theory, after initially importing English and later continental European, especially German and French, theories, has increasingly become an exporter in the field. The large number of law schools at universities and their competition with each other can produce a variety of theoretical paradigms that are now commonly followed or at least constantly discussed in countries with modern legal systems. Building on the analysis of the history of legal theory set out in Chapter VI, a sketchy summary of the development of American legal theory over the last century and a half and of contemporary trends can be given as follows (see Grey 1996; Duxbury 1993; Ansaldi 1996; Hunt 1986; Tushnet 1991; Szabadfalvi 1996). The starting point is Langdell, who in 1870 did not simply rebuild American legal education on the basis of case law, but based it on the university degree, and he developed the system of university legal education itself at Harvard, which was soon followed by all universities in the United States. It is thus Langdell's inestimable merit to have made law a university subject. A farreaching consequence of this is that he also brought the study of law into the university and created the possibility of a neutral jurisprudence divorced from direct moral and political considerations. It should also be noted that Langdell did all this in what can be considered the most law-infused and court-centred society in history, so the possibility of jurisprudence that he created was well justified, as his subject is central to that society. Although there is much debate among historians of American legal theory, this overview allows us to distinguish between four schools of legal theory in the hundred years between 1870 and 1970: classical legal theory (1870 - 1895), progressive legal theory (1895 - 1925), legal realism (1935 1945) and procedural legal theory (1945 - 1970). Since the 1970s, the disintegration of the earlier schools and their new emergence have shaped trends in legal theory, and in particular the moral philosophy of law, the economic theory of law and critical legal studies have become dominant points of reference in academic legal scholarship and legal practice. In recent years, a trend has re-emerged among influential legal theories that adheres more strictly to the wording of statutes and precedents and to the original intentions of the earlier legislature, which has become known as textualist or originalist legal theory, but which is less popular in academic legal circles than among lawyers in legal practice. 1.1. The development of American legal theory between 1870 and 1870 1) Classical legal theory is also referred to as Langdell jurisprudence, because although Christopher Columbus Langdell's theoretical achievements are often downplayed in recognition of his importance as a pedagogical organiser, some simple basic legal theories show a distinct concept of law in him. Law must be formal, systematic and autonomous, he says, and it is in the context of these three axioms that he further defines his concept of law. By the formality of law, he means that the law should leave 224 no discretion to the judge in his decision and that the law should give the judge discretion in his decision. Systematicity means that even the detailed legal norms must be derived from some basic categories, principles and laws and tend to be traceable to some of these basic categories, principles. And the autonomy of law means that legal norms must not be subject to direct moral considerations, political values or goals. To avoid misunderstandings, it should be noted that it is important to emphasise the distinction between immediate moral evaluation in law - both in the creation of law and in its application in individual cases - because, apart from the simple moral truths of the Ten Commandments on which everyone agrees, the moral sensibilities of different social classes and groups are stratified, and the preference for contradictory moral aspects or even their marginalisation in favour of other moral aspects is emphasised to different degrees in different groups. Thus, when immediate moral evaluation is not isolated from law, the particular moral value standards of the social groups with immediate access to the application of law become the decisive ones at the level of society as a whole. In democratic political systems, where legislators have to face society every few years in elections and can be replaced by the votes of millions, the passing of laws that run counter to society's moral consciousness leads to their removal. In this way - and through the comprehensive system of legal principles and legal concepts, which also contains summaries of many hundreds of years of moral evaluations - the most comprehensive moral aspects are constantly present in law, or, to put it philosophically: they are present in law in a rapturous way. This structure of law forbids a return to direct moralisation in judicial decisions, for this would substitute for comprehensive moral evaluation the ad hoc morality of a small group of judges and other jurists in control of the law (the German Canaris calls this a more comprehensive order of justice that supersedes ad hoc justice and is embodied in the legal dogmatic order, see Canaris 1968). The constant emphasis on the systematic character and autonomy of the law, as well as its reinforcing character, make Langdell formalism the strongest possible (Grey, 1996:496). e.g. if a solution would obviously be more practical and convenient for all concerned in the design of a legal provision, it is not possible to formulate the provision in question in this way if it would lead to inconsistency at the basic categorical level. The protection of the system as a whole requires that such considerations be sacrificed. This all-society view of law was characterised by the retention of a marginal role for the state, a laissez faire market orientation, freedom of contract and the primacy of the inviolability of private property. It was also a rejection of the possibility of consciously shaping society, which implicitly meant protecting the status quo and traditions. This philosophy of society was well expressed in the so-called "social philosophy". The Lochner case, decided by the US Supreme Court in 1905, was an example of this social philosophy. This case concerned a New York State law which, in the final stages of a legal dispute, limited the working hours of bakers to ten hours per day and prohibited the conclusion of employment contracts with longer working hours. The majority of Supreme Court justices held that this provision of the law violated the 14th Amendment, which proclaims freedom of property and contract. The state may not interfere with freedom of contract, they declared, declaring the law unconstitutional. The judges, who remained in the minority, argued that this was the position of an economic theory opposed by other theories, but on which the US Constitution took no position. The rejection of government intervention and the belief in regulating the market as much as possible was the public law aspect of the Langdell jurisprudence, which led to a pro-market interpretation of the Constitution. The later Lochner decision was branded as the culmination of conservative judicial activism that went beyond the constitutional provision and ruled according to political considerations. In summary, classical legal theory was based on a formalistic-systematic law, on a rigid system of legal concepts, on the limited possibilities of the legislator to regulate society, on the omnipotence of the market and on the subordination of judges to the text of the law and a system of legal concepts. 2) The main figure of progressive legal theory was Oliver Wendel Holmes, followed by Roscoe Pound and Benjamin Cardozo, and this movement was most influential in the first quarter of the 1900s, but retained some of its influence in the new era of the New Deal. They shared classical legal theory in that they attached importance to abstract legal concepts, albeit no longer in rigid form as definitive substantive categories but as looser classifications, but what was new was that they placed greater emphasis on the active role of the legislature and the role of law as an instrument for shaping the future in the interest of social goals. The jurists' view as engineers of society provided the core of their conception of law. For this reason, they rejected derivation from a rigid conceptual framework 225 and emphasised the impact of short-term social interests and impulses. In other words, the systematic law of the classics, which was judge-centred and tied to the past, was replaced by an image of law open to ad hoc social influences, focused on legislation and open to the future: "Law was seen as a means to the end of the welfare state, with political goals rather than abstract principles as key categories, with legislation rather than courts as the main institutions, and with these serving social engineering rather than the construction of a conceptual geometry" (Grey 1996:498). In doing so, they broke with the autonomous, self-interested character of law and turned it into an instrument of social ends for the politics of social formation. In doing so, they also relegated the logical unity of law to the background, although on a theoretical level they did not question the formation of abstract categories, but only the emphasis on their systematisation, which was a central tenet of classical legal theory. It was emphasised again and again that the courts must adapt to the goals of the legislature and not resist its changes. This is also because in the context of accelerated change, it was no longer considered sufficient for judges to develop the law by analogy and case-bycase examination. What is needed are scientific legislative projects with a broad overview, and therefore judges should not oppose them. Grey points out that during this period, the hitherto dominant and apolitical positions of classical legal theory also acquired a political-ideological role in the ideological repertoire of political forces opposed to the conscious shaping of society (one expression of this was the aforementioned Lochner decision of 1905). In contrast to them, the "progressive lawyers" are un. In contrast, progressive lawyers wrote "Brandeis letters" to judges deciding particular cases, to legislators citing examples and comparative foreign implementations to enact a rule or encourage judges to rule in a particular direction. In other words, this approach to law encouraged the spread of the politicised, committed type of jurist. Among the successors to progressive legal theory is policy jurisprudence, a socio-political legal theory that emerged in the years after World War II from the views of political scientist Harold Laswell and legal scholar Myres McDougal at Yale Law School. This approach turned law as a whole into an instrument of social policy and exacerbated the notion of law as "social engineering", as a kind of after-the-fact theoretical underpinning of the jurisprudence of the New Deal policies of the time. However, this development no longer had an impact on the legal profession beyond law schools and jurisprudence, for whom procedural legal theory had become dominant. 3) The theory of legal realism was developed by a generation of younger jurists who, after the turn of the century, took their cue from the dominant stratum of jurists - the most important representatives being Llewellyn and Jerome Frank - and, continuing the critique of Langdell's abstract-formalist jurisprudence, turned their interest from legislation to legal practice. It is true that they focused in an authoritarian way on how much actual decisions differ from the way judges cover the decisions they make. Basically, judges are characterised by an unconscious habitual attitude, even if they try to disguise this in their superficial arguments and outwardly invoke abstract legal principles, the realists argued. They also differed from the progressives in that they had completely abandoned the use of abstract categories. For example, they considered an abstract and comprehensive concept of attempted offence unthinkable and saw the elements of the attempt phase as definable only in relation to individual offences, taking into account the specific characteristics of each offence. In general, however, they rejected any more abstract formulation. The activity of the legislature was alien to them, and they considered only the smallest possible role of the legislature in legislation acceptable. They emphasised the study of unconscious, irrational factors in judicial decision-making, since judges actually make their judgments on the basis of these factors, even if they disguise this with pseudoexplanations. An important feature of the realists was the social science of jurisprudence. While jurisprudence, in defence of factual treatment captured by and selected only through a system of legal concepts, tended to shun the social sciences that process concrete social facts, the realists sought to open up the judicial decision-making process to sociology and other social sciences. In other words, they not only opposed the conceptual world of law, but tried to replace it with a conceptual apparatus of the social sciences that was different from it. Approaching the social reality of the case thus meant for them both a turning away from legal conceptual abstractions and a concentration on the social science context when considering the case. Both together led to the removal of the systemic separation of law and the social world. Their political influence was interesting because they were most active during the New Deal. Their 226 books offered a good argument to the New Deal apparatus that fought the judges' opposition by publicising the discrepancy between the judges' actual decisions and their misstatements, but the majority of advocates of realist legal theory were by no means in favour of the New Deal. 4) The main figure of proceduralist legal theory is Felix Frankfurter, whose followers developed this movement in the post-war years and dominated it in the United States until the late 1960s. In fact, it was the successor to the progressivists, and after a brief realist interlude, it became central to American legal life, albeit with a new focus. They differed from them, however, in that they placed the importance of the legal process above all else and no longer advocated the free social design of state legislation with the same fervour as the Progressives. With regard to the judicial process, two things are worth highlighting. First, they not only placed the judicial process at the centre of the law and emphasised its importance for legal life, but they also sought to marginalise the state more and give a greater role to judicial law-making. However, the formative role of the state legislature in substantive law was recognised. Another achievement was the development of abstract categorical frameworks and conceptual systems of procedural law focusing on procedure. Just as classical legal theory established the conceptual framework and categories of substantive rights, it did the same in the area of procedural rights. In addition to their conception of law as a whole, they emphasised the importance of procedure. Its marginalisation in the 1960s was ultimately due to its internal discord caused by disputes over its relationship with the federal Supreme Court under the leadership of Chief Justice Warren, who espoused liberal activism. The majority condemned this activism, which led to a reinterpretation of the US Constitution. In the process, it was the chief justices themselves who brought about fundamental social change and did not leave this to the legislature, but reinterpreted all of American law to the disadvantage of those affected. This liberal activism found its symbolic expression in the Brown decision of 1954 - as well as in the Lochner case for conservative activism. In that decision, the chief justices declared the segregation of coloured students from white schools unconstitutional because, the justices argued, it could lead them to rekindle their racial inferiority and thus lag behind in their development. Critics of this decision later showed that the opposite argument was more valid, and that it was precisely segregation that would have protected developing children from the perception of racial differences and only later, when they were confronted with them, allowed for more harmonious socialisation. The activist characterisation of this decision is justified, however, as a decision that so fundamentally changes the established state of American society should not have been made by judges but left to the legislature. Frankfurter saw this type of decision as nothing more than a reflection of the conservative activism they fought during the New Deal in the 1930s and the same sins that today's liberal activists commit by directly politicising judges and violating the rule of law they threw in the face of conservative activists. Although this direction was supported by only a minority of litigants in the 1960s and the majority agreed with Frankfurter, the controversy led to the disintegration of the movement. 1.2. Current trends in American legal theory In the first century of its development, American legal theory essentially reproduced the main themes of European legal theory: whether law is a conceptual system, as classical legal theory (and conceptual jurisprudence in Germany) said, or whether it should be close to the circumstances of the case, as the realists argued (and the free thinkers in continental Europe); whether law is determined by the legislature or rather by the courts - as progressive legal theory and the realists argued. Only two specific developments beyond European influences can be identified in this period. One is that the social engineering of the state through law, as expressed in the concept of social engineering of law, was not advocated by influential legal theory in European countries. Another specific development is the emphasis by the proceduralists on the centrality of procedure, which also stems from the peculiarities of the common law and which the developing American legal theory was able to formulate into a theoretical doctrine. The three main schools of thought that emerged from the 1970s onwards essentially emerged 227 from internal debates on legal theory and were not intellectual imports into American law schools. 1) The moral philosophy of law, also known as fundamental rights-centred moral philosophy, emerged from the civil rights movement of the 1960s and was inspired by the radical minorities of the dissolving proceduralists: "Liberal legal theorists have moved from the cautious and proceduralist judicial activism of the post-New Deal era to a more aggressive and profound activism. The 'philosophy of law and morality' movement sees the judge as a practical philosopher whose task is to use fundamental rights as a means to override the political compromises and goals achieved in the legislature of a simple political system" (Grey 1996:505). A fundamental difference with the proceduralists is that attention shifted from legal procedures guided by precise rules to the abstract argumentation systems of moral philosophies. Initially, they emphasised the role of legal principles, but understood them as moral principles rather than dogmatic legal principles that ensure systematics, as was the case with the classicists at the end of the 19th century. Later, the focus of law became more clearly on fundamental constitutional rights and less on legal principles (see Dworkin 1977). 2) The tendency towards economic analysis of the law spread in the conservative and centrist legaleconomic circles, which criticised the over-regulation of the economy and society, claiming that it favoured the organised interest groups and that the lawyers as well as the top officials of the administration were the beneficiaries of these policies. They want a freer definition of the market and the economy, and they want to reshape the law accordingly. There are two internal directions to this approach: "The more centrist legal economists tend to emphasise the need for changes in regulatory practice to better mimic the efficient market in law, while the more conservative direction emphasises the efficiency of the legal system over the welfare state" (Grey 1996:506). Richard Posner, an important representative of economic legal theory, identifies two internal trends on different bases. He distinguishes between a normativist and a positivist approach on the grounds that the former is closer to the internal view of law, while the positivist approach today is predominantly economic (Posner 1981). The first writings on the normativist approach were by Guido Calabresi in the early 1960s, who analysed the issues of risk sharing and private liability. The first representatives of the positivist movement were Ronald Coase and Gary Becker in the late 1950s. Economic legal theory became increasingly successful in universities in the 1970s, and its influence on legal practice became strong in the 1980s, when the presidency of Ronald Reagan marked a break with nearly half a century of increasing government intervention and a return to marketoriented social organisation in the United States. This administration deliberately placed prominent professors of business law and their students in leadership positions. (This can hardly be said of critical legal scholarship, whose influence is limited to academia, and of the influence of the moral philosophy of law, which, however, has had an impact outside academia. See Scheuerman 1999:209232). 3) The Critical Legal Studies movement (CLS) emerged from former liberals who, like the New Left in the broader American intellectual-political movement, had become disillusioned with the liberal reforms of the 1960s and had founded the Critical Legal Studies movement as a legal branch of the New Left. The New Left got its emotional-political charge from the social unrest of the Vietnam War and its theoretical starting points from 20th century Marxist sources (Gramsci, Frankfurt School, etc.). Among the best-known "critics" are Roberto Unger, Morton Horwitz, Duncan Kennedy and Mark Tushnet, who see the radical liberal rights conception of fundamental rights as part of capitalist ideology. Morton Horwitz, for example, who has summarised the development of American law from the 1760s to the present day in two major treatises, argues the main thesis that since the end of the 19th century, American judges increasingly began to reinterpret the rules of the common law in the interests of commerce and at the expense of other social classes, which he believes is reflected in the transformation of a number of private law institutions. While a conceptual jurist would perceive such a change as a renewal of legal doctrine, for Horwitz it is an expression of underlying socio-political shifts in power. The 1980s were the peak of this movement, which became incredibly colourful and split into many internal movements. But it can also be seen as a decomposition phenomenon. According to analysts, the CLS reached the peak of its success in American law schools in the mid-1980s and has slowly declined since then. The main reasons for this are generational differences within the movement and the emergence of competition due to the development of feminist and anti-racist legal theories, despite a similar approach 228 to values. For example, while proponents of feminist legal theory and legal groups focused on supporting racial minorities see fundamental constitutional rights as their most important tool, for CLS they are nothing more than a hidden instrument of the ruling classes to enforce their rule, falsely claiming to base the right on overarching moral principles. The main criticism of CLS is directed against liberal legalism whose four main features are attacked: 1. its proponents separate law from the other control mechanisms of society; 2. they see law as objective rules that regulate the exact scope of its norms and also their application; 3. these norms are objective and legitimate in contrast to the subjectivity and particularity of other norms; 4. finally, the predictable judicial decision from these norms is promised by the proponents of liberal legalism. This belief was shaken by the realists, and according to them, the earlier unexplained belief in these premises was not restored, but only the advent of CLS in the late 1970s brought these premises back into play, their proponents claim. The main critique of liberal legalism is described as follows: "At the heart of the critique is the claim that the liberal notion of the objective nature of the operation of rules to resolve systematic conflicts between individuals and community interests is fundamentally flawed. At best, the resolution of conflicts of interest is an arrangement that reflects the inequality of power and control over resources between parties while presenting them as overarching and universal norms. (Hunt 1986:5) Of course, CLS believers can be accused of seeing only the emergence of extra-legal power in law and rejecting the partial taming of the external inequality of power altogether. It is true that the majority of CLS adherents do not accept the complete short-circuiting of law and class interests, and the thesis that "law is the will of the exploiters cast in laws", as Marx claimed, does not occur to them. The Marxist instrumentalisation of law is rejected by all CLS adherents. A new phenomenon in Western Marxism is the emphasis on the role of politics and ideology rather than economics in the oppression of the subordinate classes and the acceptance of oppression. This brings to the fore the mechanisms of ideology and legitimation that characterise the CLS understanding of law. Although the interests of the ruling classes have long been anchored in the law and ultimately determine the law, they are also concealed and therefore accepted by the subordinate classes because of the apparent neutrality of these rules. Thus, the CLS does not emphasise that law is the enacted will of the ruling class, but that law obscures the fact that legal provisions ultimately create subordination, and is instead presented by liberal legal scholars as the realisation of universal values. In contrast to Ronald Dworkin, a major exponent of the moral philosophy of law, the possibility of a one true answer is not asserted in legal theory because Dworkin starts from the sociological assumption that the political community has a common set of values and that from there a rational argument can be used to arrive at the only correct solution. Well, they deny this background assumption because classes in society have different moral values and legislators and judges make decisions based on the morality of the dominant groups in society and suppress the moral values of the subordinate groups. The thesis "law is politics" is a proof for all CLS authors, so that the legal opinion and the legal debate are also politics, politicisation. 2. The economic concept of law and Posner's theory of law The law-and-economy movement had been developing in the United States since the early 1960s, but it was not until Richard Posner summarised its most comprehensive features in a monograph in 1973 that it came to the attention of the wider legal community. From then on, it gradually became one of the most influential legal concepts in American legal life, and in recent years it has become established in a number of countries. In this part of the chapter we will look at it. 2.1. The emergence of the economic theory of law In the United States, from the late 1950s onwards, a trend developed in legal theory that focused on the logic of the market to regulate private law and interpret the law. In the following years, this initiative was 229 extended to other areas of law and also applied to criminal, administrative and constitutional law problems. In our theoretical framework, the basic question that arises here can be formulated as follows: If the logic of the modern legal structure focuses on the right/wrong dimension of valuation, how can this be reconciled with the possible strengthening of the profit/non-profit dimension of the market logic of valuation within law? To answer this question, it is necessary first to consider the theoretical problems raised by the expansion of market logic, then to look at some insights from economic legal theory, and finally to examine the possibilities of an economic theory of law that separates the legislative-legalpolitical realm from the application of law. 2.1.1. Extension of the market logic The extension of market logic has been observed in two different directions in the social theoretical literature of recent decades, but the divergent nature of the two directions is not clear to many authors, and I believe that this problem persists in some writings on the economic theory of law. To sum up, in recent decades, on the one hand, a theoretical current has emerged that seeks to generalise the market logic found in the economic sphere and, after gradual generalisation, is now available as a paradigm for social theory, and, on the other hand, there are analyses that explore the market logic of profitability/non-profitability, narrowly conceived in the original sense, in social subsystems beyond the sphere of production economics. (It should already be pointed out at this point that in the economic theory of law these two tendencies are often confused!) The first step on the way to generalising market logic into a paradigm of social theory is perhaps the theory of democracy by the Austrian economist Joseph Alois Schumpeter. In his analysis of political democracy, the economist Schumpeter concluded that competition for votes in elections between politicians and political parties is in fact equivalent to competition for profits between entrepreneurs in economic logic. In other words, the terms of competition are simply different: a product is sold for money here, a policy for votes there, but ultimately political democracy can be understood as a political market alongside the economic market. This initiative was taken further in the late 1950s by the American Antony Downs, who developed a comprehensive "economic theory of political democracy" (see Downs 1962). The logic of market exchange was defined much more broadly by the American sociologist Peter Blau in the mid-1960s with the creation of the "theory of exchange". Blau drew on two sources. On the one hand, the German sociologist Georg Simmel undertook a sociological analysis of "gratitude" at the turn of the century, in which he conceived of it as a specific form of economic exchange that, after a voluntary donation of some kind, requires the recipient to feel gratitude and to translate that gratitude into or express it in a certain way in relation to the giver. (If someone does something negative to a person who has previously given him a voluntary donation, his close environment, knowing about it, will morally condemn him, and indeed such an "ingrate" will feel that he has hurt "something"!) This, then, is Georg Simmel's generalisation of the narrow market exchange. Another influence on Blaura was Talcott Parsons' theory of the "medium of exchange", through which Parsons attempted to identify specific exchange relations in social subsystems beyond the economy through other media, generalising from money. In politics, for example, "power" is exchanged for a decision that affects the community as a whole, and the effects of those decisions increase or decrease the amount of power available in the next period, depending on how members or groups in society value those effects, Parsons says). Blau thus conceptualised cooperations in various fields as different types of exchange in a general theory of exchange, both of mutual contacts in love or friendship and of contacts in cooperations between colleagues in an office. Finally, in the early 1980s, these various initiatives were integrated by "rational choice theory", which is now one of the most modern social theoretical paradigms, mainly in American universities, but also with minor influences in Western Europe (there are also some adherents of this approach among the few theoretically oriented scholars in the domestic social sciences). In addition to the generalisation of market logic into a paradigm of social theory, however, the effects of market competition in the narrower sense - for higher incomes - on social subsystems beyond the sphere of the production economy continue to be analysed. For example, Joseph Ben-David analysed the university market in the early 1970s; the effects of the sports market are studied by a number of sociologists in Germany (e.g. Karl-Heinz Bette); the newspaper market and the market for radio and 230 television stations are also analysed in the sociology of mass communication; but the structure of the lawyers' market and its effects on the legal system are also the subject of numerous studies. The fundamental difference between the two extensions of market logic is that the first considers the activities and interactions existing in the various spheres as a subset of the "general exchange", thus eliminating the various specificities, while the second - market logic in its original, narrow sense - leaves the independent rationality of each sphere intact, inserting only the aspects of profitability logic alongside it, and then examines the compatibility of the two different rationalities in each sphere, or. and contradictions between the two rationalities. Thus, in evaluating the economic theories of law, we must keep in mind the extension of the two different market logics and their differences. 2.1.2. Elements of the economic theory of law In a 1960 article by Ronald Coase, one of the founders of the economic view of law, the novelty that distinguishes this approach from the traditional view of law becomes clear: "The traditional approach was apt to obscure the nature of the decision to be made. The question is usually treated as if A has caused harm to B and the question is how to prevent A from doing so. However, this is a wrong approach. We are dealing with a problem of reciprocity. Preventing B from doing harm would cause harm to A. So we need to decide whether A should be allowed to harm B or whether B should be allowed to harm A. The question is how to avoid the greater harm." (Coase 1984:202) Coase's answer to this question is that if one shifts the perspective and looks not at the narrow interests of one party or the other, but at the cost implications at the level of society as a whole, compensation should always be allocated to the party that can avoid the harm with the least cost. So, in a given case, it is the potential victims who should take precautionary measures to prevent possible harm, and not the actor causing the threatened harm. Another component of Coase's theory concerns the relationship between law and the regulatory power of the market. "The importance of legislation for the allocative power of the market is in fact related to its role in creating the principle of exchange through the institutionalisation of property rights. Property rights leave available resources as much as possible to the exclusive use of individuals. The market takes over the specific grouping of rights of use; it cannot do this as long as the free transferability of property rights and thus the possibility of their exchange is guaranteed" (Behrens 1984: 88). To illustrate this point, here is a concrete example. A railway company and a landowner are faced with a situation where sparks from one of the railway company's locomotives regularly burn the surrounding land. According to Coase's theory, the law can only seem to keep order in such situations, as it will always ultimately come down to which activity achieves a more efficient use. "Either the railway has the greater use, in which case the railway will buy the farmer's right to destroy the crop, or the farmer's crop is more valuable - in which case the farmer will get the railway company to stop destroying the crop by paying compensation." (Behrens 1984: 88) Only if the transaction costs are too high for the parties to seek alternative solutions, and thus the market logic is constrained, can market participants escape this situation - and then the specific allocations of use by law cannot really be overridden by the market. The notion of "transaction costs" states that any decision by individuals to use resources in a different way, and thus to redistribute use rights through exchange, involves costs. The costs of information and new decisions etc. therefore often prevent the use of competitive paths - i.e. too high transaction costs entrench the logic of market competence, and only then does the allocation of rights between the parties created by the legal regime become relevant. It also follows from these considerations that once ownership is merely fixed and guaranteed - in the case of pure market competence - the logic of the economy is better suited to regulate activities than when the law intervenes with its regulation. In such a case, the logic of the economy takes precedence over legal regulations anyway. The theory of "collective rights", which is an important basis for economic analyses of law, defines the optimal level of regulation by the market or, conversely, by the public sector as follows. The starting point is that the market can organise more efficiently those activities whose results can be controlled by the person performing the activity, so that he can barter access to the result of his activity (i.e. the consumer can only get the good against payment). Since anyone can get it for free, no one will contribute to its creation. But because of this, no one will take it upon themselves to produce it, even though everyone has an interest in doing so. It is up to the public sector to take on the production of such goods 231 and to finance the cost of it through taxes. From this theory can be seen the radical dismantling of the redistributive character of the welfare state built up over the last half century, and the economists' maxim that "nothing is more expensive than the gratuitous" is an expression of this; there is no greater waste in the creation and use of goods than when they are organised outside market control. The only justification for this is the classification of goods as "public goods", but from now on it is market control that must be implemented. In his 1972 work, the American jurist Richard Posner summarised the previous initiatives in a comprehensive study. Better than he shows, by analysing the law from the logic of economic profitability, he not only shows legislators a new perspective in developing models for the design of the new legislation, but also makes profitability a central consideration in deciding individual cases. "Posner reconstructs "negligence" along the lines of Judge Hand as follows: The defendant (the injured party) is liable on the basis of "negligence" if the probability of the accident occurring and the damage caused by the accident exceed the cost of the precautionary measures that would have prevented the accident" (Sajó 1984: 23). However, the new analysis did not stop at the boundaries of private law and meant an expansion of the economic analysis of law when, in the late 1960s, the concepts previously applied to the exchange of goods were transferred to crime and criminal law. "A person commits a crime because he can obtain a greater pure profit from it than from any other lawful act he can be expected to perform. The offender's decision, like all professional decisions, depends on monetary and non-monetary benefits (Veljanovski 1984: 49). Whereas in the earlier usage the economic analysis of law was still tied to the narrow logic of profitability and the terms of exchange expressed in money, here, as we have seen in Peter Blau's generalisation of the "theory of exchange", exchange (crime and punishment) goes beyond the dimensions of monetariness. "From a theory that views crime as a rational action, it necessarily follows that any factor that reduces the expected utility of criminal activity ... reduces the extent of criminal involvement in crime. The punishment provided for in criminal law is something like a "price", a consideration that reduces the potential criminal's expected benefit from the crime." (Veljanovski 1984: 49.) Empirical estimates by the American criminologist Isaac Ehrlich, for example, suggest that there were about 7-8 deterred murders for every death sentence in the period 1935-69. 2.1.3. Evaluation of the economic theory of law As a starting point for our assessment, we need to distinguish between theories that extend the logic of the market towards a general theory of exchange and those that focus on the logic of profitability in a narrower market. The former include, for example, the analysis of crime and punishment as "specific exchange" or the theory of "politics for votes" in the political system in relation to the right to vote. The flaw in this approach is that, while it is thought-provoking in some cases, it leaves out the specific contexts and motivations and thus misses the point of interactions that are alien to market exchanges. The introduction of a narrowly defined viability market logic must therefore be taken seriously in the analysis of the law from the outset. Again, it is important to distinguish between proposals to transfer the logic of profitability to legislative-legislative-political procedures and its transfer to concrete judicial decisions. In the latter case, this jurisprudence asserts itself as a new method of legal interpretation that guides the judge in his assessment of the individual case. The Posner's Hand formula was used for this purpose. In the field of private law, including property law, the logic of profitability can only give specific accents to the concretisation practice of the judiciary. If this interpretation leads to legal rules and decision-making criteria being pushed into the background, this can of course also lead to the logic of right and wrong being pushed into the background. In that case, however, it makes more sense to create a judiciary with training in economics, since judges have only a limited ability to follow the profitability argument and to process the information required for it. The impact on the application of law can also be seen in the fact that the economic analysis of law increases the "impact orientation" of judges in their judgments. In a way, this shifts attention away from considering general principles of law and encourages the analysis of individual consequences. Economic theories of law, however, primarily make suggestions to the legislature and legal policy as to how regulation should be shaped. Here the orientation is inherently colourful, the code of political 232 evaluation "stay in government/go into opposition" is just as present as the right/wrong, so that the regulatory alternatives thought out from the perspective of profit logic only colour the field. In our opinion, the economic analysis of law, precisely because of its focus on the field of legislation, is less important from the point of view of the internal logic of law, but rather from the point of view of proposing the incorporation of the logic of profitability in the most diverse areas and institutions of society, or from the point of view of the models theoretically developed according to such proposals, and adapting its proposals for legal regulation to this. In other words, the marketisation of society is the backdrop he emphasises, and he adopts a market-oriented view of every sphere when drafting his legal rules. An excellent example of this is Richard Posner's analysis of family law, in which he links adoption to an analysis of the benefits of a 'free market for babies', but constructs the whole institution of marriage as a commercial society (see Posner 1984:158-162). It should be noted, however, that his analysis of the different spheres is too much reduced to the market aspects of the spheres in question, so that the mechanisms that provide the intrinsic valuations and motivations are lost from view. For example, the science market is not only shaped by the logic of profitability, but also by scientific rationality, but the same is true for the sports or art market. The emphasis on the role of the market in economic theories of law is thus one-sided, and the cooperating mechanisms of "double rationality" are only half captured by this approach (cf. Pokol 1988). However, this goes beyond the analysis of the internal problems of law, but can only be criticised from the perspective of a general social theory. The world of right and wrong and the dominance of the binary code in the legal sphere are thus not abolished by the economic theories of law. 2.2. Posner's theory of law Economic legal theory became known in Hungary as early as the mid-1980s, when a selection of the movement's works was compiled and translated in 1984 (cf. Harmathy/Sajó 1984). However, the volume was hardly in demand by Hungarian legal theory. In the meantime, however, this trend has become one of the - perhaps even the dominant - legal concepts in the United States, beyond the academic legal community, in the legal practice of many countries in the developed world, and interest in the possibilities of economic legal theory is also growing in Hungary (cf. Vékás 1998). All this requires Hungarian legal theory to engage more intensively with this legal concept. In this section we will focus on the theory of Richard Posner, one of the most important representatives of the economic conception of law. 2.2.1. Introduction Richard A. Posner graduated from Harvard Law School in 1963, but his 1972 book on the economic analysis of law soon made him known outside the United States. The economic view of law, with its underlying social theory of organising society as much as possible through the market, has also benefited from the change in the political climate since the late 1970s. The rise to power of political forces aimed at halting and then reducing the decades-long increase in state intervention and replacing the state organisation of society with the organising power of the market - in Britain under Thatcher and in the United States under Reagan - increased the potential of the economic approach to law and improved the career prospects of its advocates. Through research grants, university professorships, appointments to high-ranking federal judgeships and a range of similar supports, the economic approach to law became one of the dominant approaches in US law schools and the judiciary in the 1980s. Posner himself was appointed a federal judge, but he also produced, and continues to produce, an unprecedented wealth of publications and volumes. In the process, he has broadened his horizons and, by analysing the historical achievements and contemporary developments of legal theory and modern social theory, developed perhaps the most thoroughly thought-out concept of law of any legal theorist today. The most comprehensive summary can be found in his 1990 book, The Problems of Jurisprudence, which forms the basis for the analysis of his concept. One of the most important 233 features of his legal theory is the rejection of the re-moralisation of law, which he elaborates most clearly in his 1998 essay "The Problematics of Moral and Legal Theory". Since the moral philosophy of law is one of the most influential currents in contemporary American legal theory - and there are also supporters of this view of law in academic legal circles in Hungary - we will deal with it in the second part of the essay. In the third part, we will analyse the social theoretical assumptions of Posner's legal theory, which will make the characteristics of this legal view more understandable. Finally, in a separate section, Posner's work as a judge will be evaluated, since his daily judicial activity is the most concrete expression of his conception of law. (Posner has been a judge on the Seventh Circuit Court of Appeals in Chicago since 1981 and was appointed Chief Justice of that court in 1993). The material for this evaluation is provided, among other things, by an analysis of Posner published by the Chicago Council of Lawyers in its Judicial Evaluation series and available on the Internet at http://www.chicagocouncil.org./federal.htm. 2.2.2. Problems of jurisprudence Posner lists ten fundamental problems of legal theory that he intends to address in his nearly 5,000page book, including the question of the autonomy of law (or, conversely, its direct involvement with politics, moral judgement, economic considerations); the possibility of the objectivity of judicial judgement - i.e. its determination by law and precedent - (or, conversely, the possibility of subjective ones - power, political, personal, etc.); the inevitability of the involvement of political, political, personal, etc. - the inevitability of the inclusion of political, policy, etc. aspects into the judgement); the organisation of jurisprudence according to aspects of compensatory, retributive or distributive justice; the possibilities of the role of the judge, the scope of judicial discretion in reaching a judgement; the sources of law; the role of customs and traditions in law; the methods of legal interpretation and, finally, the possibilities of incorporating social science findings into the formation and application of law and, last but not least, into legal education. Posner also devotes considerable time to analysing the responses of American legal theorists to these questions, so that his book, in addition to developing his own theory, also serves a useful function as a monograph on the history of American legal theory and its contemporary trends. (Against Autonomous Law) Its central thesis is to deny the autonomous logic of law, and all previous analyses and theories of law that claim this are drawn upon to support its truth. Thus, although it does not claim to be a successor to the legal realists - rather, it seeks to align itself with the views of Oliver Wendell Holmes, who pioneered the views of the legal realists - it draws heavily on the arguments of the legal realists against the myth of an autonomous logic of law. Laws and precedents leave a range of cases inexcusably open for judges to decide, and then the judges' personal political motivations, moral judgements and worldviews come into play. In addition to this main thesis, his analysis repeatedly points to the possibility of a cordial administration of justice when an important prerequisite is fulfilled: namely, when the legal profession, and the judiciary in particular, is socially and thus politically homogeneous. Then the moral values and socio-political goals underlying the legal texts remain uncontroversial and the administration of justice can function more or less smoothly. Difficult questions" arise when the judiciary and the legal profession are divided into internal groups socialised by the values and goals of very different social classes, and their conflict renders the issues underlying the legal texts contentious. In the 1950s, the disintegration of the former internal social and political unity in the American legal profession and judiciary accelerated, so that the predictable administration of justice based on statutes and precedents became utopian. This made the autonomous functioning of law - independent of political, moral, personal and other ad hoc considerations - impossible. Looking at this "informal" theory of law by Posner, it becomes clear that the vast majority of contemporary legal theories in the United States have a reason to open up law and link it to politics or another social sphere, whereas in European countries, legal theories of the autonomy of law are more dominant in scholarship and legal practice. Posner's observation also sensitises the analyst to the fact that the degree of internal politicisation of jurisprudence in European countries is still far below that of American legal life. This means that, according to Posner's theory, the autonomy of law and the 234 functioning of its autonomous logic cannot be denied to the same extent in Europe as in the present situation of politicised jurisprudence in the United States. Posner himself points to the situation in England: "The English judiciary is much more homogeneous than ours, and this allows there for a greater consensus on the premises of decision and thus a greater reliance on syllogistic deductions and reasoning" (Posner 1990:26). With this distinction in mind, it can be said that Posner's theory is essentially the theory of contemporary American law and can only be applied to the judgments of other legal systems in conjunction with a parallel examination of the premises just mentioned. It also follows that a number of trends in legal development that have been transferred from the USA to some European countries, including Hungary, in recent years - e.g. the effort to link the judicial administration of justice with constitutional jurisprudence and fundamental constitutional rights and principles, and the intensification of direct political-moral evaluations in the judiciary - can be put in a new light on the basis of Posner's analyses (from the "end of the road", as it were). In the present situation, given the disintegration of the American legal profession and judiciary into internal socio-political groups and their struggles, Posner sees no possibility for formal legal service, and he agrees with the two other main currents in contemporary American legal theory - the moral philosophy of law and critical legal studies - that there is no way out in this direction today. He, like the representatives of the other tendencies, therefore rejects the quest of the textualists/originalists, who have gained ground in American legal practice in recent years, for a formal and depoliticised legal service. But he also considers the views of critical legal theory, which argues for a complete depoliticisation of law, to be exaggerated, for he sees the possibility of depoliticised judicial decision-making in the majority of cases - the "easy cases" - even in the face of current domestic political struggles in American jurisprudence. Thus, Posner's legal theory appears as an intermediate position between the CLS's (Critical Legal Studies) total rejection of formal law and the textualists' demand for a complete formal law. In other respects, the textualists - Charles Fried, Ernest Weinrieb, Anthony Kronman, Alexander Bickel, Robert Teachout, etc. - admittedly play the role of the mediating middle, for against the poles of the hard, often Marxist-Leninist left of the CLS and the radical market advocates of Posner, a main strand of the conservative right in the United States, the demand for a politically neutral formal right is indeed a middle position. Posner is as ambivalent in his rejection of formal law as Dworkin's moral philosophy of law. He agrees with him that there are indeed direct moral concerns of judges in contemporary American jurisprudence, but he finds impossible the complete intertwining of law and the pursuit of moral justice in judicial jurisprudence desired by Dworkin and his followers. The main reason for this is that the moral judgements of judges and internal groups within the judiciary have been affected by the recruitment of blacks and all other sections of diverse American society into the judiciary in recent decades, by the views of law that have developed along different political ideologies (feminist, Marxist, ball liberal, Republican, etc.), and by the fact that the judiciary is now recruited from all other parts of the diverse American society are polarised), and so the immediate moral value judgement of the individual judge is juxtaposed with the moral judgement of other judges and other influential actors in the legal system. The re-moralisation of law is thus not the solution, but the moral fragmentation of society is masked by those who seek to do so. Beyond this, however, Posner sees a number of other problems with the re-moralisation of law. One consequence, for example, is that for the lawyer who has switched to moral arguments, the opposing party is not simply taking a different legally possible - position, but is the patron of evil as opposed to the morally good. Similarly, the judge who assumes this role shifts the legal debate to a deeper, moral level, thereby exacerbating the debates of everyday legal life (Posner 1990:232). On the other hand, the Dworkinists' over-moralised view of law can be criticised for often disguising particularistic political considerations as moral ones. In a first step, they clothe a party's political standpoints and interests in the garb of moral arguments, and in a second step, they present opposing political interests and opinions as evil that stands in opposition to "morality" (ibid.: 237). In sum, this amounts to saying that - if law can be re-moralised and thus re-politicised to a greater extent - the rule of law and law itself become null and void: "Dworkin's idea becomes ironic in that the more the rule of law is lost, the more broadly he conceives of law. Law loses its autonomy by first merging with morality, and then, having recognised that morally divergent views co-exist in society, by merging with political struggles and thus becoming non-law. Thus, when law absorbs the overarching principles of politics, the judge can practice politics in the certainty that he is actually applying law. Then the decision about who is right and who is wrong 235 in a particular legal case is made according to political friends and foes" (Posner 1990:26-27). However, the popularity of the moral basis of law is exploited to some extent by Posner to advocate an economic view of law. The basis of his economic view of law is that it is a function of law to maximise the good of society. This means that both in the creation of a rule of law and in the caseby-case application of an existing rule, the primary concern is not to enforce the right of the individual at any cost, but to consider the cost-benefit ratio of both parties to the conflict and their costs to society as a whole in the event of the victory of one of the opposing parties and the defeat of the other. After this weighing, a decision should be made in the direction that causes the lowest overall social costs, as this maximises the prosperity of society as a whole. Posner then first assumes that welfare maximisation in the language of economics is an expression of overall justice, so that an economic approach to law and the importance of overall societal welfare maximisation, rather than a mere "law-justice" calculus, imposes a certain aspect of morality on law. In a second step, Posner shows that the centuries-old tradition of common law has, without any theoretical reflection, spontaneously approached the consideration of the overall societal implications of the cost-benefit equation in setting precedents and deciding individual cases. A frequently cited example of this is the famous formula of Justice Learned Hand, who in 1947, as a judge of the Federal Supreme Court, considered the damages case before him to be one that could be decided on the basis of the cost to the defendant of preventing the damage or the likelihood of the damaging event occurring, and held, that compensation can only be awarded if the product of the amount spent to prevent the damage and the percentage of probability of the occurrence of the damage is less than the damage caused, while the defendant would be exempt from paying compensation if the amount was higher than the actual damage caused. From a societal point of view, the cost of avoiding harm is as important as the harm caused, and if the cost of avoiding harm is higher than the actual harm, it would be a loss to society as a whole if we were to force people through judgments in tort cases to try to avoid harm in such cases as well. For Posner, the Learned Hand formula is a clear example of the concept of economic law inherent in common law. With this argumentation, he also tries to reduce the strangeness of his point of view for lawyers, since the introduction of the logic of economics into law represents a radical change in the eyes of a legal profession that traditionally thinks in terms of right and wrong. Thus, Posner prefers to present traditional thinking on injustice as a one-sided thematisation of the "proper" common law, and tries to present the economic theory of law as a liberation from the common law. (Consequentialist interpretation of law) Placing law in the dimension of the overall welfare of society and assigning a function to law to maximise this welfare has a number of consequences for the consideration of certain legal issues. One such consequence is the standpoint taken in interpreting laws and precedents. Posner does recognise the possibility of objective interpretation in the light of legislation and its inherent legal dogmatic categories, but as long as the legal community is sociopolitically unified, this is no longer the case to the extent that more and more legal questions become 'difficult questions' and the moral and socio-political positions of different groups then lead to conflicting and equivalent judgments. The only solution then is for the judge to orientate himself on the consequences of the judgements and to always check his judgements against the maximisation of the overall social good and to pass the optimal judgement from this point of view. Posner's economic theory of law thus leads to a consequentialist interpretation of law. (The scientification of law) Another consequence of the welfare-maximising function of law is the demand in Posner's theory that law be based on the sciences - and, since law is the regulator of society, above all on the social sciences. The "social scientification" of law or the rejection of law is closely linked to the idea that law is an instrument of autonomy or, on the contrary, an instrument of social control. In Germany, for example, Niklas Luhmann's conception of law as a closed social subsystem was the subject of a decades-long debate with the "social scientific" conception of law held by the representatives of instrumentalist views of law (cf. Luhmann 1981). The clearest form of American instrumentalist legal theory was the idea of "social engineering" of law in the 20th century. Posner's role model Holmes was one of its proponents, but legal realism and, in the 1950s, "policy jurisprudence" (see Grey 1996) also pushed the introduction of social sciences into law. Posner wanted to give the social sciences, especially economics and statistics, but also sociology and political 236 science, a central role in legal education. Assessing the complex social consequences of a legal provision or precedent is only possible through the acquisition of broad scientific knowledge," he says. Otherwise, the judgement will be the decision of a lawyer who is content with his own words, and the judge will be a cataract surgeon unable to see the social consequences of his decision. I would like to point out that those who, like Luhmann, assume the autonomy of law, see socialscientific knowledge brought into law through the prior incorporation of legal knowledge into legal constructions and that the individual judge, when deciding according to the inner context of legal constructions, decides "socially adequately" without consciously seeing this. Society is so complex that a judge who is entangled in certain situations is not able to see the overall social context, even with a small workload. Nevertheless, he has to deal with a large number of cases with short preparation and hard daily decision-making work. Only a specialised lawyer can be required to observe the narrow circle of society affected by the legislation he deals with in the light of social science and social statistics, and to incorporate the results of these studies into the legal constructions he designs. However, it follows from this position, which denies the autonomy of law and its subsystemic character, which is in contact with society only as a whole, that every judge and every lawyer must receive a very strong social science education, as Posner demands. (The devaluation of the "interest group" parliament) Posner's emphasis on the way he sees parliamentary legislation is also instructive for his view of the law. For him, the legislature is not a decision-making mechanism for the common good, where the compromises of millions of elected MPs ultimately result in laws for the common good, but rather the role of interest group struggles. The law, then, is nothing more than the embodiment of the positions of the strongest interest group according to the balance of power at the time it is passed: "Indeed, a law expresses nothing more than the muscle of those interest groups that have been able to usurp some of the wealth from a weaker interest group in the legislature" (Posner 1990:272). Posner is, to say the least, a "sceptical democrat", and from this position one cannot expect too much respect for the law. However, in the centuries-long struggle between the legislature and the courts for the supremacy of law, Posner does not side entirely with the courts either, for he is aware of the problems. Therefore, in his theory, he argues for a medium level of fidelity to the law on the part of judges, which he calls the "civilising interpretation of the law". This means that judges should always try to base their judgments on the meaning that emerges from the text of the legislature, but that they should try to remove the overly strong overtones of particularistic interest group considerations from their interpretations. In addition to the medium degree of fidelity to the law, Posner's conception of law thus allows the judge a not too strong but certain degree of activism, albeit not in the sense of the moral activism of the Dworkinists, but of introducing the economic aspect into legal interpretation. This basis of freedom of interpretation allows Posner to propagate the economic (cost-benefit) analysis in legal interpretation that constantly appears in his book. It can also be said of his analyses of legal theory in recent decades that they almost all reveal, to some extent, a desire to pave the way for the economic theory of law and to give law the freedom to develop in this direction. (The exclusion of elements of consciousness from law) Posner's analyses on the reduction of the role of legal constructions that contain the evaluation of states of consciousness also point in this direction. The reduction of the role of culpability in civil law forms of liability is just as much a part of this as the analyses that seek to push back the conscious elements of the category of culpability in criminal law. The theoretical approach chosen, behaviourism, also places the external act at the forefront of Posner's theory of law, which seeks to dispense with the mental, conscious component of actions. Law is concerned with actions as they appear in the world and evaluates actions by their external characteristics. He cites with understanding Holmes's late 19th century analysis that the development of law involves the disappearance of components of mental consciousness and that instead scientific foresight makes actions - and thus people - increasingly predictable according to external features, and law acts on the basis of these scientifically revealed external features. "Oliver Wendell Holmes believed that the role of mental states in law would diminish as law evolved with scientific progress.(.... ) Holmes argued that as law matured, liability - including criminal liability - would shift more and more towards external determinacy, away from internal, intentional, subjective elements" (Posner 1990:169). Posner, of course, points out that this has not happened in many respects and has 237 even increased in relation to some legal constructions when it comes to mental states, but he believes that this is largely due to the conservatism of the language and thought patterns of legal life and jurisprudence: 'The persistence of mental language in law is evidence of the conservatism of legal life' (ibid., 176). The distinction between premeditated and spontaneous killing and the harsher punishment of the former can be justified, for example, by the fact that premeditated killing is more likely to result in success than spontaneous killing and should therefore be punished in this way because of the objectively greater social danger. The externalised evaluation of the consequences of action then makes it possible to measure the consequences in a variety of legal fields in the language of the cost-benefit ratio and thus to develop law according to economic principles. Accordingly, in recent years the proponents of economic legal analysis have presented a wealth of empirical-statistical work that goes beyond civil law, where the trend originated, to include criminal law, labour law, constitutional law and almost all other areas of law. 2.2.3. Posner against the re-moralisation of law In addition to his own economic theory of law, Posner opposes all the major currents of contemporary American legal theory, such as the originalists and textualists who adhere to the legal text, critical legal studies and feminist legal theory, but the main target of his critique is again Dworkin and the moral philosophy of law. This critique is most fully set out in his 1998 essay mentioned above, so let us now address its main findings. Posner does not see the re-moralisation of law as a general phenomenon, but only in the development of American law over the last forty years. Since the mid-1950s, the Supreme Court of the United States, "hijacked" by Chief Justice Earl Warren, has decisively changed hitherto formalistic jurisprudence in the United States in a little more than a decade and a half. Through a very broad application of fundamental constitutional rights and their translation into moral philosophical arguments, the predictable jurisprudence of the federal courts has changed step by step. Parallel to this development and subsequently, a tendency towards the moral philosophy of law developed in American law schools, further radicalising the Warren Court's efforts to re-moralise the law. In England and continental Europe, on the other hand, this radical shift has not taken place, except here, Posner argues, in the new constitutional courts of Central Europe. While it is true that English judges sometimes make decisions based on political principles, this happens so rarely that they feel outside the law. This is in contrast to the situation in the United States and the Central European constitutional courts" (Posner 1998:1693). Of course, in order to highlight the Central European constitutional courts along with European practice and identify them with American re-moralised law, it should be noted that Posner has generalised from the Hungarian experience in this area - he was invited to a conference by Hungarian Dworkinists in 1995 (see Posner 1995; Kis 1995) - and the validity of this generalisation can be disputed. In any case, the Hungarian constitutional administration is fully up to the adjective of over-moralisation. Despite the partial re-moralisation of American law, Posner points out that American judges often use moral terms - "fair", "unjust", "inequitable", etc. - judged by the precise standards of traditional judicial precedent, but they do not do so as part of Dworkin's general moral philosophy. It would be a misunderstanding of the 'moral semantics' used in the application of precise legal provisions - statutory provisions, precedent - if this were also taken to be a re-moralisation of law (Posner 1998:1695). The re-moralisation of law advocated by the Dworkins is unthinkable in modern societies and is only achieved in fundamentalist Islamic states. Posner therefore calls his interlocutors the Taliban warriors of the West with no little polemical acerbity (Posner 1998:1695). The re-moralisation of the law leads to a fanatisation of those seeking justice. The lawyer, who struggles with moral arguments in his daily process, sees and must see the litigant not as a legal opponent but as evil; the judge is thus forced to live his daily activity as a decision between good and evil, rather than as a daily routine. But for this heightened decision-making activity, neither the lawyer nor the judge can really find reliable, fixed decision points. The abstractness of moral arguments and their arbitrary ordering allow for multiple choices. The re-moralisation of law thus promotes the 238 fanaticisation of trial lawyers and judges but, on the other hand, cannot provide the lawyers served with a reliable decision-making aid (Posner 1998:1690). Another argument against the re-moralisation of law arises from the moral plurality of society. Only the "Ten Commandments"-like demands can be moral imperatives that are truly universally professed. But they are meaningless in their generality - "thou shalt not kill", "thou shalt not steal" because in certain concrete situations it is their violation that constitutes the moral imperative. For example, rescuing a child from the hands of a murderer, even if this has the cost of killing him. In such cases, it is then impossible for the judge to decide on the basis of clear moral arguments. In morally pluralistic societies, moral foundations seem to be clear only when the moral priorities of other groups are considered null and void. As an example of this, Posner cites Dworkin's criticism of a Supreme Court decision on the abortion issue, which sought to leave the question of whether or not abortion should be allowed, or allowed within certain limits, to the legislature. Dworkin argued from within radical abortion advocates that by delaying the decision, the court was ruining the lives of thousands of young women who would be forced to give birth to their unborn children. Posner, however, points out that from the point of view of the moral values of other social groups, the positive aspect of delay is precisely that it saves the lives of thousands of foetuses in the meantime, and that one can be individually for or against abortion, but cannot afford to consider only one as a moral value in a morally plural society (Posner 1998:1703). A re-moralised right is thus acceptable to the person whose - competing - moral value judgements it contains, but not to the person whose moral value judgements oppose it. This raises the question of how he can be required to obey the law! This leads to another criticism of the Dworkins' position, which is to dress (their own) political arguments against them in moral garb. A political point of view can always be defended from different angles, with psychological, economic, sociological, etc. Arguments. Wrapped in moral arguments and considering the moral arguments of the opposing groups as null and void - the political position can be presented as an inescapable imperative of morality. The re-moralisation of law is thus often a re-politicisation of law under the guise of morality. The political struggle then takes place not in the form of a clash of political camps in formalised elections and with equal voting rights for all participants, but in the form of a transfer to the intellectual elite of society, who then fight their political battles disguised as moral battles not in the legislature but in the courts, especially the constitutional courts, which make decisions for society as a whole. Dworkin and his followers cannot be defended against this criticism. 2.2.4. Social theoretical premises of Posner's theory The development of an economic law theoretical approach and the elaboration of concrete solutions on this basis in the most diverse areas of law - civil law, administrative law, family law, criminal law, litigation, etc. - also presupposes the adoption of a corresponding conception of man and society at the level of a comprehensive social theory. This is also found in Posner's writings, albeit not in the form of a stand-alone study, but in the form of references interspersed in his analyses. The first feature of his concept of society is that he considers only the individual human being as an existing phenomenon and collective (groups, institutions, etc.) formations as non-existent. Another aspect is that the inclusion of individuals in collective formations and the influence of normative, solidarity and identityforming factors within these formations on individuals disappear from his view. The individual stands alone in the world in his worldview and makes calculated decisions and acts in interaction with other individuals who are in a similar situation. On a broader level of social theory, this methodological individualism has found various formulations in rational choice theory and social exchange theory, but Posner does not take a position between these two in his systematic analysis (for Raymond Boudon's explanation of this theory, see Pokol 1999:234-270). Another feature of Posner's view of society and humanity, which is based on methodological individualism, is that for him all human action is utilitarian, utility-maximising. Of course, two additions must be made to this. First, the calculus of advantages and disadvantages of actions is much broader than that of material ones, and a variety of things, events and consequences can be counted as advantages or disadvantages. For example, if the losing party in a civil case has to pay the costs of the 239 prevailing party's lawyer, the likelihood that the legally weaker party will file suit decreases, leading to a decrease in the number of lawsuits (i.e. the likely loser will settle and pay rather than engage in a losing lawsuit where he may even pay opposing counsel), and this is seen as an advantage in economic law theory, while the opposite solution sees the proliferation of litigation as a disadvantage and therefore weighs the advantages and disadvantages of different litigation solutions (see Brautigam/Owen/Panzar 1984:173-185). The second observation concerns Posner's recognition of the multiplicity of semi-conscious, routine choices in everyday decision-making, where the constant weighing of advantages and disadvantages is only vague and serves as a background aid. In any case, with this picture of action, Posner takes as reality the egoistic, utilitarian human being and the societies he has built, and neglects action based on solidarity and emotional community and the effects that result from it. The real societies and social institutions can thus only be grasped in a distorted and onesided way. These two features of his view of society are complemented by the fact that he sees all human interactions and the coordination of activities as taking place under conditions of competition. Everywhere, in all human interactions, there is only market competition, even if the conditions and stakes vary (cf. Macneil 1996:4). In this extreme market view, one feature of Posner's economic theory of law worth mentioning is that the "burden" of transaction costs, which played an important role in Ronald Coase's theory as a starting point for his economic analysis of law, has almost completely disappeared from his analysis. The concept of transaction costs brings into focus the constraints that prevent the functioning of market exchange and the switch to alternatives, even if they are more profitable. In this category, the theoretical construct of the ideal market exchange is always joined by the reality of real social constraints and conditions that differ from the ideal market. With Posner, this gradually disappears and the ideal market exchange is presented as a fact of reality (see Macneil 1996). This position, which assumes the abstract ideal situation as reality, is also the characteristic of Posner's theory, that he develops it by deduction from the theses of economic legal theory, in a logical way, and not from the lessons of empirical surveys. Economic legal theory is concerned with the external effects of certain rules on people's actions - so it belongs to the family of the sociology of law - and some of its propositions can be tested empirically. These empirical studies have been carried out in large numbers by other representatives of the movement, but Posner himself usually develops his assertions by means of a logical-deductive operation of abstract theses. To be sure, his vast legal experience - in the nearly twenty years since he was appointed judge in 1981, he has delivered some 1 500 legal opinions - balances out the empiricism to a certain extent. In any case, this abstractdeductive way of thinking may contribute greatly to his conception of society as a society of "selfish individuals" driven to extremes and, in turn, has in recent years encouraged the emergence of tendencies in the camp of economic legal theory that weaken legal constructions based on the exclusivity of "homo economicus". In particular, institutional economic legal theory, which builds on an institutionalist approach to economics and goes back to John R. Commons' 1924 work, Legal Foundation of Capitalism. In contrast to Posner, the main proponents of this tendency today are Steven Medema and Warren Samuels (see Medema/Mercuro/Samules 1996), but Ronald Coase himself has also taken a stand against Posner's concept of a total market society (see Coase 1993). These social theoretical premises of Posner's place a social reality that is mutilated in several respects behind his theory of law, and his analyses go astray especially in those areas of law where selfish market interactions do not take place or only half take place. In contrast, where his theory is a prevailing reality, it has a truly "liberating" effect. In particular, when empirical surveys are used to develop concrete economic law theses, new insights can be gained. However, his complete elimination of moral obligations from human interactions is just as exaggerated as the position of Dworkin and his followers, who ultimately decide all legal disputes on moral grounds, goes in the other direction. In any case, Posner's position, which strictly rejects moral law, is able to demonstrate the excesses of Dworkin precisely because of its focus. Posner criticises this very clearly, and his theory of the complete exclusion of moral-solidarity effects from the effect of law is also unacceptable. A solution to these two extreme positions can be found in Niklas Luhmann's analysis of moral development, which instead of the direct moral-political-religious-economic etc. intertwined control of the communities of traditional societies, sees a functional differentiation in the course of history, 240 whereby the control of individual subsystem logics is only terminated and maintained by the presence of moral convictions. In the world of impersonal human interactions are directly regulated by technical, polite, legal, etc. rules, and only in these are the moral norms of society hidden (see Luhmann 1984). Jürgen Habermas has always argued against this notion and called for an extension of the lifeworld and community as opposed to "cold" system logics, but in his comprehensive philosophy of morality and law he himself has emphasised the inadequacy of direct moral guidance in contrast to the theories of John Rawls and Ronald Dworkin (see Habermas 1992). In his view, moral norms cannot function without the technical sophistication of law and the consensus-building power of legislation based on the political will of empirical society, and are no longer sufficient on their own to ensure the integration of modern societies. Posner likes to cite these arguments of Habermas to support his critique of Dworkin (Posner 1998), but one has to admit that his position of total exclusion of morality cannot be accepted either. 2.2.5. Posner as a judge Posner's exceptional abilities are evidenced by the fact that while he is one of the most prolific legal theorists in the United States and has served as a federal judge on the Seventh Circuit Court of Appeals for the three states of Illinois, Indiana and Wisconsin since 1981, he was appointed Chief Justice of that court in 1993. The analysis of almost two decades of judicial activity provides a good opportunity to examine Posner's judicial approach in the light of the practical judicial level. The Chicago Bar Association, along with several fellow judges, produced an analysis and evaluation of Posner in 1996 that is instructive, even though we know it reflects the views of lawyers and clients who have appeared before Posner's bench and captures only one side of the judicial decision-making process. In addition, a study of Posner's understanding of the law in practice was written after his first three years as a judge (Cohen 1985), and the Posner decisions presented in that study complement the practitioners' accounts well. Posner is a very active judge, compared to the passive role of the American trial judge. That is, while under the rules of procedure he would most likely be obliged to judge the case on the basis of the facts and evidence presented by the parties and their lawyers, and the precedents, legal arguments, etc. that they cite - and when he cites other precedents, legal arguments, etc.. He should invite the parties to comment on this as well - until then, he will boldly go beyond the facts before him and take them into account more selectively than usual so that the overall picture can better defend the legal position he has already established. He will also resort to case law and precedent that would not be relevant to the facts at hand: 'Chief Justice Posner is a legal realist.... and speaks openly about the fact that judges, including himself, make decisions that do not follow from precedent' (Chicago Council of Lawyer 1996). Instead of the American passive role of the judge, who is bound by the litigants' factual assertions and conclusions of law, Posner plays the freer role of the continental European judge, which has been criticised by the Bar: "If a court (or a judge of the court) considers an issue, legal theory, argument, or fact important that is not included in the pleadings, the judge may point it out to the litigants and allow one of them to explain it in the pleadings" (Chicago Council of Lawyer 1996). Another feature of Posner's view of the law is that he strongly disagrees with an enquiry into legislative intent and the historical intent of the law to be applied (i.e., what it was intended to remedy): "Chief Justice Posner attaches little importance to the history of the norm and is known to be a despiser of original intent" (Chicago Council of Lawyer 1996). Posner is thus not a "textual jurist", not an "intentional researcher" in his judgements, but he approaches them with comprehensive legal concepts and more or less derives his judgement from them. Hence his criticism that, on the one hand, he is more selective than usual in his presentation of the facts and, on the other, that he includes legal references (case law, precedents, legal theory) in his judgement for which no factual basis has been presented. Not surprisingly, these overarching legal guiding concepts are derived from the theses of economic legal theory. They often seem apt, as the Bar Association material shows, but sometimes they also show signs of doctrinaire artificiality. In summary, Chicago lawyers recognise the usefulness of Posner's economic law approach in economic law cases, but often find the arguments developed subversive: "In many economic law cases, Chief Judge Posner's use of economic law analysis is appropriate (.... ). But there are occasions 241 when this legal view leads him to attempt to overturn established legal rules with which he disagrees" (Chicago Council of Lawyers 1996). Another feature of Posner's judicial approach is his willingness to correct the applied legislation on the basis of his general conception of law and his sense of justice, while being very wary of declaring it unconstitutional: "(...)) there is a tension between Chief Justice Posner's willingness to correct injustices and his reluctance to declare them unconstitutional" (Chicago Council of Lawyers 1996). Posner thus not only opposes Dworkin's moral-philosophical theory of law on a theoretical level, but also rejects excessive recourse to fundamental constitutional rights in his practical judgments. With regard to the decisions analysed by George Cohen, the general feature described is that Posner explicitly admits to using the economic legal concept in fewer decisions than he actually uses it. In a 1984 article, he claimed to have explicitly used economic theses in 20 of the 200 or so decisions he had made by then, but Cohen, analysing them for their content, found such use in 98 out of 124. It was therefore typical of Posner's style that he was careful to present his actual arguments and demonstrate his departure from traditional reasoning (Cohen 1985:1141). Nevertheless, his later decisions clearly show the characteristics of his legal view. A good example of Posner's view of law under the influence of the economic conception of law is his decision in a civil suit brought by a prison inmate who claimed the right to a public lawyer. The prisoner had suffered severe vision loss in one eye due to a misdiagnosis by the prison doctor and filed a lawsuit. The trial court did not grant the defendant's request and did not provide him with a public defender, which he considered a violation of his constitutional rights and appealed. Although the majority opinion acknowledged this request, Posner issued a dissenting opinion. He argued that the legal market has enough contract lawyers for a prisoner with a good tort case. And if you don't get a lawyer, it's just an assessment of the legal market that you have no chance of winning. The majority argued against him that it is difficult for a prisoner to access the lawyer market from prison, but Posner says that this argument is only a way of giving the prisoner the right to free access to a list of lawyers, not free public defenders. In another case, the plaintiff sued the municipal authority because his car, which was parked in a prohibited parking space, was removed in accordance with the municipal ordinance. According to the plaintiff, this violated the constitutional requirement of a fair trial, as the owner of the vehicle should be heard before such a sanction is imposed. Posner rejected this argument on the grounds that while the rare mitigating circumstance that actually occurs cannot be assessed by the municipality prior to the imposition of the sanction, the cost of doing so is still much less than the cost of such a pre-trial hearing prior to the removal of the cars. Therefore, it dismissed the application on economic law grounds. In another case, he had to decide the case of some surgical plaintiffs who had sued a large national surgical association because its management had rejected their application for membership. The plaintiffs demanded that the national association, which is otherwise privately organised, disclose the opinion on which the rejection was based. Posner denied their request on the grounds that subsequent opinions would be much less honest if they had to be continually disclosed to the opinion writers, thereby limiting discussion and disclosure of the true reasons within the associations in each federation and reducing the overall effectiveness of their operations. Posner's view based on the economic conception of law is interestingly illustrated by the case of a criminal who was lured away by undercover police officers. The accused was originally looking for a job and stated to a police informer under the influence of alcohol that he had acquired the ability to set any kind of fire and could set buildings on fire at any time. On behalf of the police, the informer then put him in contact with another undercover agent who claimed to be a felon and had been instructed to set fire to a large house. The accused applied to be acquitted of the charge of bribery, which the court of first instance rejected on the grounds that although he had wanted to commit the act in order to deceive the police, he had had the predisposition to commit such acts and had therefore been rightly charged. Posner agreed with the court in deciding the appeal, but added another argument to his decision: "If the police encourage people to commit a crime who would otherwise not commit a crime, and then convict and punish them, this would simply reduce society's means of fighting crime senselessly, since it would increase crime with one part and punish the instigator with the other. But if the police encourage someone to commit a crime earlier who would commit it later anyway, they only provide a controlled circumstance for the detection of the offender, and that reduces the cost of criminal justice" (quoted in Cohen 1985:1143). A later case illustrates Posner's strong reservations about direct litigation based on fundamental constitutional rights, which means avoiding the easy private law route. A school athletic coach was fired 242 at the end of the first year of his two-year contract and sued the school on the basis of the Fourteenth Amendment for "depriving him of his property rights without due process of law" because he was not even given a hearing before he was fired. Posner, however, interpreted constitutional law narrowly - as he does with all constitutional laws - and said that the application of the Fourteenth Amendment is only at issue in cases of property deprivation, and his wages cannot be construed in that framework. But he can file a private suit at any time, and he will have every chance of winning that suit (Cohen 1985:1149). 3. Postmodern critical legal theory Since the mid-1970s, a particular current has emerged in American law schools: critical legal studies, directly involved in political struggles. This development was a direct consequence of the repoliticisation of the administration of justice and the higher courts triggered by the "fundamental rights revolution" of the Supreme Court under Earl Warren beginning in the late 1950s, which aimed to resolve the fundamental issues of American society through litigation in the federal courts. Encouraged by the federal judges who had made it their mission to radically change the status quo, movements and associations formed to wage political struggle through the means of law, and then new types of movement lawyer groups emerged in the legal profession, leading after a few years to the formation of new types of movement lawyer groups among academics. In the first phase, beginning in the mid-1970s, various neo-Marxist think tanks emerged, bringing together legal activists from the "New Left" intellectual movement that had gained a foothold in broader intellectual circles - the founders of the "critical legal studies" movement - but the scope of the movement grew to include legal activists from the Black and other people of colour movements, then radical feminists, and later activists from the gay and lesbian movement. The enlarged and heterogeneous movement of critical lawyers (the "crit") then increasingly fragmented into internal dissenting groups, and the "legal theory" of feminist legal theory, racist legal theory and legal activists from a range of other social groups fragmented into separate circles of communication. These new legal trends act even more strongly as militant legal ideologies of a particular social group and are more likely to be understood as political legal theories than as real scientifically negotiable legal ideas. The other change in the direction of critique since the second half of the 1980s is that new theoretical impulses have been taken up alongside the original left Marxist approaches, which in some respects are in tension with their earlier starting points. The core of this change is that the left-Marxist starting points have been supplemented by a more recent recourse to the work of the so-called "postmodern" thinkers of French social philosophy. Thus, the writings of Jacques Derrida, Michel Foucault and, to some extent, Jean-Francois Lyotard are primarily drawn upon. In addition, they have taken as their starting point the insights of modern sociology of knowledge into "intellectual softness" and the intellectual construction of social institutions and formations. With this shift, the authors of critical legal studies increasingly refer to their tendency as postmodern legal theory, but the various representatives of this group mix the starting points of the Marxist left and postmodern theory to varying degrees. Many of the big names in criticism of the past have not followed this theoretical shift and are now rather marginalised. Roberto Unger, David Trubek, Mark Tushnet and Peter Gabel, for example, are among the most important representatives of this movement. Of the founders, Duncan Kennedy seems to have succeeded best in reflecting his early, more left-leaning positions in an unbiased way and in incorporating the starting points of postmodern theories into his theory. Kennedy, who has always been known among critics, has thus increased his influence among critical legal scholars. Therefore, we will first introduce postmodern critical legal theory based on his theory. 3.1. The legal theory of critical jurisprudence 243 In contrast to today's more complex approach to postmodern legal theory, the critics initially developed their views essentially as a more or less mechanical legal application of Marx's comprehensive analyses. An example of this style is Richard Abel's analysis of tort law. Abel traces a century-long development in the course of which intentional acts increasingly fell under criminal law and ever new offences were formulated, so that only negligent acts fell under tort law. A legal dogmatically neutral thinker would see this change as a more precise demarcation of criminal and private law in terms of the separation of intent and negligence, but Abel interprets it as an increasing deprivation of the victim's legal remedies - and also of the victim's legal remedies, just as capitalist development deprives the worker of his means of production in order to exploit him - and the injured party's access to justice is decided by prosecutors, policemen, prison guards and other agents of the oppressive state power (Abel 1989b:329-330). Examples of this kind of mechanical transposition of Marx's analyses of the past abound in the early writings of the critics. If we want to briefly summarise the most important positions of the critics on law as a whole - in contrast to the postmodern shift - the following are worth highlighting: 1) They consider law to be the repression of the ruling class, but after the attainment of state power and political rule, they consider it possible to create objective and accountable law. Today, they say, there is no objective law and equal justice for all because the apparatus of repression is built into the law. This must be removed from the law, and then an ideal law can be created. 2) The "fundamental rights revolution" based on constitutional rights, which became the main arena of political struggles in the USA from the early 1960s onwards and aimed at social change through legal proceedings, was considered by critics to be a bourgeois ideological bluff. Assuming a homogeneous, unitary ruling class conceived as a "superpower", in line with the old Marxist view, they considered it simply impossible to bring about truly substantial social change in a capitalist society with overt state support and the help of the Supreme Court. However, a more nuanced view, the perception of struggles and shifts in emphasis within the dominant groups in society, can be understood in the context of neo-Marxist theory, which makes the fundamental rights revolution in the United States, and to a lesser extent in a number of European countries, understandable. Based on Pierre Bourdieu's theory, for example, the socio-political background of the fundamental rights revolution can be seen as a struggle and shift of power within the ruling class. It can be understood against this background as a struggle between finance capitalist circles and traditional industrialagricultural capitalist circles, in which the finance capitalist groups have shifted the balance of power from the legislature to a more open fundamental rights judiciary via the media-public opinion-forming institutions, and the judiciary, which has thus become more open, is defined more by the institutions of intellectual-media power. These institutions are predominantly controlled by the financial-banking circles. The financial and media powers, interested in certain directions of social change, have thus restructured the inner strata of the judiciary in the wake of the fundamental rights revolution, and this is by no means an "ideological shyte". Charles Fried, opposing the critics, describes the fundamental rights revolution, somewhat differently from the explanation above, as a struggle of the serviceintellectual sector against productive corporate capital (cited in Kennedy 1997:188). 3) Another feature of the critics' understanding of the law is that they see the law as a cover for the state's repressive apparatus, as a collection of hidden contradictions. The superficially stringent judicial reasoning and decisions that seem to follow compellingly from the applied norms are, in the critic's view, only a deception, since there are different legal principles for the same set of facts and the judge can, through their selective application, factually decide according to his gusto. He always prefers the one of the opposing legal principles and rules that decides the case in the interest of the ruling class, and the other ground of decision that arises is covered up. In this way, judges superficially camouflage their decisions with the argument of the legal principles of eternity, but in reality they are purely power-political decisions. For example, if a landlord wants to evict his tenant, the landlord has a right to free disposal of his property, while the tenant has a right to social security. The judge will decide the case as he sees fit, but his reasoning seems to apply eternally in both cases, even if they support an opposite solution. A considerable part of the critique's analysis was devoted to examining these contradictory legal principles and rules in order to show the arbitrary decisions within the law and thus reveal the law's allegiance to the state's apparatus of oppression. 244 3.2. Duncan Kennedy's left-postmodern theory of law By the time the critical movement disintegrated and emerged in new currents in the late 1980s, Duncan Kennedy had gradually reconsidered the starting points of his theory, consciously contrasting the Marxist left of the critical lawyers, which focused on economic class struggle, with the cultural struggle-oriented features of the emerging postmodern movements. Following his partial studies in the 1990s, he attempted to develop the basic premise of a left/postmodern legal theory in a systematic monograph in 1997 (Kennedy 1997). The usefulness of this volume is enhanced by Kennedy's unsparing honesty in his analyses, which are very frank about both the political motivations and contradictions of traditional left-Marxist analyses of law and the same features of cultural postmodernist tendencies. If the reader does not know that he used to play a leading role among critics, or that he is now striving to develop a left/postmodern theory of law, he might understand his analyses as a "debunking" of these tendencies. But the real explanation for the openness of his analysis is rather the "postmodern consciousness" itself. As he explains, in contrast to the left's belief in truth and justice that can be achieved after the abolition of the oppressive state and law, the postmodern position is sceptical of any truth and justice. There is nothing objectively true or just, and so, in the case of the true postmodern thinker, the critique of law, science, etc. is not made against the background of a particular consciousness of truth and justice. So there is a built-in anarchism, nihilism and self-deprecating tone in postmodernism towards its own positions (Richard Posner, who has been one of Kennedy's key debaters for many years, has noted in an article that a considerable part of Kennedy's analysis tends constantly towards self-deprecation, and there is no way of knowing what his true position is (see Posner 1993). However, in the case of a deep analysis - and Kennedy's volume is one - this insight can reveal a number of connections that would remain invisible to a scientist who believes in a paradigm. (Kennedy's concept of science) According to our understanding, science is an independent functional subsystem and a professional communication community which, in the course of modernisation, has detached itself both from the communicative circuits of everyday life and from other functional subsystems (cf. Luhmann 1984; Pokol 1990). Kennedy distinguishes three types of communication to understand intellectual debates:1. wide-ranging ideological debate, 2. Socratic, purely truth-seeking communication, and 3. "arm's length" negotiated debate (Kennedy 1997:43-44). In the first, the parties have a fixed social positioning - this distinguishes it from Socratic debate - but they try to argue with comprehensive-neutral arguments, with a realistic chance of convincing some participants from the other side's camp. In other words, it generalises the arguments and the vision. The "arm's length" bargaining argument, on the other hand, adheres to a particularist approach and does not seek to convert the disputants, but merely to reach the most optimal position by presenting a compromise between clearly identifiable opposing interests. Finally, Socratic debate is characterised by an abstract level, but unlike ideological debate, it is informal, a pure search for truth and argumentation in which there are no predetermined group commitments (Kennedy 1997:44). Kennedy rules out the possibility of Socratic dialogues in the intellectual communications that actually take place and considers only ideologically bound debate to be a reality of intellectual debates at the comprehensive level. Elsewhere, he describes this as there being no comprehensive-objective representations to capture social reality, but only representations according to different ideological camps. Each ideological camp strives to expand the social circle that captures social reality according to its representations, but it must be seen that there is indeed no universal-objective reality: "My project for changing the world is such a representation, which is leftist and culturally modernist/postmodernist" (Kennedy 1997:117). Implicitly, then, Kennedy denies that debates within the university and academic spheres are debates within a subsystem of separate scholarship and sees them as part of a single ideological-political sphere, and within this he accepts as reality only the separation of ideological camps, each striving for ever greater influence by marginalising the others. There is no particular historical or comparative analysis behind this claim, and it is generalised in the volume, but elsewhere it is pointed out that an ideological media intelligentsia emerged in the US from the 1960s onwards, of which some university lecturers and professors, including law schools, played an important role in politicising debates about the law (Kennedy 1997:115). If we go beyond Kennedy's analysis and compare Kennedy's ideological legal intelligentsia with the legal academic 245 circles of the United Kingdom and continental Europe, we can see that here the politicisation and transformation into an ideological battlefield did not take place in the same way as in the United States. In other words, Kennedy's picture of American reality is a generalisation of a politicised and distorted legal circle of communication. As a general diagnosis, therefore, it cannot be accepted as a feature of modern jurisprudential discourse. (Kennedy on constitutional justification) Kennedy adopts as a political tool of struggle the prioritisation of constitutional fundamental rights and thus a strategy of social change based on court rulings. But his postmodern "debunking of everything" reveals his scepticism about the arguments of the advocates of the fundamental rights revolution: "Left-wing lawyers and university professors of this stripe are constantly developing legal theories - to push judges in a certain direction - that they cannot even get the liberal factions in the legislature to accept, let alone the legislative majority. Unemployment thus becomes an "unconstitutional expropriation" of the worker's property, since he can no longer use his labour assets. The institutional treatment of insanity is already considered unconstitutional in its reasoning. In this way, the courts must guarantee a minimum of social welfare; a right to adequate housing; a ban on US military intervention in Nicaragua; a demand that the US compensate victims of the right-wing regime in El Salvador; a ban on the North American Free Trade Agreement and so on (Kennedy 1997:116-117). The "postmodern self-irony" of the left intellectual leader Kennedy prevents him from taking the party-political arguments of the ball liberal constitutional struggle seriously on the concrete level. Raised to the theoretical level, he regards these argumentation techniques as dispassionately as other techniques of the politically opposing conservative right-wing circles. However, it not only shows the political context underlying constitutionalism, but also points out the traps built into it on a broad level. In the process of constitutionalisation, fundamental rights are being extended to more and more situations, and more and more fundamental rights are being created, but the multiplication and extension of fundamental rights increasingly leads to conflicting pairs of rights as cases become more numerous. Thus, it is increasingly common for lawyers on both sides to be able to present equally "unchallengeable" fundamental rights arguments in their favour. "The result is that when both parties have excellent lawyers, the judge is faced with two equally plausible but contradictory fundamental rights arguments, one arising from the claimant's fundamental right and the other from the defendant's fundamental right. For example, the owner has property rights, but the demonstrators derive their justification from freedom of expression. In addition, the right of the user of terms termed sexual harassment to freedom of expression conflicts with the harasser's right not to be discriminated against on the basis of sex in the workplace. Moreover, the landowner has the right to do as he pleases on his land, but the neighbour has a constitutional right to be free from unreasonable interference" (Kennedy 1997:319). By defending the actions of protesters against property owners as an extension of expression at one point in the "fundamental rights revolution", the federal judges took this right out of its original context and brought it into a new dimension, as they did in the other cases listed. Without these extensions, fundamental rights were even less controversial in the original contexts, but when they extended their scope step by step to almost all social situations in thousands of judgements, the formerly small problem became an all-consuming one. Kennedy points out that at the beginning of the spread of fundamental rights jurisprudence, some fundamental rights were seen as inherently limited in scope, and Chief Justice Oliver Wendell Holmes, for example, sought to develop tests that reflected these limitations. However, as the fundamental rights revolution progressed from the 1960s onwards, fundamental rights became increasingly absolutised, radically increasing the incidence of conflict (Kennedy 1997:322). Kennedy points to another manipulative feature of constitutional court judgments when he points out that fundamental rights arguments are incorporated into the chain of reasoning that follows from concrete rules and precedents, as if a concrete conclusion follows as necessarily as it would from the case-specific rule and precedent: In the context of common law or statutory interpretation, fundamental rights and fundamental rights arguments merge into an interpretive mass that includes precedents, canons of statutory interpretation, institutional responsibilities, administrative arguments and general moral arguments about the rightness or wrongness of the parties' conduct, as well as utilitarian arguments about the consequences of different interpretations and the negative or even positive effects on welfare principles. Since the word 'rights' is usually used synonymously with the term 'rules', a party's legal interest is .... " (Kennedy 1997:317). It should be noted that constitutional 246 rights are not even called 'fundamental rights' in American usage - which is common in Hungarian and other continental European usage - but simply 'rights', so that they can take on the coercive character of traditional precise rules even more than the judgments so expressed, even if abstract constitutional rights allowed a range of choices in certain cases. But even under a separate designation, one can see that the argument of fundamental rights appears in the decisions of constitutional judges as compellingly as it could be. In any case, the American terminology also better masks the openness and convenience of the fundamental rights argument in terms of language policy. (Kennedy's conception of legal dogmatics) In line with the fact that Kennedy does not accept neutral conceptual scientific works and such scientific communities, he also does not consider neutral legal dogmatic category systems possible. For him, the conceptual systems that have emerged represent the introduction of the products of a legal ideological group into law, and he believes that as the power-political situation changes, different legal ideological groups introduce their conceptual systems into law with their ideological goals: "The basic private law codes reflect the ideology of nineteenth-century liberalism, drafted by brilliant law professors rather than legislative committees. Modern social laws are conceptually incompatible with these, but they also reflect a coherent ideology, the ideology of social democracy, which was a response to traditional liberalism, and they were also drafted by brilliant professors of moderate leftist persuasion" (Kennedy 1997:76). In this approach, the system-neutral features of legal doctrinal categories disappear and become part of political ideologies from the outset. In this way, however, law is merged with politics, and the justification of judicial decisions with legal dogmatic arguments becomes a cover, as it is in fact a cover for political arguments. This is in contrast to the concept of law, according to which free political struggles can only be transformed into law through a double transformation by the sphere of legal politics, which mediates between law and politics (Pokol 2001). This identification of legal doctrine with politics - at least as far as the functioning of European legal systems is concerned - is flawed and fits more with the over-politicised, constitutionalised American academic jurisprudence and argumentation that Kennedy criticised very effectively. 3.3 The sociology of knowledge as a critical weapon The idea of the intellectual construction of social reality spread in the social sciences from the beginning of the 20th century through the theories of Dilthey, Husserl, Max Weber and, following them, Alfred Schütz. Their basic idea can be summarised as that social institutions, norms, etc. are given life by the conceptual articulations used by members of society and that they have no life, no "objectivity" beyond the practice of communication. In the second half of the twentieth century, this basic idea was taken further by various sociological theories of knowledge, and from the 1980s onwards, the "radical constructivist" movements also regarded natural causal laws and knowledge of natural reality as sociological bodies of knowledge, denying them the status of objective existence. The conceptual structure of social reality and its fragmentation - and constant restructuring - by man-made concepts became particularly evident from the second half of the 20th century with the advent of the mass media and the rapid mass transmission of established concepts and opinions through them. This may have led some to conclude that the widely used conceptual formulations do not exist and that it is a mistake or deliberate manipulation to perceive them as objective entities. In contrast, however, it should be emphasised that however much a concept or norm may have been created by a single thinker, when it becomes widely accepted in social practice and millions of people perceive or behave according to social reality, it becomes socially fixed and thus begins to have existential significance. Of course, millions of people's perceptions of reality may later be changed to a new conceptual framing, but this will only happen - even with today's reflexive communication practices - after a shorter or longer period of time, and by then the widespread conceptual framing will have as hard a relevance as something to be considered a physical reality. Moreover, widespread socio-conceptual markings also become part of higher-level social systems and functional subsystems, and any attempt to transform (re-mark) any of these systems may lead to destabilisation of the higherlevel systems and subsystems and trigger backlash against the tensions created in the process. It 247 follows that theories that move from the discovery of the intellectual structure of social reality to the complete denial of the objectivity of social existence must be considered flawed. Both the theory of critical jurisprudence and the postmodern critical theories of law that emerged from it drew on theories that emphasised the constructedness of social reality, except that the former drew on categories of reification that went back to Hegelian Marxist analyses - following the work of the young György Lukács and Jean-Paul Sartre - while postmodern critical legal theory drew on the radical constructivism that has since unfolded in the philosophy of science. The difference between the two can be simplified to say that the category of Marxian objectification aims only to reveal the dominant ideas - the state, the law, etc. - as deliberately "falsified representations of reality", whereas in postmodern radical constructivism there is no longer any "truth to be gained" in the name of which the status quo and the dominant ideas are criticised. During the dominance of critical legal studies, Peter Gabel wrote his influential essay "On the Objectification of Legal Reasoning" in 1980 (see the second edition of Gabel 1996:17-43, cited here). His main ideas can be summarised with the following quotes: "The characteristic of repressive thinking can be well expressed by the word "reification", which can be understood as a kind of distortion of meaning within communication (...) because we lift an abstraction out of a concrete milieu, we then mistakenly use this abstraction as a concrete one. An example of this is the wellknown phrase "law is an instrument of social control", which suggests that it is as material as a fence. Objectification is not simply a form of distortion, but rather a form of unconscious coercion that both separates communicated reality from the reality of experience and denies that this separation takes place" (Gabel 1996:18), that there is an "experiential reality" in relation to the distorted "communicative reality", while later radical constructivist postmodern thinkers no longer recognise an undistorted "experiential reality", since this too is inescapably generated by (distorting) concepts. In any case, Gabel sees this abstraction and thus the formation of legal categories as a distortion of "real" reality. The aim of this distortion is to expose the neutrality and objectivity of legal concepts in order to conceal the oppression by the ruling class. The judge, according to Gabel, makes his judgements on the basis of these concepts and presents as an order of truth what in reality is the repressive action of the ruling classes in society: "The judge as a "legitimising scientist" objectifies the social world as if it were objective, and the judgement follows from its inner logic" (Gabel 1996:34). In other words, based on the assumption that legal categories are created through abstraction, Gabel regards them as purely subjective creations and judges the judge's reasoning based on them as a "mimesis of objectivity". Gabel's mistake is twofold. On the one hand, all the categories he - and everyone else - uses have ever come about through abstraction, just as legal categories have, and on the other hand, when the use of a category becomes entrenched in widespread practice and deviation from it - as error, nonknowledge, etc. - is spontaneously sanctioned, then this category gains objectivity. Of course, this is only to the extent that something can have existential significance in social reality, and the measure of this is the extent to which the use of a category has become widespread and routine in social practice. In the concept of critical jurisprudence, legal doctrine is thus seen as an instrument of the repressive state that gives the appearance of a neutral order and jurisdiction. And connected to this is the thesis that law itself is only an instrument of repression and not a means for the peaceful resolution of social conflicts. These ideas can be criticised particularly well from the practical experience of a society - as Hungary was during the decades of the state party system - in which political power actually intervened in the administration of justice on a daily basis and often decided conflicts directly by setting them aside. The one-party dictatorships have shown the social-organisational dead end into which a truly directly politicised law leads societies. In the more Western societies with functioning pluralistic and market-based systems, Gabel's criticism may be justified, but where there has been no independent legal, political and economic system for decades and this is lived out on a daily basis, this criticism is simply discredited and exaggerated. Even if the kernel of truth must be acknowledged that behind neutrally justified judicial decisions, legal norms and legal categories there are political biases with longer-term effects, this does not lead to a fusion of the law with the political system, as the critical theories claim. 248 4) Intentionalist and textualist legal theory After a decade and a half of dominance, the spread of constitutional jurisprudence in the United States came to a halt in the mid-1970s and was severely curtailed from the mid-1980s onwards. At the same time, two concepts and interpretations of the law, sometimes mutually supportive, sometimes competing, have dominated the practice of US courts, with the result that sporadically emerging commercial law has taken a back seat. One can be called intentionalist legal interpretation, the other textualist. Let us look at their internal components, their internal tendencies and their relationship to each other. 4.1. The rise of the intentionalist interpretation of law This movement began in the early 1970s with direct opposition to fundamentalist jurisprudence and has strongly influenced American jurisprudence in recent decades. "Originalism", "Intentionalism", "Purposivism" are the names given to the camps formed by the various groupings of this tendency, but with a time lag, these same names have come to denote a different camp division over time (see Fruehwald 2000:976). So let us look at the essential components of each camp division and designation. The term "originalism" and the grouping under it were directly inspired by the denial of the fundamental right to judgement and its detachment from the Constitution itself. This detachment meant a departure from both the text of the Constitution and the original intentions of the framers, with the chief federal judges themselves drafting a set of constitutional provisions based on an abstract constitutional formula. Thus, in the decades following the constitutionalisation of the judiciary, the US federal constitution became more and more a mere reference point, both in terms of its text and the original intentions of the drafters. Originalism sought to break with this and focus on both the written text of the Constitution and the original intent of the framers in the face of intervening judicial reinterpretations of the Constitution. It can thus be seen that originalism is open in two directions: towards fidelity to the text and towards the original intentions of the authors and legislators. This later divided the camp of the intentionalists and the textualists, with two distinct currents emerging within the intentionalists: the intentionalists and, in contrast, the "purposivists" (Colinvaux 1997). While the intentionalists focus on the demonstrable intentions of the MPs who drafted the law, the purposivists focus on the general aims of the law and only in this way and to a subordinate extent on the subjective intentions of the MPs as expressed in parliamentary debates on the law. In practice, however, a number of distortions occurred in both versions of intentionalism, which ultimately contributed to the great discredit of the intentionalist interpretation and thus to the rise of textualism. One of these distortions was the judges' selective and targeted use of preparatory materials (plenary minutes, committee summaries, etc.) that contained the legislators' intentions. The judge, wanting to form a judgement informed by his own values, had his "clerc" (assistants) look through the voluminous transcripts of the congressional debates on the law in question and pick out those statements that seemed to correspond to his interpretation of the intent. He then elevates this to the centre of his judgement and, without bothering about the wording of the statutory provision, bases his judgement on the obvious intention of the legislator. An example of this is a 1987 dissenting opinion by Justice Brennan of the Federal Court which, without even addressing the wording of the statutory provision, immediately begins with the words of Senator Humphrey, who is politically close to him, in which the Senator sets out what he believes to be the main purpose of the law under discussion, and Justice Brennan, essentially setting aside the wording of the law, bases his judgment on this (see Parmet 2000:55). This kind of manipulation allows the judge to inject his own preferences into the judgment, as opposed to the meaning established in the text, even in the narrower, intensionalist version, since in the process of the pluralist legislative machinery, in the debates in subcommittees, committees and plenary sessions, it is always possible to find an opinion that meets the judge's political standards, but the freedom of the judge's detachment is even greater in the case of the 249 tendency of "purposivism". The latter, in fact, foist an overriding purpose on the text, extracting it, as it were, from the more general arguments of a deputy or a senator, and can thus reinterpret the meaning of the text almost at will. It is therefore no coincidence that law professors and federal judges, who used to invariably refer to constitutional fundamental rights in their judgments (or in their preliminary jurisprudential discussions), preferred a "purpose-oriented" interpretation of the law after the decline of fundamental rights jurisprudence. This explains the opinion of Justice Brennan, the former main proponent of the Basic Law, quoted above. However, the emergence of intentional research as the dominant legal view has added new distortions to the above. In the parliamentary debates on the new laws, lobbyists increasingly appeared who, in anticipation of research into the "original intention" for the later judicial application of the respective law, tried to open up the respective law to interpretations and interests already established in advance through targeted speeches in committee and plenary sessions. In other words, a lobbyist or a small group of lobbyists may not be able to introduce the wishes of the underlying interest group into the text of the law, but they can "prepare" the future law for the judges sympathetic to it by proposing far-reaching goals and repeatedly putting them forward in the various debates preparing the law. And the lawyers of the underlying interest group keep accurate records of the transcripts of the speeches commissioned by their lobbyist representative and place them centrally next to the relevant legislative text in the event of litigation (cf. Busse 2000:889-890). With these manipulations, intentionalist jurisprudence, both in its intensionalist and purposivist versions, had reached the same dead end in the mid-1980s as fundamentalist jurisprudence before it. The latter read into the constitution, for political purposes, "principles" and "fundamental rights" that were never there. "constitutional purposes", this tendency has led to the same result, namely the loss of credibility through the selective and manipulative use of legislative materials. This development formed the background for the rise of textualism. The decline of intentional research has also been demonstrated at the level of statistical data through empirical analyses of the evolution of the number of references to legislative history in Federal Court decisions (see Vermeule 2000:44). The phenomenon of recourse to legislative history was alien to traditional American court practice, which continued the English tradition in this area, and only appeared sporadically after the first decades of the 20th century. It only became more frequent from 1947 onwards, after the ratio between statutory law and common law precedents had increased significantly in the wake of the New Deal. By that year, there were already an average of two and a half references to pre-legislative materials for every Supreme Court decision. This low number remained until the early 1970s, but by 1973 the number of references per decision had risen to seven, and by the early 1980s the average was 12-13 references, reaching a high of 16.5 in 1985. Then Antonin Scalia joined the Supreme Court justices - and the described practice of referring to 'prepared' legal preparatory material had by then been discredited - and by 1986 the number of references had fallen to 8.5, then, steadily declining in the 1990s, had fallen again to 2.5 by 1997 (Vermeule 2000:45). For their part, the other lower courts usually follow the interpretative shifts of the highest court to a greater or lesser extent. 4.2. The rise of textualism As we have seen, the current known as "originalism" contained an element of textualism, which, however, remained subordinate to the focus on the original legislative (constitutional) intent. It was the appointment of Antonin Scalia as Chief Justice that triggered the rise of textualism, which succeeded in placing the textualist conception of law on a firmer footing than before, apart from the fact that the search for intention described above lost credibility. (The "new formalism" that began with Scalia is excellently analysed in a new study by Thomas C. Grey, published on the internet, to which we can only refer here after pointing out the prohibition of quotations due to the preformulated nature of the study). Traditionally, the greatest weakness of textual positivism is the ambiguity of the words used in the text, which allows the judge to select the meaning of each word or context according to his political values and to select the meaning of the whole context according to the political values dictated by his judgment. Scalia sought to address this weakness by attempting to hold judges to the 250 "ordinary meaning" of words and, when in doubt, to the resulting test for their decisions. In somewhat simplified terms, the question is: Could the man in the street normally have understood the expression as the judge understood it in making his decision? A good example of understanding this textualism is Scalia's dissenting opinion in a case decided by the Supreme Federal Court. At issue was a provision of the Electoral Act that allowed for the judicial nullification of a mandate in the case of electoral fraud. Since judges are elected at the national level in many places, as are members of the legislature, the question arose - and this was the dispute in the case - whether the annulment of a judge's mandate could also be sought under this provision of the law. Although the statutory text used the term "representative", Justice Scalia's colleague, Justice Breyer, argued that unlike commissioners, all those elected to office could be considered representatives, since the fact of election meant that the person elected was acting on behalf of the electorate. And if the judge is elected, he must also be considered a representative for the purposes of an electoral law. Scalia, on the other hand, has argued that if you ask someone on the street whether he or she includes a judge in the definition of representatives, he or she will obviously say no, and that ordinary usage does not normally include judges in the definition of representatives (see Colinvaux 1997). If the legislator wants to include judges in this definition, he or she must mention judges separately from representatives because ordinary usage requires this. Scalia's view, then, is that while concepts, words, are often ambiguous, if we stick firmly to the way the man in the street understands the disputed term in common usage, we have a reliable, solid basis for the legal definition of judges. This is a position that Scalia has consistently advocated in his judicial work over many years, and this consistency, together with the rational judgement expressed in some of his opinions, has made textualism a controversial but positively received concept in American jurisprudence. On the one hand, other judges are adopting Scaila's version of textualism; on the other hand, they are giving greater prominence, at least in a different way, to the general meaning of the text, whereas in the past the search for the meaning of the text was often relegated to the background, alongside the "general purpose of the law" that the judge thought he or she found, or the aid to decision-making that he or she thought he or she gained from fundamental constitutional rights. An aphorism coined during the dominance of the intentionalist intentionalists aptly caricatured the approach to the text: "The statutory text is brought into the interpretation when the legislative materials are unclear!" Well, that changed decisively with the advent of Scalia, and the importance of the legislative text has greatly increased since then. The importance of the general meaning and use of words in contested situations can be seen in Scalia's dissenting opinion in a 1993 High Court decision. In a criminal case, the wording of a penal statute that sought to make drug trafficking more severely punishable if the offender carried a firearm in the drug transaction was in dispute. In the contested case, the High Court judges had to decide whether the defendant's handing over of a firearm in exchange for a certain amount of cocaine justified the imposition of a more severe penalty. The majority of the judges ruled that a more severe sentence should not be imposed because of the wording, but Scalia took a different view, taking into account the general meaning of the words. After all, here the unloaded pistol was used as a substitute, and the general sense requires that the pistol be used as a weapon ("to use a gun"), so that use as a substitute cannot be the basis for a more severe penalty (Scalia 1997:23). An important component of Scalia's interpretation of the law is the limited consideration of the legislator's intention. He recognises its importance, but - precisely because of the frequency of such manipulations - only allows it to be taken into account in the interpretation if it is explicitly mentioned in the text of the law. Only the legislative text goes through the entire legislative process, in which every word is discussed, amendments are proposed to certain parts of the text or even certain words or sentences are replaced. What is finally adopted by the majority of the legislature and signed by the President of the United States as head of the executive branch is thus the result of a political consensus. What comes out of the mouths of individual legislators in committees and on the floor of the House may lead to some debate and consensus, but is not subject to regular checks and balances to verify consensus. In Scalia's case, then, both components of originalism - fidelity to the text and the original intention of the legislator - are present, but both are given meaning by focusing on the text. The importance of the intention expressed by the legislator is also shown by the fact that, although he always assumes the common meaning of the disputed word or expression, if he finds indications in the text that the legislator intended to use the word or expression in another meaning, he considers this 251 to be the authoritative one (cf. Scalia 1997:17). If the electoral law, to stay with the example already cited, had indicated in one sentence that the word "representatives" here meant elected judges and that they also have the possibility of being sued for termination of their office in the event of electoral fraud, Scalia would not have assumed the general meaning of the word "representatives", which excludes judges, but would have included them, as the text requires. On the other hand, the components of Scalia's textualism are evident in his criticism of William Eskridge and Guido Calabresi. These two law professors - the latter also a federal appellate judge have developed a "dynamic" theory of statutory interpretation (see Eskridge 1996; Calabresi 1982). The essence of "dynamic statutory interpretation" is that judges extract the underlying statutory objectives from the text and then, setting aside the specific dictates of the statutory text, flesh out for themselves, in the case discussions before them, which judgment best satisfies those statutory objectives (see Fruehwald 2000:978). One of the arguments used by proponents of dynamic interpretation to defend the detachment of judges from the legislature is that the judiciary is better protected from the influence of certain interest groups than the legislature and judges are therefore better able to keep the common good in mind. Another advantage of judicial freedom, they argue, is that judges are more flexible in their day-to-day decision-making than the less flexible legislative bodies in taking into account new circumstances that arise from changing times. Scalia is the staunchest opponent of this view, which he denounces as an attack on the foundations of the democratic state (Scalia 1997:43). It is not the judges who can "intuitively" recognise new requirements and the socio-political consensus in changing circumstances, but the legislative machinery of the parliamentary majority that contests the election. For the sake of understanding, it is important to emphasise that Scalia builds his theory on judges' interpretation of statutory law, while distinguishing it from judges' interpretation of common law precedents. This is because, at least in the United States, the relevant common law precedents are more freely interpreted by judges, who can glean the 'guiding' reasoning, the decisional guidance, from the relevant precedents. Although Scalia is generally hostile to the common law rulemaking technique - he approvingly describes the codification movement that developed in the United States in the midnineteenth century, which attempted to finally detach American legal development from the English common law technique - he accepts the judicial rulemaking technique that has survived in some areas of private law as a reality (Scalia 1997:16-49). However, he strongly opposes the idea that judges should approach rules of statutory law with the interpretative freedom allowed in the common law field. In particular, he sees in this transference a dangerous tendency with respect to constitutional interpretation, as judges, especially at the top of the federal judiciary, begin to take over the fundamental decisions that govern society as a whole: 'The promotion of the idea of a "Living Constitution" by a group of law professors and judges is aimed at granting common law judges the freedom to interpret the Constitution. According to this view, a constitution is a law that "... grows and changes from time to time to adapt to the needs of a changing society". And it is the judges who define the law on this basis" (Scalia 1997:38). In Hungary, one need only point out the kinship with the idea of the "Invisible Constitution", which at times guided the majority of constitutional judges in the early years of national constitutional jurisprudence. 4. 3. Evaluation of Scalia's textualism Antonin Scalia's high office on the US Supreme Court and the important role this body plays in shaping American society gives him a constant public profile, and the public and the legal profession keep a constant eye on what he says. This weight is reinforced by the fact that since the early 1990s, when the liberal Justice Brennan was ousted, Scalia has also been a key member of a conservative majority on a nine-member Supreme Court panel that often decides fundamental questions about society with five justices to four. His reasoning and legal thinking thus have a major impact on the legal profession and public opinion. To understand this effect, however, one must also see that there has been a debate in the United States for more than forty years about the two ways in which society should be governed. One, associated with the theory of traditional democracy, holds that society should be governed by laws 252 enacted through majority decisions of popularly elected representatives and senators, while the other, supported by political forces that do not feel able to form a political majority, holds that progressive decisions by "enlightened judges" are more likely to achieve this. The Supreme Judicial Forum under Earl Warren, after the departure of Felix Frankfurter, who opposed the activist design of the judiciary, initiated a "fundamental rights revolution" in the early 1960s based on a free interpretation of the federal Constitution, and the federal judiciary, reshaped in this direction by liberal democratic presidential governments sympathetic to it, ruled free of all constraints, eclipsing both the Constitution and the written text of the law (see Epp 1998; Scheingold 1998). The liberal democratic political forces, which were weaker in the legislature - in Congress and in the state legislatures - but had a large majority in intellectual-media circles, celebrated this development as a triumph of progress in the eyes of the public and portrayed the "formalist" text-based jurisprudence as "black-letter lawyering". As we have already seen, originalism itself was already ready to confront this activist judicial politicisation, but the "constitutionalists", who were the champions of free judicial decision-making until the 1980s, were able to use the new method to advance their detachment from law, unchanged by the new possibilities offered by the intentionalist trend. This was the deeper level of struggle into which Antonin Scalia's consistent textualism broke, and through his judicial activity over the last twenty years and his countless judicial opinions and dissents, he has become a dominant force in American jurisprudence. As witnessed in Hungary in the early 1990s, even the most militant constitutional judges in Hungary, under the influence of the arguments, reconsidered their previously proud activism and placed more emphasis on more coherent reasoning after becoming more publicly opposed to constitutional activism. (See most recently Boulanger 2002 for an analysis of constitutional activism in Central Europe). Antonin Scalia's consistent adherence to textualism and his persuasive public commitment to ordinary meaning have led to a trend towards more binding and textually faithful judicial decisions in the United States in recent years (see Fruehwald 2000). After the intentionalist conception and interpretation of law, which opposed activist jurisprudence, was abandoned for the reasons mentioned above, Scalia's textualism prevailed, turning the deeper struggle between activists and the law-abiding in favour of the latter. Democracy based on political pluralism, elections and majority voting cannot be circumvented. Anyone who knows this machinery inside out - and empirical political sociological research on the activities of lobbies, the motives of MPs who prioritise their re-election, etc. has already shown this - will no longer view representative legislation with the naivety and pathos of the Enlightenment. But the myriad ways in which the machinery of legislation is negotiated between the various political forces and, above all, the specialised apparatus behind them, still ensure a wider convergence of wills than a "progressive" constitutional social governance based on activist law professors, judges and opinion-forming narrow circles would allow. Scalia's textulism at this deeper level of legal-political struggle is therefore clearly positive. However, as far as his scientifically grounded understanding of law as a whole is concerned, he is to be criticised in two respects. One is the disregard for the legal dogmatic system of categories in his textualism. It is true that this textualism applies to statutory law and not to common law, and that the legal dogmatic category system is more important in those areas of private law that are governed by common law. In some areas of statutory law (e.g. criminal law), however, legal dogmatic categories also play a major role, appearing only hintingly in the statutory text, while their full development - in a number of opposing versions - can be found in the underlying jurisprudential monographs. However, legal dogmatic categories are not simply a matter of assigning them a common meaning, but of the consensus of legal scholars deciding what is meant by them (the Germans express this with the term "prevailing opinion"). In the context of law as a whole, therefore, we cannot ignore the legal dogmatic level and include it completely in the text of the law (on this, see Pokol 2001). Another criticism is that the level of case law that gives legal texts a concrete form is not taken into account in the textualist view of law. While Scalia, as a top-level judge, can ignore previous precedents, his forum is entitled to "overrule" previous precedents at the highest level. It is at this deeper level of struggle against a judiciary that has been "enthroned" for forty years that Scalia has sought to return to the original meaning of the statutory text, so that he always seeks to decipher the meaning of the statutory text without being distorted by precedent. However, going down the judicial hierarchy, one must fear that each of the many thousands of American judges is bound only by the 253 statutory text and might informally decide the legal dilemmas it leaves open by reading them out of his or her own head - a judge in one city in the country this way, a judge in another city that way. The importance of uniformity of jurisprudence in a country requires a uniform line in deciding a question of law, which is only possible by recognising the binding nature of supreme court jurisprudence. Thus, if we go beyond Scalia's position in terms of American legal-political struggles and consider textualism at the overall level of law, we must include not only the dogmatic level of law, but also the level of judicial precedents that concretise law. Scalia's new emphasis, however, underscores the need for judges to be more closely tied to the commonly used meaning of words and phrases in the text when setting their precedents in interpreting a statutory provision. In summary, the concept of the multi-layered nature of modern legal systems can be maintained even after an assessment of Scalia's textualism, but the importance of the textual level should be emphasised more than the others. Following Dworkin's thesis of "Taking Rights Seriously", Scalia's message is still relevant today: Take the text of the law seriously! 254 Part Three Sociology of Law Law is part of society, so that a comprehensive theory of law can be nothing other than a social theory of law. The previous chapters have therefore also included a number of discussions and analyses that, according to a more normative approach to legal theory, belong to the sociology of law. Thus, analyses of legal education or of the relations between internal groups within the legal profession and the functioning of the legal system are among the first (see the relevant sections in Chapter I). However, the following sections will deliberately focus on the topics that are most popular in sociology of law research and debate. This will allow for a more comprehensive analysis of the structure and functioning of legal systems. *********************************************************************** Chapter IX The emergence and development of the sociology of law 1. The sociological view of law Through its function, law provides normative prescriptions for human behaviour, i.e. it prohibits certain types of behaviour and permits others in a given situation. The fundamental task of jurisprudence is therefore to clarify the meaning of the interrelationships between normative prescriptions and thus to ensure that there are no contradictions in meaning between the many thousands and tens of thousands of legal norms. Only in this way is it possible that the legal rules to be followed in everyday life fulfil their function and that legal certainty is not endangered. Substantive jurisprudence analyses and develops the totality of legal concepts that ensure the internal conceptual coherence of a field of law and constantly monitors the coherence of the legal norms required for specific life situations. From now on, depending on the different legal concepts to varying degrees, the consistency of the specific legal norms and legal concepts with the general principles of justice is also included in the consideration. This approach thus moves in the dimension of normative conceptual coherence. On a broader level, the philosopher of law does the same when, apart from analysing substantive law, he deals with the content of the principles of justice and their relationship to each other, and from this establishes requirements for the conditions of a just legal order. However, law, although it fulfils its function in a normative dimension, is a social phenomenon like other fields of activity that fulfil a social function, e.g. the economy, art, science, politics, etc., and any legal phenomenon can be studied from the point of view of facticity, just like other social phenomena. This is the essence of the sociological approach to law, which can be formulated in contrast to the approach of theoretical jurisprudence or legal philosophy as a field of analysis of social 255 facticity and causality or effects. For example, while the substantive law of civil law examines a legal regulation on a pledge or surety from the point of view of how these contractual securities fit into the framework of existing contract law as a whole, the sociological approach to law asks how often pledges or sureties are used as contractual securities in everyday contractual practice, from the point of view of the absence of contradictions of meaning. Or which social interests and which social disadvantages have favoured the emergence of this form of pledge and surety in everyday contractual practice, and which social interests would be served by alternative regulations in this area? In the sociology of law, one therefore moves from the normative dimension to the factual dimension, to the dimension of conflicts of interest, social causes and effects, when analysing legal norms and legal phenomena. Looking at sociological studies and the various lines of research in the sociology of law in this approach, one can distinguish between a narrower and a broader understanding of the sociology of law. The sociology of law in the narrower sense still focuses on legal norms like the thematic legal sciences, and it is no coincidence that the sociology of law developed historically in the last decades of the 19th century. The sociology of law in the narrower sense, like the theoretical legal sciences, is concerned with legal norms and legal provisions, but with their actual consistency rather than with normative-conceptual coherence and possible logical contradictions. Or does it ask which social interests and political forces have shaped the legal norms under study and which political forces serve the dominance of which political forces in social struggles and which social groups are subordinated and disadvantaged in power by the legal norms under study? But we are still in the narrow sociology of law when the analysis examines how a great code of law, written many decades ago, has undergone changes in recent eras - not in the sense of legal dogmatic constructions! - by the forces and interests of social groups, and which social forces were protected by this code at the time of its creation, and which were protected by changes in social dominance in the course of its transformation? These sociological analyses of law are linked by their focus on legal norms. It can be a historical sociology of law, such as Jean-André Arnaud's analysis of the French Code Civil, in which he shows the effects of increasing state-capitalist dominance after its emergence from liberal-capitalist ideals through changes in the Code Civil and, in particular, through the reinterpretation practices of the Court of Cassation, the highest French court (Arnaud 1973). But the same is true of Morton Horwitz's great historical-legal-sociological tableau of the development of American law over the last two hundred years, which describes American legal history as the emergence of the dominance of commercial finance capital after the early dominance of agribusiness capitalist groups. In contrast, traditional theoretical legal history analyses the same events as a history of changes in legal doctrine and the elimination of possible contradictions. In addition to the historical sociological analyses of law, another area of the sociology of law in the narrower sense is the study of the actual implementation of the legislation in force today. While the first method involves visiting libraries and archives and examining historical analyses and factual descriptions, the second method involves drawing up empirical questionnaires and interviewing those affected by the legislation in question using a precise sociological methodology. In this way, it is possible to determine how frequently certain provisions of a broader piece of legislation are enforced. For example, we can see that certain provisions of criminal law are rarely or not at all enforced by the relevant police and prosecuting authorities, and that the acts prohibited by these provisions are common practice in life, virtually unpunished, and that people may not even be aware that they are acts that should be punishable. In addition to the narrower sociology of law, which focuses on legal norms, the broader sociology of law goes beyond legal norms and includes the entire field of law and all its phenomena in its analysis. It could also be said to be the sociology of the legal system in addition to the sociology of law in the narrower sense. This broader sociology of law also includes, for example, the study of the various professions of the legal profession and their relationships to each other. Which profession dominates the legal system in a given country and what influence does it have on the law? Is it dominated by the academic bar, as was the case in Germany for many centuries, or by a group of lawyers, the "barristers", as was also the case in England for many centuries? And from these facts, conclusions can be drawn about how law works in a particular country and how it has changed. In German law, for example, the dominance of university professors has given an important role to conceptual legal doctrine, leading to the creation of extensive codes of law based on abstract legal concepts, In English law, the almost complete absence of academic jurisprudence for many centuries 256 led to the failure to create a world of abstract legal concepts and the development of casuistic, casebased jurisprudence, which was later continued by the advent of parliamentary legislation. However, the sociology of law in a broader sense also examines the social origins of the judiciary, their affiliation or non-affiliation to political groups, in order to draw conclusions about the functioning of the legal system in individual countries. The sociology of law also includes the analysis of statistics on the development of caseloads and attempts to relate the development of caseloads in a particular area of law to socio-economic changes. For example, the decline of state control and governance and the concomitant increase in the regulating role of the market in a variety of social areas leads to a sharp increase in the number of civil and commercial lawsuits, while the dominance of the central state organisation of society reduces the frequency of lawsuits. This research is also known as "persociology", while the former is known as the "sociology of the legal profession". They are all characterised by their inclusion in the broad sociology of law, the sociology of the legal order. In recent decades, extensive legal education at universities in most countries of the world has led to a tremendous expansion of academic legal scholarship, and the increased research capacity has led to the sociological study of more and more new legal phenomena. In addition, ministries of justice and other judicial administrations in many countries have established special departments for sociological research in law, both in the narrow sense of sociology of law (e.g. on the actual enforcement of certain legal provisions) and in the broader sense of sociology of law, which deals with the legal system as a whole. Viewed from a different angle, the number of studies and works in the sociology of law is expanded by the fact that some of those who were traditionally active in theoretical research on law or legal theory are now also conducting research in the normative dimension, while at the same time incorporating an analysis of the sociological dimension of law. As a result of extensive research in the sociology of law in the US, a number of studies relevant to the sociology of law now exist in several major world languages, particularly English. These materials provide us with a range of contexts for understanding the workings of law, which, together with the findings of the normative dimension of substantive jurisprudence, give us a deeper insight into law. 2 A danger of sociological factual research: the temptation of politicisation The sociological approach to law and the components of the legal system focuses on the analysis of the factual, the interests and the social effects, which, as an unintended side effect, also brings a danger to professionalism and scholarship. For where there is political democracy and ideological struggles determine the balance of power between social groups and access to or exclusion from government, the organisation of political struggles brings the functioning of law and the critique of individual legal norms into the arena as an important issue. The normative jurisprudential insights of traditional legal theory - by pointing out logical contradictions between rules and analysing logical-intellectual connections - are not suitable as a tool in political struggles. But the sociological analysis of law in its factual dimension reveals interests, mass effects, and this is excellent material for social groups in conflict with each other to support their own position or to refute the arguments of their opponents in order to "expose" their positions politically. This situation can therefore lead to a political instrumentalisation of research in the sociology of law and to the use of the sociological studies produced as ideological-political tools. As long as this political use does not penetrate the academic sphere, but only adds political overtones to the already politically neutral writings, the danger of politicisation is not a problem. After all, every social science that wants to create facts - economics, political science, etc. - is exposed to this danger. The danger becomes acute when political instrumentalisation is not only an afterthought, but also comes into play within the academic sphere. In other words, when the sociologist of law, even when researching the interests behind the legal regulations under study or when presenting the effects of the regulations, does not look at the interrelationships of the facts in an unbiased way, but selects the facts that support them from a fixed political position and ignores the opposing facts and the interrelationships that these facts and the interrelationships between them form. Since in a pluralistic political-intellectual climate the majority of major political positions can be supported by "selected" factual contexts, "sociological of law" writings from such political positions very quickly become opposing political battles, and the 257 battles of opinion between university departments, faculties, academic workshops essentially replicate the general political battles. When the legal and sociological literature and jurisprudence in a country, and thus a significant part of the legal think tanks, is drawn into such political struggles, its scholarly quality and credibility suffer, and it is read by the political faithful rather than by the wider scholarly public. Far from being merely theoretical, this danger has been very real in the academic communities of the sociology of law in various countries in recent decades and has often proved to be an obstacle to the teaching of the sociology of law in universities. In Germany, for example, a struggle began in the mid-1960s among a group of legal scholars to introduce the sociology of law as a subject of study in universities, but was joined by a number of legal political activists when it became clear that this struggle would be who merely wanted to use the subject to openly politicise established legal education and introduce their own political position, this process was halted by resistance from the academic bar and law faculties, and it was not until the late 1970s that the goal of establishing the sociology of law as an academic subject was achieved (cf. Rasehorn 1998). However, this depoliticisation has shaped some of the sociology of law workshops and their writings since then, so that caution should be exercised when searching for unbiased factual connections in the extensive sociology of law literature. Writings masquerading as sociology of law need to be filtered out from truly unbiased academic writings, and only a broad focus on the "political contamination" of certain sociology of law workshops and trends will make this possible. 3. The emergence of the sociological perspective on law The term "sociology of law" first appeared in Eugen Ehrlich's book of 1913 ("Grundlegung der Soziologie des Rechts"), but the sociological examination of law was already "in the air", because Max Weber had also written a sociological analysis of law with a different approach at that time (1911-13) as part of his great summary work "Economy and Society". But Arthur Nussbaum also published his summary work on legal factual research in 1914, which also outlined a factual, sociological study of legal phenomena. It was no coincidence that all three authors were German and that the development of the sociology of law was initially seen as a German affair. English jurisprudence was virtually non-existent in the nineteenth century due to the development of law limited to judicial decisions, and the development of jurisprudence in the United States, which emerged from the continuation of English law, was still in its infancy at that time. French jurisprudence also developed only with difficulty, and German jurisprudence had the largest academic community and scholarship. However, the trends and insights developed here were very quickly transferred to the jurisprudence of other countries. It was no coincidence that German legal theory provided the impetus for the development of the sociology of law at the beginning of the 20th century. This was because two lines of development that were apparent in several European countries were particularly pronounced in Germany. On the one hand, a strong legal doctrinal system was developed in the course of the 19th century, based on the earlier development of the law of judges, in order to be able to deal with increasingly complex conceptual contexts. As a result, the regulation of life situations was largely abstracted, and abstract rules and legal concepts were combined into a self-contained system of concepts. Under the guidance of law professors, lawyers then used this abstract legal conceptual system to observe the thousands of concrete life situations in which judges had to decide every day, but this closed conceptual system tended to become detached from everyday situations. This was one of the tensions that began to develop between certain legal circles that think in a normative conceptual context of law and other groups of lawyers (and non-lawyers) who pay attention to real life situations. Another development alongside the first was the activation of the legislature in the second half of the 19th century. With this development, alongside the gradual development of law based on judicial decisions, a new statutory law was created that differed from the law in force until then in one very important respect. While the law based on the development of judicial law came about only gradually and only when a large number of judges had begun to follow a consolidated norm, it was - in retrospect! - binding, recognised as law, the norms created by conscious legislation merely "hovered 258 over society" after their promulgation, and there was no widespread adherence to them. Of course, the machinery and apparatus of the modern state can ensure that newly created legal norms spread in a short time. But if such norms are enacted in large numbers without taking into account that in real life situations hundreds of thousands and millions of people routinely follow norms that run counter to them, then such law will become bloated and merely remain on the "paper" of the statute book, and the new legal norms enacted in legislation in everyday situations will not prevail. These were the two new developments in the legal world at the beginning of the 20th century, and the idea of the sociology of law arose in response to them. The lasting influence was achieved by Eugen Ehrlich and Max Weber, let's look at their analysis. Ehrlich distinguished between three types of law, social law, juridical law and state law, and he held that the three types of law have emerged in the course of history in that order. Social law arises in small groups of individuals, if they are even a little persistent. Thus in family communities, in circles of friends and in all kinds of small human communities. Within these communities, norms emerge in interactions, and members of the group are expected to act according to these norms in a given situation. "Social law" thus emerges spontaneously in society as a whole, and it is this law that gives people the greatest stake in guiding their behaviour. In early societies, this kind of law was the whole law, but at a more advanced level, frictions and conflicts between small groups lead to judicial instances that decide on these conflicts and which later become established as norms that guide later judicial decisions. This is jurisdictional law, i.e. the norms for judicial decision-making to resolve conflicts. However, this is secondary to people's life situations, says Ehrlich, because it is a rare occurrence in life that people have to go to court over a conflict, and much of life is still governed by social law. Finally, a third type of law is state law, a completely new phenomenon that intervenes in the life of society through conscious legislation and shapes the interactions between people. Ehrlich considers this last type of law to be of secondary importance and explains its prevalence in his time with a social crisis situation and thus only a temporarily greater role of state law, but predicts a decline in its importance in later times. On the other hand, he sets limits to this type of law by saying that state law can only follow what social law has already more or less spread, and that it can therefore only play a subsequent sanctioning role, but cannot proclaim as state law a norm that contradicts social law. State law can only recognise social law, but it has no chance of acting against it out of pure coercion. For if this is the case, according to Ehrlich, it remains only on the paper of the code and does not become a "living law". It should be noted that Ehrlich lived in the Austro-Hungarian monarchy in the region between Galicia and Bukovina, on the border of the empire, where Rusyns, Romanians, Poles, Hungarians and other ethnic groups lived side by side largely according to their own customs. In this situation, Ehrlich was well able to perceive the central Viennese law codes that remained on paper alongside the customary law that was actually followed. This problem, however, is not as acute in all modern legal systems, and it has retained its influence on Ehrlich to this day. In this thematisation, however, both conscious state legislation and legal doctrine, which ensures a legal conceptual world free of contradictions, have completely receded into the background. Legal development in the past century has not confirmed Ehrlich's prediction, and the role of state legal development has not only receded into the background, but has increased enormously in shaping law. However, the dilemma pointed out by Ehrlich of "staying on paper" if the law changes too much and too fast has persisted ever since and should be kept in mind by the legislature. Another conceptual flaw is the neglect of the role of legal doctrine and the emphasis on the role of concrete norms of conduct. This problem arises from Ehrlich's deeper understanding of society, which goes back to the vision of society outlined by August Comte in the early 19th century. This conception regarded social reality and social phenomena as causal regularities of natural reality. It failed to grasp the intellectual and cultural formalisation of social reality and its fixation in symbols, words, concepts, images and norms. Social phenomena and the boundaries between them therefore appear to him as physical facts. This was the reason why Ehrlich did not understand the meaning of conceptual systems and why he despised and rejected legal dogmatics as a system of conceptual relations. But even if this rejection was too radical, the misleading of the jurist, who was trapped in a closed legal world of meaning, could very well expose it in everyday life situations, and this in turn has had a lasting influence on Ehrlich to this day. Max Weber made none of Ehrlich's mistakes and recognised the importance of both state law and the concept of legal dogmatics. This also results from their different social theoretical foundations. For 259 Weber broke fundamentally with the earlier mechanistic view of social reality as identical with nature and placed the conceptual structure of sociality at the centre of his social theory. Against this background, he was better able to recognise the increasing conceptual complexity of modern societies and the inadequacy of earlier forms of law formation at a higher level. It follows: While Ehrlich, on the basis of legal historical material, affirms the predominance of social customary law, Weber, also on the basis of legal historical analysis, emphasises the rationality of newer forms of legal development and recognises the devaluation of earlier customary law formation (cf. Weber 1995:130150). In the course of modern social development, a state monopoly of coercion establishes itself, replacing the earlier dispersed powers of force, and the consciously constituted legal norms of the established state apparatuses are disseminated in modern societies by means of coercion. For Weber, on the one hand, this is the basis of the rationality of modern law, but on the other hand, he sees most clearly the higher rationality of law, which, in addition to the existence of complex social relations, is based on an abstract conceptual system of law. Therefore, he recognises that every new legal norm must fit into the contradiction-free conceptual system of law, and that this gives the legal norm its actual, ideological validity. In addition, however, Weber, like Ehrlich, sees that this does not yet answer the question of the comprehensibility of the norm in everyday situations, and therefore separately recognises the factual or sociological validity of legal norms, i.e. the importance of their comprehensibility in everyday situations. It can thus be seen that while Ehrlich only emphasises the latter, Weber can deal with both this and the level of legal dogmatic validity. After the two "founding fathers", increasingly newer sociological theories of law emerged in the first half of the 20th century, which, however, generally nuanced the approaches they outlined. Arthur Nussbaum's 1914 programme of "legal fact-finding", for example, complemented the predominantly legal-historically oriented legal-sociological analyses of the two founding fathers by broadening the perspective to include systematic research into the facts of life relevant to the newly created laws and by expanding the study of the actual effects of the created laws (cf. Raiser 1987:16-18, Ryffel 1986:3950). In this way, Nussbaum developed a practical-operational dimension to research in the sociology of law, whereas the orientation of its founders, who tended to look back into the legal historical past or, in Weber's case, even beyond it to the general level of social theory, did not allow for this. Under Nussbaum's influence, an Institute for Legal Factual Research was finally established in Germany in the early 1970s in the Ministry of Justice, which in the years that followed led to systematic factual research in several major areas of legal life. This has since been of enormous importance for the knowledge of the actual life of the law. In France, Georges Gurvitch founded a systematic sociology of law from the early 1930s onwards, which argues strongly against Ehrlich's conception but, like him, emphasises the social formation of law outside the state (Ryffel 1986:60-63, Carbonnier 1994:111-114). The Hungarian Barna Horváth, in his sociology of law published in Germany in 1934, also repeats in many respects Ehrlich's spontaneous formation of customary law as opposed to state legislative law (cf. Horváth 1995), while Theodor Geiger, who was of German origin but spent most of his professional life working in Denmark, also repeats Ehrlich's "social law" and his analysis of it, with different emphases (cf. Raiser 1987:98-104). Ehrlich's sociology of law also enjoyed great success in the United States in the 1930s, and after his work was translated, he became one of the founding authors of the then burgeoning movement of legal realism. Max Weber, on the other hand, only became known as a sociologist of law in the 1950s in the USA in the course of his later acquaintance with general sociology. However, given the focus of legal sociological research on opposition to state legislation on the one hand and legal phenomena more closely interwoven with everyday life - e.g. the judicial decision-making process - on the other, it can be argued that Ehrlich's sociology of law had a broader influence on later legal sociological thought than Weber's more balanced view of law, which emphasised the importance of state legislation and the formal legal conceptual world. In the jurisprudence that emerged in the United States at the end of the 19th century, the study of law in terms of social facts took its place relatively early alongside the dogmatic aspects of law. A pioneer was Roscoe Pound, who as early as 1908 pointed out the inadequacy of a "mechanical jurisprudence" limited to the internal context of law and argued for the inclusion of the analysis of law applied in practice alongside the paper of law. In many ways, the distinction between "law in book and law in action" anticipated Eugen Ehrlich's distinction between "paper law" and "living law", and 260 Pound conceived of his own concept of law as "sociological jurisprudence" (see Hunt 1978:11-35, in Hungarian Kulcsár 1976:57-65). Pound arrived at this insight primarily on the basis of Rudolf von Jhering's late work, in that he opposed the closedness of the conceptual world of law and emphasised the goals and interests behind legal norms. Later, when Pound became acquainted with Eugen Eghrlich's basic sociology of law and the concept of "living law", he strongly advocated Ehrlich in the United States. However, his own theoretical foundation was later of little importance due to its conceptual obliquity and slippages, and acted more as a propagandist for a sociological approach to law (cf. Hunt 1978:32). However, through his long academic career, spanning the development of the sociology of law from the early to the mid-19th century, and his academic leadership, he did much to promote the sociological perspective on law. Since the early 1930s, Roscoe Pound was considered one of the pioneers of the legal realist movement, although Pound was a fierce critic of their view of the exclusivity of justice. It should also be noted that the spread of a sociology of law approach in Europe came to a halt from the 1930s onwards, following the rise of dictatorial forms of government, and the focus shifted to the United States. It was not until the mid-1960s that this approach began to regain a foothold, but then in many respects under the influence of the American sociology of law that had emerged in the meantime. It is therefore important to highlight the change that American sociology of law has brought about in comparison to the European "founding fathers" (Weber, Ehrlich). While the idea of sociology of law was initially of a rather purely scientific nature and only introduced new aspects from a jurisprudential point of view, it took on a more political movement character in the course of the American split. Roscoe Pound and especially the legal realists after him wanted to provide not only a new approach to law, but a different kind of law. While only limited political pluralism existed in Europe in the late nineteenth century, political pluralism was already present in a broader public and intellectual sphere in the United States in the 1930s. Thus, criticism of the legal standpoint could more quickly turn into a split in the legal-political camp. Thus, in the 1960s, the idea of the sociology of law, which had been politicised in the United States, returned to European countries and was more than the original, more purely scientific approach to the sociology of law. In many ways, it was more of a "sociological movement" in the legal world and only partly a scientific movement. This shift in emphasis makes it understandable that although the sociological approach to law emerged in Europe at the beginning of the 20th century, its institutionalisation as a university subject and discipline met with considerable resistance in Western European countries from the 1960s onwards. Let us now take a closer look. 4. The institutionalisation of the sociology of law The sociology of law as a new form of analysis of law emerged in the early 1900s, but it was not until the 1960s and 1970s that it became truly institutionalised in academic legal education and in the academic legal field in Western European countries. Institutionalisation, i.e. recognition as a subject of university teaching and as a branch of legal research, has been achieved only with great difficulty, and an account of this development will bring us closer to understanding the sociology of law. Germany is a good example of the difficult process of institutionalisation. So let us look at how it came about and what were the reasons that hindered the institutionalisation of the sociology of law in science and research. The beginning of research in the sociology of law in Germany was made in the early 1960s by the sociologist Ralf Dahrendorf, who proved on the basis of an empirical survey that the overwhelming majority of German judges came from the upper class and derived their conservative orientation from this (cf. Raiser 1998:11). In doing so, he took up the thesis of the communist politician Karl Liebnecht of "class justice" from the turn of the century, around which the sociology of law immediately grouped itself. This was characterised, on the one hand, by the fact that only a small part of the attention was directed towards scientific aspects and that the sociology of law appeared more as a field of political critique. The new discipline was classified as a political critique of the existing legal system, which immediately mobilised broad political camps. It is important to note that in most Western countries 261 there is a general tendency among the various social science communities for sociologists and political scientists to be more politicised and to represent left-wing and/or liberal political values in their academic work, while the legal community tends to be more conservative and, since this implies acceptance of the status quo, more neutral and free of political undertones. From this basic position, Dahrendorf's critique of the sociological judge in the sociology of law was also embedded in the longstanding political antagonism between the legal and sociological-social science communities. This antagonism was, of course, an obstacle to the "admission" of sociology of law to law schools, and Dahrendorf's tone only reinforced the "distrust" of sociology of law in academia. Nevertheless, the struggle for recognition of the sociology of law in Germany began in the mid1960s with the organisation of some law professors and sociologists with law degrees who were open to sociology. Firstly, a research centre for legal sociology was established at the Free University of Berlin, which increased a new distrust among the leadership of other German universities, as this university was considered the most apolitical of the German universities and was traditionally known as a "left-wing hotbed". Nevertheless, in the early 1970s, even some law professors and sociologists who were considered conservative joined the struggle to institutionalise the sociology of law, if only to give it more balance. Thus Helmut Schelsky, who later became public enemy number one of the German bourgeois intelligentsia after attacking the "mandarinisation" of intellectuals with his book in the mid-1970s, was still involved in the early phase of the struggle for the sociology of law (cf. Raiser 1998:14, Rasehorn 1998:22). The situation became particularly acute after the student revolt of 1968, when one of the demands of the student leaders and the university social scientists close to them was the abolition of the independent law faculties and the creation of integrated law and social science faculties in their place (see, somewhat belatedly, the propagation of this demand in Hubert Rottleuthner's book Rottleuthner 1973:13-45). But even after the university turmoil subsided, there were a number of activists in the groups that had formed around the sociology of law who did not secretly see the sociology of law as an agitational field for "smashing the oppressive law" (cf. Raiser 1998:17), which eventually prevented the inclusion of the sociology of law in most law faculties, and progress on the political level was eventually only achieved by those who fought for it. After the formation of Willy Brandt's socialist government in 1969, left-wing sociology of law activists succeeded in obtaining legal support to oblige reluctant university administrations to recognise and introduce sociology of law as an academic subject. Nevertheless, it took ten years of state-political coercion to break through the universities and establish the sociology of law at German universities. This "German story" is by no means unique, and most countries have similar struggles and similar divisions between academia and the social science communities, especially sociologists, with the sociology of law often emerging as a left-wing critic of the "survivalist" law schools. Despite this emergence, the institutionalisation of the sociology of law in academia and research is now widespread throughout the world, and although the sociological community is dominated more than usual by political activists and books and studies with a direct political agenda, there is a wealth of valuable academic analysis produced in the various sociology of law workshops (departments, research institutes) that provide a deeper understanding of how law works. Those who have become aware of this constant problematic in the sociology of law and therefore try to separate neutral analyses from politically motivated writings will find a wealth of insights in this field. 5. The institutionalisation of Hungarian sociology of law The sociological approach soon appeared in Hungarian legal theory, and Gyula Moór - somewhat retrospectively in a 1921 study - referred to the process begun by Ágost Pulszky in the 1880s and continued by Gyula Pikler and Bódog Somló in the first phase of his academic career as the "sociologisation" of legal theory (cf. Moór 1921). However, this only partially corresponds to the sociological approach to law that developed in Germany from the 1910s onwards. The sociological element is supplied here on the one hand by the customary law focus of the historical school of law (Pulsky), and on the other hand by the historical materialism of Marxism in Pikler and the social 262 theoretical insights of Spencer in Somló Bódog. This line of thought was then repeatedly discredited in the early 1900s. Somló himself deliberately broke with this line in the second phase of his work by making the neo-Kantian separation of being and ought, thus separating law as the world of being from the factual determinations of being. Gyula Pikler, who further radicalised himself along this line, ended up in neurophysiological research in his search for the material determinacy of laws and ideas, providing a vivid example of the impasse of this line. But it also discredited the followers of this line of thought in the social sciences more broadly, as they became a political movement and provided the intellectual background for the Bolshevik Soviet Republic, contributing to the dismemberment of the country after Trianon (Bódog Somló, realising this, committed suicide on his return to his hometown of Cluj-Napoca when confronted with the fact of Romanian occupation, see Moór: 1921). From the 1920s onwards, Hungarian jurisprudence was dominated for a long time by neo-Kantian legal philosophy and the text-positivist conception of law, which focused on state legislation, followed by the sociological efforts of law in two directions. One direction was represented by Barna Horváth, who based his concept of law on the one hand on the concept of law of the German Freirechtists and on the other hand on the concept of law of the authors of the sociological concept of law emerging in the Anglo-Saxon countries. It was no coincidence that his main work, the Sociology of Law, was published in German only in Germany in 1934, as it represented a departure from the "mainstream" in domestic legal life and in the political and intellectual environment. For the same reasons, his English Theory of Law, which also deals with the sociology of law, was not published in Hungarian until 1943 (see Horváth 1943), although he had collected much of the material for it during his study trip to England in 1929. While Barna Horváth developed his sociological theory of law against state legislation on the basis of the urbanised forms of modern social organisation (plural politics, mass communication, public opinion and opinion-forming), the researchers of "folk legal customs" from the late 1930s sought to explore the "original folk" aspect in addition to state law. The legal historian György Bónis was one of the main organisers of the collection of "folk legal traditions" from the early 1940s, and in small villages at that time it was possible to uncover legal customs and their life system as a whole, which had grown over centuries, through empirical collecting (see Kulcsár 1981:843). This research was discontinued in the years following the Sovietisation of the country, but Jenő Tárkány Szücs, one of the research participants at the time, published the material collected at that time in 1981 with the aim of reintroducing the old legal customs, now almost completely extinct, into research on Hungarian legal history (Tárkány Szücs 1981). In the nineteenth century, for the vast majority of Hungarian society, these legal customs constituted the law that governed all the important situations of daily life, while the official state law and Werbőczi's three-volume book applied only to the upper classes who turned to the courts. To a decreasing extent, however, this was the case until around 1900. The sociological line of legal ethnography, which had died out by the end of the 1940s, was hushed up in the domestic legal scene for several years, and it was not until 1960 that the domestic sociology of law cautiously began to revive. Kálmán Kulcsár, who had himself participated in the research group collecting legal folklore as a young law student in the late 1940s, introduced the views of the early German and other European sociologists of law and the insights of the American sociology of law that had emerged in the meantime into Hungarian jurisprudence in a 1960 book (cf. Kulcsár 1960). At that time, there was still little suspicion of "bourgeois pseudoscientific" sociology, so one can only wonder that such a book could be published at all. The idea of the sociology of law did not spread in national legal life until the early 1970s. Since the idea of sociology of law was not given a political tinge during this revival, it could be taught as a university subject in domestic legal education without much resistance or attention, whereas in Germany at the time there was a great political struggle over this step... For several years, Kálmán Kulcsár was the only Hungarian representative of the sociology of law, but his work "The Foundations of the Sociology of Law", published in 1976, has become firmly established in the knowledge of the newer generations of lawyers. Through his work, the spread of the sociological approach in Hungarian legal thought began in two directions. One line was the beginning of empirical persociological research, which Kulcsár started in the mid-1970s and published in 1982 (see Kulcsár 1982). This was followed by the trial lawyer Miklós Kengyel, who had already conducted in-depth empirical research in the field of persociology in the first half of the 1980s, documenting various aspects of factual litigation (see Kengyel 1990 for a summary). Another line was the shift of 263 the sociological approach to legal theory, which was also Kulcsár's focus. In this context, special mention should be made of András Sajó, who has developed a sociological conception of law in most of his studies since the early 1980s (cf. Sajó 1980). As far as my own conception of law is concerned, my turn to Niklas Luhmann was encouraged by Kálmán Kulcsár from the late 1970s onwards, and, largely following Luhmann, I have also outlined a sociological theory of law in my books on legal theory (for a summary, see Pokol 2001). 264 Chapter X Some fundamental problems of the sociology of law 1. The extension of law and jurisdiction in the society The functioning of the law and the work of lawyers are largely determined by the interrelationships arising from the internal structure of the various groups of legal professionals in a given country, their relations with each other and the relations of the legal profession as a whole with other groups in society. The first issue to be examined is the question of the "legal saturation" of society. 1.1. General considerations There are large differences between countries in the figures for the legal professions as a whole and for specific groups of legal professions, especially if we look at this in a time dimension. Higher lawyer density increases competition between lawyers, makes access to certain legal activities more difficult and increases the expansion of legal activities as a result of the displacement of the legal profession. For example, in the corridors of hospitals and clinics, representatives of law firms walk around encouraging patients to file "malpractice" suits, while this area is almost completely ignored by lawyers in the face of a smaller number of lawyers. The first thing to note is that the number of lawyers in all modernised countries has risen sharply in recent decades. This is true in the United States as well as in European countries, and there has been an increase especially since the second half of the 1960s, although in some Western European countries this was not completed until the 1980s. In Central and Eastern Europe, there has also been a huge expansion in this field since the collapse of the centralist party regimes and the Soviet empire, with the number of lawyers in some countries almost doubling every few years. This expansion has led to a number of consequences that need to be analysed, but also the reasons for the expansion. The main social reasons for the increase in the number of lawyers and the rising demand for law can be listed as follows. 1) The emergence of a society based on industrialisation and broad service sectors, rather than a traditional society based on agricultural labour, increases internal social complexity and the likelihood of everyday conflicts arising, which increases the need for law and jurisprudence. 2) Another dimension is the increasing individualisation and expansion of impersonal relations, which replace the former activities within the framework of personal relations. 3) In communal groups of activities characterised by personal and emotional relationships, there is little recourse to law in the event of conflicts, while those engaged in impersonal activities focus on conflict resolution through law. Centralised state control and social organisation also minimises the role of law in such societies, and the conflict that arises is then resolved by recourse to the central state authorities in the form of complaints or, in the case of a group closer to the state centre, by influence. Open legal debate then rarely takes place. 4) The decline of the central state organisation of society and its replacement by market-cooperative relations, on the other hand, leads to a radical strengthening of the role of conflict resolution through law. 5) Although the above-mentioned changes have increased society's need for law over the last two hundred years, until the 1960s, in developed Western societies with market economies, there was a more or less fixed boundary between what falls within the realm of law and what is manifestly alien to law and subject to other social regulation (e.g. morality, ethics, professional ethics, etc.). From the 1960s onwards, however, a change began to emerge, especially in the United States, which gradually tore open the boundaries of the terrain of law anchored in the public consciousness and expanded into a number of previously unimaginable areas. As an example, 265 the creation of deep legal intervention in the family, but also areas of interaction between children, classmates, work colleagues, participants in a love relationship, etc. became part of the law and legal procedures that seemed unthinkable only a few years before (cf. Friedmann 1990:229-240). With this expansion, the whole of society and every relationship to it can become involved in legal, judicial procedures, and it is only up to the litigiousness of those involved in the relationship to create a realistically detailed judicial practice that sets out the norms to be followed in this area and then further increases the frequency of court proceedings in the new areas. The main reason for this expansion is the shift in the focus of the administration of justice from traditional statutory and judicial precedent to constitutional fundamental rights in the United States since the early 1960s, more recently referred to by analysts as the 'fundamental rights revolution' (see Epp 1998). Whereas the earlier statutory and precedent rules focused on concrete life situations, the push to focus on abstract constitutional fundamental rights in everyday law has drawn whole areas of life into the legal sphere. Moreover, the scope of these rights has been further expanded over the years by political movements that have sought to implement the social changes they seek in the traditional political arena (legislative battles in parliament and battles between political parties) rather than in the courtroom (cf. Scheingold 1998). As a result, the boundaries of the traditional realm of law were breached and, as Lawrence Friedmann wrote in the mid-1980s, a "total jurisprudence" was imposed on society. This change, albeit to a lesser extent, has also affected other developed Western societies since the 1980s and has also been felt in the new democracies of Central European countries in recent years. These are the main social reasons that have determined the need for law and jurisprudence in recent decades. Since the role of law and the number of lawyers, which had been suppressed in Hungary and other Central and Eastern European countries since the fall of the centralised state party systems, has exploded, it seems reasonable to first look at the more balanced development in the West and only turn to an analysis of our region after exploring the connections here. 1.2. The explosion in the number of lawyers in European countries The explosion in the number of lawyers began in the United States from the late 1950s onwards, which is related to the fact that all the triggers for the need for law - industrialisation, the role of the market, the dominance of impersonal relationships, the pushback against the centralised organisation of society, the "fundamental rights revolution" - were most present here. However, apart from these objective incentives to increase the number of lawyers, two other political reasons contributed significantly to the scale of the growth. One was the public policy of radically expanding university places with the help of budgetary funds, and in this respect the Western European countries followed the USA. Until then, the cost of higher education and the cost of maintaining participants had spontaneously excluded a very large proportion of the lower social classes from higher education. Then, in political support of greater equality of opportunity, a radical expansion of public support for higher education was initiated, with a number of new public universities in Western Europe and the United States moving forward with a system of free university and faculty establishment and associated high tuition fees to compensate for the extensive public scholarships and student support systems. From then on, the deterrent effect of the social barrier was removed, and alongside the radical expansion of higher education as a whole, there was an unprecedented increase in the supply of graduates, particularly in the highly regarded liberal arts. The legal profession has traditionally been one of these professions, and this change has multiplied the number of law schools and the number of students admitted to universities. The other reason for the spread of the legal profession in the United States has been that functioning bar organisations have not been able to close free entry to the legal profession and virtually anyone can enter the legal market unhindered after graduation. At the turn of the millennium, there were about one million lawyers in the United States and the university law school system has grown to 187, with 40,000 new lawyers graduating and entering the profession each year. Even as new universities attempt to establish and accredit new law schools (i.e., have them recognised by the American Bar Association) each year, it is apparent that the earlier explosive expansion is a thing of the past and that societal response to the saturation of the legal profession has diminished the appetite for entry into the legal profession. Although the replacement 266 rate of 40,000 per year for the one million lawyers reproduces today's numbers in 25 years, and since the retention rate in the legal profession is about 35-40 years, starting from 23-24 year old graduates, this still implies some increase in the training rate. But even then, this ratio already represents a gradual state of equilibrium after the explosive expansion. Of course, it should be noted that the legal profession has become so saturated in recent years with a million working lawyers - who have a younger average age due to the rapid expansion - that only a proportion of new graduates are able to take up a paralegal position or join an established law firm. But the saturation that still gives lawyers a legal profession in society is well reflected in the one million lawyers in the nearly 300 million United States. It should be noted here that this is also the most saturated country among developed Western countries, so the ranking of the saturation of lawyers can be compared among countries. Looking at Western European countries in general, it can be said that the demand for an objective lawyer and jurists in society has also increased here, but to a lesser extent. Moreover, in some countries the national organisations of the legal profession have succeeded in keeping the doors to the legal profession closed, and where this has been achieved, either the number of students at the law schools themselves has remained modest or, if it has increased, the "customary" barriers to later entry into the legal profession have prevented the explosive expansion of the legal profession. The lower demand for law and lawyers compared to the United States is due to the fact that in Western European countries, while the share of impersonal relationships has increased with urbanisation, the traditional role of communal-emotional relationships has remained much larger. This makes it impossible to resort to law in the event of conflicts in a range of relationships. The role of the market in organising social relations is also more restrained than in the United States, although since the 1970s there has been a decline in state organisation and an increase in the organising power of the market in all Western European countries. Against this background, it is understandable that while most Western European countries have seen a strong expansion of the legal profession in recent decades - and this did not begin in the late 1950s but only in the 1970s - this expansion has not reached the same scale as in the US and legal saturation is lower here than there. In Germany, the number of lawyers has tripled in the last 25 years - from 1977 to today - and while there were about 400 lawyers per million inhabitants at that time, today there are 1,200 (cf. Raiser 1987:154, Blankenburg 2001:19). If one takes the US figure of 3,000 lawyers per million inhabitants as the still existing saturation point, there is still room for further expansion. It is true that in the US litigation structure, the broad attorney activity and passive role of the judiciary provides greater scope for attorney activity than the more active judicial perversion and more limited attorney activity on the continent. Accordingly, the ratio of judges to lawyers in Germany is much higher than in the United States, where there are only a few thousand judges for every million lawyers, whereas in Germany in 1998 there were 23,000 judges for every 92,000 lawyers. It should be noted, however, that the ratios are also shifting among Germans: While in 1990 there were 23,000 judges for every 56,000 lawyers, in 1998 the number of judges did not increase at all, while the number of lawyers rose to 92,000 (cf. Blankenburg 1998:11; 2001:7). And the expansion of the German legal profession as a whole is marked by the fact that in 1998, out of a total of 165,000 German lawyers, 135,000 law students were studying at German law schools and preparing for a legal career (Ranieri 1998:831-836). In England, the increase in the number of solicitors has been somewhat more modest and there are now 72,000 solicitors compared to 35,000 in 1977 (i.e. just over double the threefold increase in Germany). 60,000 of them are solicitors and 12,000 are barristers (see Miers 1999:55-83). This more modest growth is explained by the fact that even today, admission to the English Bar after a university degree requires admission to (one to three years of) practical training, controlled by the national bar associations, which are only gradually yielding to the pressure of university dropouts by keeping them in check. This in turn will reduce the number of applicants to university law faculties and the willingness of university administrations to increase the number of places, since the resulting greater restriction on admissions will exclude some graduates from the legal profession anyway and create employment problems. In 1998, for example, 8,000 of the 16,000 recent law graduates applied to train as solicitors but only 6,000 places were available, and 2,500 applied to train as barristers but only 1,500 places were available (Miers 1999:63). And even those who survive the bottleneck are only partially able to get into solicitor firms or find work as barristers. Outside this limited legal field, local and central authorities absorb some of the remainder, but even then only about 10,000 of the 16,000 267 lawyers become solicitors. This situation has already slowed the expansion of law schools seen in England in the 1960s and 1970s. But even this increase is still equivalent to the total number of lawyers today every 8-9 years, and even that represents a large expansion in terms of 35-40 years in the profession. The legal saturation of English society per million population is currently around 1500, still only half that of the US. In the Netherlands, the number of lawyers only increased in the 1980s, but even here there are now 650 lawyers per million inhabitants, compared to only 400 in 1990, and the high number of lawyers in education shows that the expansion is continuing (see Blankenburg 2001:16). For Belgium, there are detailed data on lawyer density going back to the 1840s, and it is interesting to see that in the 120 years up to the end of the 1960s there were only small increases, while the number of lawyers here almost doubled within ten years from 1970 (see van Loon/Langerwerf 1990:297). It is also worth publishing this table on the radical expansion in detail after the earlier gradual expansion, because it gives a good impression of the general trends in Europe and of "something dramatic" that has happened in the relationship between law and society in recent decades, and of which legal scholarship is still largely indebted for research and explanation. Lawyer density and litigation frequency in Belgium per 100 000 inhabitants: 1840: 22.2 lawyers, 13.6 judges, 359.4 justices of the peace, 321.5 ordinary judges at first instance 1850: 18.4 lawyers, 12.1 judges, 684.7 justices of the peace, 252.7 ordinary judges at first instance 1860: 20.8 lawyers, 11.9 judges, 683.7 justices of the peace, 320.6 ordinary judges at first instance 1870: 22.6 lawyers, 11.2 judges, 734.1 justices of the peace, 436.3 ordinary judges at first instance 1880: 24.2 lawyers, 11.3 judges, 1018.8 justices of the peace, 675.9 ordinary judges at first instance 1890: 31.2 lawyers, 11.0 judges, 1242.8 justices of the peace, 629.2 ordinary judges of the first instance 1900: 32.6 lawyers, 10.6 judges, 1553.1 justices of the peace, 621.5 ordinary judges of the first instance 1910: 32.3 lawyers, 10.3 judges, 2180.5 justices of the peace, 760.6 ordinary judges at first instance 1920: 28.8 lawyers, 11.6 judges, 2548.0 justices of the peace, 574.4 ordinary judges at first instance 1930: 37.4 lawyers, 10.1 judges, 1304.5 justices of the peace, 1030.5 ordinary judges at first instance 1940: 44.5 lawyers, 9.8 judges, 1816.1 justices of the peace, 334.9 ordinary judges at first instance 1950: 38.1 lawyers, 12.9 judges, 2105.5 justices of the peace, 776.0 ordinary judges at first instance 1960: 39.0 lawyers, 11.9 judges, 2451.5 justices of the peace, 940.3 ordinary judges at first instance 1970: 39.6 lawyers, 16.4 judges, 1993.3 justices of the peace, 1251.4 ordinary judges at first instance 1980: 67.4 lawyers, 17.5 judges, 2363.5 justices of the peace, 1396.0 ordinary judges at first instance The proportions of the Greek legal profession also illustrate the upper limits of legal saturation in society. At present, there are 25,000 lawyers ("dikigoros") for every 10 million Greek inhabitants, which is roughly equivalent to our population, and the competition is exacerbated by the fact that 16,000 of them are based in Athens, and in addition to them there is a layer of non-lawyers who make a living from legal advice and representation and take care of the legal affairs of the inhabitants of the remote, small settlements, because no lawyers come here (Lonbay 1999). It should be noted at this point that the 16,000 lawyers in the Greek capital are four times the number of lawyers in our current capital, which shows that the upper limit of saturation has been reached domestically. The situation of the legal profession in Japan is interesting as a counterpoint to the expansion of the legal profession. The level of economic and social development is known to be very high and traditional conflict resolution mechanisms beyond the law prevail in society. In Japan, with its nearly 120 million inhabitants, there are currently only 20,000 lawyers and about 1,000 graduates per year from the narrow legal education system. Yet even with the low demand for law among the Japanese, the small number of lawyers is becoming a bottleneck to economic development (see Bálint 2001). 1.3. The development of the legal profession in Central and Eastern European countries Let us then turn to our region and consider the rates of expansion of the legal profession here. What all countries in the region had in common in the decades after the Second World War was that, embedded 268 in the Soviet military zone and under the domination of state organisation of society, the demand for law and the legal profession was low in all dimensions. Total state organisation was the dominant form in all areas of life, where both private forms of organisation were suppressed or under state control and market relations were almost completely abolished. In some Central European countries especially Hungary and Poland - there was some relaxation in these areas from the 1970s onwards, but these features remained essentially intact until the regime change in 1989. However, the need for justice in this region was also reduced by the relatively widespread peasant-traditional way of life, which maintained personal-intimate relations in the broad working-class communities for decades after accelerated industrialisation and kept the impersonal contact area low. If there was any need for law at all in this system, it was the stabilisation of a more predictable criminal law after the relapse of political terror, and administrative law and its magisterial procedures that placed state organisation within the legal framework of authority. Private disputes between private parties were largely legalised in small cases, such as disputes over the use of bathrooms by co-tenants, the conclusion of maintenance contracts for the purpose of acquiring a home, and subsequent maintenance disputes (see László 2001). In all these dimensions, the years following the 1989 revolution brought a decisive change. The massive privatisation process has transferred most of the wealth and productive assets accumulated in society into private ownership, leaving inter- and intra-enterprise relations to the law and the market. Moreover, public organisation has largely disappeared from all spheres of life and has been replaced by private forms of organisation, again within the framework of the market and the law. Impersonal forms of contact are also more present in contemporary social relations, with the forced industrialisation of the state-party system and the radical expansion of the urban-rural form of life in most Central and Eastern European countries, including our own, playing a role in place of the traditional communal form. These were the changes that spontaneously awakened society's need for a lawyer and jurist. However, the way countries in the region responded to this increase in demand was also strongly influenced by the decisions of the narrower higher education policy and the strength of the national "guild" organisations of lawyers. At the beginning of the analysis it should be pointed out that in 1989, the year of the regime change, there were in Hungary a total of about 5,000 lawyers in the four traditional legal professions judges, prosecutors, lawyers and legal advisers: 1,200 judges, 1,200 prosecutors, 1,600 lawyers and about 1,000 legal advisers. In addition, there is a slightly smaller number of administrative lawyers working in local and central authorities, but most of them, especially in the council apparatus, were already organised within the framework of work, had completed their legal training by distance learning and were only partly working as part-time lawyers in connection with other activities. This low number of lawyers - about 8,000 in total - could be maintained because the central state university supervisory authority controlled the number of admissions most strictly and it was not possible to open courses outside the three law faculties (ELTE in the capital, Szeged and Pécs). Since the problem of low numbers of lawyers had become a major issue since the 1980s, a small number of law faculties were established in Miskolc in 1981. However, even in the year of the turnaround, only 700-750 freshly graduated lawyers left the universities (cf. Vavró 2000). Even this small number of graduates was still subject to the restrictions of the guilds, and at least in the capital, where 650 of the 1600 lawyers were practising at the time, entry into the legal profession was largely only possible through the "family dynasties" of those already practising. This was only possible for a few dozen new lawyers per year. All these obstacles were removed from 1990 onwards, and the state made it easier for universities to admit new law students, while at the same time the strict admission requirements were thoroughly relaxed. Universities were able to decide for themselves the number of students to be admitted to selffunded courses - beyond the state-funded framework - and the increase in the market element in maintaining universities created an incentive for universities to do so. Another important change was that the "self-protection lock" of the national guild organisations of lawyers was lifted by the legislative changes and graduates can now enter this circle relatively freely. In contrast, the number of judicial and prosecutorial candidates funded from the budget can only be increased within a very limited range, and is at most 100-150 per year (see László 2001). Thus, the fresh graduates of the extended legal education can for the most part only go into the liberal legal profession. In local 269 government, the long-standing "lawyer hunger" of the past has certainly been satisfied by the influx of new lawyers in recent years, but there are still absorption capacities today. As an aside, it should be noted that a small group of notaries have managed to remain closed despite the change of regime, and that there are only 280 notaries left in the country, benefiting from expanded legal opportunities and a considerable increase in prestige among the legal profession. The radical expansion of university legal education in the 1990s has led to a total of approximately 16,000 law students studying at law faculties today and between 2,000 and 2,200 fresh graduates leaving the law faculties in search of a job every year (cf. Vavró 2000). And this output will increase with the additional law faculties that have been established in the meantime. This has led to the fact that instead of about 5,000 lawyers working in the traditional legal professions at the end of the Wende, today there are about 13,300 lawyers working in these professions. The number of lawyers has risen from 1,600 to 8,200; the number of legal advisers has not increased to the same extent - they are replaced in many places by contract lawyers from companies - but is still around 1,500 (cf. Gábor László 1999; Miklósy 2001). The number of public prosecutors has remained essentially unchanged at 1,265 in 1999, because this once so powerful professional group lost a number of its former functions after the fall of communism (cf. Polt 2000). The number of judges and public prosecutors has increased slightly and is now 2,300, to which 250 court secretaries have been added (see Solt 1999). The real expansion is thus taking place in the legal profession, which has more than quintupled in size, and the future will bring further radical growth in this area, as outlined above. It should also be noted that the expansion has had different effects in different regions of the country. As the need for lawyers is greater in the more socio-economically developed parts of the country, instead of 650 lawyers in 1990, there are now 4,000 in Budapest, a six-fold increase, while instead of 50 lawyers in 1990, there are now 170 in Békés County, a three-fold increase. More lawyers in public administration. About a quarter of the 3,100 notaries in local and regional administrations are lawyers, or 700 rounded off, and there are another 800 lawyers in local and regional administration. In the central state administration, there are currently 3,300 lawyers working in ministries and other general authorities (data from the Civil Service Department of the Ministry of the Interior). That is just over 18,000, to which must be added, in the broadest sense, the 1,200 to 1,400 lawyers who work as journalists and make up about 20 % of Hungarian journalists. They are by no means lawyers, but their legal qualifications help them to process information and this makes them successful in this field in competition with other professions. Therefore, this career should continue to be seen as a sector that welcomes fresh law graduates. If we add them up, we can put the size of the Hungarian legal profession today at 19,500 lawyers. This is slightly more than the number of law students currently pursuing a legal career at law schools 16,000 - and with this number, the number of our lawyers will increase by more than 2,000 per year. Before we turn to the question of how far this expansion can go and whether - and if so, when - an explosive strain on the legal profession can be expected if the number of graduates remains the same, it is worth taking a look at developments in two other Central European countries. The Czechs have undergone a similar transformation as we have. The number of prosecutors and judges is similar to ours, although there are slightly fewer prosecutors. In 1995, the Czechs had a total of 800 prosecutors - compared to our 1,265 prosecutors - with a population roughly equal to ours (Blankenburg 2001:19). But the number of lawyers in the Czech Republic has also grown rapidly in recent years: The number of Czech lawyers tripled from 2,000 in the 1990s to 3,000 in 1998. The number of law students at universities has also risen sharply, and although not to the same extent as in the Czech Republic, the number of law students there was 12,000 in 1998 (see Blankenburg 2001:15). The rate of expansion is also high in Poland. The number of judges per million inhabitants is slightly lower than in Hungary (230 in Poland and 160 in Poland), the number of prosecutors is the same (120 in both countries), but the expansion of higher legal education is even significantly higher than in Hungary. This, in turn, can only increase the layer of lawyers and in-house lawyers remaining there, unless the national guild associations of those working in this field can close the field to them to some extent. In Poland, about 20,000 fresh graduates leave the law faculties of state and staterecognised private universities every year, which is almost three times the Hungarian output, even taking into account the difference in population (10 million Hungarians and 38 million Poles). So if there is to be an explosion of tensions at any level of legal expansion within the legal profession, it is the Poles who should be kept in mind, for there the signs will show themselves sooner. Because if the 270 bar associations and the law societies absorb this huge mass of people - under the pressure of legislation - then the internal tensions within the bar associations and the law societies will increase, and if not, then it could ferment among the young lawyers who have just graduated and are unemployed. As a reminder, the French student revolt of 1968, which very quickly turned into a sociopolitical explosion, was triggered by the radical expansion of universities, which was one of the main causes, as the prestige of the intellectual professions, which became mass professions, declined sharply and the young university students, disappointed in their expectations, easily rebelled against the system (see Rieffel 1993). Coming back to the domestic situation, it is then necessary to assess how far further expansion can go and what changes can be expected as a result of the expansion. In the next few years, no change in the annual reduction in output can be expected, because this would require a review of the entire higher education policy, the political priority of expanding higher education and thus a reversal of the marketisation of more and more higher education. In this system, the "scarce" intellectual professions are key to the survival of universities, and the legal profession is a case in point. On this basis, a new intake of two to two and a half thousand law graduates per year in the coming years seems realistic. Of this number, the judiciary and the prosecution cannot absorb more than a few dozen, not even for budgetary reasons, but it should be noted that, for example, the proportion of Hungarian judges in relation to our population is one of the highest in Europe and among developed countries in general, only ahead of the Germans, who have 270 judges per million inhabitants, compared to 230 in Hungary (Blankenburg 2001). The public sector could be a breakthrough for lawyers for a few more years. Today, only a quarter of notaries are lawyers, and here the prestige of a law degree gives them an advantage over other graduates. Because of its proximity to the big cities, the number of lawyers in this field has not increased, but the saturation of the traditional legal professions may make it more attractive to some young graduates. But city and county governments can also absorb many lawyers, although some specialised administrations may require a degree in addition to a law degree. If competition is strong, when the alternative is unemployment, they will also be more willing to do so. In competition with other university graduates, central administrations can also absorb many more lawyers than before, and here the need for an additional law degree could become even greater. Overall, the full intake capacity of the public administration could provide jobs for several thousand more graduates in the future. It should be borne in mind, however, that at two and a half thousand law graduates per year, this number could be saturated in a year or two. In addition, there is competition from the current successor institution to the former College of Public Administration and the training provided by the Police College. For about one and a half to two thousand people a year, there is simply no other option than to pursue a career as a lawyer. János Bánáti, a leading representative of the bar association, recently estimated the upper limit for the number of new entrants to the legal profession at 1 000 per year (see the conference report by Péter László: László 2001). However, since the central bar association cannot, according to the law, influence the willingness of individual law firms to admit new lawyers, the income from the admission of trainee lawyers, which is slowly becoming "affordable", could lead some law firms to radically expand this activity. This in turn could lead to twice as many lawyers as today (1,000 per year) in a few years. But even if the smaller expansion is realised, we should expect to have about 20,000 lawyers between 2010-15, and if the larger expansion is realised, we could have 30,000 lawyers by that time. With this figure, one must bear in mind that it is roughly equivalent to the country with the highest legal density in the world, the United States, where there are 3,000 lawyers per million inhabitants. But to make a more accurate comparison, consider the 25,000 lawyers in Greece, whose population is roughly equal to that of Hungary. So, in principle, this number is still bearable, even though this swelling has led to the phenomena of the aggressive expansion of the legal profession in the United States, the offering of lawyers in a wide variety of fields, the assumption of the risk of damages by the lawyer, the advance payment of litigation costs by lawyers, etc. As a result, lawsuits and out-of-court proceedings in the United States have multiplied and exceed Hungarian figures in this area. It is to be expected that this increasing saturation of the legal profession will lead to greater competition within the profession and the associated tensions, but also to an increase in differences between the various strata of lawyers. With such a large number of lawyers, there is also a much 271 greater incentive to specialise internally, as the American and Western European examples show (Gellner 1998:508). This is also shown by the examples in Hungary, where in the capital there are already signs of specialisation in the larger caseloads and some law firms already deal mainly or exclusively with certain commercial and civil cases, while in a number of rural districts the caseload and litigation numbers do not allow this (see László 2001). The time of "absolute" saturation cannot be calculated in advance because, as we have seen, it depends on a number of factors. But this will be the case in 10-15 years, and the established university legal education system must be prepared for this. Let's look at the correlations that can be found in this area. The most fundamental development for university legal education is that the rapid expansion of the legal profession will result in a relatively young average age of lawyers, even if absolute saturation is reached. If one takes the entry of the older cohorts into the legal profession from 1995 onwards, then even if saturation is reached in 2015, an average age of 40-45 years can be expected, of which most intend to remain in the profession for a good 20 years. The problem of rapid growth beyond a certain point is therefore both reaching saturation and the almost complete stagnation of migration out of the profession over many years due to the young average age. The social feedback of this problem could reduce the inflow to law schools in a few years, even if this initially only means that overcrowding in law schools disappears and that, due to the funding required for universities, all applicants increasingly enter law schools. However, the visible signs of saturation will, after a certain period of time, rapidly stall the number of entrants needed to maintain standards, so that several domestic law faculties may even face a problem of survival towards the end of the decade (we are informed that the Germans, who face a similar problem, have already experienced a serious decline in the number of applicants to law faculties, as society has begun to notice the radically shrinking absorption capacity of the saturated legal professions). One of the problems this could pose for academic lawyers is that some - if not most - of their work will simply no longer be in demand. This would, of course, be dramatic under two conditions. First, if all national law schools had their own teaching staff, and second, if academics were not active in other professions (as lawyers, prosecutors, judges, etc.) in the legal world. Today, neither is the case, as most domestic lawyers teach at several universities at the same time, which has made the rapid upswing in this field possible in the first place. On the other hand, many of the younger academics who already make up a significant proportion of university lawyers are also engaged in parallel legal practice. This link is important because the new law schools are trying to create their own independent teaching staff rather than the current interlocking joint teaching staff. The end of rapid expansion and the beginning of saturation probably make this aspiration illusory. Another question - besides the fate of the teaching staff - is the future of the law schools themselves. There are three main options (or "fates") regarding the paths to be followed: one is that some law schools might be able to continue basic legal education with fewer staff, but still continue to train new lawyers. Even if it is unlikely that a larger number of graduates will enter the legal profession, the prestige of the title, the fact that one spends a few years as a law student before obtaining another degree, etc., could attract a smaller number of graduates to law schools even if the legal profession is dramatically saturated. Another way out, before an unsustainable law school decides to close, may be to try to find new areas of specialisation in the legal profession in the role of legal trainee. As competition among lawyers increases, becoming a specialist lawyer is one of the ways out, and law schools may find a way to survive in this field through internal restructuring. Finally, the third option, after the market for legal education has finally shrunk, is for the university administration to simply close its law school, which has become permanently unprofitable. We can only hope that few law schools will suffer this fate. Having mentioned this dramatic development, it should be pointed out that, in addition to the problem of over-qualification of lawyers, the increasing competition between law schools may also provide an incentive to solve a serious problem that has existed for a long time. Current legal education, after decades of convenience - when a stifled framework for legal education meant that any law graduate could cope - has developed a curriculum consisting of a relatively large amount of simple exposition of the rapidly changing law of the day. While civil law, criminal law, their procedural law and a whole range of other legal subjects teach law students the standing legal institutions, legal concepts and legal problems - using the applicable law in each case only to illustrate understanding other subjects have dispensed with the difficult academic work of isolating the standing legal 272 structures among the changing legal texts and teach only the legal texts. However, these are largely replaced after three or four years, and by the time a law student graduates, much of the material learned may no longer be valid. (I remember a faculty council recently debating a differential exam for lateral entrants, and the head of department of one of these subjects said, not without pride, that he absolutely needed a differential exam in his subject because in two or three years much of the material taught there would be replaced...) And quite a few law subjects impart the knowledge for a lifetime of law studies on the basis of such a curriculum. The above-mentioned experience of the Faculty Council also shows that the university legal profession has not really been aware that legal education, which is based not least on the teaching of such rapidly decaying knowledge, is built on sand. Already today, the high numbers of graduates in law have triggered healthy competition between faculties and led to unequal evaluation of degrees. In future, this should be based on more objective parameters - perhaps through the establishment of a joint evaluation committee of national bar associations - which could force law schools, under the pressure of survival, to weed out "inferior" subjects based only on legal knowledge. Taking into account comparative data, the course of legal saturation in societies and its possible consequences can be predicted with varying degrees of accuracy. Given the domestic political situation, this can be expected in a decade or more. However, in order to systematically look at society's need for lawyers and jurists from a different angle, the next chapter also analyses the development of litigation frequency in societies, which most directly influences this need. 2. The issues of the sociology of judicial processes The law of every country has a specific structure, not only in terms of the norms and the legal dogmatic conceptual relationships between them, but also in terms of the factual relationships that recur in the everyday application of the law. Anyone who is active in legal practice for a longer period of time spontaneously memorises a plethora of rules without which they cannot find their way in daily legal work. Empirical sociology of law attempts to systematically determine these factual regularities and translate them into general findings of a scientific nature. Process-oriented fact-finding has become one of the most important areas of the sociology of law in recent decades, and in this chapter we highlight some of the contexts that have been studied here. 2.1. General questions on the frequency of litigation Society's need for justice, the application of justice in interpersonal conflicts and the great differences between societies in this respect are well illustrated by the judicial statistics of the various countries. By analysing them and examining the reasons for the differences, we can gain a deeper understanding of why and to what extent a society needs the law and thus lawyers. Comparing countries in terms of the frequency of litigation and ranking them in order of decreasing frequency, it is immediately apparent that the more developed countries tend to have higher rates of litigation and non-litigation per capita, while the least developed countries tend to be at the bottom of the rankings in terms of the frequency of litigation. A first conclusion from this is that as society develops, the need for law and lawyers increases, conflicts occur more frequently and are more often resolved through law, and the role of non-legal forms of conflict resolution decreases. For example, during the period 1987-1996, the United States, Germany, Sweden and Israel had the highest litigation rates for private commercial disputes, while India, Nepal and Ethiopia ranked last (cf. Wollschlager 1998:582). However, this general truth can be further expanded by looking at the internal breakdown of litigation frequency in different areas of civil justice in each country to uncover other important correlations. Even in countries with a higher level of social development, prevalence increases when, due to historical development, ethnic solidarity and cohesion in society are fragmented. An example of this is 273 the United States, whose population has been composed of a wide variety of nationalities over the last two centuries, and despite the success of the "melting pot" principle in the past, ethnic diversity is a cause of conflict in daily interaction. Another example is Israel, which is also a world leader in terms of ethnicity and has built its society over the last half century. Low social cohesion not only increases tensions and the likelihood of conflict in everyday interaction, but also contributes to the recourse to justice by preventing a high level of conflict between social groups, which does not allow for peaceful conflict resolution and trust in the power of community sanctions. This leaves only the law and ultimately the coercive apparatus to resolve conflicts. The first increases the frequency of contact conflicts by opening up the possibility (e.g. through excellent educational qualifications) of moving up to another social class in the life of a generation, with the result that people who have undergone largely different socialisation enter into close family, professional, etc. relationships with each other in large numbers. relationships with each other. As for the second aspect, the frequency of residence changes entails impersonal aspects even within intimate communities, while the prevalence of stable and infrequently changing residence is characterised by more emotional and personal relationships in micro-community contacts. The United States can be considered a world leader in both dimensions, and its ethnic diversity contributes to the high incidence of polygyny observed here. Two important counter-tendencies may reverse the higher litigation frequency at higher levels of social development in different spheres of life, suggesting that higher social development only increases the amount of conflict underlying litigation, but how much of it ends up as genuine litigation depends on further circumstances. One counter-trend is triggered by the replacement of litigation by insurance, the other by the settlement of conflicts through mediation. A good example of how conflicts leading to litigation and lawsuits are resolved by insurance can be found in the area of traffic accidents, but the mass introduction of insurance in a number of areas of life shows that the regularity noted here also works in a broader context. The proliferation of motor vehicle traffic until the early 1960s led to a plethora of litigation over damage caused by traffic accidents, and since such accidents almost always resulted in serious property damage, the resulting conflict became litigation in most cases (Ietswaart 1988:179). Accidents with a certain statistical probability of occurrence quickly spread insurance in this area, and the small amounts of insurance that were regularly paid took the risk of accidents off the shoulders of the individual road user. When all vehicles involved in an accident are insured, a conflict does not become a legal dispute, but the insurance companies settle claims among themselves, within the internal rules of the insurance industry and the framework set by law. And since liability insurance is mandatory for all cars in most countries, conflict resolution between the parties involved in a car accident is usually no longer a matter for the insurance companies, but for litigation. The effect this has on the development of litigation is shown by the fact that in France, for example, until the introduction of compulsory liability insurance in the early 1970s, about one third of all litigation before local courts was in the area of compensation for traffic accidents, whereas by the early 1980s this proportion was only about 3-5% (cf. Ietswaart 1988:178). Although since then lawsuits are only brought if the parties involved in the accident cannot agree on fault, in most cases this is clear and undisputed due to the detailed provisions of the traffic regulations. A considerable amount of litigation has thus simply been taken out of the courts by the insurance sector, and the spread of insurance into ever new areas is becoming a brake on the growth of litigation. Another trend that is counteracting the increase in the number of court cases is the agreement of the conflict parties with the involvement of a mediator. Especially when there is some kind of enduring relationship between the conflicting parties, there is a chance of reaching a settlement with the help of a mediator, because beyond the issue in dispute, there may be a number of interests that connect them within the enduring relationship that could be damaged or even destroy the entire enduring relationship in the event of litigation. And enduring relationships are given a basis by large organisations in a functional area to avoid and settle such conflicts internally by creating internal mediation organisations (cf. Blegvad/Wulff 1988:132). The general statement "higher litigation frequency at higher levels of social development" can therefore be refined to the effect that this can be reversed in a particular area of life by specific conflict resolution mechanisms to avoid litigation, so that the systematisation of insurance in a particular area of activity has such an effect and mediation and arbitration can reduce litigation frequency even 274 further. However, the overall rule is that in more developed regions (i.e. more modern regions with a large industrial service sector as opposed to rural-agricultural areas) the number of cases leading to litigation increases. This is clearly reflected in the national distribution of Hungarian commercial litigation. In 1997 the number of such cases was almost 20,000, and while in Budapest there were 46 such cases per 10,000 inhabitants, in Szabolcs-Szatmár-Bereg County there were 6.6, in BorsodAbaúj-Zemplén County 7.5 and in Békés County 8.5 (see Vavró: Regions 1998, Table 12). Overall, it can be seen that development and increasing complexity increase the frequency of cases, even though the counter-trends shown may reduce them in a given sector. These counter-trends make the explosive increase in frequency bearable, but the increase itself seems by and large inevitable. 2.2 Frequency of judicial processes in the individual countries In a study, Christian Wollschlager compared the litigation rates of a number of countries on the basis of court statistics from 1995-96. Let us see what the main differences are between the countries. In this comparison, it is useful to distinguish between disputes in the narrower areas of private law, labour law and family law. In terms of private litigation in the narrow sense per thousand inhabitants, Israel tops the list with 71 cases, followed by the United Kingdom with 61 and the USA with 56. It should be noted, however, that in these countries no distinction is made between legal proceedings to recover debts that may arise from the purchase of a loan, although these account for a significant proportion of private legal proceedings. In Germany, for example, where the statistics do show this, there are only 23 private lawsuits per thousand inhabitants and an additional 83 out-of-court recovery proceedings per thousand inhabitants. The same is true for Sweden with 26 and 85, for Denmark with 21 and 41, for France with 24 and 11 (cf. Wollschlager 1998:588). Looking at the domestic data, there were 196,000 civil actions in 1997, which, rounded up, corresponds to 20 per thousand inhabitants and is about the same as in the Western European countries mentioned. In addition, 330,000 economic and civil proceedings were initiated in that year, which means that although we are at the level of the most advanced Western European countries, we are the first in Central Europe. According to Wollschlager's data, the ratio of all proceedings - civil and extra-judicial proceedings as well as labour law proceedings - per 1,000 inhabitants was 22 in the Czech Republic, 23 in Poland and 55 in Hungary (Wollschlager 1998:587), i.e. in the Czech Republic and Hungary, each with about 10 million inhabitants, there were 220,000 civil and extra-judicial proceedings, in our country there were 520,000. Hungarian statistics for 1998 also show a similar figure of 560,000 (cf. Solt 1999:55). Despite the approximately equal level of social development, the great difference between the two countries can be explained by other social factors. In any case, Wollschlager explains this difference by saying that Hungary, which introduced market-economy conditions years before the regime change, has a greater need for justice than the Czech Republic, which only started in this area in 1990, and that here the Hungarian process rate will only be reached after the complete changeover to market-economy conditions (Wollschlager 1998:578). There are also major differences between countries in labour disputes and the resulting judicial and extrajudicial procedures. In this context, it must be assumed that in traditional agrarian societies, the permanent employee was basically only dependent on the goodwill of the "boss" in his or her daily work, and the limits of total subordination were only set by social customs outside the law. The involvement of state labour law in the regulation of these relations aims to transform this total subordination into a set of reciprocal rights and obligations. It follows that, to the extent that the mentality of traditional agrarian societies is still alive in a country, despite the established rules and jurisprudence of labour law, these only come into play in a small proportion of the conflicts that arise. Within the workers' and labour communities, a worker who settles disputes through the formal channels of labour law, even if his colleagues agree with him, can easily acquire a reputation as a fidgety, conflict-shy person, and socialised in such an atmosphere, people are less inclined to resort to labour law dispute resolution. Thus it is understandable that in the European Union in Portugal, which not so long ago was an agricultural country, there were only two labour law cases per 10,000 inhabitants in 1994, while in Germany there were 77 (Wollschlager 1998:588). The average in 275 developed European countries is 20. In addition, mention should be made of Israel's outstanding figures in this area, where the incidence of labour cases per 10,000 inhabitants in 1995 was 106, five times higher than the Western European average, but 50 times higher than Portugal, which has the lowest number of labour cases. And here, too, it is important to remember the internal colouring of the population of Israeli society, which is barely half a century old, and the problems of cohesion that this entails. In this area, Hungary - although moving up from the Central European average in terms of private litigation in the broader sense - has surprisingly low figures. As far as labour disputes are concerned, in 1997 there were 10,600 first instance labour disputes and an additional 2,250 non-contentious labour disputes (see Solt 1999:55). This means that there were 13 conflicts per 10,000 inhabitants, which is almost half the Western European average. It is worth breaking down the category of 196,000 civil cases, because Hungarian judicial statistics also include family law cases, similar to the Czechs, but unlike the Poles, for example. And family law disputes make up a very high proportion of this category. For example, in 1997 there were 37,000 divorce cases and 20,000 maintenance cases, but also several thousand paternity and parentage cases, matrimonial property cases and other cases between divorced parents involving children. In total, there were 75,000 such family law disputes out of 196,000 civil disputes, a share of almost 40% (see Vavró: Civil litigation 1993-1998, Table 2). Few countries in the world have such a high proportion of family law litigation. According to US statistics, the highest rate per 1,000 people in the world is 18.4 family lawsuits, Israel is second with 15.4, the Poles have 6.9, Germany 5.6, France 2.1 and Hungary 7.5. In other words: We are in third place after the USA and Israel in the number of family law cases. That this high proportion of family law disputes is not due to a poorly chosen sample year is shown by Miklós Kengyel's statistics from 1984, when the proportion of family law disputes was 62% of 144,000 civil cases, of which 47,000 were divorce cases and 29,000 were child maintenance cases (see Kengyel 1990:15). However, we can also cite Kálmán Kulcsár's data from 1976, according to which 93,000 of the 174,000 first instance civil cases at that time were family law cases (55%), of which 44,000 were divorce cases and 32,000 were child maintenance cases (see Kulcsár 1982:20). Thus, at that time, civil litigation was mainly family law litigation and the typical lawyer was the "divorce lawyer", whereas after the fall of communism the expansion of market conditions led to a surge in the number of property law disputes, which brought incomparably higher incomes to the lawyers who turned to this area. Overall, then, there is a high demand for legal conflict resolution in Hungary, measured by the frequency of litigation, which is higher than the country's level of development, which to some extent justifies the increase in the number of lawyers that began in the mid-1990s. In this way, it becomes clear that the Czech expansion of legal education, which is on par with the Hungarian level, is no longer justified so much by the lower demand for law, as it is less than half of the Hungarian litigation rate. But it is precisely the unprecedented expansion of Polish legal education that is not covered by a high density of lawyers, so that the burdens of overqualification may occur earlier there for this reason as well. 2.3. Duration of the litigation Another dimension of legal reality is revealed when looking at the duration of litigation and the factual regularities that determine it. It should be noted at the outset that there are major differences between countries in this respect and that the short duration of litigation, which can last a few months or years, has a fundamental impact on the way members of society seek justice and on the work of lawyers. There are structural, socio-economic reasons for the longer or shorter duration of legal proceedings. If one looks at the duration of legal disputes in different countries and the causal relationships there, the following four reasons can be identified: 1. The basis for the duration of legal disputes is the passivity of the judge in the conduct of the case, which is essentially determined by the lawyers of the opposing parties. Another reason for the prolongation of litigation is that lawyers are paid on an hourly basis because they can then increase their income by immersing themselves endlessly in a case. If, on the other hand, litigation is linked to a fixed fee, the lawyer's maximisation of income is only rational 276 if he tries to spend as little time as possible on a case and settle more and more cases in a short time (cf. Dannemann 1996:281). The latter thus shortens the average duration of a trial, whereas in the hourly fee system trials tend to drag on. (3) A third reason for the prolongation of the duration of proceedings is the insufficient size of the judiciary in a given country, since the increase in the frequency of proceedings limits the number of cases that can be brought to court. In contrast, an oversupply of judges means that cases can be completed in a shorter time, as adjourning or otherwise repeating a trial date does not mean queuing for months between many cases to set the next trial date. A fourth reason for the long duration of court cases is that while there are enough judges to run a country's judicial system, there are not enough support staff due to inadequate organisation, so judges have to perform a number of administrative and other non-judicial tasks during the course of the trial. Conversely, the duration of trials - even with a smaller number of judges - is shortened when judges have sufficient support staff at their disposal. Against this background, the reasons for the difference in the length of trials can be understood by comparing the UK, the USA, Germany, France and Hungary in this respect. The UK and the US are countries with long trial durations, and the first three of the above reasons play a role. Germany and France, on the other hand, are countries with short trials (Hungary will be discussed after comparing these two groups). In the UK, in the lower courts, the County Courts, it takes an average of one and a half years before the first day of trial is scheduled, and since lawyers paid by the hour have an interest in "preserving" the case, a judgement can only be expected after a long, long time (Dannemann 1996:186). However, in the busier courts, such as those in London, the first day of trial may not take place for three years. In the United States, this period is even longer and can be twice as long in some courts. Both countries, like common law countries in general, are characterised by a passive role of the judiciary in the conduct of the trial, with the opposing parties' lawyers determining the course of the trial. Hourly-based lawyers' fees are also an incentive to procrastinate, and finally the chronically small judiciary in both countries. With one million lawyers in the US, the number of judges is only a few thousand, while in the UK there are only a few hundred judges for every 72,000 lawyers (60,000 solicitors and 12,000 barristers) (Miers 1999). And the problem of small numbers of judges would be dangerous because of common law precedents. Uniformity of jurisprudence can only be maintained with a small number of judges, and if there were more than one forum, the many different forums could lead to internal contradictions that would strain the system. However, the increase in the number of trials means that the trials become unbearably long. Compared to the years of litigation in the UK and the US, French and German plaintiffs can usually settle their cases quickly. In the French lower courts, the vast majority of private lawsuits (73 %) are concluded within four months, with only 3 to 4 % taking longer than a year (cf. Ietswaart 1988:210). The German system is broadly similar in terms of the brevity of proceedings: most private law proceedings (including family and labour law cases) are concluded within six months, and only 5% of proceedings last longer than one year (cf. Dannemann 1996:279). The first two reasons for the speed and brevity of proceedings are common to both countries: the active judicial perversion as opposed to the passive judges in England and the USA, and the system of fixed hourly rates for lawyers in these countries as opposed to the hourly rates in England and the USA. On the third reason, however, there is a difference between the two countries. While Germany has the most populous judiciary in the world (27,000 judges in 1998), the French have a much smaller judiciary. However, in France, due to the large number of staff assisting individual judges, judges are relieved of non-legal, administrative and minor procedural decisions (e.g. by greffiers) and only have to deal with substantive judicial work (cf. Ietswaart 1988:209-212). If we want to classify Hungary in general between the countries with long trials and the countries with short trials, we can say that it is closer to the countries with short trials, but on average our trials are slightly longer than those of the Germans or the French in all categories. In the second half of the 1990s, the average length of trials in civil cases in local courts was seven months, while in the busier courts, where most trials in the country take place, it is nine months. However, since the proportion of cases that go to appeal is much higher than in most Western countries, the time taken for appeal must be added to the time taken for civil cases, which is an additional five months (see Vavró: Civil Cases 1993-1998, Tables 11 and 36). In the second half of the 1990s, the average duration of proceedings in commercial cases was nine months in the district courts, but more than a year in the busier courts. In 277 the capital, for example, where half of all commercial disputes take place, a third of these cases lasted longer than a year in 1998 (see Vavró: Duration of Commercial Disputes 1990-1995, Table 25). The average duration of labour court cases is somewhat shorter, and at the end of the 1990s the average duration of first-instance cases before the labour courts was six months, but since there is also a high rate of appeals here, the time of the second instance must often be added, which is on average four months in the district courts (see Vavró: Duration of Labour Court Cases 1990-1999, Table 62). The average duration of first instance administrative proceedings is six months, but in most metropolitan courts it exceeds one year, and because of the high rate of appeals, the same amount of time must often be added to obtain the time to final judgement (see Vavró: Administrative Litigation 1993-1998, Table 28). Compared to the average six-month duration of proceedings in the "short-trial" countries, firstinstance proceedings in our country are somewhat longer, and due to the high rate of appeals, litigation is only concluded in the second instance, so that the combined duration of the two stages of proceedings can mean an average of one year of litigation, and in the busier courts it can even be two years. This makes domestic litigation a far cry from "short litigation duration countries". If we want to look at the dynamics of the duration of domestic litigation in the mid-1980s, Miklós Kengyel's data show that it has doubled in the last decade and a half. At that time, the average duration of a two-stage case was less than seven and a half months, with an average duration of 3-5 months in the first instance and 1-2 months in the second instance (see Kengyel 1990:17). What were the reasons for the dragging out of court cases? The fact that we are not one of the countries with long legal disputes can be explained by the active judicial system and the system of lawyers who work for a fee that is largely fixed in advance. However, it is also worth mentioning that Hungary has the second largest judiciary in the world after Germany, with 2 300 judges. However, in addition to the large number of judges and prosecutors, the small number of judicial staff is also an important factor in the inefficiency of the judiciary. In addition, the lenient attitude of Hungarian civil procedure towards litigation tactics may also contribute to the otherwise unmanageable length of litigation. A third reason for protracted litigation is the "cheap" nature of litigation. In most Western countries, the cost of litigation is high relative to the amount in dispute, and in comparison, domestic litigation is very cheap. Thus, the plaintiff does not significantly increase his litigation costs by filibustering and thus does not have to pay at least until the end of the litigation. In contrast, in a costly litigation system, any litigation with serious financial implications further worsens the plaintiff's position and makes it unreasonable to drag out the litigation in vain. 2.4. The issues of fact in litigation In recent decades, the prevailing legal theories have naively assumed that facts of life exist independently of legal norms and that judges simply find the legal norms that fit the facts of life in the individual case and draw the consequences for their judgements from them. In this view, judges are seen as mere "subsumption automata" who merely conclude from general legal norms to pure facts of life (cf. Ogorek 1986). In the actual judicial decision-making process, there is - contrary to this assertion - no separation between the ascertainment of facts and the subsequent search for legal norms, as Karl Engisch already stated in the 1940s, but rather judges search for various legal norms as a basis for decision-making by way of a "wandering gaze" from one set of facts to another, then begin to search for further facts in the light of the selected legal norm, and then subject the legal norms to renewed analysis in the light of the facts thus found (Engisch 1951). In other words, the facts can be used as a starting point for another set of legal clues, and one of the selected legal decision directions makes the further facts relevant and leaves other facts that are also present in the dark, and so the judge constructs a decision version from several possible ones by looking here and there. From another direction, the independence of life facts and legal norms is denied by a school of thought emanating from Kelsen: "Facts enter the realm of law only by means of prior determinations through the legal process", writes Kelsen, "for, as we would say, through this they exist in law. Paradoxically, one could say that in law the competent body that establishes the presuppositional facts "constitutes" the facts (quoted in Varga 1989:515). The same idea emerges later in the 1980s: "The 278 organisation of the facts that make the application of the rule possible is based on a prior interpretation, without which these facts have absolutely no meaning. This prior interpretation is supplied to us by the law itself and can in no way be conceived as an objectively given fact reflecting pure reality... the law has nothing to do with a "materiality" of the various facts, acts or events it takes into account, but with the meaning these facts, acts or events have within the framework of the legal system (Patrick Nerh - quoted in Varga 1992:133). The same from Lagneau-Deville: "... the factual situation grasped by the judge is already a 'legally directed' situation from which, in its contours, the applicable rules can be derived" (quoted in Varga 1992:133). These theoretical insights bring us closer to understanding the relationship between the factual and the normative side of law. However, if one does not speak of "the" law in general, but looks more closely at the individual legal systems, one finds that there are great differences in the extent of the legally relevant factual side in the various legal systems, in the degree to which the facts of the case are legally "prepared". The above-mentioned insights of legal theory thus apply to different degrees in the various legal systems. We highlight two aspects of the context that are evident here. The first relates to the different degree of incorporation of the facts in the various legal systems, the second to the role of the professional judge and the lay judge in deciding the facts. 2.4.1. Scope of the facts in the judicial process. The more previous judicial decisions, made on a case-by-case basis for real situations, form the norms of law in a legal system, the less the internal constructions of law can be separated from the facts "externally" confronting them. On the other hand, the more abstract the norms of a legal system are and the more it creates the institutions through which the actions of the members of society affect each other, the more the role of facts in law that are independent of law is devalued and the more the theoretical statements of Kelsen's train of thought about the facts of law are confirmed. The truth of this thesis is illustrated by the fact that in Anglo-American common law, which is based on judicial precedents, the factual side of law is very broad, whereas in continental European code law the facts of the case and the judicial disputes about them are much narrower, and the narrower factual side is also formed by many more legally "prepared" facts. Among the continental legal systems, the French legal system in particular forms the antithesis to the common law in the "avoidance of facts", while in the legal systems shaped by the German legal culture an intermediate position can be found in this respect. Let us first look at the "fact-avoiding" features of the French court procedure and then at the more moderate German and similar Hungarian solutions. The comparison highlights the differences between the various legal systems in the area of private law proceedings, which will be the focus of the analysis below. The American James Beardsley, in the absence of empirical descriptions, has attempted to explore the regularities of French private litigation through direct observation and has come to the following main conclusions (cf. Bearsdley 1986:459-486): French private litigation is dominated by documentary evidence, and there is also a tendency of French judges to largely dispense with findings of fact, as they would then have to undertake the heavy work of evaluating evidence for this purpose. This bias can be enforced by judges in court, as lawyers have limited powers in litigation to allow them to prove new facts, but it is at the discretion of judges to allow this. However, in the established French legal culture, lawyers do not excel in factual and evidentiary work beyond the judges. Since lawyers are not only unwilling but also unqualified to examine the facts, and judges are reluctant to exercise this power, the court's assessment of the facts consists of examining the documents submitted by the parties' (Beardsley 1986:467). Although the new French Code of Civil Procedure, created in 1972, was intended to replace written procedure with oral procedure, it did little to change the procedural nature of the process, which was limited to the discussion of written documents and the fact that the activity of judges, prosecutors and lawyers consisted largely in the interpretation of documents. The use of witnesses as witnesses is an exception in French private law disputes and is more specific to family law disputes. However, this is done by a judge of the bench alone conducting the examination of the witnesses and summarising them himself and the court only receiving the document of this summary. However, the extent to 279 which French litigation relies on writings and legal documents is shown by the provision of the French Civil Code which requires contracts with a value of more than 150 francs to be in writing and prohibits the possibility of witnesses contradicting the obligation contained therein (Beardsley 1986:473). The requirement that contacts be in writing and the restriction of jurisdiction to written documents in the case of disputes strengthens the role of institutions that guarantee the authenticity of documents, including the notary. This explains the large number of notaries in France compared to the small number of notaries in other European countries (in Hungary, for example, there are barely 280 notaries compared to a corps of lawyers of about 9 000). However, not only in contractual disputes before the courts, but also in tort cases, the role of direct evidence by witnesses and the court in addition to written documents is becoming less and less important. Again, the courts rely primarily on documents issued, for example, by the police officer at the scene of the accident or written by the expert witness who was present at the scene. It is unlikely and foreign to French practice in damages litigation that witnesses to an accident are heard. If absolutely necessary, at most an expert witness will be sent to investigate the circumstances of the accident and even to question witnesses, but the court will only deal with the expert's written documents (Beardsley 1986:477). The "fact-avoidance" attitude of French judges is furthered by the numerous statutory presumptions built into the private law rules here, which reinforce the "preliminary evidence" of the facts. For example, Article 1282 of the Civil Code states that "a bond voluntarily issued by the creditor to the debtor for a debt proves that the debt has been extinguished for the creditor". No counter-evidence can be adduced to disprove this". This character of French private law and the Code of Civil Procedure fully corresponds to the picture drawn by the legal theorists cited of the facts and circumstances "prepared" by the law. However, the role of facts beyond the law and the effort to prove them in private actions is somewhat more pronounced in the German legal system and in other legal systems developing under its influence. Thus, the greater role of witnesses in Hungarian civil proceedings, but also the role of more direct factual evidence and the role of hearsay in court proceedings can be mentioned here, but also, as far as the compelling content of reasons for court decisions is concerned, the broader scope of the factual side of the law is outlined in Hungarian legislation, as we have seen in the French case. "The court's statement of reasons must reflect the facts found by the court, stating the evidence on which they are based (...) It must briefly mention the circumstances on which the court based its assessment of the evidence and, finally, state the reasons why the court did not consider a fact to be proven or decided not to prove it (p. 221§ (1); cf. Novák 1997)". The really broad factual side, however, is found in the litigation of the Anglo-American jurisdiction, where the lawyers of the opposing parties determine the facts to be presented and proved. Here, all fact-finding and evidence in the broadest sense takes place directly in the courtroom, and in great detail. In the trials, the statements and written preparations of the witnesses, which were previously recorded by examining magistrates and other persons of public authority, do not appear, but the witnesses are directly examined two or even three times during the trial (cf. Reitz 1991:386). Instead of the Anglo-American judge, who is limited in his trial powers, it is the lawyers who shape the facts of the case, who, although acting like judges by profession, are more able to open the law to the "raw facts" of the outside world from the life situation of their clients than would be possible from the position of a judge looking from within the law. 2.4.2. The role of the jury in the determination of facts Another component of the judicial decision-making process is the participation of lay persons, who are not professional judges, in the decision, which is particularly important for establishing the facts of the case and determining the individual facts. This participation takes two different forms: firstly, under the jury system, where lay judges are separated from the professional judge in a separate body (the jury) and decide on factual issues independently of him, and secondly, under the session system, where lay judges sit in a joint body with the professional judge or judges and decide in principle on all issues raised. In the latter case, however, they are subordinate to the professional judges, who are 280 grouped together with them because of their expertise and participate in the proceedings more as figureheads than as judges (or justices) who actually decide on their behalf. This is usually the case on the continent, as it is here, and even this lay participation in a subordinate role has declined everywhere on the European continent in recent decades, even in criminal cases where it is limited to the most serious cases. In this respect, even the English legal system is closer to continental law, where the use of juries in trials has been largely curtailed since the first decades of the 20th century (cf. Dannemann 1996:285, Bunge 1995:98). In contrast, the role of juries has only increased in the United States, not only in criminal cases but also in private lawsuits. Here, jury courts are used in the main in all areas of law, usually consisting of 12 jurors in criminal cases and six in civil cases (Greenaway 1998). The jury decides on the truth, accuracy or otherwise of the facts presented by the parties, and the lawyers present evidence to convince them. If, on the other hand, the professional judge also decides on these factual issues, the lawyers' fact-finding and presentation of evidence by the professional judge becomes part of the proceedings. This distinction is important - pro and con - with regard to the "brute factuality" of the factual side of the law or, conversely, its "legal preparation". The presentation of the facts to a lay jury differs in many ways from the presentation of the facts to a professional judge. When this is considered in the context of the differences in the factual side of the law between continental legal systems and Anglo-American legal systems, as indicated in the previous aspect of procedure, one finds that the broad factual area in American law, which is "aggravated" by the jury, contrasts with continental law, which deals with narrow and legally prepared facts decided by professional lawyers - judges - on the basis of legal constructions rooted in their legal training and practice. In summary, it can thus be stated that general statements on the factual side, like all assertions in legal theory, can only be meaningfully questioned and accepted or - even partially - rejected in the light of a concrete comparative analysis. 3. Ways to avoid court proceedings There are disputes and tensions between people and between communities of people that often lead to conflict, and some of these conflicts become legal disputes. One area of research in the sociology of law is the analysis of what types of conflicts are likely to become legal disputes and what other ways of resolving conflicts, other than the law and the courts, can be considered to avoid the need to resort to the courts. Another area of this research is the analysis of how to avoid, if not transforming conflicts into litigation, at least abandoning litigation in court and reaching a settlement. The latter includes an examination of the percentage of cases in which a settlement is reached, thereby avoiding the "harsh application of the law" of ending the dispute with a court judgment. Or what is the percentage of cases that are appealed or even contested against first instance judgements in order to push even harder for a legal end to the conflict? There are major differences between countries on these questions, so in the following we will try to examine the correlations using a comparative method. 3.1. From conflict to litigation Not all conflicts are settled in court, and this can be determined without a specific study, but if we want to find more precise data in this area, only a systematic empirical survey can give us an accurate picture. At the end of the 1970s, a German legal sociological study wanted to shed light on this and conducted a survey in the areas of consumer protection, labour and tenancy law (cf. Falke/Gessner 1982:290-297). For five years, using a representative sample, they examined the way in which conflicts that arose and could be brought to court were resolved, and the following picture emerged. About one third of those involved in the conflict did nothing, tolerated the conflict and left it open; about half contacted the other side and tried to resolve the conflict through talks; of these, about 1525% even turned to legal counsel (consumer protection, occupational health and safety, etc.).Of the 281 latter group, about 5-12% also turned to a legal advice centre with their complaint, and finally 3-7% of all aggrieved parties went to court (Falke/Gessner 1982:291). The different types of conflicts and complaints can of course lead to different proportions of the total number of conflicts and the number of cases going to court, but the 3-7% given here shows that only a small proportion of cases leading from conflict to litigation are represented. If we want to look more closely at the types of conflicts that are more likely to become disputes and end up in court, it is worth developing a conflict typology along three dimensions. The first dimension is based on whether the parties to the conflict are in a one-off relationship or a long-term relationship; the second dimension, already within the long-term relationship, relates to whether the relationship between the parties is based more on juxtaposition or superimposition; and finally, the third dimension separates conflicts within a long-term relationship according to whether the whole personality is involved in the relationship (e.g. between family members or between people in a neighbourhood relationship) or only in one role, e.g. between colleagues within a large office organisation. Based on this three-dimensional typology, the following picture of conflict resolution associated with each conflict type can be drawn. Conflicts arising from a one-off relationship are more likely to be settled in court and are limited to basic legal violations. In a conflict between persons in a longterm relationship, there are violations of other group norms in addition to the underlying legal norms and a balancing of the interests of the persons in the long-term relationship, so that a "hardening" of the conflict into a legal dispute up to and including a court judgement can destroy the entire relationship in addition to a legal dispute won and a legal dispute lost, with losses for both parties regardless of the outcome of the legal dispute. So here it is more likely that litigation will be avoided. In the second dimension, the presence of a power hierarchy within the enduring relationship between the conflicting parties is more likely to avoid conversion to litigation, while those in a secondary relationship are more likely to pursue litigation. Finally, in the third dimension, conflicts between persons who are in a whole-person relationship are less likely to go to court than conflicts between persons who are in a purely one-role relationship. The first arises in a comprehensive and diffuse life situation (e.g. between two relatives) that encompasses a range of legal and non-legal norms, customs, emotional underpinnings, etc. that can only be dealt with in a narrow and therefore distorted way when brought to court. In contrast, norms between parties in a particular role (e.g. between a doctor and his patient) are more precisely defined and need only be reviewed in the event of a dispute. Thus, in the case of legalisation, this conflict is easier to manage and a judgement acceptable to both parties and rationally predictable can be reached to settle the dispute (Rottleuthner 1982:146-148). For different types of conflicts, four main ways of conflict resolution are usually distinguished in the sociology of law: 1. direct negotiation between the parties to the conflict; 2. involvement of a third party as a mediator; 3. The third variant, in which an external neutral involved in the dispute not only mediates the agreement of the parties, but also authorises the parties to make a binding decision on the dispute and submit to it (arbitrator or, in English, arbitrator); 4. The four main paths are therefore negotiation, conciliation, arbitration and, finally, decision by the ordinary courts. As we have seen, the nature of conflicts in different types of relationships makes one or another conflict resolution path more likely, but it is also worth looking systematically at the features that describe each resolution path. 1) If we proceed along the lines of negotiation, mediation, arbitration, adjudication in characterising the conflict resolution paths, the first feature is that the formalisation of the resolution path increases as we proceed along this line. Compared to completely informal negotiation, mediation is already somewhat more formalised, since a third party is already involved in the dispute, but arbitration is even more formalised, since the arbitral tribunal decides according to an already established set of procedural rules, and finally, adjudication is the most formalised. For example, when it comes to a kinship or neighbourhood dispute involving an entire personality and where the dispute is mostly based on a misunderstanding of the other party's motives, accompanied by pent-up emotional hostility, formalised arbitration is not the appropriate way to truly resolve the conflict. In contrast, a less formalised mediation process can better reveal the motives of the other party when the conflict arises - in communication with both parties present - and thus make the whole situation more understandable for both parties and thus automatically achieve a defusing of the conflict (whereas legal proceedings and a court judgement, for example, often lead to a complete alienation of the long- 282 standing relationship). 2) On the other hand, as the negotiation, mediation, arbitration and adjudication process progresses, dispute resolution is increasingly placed out of the hands of the parties and into the hands of an external third party. Conversely, parties tend to keep the dispute within their own sphere when they withdraw. This is particularly important because in long-term relationships it seems sensible to first try to find a solution within one's own sphere and only if this is not successful to leave the resolution of the dispute to an external arbitrator. 3) Another feature of negotiation, mediation, arbitration and adjudication is that the resolution of the dispute is more norm-oriented in the forward movement, whereas in the backward movement the multiplicity of the parties' immediate interests becomes more important and can influence the resolution of the dispute. That is, while the forward movement leads to a decision that is more in line with abstract norms, the backward movement leads to a decision that is more in line with concrete interests. 4) Another parameter is that the role of deliberation in the bargaining position is reduced when moving forward along the first line, whereas when moving backwards a number of issues can be included in deliberation, which increases the range of bargaining positions (Falke/Gessner 1982: 292). 3.2. Avoiding court proceedings: Mediation and arbitration We have already discussed the disadvantages of litigation in long-standing relationships, even in the event of a victory. This realisation has led to attempts, first in business since the beginning of the 20th century, to bypass the normal route and settle disputes through arbitration, and this route is increasingly being used outside business, both in Europe and in the United States (Kotzorek 1987; Böckstiegel 1992; Wolfgang 1997). In addition, since the 1920s, the institution of mediation has developed as a form of dispute resolution that places the resolution of disputes even more in the hands of the parties. The main difference with mediation is that the mediator decides the dispute between the parties himself, while the mediator only assists the parties in negotiation and settlement, but leaves the decision and resolution to the parties and their lawyers. The neutral mediator's negotiation routine, his professional breaking down of psychological resistance between the parties, his ability to ask questions to uncover hidden sides in the positions of both parties can often turn even the most impatient adversaries into negotiating partners, which would not be possible without an external mediator (for an analysis of this see Marsch 1999). Once these two methods of out-of-court dispute resolution had been tried in a few circles and their advantages were known, they were also used in other areas. While arbitration was retained in the area of disputes between companies and organisations, mediation was used in the entire area of private law and in some countries even in criminal law for minor offences. The institution of mediation was known only in the United States until the 1970s, but has spread to a number of European countries in recent decades. In addition to the benefits mentioned above, the radical increase in litigation has led to an increase in the workload of the courts, which have promoted mediation as a means of reducing the burden. It is no coincidence that the mediation process was developed in the United States. Here, the two-stage procedural structure institutionally separates the pre-trial meeting of the parties from the first stage ("pre-trial"). Formally, only the presentation of evidence and proof by both parties and thus the clarification of the opposing parties' legal positions takes place in this stage, but it also allows for informal discussions "between the parties" and their lawyers in a spontaneous manner (Wagner 1998:836-846). This structure has not only increased the frequency of settlements and the possibility of ending court proceedings without a judgement, but has also created the possibility of not initiating court proceedings in the first place, but avoiding the court proceedings themselves by trying to reach a settlement through a mediator. This new form of conflict resolution has been further encouraged by the increase in court proceedings and the considerable lengthening of the duration of proceedings. The institution of mediation has spread in two main ways in recent decades. One example is the Community Board in San Francisco in 1977, which grew out of criticism of the length of court proceedings and the alienating nature of litigation (Nacsády 1998:298-304). Family, neighbourhood and labour disputes can be brought to their attention, but criminal cases are indicated by the fact that, 283 for example, in one of their disputes, one of the parties to a long-standing dispute broke the other's hand with a dorong, which would have been a serious criminal offence if it had gone to court, but here it was resolved as a simple neighbourhood dispute. They promoted the institution of mediation as a way to avoid court cases, and by the late 1990s they had 20 offices throughout San Francisco and were mediating 20-22,000 cases a year, which would have increased the number of court cases (Nacsády 1998:303). In addition to a variety of such initiatives, mediation spread through state legislation, and by the 1970s several US states had made mediation mandatory in private lawsuits, and only if it failed would the courts accept a lawsuit (Röhl 1982:16-17). Following the American model, mediation also spread to the European continent and was first introduced in the United Kingdom, the home of chronic litigation, in 1979. Here, mediation became compulsory for disputes below the £100 (approx. 40,000 forints) ceiling before court proceedings were initiated, but in a number of major cities NGOs had already spontaneously set up mediation procedures in the past, which could also be used for disputes with a higher value (Shetreet 1982:115). In Germany, a breakthrough occurred in the late 1990s when a federal law made it possible for the Länder to require parties to attempt settlement through preliminary mediation for disputes under 1,500 marks (about 200,000 forints), as well as for neighbour disputes and defamation claims. Since then, the various state legislatures have passed laws implementing this scheme, which is gradually being introduced throughout Germany (see the solutions for Bavaria and Baden-Württemberg: http://www.bayern.de/SchlichtungsG.html and http://www.troeger-wuest.de/texte/schlichtung.html ), but there has also been criticism of general and compulsory mediation (see Rottleuthner 1996). In Austria, mediation is also on the rise, and due to its widespread use, it became common in some contracts in the 1990s to include a mediation clause in the contract, similar to the arbitration clause, in which the contracting parties undertake not to go to court in the event of a dispute until the preparatory mediation procedure has failed (Dévényi 1999:21-23). Following such precedents, efforts to establish the institution of mediation have been observed in Hungary since the mid-1990s (see Anka/Bóka 2000; Bándi 2000), in two ways: through mediation organisations of NGOs and law firms, and through institutionalisation by the state legislature. However, these two paths have historically emerged one after the other, and the institutionalisation of mediation in Hungary began with a first phase initiated from outside. At the beginning of the process was the European missionary activity of the US Federal Mediation and Conciliation Service in the first years after the regime change in 1989, which spent large sums on advertising mediation both in Hungary and Romania and also provided scholarships and start-up funding for the establishment of the first units of the Hungarian mediation base (cf. Lovász 2001:32-33). This organisation established the first Hungarian mediation organisation, Partners Hungary, and has since provided financial support for its promotion and dissemination. This led to the establishment of the Labour Disputes Conciliation and Arbitration Board, but in the last six years - although 10-12 thousand labour disputes and out-of-court procedures are handled annually - it has only handled 178 cases and thus has not really spread. Despite the initial failure, some law firms have seen a business in mediation, as mediation offers from law firms have appeared on the internet since the turn of the millennium (see, for example, the advertisement of Eörsi & Partners Mediation Ltd. on the internet or the interview with Mátyás Eörsi in Legal Forum: Vikman 2001). After these beginnings, a parliamentary resolution in 1999 called on the Ministry of Justice to draft regulations for the introduction of mediation procedures (see OGY No. 102/1999 (XII. 18)), followed by a more limited regulation of mediation in the health sector to prevent malpractice in the health sector, which was published at the end of 2000, and finally a law was passed in December 2002 containing a comprehensive regulation of mediation procedures. Let us take a closer look at the characteristics of Hungarian mediation procedures, starting first with the procedure regulated in the health sector and then looking at the provisions of the general regulation law published at the end of 2002. The first question concerns the relationship between the mediation process and the court process. There are three different systems for this. The first is the French solution, which has been introduced comprehensively for all private litigation since the early 1990s: The judge suspends the trial for three months and allows the parties to 'outsource' their dispute to a private institution for mediation, with the assistance of a mediator (Wagner 1998:836-846). This is the result of the realisation that although the civil procedure codes of most countries provide for the parties to reach agreement at any time up to the issuance of the judgment, this is futile if the entrenched positions of the parties spontaneously prevent 284 this. The involvement of an external mediator who is specifically specialised in breaking down the psychological barriers of the disputing parties and who can transform the interaction between the parties from a "hard legal debate" to a loose, real-life communication can increase the likelihood of agreement, and a judge who is socialised in legal doctrinal categories and derivations is not suited to this mediating role. The French solution is therefore to integrate mediation into the process. Another system is the aforementioned German solution, adopted from the United States, which introduces mediation before the start of private litigation and makes it compulsory. Finally, the third solution is for the disputing parties to attempt to resolve their conflicts here in advance, completely independently of the legal process. The latter has evolved from mediation services offered by NGOs and law firms and can occur in any legal system, regardless of the choice of the first two paths. In the United States, where the use of mediation is highest, mediation has become a profession in its own right, partly as a new legal profession alongside that of lawyers. Hungarian legislation - limited to the health sector - can be seen as a version of French legislation. On the one hand, it regulates the mediation procedure independently of the initiation of court proceedings, but if court proceedings are already underway in a given case, the parties must jointly request the suspension of the court proceedings, otherwise the mediation procedure is terminated (see Article 7(4) of Act CXVI of 2000). In other words, an external mediation procedure replaces the conciliation procedure, as in France. The same applies to the General Law on Mediation, adopted at the end of 2002, which institutionalises mediation in the broader field of private law disputes by not making it compulsory before resorting to the courts, but leaving it to the discretion of the parties. However, if the dispute is already pending before the courts, the parties are obliged to request a stay of proceedings and to prove this (see the provision of Article 33 of the Act). This new legislation may also put the practice of settlement in civil disputes on a new footing in the future. It is therefore important to see that it is not the German compulsory prior mediation that has prevailed in our country so far, and in the literature it is argued that the French solution that we have adopted is more in line with the autonomy of private law (see Wagner 1998:838). Another question is the group of people who can be considered as mediators. This question is hotly debated in all countries where mediation has been introduced, and the decision to do so will largely determine the extent to which mediation, which is very informal compared to formalised court proceedings, loses its legal character. If the mediator is chosen from among legally trained persons, usually lawyers or notaries, mediation will remain under the influence of legal norms and legal ways of thinking. The only change is that lawyers who act as mediators seek special training in mental and communication practices, but the legal framework remains. However, if the mediator can come from outside the legal profession, for example from sociology or psychology, the process moves further away from the legal framework. In Germany, the restriction of mediators to legal circles has been maintained and it is mainly notaries and lawyers who can register on the list of mediators maintained by the bar associations (see http://www.afs-rechtsanaelte.de/schlichtung1.htm). In the health sector, the Hungarian legislator has broadened the scope of mediation beyond the medical circles understandably involved in health disputes to include not only lawyers but also graduates in sociology and psychology (see 2000. A particular problem with the regulation of mediation in health care is that it has also allowed comprehensive human rights organisations to represent patients, as these tend to fight individual disputes as collective group disputes, thus turning them into political battles, as the American examples have shown (see Scheingold 1998). Originally this was not included in the law, but a human rights organisation, TASZ, successfully lobbied the Ministry of Justice for it (see TASZ's position during the parliamentary debate on the law: Internet: http://www.c3.hu). The Mediation Act, which provides for a general regulation, has further opened up the list of persons eligible for mediation. According to it, anyone with a university degree and five years of professional experience can register on the list of mediators. To do so, they only need to have completed a short training course to become a mediator. The future direction of mediation practice in Hungary based on this law is still open. 3.3. Avoiding litigation: the settlement 285 Putting the conflict on a legal footing and leaving it to the courts to resolve means a high degree of confrontation between the parties and, moreover, in the case of people who are in a long-term relationship, a severe or complete breakdown in communication. However, once legal proceedings have been initiated, further stages can again be distinguished in the "hard" resolution of a conflict that has become a legal dispute, and it is important to distinguish three stages. The first stage is litigation that leads to a settlement, the second stage is litigation that leads to a judgment, and the third stage is litigation that continues with an appeal and leads to a second-instance judgment. This three-stage division allows for a more accurate assessment of the state of the art of dispute resolution in each country, and as we will see, there are also major differences between jurisdictions. There are several reasons that explain these differences. 1) One of these reasons is the different perspective of continental legal systems and AngloAmerican legal systems, already discussed in the previous discussion on mediation. The two-stage nature of Anglo-American litigation and the organisation of the first stage ("pre-trial"), which is based on the agreements of the parties' lawyers, also favours spontaneous pre-trial settlements. This is in contrast to continental European court proceedings, where the judge stands between the parties from the beginning and through him the parties interact. 2) A second difference is the different roles of judges and lawyers in the Anglo-American and continental legal systems. Whereas in the former legal system the judge consistently plays a passive role, merely overseeing the confrontation between the parties and their lawyers in the courtroom, in continental European legal systems he or she is assigned active persuasive and evidentiary tasks, in a manner more controlled by legal doctrine, overruling the irrelevant circumstances of the case. The latter structure is less likely to interrupt a legal dispute and bring about a settlement between the parties, even though this is always possible under formal law in most European countries, as it is in ours, in private litigation. 3) Another reason for the differences between countries in the frequency of settlements is the different willingness to settle within the legal profession. For example, while empirical surveys show that only slightly more than half of lawyers in Germany and three quarters of lawyers in the Netherlands prefer settlement to litigation, the proportion in the United States is between 96 % and 98 %. This clearly reflects the socialisation effect of different legal cultures in different groups of lawyers in different countries, but surveys also suggest that age differences play a role, and while younger German lawyers prefer to litigate and hold out until judgment, older lawyers have a much greater preference for settlement (see Rogowski 1982:174-175). 4) Another reason for preferring settlement to judgment is the shortening of trial time. This is due to the small number of judges in Anglo-American legal systems, while the frequency of trials has radically increased in recent decades, as well as the mandatory use of juries in most private lawsuits in the United States, which is enshrined in the Constitution, but which is also reinforced by a number of legal policy groups that have sought to increase the role of juries in trials in recent decades. (In contrast, the role of juries in English law has declined since the 1920s and has become the exception in private litigation.) Thus, in the United States, it can take up to five years from the filing of the lawsuit to the first day of trial, whereas in England, for example in London, it usually takes three years from the first day of trial (Shetreet 1982:113). In comparison, 75% of private lawsuits in Germany are concluded within six months, a fraction of the time it takes to go to trial in England and especially in the USA. These reasons explain the large differences in the frequency of settlement. In the United States, the number of cases that end in judgment at first instance is barely two to three per cent, and the vast majority of them, 97-98 %, settle. In Germany, by contrast, the frequency of settlements is orders of magnitude lower, and judgments are the rule in private law cases, although the number of cases ending in settlement in labour law disputes is also higher, even though it is lower than in the US. A series of German court statistics for the period 1970-1980 show that at the Amtsgericht, which decides cases involving lower amounts in dispute, 2/3 of cases end in judgment and 1/3 in settlement, while at the Landsgericht, which decides cases involving higher amounts in dispute, the proportion of settlements is about 40% and the proportion of judgments is about 60% (Rogowski 1982:174). In labour disputes, the settlement rate is higher (75%) than for judgements (25%), reflecting the fact that these are longterm relationships where a "hard" judicial conclusion to the dispute could completely destroy the 286 relationship and its future maintenance. Unfortunately, Hungarian judicial statistics do not separate private lawsuits that end in settlement from those that end in judgment. A point of reference for this estimate could be the data on the discontinuation of litigation, as the main motive for this could be the attempt to reach a settlement. The discontinuation rate in civil cases was 12-13% in the district courts in the period 1990-98, with a small increase, and in the regional courts it was between 6-8%, with a slight decrease in this period. In commercial litigation, the rate of discontinuance increased from 6% to 17.55% in the district courts between 1990 and 1998, but also from 6% to 15.68% in commercial litigation in the regional courts (cf. Vavró 2000). Thus, if we conclude that proceedings are discontinued, we can assume a very low frequency in the narrower field of civil law, while the figures for economic litigation show a strong upward trend. Of course, this is also very low compared to German rates, not to mention US rates. For example, in Hungary private lawsuits are usually concluded with a judgement and litigation usually ends with the end of the proceedings, which is why the above-mentioned amendment introducing mediation as a general rule from 2003 may be significant. This could increase the number of settlements by orders of magnitude, at the expense of litigation ending in judgments. 3.4. Pursuing litigation in court: the number of appeals The highest degree of "hardening" of conflict resolution to litigation is when legal recourse continues to be exhausted even after the verdict and attempts are made to change the verdict through an appeal. There is little international comparative data on this stage of dispute resolution, but fortunately Hungarian judicial statistics provide accurate figures. It would be interesting to know the figures for appeals in the USA, where only two to three percent of private lawsuits result in a judgment and the vast majority end in a settlement, but unfortunately we could not find any data on this. In Germany, however, we were able to obtain recent data showing that after a settlement rate of 33-40% and a judgment rate of 60-67%, the appeal rate against judgments in that country is only 6% and 14% respectively. In the district courts, the appeal rate at the end of the 1990s was 6 %, in the regional courts 14 % (cf. Geis 1999 and minutes of the Landtag of SaxonyAnhalt of 13 October 2000). In Norway, the appeal rate in civil cases was also 15 % in 1995 (see Winsvold 1999). Hungarian appeal rates are as follows. For civil cases, data is available for the period 1993-98, which shows that the appeal rate in this area is slightly increasing: in 1993, 23 566 appeals were lodged in 182 703 first instance civil cases (13 %), and this rate increased by one per cent year on year to 17 % in 1998 (see Vavró: Civil Litigation 1993-1998). In commercial cases, the rate of appeals is somewhat higher and was 18-20% per year in the period 1996-1998. For example, in 1998 there were 17,000 first instance commercial cases before the district courts, of which 3,515 were appeals before the regional courts (see Vavró: Commercial Litigation 1993-1998). For administrative appeals, the rate of appeals fluctuated between 13% and 21% between 1993 and 1998, with no sustained trend, as the rate of 18% in 1993 was 21% two years later, before falling to 13% in 1998. As for administrative appeals themselves, although there has been a steady upward trend, and the number of first instance administrative appeals increased from 16 484 in 1993 (with 2 943 appeals) to 40 252 in 1998, with 5 664 appeals, which is only 13% of the total, but still almost double the 2 943 appeals in 1993. The appeal rate in labour law cases is surprisingly high in Hungary. While the labour courts received 10-12 thousand appeals between 1990 and 1998, the number of appeals in the district courts was about 4,000, which corresponds to an appeal rate of about one third (while in civil, economic and administrative cases it was apparently only about one sixth). It should be noted that the appeal rate is also highly dependent on the consistency of the first and second instance judgments. If the second instance is judged quite differently from the first instance - i.e. if the appeal is successful - then the number of appeals will increase rapidly. Conversely, a rare overturning of the first instance judgement in the second instance has the feedback effect of reducing the number of subsequent appeals (cf. Posner 1990). No one wants to get involved in a hopeless case; at best, it is a matter of stalling for time. 287 For criminal cases we only have data on the proportion of appeals in 1997. In that year, 94,818 public criminal proceedings were initiated before the district courts, to which 8,354 private actions were added. In contrast, 17,278 appeals were lodged with the district courts (cf. Solt 1999, Appendix 11 and Appendix 26), which corresponds to an appeal rate of about 18%, broadly in line with the figures for private and administrative court proceedings. In summary, it can be concluded from these data that the appeal rate in Hungary in the area of small civil cases seems to be in line with Western European levels, although the number of cases leading to a judgment is naturally higher in Hungary, so that the same appeal rate in absolute terms means a higher case load. However, the appeal rate in labour law cases is surprisingly high, for which there may be specific reasons. As mentioned above, uniformity of court decisions decreases and fragmentation increases the number of appeals in a given jurisdiction, so one explanation may lie in the possible differences between labour court and district court decisions. The legitimacy of the labour courts and the lower level of confidence in their impartial judgments compared to the district courts could also be a reason for the high rate of appeals. However, these can only be established with certainty after a separate investigation. 4. The chances of access to justice In modern societies, people's confrontation with the law and legal regulations is commonplace. One of the fundamental features of the modernisation of society is the emergence of a social organisation of multifaceted, independent individuals instead of an individual life in hierarchical communities. Instead of a life of permanent and unchanging relationships, it thus becomes a life of highly atomised individuals in constantly changing, unique relationships. In this organisation, the market for goods and services provides to individualised individuals, with the help of money, what was previously provided to each other by community members in hierarchical small communities (multi-generational extended families, neighbourhoods, closed village communities, etc.) governed by custom. In the past, child rearing, care in old age, but also daily work and other activities took place in fixed, unchanging communities, whereas in the current phase of modernisation they are increasingly organised in various service markets and are impersonally mediated to the individual through money. This modernisation development minimises the mechanisms of control and conflict resolution between individuals within the former communities and increasingly makes state jurisdiction their instrument. Law is thus becoming increasingly important for the functioning of modern societies, and legal norms and legal guarantees are becoming more and more important in the lives of individuals. Parallel to this modernising development, the European civilising development process - as early as the Enlightenment - gave rise to the idea of equality before the law, equality under the law, which prescribed equal treatment under the law for all people in place of the unequal legal status of the feudal order. This was a great improvement over the previous state of complete inequality, but in the course of the 19th century it soon became clear that the inequality of wealth, education, etc. between individuals in many ways negated equality before the law in everyday court cases and other legal proceedings. Accordingly, legislators in the more socially sensitive countries took steps in this direction as early as the second half of the 19th century, and the German Code of Civil Procedure, for example, attempted to grant legal aid to the lower classes in 1877 in the form of the so-called "Poor Law" (see Kengyel 2001:179). At that time, however, the vast majority of people still lived in closed communities and it was a rare moment in life to go to court and participate in a trial. Only the accelerating industrialisation and the more comprehensive modernisation around 1900 led, as already indicated, to a far-reaching individualisation and the disappearance of the role of traditional small communities and thus to an increasing importance of legal rules and legal guarantees in everyday life. Accordingly, it was not until the second half of the 20th century that the demand for de facto equality in access to rights became louder in modern societies, alongside formal equality of rights. Analysis of the conditions of access to justice and broader efforts to help the poorer sections of the population in this area began in Britain and the United States in the late 1940s, but these efforts were quickly echoed in continental Western 288 European countries and taken up here from the 1970s and 1980s. The problems were first discussed in small sociological workshops on law, and in response to the criticism voiced in these workshops, legislators stepped in and created forms of public legal aid alongside private charitable organisations. In Central and Eastern Europe, since the fall of the state parties in the early 1990s, society has rapidly changed in a direction where market services and law, rather than comprehensive state control, organise life in a variety of areas. The increasing importance of law therefore makes it urgent to examine the conditions and possible obstacles to access to law in our country as well. In this chapter we address this development. First, we examine how conceptual differences in the law have led to divergences in the construction of access to justice pathways (1), and then we examine the impact of different understandings of the role of the judiciary in securing access to justice in Anglo-American and continental European legal systems (2), Next, we examine the level of legal costs in different jurisdictions and the resulting barriers to access to justice (3), and finally, in the most comprehensive section, we take a systematic look at state and other forms of non-profit legal aid (4). Since there are very few systematic empirical sociological studies of law in Hungary, mainly Western European and US-American solutions are analysed, but where Hungarian data are available at least to an assessable extent - they are also included in the analysis. 4.1. Legal concepts and models of access to justice The different legal concepts focus on different aspects of law and view the entire legal system in this light. Consequently, access to law can be approached from different angles and with different solutions from different legal concepts. Looking at the practical solutions and the rivalries between them that have developed in Western countries in recent decades, three main approaches to access to law can be distinguished. One approach has been developed by the textual positivists and the legal dogmatic positivists, another by the advocates of the fundamental rights approach, who identify law primarily with constitutional fundamental rights and regard the other aspects of law as subsidiary and subordinate, and finally by the advocates of the economic theory of law in the field of access to law. This third, however, plays only a subordinate role in the elaboration of practical solutions and usually has its own ideas only in the context of civil disputes. It is primarily the rivalry between the first two strands that determines the way access to justice is shaped in the individual countries. It is most useful to look at the forms of access to justice support in the United States, where this opposition was most pronounced, while in other countries it was only stimulated here and to a lesser extent. Historically, legal aid was the first legal aid developed to provide free legal advice and representation to the poorer and less well-informed sections of the population. As early as the end of the 19th century, charitable societies in major American cities established a system of "legal aid societies" that employed lawyers to help low-income people solve their legal problems free of charge (see Knoppke-Wetzel 1978: 197). These are still in operation today, and there are Legal Aid Bureaus in all major American cities, but because of the strict vetting of low-income certificates, usually 20% of applicants are turned down because of the difficulty in obtaining a certificate. Similar to this form of legal aid, two forms of legal aid have emerged in the field of criminal law, which also offer traditional advocacy on a pro bono basis. The difference between the two is that the public defender for the suspect is appointed by the authority or the court from a list of law firms that have applied to be public defenders if the suspect cannot find a lawyer, while the public defender works in public defender offices established by municipalities, either as a salaried lawyer or on a permanent basis. This has important implications for the effectiveness of the two different systems. While the list of public defenders is usually composed of younger and less experienced lawyers with few clients, the public defender offices are staffed with lawyers who have a large number of clients, which allows them to select lawyers who have a high level of experience, are well paid and specialise in criminal defence. The latter are therefore usually more effective than public defenders (cf. Knoppke-Wtzel 1978:200). In some American cities, one or the other system is used to varying degrees, but there is one or the other. This traditional area of advocacy also includes legal aid under the 'judicare system', which is provided in private law cases other than criminal cases. Introduced in the late 1960s with federal funding, it 289 consists of a system whereby people on low incomes who need legal representation and advice, outside of criminal cases, can apply to the head of their local social services department for a 'legal aid card' and, if approved by the department, receive a legal aid 'credit card' which they can use to go to any lawyer for representation in court or other legal advice. The lawyer can then deduct his fees and expenses incurred during the proceedings from the credit card, which is covered by federal funds from the Judicare fund, at the lawyer's usual rate. This solution is the most effective means of eliminating inequalities in access to justice between the rich and the poor, as it allows the beneficiaries direct access to the free legal market, while the former only perform a slightly lower level of legal work under the charity system. It is true that this solution requires a threefold expenditure by the state for a single beneficiary due to the higher tariffs in the legal market, which is why it has not been extended to the entire US and only works in a few member states. In addition to the traditional forms of legal aid, new forms of legal aid emerged from the 1960s onwards, when fundamental rights became more central and legal concepts based on them were developed and some old forms were given new content. On the one hand, the orientation of legal aid has shifted from the traditional statutory and precedent-based matter to the legal guarantees for legal aid recipients based on constitutional fundamental rights and the supreme court jurisprudence concretising them. This shift is consistent with the fact that this concept of law identifies law primarily with fundamental constitutional rights and the Supreme Court decisions that give them effect. 2) Another change is the shift of individual legal protection to the problems of a broader group of people. Proponents of this view of rights correctly assume that there is a general social problem behind the individual legal problem, but that they seek to solve it through litigation rather than through political processes. Thus, according to this view, model litigation, mass litigation, etc. are necessary to change the relevant part of the legal system itself so that the individual legal case becomes less important. That is, instead of the traditional work of lawyers, this shift introduces movement lawyers and their political activism into the justice process as legal aid (cf. Epp 1998, Scheingold 1998). 3) A third shift is that here the focus shifts from the needy due to poverty to the otherwise disadvantaged. Here it is rather those who are in the minority because of their skin colour, gender orientation and other reasons who become the focus of group rights assistance. In other words, the original "poverty rights philosophy" of legal aid is developing into a "fundamental rights philosophy" (cf. Knoppke-Wetzel 1978:205). The "fundamental rights revolution" of the 1960s was carried out with the dedicated support of Democratic presidential administrations (Kennedy, Johnson), and the laws and resources created at the federal level largely favoured these non-traditional forms of "movement lawyers". The Equal Opportunity Act of 1964 created a separate legal aid system that provided millions of dollars in grants to the black minority movement lawyer sector, and the techniques developed here were later passed on to the activist lawyers of the feminist and later the gay and lesbian movements. But the free legal advice already provided by a law firm on a charitable basis to members of the poorer sections of society also underwent a shift of emphasis and was organised by the bar associations from the mid1960s onwards. For example, the Lawyers Committee for Civil Rights under Law (LCCRUL) began organising pro bono activities in 1964 and attempted to shift them from traditional advocacy to movement law (see Knoppke-Wetzel 1978:211). This legal conceptual opposition to legal aid forms also emerged to a lesser extent in Western European countries from the mid-1970s onwards, but here movement legalism gained very little prominence - we shall see that the English made an attempt at it at the time - and the incorporation of traditional advocacy into legal aid forms remained dominant throughout. But in the new democracies of Central Europe, including our own, the American impulse has already had a greater impact. In Hungary, it can be clearly observed that in the years after the fall of communism, private legal aid developed alongside state-funded legal aid, inspired by the opposition already shown in the United States. In addition to the involvement of the traditional legal profession in the forms of legal aid, movement-based legal aid organisations began to gain ground rapidly from the mid-1990s. Some national trade union confederations have taken over the organisation of traditional legal aid activities, mainly limited to labour law issues. For example, MSZOSZ, the largest national trade union confederation, organised itself at the county level and set up a nationwide legal aid network, with one or two lawyers per county, in some places for trade union members, in case of labour problems. The names, addresses and office hours of the appointed lawyers are available on the internet for those 290 affected. The Trade Union League has also set up a legal aid lawyer, also for labour problems (unfortunately there is no data on the number of cases and financial support). However, there is a legal advice site on the internet, the "Help Site" website, which gives legal information and advice summarised in a few lines of a factual query and which, after reading a few hundred e-mail exchanges, can be described as professional legal advice (see http://www.segélyhely.hu) In the private sector, the system of mobile legal aid, which goes back to American impulses, seems to be more comprehensive than the first one, and its development can be described as more dynamic. These are mainly Soros Foundation-funded legal aid organisations, most of which organise legal aid for the Roma minority and for gay and lesbian groups, which are minorities because of their gender orientation. In 2001, for example, the Soros Foundation distributed 19 million forints to these types of legal organisations in the area of "decisions on access to justice and equal opportunities". Of course, it should be noted that some of the legal aid organisations supported in this way are based on the traditional "rights of the poor" philosophy of Soros grants, but less is known about their activities, as media coverage of this legal policy grouping focuses primarily on human rights struggles. The Soros Foundation's legal aid system also includes an initiative to set up a "Mobile Legal Aid Service", which would use vans to run "mobile law firms" in different regions of the country. Another eight million forints were spent on this in 2001 and, according to the description available on the internet, it also falls within the scope of human rights and is intended to provide legal protection against discrimination against the Roma. 4.2. The impact of the different roles of judges in different countries The discrepancy between formal equality before the law and de facto equality of opportunity in the day-to-day administration of justice may be more pronounced in legal systems where the judge is forced to rule rather passively, only on the basis of the facts presented by the parties and only on the legal issues that the parties have submitted as a priority for decision. If, on the other hand, the judge is more required to ascertain and clarify the facts and explore the relevant legal issues, this discrepancy is only slight. In the latter case, the judge, who is obliged to determine the objective truth, can partially compensate for the difference in knowledge between the parties and the difference in legal representation. However, if the judge cannot go beyond the facts presented by the parties and the questions of law raised by them, the unequal legal representation of the parties can be fatal for the underrepresented party or the party not represented by a lawyer at all. In modern legal systems, this divergence can be observed between the Anglo-American legal systems and the legal systems of the old English colonies (India, Australia, etc.) on the one hand, and the legal systems of continental European countries on the other. The passive role of the judiciary in Anglo-American law contrasts with the active role of the judiciary in continental European law. It is therefore understandable that the issue of "access to justice" first appeared in the legal literature and legal policy of the English and American legal systems and is even more developed here than in the continental European legal systems (cf. Blankenburg 1979:231-249). In criminal proceedings, for example, in both Great Britain and the United States, a public defender is already provided for a defendant if the offence is punishable by imprisonment, whereas in Germany this is only the case if the statutory minimum for a prison sentence is one year. Only in the case of the most serious offences (murder, rape, armed robbery, etc.) is the accused entitled to a public defender (cf. Dannemann 1996:276). The different degree of judicial activity in the course of litigation thus gives public and private forms of charitable legal aid a different significance, but in more complex legal cases a higher degree of judicial activity cannot compensate for the different backgrounds of the parties in legal representation. In this context, it should be noted that there are moves to change the passive role of the judiciary in English legal life and several law reform committees have already pointed out the disadvantages involved. A comprehensive analysis led by Lord Woolf in 1995 showed that the passive role of the judiciary is the main cause of delay in litigation, as lawyers for the more powerful litigants can achieve this by taking voluminous evidence, often containing details irrelevant to the case, and scrutinise them so that the financially weaker party is financially unable to settle the protracted 291 litigation, and at some point in the protracted litigation may be forced into a settlement that is not to their advantage (see: Woolf Report 1995:25). There is nothing the judge, who is bound to inaction, can do about it. A series of similar disadvantages led the English, in the wake of the Woolf Report, to undertake a far-reaching reform of civil procedure in 1999, bringing the role of the English judge into line with that of the continental European judge. But even today, when looking at the legal system as a whole, the impact of the different role of the judge in the two major legal families cannot be ignored when examining access to justice and solutions to this problem. 4.3. The impact of legal costs on access to justice In private law litigation - business, labour, family - the level of legal costs has a significant impact on plaintiffs' access to their rights and to their legally enforceable claims. Paying lawyers' fees and expenses or the cost of certain evidence and litigation costs during the process can discourage lowincome earners from asserting their rights in court, regardless of their chances of winning. Thus, despite abstract rights and legal guarantees, and equality before the law, certain groups of the population may be disadvantaged in access to justice. When analysing access to justice and ensuring equal opportunities, it is therefore essential to consider the issue of legal costs. To illustrate the problem, it is worth comparing the different cost implications of English, German and Hungarian civil litigation. If an English plaintiff sues for a claim worth about £1,000 per month of his average monthly income, the fees for the solicitor (the lawyer who prepares the case) and the barrister (the lawyer in the courtroom) - which are charged on an hourly rate basis and lawyers are therefore interested in investing as much time as possible in the case - will most likely already be higher than the value of the claim to be tried (see Dannemann 1996:289, Woolf Report 1995). Add to this the legal costs, and it is certainly not worthwhile to litigate a claim for an average British monthly salary. The prevailing party recovers the costs incurred in the course of the litigation, including legal fees. However, protracted litigation and the extensive ability of a financially strong but vulnerable opponent to produce endless evidence to drag out the litigation will almost certainly force the other party to settle before judgment, so that the shared litigation costs will still be more expensive than if they had not litigated at all. This discourages financially weaker parties from engaging in low value litigation (see Dannemann 1996, Woold Report 1995). Gerhard Dannemann describes how in 1993 even an English couple who filed a claim for £100,000 ended up paying more in legal costs than they eventually recovered, even though they ultimately won the case. In Germany, unlike in the UK, there is no freely negotiable hourly rate system, but a system of statutory fees and court costs. This means that a German claimant suing for a claim of about 1,000 euros, which is the average salary in Germany, has to pay about 1,000 euros in legal fees and court costs, which is almost the value of his or her entire claim. In the second half of the 1990s, even for a claim of 50,000 marks (about 25,000 euros today), the court costs were 12,000 marks (6,000 euros) (a quarter of the claim), but for an average claim of 10,000 marks, they were half of that. Even this, however, meant cheaper proceedings compared to English litigation, and mainly because of the shorter duration of proceedings and the predictability of fixed costs, access to justice is more secure in German civil cases than in English civil cases (the average English civil case, when heard in court, lasts more than three years, whereas in the vast majority of German cases a first-instance judgment is handed down within six months). Finally, if one compares the above with the Hungarian situation, it must be said that in Hungary the court fees of six per cent of the amount in dispute on average and the lawyers' fees of one to five per cent, which have existed up to now, make the situation of the domestic litigant much cheaper than even in Germany, not to mention England. In recent months, a decree by the Minister of Justice has lifted the 1 to 5 per cent limit on lawyers' fees and left them to the free agreement between the plaintiff and his lawyer, but it is not yet known in which direction the practice will develop, and the said decree allows the judge to reduce the lawyers' fees when determining the legal costs to be paid to the plaintiff if he considers them excessive (see IM Decree 8/2002 (30.3.2002)). This low litigation fee can only be understood with two additions. The first is that the courts are only marginally covered by the low court fees and that, for example, in the 1998 budget for the court chapter, of the 27 billion court budget, only 292 ten per cent was covered by court fees and 90 per cent by the state grant. The court system is thus entrusted by the state with the administration of justice almost free of charge in the Hungarian organisation, and the costs of this are hardly reflected in the costs of litigation. The second addition is that even with 90% cost sharing, the court sector remains in poor condition in terms of buildings, technical equipment and salaries of judges and employees. Thus, if the cost of litigation is kept low while access to justice is made easier even for the poorest, financial problems arise for the judiciary (see Miklós Kengyel's findings on 'cheap litigation' in the 1980s in state-run Central European systems: Kengyel 1990:121). In relation to legal costs, mention should be made of legal expenses insurance, which, if more widespread, could help to ensure equal access to justice. In a sector where the insurance risk is predictable in terms of the cost consequences of the possible events, insurance can be widespread. Conversely, if there is less predictability, insurers will only take out insurance with high premiums, reducing the number of policyholders. The difference between the fixed fee model for lawyers' fees and the hourly fee model is crucial in this case. In the hourly fee model, the individual lawyer has an inherent interest in protracted litigation, and opposing counsel's inexhaustible evidentiary ideas make the final litigation costs unpredictable at the outset of the case. This unpredictability makes the purchase of legal expenses insurance only possible at high premiums (cf. Partington 1979:150-160, Dannemann 1996:283). In contrast, the system of flat-rate legal costs has led to legal expenses insurance being the most widespread in Germany in recent decades: by the mid-1990s, half of German households had taken out such insurance. And legal expenses insurance, which costs a few marks (today: euros) a month, also makes it easy for poorer people to take legal action, because the insurance covers the lawyer's fees, court costs and other costs, even in the event of a lawsuit. This also explains the high litigation rates of Germans compared to e.g. the British, but in the present case it is an important factor in the context of equal access to justice (see Blankenburg 1996 for a comprehensive analysis of legal protection insurance). In Hungary, the development of legal protection insurance only started in the mid-1990s, but is still very limited today (see Zavodnyik 1996:106). 4.4. Forms of public and charitable legal aid The provision of legal aid can be considered in three areas depending on need: for defendants in criminal proceedings, for indigent persons seeking to assert their rights in civil proceedings, and finally for legal advice outside of court proceedings. This is the order in which the forms of public/charitable legal aid have historically developed, first in criminal proceedings, then in noncriminal proceedings and finally in out-of-court proceedings. The latter has become widespread in several countries in recent decades, especially because it has become clear that out-of-court legal advice can also prevent legal conflicts from turning into litigation in some cases. For a party who decides to litigate without legal advice, it may turn out in the course of legal counselling that their dispute would be futile anyway or that there are other ways to settle their case outside of litigation. 4.4.1. Public defender in criminal proceedings In this context, we can examine the activity of the lawyer defending the defendant (the person suspected or accused of committing a criminal offence) in criminal proceedings involving public funds according to the following main aspects: 1) The scope of the criminal proceedings entitling the defendant to call in a public defender; 2) The moment when the public defender can enter the criminal proceedings. 3) To what extent is the quality of the public defender's work comparable to that of a lawyer selected on the free market? 1) The scope of the right to a public defender varies from country to country, depending on whether it is granted only to alleged perpetrators of the most serious crimes or whether the mere fact that they face imprisonment gives rise to the entitlement. Regardless of the active or passive role the judge plays in the conduct of the criminal proceedings, a broader use of the term is possible in Anglo- 293 Saxon jurisdictions. In both Great Britain and the United States, a public defender is available to an accused if the law provides for a custodial sentence for the offence with which he is charged (cf. Knoppe-Wetzel 1978:198, Dannemann 1996:287). In Germany, on the other hand, a public defender is only available to an accused if the legal minimum for the offence is one year imprisonment. Since the German Criminal Code only provides for a minimum sentence of one year for the most serious offences (intentional homicide, rape, armed robbery, etc.), a public defender cannot act in the vast majority of criminal proceedings in which the statutory minimum sentence is lower. In Hungary, the situation is similar to that in Germany, although here the Code of Criminal Procedure does not tie the right to a public defender to a legal minimum, but to a certain maximum. According to Section 47 of the Code of Criminal Procedure, the participation of a public defender in criminal proceedings is mandatory if the offence is punishable by imprisonment for more than five years. However, it is also important to note that in criminal proceedings against juveniles and in some other cases, the participation of a public defender is mandatory if the accused has not appointed a lawyer himself (see Nagy 2000:7). In practice, this means that there is a public defender in 20% of all cases in which a defendant is involved in criminal proceedings and a proxy in 10% of all cases, i.e. in seven out of ten cases there is no defence lawyer involved in the criminal proceedings (see Fenyvesi 2001:1). The rights of the accused, who is not familiar with the law and has no knowledge of the procedural guarantees and the possibilities of evidence, can therefore only be defended by the judge against the prosecutor. At this point, it is important to point out the changes that may occur from January 2003, when the new Code of Criminal Procedure, which has already been adopted with suspensive effect, comes into force. This code, which in many respects breaks with the European legal tradition, will provide for passive supervision by the criminal judge, with the main burden of proof being shifted to the parties to the proceedings. If this law enters into force several years late, the limited involvement of the public defender will become untenable and it will be necessary to consider instead a broader use of the public defender, as is common in Anglo-Saxon countries. 2) There are also major differences in the question of when the public defender is called in. In the United States, a public defender enters the criminal proceedings at the earliest during the first interrogation, and the suspect must be advised during the first interrogation that he is not obliged to answer without a lawyer and that he can request a public defender if he cannot appoint a lawyer. Failure to do so may result in the suspect's statements during questioning not being taken into account (Fenyvesi 2001:4). In the United Kingdom, it is also possible to appoint a public defender from the beginning of the investigation, although this is not as strictly applied. Here, a public defender was introduced in 1984 to defend suspects throughout the investigation if they are unable to appoint a lawyer. The situation is similar in Hungary, where the public defender is also present during the investigation phase, but only after the first few days of the investigation. Hungarian legislation provides that in the case of a public defender, the suspect must be informed at the time of the interrogation that the authority will appoint a lawyer if he does not have one within three days. However, during the crucial first days, when the outline of the investigation and the underlying facts are established, the suspect does not have a lawyer by his side (Fenyvesi 2001:1). German law does not require the involvement of a public defender until later, and usually only after the public prosecutor has presented the indictment to the court (Dannemann 1996:198). In other words, the public defender is excluded from the entire investigation phase and only plays a role in the judicial phase. However, in order not to draw too many conclusions, the difference between the procedural role of the passive English judge and the German judge, who is obliged to actively participate in the objective determination of the truth, must be pointed out again at this point. 3) Qualitatively, the difference between the work of the public defender and the work of the defender selected on the free market is influenced by a number of circumstances. The first and most important question is to what extent the public appointment will be reserved for newcomers and inexperienced lawyers or weak lawyers who have been forced out of the market or whether, on the contrary, more experienced and active lawyers can be included. This difference will depend primarily on the extent to which the public defender's costs are close to the public defender's income. In the case of the United States, we have already seen that assigned defence lawyers usually receive only a small amount of money and therefore only inexperienced lawyers apply to be included in the public defender list. In contrast, public defenders are more experienced and receive a regular income from their work, 294 so the public defender's office can choose from a pool of excellent lawyers who apply. The real solution in this area would be a kind of US "Judicare system", where the claimant receives a credit card that allows him to choose his lawyer on the open market, but this would cost the state three times as much as the cost of the public defender's office. But even in the United States, this form is only for civil cases outside of criminal cases. In Great Britain, the hourly rates of lawyers on the legal market are also used as a basis for the remuneration of the public defender, and the amount of money the state spends on this is shown by the fact that in 1990 the state spent almost ten pounds per capita on criminal defence costs, while in Germany the same amount, also in pounds sterling, was only a quarter of a pound (Dannemann 1996:184). It is true that this difference in size is also influenced by the fact that the much longer duration of English criminal proceedings demands much more time from the public defender compared to German proceedings. In any case, the fees of public defenders in Germany are below the market level, which leads to a selection among lawyers who take on this task. This is even more the case in Central European countries, where public defenders work at low rates in the Czech Republic, Slovakia and Poland, and in Poland the compulsory provision of public defenders by lawyers was even free of charge for a long time (see Fenyvesi 2001:5-6). As for the Hungarian situation, it should be noted that here, too, low fees limit the circle of applicants for the appointment of public defenders, who are mostly composed of newcomers to the profession and less experienced lawyers, for whom hourly rates between 500 and 1.000 forints could be attractive, but now they are also motivated by the experience they can gain in litigation and by the desire to increase their future client base (see Zsolt Nagy's empirical study on the motives of domestic lawyers:) Nagy 2000b). A new decree by the Minister of Justice quadrupled this amount and set it at 2,000 forints per hour, slightly more than the amount eaten up by inflation since 1994, when the hourly rate was set at 500 forints. Surveys have shown that public defenders emerge not only from the younger but also from the older generation of lawyers, and the background to this is that they could not engage in the commercial law practice that boomed in the early 1990s - in which the young lawyers of the time were more nimble and successful - so older lawyers have remained in traditional court advocacy, and the work of public defenders comes close to this (Nagy 2000b). In addition to low hourly rates, the fact that the state did not cover copying costs, even though the copying fee of 100 forints per page for large quantities of documents was prohibitively expensive for the public defender, also limited the work of public defenders. Thus, the public defender could only minimally prepare for the defence and was usually unable to ask the defendant to do so due to his financial situation (cf. Fenyvesi 2001:2). The new court decree changed this as well and included these and other costs in the amounts to be reimbursed to the public defender. Overall, then, most solutions in criminal proceedings provide for only a reduced level of public defender activity, and this is largely true in the domestic context. 4.4.2. Forms of legal aid in private litigation The focus of the criminal proceedings is on the imposition of criminal sanctions on the suspect, the accused, and this use is not suitable for establishing an exchange between the suspect and his lawyer. In this case, therefore, the lawyer can only be expected to undertake the legal representation of the party for a different fee, disregarding for the time being any defence motives based on philanthropy. In contrast, in the case of private claims, especially claims for damages, the litigation claim itself can be included in the lawyer's motivation. In this area, then, neither indigence nor low income necessarily require a guarantee of a state endowment for litigation - we can apply the starting point of economic legal theory to our topic. Rather, it follows from this legal concept of private litigation that if the rules of litigation allow the legal market to function properly, the legal market itself will seek out cases worth litigating and provide representation in litigation, even for those of limited means. When a case is won, the share of the proceeds is a guarantee to the lawyer that it is worth making every effort to win the case. Thus, if a private lawsuit fails to find a lawyer in the legal market, it is only an indication that the lawsuit is futile in the estimation of the legal market (cf. Posner 1990:342, Cohen 1984). Where this legal view finds influence in legislation and case law, state forms of legal aid and the 295 public funds behind them are pushed back and instead the appropriate activity of the lawyers' market is specifically promoted through the corresponding design of legal aid law. This has been the case in the United States since the 1980s, where there is a tradition of extreme competition between lawyers and the emergence of the lawyer as an "entrepreneur" in private litigation. In European countries, although there are already advocates of this legal concept in legal academic circles, it has not yet become established in legal policy in the area of public legal aid. Rather, the opposite has been the case here in recent decades, namely an increasing assumption of state responsibility, which stands in an interesting tension to the "denationalisation", "marketisation" and "privatisation" efforts that have been carried out in many respects (cf. Dannemann 1996:287). Turning to the forms of public legal aid in the field of private litigation, we should highlight the "Judicare system" solution, starting from the United States, which has already been analysed. This presupposes, as we have seen, that the claimant, upon receiving the full amount after proving a low income, hires a lawyer to represent him or her in the legal market with public funds. However, precisely because of the influence of the aforementioned polar opposite concept of economic law, this has not been fully extended in the United States and is only applied in a few Member States. In general, it has been observed in recent decades that Republican presidents and their judicial administrations, in shaping legal aid policy, have tended to cut the resources invested in public legal aid funds or to stop the introduction of new forms of public legal aid, while Democratic administrations, which in many ways have similar aspirations to European social democrats, have been and still are more inclined to intervene in the legal aid market through public legal aid. A look at the Western European countries in the area of public legal aid to support private litigation shows that they are generally even more generous than in the area of public defenders in criminal cases. From the descriptions, it appears that both the English and the Germans receive state funding for standard legal fees if they can prove their low income and are allowed to sue at state expense (see White 1978, Dannemann 1996:288). In the early 1990s, the number of people receiving state legal aid for their litigation in both countries was around 380,000 per year, although in Germany this only applies to a smaller proportion of litigants, as the propensity to litigate and thus the frequency of litigation is much higher in Germany, whereas in the UK it affects a larger percentage of all private litigation. On the other hand, it is important to see that in the UK, due to the longer duration and hourly rates for lawyers, much more costly litigation is undertaken by the state than in Germany, where litigation is much faster and at fixed lawyer's fees. While the English household spent £2,120 on a party litigating with public money in the early 1990s, the German household spent only £450 in sterling (see Dannemann 1996:276). It should be noted that the picture in Germany regarding access to public legal aid in private litigation is coloured by the fact that the costs of litigation, including lawyers' fees, are largely covered by insurers through the widespread legal expenses insurance, which helps to achieve access to justice in this way. In this context, the procedure for deciding whether to grant state legal aid in Germany is worth mentioning, as it goes beyond this case and often has a major impact on the entire course of the litigation. In contrast to Great Britain and the United States, where the competent head of the social authority decides on this, in Germany the judge himself decides on this question in the course of the trial as a preliminary question. However, the German Code of Civil Procedure makes the assumption of the costs of the proceedings by the state dependent on the likelihood of a positive decision on the merits for the applicant party, in addition to the requirement of proof of indigence. The instruction judge therefore examines the prospects of success on the basis of the documents submitted after receipt of the application. This procedure has then led to the wiser litigants applying for legal aid and thus being able to obtain guidance very quickly on the subsequent decision on the merits, if no major legal costs have yet been incurred. It is then possible, even with low legal costs, to get out of a case that has little chance of success, which also contributes to a quick settlement (see Dannemann 1996:285). Comparing the total annual amount of public legal aid spent on access to justice in private litigation in the more developed Western countries, the following picture emerges In the United States, $600 million was spent on assisting low-income plaintiffs in private litigation in 1998, or two and a quarter dollars per capita. In Germany, the amount of public legal aid per capita for these lawsuits was twice as high, and the same amount in France. In the Netherlands, the amount was even more than double, at almost ten dollars, and in the United Kingdom, not even two and a half times this amount 296 was spent, and the amount of public aid per capita for private litigation, also in US dollars, was $25 per capita (see Comparative Statistics 2002). The UK's most generous grant in the world is thus more than ten times that of the US, but to get a sense of the magnitude of the amount, note that if Hungary spent the lowest US amount of all the countries listed, $2.25 per ten million inhabitants would be 22.5 million or six billion forints. As far as the Hungarian situation is concerned, two institutions should be highlighted. The first is the institution of the lawyer, who is a probation officer, and the second is the institution of the court. In civil proceedings, a lawyer is assigned to the indigent person by the judge if one of the parties to the proceedings does not have a lawyer and the judge deems it necessary. It is granted to a person who is "unable to bear all or part of the costs of the proceedings because of his or her income, earnings or assets" (see Article 84(1) of the Civil Code). In practice, this means that the applicant is entitled to full legal aid if his family's per capita income does not exceed the subsistence minimum. In addition, in some areas, e.g. labour and family law, there is so-called "in rem legal aid" regardless of financial means. Unfortunately, there is still no empirical data in the national legal literature on the frequency of hiring a lawyer, the efficiency of the lawyer and the costs to the state budget. In the past, the fees of a lawyer acting as a public defender were even lower than those of a lawyer acting as a public defender. From 1988 until today, the court could set a maximum amount of 1 300 HUF for civil proceedings and a maximum amount of 400 HUF for extrajudicial proceedings. With the new court decree, these have been increased to about six times, almost just to compensate for the inflation rate since then (see IM Decree 7/2002 (30.3.2002)). This is still very low compared to standard legal fees. This makes it likely that younger and less experienced lawyers will continue to apply for the position for lack of other clients (see Nagy 2000b). The court day is a relic from earlier, etatist times, when the judge, who stood above the parties and their lawyers, directly embodied the power of the state and in civil proceedings not only carried out the activities of the ordinary European judge, but also had the broadest duty to instruct even parties represented by lawyers. To this end, the institution of the court day was developed, where "the court takes up the oral applications (application for legal aid, framework letter, complaint, dismissal, etc.) made when the case falls within the jurisdiction of the court" (Kengyel 2001:83). It is difficult to reconcile the neutral decision-making position of the judiciary with the fact that judges should also perform such advocacy functions on the side and, for example, decide impartially on an application they have written themselves, so much so that after the fall of communism it was argued that this violated the constitutional position of the courts, but for practical reasons - i. e.i.e. According to an empirical study conducted by Miklós Kengyel and a team he led, in the 1980s about 21% of litigants used the appeal day as a free legal aid, but according to information from lawyers' circles, the use of appeal days is still significant. It is true that this information also indicates that during the few hours per week when court days are offered, judicial employees spend a minimum of preparation time to meet the legal concerns of those waiting for free, and that this is not comparable to the work of a paid lawyer. 4.4.4.3. Public legal aid for legal advice outside court proceedings State legal aid for indigent litigation comes too late - as has been recognised by those who have studied the issue in recent decades (see Miklós Kengyel's thorough and excellent analysis of this issue in Kengyel 1990:92-95). On the one hand, a number of legal disputes could be avoided if those seeking justice were properly informed at the level of legal advice; on the other hand, in today's modern societies with their complex administrative spheres, a number of legal cases do not belong in court but in other official channels, and the help of a professional lawyer is needed to navigate the maze of legal regulations. Much of legal practice has now shifted in this direction, and it is possible to use this to earn a decent income. Equal access to justice for the poorer sections of the population therefore requires the development of public/non-profit forms of legal aid. In continental Europe, public legal aid was developed for a long time only in the context of lawsuits that had already been initiated, and it was only after the British and American models that there was an opening in this direction in the 1970s. 297 Historically, the system of free out-of-court legal advice with different models was first introduced in the UK and the US. In the UK, the Legal Aid and Advice Act was enacted in 1949 to help people on low incomes get advice from a lawyer. In 1973, the Act was significantly extended so that virtually anyone below a certain income level could apply for assistance (see White 1979:139149). This amount was £25 in 1974, and in 1994 the average assistance for a claimant was £88 (see Dannemann 1996). Legal advice, drafting of documents, obtaining a solicitor's opinion on the chances of success in litigation, etc. are included in this legal aid, and the solicitor can apply for state legal aid even with a completed income declaration from his client. The extent of this scheme is shown by the fact that in 1994 just over one and a half million such legal aid grants were made in England and Wales (cf. Dannemann 1996:283). This corresponded to an expenditure of 139 million pounds (equivalent to about 50 billion pounds) on the budget in 1994. This form of legal aid is complemented by the system of Citizen Advice Bureaux, which consists of about 600 such bureaux in England and Wales. Here, too, legal advice is offered to low-income groups, although it should be emphasised that the staff are not lawyers, but other university graduates who have experience of legal problems. This is possible because in the UK - unlike in Germany and Hungary, for example - there is no monopoly on legal advice by lawyers. In addition to these two systems, there is a third, complementary system: the network of Law Centres that provide legal advice. These were set up in the first half of the 1970s by lawyers from the left critical movement and were strongly supported by the left Labour government of the time. But then the Conservative side was in government for many years, and although the Labour majority in parliament even legislated to institutionalise them, their expansion stalled. However, the Law Centres were also characterised by the fact that they treated individual legal cases as a broad political issue and essentially made targeted political attacks on the Conservative government and local councils, i.e. they were political campaigning organisations in legal garb rather than truly neutral legal advice organisations (see the admission in a study by Richard H. H. White, who was otherwise sympathetic to them: White 1978:147-148). In the United States, in the course of the resistance already alluded to, forms of legal advice through Legal Aid, offering traditional legal work on a charitable basis or at public expense, have emerged on the one hand, and forms of movement law through Legal Aid on the other. The same forms of free legal representation in private legal disputes are essentially found in the field of free legal advice (cf. Knoppke-Wetzel 1978:196-205). In continental Europe, efforts to emulate the British and American examples began in the 1970s. In Germany, a system of state subsidies for legal advice was introduced in 1981 (cf. Dannemann 1996:283). Initially there were only a few tens of thousands of applicants, but in the early 1990s statistics showed 240,000 applicants per year, of whom an average of six percent were rejected because they exceeded the income limit. Compared to the one and a half million claimants in England, this is a vanishingly small number, especially when one takes into account the high level of willingness to pursue legal action in general and the high level of willingness of Germans to pursue legal action. It is suspected that the reason for the low number of applications lies in the extensive legal expenses insurance, where the insurer covers the legal costs incurred for a few euros per month, but also in the fact that this form of legal aid is little known to the public, so that very many people are unaware of it (cf. Dannemann 1996:283). In France, a state-subsidised form of legal aid outside court proceedings was introduced in 1990. Up to a certain income level, applicants are entitled to receive state aid which they can use to obtain legal advice on the legal aid market. However, the amount is lower than the rates on the legal market, which has led to tensions (see the explanatory memorandum to the 2001 "Projet de loi relatif á l'acces au droit et a la justice" on the internet). Therefore, the amendment to the law adopted in 1998 raised the income threshold for access to the scheme and attempted to bring the level of subsidies closer to the higher rates for lawyers. From then on, about 20 % of the population was eligible for this form of public legal aid, but in 2001, a bill was introduced to increase it further to 40 % (unfortunately, no information is available on the fate of this bill). For Hungary, it should first be noted that comprehensive free legal aid developed from the 1970s onwards within the then nationalised trade unions, but since it was accompanied by the exclusion of the legal profession, which was under political pressure, it was dismantled during the change of regime as a "legacy of the past system" (cf. Kengyel 1990:92-95 for a contradiction even then). Thus, today there is no form of state legal aid other than legal aid in court proceedings (public defender, 298 lawyer), although there were earlier attempts to build a comprehensive state legal aid system from the socialist circles that came to power in May 2002 (see Pál Vastagh's press conference: Legal Forum 2001). It should also be mentioned, of course, that the two new coalition parties, the Socialists and the Free Democrats, reproduce in this area the opposition we have already noted in the United States and Britain between the traditional forms of lawyers and the legal aid forms of the legal aid movement. In domestic legal life, we have already seen this contrast between the forms of trade union legal aid and legal advice and those organised on the basis of the Soros Foundation. It is therefore still open in which direction the developments in this field will go after 2002. 5. A legal sociological analysis of the expansion of tort law in the USA In the summer of 1999, a Los Angeles court ordered one of the largest US corporations, General Motors, to pay five billion dollars in damages because a car rammed its tanker, the tanker exploded and the occupants of the vehicle seriously injured (Schmitz 2000:95). This is equivalent to more than ten per cent of Hungary's annual gross national product, and when one hears of such and similar sums of compensation - which have been common in American tort law practice since the late 1960s, after rates were more modest in the past - European lawyers are usually horrified. Let us first briefly consider the legal doctrinal changes that have occurred in the wake of the expansion of damages, and then address the legal sociological reasons for the change - the incentives and effects. 5.1. US tort law and its development In continental European law, which developed from the conceptual distinctions and categories of Roman law, tort law is precisely delimited from criminal law and aims to compensate for the damage caused and thus to restore the state of affairs before the damage was caused, at least as far as financial compensation is concerned. It does not aim to prevent the offender from causing future damage, but only has an indirect effect. In the legal systems of continental European countries, criminal law intervenes with its own procedures and sanctions when the goal of deterrence is important to prevent an act in the future. In contrast, in the pragmatically developing English common law and the resulting law in the United States, this sharp conceptual separation of private law and criminal law was not a guiding principle, as abstract concepts and distinctions were avoided. If the circumstances of the act causing the damage were found to be more egregious than was customary in the trial of individual offences, punitive damages were awarded in addition to compensatory damages (for the historical development of this procedure in 18th century English law, see the informative study by Tamás Lábady, Lábady 1994:69-95). Punitive damages, however, have made a career for themselves in the United States, and especially since the 1960s, the often unimaginable sums awarded as punitive damages have caused an uproar among jurists around the world. From a legal dogmatic point of view, it was made clear as early as the 1800s that in the case of negligence, only compensatory damages can be awarded, while in the case of recklessness or intent, punitive damages can be awarded against the offender (Lábady 1994:96-1120, Schmitz 2000:94-99). The stated aim is to deter the offender from committing similar acts in the future, but this legal instrument also has another, less emphatic purpose. After all, if the law were only to serve as a deterrent, this could also be achieved through fines or criminal sanctions - a path mostly followed in continental European legal systems. However, the "private criminal law" built into private law has an additional effect. By awarding the injured party a substantial portion of punitive damages in addition to compensatory damages, the injured party is given a greater incentive to locate the wrongdoer and bring him to justice. The citizen is never encouraged to find the tortfeasor by a fine that flows into the public purse, just as the private citizen (and his lawyer!) is never encouraged to find the tortfeasor by punitive damages that flow into his own pocket and far exceed his 299 actual - possibly small - damages (Friedman 1999). On the whole, therefore, punitive damages in private law are more effective in finding and punishing the intentional offender than trying to do so with fines for administrative offences or penalties of the same amount. From another perspective and for other legal interests, however, this solution under customary law is questionable. From the point of view of procedural guarantees, the loose rules of civil procedure rather than the numerous guarantees of criminal procedure should apply to this private criminal action (cf. Lábady 1994:111). The astronomical amounts of punitive damages could cripple even large, well-funded companies and deprive a whole army of senior executives of further career opportunities for life. And all this on the basis of general private law formulas, not on the basis of criminal law principles (presumption of innocence, nulla poena sine lege, nullum crimen sine lege, etc.) or concrete criminal facts and their proof. Nevertheless, the institution of punitive damages has gained great importance in the United States, and while it had rather withered away in its original home country, England, around 1900, there was an explosive expansion of damages and especially punitive damages in the USA. In a very influential monograph in 1988, Peter Huber described the expansion of punitive damages from 1960 onwards as a "legal revolution" and analysed the socio-economic consequences (see Huber 1988, Huber/Litan 1999). Let us first look at what this expansion consisted of at the level of legal doctrine and then examine its causes and effects at the level of the sociology of law. On the legal dogmatic level, the most important changes can be summarised in eight points (see McClendon 1990, Amstrong 1990, Huber/Litan 1999). 1) From the 1960s onwards, abstract formulations of fundamental constitutional rights seeped into US jurisprudence, encouraging judges to adopt a broader normative style of adjudication rather than case-specific precedents and precise legal standards ("A good judge is a generalist, not a black-letter jurist!"). This process has led to the overruling of certain rules in certain areas of law on the basis of general principles and moral considerations. In many cases, the actual effect is simply to replace the moral judgements enshrined in the rules by focusing on other moral values... 2) In this intellectual climate, some judges began to disregard the rules of contract law and set aside the parties' agreement on the grounds that one party had exploited its dominant position or that one party had not been sufficiently informed, etc., which constituted "unreasonableness" for one of the parties. Or simply on the grounds that the rectified part of the contract ran counter to the legal policy objectives of the law in question (Kessler 1997). Such general moral arguments and general legal goals have led to a fundamentally different emphasis in US private law since the early 1960s, replacing the previous system. 3) The prevalence of legal principles instead of specific legal provisions in case law has led to contract law dominating private law and tort law only intervening in a supplementary manner when an accident occurred between parties without prior contact, while tort law increasingly became the focus of all private law and contract law receded into the background (Huber/Litan 1999). 4) Not only has tort law come into focus, but the legal requirements for compensation have also changed fundamentally. One of these changes was the reduction or disappearance of the degree of fault and the increasingly widespread replacement of fault compensation by strict liability (the beginnings of this development were analysed in the mid-1970s by László Sólyom in his excellent work, see Sólyom 1977). While this form of liability used to be applied only to activities with increased risk (e.g. operating an explosives plant or keeping wild animals indoors), it is now increasingly used for all types of activities. If one person's product or activity caused harm to another, it was now sufficient to prove the causal link and proof of negligence became irrelevant. 5) But not only is fault gradually abandoned - at least in damages, for as we have seen, punitive damages also require higher degrees of fault - but the degree of contributory negligence has also become indifferent. If the causation of a damaging event by the actions of a person could be proven to a certain degree, that person may bear the full cost of the damage incurred since the change, provided his or her financial situation allows it. An example of this is the case of a drunk driver who drove his car into a roadside phone box, seriously injuring the person on the phone. Since the proximity of the phone box to the roadway contributed to causing the accident, the phone company paid the high compensation. The financial circumstances of the drunk driver would not have permitted this, but the injured caller could not therefore be denied the amount to which he was entitled: the telephone company had to pay, the court ruled (McClendon 1990). 300 6) The range of consequences that can be considered in the event of an accident has also grown considerably in the course of the liability revolution. Whereas accidents used to compensate only for property damage and bodily injury and their financial consequences (e.g. loss of income), with the expansion of liability, psychological injuries have increasingly come into play, and the provability and amount of compensation have become highly subjective. And claims for psychological injuries have increased radically in recent decades in the US, accounting for 40% of all claims in the late 1990s (Huber-Pitan 1999). An example is the case of a middle-aged woman who was the victim of a car accident caused by the fault of another vehicle, but who breathed a sigh of relief when the driver of the at-fault vehicle got out because no injuries were visible on the victim and she had reported no complaints. A few days later, however, the woman's lawyer informed the driver of the guilty car that the accident had revived the psychological complaints she had suffered as a girl as a result of the sexual abuse, that they were now unbearable for her and that she was demanding a large sum of compensation (Kessler 1997:11). The account of such a harrowing story before the jury offers no chance of compensation, even if it is impossible to actually prove it. (On judicial subjectivity in the context of immaterial damages in general, see also the critique by Károly Horeczky: Horeczky 1996:13-16). 7) Another change in tort law was the declaration that "express warnings" are not sufficient. When the "liability revolution" began in the early 1960s, the first wave of the "liability revolution" was the dissemination of warnings about the dangers of products. Every product was accompanied by a variety of warnings to ward off potential lawsuits and settlements. Since the 1980s, however, courts have become less and less likely to accept the presence of explicit warnings as a defence. The reason: the consumer does not have enough background information to understand the warning. The reasoning behind this is that companies should not warn and thus wash their hands of the dangers of their products from the outset. 8) Another change in the field of tort actions is the greater role and discretion of juries in the US. Whereas in England the role of the jury had been relegated to the background since the early 1900s and the judge was free to decide, with few exceptions, whether a jury was required in a particular case, in the United States the mandatory presence of juries has increased in a variety of private actions in addition to criminal cases. But in addition to the judge's clarifying instructions, the jury's discretionary power has been expanded. In complex technical and safety matters, they decide whether damages can be awarded in a particular case, and they also decide on punitive damages and their amount (Schmitz 2000, McCarter 1993). These were the main changes in doctrine and procedural aspects of tort law that led to the expansion of tort law. Let us now look at the reasons that led to this expansion and the socio-economic impact it had. 5.2. The incentives and effects of the "tort revolution" To understand the incentives for expanding compensation, it is important to emphasise that this has typically increased the liability of large impersonal corporations and large institutions. People's lives are increasingly shaped by the products and services of these large organisations, and the fines, incentives and disincentives that traditionally target natural persons have little effect on them. An example of this is the impact of a new drug produced by Massengill in 1937, when a hundred people died in a short period of time from a drug that was marketed without prior animal testing. Regulations at the time did not require prior testing of drugs on animals, so the company expressed sincere regret to the victims' families and left it at that (Fumento 1990:3). The initial problem, then, was that large impersonal organisations are unable to respond and adapt their activities to the incentives and discretion of natural persons, and that their well-funded wealth and multi-billion dollar production processes make them insensitive to smaller sums when it comes to compensation and punishment. Another example of this is the case of the General Motors tanker fleet mentioned earlier. An internal study showed General Motors management that the tankers on the road were explosive and that this could only be significantly reduced through fundamental changes and a new fleet. However, the study also showed that with 500 collisions per year, the actual compensation 301 paid - based on past experience - is $200,000 per year, which is only a few hundred dollars per car. Consequently, it made no sense to undertake a radical overhaul of the vehicle fleet, which would cost many hundreds of millions of dollars (McClelod 1990:4). At this point, the jury was appalled by the cold calculation and foresight of the likelihood of an accident, despite the deliberate risk taken, and imposed five billion dollars in punitive damages. The impetus, then, was a noble, real practical problem that the driving forces behind the expansion of tort law, activist judges, law professors (who developed theories and doctrines to support the expansion) and lawyers sought to solve. Let's look at what impact this has actually had in recent decades! (The emergence of defensive medicine) In medical practice, the care and minimisation of risks are the most sensitive issues of life and health. The possibility of death or other serious damage to health often raises questions among patients and their relatives about the extent to which this was necessary or, on the contrary, the extent to which it was the result of negligence on the part of the doctor and the hospital. The expansion of compensation with its horrendous sums - and a considerable part of it as lawyers' fees - has inevitably led to malpractice cases coming to the fore. Medical knowledge is the monopoly of the medical profession, and even the necessary and possible therapies to cure a disease are only judged by members of this closed profession. Moreover, it should be borne in mind that many useful therapies and medicines, even though they may be life-saving in the vast majority of cases, may be knowingly dangerous or even fatal in a few percent of cases, without it being possible to decide in advance whether they fall into the first or second category in a given case. This is why there is a builtin tolerance in the medical profession for unsuccessful interventions and therapies, especially when it comes to serious diseases with often fatal consequences. "The operation went very well, it's a pity the patient died," says the satisfied professor of medicine, and such expressions of black humour are an expression of this attitude. The number of malpractice cases in the United States has increased many times over as tort law has expanded, which in many ways has increased the efficiency of the medical profession. A doctor friend who worked for many years in a university hospital in this country told me, after working permanently in the United States, that in this country the death of heart and cancer patients is taken for granted in hospitals and clinics - "these are terminal illnesses" - while this attitude is completely absent in facilities outside, and the available treatment options are used to the last minute. This is the "nice" side of the indemnity expansion and malpractice consequences, but there are also a number of negative effects due to excessive fees. These are referred to as the spread of "defensive medicine". On the one hand, hospitals and clinics simply prohibit the use of a range of therapies and drugs that, while curative or even life-saving in the vast majority of cases, they do not want to take the risk of future lawsuits because of their side effects, which could bankrupt the hospital for even one or two failures (Amstrong 1990). The director of the National Cancer Research Institute there said in an interview in the late 1980s that many doctors openly refuse to prescribe a sufficient dose of chemotherapy to a patient because at that sufficient dose there may be side effects for which they do not want to take the risk of litigation, and that hundreds of patients die unnecessarily every year because the right dose, even if it has side effects, would save their lives (Fumento 1990:3). So this aspect of defensive medicine is a strong reluctance to use treatments, and these decisions are made despite the curative effect and are motivated by considerations of harm. The flip side of this medicine, however, is the inappropriate proliferation of tests for diagnosis. Most of them are neither necessary for the patient's actual recovery nor for an accurate diagnosis, and are merely for legal precaution. If even one in hundreds of patients sues for side effects, these tests will form an important basis for damage claims. This unnecessarily increases the cost of treatment for patients many times over, as the cost of expensive tests far exceeds the cost of actual treatment. Davis P. Kessler conducted a comparative study of elderly heart patients between US states that did not increase liability and others that did, and found that mortality rates were no better than in the latter, although costs were orders of magnitude higher (Kessler 1997:12). (The emergence of the liability tax) The generalisation of strict liability, the expanded interpretation of the principle of causation in tort and other changes in legal doctrine are forcing all organisations producers and service providers - to avoid legal consequences and pass on the financial consequences. 302 The cost of systematic litigation, extended liability and horrendous damage claims - if the company survives at all - will inevitably be factored into the price of future products and services. The other component of the "liability tax" comes from skyrocketing insurance premiums, which have multiplied over the decades of the liability revolution because of the high risk of absorbing terrible damages. For particularly dangerous products, where damages can run into the hundreds of millions or even billions of dollars in court practice, such as the manufacture of a new vaccine for children, the built-in liability tax can be as high as 95% of the product price (Anderson 1991:5). But the operation of hotels, restaurants, car parks, etc. also requires a significant amount of such 'liability taxes' to be levied on operators, which raises prices considerably. The operation of the liability tax is complicated by the fact that while it is paid equally by all who use these goods and services, the compensation amounts are not divided equally between the lower and upper strata of society. While the liability tax is largely factored into the price of goods and services because of the high compensation payments, a company manager's compensation for lost profits can run into the millions, while that of a hotel porter or a taxi driver can run into the thousands. In other words, it is not a "progressive tax": everyone bears it equally, but once they are in a position to be beneficiaries of the compensation liability incurred, they no longer benefit equally (Huber/Pitan 1999). (Reduction in innovation capacity) High legal risk discourages the introduction of new products and technologies, as the prospects of litigation are always better for established and proven products and technologies. This is also favoured by the fact that insurance premiums have skyrocketed not only because of the risk of damage, but also because certain particularly risky activities, such as aircraft production, do not take out insurance for new products for technologies perceived as risky (Anderson 1993, Huber/Pitan 1999). As a result, many patented inventions, drugs, active substances, etc. simply remain without practical application. The earlier high level of innovation resulting from the extreme expansion of competitive conditions in the USA has declined in the course of the compensation expansion. And it should already be pointed out here that the political opposition to this expansion in the USA since the early 1990s has in many ways been stimulated by this realisation. (Reduction in productivity efficiency) Nationally, the expansion of damages has led to a huge increase in the amount paid annually, reaching $80 billion in the second half of the 1980s and $120 billion by the end of the 1990s (Huber/Pitan 19999). More than half of this amount goes to lawyers' income, and tens of thousands of law firms have specialised in this area as the "highest paid" legal activity. Many bills to curb the expansion of tort law in state legislatures and in the federal Congress have been demonstrably torpedoed by powerful lawyer lobbies (see Fumento 19930, Kessler 1997). Davis P. Kessler's comparison showed that in indemnity sectors such as hospitality, US states where liability rates remained high experienced stagnant or declining performance in hospitality and other indemnity sectors, while where the "liability revolution" was radically curbed by legislative intervention, they benefited from five to ten percent higher annual performance. Overall, Kessler puts the loss of benefits due to the compensation expansion at 1.5 to 2 per cent of total social product (Kessler 1997:8), which already puts the US at a considerable competitive disadvantage in international comparison. 6. The Sociology of Legal Ideas The emergence of certain legal ideas and various legal concepts is linked to certain scholars and communities of scholars, but their wider dissemination, their dominance in the legal system of a country or, conversely, their marginal, purely "academic" existence is in many ways determined by socio-political reasons. In this chapter we will analyse this issue. First, we will discuss some general questions about the socio-political determinants of ideas of law, and then, in the second part of the chapter, we will analyse the reasons for the "reactivation" of the idea of natural law in recent decades. 303 6.1. The sociological background of legal ideas To illustrate the problem, it seems worthwhile to quote a statement by Max Weber, who explained the success of the suddenly emerging and temporarily very successful free school of jurisprudence as a legal revolt after the codification of the German Civil Code: "The participants in modern jurisprudence found it embarrassing to be reduced to a legal automaton condemned to the mere interpretation of paragraphs and contracts - they enter the facts and the costs at the top, while the automaton spits out the judgment with reasons at the bottom - and this situation became even more embarrassing with the universalisation of formal, legally codified law. (...) The doctrine of 'free law' seeks to prove that, in view of the irrationality of the facts, all law is doomed to failure, that decisions therefore in many cases weigh not formal norms but concrete values and thus appear as mere interpretation" (Weber 1995:2/2:189). The rise of one legal concept and the decline of another legal concept is thus determined not only by the inner quality and logical coherence of the idea, the legal concept - or conversely by its poor quality - but also by the broader socio-political power relations and struggles that take place here. Recognising this, of course, should not mean subscribing to neo-Marxist theories of law that attribute all impulses of legal life and ideas to socio-political class struggles (see, for example, some authors of the American "critical legal studies" movement for this exaggeration: Kayris 1989). The constraints arising from the general functional requirements of society, which become dominant over the particular interests arising from internal political struggles, especially after reaching a higher level of complexity, also determine the internal functioning of law and the outcome of the rivalry between different conceptions of law. In other words, the dual structure of society - institutional-functional mechanisms on the one hand and the fragmentation of social groups on the other - determines the functioning of law in their combination. Moreover, with the increase in social complexity and the emergence of an overall social system within the framework of a comprehensive world society, institutional-functional mechanisms increasingly dominate over the structures - and struggles - of groups of people (cf. in detail Pokol 1999:83-106). Nevertheless, the struggles of social groups of people now organised not only within national societies but on a broader global scale are important in understanding the rise and, conversely, the decline of law and ideas of law. The different fate of Eugen Ehrlich's concept of the sociology of law in Europe and in the United States is an excellent example of this problem. In his major work on the sociology of law, published in 1913, Ehrlich, as we have already seen in the introductory chapter, opposed the notion of a law that could be changed by state legislation and advocated instead the spontaneous formation of customary law within social groups, while in the other direction he tried to marginalise the binding of law to a conceptual system of legal dogmatics. After the publication of the work, Erhrlich's conception of law in European countries remained without impact on broader legal theory, apart from some academic debates and reflections in the literature. In the United States, on the other hand, where the English translation of Ehrlich's work was published in the 1930s, his views had an elementary influence, and the "legal realists", who at that time became a dominant force in the wider legal world beyond university law schools, celebrated Ehrlich as one of the greatest legal scholars of the time. This astonishing difference in influence was clearly the result of a different constellation of political power within the dominant social groups in European countries on the one hand and in the United States on the other. In the first case, the law has been predominantly controlled for hundreds of years by judges, who have held a large share of the law and a large share of the leadership within the legal profession, as well as by the law professors who have defined the conceptual framework of the law. The members of these groups of lawyers were clearly drawn from the socially dominant agrarian and industrial capitalist groups and the intellectual groups surrounding them, and their legal activities were embedded in their worldview. The intensification of legislative and codification activity did lead to rivalries within the legal profession - as Weber indicated in his analysis quoted above - but this only served to nuance the exercise of power by the ruling classes, for example by giving the pacification of the political organisation of the lower classes in the legislature a stronger social colouring. In this climate, it was not possible to effectively challenge the idea of law on the basis of legislation and legal 304 doctrine and to propagate the idea of law as a micro-process of law and as a force in all micro-circles of society as a whole. Ehrlich - like the Hungarian jurist Barna Horváth twenty years later in the domestic legal scene - was only able to influence small groups in the legal life of European countries. In the United States, however, the situation was different. In addition to the active role of the lawyer and the passive role of the judge, here the legal profession as a whole was dominated by a large group of lawyers who did not have the same homogeneity in terms of origin and political background as in Europe. In addition, the power struggles between the agro-industrial capitalist groups and the banking-financial capitalist groups among the dominant groups in society also provided a different terrain for the realignment of the law than in Europe. While the former clearly dominated in the democratic representative bodies and in the offices elected by the masses, the domination of the banker-financial circles in the press, which became an independent political arena, and later in the mass media, which expanded into a multi-layered arena, was unstoppable from the beginning of the 20th century and has only increased since then. Moreover, since the beginning of the 20th century, the intellectual and cerebral public of the legal professions, university lawyers and the mass media have created a series of common socio-political forums for action in joint associations and foundations (cf. Epp 1998; Scheingold 1998). In this atmosphere, the shift in the focus of law from legislation and a tight legal dogmatic system of categories to the micro-processes of law and the law that emerges in society as a whole could be propagated on a completely different power base. The broad influence of Ehrlich and the sociology of law movement that made him a classic is thus understood here in contrast to Europe (see Hunt 1978). The same divergence makes it possible to understand a development that has taken place in recent decades at the level of legal concepts. In the wake of the "fundamental rights revolution" in the United States from the late 1950s onwards, the focus of law shifted from legislation and statutory law to the federal constitution and the federal courts that ruled on it, which Ronald Dworkin brought to legal theory in the 1970s and developed the concept of fundamental rights law (see Dworkin 1975). The domestic political struggles of the USA in recent decades clearly show that the media influence of the banking and financial circles, their intellectual foundations and the "right-wing" associations of fundamental rights plaintiffs, also largely funded by them, are behind this concept of law, while the counter-legal concept, which has penetrated to the highest levels of presidents and Congress, is based on the defence of law and legal doctrines and is presented as a struggle between the two major capitalist groups (see Epp 1998; Scheingold 1998). When the liberal democrats are in charge and dominate the circles of bankers and financiers, the defenders of the fundamental rights conception will come to the fore (for example, in the appointment of federal judges or in the public funding of fundamental rights associations), and when the industrial, entrepreneurial, capitalist groups and with them the more conservative social strata come to dominate through republican presidential governments and republican majorities in the legislature, then the "fundamental rights revolution" will get going again (see Epp 1998; Grey 1996). However, if we go to Europe, we find adherents of Dworkin's conception of fundamental rights in small academic legal circles, but it has not found its way into mainstream legal life. And yet, for decades, this conception of rights was exported by sociopolitical groups in the US through direct support from US foundations, university conferences and extensive academic networks. However, the socio-political power relations in European countries have not allowed it to dominate the legal life of these countries, at least so far. 6.2. A sociological approach to natural law The ideas of natural law played a dominant role in European legal systems for many centuries. This role seemed to disappear in the second half of the 19th century, as the modern scientific view of man and society made it untenable to speak of a catalogue of rights born with man and valid at all times. With the detailed knowledge of history and the discovery of different civilisations, this could no longer be seriously defended. Nevertheless, the idea of natural law and human rights seems to have been revived in several waves since the late 1940s. In what follows, we will examine the social causes and political imperatives that led to this revival. Before doing so, however, it seems useful to give a 305 brief overview of the history of the idea of natural law. 6.2.1. Overview of the development of the idea of natural law The idea of natural law arose with the advent of the contestability of rules of conduct and the emergence of alternative rules of conduct among the Greeks. In the fifth century BC, social change took place and, in response, the intellectual elaboration of law itself developed and with it the separation of law created by human theorising from the eternal natural, divine law that was independent of it. The nature of social change: the hitherto undisputed ancient customary order, given to each state by the gods and heroes according to a vague conception, was confronted with alternatives, on the one hand by the recognition of other customs of the surrounding peoples, and on the other by the crisis of aristocracy, the rise of tyranny and democracy in some Greek city-states. Thus, the eternal, evidential laws and customs suddenly became contentious. This was deliberately formulated by the Sophists. It fundamentally challenged Greek thinking about society and law. Hippias and Antiphon said that "to be just is not to violate the law. However, this valid law does not entail any intrinsic or permanent good, and accordingly there are different understandings of what is just. Laws are not sacred precepts, but serve certain purposes and interests." The critic said that people invented belief in God to observe what they cannot see. From the diversity of legal norms and the existence of different norms in different societies, the sophists deduced total arbitrariness, with the exception of rules arising from natural commandments. Antiphon writes: "For the commandments of the law are based on arbitrariness, but the commandments of nature are based on necessity. The rules of law are conventions that have not evolved by themselves, but the rules of nature are the product of evolution and not of conventions. So he who breaks the rules of law remains free from disgrace and punishment if he is not known; but he who tries to do violence by the inherent laws of nature suffers harm even if his deed is hidden from all men, and his harm is no greater if his deed is known to all" (quoted in Coing 1996:16). In other words, Antiphon professes the laws of nature and, in contrast, calls for the violation of the laws of the city. Whereas in human communities that emerged from natural instinct, order was established for a long, long time through the stubborn adherence to customary norms, and these were later supported by a non-negotiable divine command, in the communities of the Greek city-state democracy, norms of their own making took the place of the customary order that had been handed down. In this way, the responses of the community as a whole to changes in the environment, to shifts in the internal components of the community, could be more adaptive, rather than merely responding to new conditions by means of norms established under past conditions. The sophists, on the other hand, focused on the arbitrariness of the new normative order and were guided by the commandments that arose from natural instincts. Socrates, opposing the Sophists, reinterpreted the eternal law as an inner dictate of the human soul rather than a natural instinct, and although he also separated from it the man-made laws in individual states, he saw in them the appearance of justice, even while acknowledging the possibility of erroneous laws. This is how Aristotle arrived at the separation of the two components of law. Some things, he says, are just by nature, and no legislator can provide otherwise, while other rules are based on a positive determination. The law of the polis is divided into two parts, the natural and the legal. The natural law is that which has general validity; the legal law is that whose content was originally indifferent, but which was once declared to be law by the law. Whereas for the Sophists the natural equivalent meant above all the equivalent of man's psychophysical nature (i.e. the natural commandments arising from his biological-psychical constitution), for the Stoics, transformed by the analyses of Socrates, Plato and Aristotle, these increasingly become the commandments of natural reason. For them, the law of nature is the law of general reason. In the words of Cicero: "The true law is nothing other than right reason in harmony with nature..... The abrogation of this law is an offence against the divine laws, and their corruption cannot be tolerated, nor can they be entirely abrogated, nor can the senate or the people dissolve these legal obligations.... This law cannot be different in Rome and Athens, neither now nor in the future, all nations are bound 306 by this one law for all time, forever and unchangeably." In the Middle Ages, the idea of natural law was incorporated into Christian thought in two different versions, elaborated by Thomas Aquinas and Augustine. Thomas Aquinas went back to Aristotle with the idea of the lex aeterna (the eternal law). Like ideas in general, the lex aeterna and the divine law spring from reason. When man is able to comprehend the lex aeterna, he becomes aware of it as lex naturalis (natural law). By recognising the lex naturalis and always applying its principles to the given circumstances, man forms a positive legal order. In other words, the divinely founded natural law here only provides a general level of regulation, a level of legal principles, the concretisation of which is always incumbent on man. In other words, the "higher law" is not a complete law. In a sense, it is an incomplete layer of law. On the other hand, there are a number of rules of natural law that are indifferent to natural law on the general level. But everything that contradicts the general natural law is void. Augustine's Civitas Dei was written after 410, when the Goths overthrew and conquered Rome, which was a great shock to intellectual thought. The accusation was that Christians were to blame because they had disturbed the cult of the old Roman gods. In contrast, Augustine held that Rome, violently created and violently destroyed, was not a true empire. The true state, he said, was nothing other than the state of God, the Civitas Dei. That is, the community of true believers, of those chosen by God's grace, in the light of the hereafter is the civitas coelestis (the heavenly kingdom), the heavenly Jerusalem; and on the pilgrimage of earthly life, the civitas dei terenna (the earthly kingdom of God) is the framework. In contrast to this is the community of the damned: the civitas diaboli (the devil's kingdom). As long as life on earth lasts, both communities must coexist: this is the civitas permixta (mixed kingdom), and it is nothing other than the state. But the law and peace of this state are of earthly origin and are not a faithful reflection of the divine peace and justice that reign in the civitas coelestis. That is, divine law becomes more separated from earthly law in the wake of Augustine, and there is no effort to bring earthly law closer to divine law, to criticise earthly law in the light of divine law, and to call for its approximation. They simply reject it, despise it, although they also consider an earthly state and a law based on non-divine law necessary. The teachings of Luther and Calvin reflect this (see Coing 1996:28-33). Hugo Grotius - the founder of modern natural law - saw the fundamental characteristic of man in the striving for a quiet, orderly life and the pursuit of calm cooperation with his peers. Man is not guided by his instincts, but by reason beyond the senses. From this Grotius deduces that the supreme principle of law from which all others derive is pacta sunt servanda, the principle that "contracts must be honoured". According to Thomas Hobbes' thesis, man is selfish. He also assumes that at some point in the past, humans lived in a primitive state of unlimited freedom. Thus, in the original state of unlimited freedom, selfish man created a state of "war of all against all". To prevent this, the social contract was concluded. Law is thus a product of fear and a product of the restriction of freedom. This analysis is similar to what Lucretius had previously explained in his work On Nature: "In the beginning, says Lucretius, men roamed the forests without any social bond or any constraint based on conventionality. Their weakness and the dangers to which they were exposed by wild animals caused them to band together for self-protection and for the pleasure of safety. Having formed a society, the former cruel life was replaced by a habit of kindness and fidelity" (Strauss 1999:82). Samuel Pufendorf was the next great natural law thinker whose main achievement was to correct the one-sided mathematical-causal thinking that had prevailed since Hobbes, to divide the world into physical and moral units and to recognise the validity of causality only for the physical. He completely separated natural law from divine commandments and obligations to God, saying that divine obligations were a matter of religion, while man's obligations to himself fell into the realm of morality, while his obligations to the community fell into the realm of law. Christian Thomasius went further in separating religion, morality and law on this basis, and the separation of ethics, politics and law is central to him. In their conception of society, the representatives of the Enlightenment assumed that people existed in themselves and postulated a state of nature - sometimes as a historical hypothesis, but usually without such an assertion - and that there would then only be natural law; there would be no domination and all people would be free and equal. However, this natural law lacked sanctions, so uncertainty reigned. So people got together and founded and organised the state through a contract, the 307 social contract. With this contract, the "state of nature" was transformed into a "civil state". Thus, man became a citizen and natural law was replaced by the law of the "citizen". Two versions of the social contract emerged: Thomas Hobbes understood the social contract as a contract of subordination in which the absolute power of the ruler was established. The people themselves gave up their freedom in favour of the absolute ruler in order to live in security. John Locke, on the other hand, emphasised that the purpose of the social contract was to secure the natural rights, liberties, property and equality of all people, and that the state was therefore bound by these values. Strauss points out that "Locke asserts more explicitly than Hobbes that man originally lived in a state of nature or that the state of nature is not a hypothetical assumption. By this he means, in the first place, that men have lived, or can now live, on earth without being subject to a common supremacy (...) men living in the state of nature, who are the explorers of natural law, know how to remove the inconveniences of this state and to lay the foundations of common happiness. But only people who live in a state of nature can know natural law, who have lived in a bourgeois society, or who live in a bourgeois society in which they have properly cultivated reason. Therefore, people in the state of nature are more like the elite of the English colonists who settled in America than the savage Indians. An even better example is the case of the highly educated people after the collapse of their society (...) In this way, it becomes completely irrelevant whether or not the state of nature, conceived as a state in which people are subject to natural law and not to a common supremacy, was real at any time" (Strauss 1999:155). In England, Hume, in Germany Kant criticised the Enlightenment's conception of natural law because it attempted to derive the requirements of reason empirically from practice, anthropologically. Kant, on the other hand, tried to ground them in a priori purity, in pure reason, and thus radicalised the limited concept of reason of the Enlightenment thinkers. His natural law is an "a priori theory of law" and can be derived from the principles of practical reason. "Freedom is the only original right to which man is entitled by virtue of his being human. All other natural rights follow from it. On this basis Kant defined right as a set of conditions under which the will of one human being can be united with the will of another, according to the general law of freedom" (Coing 1996:41). In his analysis of the Neo-Kantians, Arthur Kaufmann points out an important point Kant makes regarding the relationship between Neo-Kantianism and natural law. In one of his last works, Kant wrote his Metaphysics of Morals, in which he himself derives a substantive law of reason from reason. According to the Critique of Pure Reason, no content can be derived from the a priori use of reason, but only pure forms of the use of reason (Kaufmann 1989:64-65). The content law of reason developed by Kant had a great influence on German legal life and was continued in many countries, including here by Csatsko, Virozsil, Pauler. After some time, this movement of reason also influenced the judiciary, which led to great legal uncertainty because of the openness of the new basis of judgement. Paul Johann Anselm von Feuerbach was the first to oppose this and, in the light of Kantian criticalism, argued for the openness of natural law in terms of content, which only the state can fill with positive law. Although he then - inconsistently - still recognises a right of resistance for the judge if the law is unjust, Kaufmann adds. Anselm von Feuerbach later became minister of justice and, spurred on by this theoretical foundation, began important codifications. In reality, however, it was Stammler and the neo-Kantians who opposed Kant's inconsistency, and it was they who rejected substantive natural law. Stammler's theory of "right law" is also only a theory of legal forms a priori and not a substantive law of reason. Or, as Gyula Moór puts it: "Law is thus only a material law with certain properties, which Stammler, in his unfortunate terminology, calls "natural law with variable content" - which is of course nonsense, because natural law is by definition immutable" (Moór 1994:155; for an analysis of "law", see also Takács 1998). In the early 1900s, the idea of natural law seemed to have disappeared. Before turning to the question of the sociological functions of natural law and human rights today, it is worth tracing a broader social development. 308 6.2.2. Positivisation of the social processes As a result of the ethnographic and historical research of the last centuries, we now have a clear picture of the organisational mechanism of the human community living in and emerging from the various forms of civilisation under natural conditions, but also of the changing development of the psychological constitution of the individual human being. The development from habitual norm orientation developing from instinct to increasingly reflexive abstract norm and value orientation is to be mentioned here above all in the area of behavioural control mechanisms (cf. Gehlen, 1977; Heller 1978). But also the development of religious worldviews under magical spell to modern scientific knowledge acquisition or the development of societies from total communal subordination to the emergence of autonomous individuals through processes of individualisation can be included here. Of particular relevance to our topic is the emergence of centres of social control (the central state) to solve the overall problems of more complex communities, which in the European development from GrecoRoman civilisation from the 17th century onwards, evolved from their earlier military and police role to an increasingly expansive and rational social organisation by developing a state apparatus based on the results of increasing scientific knowledge and gradually establishing consciously planned rules of behaviour. The combination of this apparatus with the democratic formation of will, the multi-party system based on free expression and party formation, only crowned the emergence of self-governing societies based on continuous human decision-making, knowledge acquisition and its translation into social practice. Modern societies, rising above natural processes (although living under natural conditions and only transforming but not completely eliminating the natural instinctive orientation in each individual), build their spheres of activity on complex mental mechanisms. These societies use the natural environment much more intensively, and therefore it is much more important to know all the details and their changes. The evolved development thus requires a constant review of the appropriateness of the knowledge of the agents in the respective situation, whereby constant changes in behaviour become necessary because of the rapid change of relevant details (cf. Luhmann 1984; Pokol 1991). With the radical expansion of communities, the details of complex societies become increasingly important in daily action at higher levels. And in the course of individualisation, knowledge of the millions of free individual actions and their unfolding variations is also important for appropriate patterns of action. As a result, corrections based on spontaneous mechanisms of changing habitual norms at the level of rules of behaviour in communities become insufficient, and in societies that become more complex and above nature, a conscious norm-setting machinery of political centres that control society spontaneously develops. In the case of European civilisation, this happened during the centuries of Roman state development, as it has happened again in modern times (see Caenegem 1981). Human knowledge has been positivised in the form of modern science; Production has been liberated from its traditional embeddedness by the market economy, i. e. made dependent on economic decisions that are appropriate for all; the family as a natural community has been positivised by the modern family based on free choice of partners and divorce; the dynastic exercise of state power by the grace of God has been positivised by recourse to periodic elections, and modern states based on prevailing electoral choices can change their political priorities without explosions and revolutions; finally, modern law has been transformed from being embedded in an unchanging customary world, in which the body of law could only change from generation to generation with a kind of fugitive imperceptibility, into law created by conscious decision-making, in which the norm-setting processes of extended expert apparatuses based on systematic fact-finding are at work, and in which the new law of the day is created in the face of scrutiny by the dominant opinions of society by linking it to the democratic formation of will. Complex societies, which today are increasingly merging into a global world society spanning continents, can only function without collapsing if their processes are adapted to change in all directions and transformed into conscious decision-making processes. In view of the all-round positivisation of modern societies, it is evolutionarily inevitable that modern natural law doctrines based on a naïve view of man and society should rapidly disappear in the second half of the 19th century. At the beginning of the 19th century, this idea had appeared in most treatises on legal philosophy as a dead memory of legal history. If, as we have seen, Kant, against his 309 own premises, still felt compelled in the late 17th century to derive a material law of reason, and if this law of reason was then also effective in the judicial sphere of law enforcement beyond the intellectual strata, then Stammler and Bergbohm, in the climate of the dissolving state legislature, obviously also drawing on impulses from the atmosphere of the time, discovered Kant's inconsistency and provided the state legislature with a law without constraints of reason. In the early 1930s, the Hungarian Gyula Moór dealt only with the idea of natural law in a spirit of total rejection (Moór 1994). But in American legal theory, too, all pathos regarding human rights had already disappeared by the beginning of the 20th century, and Holmes, Roscoe Pound and the legal realists spoke with the most brutal candour about the camouflage of arguments under the guise of human rights and the interests and political motivations hidden behind them (cf. Posner 1990; Grey 1996). All this can thus be understood as an obvious reaction to the positivisation of social processes that had taken place. This positivisation has not stopped in the last few decades, encompassing all social phenomena with unprecedented speed and expansion in the wake of technological and social development. After the Second World War, however, there seemed to be a turnaround in the field of law, and John Locke's powerful words about the inherent rights of human nature and Hobbes' notion of people living in a state of nature and bound together by contract to form a society were able to have an impact again. After the Second World War, people wrote about the eternal return of natural law, and there are still quite a number of scholars who argue that "he is value-bound and therefore sees the natural law of law as evidential". Let us try to analyse in an unbiased way what has caused the expansion of the idea of "human rights" in recent decades and to what extent we can speak of natural law in modern legal systems today. 6.3. The sociological function of human rights today The assumption of a "natural right" and of human rights that are innate to human beings is an anachronism against the backdrop of the view of human beings and society in modern social and historical sciences, but it has regained importance in recent decades. If we look at the socio-political situations in which this influence has revived, we can better understand the phenomenon. The central situation of the revival is as far removed from theoretical legal thinking as possible. The components of this situation were the military defeat of Germany and its allies in World War II, the dominance of the American military and judicial apparatus among the victors, and finally the ouster of the military, state and judicial leadership of the defeated countries, especially Germany. Few of the leaders responsible for the war could be held accountable for violations of international treaties or domestic laws, but pressure from social groups demanding wider accountability for the horrors of war has led to the need for a broader legal basis. This has been met by the reactivation of the idea of an unwritten natural law over individual states by US judicial officials and some legal policy groups campaigning for accountability. In America, part of this was the rapid abandonment of the ideas of legal realism, which had been the dominant legal view for some years, but in this climate the comparison of the views of the then celebrated Chief Justice Holmes with those of Hitler can also be attributed to this (Duxbury 1993). In Germany, the use of the natural law concept of 'lawlessness' in the Nuremberg trials was another offshoot of this. At that time, advocacy of the revival of natural law was not a theoretical act, but a reaction triggered by political-ideological necessity (see the excellent analysis by András Karácsony: Karácsony 2000:30-33). The fate of Gustav Radbruch's "formula" is a good example of this character. In 1946, in the atmosphere of preparation for the Nuremberg Trials, he basically just repeated the formula of the duty to resist the law, long since developed by scholastic natural law doctrine, and with an effect that almost eclipsed his entire life's work, secured for himself the reputation of the "great jurist" in the eyes of certain legal-political groups and intellectual camps. In a 1977 Hungarian edition, he formulated: "... a positive, written law, laid down in a rule and guaranteed by the authorities, would have precedence, even if it were unjust and inexpedient in content, unless the opposition of the concrete law to justice became so intolerable that the law, as a "false law" of justice, would have to take a back seat" (Radbruch 1977: 136). Fifteen years earlier, in 1931, Gyula Moór had formulated this basic idea: "The scholastic conception of natural law (...) distinguished between the "manifestly immoral" and the "merely unjust" commands of power (...) The "manifestly immoral" is not law (...), while the "merely 310 unjust" must be satisfied in the interest of the rule of law and legal certainty (Moór 1994:91). Radbruch argued for the rightness of the subsequent prosecution of judges for applying National Socialist law, which he qualified as "non-law", regardless of the fact that judges would have risked their lives if they had not done so, "... because the judicial ethos must strive for justice at all costs, even at the cost of its life" (Radbruch 1977:138). It is worth comparing this view with that of Helmut Coing, also from this period (1947). In his view, natural law transforms moral commandments into legal commandments that are not justifiable but are important as moral commandments. However, the non-observance of moral commandments does not lead to criminal sanctions: "... the natural law is morally justified, and its application is a commandment of the moral law. Its implementation - despite all the dangers - deserves great recognition. Its non-compliance may in some cases leave a moral stain on the individual, but it cannot be a basis for criminal liability in the positive-legal sense (Coing 1996:191). This idea was originally described by Coing in 1947, almost at the same time as the "Radbruch formula", but it never subsequently became famous as the "Coing formula". The political-ideological necessity was then expressed by Radbruch. In Germany, the attempt to revive natural law soon fell silent and the Nuremberg Trial established itself in public opinion and German legal life as the final act of the war rather than a true act of justice. Even the German constitutional jurisdiction, which was created under American pressure, worked with a stricter legal, legal dogmatic argumentation after a few initial judgements in the 1950s and generally did not use the arguments of human rights and natural law ideology. In contrast, legal developments in the United States have given greater importance to reactivating the idea of "human-born" human rights. Until the end of the 19th century, under the influence of Blackstone, most legal scholars in America understood judicial precedent as the emergence of unwritten natural law norms, and statutory law was still marginal alongside this body of law. The expansion of the legal corpus and the deepening of legal theoretical considerations, which intensified towards the end of the century, displaced the idea of natural law here in Europe. The "progressive" legal theory and its successor, the New Deal, advocated a political programme of law created by active state legislation, while the legal realists who followed them advocated law created by free judicial decision and based on social science and statistical findings. Moreover, an important development in the early 1900s was the decline not only of the idea of human rights in the United States, but also of the idea of judging on the basis of constitutional rights. The infamous "Lochner ruling" of 1905, declaring progressive laws unconstitutional, became a symbol of activist judicial abuse and for decades defined the attitude of American legal and intellectual circles to basic constitutional rights that were superior to those of the legislature (Duxbury 1993). This situation has changed fundamentally in American legal life since the mid-1950s. If we look for the reasons for this situation, it should be pointed out that the emigration of European intellectuals that began in the 1930s gradually produced a new dominant group in the academic-intellectual sphere of the USA and in the sphere of mass media, which gradually disintegrated and became an independent political force. This change opened up new fields of struggle in American domestic politics for political struggles between the economic-capitalist groups, with the finance-capitalist groups being strengthened at the expense of the industrial-agricultural groups. In the 1950s, given the massive legislative domination of the judiciary, there was an increasing possibility of gaining ground through the judiciary, a condition created by President Roosevelt's earlier change in the composition of the judiciary. In contrast to the "hopeless" conservative majority in the federal and state legislatures, the existence of a federal judiciary that was more open to the radical social changes desired by the financial-economic capital groups created the conditions for the reactivation of the human rights ideal from the late 1950s onwards (see Epp 1998; Duxbury 1993). The strategy of change, based on fundamental constitutional rights and directed against the will of the legislature, reached its peak in the 1960s and brought about changes in theoretical legal thinking in addition to changes in practical legal life (e.g. the rise of movement jurisprudence and mass suits for constitutional rights). John Rawls' theory of justice, which reformulates Hobbes' and Locke's original concept of the state of nature and the idea of the social contract, attempts to make the idea of universal principles of "eternal law" scientifically acceptable by eliminating the naivety of the past. Already at the height of the "fundamental rights revolution", Ronald Dworkin attempted to create a legal-theoretical basis for a 311 moral-philosophically based assessment of fundamental rights that is above the law (Dworkin 1977). The problematic nature of these attempts has already been pointed out by Jürgen Habermas, who is otherwise sympathetic to their political aims (Habermas 1992:88-90). We would only like to highlight here the induction of this attempt through political-ideological struggles. What is important for this revival of natural law is not the theoretical level. The works of Rawls, Dworkin and other authors of their direction can remove the obvious anachronisms in the idea of natural law and thus avoid a quick rejection of these views at the level of theoretical debates. But the participants in thousands of everyday constitutional cases and the litigants of millions of ordinary people are just as naive about the idea of human rights being "born with man" as they were hundreds of years ago in the minds of Hobbes and Locke. It is not the theoretical foundations but the day-to-day ideological-political necessities and the powerful financial and intellectual forces behind them that ensure the influence of human rights ideology (cf. Charles Epp's analysis of the emergence of the American fundamental rights movements - ACLU etc. - and the financing background of the banker-finance circles in this context: Epp 198:21-27; similarly on the development of "cause lawyering", the organisation of "lawyers for the good cause", Sarat/Scheingold 1998). The new European political arena that has emerged since the 1990s also represents a new area for applying the idea of human rights to political needs. This idea already played a certain role in the overthrow of the one-party state systems here in Central and Eastern Europe since the 1970s in the wake of the Helsinki Convention, although their demise was mainly caused by their economic inefficiency and the financial and economic pressure that Western banking groups made of it. In the new European political arena, from the 1990s onwards, the human rights dimension became a central aspect of the control of the Council of Europe, which oversaw the pan-European integration of the democracies of Central and Eastern Europe. This body, which has been based on the European Convention on Human Rights since 1949, was not particularly important in the context of the Western European countries for a long time, precisely because the revival of natural rights quickly lost its importance in the post-war period. In contrast, the new democracies of Central and Eastern Europe have received extensive control since the early 1990s, and their internal legislative struggles have been most intensely influenced by political groups using the Council of Europe's forums in Strasbourg and fighting for the ideological cause of human rights. The pan-European control of the new Central European space has thus been built in large part on the basis of natural law and natural rights arguments, and it is this practical-political dimension that has kept the idea of natural rights high on the agenda in the region in recent years. In addition, the new Central and Eastern European democracies have developed a much stronger constitutional control of legislation and empirical political will formation than was ever possible in Western European countries. These are the main political-ideological determinants that have revived the now defunct idea of natural law and given it a far greater and stronger influence than some Catholic natural lawyers and other moral philosophers. From a general social-theoretical basis, however, and with a view to the allround positivisation of social processes, one can only be sceptical about its prospects. 312 Chapter XI Empirical Sociology of Law: The Sociology of the Judiciary Decision-making The analysis of the judicial decision-making process from different angles has already been discussed in several chapters, especially in the section on sociological issues. These are complemented by two empirical observations and analyses. The first part introduces a "participant observer", a German sociologist of law, who has studied the everyday decision-making of German judges, and the second part presents a selection of the empirical decision-making analyses we have conducted. 1. Observation of the German judicial decision-making process After his law studies, Rüdiger Lautmann, a German, started studying sociology and wanted to do a sociological study on the facts and influences that determine judicial decisions. The most obvious way to do this was to take advantage of the opportunity his law degree offered him to apply for a job at a lower court and work there as a court assessor for a year. Unaware of the actual research work, Lautmann was treated by his colleagues, the other judges, like a novice judge who would make a career in the judiciary, and so, as a participant, he was able to observe the judicial decisions and the crucial facts and contexts that regularly emerged in the process from the inside in the best possible way. In the course of a year, as a member of the Judicial Council, he was involved in hundreds of judicial decisions, in many of which he also acted as rapporteur. Most cases were of a private law nature, but he was also assigned to a criminal judge when necessary. The most important findings are summarised below. 1) Formal and informal decision-making programme. In their decisions, judges are guided by the formal decision-making programme and, in addition, by the informal decision-making programme, both in substantive and procedural terms. The formal decision-making programme includes the relevant statutory and other positive legal materials, the decisions of the higher courts (both the Federal Court of Justice, the Federal Supreme Court and the relevant decisions of the Higher Regional Court, the Higher Regional Court) and the positions of the legal literature, especially the positions of the commentaries. Lautmann emphatically emphasises that, in his experience, the relevant decisions of the Higher Regional Courts play a major role in shaping judicial decisions. It appears that even the decisions of the BGH are not fully followed by the lower courts until the higher OLG has switched to them. This shifts the "hierarchy" of higher court decisions, and the next lower higher court is more important in many cases. (By the way, there is similar information from the environment of a domestic judge who decides on civil cases, and according to this, judges in this country also pay very close attention to how the judge of the immediately higher court that decides on the cases they are appealing has previously decided similar cases.... ) Reason: strong "aversion" of judges to appealing their judgments and changing their decisions. The informal programme, on the other hand, consists of the judges' value preferences, which are the actual starting point for judicial decisions. It determines the direction in which the judge searches for the norms that best correspond to this value preference. However, Lautmann repeatedly points out that judges will remain faithful to the guidelines of the formal programme if the formal programme 313 does not allow for value-based decision-making. Thus, the recognition of ultimate fidelity to the law appears repeatedly in the results of the analysis, even though Lautmann repeatedly suggests that he is committed to left-liberal values and is well versed in the theory of one-sided class justice. However, it is also clear from his descriptions that legal provisions generally give wide scope to the determinative power of an informal programme according to value preferences. "For a court judgment, the formal programme is primarily the positive law represented by statutory norms, common law norms and judicial law. It also includes precedents that have not yet evolved into judicial law and the literary opinions of legal scholars. The informal programme consists of non-formalised, i.e. non-official norms and values (...) they are the basis for decisions beyond the law, which the jurist obtains from nonconstitutionally legitimised sources and which he does not set out in his argumentation" (Lautmann 1972:18). The bearers of these norms are the upper middle classes of the population, the family, acquaintances, colleagues, political parties, churches, interest groups, mass media" (Lautmann 1972:18). 2) The primitiveness of legal fact-finding, says Lautmann (p. 49). Only the normative side is prepared for the lawyer in legal training, the factual side is simply there, and he behaves like a normal person, even when dealing with complex issues. There are a number of presumptions that are condensed into factual assertions in recurring cases. For example, in divorce cases - at least before the Regional Court - the question of the "breakdown of the marriage" is based on the assumption that if the divorced parties have slept together again, had sexual intercourse again, they have forgiven each other for all actions that led to the breakdown of the marriage. (The BHG, on the other hand, does not, writes Fritz Jost in his work "Soziologische Feststellungen in der Rechtsprechung des Bundesgerichtshofs"). It is thus a series of stereotypical factual assertions, already abstracted from the details and already fixed in terms of the applicable norm. In other words, the "local value" of real facts is replaced by a collection of facts that is already prepared, abstracted and adapted to the norm. Later, he writes more generally about fact-finding that fact-finding oriented towards a chosen norm leads to a general bias against the completeness of the real facts: "In fact-finding, orientation to the norm always results in the judge looking for facts in relation to a particular procedural outcome" (Lautmann 19722:146). These are the "conclusive allegations", i.e. the findings that are directly relevant to the norm. The judge is genuinely softened by the fact that he finds such facts in the pleadings and attaches less weight to their truthfulness. The facts thus have more of a legitimising function and are often replaced by fictions that are generally accepted in judicial circles (see the fiction of forgiveness arising from the spouses' one-time sexual relationship in divorce cases). 3) The formalised character of the source of information in fact-finding: "In the construction of reality, what matters is the role of the person who provides the information in the process. It does not matter whether it is a litigant, a witness, an expert or someone else. For example, what the plaintiff says in his own favour is irrelevant, but what he says in favour of the defendant is considered truth. A litigant may act as an expert witness in support of his or her own claim, but only if the opposing party agrees. The litigant must therefore first slip into this role of the person giving evidence" (Lautmann 1972:52). 4) Informal fact-finding: If, for example, the plaintiff has already been before the court in a previous case, the characteristics known from that case, perhaps also the facts of the case, are used by the judges in this case, but not referred to. For example, the income situation of a litigant was uncovered in a previous case decided by the current court and is now taken from there," Lautmann gives an example. 5) Excessive abstraction from the facts: Even if only the facts established by the legislation are relevant in a case, a broader view and a careful examination of a number of facts allows for a better application of these rules. In contrast, judges try to consider as few relevant facts as possible in their decisions. That is, if there are more, it only affects the simplicity of the decision. The novice soon notices this when he perceives the constant rejection of his older colleagues towards his overly broad fact-finding. There is also a push for a quick selection of alternative decisions: "The chairman of the judicial council tells me: First find a thread to work on the case if you want to make a decision, otherwise you won't get anywhere. It is of no use to pick up something here and then start weighing other evidence there (Lautmann 1972:61). So it is better to first develop a quick overall version of the case and then look only for the facts that fit it, than to search hesitantly, weigh several versions in 314 parallel and then look for unbiased broad facts - this is how the realistic judicial fact-finding process can be summarised according to Lautmann's observations. On the basis of a few facts, the judge makes a first impression of the factual situation, and this is his most important "preliminary decision" that leaves the deepest impression. 6) Acceptance of the selection of extraneous facts: Not only the judge selects the facts, but also the litigants inform the judge in a reduced form. The judge usually accepts this reduced presentation of the facts. Although the procedural rules also allow the judge to add to the facts presented by the parties, in most cases, in fact, only the facts presented by the parties are put into evidence: "In most evidentiary proceedings - in private actions - only the facts that have been expressly presented by the parties are put into evidence. The judge here usually allows himself little imagination to explore alternative and additional facts, although the formal procedural programme allows for this (cf. 139, 142-144, 272b ZPO)" (Lautmann 1972:63). Lautmann also writes later that judges exercise their discretion with great restraint in the procedural matters before them. It is also typical that judges pay less attention to the "raw factual submissions" of the parties than to the already legally reduced factual submissions of their lawyers. In one case, for example, the party present wanted to tell what had happened, but the judge interrupted him: "Just let your lawyer speak!" (S. 65). And especially the plaintiffs from the lower classes were ignored by the judge. 7) Argumentative slogans, argumentative figures in abstraction from the facts: If a fact is not to be taken into account in establishing the facts, judges simply say it is "unsubstantiated", i.e. not sufficiently substantiated (substantiate = explain in detail), and so such a fact is ignored. Similarly, an objection to the assertion of a counterclaim in one case was rejected by the court on the grounds that it was merely explained but not elaborated upon. It is therefore as if it had not been raised. However, the extent to which a detailed explanation is sufficient is for the judge to decide. This implicitly allows for arbitrariness, which is covered up by the "magic word" (unsubstantiirt). Another possibility is to ignore a fact if the evidence is considered insufficient. "The allegation remains disputed", the judgement states, and is thus excluded from the findings of fact (p. 69). 8) Additional findings - There is a collegial relationship between judges and lawyers, and much arises from this. For example, in one case, a lawyer requested the judge to recuse himself and later filed a constitutional complaint, whereupon the Chairman of the Judicial Council remarked during the judge's deliberations inside that "this lawyer will come out on the street" (a somewhat Hungarian translation), i.e. he will later request something else that falls within the judge's discretionary powers, and then he can make up his own mind. But usually both sides know that they have to restrain themselves in the interest of continuing good relations. - Many judicial decisions where discretion exists are driven by the need to save work. For example, if a proposal can be settled with a signature, freeing the judge from a lot of work, or even closing the whole case, this can actually be crucial for the proposal to be fulfilled. "Labour saving, rewarding contact with lawyers, the prosecution and passivity are the three important aspects that strongly influence the informal decision-making programme" (Lautmann 1972:141). In addition to value preferences, informal programmes are thus strongly influenced by such "down-to-earth" aspects. - Judges are very concerned about the possibility of an appeal against their judgment, as this could lead to a two-way conflict: with the higher court if it changes its decision, and with the litigant. Therefore, they often rule in a particular direction on detailed issues to reduce the incentive to appeal. If a party's lawyer argues very hard and there is a fear that he will appeal, and he exhausts all legal and procedural options available to him on appeal, judges will often give in, even if the other party is worse off than his legal position would allow, because judges want to avoid legal complications. So the aggressiveness of lawyers using every legal avenue and avenue of review has an effect. "A man is on trial for forgery of documents and there is even a charge of forgery of public documents. However, it is feared that the evidence for this will be considered insufficient at the trial. The President of the Judicial Council says: "Forgery is enough". In other words, he would rather leave forgery aside. "We must always back up our convictions with resistance to change. With forgery of public documents, this is difficult. Then we prefer to take less and give it an appropriate measure of punishment" (Lautmann 1972:167), i.e. the difficult to prove is left out, but the rest is punished more to compensate for the omitted crime.... 315 The fear of an appeal and reversal of the decision is linked to the following case. In a conversation with a judge, Lautman said: "One of our prides is that our decisions are very rarely changed on appeal, maybe once a year" (Lautman 1972:167). 9) The difference between drafting a decision and presenting it in the reasoning (executing and presenting). One can also say that the judge finds the decision with the informal programme and then all the work is spent on providing it with a legal basis for the decision. But the actual search and the presentation are two different tasks. So the work of presentation, of formulating a judgment, is much more extensive than one might think. A survey has shown, for example, that judges spend almost a third of their working time giving reasons for their judgments. Of course, what cannot be justified is not chosen by the judge in advance, so there is the possibility of justification later in the decision, but the two activities can often be completely separated. It is much more intuitive to formulate an alternative decision and then provide the legal basis for the decision by carefully listing legislation, precedents and literature opinions. And the jurist actually learns to present his or her decision as lawful, and the actual rationale for the decision is taken by the judge from elsewhere. For this reason, judges often already agree on the decision, but the debate revolves around how it can be justified and normatively supported in the most plausible and legally compliant way. Judges often cite a number of precedents to justify their decisions in order to prove their neutrality and correctness, even if this basis for the decision would no longer be needed in the judgment. Even though these precedents may not have played a role in the actual decision. 2. The observation of the Hungarian judicial decision-making process Inspired by Lautmann's example, I myself tried to take a closer look at the actual process of judicial decision-making, and if I could not take on a judicial job as easily as he did in Germany because of the regulations in this country, I at least tried to study the course of court proceedings in the court archives. In the summer of 2002, I received permission from the President of the Metropolitan Court for which I would like to thank him at this point - and at my request, the complete files of 25 civil and just as many criminal cases were made available to me. I was able to study them under good conditions in the courthouse and use them in my academic work, while maintaining data protection. The 50 cases were trials of varying length and complexity and consequently represented varying amounts of material to be studied. Some cases comprised more than a thousand pages, others only one to two hundred pages, but in total there were still thousands of pages to analyse. However, by reconstructing the parts of a case that were directly legally relevant (and the evidence for the relevant factual elements), the thousand-plus page case files could be reduced to a few hundred pages per case, so that in-depth analysis was now possible. Since I could not photocopy the transcripts, it was only possible to extract the most important details of the decision-making process from them by taking detailed notes, which forced me to reconstruct them accurately and separate the important from the less important parts. Nevertheless, I was only able to record the outline of the process of the 50 trials in hundreds of pages of notes. In the following, I would like to highlight some of them. It is also important to point out that what is published here is only of value insofar as it reflects the actual judicial decision-making processes that took place in a Hungarian court in the 1990s. But how often they occur in the hundreds of thousands of Hungarian court cases that are brought every year is not answered. Rather, it can be assumed that in a court system that converges in a single judicial hierarchy, there will hardly be too much variation, so that what can be seen here in one case is likely to occur in a similar way in other cases. I would also like to point out that from the fifty files reviewed, I highlight those cases that deviated in some respects from the ideal judicial decision, or from simply conforming to the statutory facts, and offered judges more open-ended situations - even with conflicting decision-making options. The title of the civil case P. 26793/1998 could be "a judicial decision at an impasse" if one wants to highlight the main lessons. This was a dispute between two publishers of a pharmaceutical monthly magazine dating from autumn 1996, because the departed editorial staff of the plaintiff publisher's former magazine had published another magazine with a similar name and format and the plaintiff 316 therefore sought a declaration of unfair market practices and an injunction against the other publisher as defendant under the 1990 Act of the European Court of Justice. It is prohibited to manufacture or market, without the consent of the competitor, goods having a distinctive appearance, sign or name by which the competitor or his distinctive goods are commonly recognised. The defendant, who had engaged in obvious delaying tactics, was dismissed by the single judge of the Metropolitan Court of First Instance in accordance with the plaintiff's application, against which it appealed to the Supreme Court. There, the court of second instance set aside the first instance judgment due to a procedural error and ordered a new trial. The trial should have been conducted with the participation of two sitting judges. The same judge then reopened the trial in December 1998, now with two judges, in a single hearing, more than two years after the trial began. According to the record, this was merely a formal repetition of the facts and points of law established in the previous first instance proceedings, this time in the presence of the judges. The defendant, however, pointed out a decisive change in the situation, namely that since March 1997 it was no longer the publisher of the magazine it was accused of publishing, but the Regional Chamber of Pharmacists, and proved this by producing the magazine whose imprint it alone publishes. Since the main claim in this case was for an injunction against further publication of the magazine, it was obviously not possible to bring the case to a satisfactory conclusion without suing the new publisher. However, according to the plaintiff's submissions, the licence is in the defendant's name, so I contend that the defendant is the publisher of the magazine. This was contradicted by the imprint of the paper produced, but the judge did not take this into account. He did not ask the plaintiff to prove his claim, e.g. by producing a copy of the driving licence, but closed the hearing and immediately pronounced judgement. In the same judgement, he sentenced the defendant literally in the same way as in his previous judgement and forbade the publication of the newspaper. The convicted defendant appealed again and the Supreme Court again issued a second instance judgment at the end of March 2001. With this judgement it implicitly accepted the defendant's claim that the identity of the publisher had changed since March 1997 by setting aside the judgement and convicting him only of the infringement committed up to that time. However, since the Chamber of Pharmacists, which has published the magazine since then, was not sued for the judge's inaction during the first instance proceedings, it was allowed to continue publishing the magazine. Although this action was thus concluded - and the judicial finding of infringement had to be published in the competing journal and in a national daily newspaper - the plaintiff's most important claim, namely the prohibition of further publication of the competing journal, was not granted. The passivity of the judge, who was "tired" of the repeated first instance proceedings, basically led the four and a half year long litigation to a dead end and the plaintiff could now start her litigation all over again with a new defendant by filing a new suit, but was basically back where she had been years before, even though she had won the case. The civil case P. 23238/1991 deserves special mention only because of the particularity of its argumentation. The case was brought in September 1991 between the inventor of a service invention of an electrotechnical industrial institute and the successor of the institute after its conversion into a public limited company, concerning the payment of the inventor's remuneration. The institute had contributed the four inventions, in which the plaintiff inventor had a quarter share, to the limited company as a contribution together with its other inventors as owners of the service invention. The defendant's representative conceded that the contribution constituted a transfer of ownership and that the inventor, who held a quarter of the shares, was therefore entitled to remuneration, but denied that a remuneration contract had been concluded between them concerning these inventions. The plaintiff submitted four other contracts of remuneration for other inventions, conceding that the inventions at issue were not among them, but requesting that the court determine the remuneration for the inventions at issue by analogy. It should be emphasised that the plaintiff inventor's lawyer was one of the senior lawyers at the Bar and was able to obtain a transcript and legal interpretation from the IM's Economic and Legal Department (!) to support his claim in this case (in October 1992!). A judgment was then attached in another similar case against the successor to the Institute of Electrical Industry, in which a different jury awarded 50% of the value of the invention, and on this basis the plaintiff's lawyer applied for an award of this amount here too. In his judgment, the single judge upheld the plaintiff inventor on all points and confined himself to recalling the findings of the other panel which had awarded 50% and to stating that "the plaintiff's claim, as so amended, is well founded". However, no reasons are given as to why he so decided against the counter-arguments raised in this application 317 and why he did not set a different percentage as requested by the defendant. In this case, therefore, the judge formally relied on the judgment in another parallel case. The civil case P. 20229/91 was a community of property case and can be seen as a textbook case of a completely open case according to the legal rules, which the judge decided only by grouping the facts in a certain direction, although it would have been at least equally legitimate to group them in the opposite direction and then make a polar opposite decision. If such cases were very common in a legal system, the thesis of the "critical legal studies" movement would be largely true, that there are always two opposing legal solutions to a case and that the case thus left open is in fact always decided on the basis of the respective person of the parties, the political and ideological values of the judge beyond the law. It should be noted that there were no more such open cases among the civil cases we studied, so our study does not support this thesis of the CLS. The divorced defendant moved with her child from a village near the capital into the plaintiff husband's house in Budapest at the end of 1977 and lived in a joint household, in a partnership, until 1988. In the meantime, the wife bought another house for 220,000 forints, which her former husband had paid to move out of the house in the village, sold it in 1982 for 350,000 forints and started building a house after buying the empty lot next to her new partner's house. In the meantime, they lived together with the plaintiff, she cooked, washed and cleaned the flat - together they provided for the household's financial security - and he worked on the construction of the new house, the work being done mainly by masons and casual labourers. During this time they also bought a property together, one quarter of which was in the names of the plaintiff, his mother, the defendant and his daughter. The cohabitation ended in the summer of 1988, and after the defendant wife moved permanently into the completed house, he claimed the value of half of the new house as his share in the community of property after the cohabitation ended. After this was refused, he brought an action in the Metropolitan Court in early 1991. Cohabitation is defined in Ptk. Article 578/G of the Civil Code then regulates as follows. If the share of their contribution cannot be determined, it is deemed to be equal". Case law emphasises that the recognition of a community of property requires not only an emotional bond but also an economic bond between the partners in order to establish a community of life. In the present case, the plaintiff claimed that joint administration had been established and that he had also carried out a number of works on the new house under construction as part of the ongoing mutually beneficial works, and therefore claimed half of the value of the new house in connection with the division of the community of property. The respondent wife, on the other hand, argued that although they had shared a household for several years, they had agreed exactly how they would divide the costs between them and that she and he kept separate savings accounts. Furthermore, he was only involved in a very small part of the construction of the new house: He helped dig the foundations of the house for three days and prepared the walkway around the finished house. During the subsequent examination of the witnesses named by the parties, it was essentially established that he had worked more on the construction of the house than the accused had admitted. According to the testimony of one witness, he directed the workers when the accused was not present at the construction site. The workers stated in their testimonies that they and the woman bundled the vegetables bought by the man at wholesale prices in the cellar at Bosnian Square - which he sold in various grocery shops after prior arrangement - and the workers were then paid jointly by the man and the woman. Most of the testimonies thus pointed to the existence of joint farming. It is true that the neighbour testified that the accused once ran to her house because the man wanted to beat her, and that he then came to her house and called her rude names, and that the accused then stayed in her house for a week because of the man's rudeness. The witness also stated that since then she had an angry relationship with the accused. After four years of proceedings at first instance and 13 hearing dates, the judgement was handed down in January 1995, whereby the plaintiff's application for the award of half of the value of the new house in the context of the separation of property was rejected. In the reasons for the judgement it is pointed out that the husband and the wife had separate savings books and that the husband denied the existence of the separate savings book in the early stages of the proceedings and only later agreed to the court contacting the OTP to obtain details of the savings book. The plaintiff's lawyer pointed out in his appeal that only the defendant had expressed this in a statement, but that this had not been discussed at the trial, so that the judge had made an undocumented argument in his reasons. The plaintiff's lawyer also disputed in his appeal that the existence of separate savings books precluded the 318 existence of joint administration, as is now common for many spouses. However, the Supreme Court of Appeal upheld the first instance judgment, as did the Supreme Court Chamber of Appeal in appeal proceedings. At the opening of the appeal proceedings, the plaintiff's lawyer also pointed out that the lower court in its decision accepted the defendant's arguments in their entirety and did not give reasons for the rejection, ignoring the testimonies of witnesses to the contrary. In the appeal judgement, this was admitted but not considered an error of law and the judgement was upheld. The extent to which the opposite could have been decided in this case is shown by a decision in another similar case, published as BH 1994/6 no. 252, which has just been concluded. Here the situation was reversed in that the plaintiff wife, after living together for many years, sought a declaration of community of property and, because of the termination of this relationship, a division of the property, while the defendant husband denied that there was joint administration beyond the emotional and intimate relationship. The court of first instance found that there was joint administration and ordered the division of the property. The defendant appealed and since the plaintiff wife, who was part of the household, after some time only received a disability pension and the defendant husband had the greater income and also managed the money exclusively, the court of second instance found a "limited partnership". The plaintiff appealed against this, arguing that the Civil Code did not recognise the concept of a "limited partnership" and that if it could be established to some extent, but not the proportions of the acquisition, there must be a presumption of equal acquisition. The Supreme Court recognised this argument as valid and the judgment was "based on the Civil Code". In the case we examined, it was difficult to decide otherwise, and one can only speculate as to what the judge's actual motivation was in this case. Civil Case P. 26818/93 concerned a copyright dispute between a translator and a publisher, which is worth highlighting because of the totally inadequate preparation of the lawyer representing the case and the consequences that followed. For almost two years, the case involved a completely unprepared lawyer being gently guided by a judge specialising in patent and copyright cases to find out the relevant facts and legal provisions, and when the lawyer finally came forward and was able to formulate a legally supported claim, he and the defendant agreed on a settlement and the case was settled. The translator translated a crime novel from English in the 1980s, which was published by a publisher at the time and republished without permission by one of the many new publishers that emerged in the early 1990s, with his name given as translator. The translator, as plaintiff, sued the publisher, as defendant, for payment of the translation fee and hired a lawyer to conduct the lawsuit. The lawyer initially filed the lawsuit with the Pest Central District Court, the PKKB, in September 1993, but a month later the court informed him that according to the clear provisions of Article 28 of the Hungarian Civil Code, patent and copyright cases fall within the jurisdiction of the Municipal Court, so the wrongly filed lawsuit was transferred there. In February 1994, the Metropolitan Court judge hearing the case issued an order asking the lawyer representing the plaintiff to state, in addition to the generally requested translation fee, how many pages the translation would consist of. The lawyer replied that the translation comprised 339 A5 pages and that the amount to be awarded should be HUF 300 000, as he considered a fee of HUF 800 per page to be justified. Six months later, in June 1994, the first hearing took place and, although the defendant or his representative did not appear at the hearing and it had to be adjourned, the judge pointed out to the plaintiff's lawyer, on the basis of the copy of the disputed work presented at the hearing, that the imprint of the book also indicated a different publisher from the one the lawyer had previously named as defendant. The lawyer, who looked at the book he had brought with him, agreed with the judge and stated that he would now apply to add this publisher as a defendant. The judge, who specialises in copyright cases, also asked the plaintiff's lawyer if he could perhaps state the amount of his claim based on the relevant legislation. It is not clear from the record whether the judge gave the lawyer a more specific indication of this request, but the fact is that the lawyer then found Decree No. 1/1970 MM (20.3.1970), which sets out the exact amount of translation fees. Thus, the plaintiff's lawyer had already specified his demand and reduced his request for 9.66 sheets of translation to 29,000 HUF instead of the 300,000 HUF originally demanded. Finally, another publisher was found, as stated in the imprint, and since this amount was already acceptable to the two defendants' lawyers at the hearing, a settlement was immediately reached at the hearing in March 1995. In the settlement they agreed to pay a translation fee of 25,000 forints 319 out of court and the judge discontinued the proceedings. This could have been done very quickly with knowledge of the relevant legislation and the appropriate level of the court, and in fact it was the lawyer's totally inadequate preparation that led to this case starting in the first place and lasting almost two years. As far as the criminal cases examined are concerned, it seems appropriate to highlight three cases when following the selection criterion of presenting those that deviate from the average application of the law. This also means that in the majority of the 25 criminal cases examined, there was no distortion of the legal assessment in the other cases and both the presentation of the facts and the correct resolution of the legal issues were within the expected range. After reviewing the documents of criminal case 41/95, it is difficult for the analyst to escape the conclusion that the conviction of the accused was necessary in the interest of the Republic of Hungary - at least from the prosecution's point of view - rather than because of the actual acts and the evidence of these acts. Let us look at the course of the case. - On 3 November 1994, at about 8 p.m., at an underground stop at an intersection in the capital, two well-built - tall and muscular - black men aged about 35 and three youths of medium height aged between 17 and 20 (the presence of a fourth man of similar age is disputed), wearing bomber jackets and with their hair cropped short, confronted each other on the wide roadway as they crossed the pedestrian crossing. The white youths claimed that the arm of one of the black men hit one of them on the shoulder, whereupon he turned around, whereupon the black man hit him, whereupon he fought back. The black guy in question, on the other hand, claimed that he saw the middle one of the opposing "leatherheads" trying to hit him when they started to cross the roadway and did so, and when he turned around, another one kicked him, causing him to fall, but he immediately got up again, but then the third guy kicked him in the knee. - There was pushing and shoving on the pavement, although the opponents gave different accounts of what happened, and when the traffic lights turned red and the cars started moving, they went back to the pavement by the metro stop and argued. Here a passer-by approached them and tried to separate the arguing parties by making the black men understand - "Are you one of them?" - that he was a police officer, despite his civilian clothes, and showed his ID. In the meantime, someone - who was not found and did not come forward as a witness - called the police patrol and said, "Leatherheads beating up black men", and since the XIVth district police station, the following events took place and the following witness statements were taken: - The police patrol discovered three youths in bomber jackets confronting the blacks at the scene and immediately handcuffed the youths. The police officers, the boys later testified, laughed out loud at the boys' indignant apology that "the big black man started beating them and they were the ones who were really the victims". - The plainclothes officer stated that he did not see a fight on the pavement, but only some commotion, and when the youths returned to the pavement and argued with the blacks, he approached them to prevent a fight. During the argument, he said, he did not hear any insults about skin colour, as the blacks claimed. "In an attempt to prevent a fight, I tried to detach the hand of the black man, who was about six feet tall, from the child's hand, but I did not succeed," he stated. - One of the black men, who stated on record that he was slapped and then kicked, said that when he returned to the pavement, the youths saw a scandal and wanted to leave, but he refused because someone whispered to him that they had already called the police. Then the plainclothes policeman came and after identifying himself, he said that "nobody can leave now because the authorities are already here". The plainclothes officer also said that he had not called the patrol and was surprised when they suddenly appeared. - The handcuffed youths were taken to the police station and during the night they and the black men were questioned and one of the black men filed a complaint. In it, he reported five or six boys and girls who attacked them, kicking and hitting them where they could. - According to the black victims' statements, the patrol officers described the scene as follows: "A group of 5-6 skinheads surrounded them and started insulting them, after which violence ensued, with one of them punching a black man in the face and his partner being hit in the chest by one of them". During the search, the patrol did not find any boxer shorts and the black males claimed that there was a fourth white youth who hit them with the boxer shorts and then fled when the patrol appeared. The white youths denied having a fourth partner and described the boxer as a guess. 320 - In their later statements, the black men only claimed that the fourth youth, who fled, only pulled a boxer in a threatening manner, but did not strike. They also amended their later statement at the scene to say that they now only spoke of one kick, denied that they had spoken of a second kick, and put it down to a language problem that it had been entered into the log earlier. Although the minutes show that the black man who made this claim had lived here for ten years and worked as a doctor, he explicitly evaded the question of the need for an interpreter before he was questioned (the reconstruction of the scene and the accurate assessment of the body positions of the whites and blacks had in the meantime made it unlikely that they could be subjected to a second kick given their position). - During the two years of proceedings and court hearings, the situation was such that the slaps and assaults admitted by both sides were only proven by the opposing claims of the accused and the black victim, but no evidence was found to support the claims of either side, and the only witness outside the court, the plainclothes policeman, was only involved in the separation, and he could only protect the white "child" from the six-foot-tall black man. Against the background of these facts, the following can be highlighted from the prosecution's case. Although the only external witness, the plainclothes police officer, testified that "no comment was made in front of me about skin colour or other potentially offensive expressions, the boys did not make any such comment in my presence". Nevertheless, the prosecutor saw evidence of racial slur against the short-haired youths, who were wearing bomber jackets. And although the black men in their first statement only claimed to have been hit with a boxer, and later repeatedly said that one of them had "threatened to take the boxer out but did not hit him with it", the prosecutor demanded a severe punishment for "hitting the black victim in the chest with a boxer" even before the verdict was pronounced in the first instance. The presiding judge, who opted for the presence of the two acting judges, based his decision on the following argument in a criminal case that was not supported by external witnesses or material evidence and in which, according to the indictment, the crime of assault was to be decided: "In the case, the victim witnesses were obliged to tell the truth, whereas this was not the case for the accused. Consequently, the court attributed greater probative value to the witness statements. At the same time, the testimonies of the victim witnesses were also contradictory, which can be explained by the passage of time and the fact that no interpreter was used during the investigation phase" (cf. 6 B. 41/1995/7 p. S. Capital Judgement, Reasons, p. 7). On this basis, the court found that the defendants had committed the offence with which they were charged and granted all three defendants a suspended sentence in view of the fact that they had no previous convictions and had never been in conflict with the law. The prosecutor appealed after the verdict was pronounced, and the Prosecutor General's Office, which granted the appeal, added the following remark to the grounds of appeal: "In applying the legal consequences, the court of first instance did not assess the seriousness of the fact that the defendants attacked foreigners on the basis of their skin colour, which damages Hungary's international reputation (...) I therefore recommend that all three defendants be sentenced to suspended prison terms". The pressure of the prosecution on the judges of the second instance increased in the course of the trial, because here the prosecutor - referring to the damage to the interests of the Republic of Hungary by the lenient sentence - intensified his plea: "I recommend to the court that all three defendants be sentenced to a short term of imprisonment to be carried out". However, the Supreme Court's Court of Appeal rejected both the defence's motion for acquittal and the prosecution's motion for aggravation and upheld the first-instance verdict. That's the end of the case, and after reading through the trial, I asked a high-ranking criminal judge whether it is common in Hungary today to convict someone in a case where the only evidence is the victim's testimony, and he said that this is absolutely out of the question in Hungary today. If the victim's claim is not corroborated by external evidence or other testimony, the accused must be acquitted. As an epilogue from the Yearbook of the Budapest Court - several years after this trial - the following appreciation can be read here, in connection with the distinction of the judge of the case: "He is associated with several famous trials, of which the so-called "skinhead trials" really made him famous (...). At that time, the public became aware of him mainly through the embassies and the press and followed his trials. In 1994 he had the opportunity to study similar cases and issues of human and minority rights in Germany and in 1995 in the United States of America. 321 Criminal Case 136-IV.-917/1993 shows the impact of the change of government on prosecution and police investigations with particular clarity. In this context, it should be noted that four of the 25 criminal cases examined fell into the category of cases that had a political flavour either because of the nature of the offence committed or because of the identity of the perpetrator. In these four cases, the importance of the political forces in the government and the internal struggles of the ruling coalition and how they affect the work of the prosecution and the police in investigating and prosecuting cases became clear again and again. In appeal and review cases, when a case was heard by several levels of judges, a judge's personal "one way or the other" became visible, in addition to disagreements over legal issues. (As will be seen in the next case, the first instance judge favoured the defendant in granting a licence so much that even the defence lawyer, in order to maintain the appearance of favouritism, applied for an amendment and a licence for a shorter period, and then, after this judge acquitted the defendant, the second instance sentenced him to a term of imprisonment to be enforced). This current criminal case was a typical case from the first years of the regime change when, in the course of breaking up and privatising state assets, the top management of large state enterprises set up their own small limited liability companies and used clever tricks to transfer state assets worth billions and hundreds of millions of euros into private hands, while keeping most of the sale price themselves with the help of these small limited liability companies. In this way, the CEOs of the state-owned companies became the biggest domestic capitalists, while the state government and the budget of the new system lost billions of dollars in revenue. It is also important to note that the winners of the "spontaneous" privatisation in the early 1990s were predominantly to be found among the supporters of the socialist and liberal democratic parties, while they were largely absent among the supporters of the national conservative forces that formed the first government. This constellation was reflected again and again in the attitude of the prosecution and the police in the course of the proceedings and in the context of the changes of government. As far as the present case is concerned, it should be noted that it lasted from 1992 to 1998 and its antecedents go back to 1990. At that time, some managers of the largest Hungarian construction company established a limited liability company in which they invested a very small amount of capital as private persons and took over as additional shareholders a large company which they themselves managed and transferred to the limited liability company in its name a valuable plot of land belonging to the large company, most of which had been rented for several years by a private company. Since this private company wanted to buy the entire plot of land, which it had already partially leased, at a discount, the limited liability company founded by the managers of the large company itself founded another limited liability company, and in addition to the eight managers of the large company, the first limited liability company to be founded also became a member of this limited liability company, which transferred the plot of land to the limited liability company as a contribution. A few weeks later, the eight directors of the company bought the site from their original partner - which was originally owned by the state-owned company one link in the chain - for 18 million and converted it into a 100% private company. Then, a few weeks ago, they sold the site to the private company that had been renting it for 60 million forints, using the 60 million forints to pay for the 18 million they had bought the site for a few weeks ago. Nevertheless, the private company that had bought the valuable land was very wealthy and the eight big entrepreneurs were able to divide 42 million forints among themselves, while the state budget only received 18 million forints. In the large company, the dealings of the company managers were public knowledge, so the union secretary filed a public interest report with the BRFK Economic Police and also filed a complaint with the Ministry of Industry. From then on, two opposing sides were formed between the authorities. The Economic Police investigated the case for some time, concluded that no crime had been committed, and closed the investigation in March 1992. However, the Ministry of Industry of the national conservative government, which opposed this kind of privatisation of socialist management, appealed against the decision to stop the case to the Public Prosecutor's Office, which upheld the appeal and ordered the police to continue the investigation. The police resumed the investigation for a while at the suggestion of outside parties, but decided to stop the investigation again a few months later, in September 1992. However, the legal department of the Ministry of Industry was vigilant, did not give in and complained again to the Attorney General's Office, which upheld the complaint and again ordered the investigation to continue, but now placed it under the direct supervision of the Public Prosecutor to prevent obstruction by the police. The police officers who were forced to investigate the 322 case then behaved more tactically, not refusing to continue the investigation but dragging the matter out for a year and a half until the case was finally referred to the Attorney General's Office in June 1994 with a recommendation to prosecute. (In the meantime, what was once Hungary's largest construction company had gone bankrupt and was liquidated). However, the change of government in the meantime, with the Socialists in power, was immediately noticeable in the "change of mood" of the prosecution. Now, instead of pushing the case forward, they ordered a post-trial investigation following the request for indictment, which lasted for more than a year without any urgency, and then the prosecution requested another post-trial investigation, delaying the judicial phase for another year. Thus it came about that the prosecution sent the indictment to the Metropolitan Court in June 1996. However, that this referral was also made more out of necessity - it had to go on as before - is shown by the fact that the prosecutor himself proposed an acquittal for lack of evidence at the sentencing in March 1998. However, the judge went beyond his proposal and acquitted the defendants for lack of criminal evidence. We will never know how the change of government towards national-civilian forces, which took place again in a few weeks, would have affected the position of the prosecution in this case... Of the four politically motivated cases investigated, criminal case 1.B. 309/95 attracted the most attention in the mass media, with headlines reporting on the progress of the case. This case concerned the criminal proceedings against two bankers who ran a partly state-owned, partly private bank and had disbursed some 8-9 billion forints of state funds in the form of e-loans to private companies, a quarter to a third of which had been reinvested in their own businesses. These activities continued until the end of 1994, during the first period of government, and the secret investigations, which had already begun at that time, reached the stage of open investigation and prosecution during the Socialist-Freidemocratic government. An important component of the political constellation was that the two bankers were clearly among the support groups of the liberal-democratic coalition partners and the bourgeois-oriented mass media they financed defended them most vigorously in public opinion, while the socialist prime minister and his entourage and their economic support groups condemned and opposed these financial groups just as strongly as under the national-bourgeois governments. This contrast between the governing coalition and the socio-economic groups supporting it explains much of the course of these criminal proceedings. The bank in question, of which two managers were prosecuted, was founded in 1985 by small cooperatives with the participation of the Ministry of Agriculture and converted into a commercial bank in 1987. But while the other banks had a solid base of major clients, this new bank had a precarious financial and organisational background. The bank was appointed chairman of the board in 1990 by the then deputy minister of finance, and the other defendant in the later criminal case became interested in the relatively poor bank in late 1991, when the government decree on the existence loan was published. This loan was intended to alleviate the capital shortage of domestic entrepreneurs and facilitate their participation in the privatisation of state assets by providing them with billions in budgetary funds through the National Bank of Hungary at a long-term interest rate of 4%. Many billions in budgetary funds were available for this purpose, but the operational commercial banks were reluctant to participate in this loan because the loan had a 15-year maturity and it seemed risky to them to repay the loan, keep the borrowers afloat or let the money disappear, which could have led to their bankruptcy. However, the second defendant in the later criminal proceedings, a Hungarian-Australian citizen who had been living abroad for decades as a representative of foreign financial circles, recognised the fantasy and bought 51% of the shares of the relatively poor bank through brokers and became majority owner in early 1992. He then became chairman of the bank and, together with the other accused, the CEO, made the expansion of e-credit the central activity of the entire bank. The bank had less than one and a half billion forints in mobile capital (which was also created by the bank consolidation financed with state money, as the state shareholding in the bank reached 30%, which was a condition for receiving the consolidation money), but by the end of 1993 had disbursed several times this amount, 89 billion forints, in the form of e-loans provided by the National Bank of Hungary. However, in the process, a quarter to a third of the state funds were returned (in some cases to varying degrees) to private companies controlled by the major foreign shareholder, giving the major shareholder a direct stake of over two billion, far in excess of the amount invested in the bank. Indeed, those who wanted to take out the loan were told that they could only expect a loan from them - and be issued a certificate 323 of loan commitment, which was a precondition for their participation in the privatisation - if they agreed to transfer a certain share of the property privatised for them from the loan to their designated private company. After several months of undercover investigations, the Economic Police raided the bank in November 1994, handcuffed the two bank managers, took them away in front of running television cameras and released them from custody after a few days. The indictment was filed in the Metropolitan Court at the end of May 1995. The indictment describes the banking practice described above, whereby the defendants granted an e-loan to a buyer only if the buyer had previously agreed to transfer a portion of the government property he had purchased to a private company he had nominated, and classifies this as a criminal offence. In the trial, which was heavily covered by the media, the mass media clearly sided with the defendants, repeatedly quoting banking experts as saying that the defendants' actions were necessary to protect the loans and the bank's security. What was concealed, however, was the fact, repeatedly emphasised by the prosecution, that the small private companies that recovered a quarter to a third of the state assets did not belong to the bank, but directly to the bank's main shareholder. Thus, in case of default, the bank remained as defenceless against the debtors as if they had not made use of this solution, which enriched the main shareholder. However, the prosecution has always emphasised this and it was one of the most important elements of the indictment. The prosecution's indictment was received by the Metropolitan Court in late 1995, but the presiding judge in the case, which involved two sitting judges, did not set the trial dates until the second half of April 1996. In the billion-dollar case, in which the defendants could be sentenced to up to ten years' imprisonment under the criminal statutes, the judge very readily granted the defendants' requests to travel abroad for months on several occasions. The records show that the judge(s) sometimes granted permission on the same day that the defence lawyer made the request. In one case on 3 November 1996 - the judge granted indefinite permission for as long as one of the defendants could stay abroad, and the defence lawyer himself wrote a new application stating that the permission would only last until 10 December, and requested a limit to the period originally granted... The judgement was finally handed down in June 1997 after numerous court hearings in which the public prosecutor repeatedly tried to prove that the two bank directors had committed the offence of conspiracy and bribery in business transactions and had thus violated the law. However, the judge acquitted the defendants on the grounds that although the offence fell under the law, there was no danger to society in the specific case. This was a prerequisite for the commission of the offence and she acquitted the accused for lack of commission of the offence. 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