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Csaba VARGA: The Place of Law in Lukács’ World Concept (1985/2012)

March 13, 2012 Leave a comment

The Place of Law in Lukács’ World Concept [1985] 3rd [reprint] ed. with Postface (Budapest: Szent István Társulat 2012) 218

Introduction: Lukács and the Problems of Law

Part One   Preliminary Skirmishes with the Questions of Law

Chapter 1   Encounters of the Young Lukács with Law   1.1 Legal Studies, 1.2 Friendship with Felix Somló, 1.3 Relationship with Gustav Radbruch

Chapter 2   Glorification of Consciousness in History and Class Consciousness   2.1 The Search for a Way Opposed to Institutions: Law as Force and as Consciousness, 2.2 Reification and the Consciousness of the Proletariat and its Dramatized Legal Conception, 2.3 Messianism as the Core of Lukács’ Preconception

Chapter 3   Provisional Summaries and Question Marks   3.1 Ruthlessness and its Trap in The Destruction of Reason, 3.2 Allusions to a Synthesis in The Specificity of the Aesthetic

Part Two   The Ontology: a Copernican Revolution

Chapter 4   The Ontological Approach as a Methodological Possibility of Transcending Socialist Normativism   4.1 The Genesis and Methodological Significance of the Ontology   4.2 Socialist Legal Thinking (4.2.1 The Revolutionary Period, 4.2.2 The Roots and Manifestations of Socialist Normativism, 4.2.3 The Need for Progress), 4.3 The Making of an Ontological Approach to Law

Chapter 5   The Ontological Concept of Law   5.1 Law as a Complex of Mediation (5.1.1 Complex of Complexes, 5.1.2 Complexes or Social Relationships, 5.1.3 The Interaction of Complexes: Mediation, 5.2 Law as Objectification and as Actual Functioning (5.2.1 The Genesis of Law and the Dialectics of the Use of Coercion, 5.2.2 Positive Law and Natural Law, 5.2.3 The Inner Contradiction of Law, 5.2.4 Legal Superstructure), 5.3 Is Law a Reflection of Reality? (5.3.1 Teleology and Causality, 5.3.2 Reflection of Reality and the Question of Incongruence, 5.3.3 The Nature of Juridical Concepts, 5.3.4 Validity as a Distinctive Quality of Law), 5.4 Law in Action: Formal Legality versus Social Optimum (5.4.1 Components of Law-Observance, 5.4.2 Law and Logic: Subsumption and Manipulation, 5.4.3 “Jurist’s World View” and the Ideology of the Legal Profession)

Chapter 6   The Ontological Approach as a Horizon in the General Renewal of Marxism

Appendix   “Thing” and Reification in Law   A.1 “Thing” or Reification in Marxist Philosophy?, A.2 Concepts of “Thing” as Fictions in the Law, A.3 Objectification, Reification and Alienation as Qualities of the Existence of Law (A.3.1 Objectification, A.3.2 Reification, A.3.3 Alienation), A.4 Conclusions

Postscript   The Contemporaneity of Lukács’ Ideas with Modern Social Theoretical Thought (The Ontology of Social Being in Social Science Reconstructions – with Regards to Constructs like Law)   P.1 Ontologies and The Ontology of Social Being, P.2 Some Key Terms of Lukács’ Ontology, P.3 The Ontology of Social Being as Applied to Law, P.4 Gattungswesen and Alienation

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Csaba VARGA: Theory of the Judicial Process; The Establishment of Facts (1995/2011)

March 13, 2012 Leave a comment

Theory of the Judicial Process The Establishment of Facts [1995] 2nd {reprint} ed. with Postfaces I and II (Budapest: Szent István Társulat 2011) viii + 308

INTRODUCTION

1. PRESUPPOSITIONS OF LEGAL THEORY AND PRACTICE

2. THE FACT AND ITS APPROACH IN PHILOSOPHY AND IN LAW   2.1. The Understanding of Facts, 2.2. The Cognition of Facts, 2.3. Brute Fact and Institutional Fact (2.3.1. Process-like Development, 2.3.2. Graduality, 2.3.3. Being Attached to Objectivisation or Self-generation, 2.3.4. Indeterminateness, 2.3.5. Relativity, 2.3.6. Historicity and the Methodological Dilemma of Cognition), 2.4. The Particularity of the Appearance of Fact in Law

3. THE IMPUTATIVE CHARATER OF THE JUDICIAL ESTABLISHMENT OF FACTS   3.1. Logic of Problem Solving and Logic of Justification, 3.2. The Difference between Cognition and Judging, 3.3. The Selective Role of Relevancy, 3.4. Fact and Case: a Mental Transformation, 3.5. The Practical Dependency and Context of Qualification, 3.6. Descriptivity Excluded from the Normative Sphere (3.6.1. Concept and Type, Subsumption and Subordination), 3.7. The Unity of Fact and Value, 3.8. The Unity of Fact and Law (3.8.1. “Question of Fact” and “Question of Law”, 3.8.2. The Question of “Ordinary Words”), 3.9. The Reflexivity of Factual and Normative Operations, 3.10. The Limited Natur of Cognition and the Indefinability of Language, 3.11. The Non-cognitive Dialectic of Normative Classification, 3.12. Ascriptivity as End Result

4. THE JUDICIAL ESTABLISHMENT OF FACTS AND ITS PROCEDURALITY   4.1. The Constitutive Nature of the Establishment of Facts, 4.2. Evidence and Procedurality (4.2.1. The Question of “Certainty”), 4.3. The Role of the Force of Law

5. THE NATURE OF THE JUDICIAL ESTABLISHMENT OF FACTS   5.1. As the Play of a Game, 5.2. As the Precondition to Mete out a Legal Sanction, 5.3. As a Non-cognitively Homogeneous Activity, 5.4. As the Reproduction of the Law as a System (5.4.1. The Claim for Normative Closedness, 5.4.2. The Openness of the Communication about Facts)

APPENDIX I: KELSEN’S THEORY OF LAW-APPLICATION: EVOLUTION, AMBIGUITIES, OPEN QUESTIONS   1. „Hauptprobleme der Staatsrechtslehre”, 2. „Allgemeine Staatslehre”, 3. „Reine Rechtslehre” (3.1. Theory of Gradation, 3.2. The Constitutive Character of Law-application, 3.3. Theoretical Question Marks, 3.4. The Theory of Interpretation, 3.5. A Procedural View of Law?, 3.6. Self-transcendence of the Pure Theory?, 3.7. Who Watches the Watchman?)

APPENDIX II: JUDICIAL REPRODUCTION OF THE LAW IN AN AUTOPOIETICAL SYSTEM?  

POSTFACE I: AN INVESTIGATION INTO THE NATURE OF THE JUDICIAL ESTABLISHMENT OF FACTS [1990/1994 & 1991/1992 & 2009]   The Investigation / What Kind of Path has been Covered? / How can we Get Closer to a Feasible Answer? / The Range of Problems in Connection with Facts / Theoretical Advance

POSTFACE II: WHAT IS TO COME AFTER LEGAL POSITIVISM IS OVER? DEBATES REVOLVING AROUND THE TOPIC OF »THE JUDICIAL ESTABLISHMENT OF FACTS« [2001]   Natural Law and Legal Positivism / Legal Positivism and its Logic / Autopoiesis in Praxis / Formalism and Antiformalism in Kelsen-interpretation / On Facts / Fact and Law / Inseparability within the Prevailing Totality / Answers in Deconstructionism

Csaba VARGA: Transition? To Rule of Law?; Constitutionalism and Transitional Justice Challenged in Central & Eastern Europe (2008)

March 12, 2012 Leave a comment

Transition? To Rule of Law? Constitutionalism and Transitional Justice Challenged in Central & Eastern Europe (Pomáz: Kráter 2008) 292 [PoLíSz sorozat könyvei 7]

TOWARDS A TRANSITION TO RULE OF LAW   Radical Change and Unbalance of Law in a Central Europe under the Rule of Myths, not of Law [1996] / Legal Scholarship at the Threshold of a New Millennium in the Central and Eastern European Region [1997] /  Rule of Law: Imperfectly Realised, or Perfected without Realisation? [2000] / Rule of Law – at the Crossroads of Challenges [2001] / Rule of Law, or the Dilemma of an Ethos: to be Gardened or Mechanicised [2007]

THE BURDEN OF THE PAST   Why Having Failed in Facing with the Past? [2003] / Creeping Renovation of Law through Constitutional Judiciary? [2005] / What Has Happened and What Is Happening ever Since (To the Memory of Deportations to Forced Labour Camps at Hortobágy) [2005] / 1956 Judged by Ethics and Law, or the Moral Unity of the Law’s Responsiveness as a Post-totalitarian Dilemma [2006]

PERSPECTIVES   Failed Crusade: American Self-confidence, Russian Catastrophe [2002] / “Radical Evil” on Trial [2002] / Rule of Law between the Scylla of Imported Patterns and the Charybdis of Actual Realisations (The Experience of Lithuania) [2004]

WHAT CAN BE HOPED FOR NOW?   In Bondage of Paradoxes, or Deadlock at the Peak of the Law we have Created for Ourselves [2007] / At the Crossroads of Civil Obedience and Civil Disobedience [2007]

Csaba VARGA: Paradigms of Legal Thinking (1999/2012)

March 12, 2012 Leave a comment

The Paradigms of Legal Thinking [1999] enlarged 2nd ed. (Budapest: Szent István Társulat 2012) 418 [Philosophiae Iuris]

1. PRELIMINARY CONSIDERATIONS

2. METHODOLOGICAL DIRECTIONS IN THINKING (2.1. The example of legal development [2.1.1. Classical Greek antiquity, 2.1.2. Roman legal development {2.1.2.1. The dikaion-period, 2.1.2.2. Praetorian law. 2.1.2.3. Justinian’s codification]}, 2.1.3. Enlightened absolutism, 2.1.4. The codificational ideal of the Code civil, 2.1.5. Turning point in the way of thinking], 2.2. The example of geometry [2.2.1. Euclidean geometry, 2.2.2. Challenge by Bolyai and Lobachevsky, 2.2.3. Einstein’s revolution], 2.3. The example of thinking [2.3.1. Autonomy {2.3.1.1. New Testament argumentation, 2.3.1.2. Cicero’s testimony, 2.3.1.3. Saint Augustine, 2.3.1.4. The Talmudic lesson, 2.3.1.5. Orthodox Christianity, 2.3.1.6. Modern “irrationalism”, 2.3.1.7. Beyond conceptual strait-jackets, 2.3.1.8. Patterns of thought, patterns of law}, 2.3.2. Heteronomy {2.3.2.1. Saint Thomas Aquinas, 2.3.2.2. Grotius, 2.3.2.3. Leibniz}, 2.3.3. The dilemma of the evolution of thought)

3. SCIENCE-THEORETICAL QUESTIONS RAISED BY THE PHILOSOPHY OF HISTORY

4. PARADIGMS OF THINKING (4.1. The paradigm of paradigms [4.1.1. Conventionality, 4.1.2. Cultural dependence, 4.1.3. The nature of paradigms], 4.2. The basic notions of “fact”, “concept”, “logic”, and “thinking” [4.2.1. The need for a change of paradigms, 4.2.2. The false alternative of objectivism and subjectivism, 4.2.3. What are facts?, 4.2.4. What are notions?], 4.3. Dilemmas of conceptualising the norm)

5. DILEMMAS OF MEANING (5.1. Theories of meaning [5.1.1. Lexicality, 5.1.2. Contextuality, 5.1.3. Hermeneutics, 5.1.4. Open texture, 5.1.5. Deconstructionism], 5.2. Social construction of meaning [5.2.1. Speech-acts, 5.2.2. Social institutionalisation], 5.3. Autopoiesis and systemic response)

6. PARADIGMS OF LEGAL THINKING (6.1. The nature of law [6.1.1. Law as process, 6.1.2. Multifactorality, 6.1.3. Law as made up from acts], 6.2. The nature of legal thinking)

7. CONCLUDING THOUGHTS

Appendix I. LAW AND ITS APPROACH AS A SYSTEM (I.1. The logical structure of law as a historical product, I.2. Tendencies of formal rationalization in legal development)

Appendix II. IS LAW A SYSTEM OF ENACTMENTS? (II.1. Working models of law, II.2. Senses of contextuality in law, II.3. Jurisprudential approach and socio-ontological approach, II.4. Conclusions [II.4.1. Law as historical continuum, II.4.2. Law as open system, II.4.3. Law as complex phenomenon with alternative strategies, II.4.4. Law as an irreversible process, II.4.5. The genuinely societal character of law])

Appendix III. INSTITUTIONS AS SYSTEMS (III.1. A logic of systems, III.2. Ideal types and historically concrete manifestations, III.3. Ideal type as a normative ideology, III.4. Objectivity and contingency of systems, III.5. Limits and bonds, consequentiality and practicability of a system)

Appendix IV. LEGAL TECHNIQUE (IV.1. Legal technique {IV.1.1. [In a broader sense], IV.1.2. [In legal practice], IV.1.3. [In legal scholarship], IV.1.4. [Law as a special technique]}, IV.2. On legal technique {IV.2.1. Definition and function, IV.2.2. Legal technique and legal cultures, IV.2.3. Postulates of legal technique in the cultures of modern formal law})

Appendix V. THE INHERENT AMBIVALENCE OF A RATIONAL APPROACH (Is the human fullness of being to be destroyed as a price of progress?)

Csaba VARGA: Codification as a Socio-Historical Phenomenon (1991/2011)

October 25, 2010 Leave a comment

Codification as a Socio-historical Phenomenon [1991] 2nd {reprint} ed. with an Annex & Postscript (Budapest: Szent István Társulat 2011) viii + 431

I. INTRODUCTION

PART ONE: HISTORICAL MANIFESTATIONS OF THE IDEA OF CODIFICATION

II. EARLY FORMS OF CODIFICATION: ANTIQUITY   1. Reform of Customs and their Recording in Early Antiquity, 2. Compilation of Laws by Later Codes, 3. General Features of Ancient Codification, 4. Conclusion

III. EARLY FORMS OF CODIFICATION: THE MIDDLE AGES   1. Codes of the Mediaeval Empires, 2. Codifications of Feudal Division, 3. Experiments in Sbustituting Customary Law by Statutory Law in the Age of Centralization, 4. General Features of Mediaeval Codification, 5. Conclusion

IV. CODIFICATION TRENDS IN THE AGE OF ENLIGHTENED ABSOLUTISM   1. Emergence of the Concept of Codification Qualitatively Reshaping the Law, 2. Partial Codifications in France, 3. Successful Codifications Unifying the Law [a) Codification of Bureacratic Patronage in Prussia, b) Systematic Codification in Austria], 4. Consolidation of Law as a Substitute for Codification in Russia, 5. Conclusion

V. CLASSICAL TYPE OF CODIFICATION: CONTINENTAL CODES IN THE SERVICE OF BOURGEOIS TRANSFORMATION   1. Inadequacy of Codification under Enlightened Abolutism, 2. The French Revolution and the Evolution of the Classical Type of Codification [a) Pre-Revolutionary Roots, b) Formation of the Code civil], 3. Late Bourgeois Codes [a) Codification of the Aborted Revolution in Germany, b) The Law-Unifying Code of Monopoly Capitalism in Switzerland], 4. The Consummation of Continental Codification, 5. The Non-Recurrent Nature of Bourgeois Codification, 6. Conclusion

VI. ATTEMPTS AT CODIFICATION: COMMON LAW SYSTEMS   1. Early English Development, 2. The Development of Codification in 19th-Century England, 3. Unifying Codification in British India, 4. Codification and British Law Export to the Colonies, 5. Primitivized Law Adaptation in the American Colonies, 6. Codes as a Means of Founding a New State, 7. Special Aspects of Codification in Common Law Systems, 8. Stubstitutes for Codification in Common Law Development, 9. Conclusion

VII. STRIVING FOR CODIFICATION: AFRO–ASIAN SYSTEMS   1. The Complexity of Afro–Asian Legal Development, 2. Codification of Islamic Law, 3. Codification as a Means of Substituting Tribal Costums, 4. Codification in the Modernized Afro–Asian Societies, 5. Conclusion

VIII. NEW AMBITIONS IN CODIFICATION: SOCIALIST LAW   1. The Soviet-Russian Experience, 2. Re-Codification Attempts in the Soviet Union, 3. Codification in the Satellite Countries, 4. Re-Codification in Socialist Law, 5. Conclusion

PART TWO: TYPES AND DEVELOPMENT OF CODIFICATION

IX. POSSIBILITY OF A GENERAL CONCEPT OF CODIFICATION   1. Unity of the Historical Manifestations of the Codification Phenomenon, 2. The Concept of Codification Development, 3. The Concept of Codification

X. RATIONALIZATION AS THE MOTIVE FORCE BEHIND CODIFICATION DEVELOPMENT   1. Rationality and Social Development, 2. Rationalization of Law in the History of Codification, 3. Utopias of Rationality in the Development of the Idea of Codification

XI. TYPES OF CODIFICATION IN CODIFICATION DEVELOPMENT   1. Functional Types of Codification, 2. Codification as a Quantitative and as a Qualitative Treatment of the Law, 3. The Common Core of Codification Phenomenon

XII. CODIFICATION IN PRESENT-DAY DEVELOPMENT: CONCLUDING REMARKS

ANNEX

CODIFICATION [1999]

POSTSCRIPT

CODIFICATION ON THE THRESHOLD OF THE THIRD MILLENNIUM [2002]   I. Codification Now   1. With Ethos Changed, 2. Undermined by Disappointment   II. Structural and Functional Perspectives   3. Systemicity as the Core Element, 4. Challenge by the European Union, 5. The Issue of Convergence   III. Historical Revision   6. Reconsidering Early Past, 7. Reconsidering Late Modernity, 8. Transubstantiation of the Code-based Function   IV. Postscript   9. With a Methodological Conclusion, 10. Arriving at a Crossroads Again

VARGA: Transition? To Rule of Law? (2008)

October 25, 2010 Leave a comment

Transition? To Rule of Law? Constitutionalism and Transitional Justice Challenged in Central & Eastern Europe (Pomáz: Kráter 2008) 292 [PoLíSz sorozat könyvei 7]

TOWARDS A TRANSITION TO RULE OF LAW   Radical Change and Unbalance of Law in a Central Europe under the Rule of Myths, not of Law [1996] / Legal Scholarship at the Threshold of a New Millennium in the Central and Eastern European Region [1997] /  Rule of Law: Imperfectly Realised, or Perfected without Realisation? [2000] / Rule of Law – at the Crossroads of Challenges [2001] / Rule of Law, or the Dilemma of an Ethos: to be Gardened or Mechanicised [2007]

THE BURDEN OF THE PAST   Why Having Failed in Facing with the Past? [2003] / Creeping Renovation of Law through Constitutional Judiciary? [2005] / What Has Happened and What Is Happening ever Since (To the Memory of Deportations to Forced Labour Camps at Hortobágy) [2005] / 1956 Judged by Ethics and Law, or the Moral Unity of the Law’s Responsiveness as a Post-totalitarian Dilemma [2006]

PERSPECTIVES   Failed Crusade: American Self-confidence, Russian Catastrophe [2002] / “Radical Evil” on Trial [2002] / Rule of Law between the Scylla of Imported Patterns and the Charybdis of Actual Realisations (The Experience of Lithuania) [2004]

WHAT CAN BE HOPED FOR NOW?   In Bondage of Paradoxes, or Deadlock at the Peak of the Law we have Created for Ourselves [2007] / At the Crossroads of Civil Obedience and Civil Disobedience [2007]

Csaba VARGA: Law and Philosophy; Selected Papers in Legal Theory (1994)

October 25, 2010 Leave a comment

Law and Philosophy Selected Papers in Legal Theory (Budapest: ELTE “Comparative Legal Cultures” Project 1994) xi + 530 [Philosophiae Iuris]

papers (20 in English, 5 in German and 2 in French) spanning from 1970 to 1992:

LAW AS PRACTICE   ‘La formation des concepts en sciences juridiques’ [1970] / ‘Geltung des Rechts – Wirksamkeit des Rechts’ [1978] / ‘Macrosociological Theories of Law’ [1983] / ‘Law & its Inner Morality’ [1984] / ‘The Law & its Limits’ [1985]   LAW AS TECHNIQUE   ‘Domaine »externe« & domaine »interne« en droit’ [1983] / ‘Die ministerielle Begründung’ [1977] / ‘The Preamble’ [1970] / ‘Presumption & Fiction’ [1988] / ‘Legal Technique’ [1988]   LAW AS LOGIC   ‘Moderne Staatlichkeit und modernes formales Recht’ [1982] / ‘Heterogeneity & Validity of Law’ [1986] / ‘Leibniz & die Frage der rechtlichen Systembildung’ [1973] / ‘Law & its Approach as a System’ [1975] / ‘Logic of Law & Judicial Activity’ [1982] / ‘Kelsen’s Pure Theory of Law’  [1988] / ‘The Nature of the Judicial Application of Norms’ [1992]   LAW AS EXPERIENCE   ‘The Socially Determined Nature of Legal Reasoning’ [1971] / ‘The Ontological Foundation of Law’ [1983] / ‘Is Law a System of Enactments?’ [1984] / ‘The Uniqueness of National Legal Cultures’ [1992] / ‘Institutions as Systems’ [1991]   LAW AS HISTORY   ‘From Legal Customs to Legal Folkways’ [1981] / ‘Anthropological Jurisprudence?’ [1985] / ‘Law as a Social Issue’ [1985] / ‘Law as History?’ [1986] / ‘Rechtskultur – Denkkultur’ [1988]