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

The author introduces the reader to reasoning in law through the possibilities, boundaries and traps of assuming personal responsibility and impersonal pattern adoption that have arisen in the history of human thought and in the various legal cultures. He discloses actual processes hidden by the veil of patterns followed in thinking, processes that we encounter both in our conceptual-logical quests for certainties and in the undertaking of fertilising ambiguity. When trying to identify definitions lurking behind the human construct of facts, notions, norms, logic, and thinking, or behind the practice of giving meanings, he discovers tradition in our presuppositions, and our world-view and moral stance in our tacit agreements. Recognising the importance of the role communication plays in shaping society, he describes our existence and institutions as self-regulating processes. Since law is a wholly social venture, we not only take part in its oeuvre with our entire personality, but are also collectively responsible for its destiny. In the final analysis, anything can be qualified as ‘legal’ or ‘non-legal’ in one or another recognised sense in which law can originate, but, as a relative totality, it can only be qualified as ‘more legal’ or ‘less legal’ in any combination of the above senses. Being formed in an uninterrupted process, neither the totality nor particular pieces of law can be taken as complete or unchangeably identical with itself. Therefore law can only be identified through its motions and computable states of ‘transforming into’ or ‘withdrawing from’ the distinctive domain of the law. Thereby both society at large and its legal professionals actually contribute to—by shaping incessantly—what presents itself as ready-to-take, according to the law’s official ideology. For our initiation, play, role-undertaking and human responsibility lurks behind the law’s formal mask in the backstage. Or, this equals to realise that all we have become subjects from mere objects, actors from mere addressees. And despite the variety of civilisational overcoats, the entire culture of law is still exclusively inherent in us who experience it day to day. We bear it and shape it. Everything conventional in it is conventionalised by us. It has no further existence or effect beyond this. And with its existence inherent in us, we cannot convey the responsibility to be born for it on somebody else either. It is ours in its totality so much that it cannot be torn out of our days or acts. It will thus turn into what we guard it to become. Therefore we must take care of it at all times since we are, in many ways, taking care of our own. Csaba Varga is Professor Emeritus of the Pázmány Péter Catholic University, Founding Director of its Institute for Legal Philosophy ( varga.csaba@jak.ppke.hu ) and Research Professor Emeritus at the Institute for Legal Studies of the Hungarian Academy of Sciences 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?) Subject index / Index of normative material / Index of namesISBN 978 963 277 299 8 / ISSN 1218-061