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Rule of Law,
or the Dilemma of an Ethos: to be Gardened or Mechanicised
by
CSABA VARGA*
[Abstract]One of the post-dictatorship models for transition is
exemplified by total defeat
with military administration and jurisdiction, breaking past
continuity through
preventing local practices to re-organise while re-educating for
democracy, as
patterned by the allied powers after WWII in Germany, Italy and
Japan, and
quite another of them at the other extreme is just to declare a
full pledged rule of
law scheme put in operation from an artificial zero point on, as
practiced in
Central Europe after the fall of communism. Almost opposite are
the costs and
benefits of either ideals on behalf of both the party having
generated the given
solution and the party whom it was generated to. And the fact
notwithstanding
that the legacies of bygone regimes with the task of selecting
one of these fresh
new ideal starts to implement upon after their fall are hardly
comparable to one
another, their underlying philosophies, together with the
corresponding politico-
cultural and anthropological pre-assumptions, are also close to
appear and
actually work as antagonistic.
Practice in Central Europe is varying in terms of whether or not
the rule of
law is conceived of as a set of expectations to be considered
categorically
absolute as quasi exhaustively codified or it is a most
respectable ideal having
once developed in response to particular challenges in given
cultures under
given historical conditions, that is, an art of how to balance
amongst differing,moreover, conflicting values and interests within
its ethos, a strive never to end
and close indeed as it is a learning process itself: a compound
of various
viewpoints, layers and levels, which surfaces new features once
genuinely new
challenges it is to meet.
As it has since long been established by legal sociology and
then by legal
hermeneutics as well, a legal system in operation is by far more
than a mere
skeleton made up by formal enactments. In fact, it is a working
unit of formal
and informal components upon the basis of some legal culture
with an adequate
tradition in the background. As it has been argued for by
Scandinavian legalrealism, rules, either enacted or casually
reconstructed, are sheer indicators of
kinds of underlying normativity already in operation, from which
they can
surface as icebergs visible tops at the most. All in all,
transfers and impositions
risk of being wedged in a contexture having been or remaining
alien to them,
either detaching themselves as an external interference with the
target system or
decompose the said system itself by re-routing its further
development on an
artificial path, detached from the systems original culture and
tradition.
*
Scientific Adviser, Institute for Legal Studies of the Hungarian
Academy of Sciences (H1250 Budapest, P.O.Box 25), Professor, Pzmny
Pter Catholic University Faculty of Law, Founding Director of its
Institute for
Legal Philosophy (H1428 Budapest 8, P.O. Box 6)
[email protected] /http://varga.jak.ppke.hu
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Whether or not the new language happens to be predominantly
American,
i.e., formulated in the one of rights and human rights, and how
much the
borrowers peculiar technicality and procedural approach
departmentalises or
even dissolves the common responsibility once born for the res
publicas sake
even vivid under the old regime, is another issue that needs to
be examinedalongside the scholarly treatment of law &
development, law & modernisation,
as well as within the problem of globalised legal transfers.
Eventually and in any
case, as far as the way of mastering (or the caring humility
towards) the
instrument is concerned, a choice has finally to be made between
the attitudes of
a circus trainer and a gardener.
In any case and especially in the Central European region with
active
constitutional adjudication now, there is a temptation at
substituting past
nihilism of the rule of law to a kind of fetishism, which may
further strengthen
the dependence of target countries on pattern-followance and
thereby weaken
their creative forces and sense of self-esteem and
self-responsibility, vitally
neeed for their successful recovery.
A political adviser (between 2001 and 2004) to Dr Jzsef Antall,
the first free-elected Primer Minister of the Republic of Hungary
after thefall of Communism, Professor Dr Csaba VARGA has, in
addition to a number of books he authored or edited in English,
published widelyalso on the topic of Rule of Law on the
International Agenda: Policy, Politics and Morality, including,
among others,
Transition to Rule of Law On the Democratic Transformation in
Hungary (Budapest: ELTE Comparative Legal Cultures Project1995) 190
[Philosophiae Iuris]
review: Michael Bogdan in Svensk Juristtidning 80 (1995) 9,
749750; A[ndr-]J[ean]A[rnaud] in Droit et Socit 32 (1996); [Sofia]
XXXVIII (1997) 1, 7273; ActaJuridicaAcademiae Scientiarum
Hungaricae 41 (2000) 34, 157158
Coming to Terms with the Past under the Rule of Law The German
Model, [pre-ed.] (Budapest 1994) xiii + 136 [Windsor Klub]
&
Coming to Terms with the Past under the Rule of LawThe German
and the Czech Models (Budapest 1994) xxvii + 178 [Windsor
Klub]Kilts gyakorlatiassgrt a jogllami tmenetben [A cry for
practicalness in transition to rule of law] (Budapest: [AKAPrint]
1998)
122 [A Windsor Klub knyvei II]Do we have the Right to Judge the
Past? Philosophy of Law Considerations for a Period of Transition
Rechtstheorie 23 (1992) 3,
396404The Dilemma of Enforcing the Law in Rechtsnorm und
RechtswirklichkeitFestschrift fr Werner Krawietz zum 60.
Geburtstag, hrsg.
Aulis Aarnio & Stanley L. Paulson & Ota Weinberger &
Georg Henrik von Wright & Dieter Wyduckel (Berlin: Duncker
& Humblot 1993),427435 & Coming to Terms with the Past and
its Statutory Limitations in European Legal Cultures ed. Volkmar
Gessner & ArminHoeland & Csaba Varga (Aldershot, Brookfield
USA, Singapore, Sydney: Dartmouth 1995), 442444 [Tempus Textbook
Series onEuropean Law and European Legal Cultures, 1]
Local Legal Tradition in Question in The Legacy of the PastAs a
Factor of the Transformation Process in Postcommunist Countriesof
Central Europe (The Territory of Poland, Czech Republic, Slovak
Republic, Hungary, former GDR) December 79, 1993, in Prague,ed.
Vladimira Dvorkov & Emil Vorcek (Prague: University of
Economics Department of Political Science 1994), 315325
Transformation to Rule of Law from No-law: Societal Contexture
of the Democratic Transition in Central and Eastern Europe
TheConnecticut Journal of International Law [Hartford] 8 (Spring
1993) 2, 487505 & The Building up of a Rule of Law Structure on
theRuins of a Regime Based upon the Denial of Law in Central Europe
in Law at the Turn of the Twentieth Century InternationalConference
Thessaloniki 1993, ed. L. E. Kotsiris (Thessaloniki: Sakkoulas
1994), 219239 & The Transformation of Legal Culture in the
Central European Transition in Rttsliga kulturer och normativa
strukturerNordiskt Rttssociologiskt Forum, 2527 augusti 1995
(Lund1995), 118 [mimeo] & Transformation to Rule of Law from
No-law: The sui generis Nature of the Challenge in Central &
EasternEurope in Law, Justice and the State Abstracts of
Working-Group Papers, comp. Eyja Margt Brynjarsdttir (Reykjavk:
University ofIceland 1993), 98 [16
thWorld Congress on Philosophy of Law and Social Philosophy]
& Constitutionalism, the Rule of Law, and the
Challenge of Transition in Constitutionalism & Politics
International Symposium, November 1114, 1993, ed. Irena Grudzinska
Gross(Bratislava: Slovak Committee of the European Cultural
Foundation 1994), 151154 [IV Bratislava Symposium 1993] &
Complexity ofthe Challenge Facing Central and Eastern Europe in
European Legal Cultures ed. Volkmar Gessner & Armin Hoeland
& Csaba Varga(Aldershot, Brookfield USA, Singapore, Sidney:
Dartmouth 1995), [introduction to Part V: Transition to the Rule of
Law] 415429[Tempus Textbook Series on European Law and European
Legal Cultures, 1]
Rule of Law between the Scylla of Imported Patterns and the
Charybdis of Actual Realisations (The Experience of Lithuania)
ActaJuridica Hungarica 46 (2005) 12, 111
&http://www.akademiai.com/media/37knultrmmv9b6ykpee7/contributions/m/3/2/9/m3296v37841w54h0.pdf
& Rechtstheorie 38 (2007) 1,111 {in press}
Rule of Law At the Crossroads of Challenges Iustum, Aequum,
Salutare [Budapest] I (2005) 12, 7388Transfers of Law: A Conceptual
Analysis in Hungarys Legal Assistance Experiences in the Age of
Globalization ed. Mamoru
Sadakata (Nagoya: Nagoya University Graduate School of Law
Center for Asian Legal Exchange 2006), 2141Transition to Rule of
Law: A Philosophical Assessment of Challenges and Realisations in a
Historico-comparative Perspective in
Hungarys Legal Assistance Experiences in the Age of
Globalization ed. Mamoru Sadakata (Nagoya: Nagoya University
GraduateSchool of Law Center for Asian Legal Exchange 2006),
185214
Legal Renovation through Constitutional Judiciary? in Hungarys
Legal Assistance Experiences in the Age of Globalization ed.Mamoru
Sadakata (Nagoya: Nagoya University Graduate School of Law Center
for Asian Legal Exchange 2006), 287312
