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Law, understanding of law, application of law

Varga, Csaba (2010) Law, understanding of law, application of law. Acta Juridica Hungarica, 51 (2). pp. 97-108. ISSN 1216-2574

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Abstract

After the classical heritage of both Civil Law and Common Law is characterised, their juristische Weltanschauung as professional deontology is reconstructed in parallel with their respective assumptions in theory formation. As to the nature of legal process, the moment of concealment is identified in both types with the final conclusion reached that humans’ individual activity and personal responsibility is hidden in the machinery. Civil Law is defined by rules enacted as the sole embodiment of the law, treated conceptually in a linguistico-logical way so as to be suitable to lead to mechanical application within the range of a meta-level dogmatic system. The interplay between logical subsumption and volitional classificatory subordination is analysed in order to show what legal ascriptivity is and why it ends with the artificial construction of legal force. Accordingly, Civil Law ideology is imbued with analogies as if cognition were at stake, in contrast to Common Law openly undertaking fiction to explain in what manner the judicial deliberation on facts whilst reconstruing the whys and hows of past instances can result in ascertaining what the law has allegedly ever been. The law’s understanding-theorised in the former and pragmatised in the latter case-is part of its applying as an ontic component of the very existence of the complex social phenomenon called law.

Item Type: Article
Subjects: K Law / jog > K Law (General) / jogtudomány általában
Depositing User: xKatalin xBarta
Date Deposited: 04 Jan 2017 12:45
Last Modified: 04 Apr 2023 12:00
URI: http://real.mtak.hu/id/eprint/44524

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