The Meaning of 'Law' in Comparing Laws or the Complexity of What the Object of Legal Comparison Is
Presented at the V International Conference: Comparative Jurisprudence Discussions (April 26–28, 2013, Odesa, Ukraine)
21 Pages Posted: 3 Feb 2014
Date Written: February 2, 2014
Comparative jurisprudence as an extension of the scholarly cultivation of domestic laws, closed down within its respective national boundaries, is historically rooted in the realization of how much the self-closing of continental laws, based upon their national codification throughout the 19th century, emptied their scholarly approach as well. In the pioneering age of comparison, the turn of the centuries, legal ideology was still marked by the predominance of statutory positivism, so the law’s comparative treatment — as a first step — could not target but its statutory form. Albeit there have been mentions by the classics of legal comparativism, emphasizing the significance of the law’s sociological entourage and cultural embeddedness as well, neither the direction nor the methodology of research has changed to a transformative depth since.
Albeit nothing is given as ready-made: our life is an uninterrupted sequence of materializations from among an infinite range of potentialities. In events when a decision is made, it is something selected that gets actualized. Every moment contributing to a decision in law is ambivalent in itself: nothing is compelling by its mere existence. Therefore we have to know in advance what the law is, what we can do with it and exactly what we can achieve through the store of its instruments in a given culture so that we can successfully proceed on with it and within it. Or, there is necessarily a given auditoire faced with a real situation of life and, acting with this auditoire, the well-defined contextuality of a stage (together with the given social, ethical, economic and political implications in play) that form the framework within which the judicial establishment of facts and interpretation of norms can take place at all.
That what is identifiable of law when no implementation or judicial actualization is priorly made is a dynamei [potentiality to get actualized] at the most, which can exclusively become anything more through an instrumental operation by legal technique. Accordingly, law is made up of (1) a homogenized formal concentrate (2) operated — through its being referred to — by a practical action, the result of which will posteriorly be presented to the external world as law converted into reality.
One may conclude therefrom that all that can be rationally and logically justified within the law is mostly also made available in the law. For in cases when socially weighty considerations prevail, society is in the position to mobilize the means of rational justification at an adequately high level of logical standards (passing from principles and rules via exceptions to exceptions thereto, and so on) so that the necessary and feasible effect can be reached.
The formal logical claim for norms being made deducible from norms is not a readily given availability but a normative requirement, setting down the internal rule of legal games as canonized by the prevailing judicial ideology. However, games can only be played in given situations, micro- and macro-sociological as well, in defining meanings within which also the judge takes part with his entire personality. Consequently, subtle shifts of emphasis in the definition of meaning, perhaps indiscernible in themselves, may add up to turns of direction in the long run of the process. Therefrom it seems as if the human wish for homogenization and unambiguity went hand in hand with both the incessantly renewed attempts at reaching this in practice and their necessary stumbling in new heterogeneities and ambiguities, generating a continuous tension between a strain in theory and attempts at finally resolving this in practice. It seems as if hyperbolic curves were indeed at stake: when fighting for definite aims, we also necessarily move somewhat away from them with detours made.
The sphere of action of the judge is certainly limited, and the means by what and the ways how it is limited are also ambivalent. For the only path available for us to proceed on is to build artificial human constructs of mediation and filter them through a homogenizing medium by applying its rules to the former. However, when they are made use of, we cannot entirely separate these constructions from their necessarily heterogeneous environments, and, therefore, in each moment of their operation, a definition by real situations of life will also be inevitably present.
Sure, behind all considerations concerning the simultaneity of applicative and creative effects of law-applying processes, there is a stimulating strain that prevails between living language(-use) and the blind (and in itself empty) logicism of a system homogenized through a formalizing filter. And the significance of legal technique and the inevitably magic transformation effectuated in any legal process may become comprehensible only in the moment when we realize that law is not simply made up of rules, as in themselves they are nothing but mere symbols of logical abstractions. For anyone wishing to reasonably communicate with others cannot but use categories already interpreted in communication with others. Thanks to its reserves, language offers paths and ways of how to proceed, although, if examined more closely, these are extremely uncertain signals, full of ambivalence themselves. This is a circumstance that is, of course, not especially striking in everyday usage, that is, speaking in terms of pure logic, after the gaps left by such signals are completely filled in through our everyday conventions and conventionalisations. Law conceived as a rule in the ontological reconstruction of linguistic mediation is just a medium being incessantly formed through a series of interactions, and legal technique serves as just a bridge helping the lawyer to reach a concrete and definite legal conclusion.
Regarding the very logic of law, it is quite symptomatic that while the dominance of formal inference makes its way uncompromisingly, in any case it will turn out that all this may remain valid only for routine cases of the average. For as soon as feasibility to follow the routine of conceptual categorization becomes questioned in a borderline case (classifiable or not into a given category), logic, too, becomes at once irrelevant, as it has no message whatsoever specific to borderlines that may transcend the bounds of everyday routine in practice. What is striking here is that the special parts of the codes usually call for a relentlessly logical application of the regulation broken down systematically from principles to rules and rules to exceptions — to the exclusion of only one single case, namely, when the issue of the applicability of such a general clause or principle emerges, from somewhere in the general part of the code (classically, the actor or his/her deed being dangerous to society, in criminal law, or abuse of the law, in private law). Then, all the stuff of the strict and minutely detailed regulation offered by the entire special part of the code at once becomes non-applicable as irrelevant, with the questioned case left to be judged in almost a legal vacuum, with the sole reference to one or another general principle laconically drafted in the general part.
Legal technique is an almost omnipotent instrument, usable in any direction in view of achieving practically anything in principle. We may use it, however, only within the womb of one or another legal culture that delineates also the framework of tacit conventions actually limiting from what and to what we can conclude at all.
We live in the same culture, with both vague clauses guiding us to nothing in any concrete situation and rules calling for strict application. And if, in the name of a law, either dysfunctionality, due to the law’s blind enforcement, or, despite the law’s formal assertion, practical negation, will arise, the reason is not necessarily to be sought for in the given technical procedure. For it is known to all of us that practical life, with the entire network of subsystems within it, is operated by the same human involvement and social activity, after all. In case political considerations would unduly overwhelm the law’s operation, they can just as well utilize any instrument they have access to, in order to subject the law to them.
Accordingly, from the very beginning, comparison of laws, targeting laws proper, that is, ones enacted, shall be widened so far as to comprehend their practical implementation, as either officially enforced or at least tacitly acknowledged as the realization thereof. And in order to understand the ways and manners of implementation, including both the handling of what will be established as facts and the canons of interpretation of what will be referred to as norms, comparison has to target and involve the patterns of judicial thought (argumentation and reasoning, i.e., lawyerly ideology as a specific species of professional deontology) as well.
Keywords: comparative law/comparative legal cultures, law in books/action, legal technique, formalism/anti-formalism in law, law as potentiality/actuality, constitutional adjudication, legal imaginability, linguistic mediation, legal dogmatics, principles/clauses
JEL Classification: K00, K40
Suggested Citation: Suggested Citation