Rule of Law,or the Dilemma of an Ethos: to be Gardened or Mechanicised
[Abstract]One of the post-dictatorship models for transition is exemplified by total defeatwith military administration and jurisdiction, breaking past continuity throughpreventing local practices to re-organise while re-educating for democracy, aspatterned by the allied powers after WWII in Germany, Italy and Japan, andquite 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 inCentral Europe after the fall of communism. Almost opposite are the costs andbenefits of either ideals on behalf of both the party having generated the givensolution and the party whom it was generated to. And the fact notwithstandingthat the legacies of bygone regimes with the task of selecting one of these freshnew ideal starts to implement upon after their fall are hardly comparable to oneanother, their underlying philosophies, together with the corresponding politico-cultural and anthropological pre-assumptions, are also close to appear andactually 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 categoricallyabsolute as quasi exhaustively codified or it is a most respectable ideal havingonce developed in response to particular challenges in given cultures undergiven historical conditions, that is, an art of how to balance amongst differing,moreover, conflicting values and interests within its ethos, a strive never to endand close indeed as it is a learning process itself: a compound of variousviewpoints, layers and levels, which surfaces new features once genuinely newchallenges it is to meet.As it has since long been established by legal sociology and then by legalhermeneutics as well, a legal system in operation is by far more than a mereskeleton made up by formal enactments. In fact, it is a working unit of formaland informal components upon the basis of some legal culture with an adequatetradition 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 cansurface as icebergs’ visible tops at the most. All in all, transfers and impositionsrisk of being wedged in a contexture having been or remaining alien to them,either detaching themselves as an external interference with the target system ordecompose the said system itself by re-routing its further development on anartificial path, detached from the system’s original culture and tradition.
Scientific Adviser, Institute for Legal Studies of the Hungarian Academy of Sciences (H–1250 Budapest, P.O.Box 25), Professor, Pázmány Péter Catholic University Faculty of Law, Founding Director of its Institute forLegal Philosophy (H–1428 Budapest 8, P.O. Box 6)firstname.lastname@example.org/ http://varga.jak.ppke.hu