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ON THE NATURE OF THE JUDICIAL PROCESS

Conference Paper · November 2014

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 International Conference on LAW AND VALUES IN CONTEMPORARY SOCIETY
organised by the Albanian Institute of Sociology and the European University of Tirana
21– 22 November 2014

ON THE NATURE OF THE JUDICIAL PROCESS

CSABA VARGA
Institute for Legal Philosophy of the Catholic University &
Institute for Legal Studies of the Academy of Sciences (Budapest)
varga@jak.ppke.hu

Abstract In case of studying formalised structures and operations, social ontology is in the
background, too, as it is social practice with community understanding continuously being fed back
that carries their whole process. In its reconstruction, the self-image of the law is to be complemented
by a reality description. From both facts and norms as official components of the process, any
establishment as a fact already expresses the socially constructed nature of the entire procedure, as
well as its double nature, being conventional and normative, volitive and constitutive at the same time,
which is only concealed by its formal definition as ascription/imputation. Ontologically speaking, the
cognitive and evaluative activity implied by the process is merged in the fullness of human being, that
is, in all the various faculties and capacities of those professionals and nonprofessionals who activate
it. This is why, taken as a particular aspect of social practice, judicial process is indeed process-like
from the beginning.

1. Social Ontology in the Background

What does the judge do when he decides? What does he actually rely on
when he claims to be relying on facts and norms? In what way will a
decision arise from facts and norms? What does he transform into what,
and with what necessity, when he declares that his decision concludes
from those facts and norms?
Research will lead to an ontological result in showing that s o c i a l
p r a c t i c e is continuous, and its reliability manifests itself through its
c o n t i n u o u s l y b e i n g f e d b a c k to and within its own
continuity. That is, we have nothing to trust but our human practice.
Neither cognition nor the human search for ideals is conceivable as
separated from it. By virtue of its permanence and its being never-
endingly tested and re-tested, the issue of whether or not, and to what

1
extent, practice is able to generate a criterion is raised [Varga (1991a &
1991b)].
As a matter of fact, eventually, when we agree with each other on this
or that matter, the community—auditoire, in a sense PERELMAN (1976)
gave to it—in the background of our social practice will emerge as the
very source of human understanding [Lukács (1984)].
And, independently of any philosophical reconstruction, we have ever
relied (and do have reason why to rely) in our formalised actions (e.g., in
science, law or theology) as well on both our otherwise imperfect
cognition and its exclusive linguistic expression (even if proven vague
and indefinite). Albeit the way we arrive in at problem solution is
separated, both analytically and otherwise, from the way we justify it in
all processes of argumentation.

2. Self-image and Reality

Nearly four decades ago, when I started to explore problems related to
the law’s conceptual definition, I set myself the methodological task of
attempting to detach scholarly approach from the self-image formed by
the subject about itself—that is, the law from its ideological and
normative definitions [Varga (1973a)]. And when I started to deal with
the socio-historical development of legal objectivation and especially
codification, I aimed at rising legal theorising above cultural
presuppositions—ethno-centrism and ideologisation—that separate
domestic systems from one another in variations, different in space and
time [Varga (2011a)].
Once I tried to reconsider the methodological perspective of LUKÁCS’
late social ontology [Varga (2012a & 2013)]. One of its novelty was its
setting for itself the explicit objective of that underlying legal ideologies
(or professional ethoses, including the ENGELSian juristische
Weltanschauung, like continental legal normativism) should be
explained as components of o n t o l o g i c a l significance of any given
legal set-up, even if not posited. So the aim was to present a theoretical
description of the law’s construction and operation with the involvement
of various cultures’ characteristic i d e o l o g i e s , e t h o s e s and
p r o f e s s i o n a l e x p e c t a t i o n s not merely as either contingencies
or externalities but as specific features making up—as parts of—the
subject: the ontological reality of law. (Theoretically speaking, this
emerges, too, as the first requirement in the conceptual expression of

2
games. For, in order to describe a game, the game’s own rules need to be
taken into account as constitutive elements.)

3. Considerations
The linguistico-philosophical approach to f a c t s [Varga (2011b)]
allows them to be reconstructed in the context of human practice, for
these are relational concepts. Not only the mark of reality is asserted in
and through them but the actuality and the entire set of interrelations of
our relationship to such reality is also asserted.
The judicial establishment of facts is apparently objective: it is
believed to be independent of human volition and free from subjectivity.
However, nothing can isolate any establishment of facts from the
necessities governing human practice.
Establishing facts is a function of human praxis. As a consequence, in
the final analysis, both cognition and the conceptual expression of its
outcome are agreed upon, that is, c o n v e n t i o n a l in their underlying
character. Accordingly, the entire process is n o r m a t i v e from the
beginning (in a rather weak sense). They also depend on human practice.
Furthermore, concepts are of an i n s t i t u t i o n a l character, also in a
rather weak sense.
Once we recognise the extent to which institutionalisation and
conventionalisation are foundational generators of social existence, we
can get closer to understanding the s e c o n d n a t u r e built up in our
social practice around our social existence.
As a result, a glimpse behind the apparently merely cognitive and
descriptive surface stage of the establishment of facts is enough to allow
us to reveal what indeed is taking place here. This is an act of attributing
some mark, feature (etc.) to something else. From a linguistic
perspective, it is characterised as the function of a s c r i p t i v i t y , and
from the aspect of community building, as the function of
imputation.
When thinking, one often falls into a trap as the subject of and the
means to cognition can exclusively be distinguished through (within and
for the sake of) analysis. In law, ideological presuppositions may come
to the fore to the extent eventually obscuring the difference between the
subject and a preliminary judgement related to it. Such a relativity
depending upon standpoints or approaches selected is exemplified by the
separation of “questions of fact” and “questions of law” or, in case of the
judicial interpretation of normative texts, by the distinction between

3
common words (in no need of being defined legally) and professional
terms (in need of legal definition). And such is the dilemma, too,
whether law-application is to be characterised as logical conclusion
(subsumption) or, just to the contrary, as a logically somewhat arbitrary
subordination [Kaufmann (1982)].
A similar type of problem emerges, for instance, when we realise that
the normative framework as set by relevant norms can only have a
message in some actualised particular context at the most; that also the
language of norms is and can only be vague and indefinite; that there is
no genuine logical inference in the normative sphere [Varga (1994)];
and that, at the same time, the application of norms depends, too, on
basically practical interests [Varga (1973b)]. For the breaking down of a
normative system is always double-faced, being two- or multi-
directional in principle; the distinction between a general norm and a
particular/specific/individual one is merely relative; the moment of
deductivity is, at the most, only symbolically present in it; the fact- and
norm-propositions providing the officially exclusive foundation of the
decision are logically insufficient to provide a genuine conclusion; the
dilemma of whether the regulation is exhaustively complete or perhaps
insufficient emerges on principle in every case and does remain also
logically unanswerable; the arguments one can use successfully in the
process are rather pre-selected and previously defined by tacit
conventions already shared by the given community—this is why they
are called ‘canons’—and, consequently, they depend more on the hic et
nunc sociological situation than on any consideration or mere
application of logic; the logic by which one arrives at a decision differs
from the logic by which one subsequently justifies the same decision;
and, finally, when we recognise our decision as valid within (as
concluding from) the law, actually we do rely primordially—and in
addition to our references, which can only qualify as logically diffuse—
on the reciprocity of similar decisions mutually recognised, taken by
judicial fora at similar or even lower levels.

4. Facts
In Latin-rooted cultures, as suggested by both the notion of factum used
only as a participle (e.g., „res factum est”) and the permitted use of
‘fact’ in English (e.g., “it is established as a fact that [...]”), a fact is not
what we allege or posit to be but that which we allege or posit is what
we do as a fact. How do we select from the ontologically undivided

4
totality those “relations” that, as a result of cognition, we may express
conceptually as a ‘fact’? [Varga (2012b)]
We have two alternatives for a possible answer. One is the path
covered by LEIBNIZ. He attempted to express the complexity of the
world in a conceptual-logical way in simple forms and, enchanted by the
Latin linguistic correctness, he posited everything he supposed to prevail
as elements of axiomatised sets and sequences. Albeit LEIBNIZ’s
experiment did not result in any verifiable or utilisable outcome [Varga
(1987)], his idea remained methodologically attractive. Eventually,
WITTGENSTEIN reconsidered its tradition in his early work Tractatus
logico-philosophicus (1921). The aim was to provide for the conditions
of formal logico-mathematical modelling. Accordingly, WITTGENSTEIN
first posited the world as a set of elementary components and then
reconstructed the latter as a whole of molecular aggregates, out of
atomic units. Proposing resolution for the paradox of cognition, he
posited the world as a fact, utterly value-free. At the same time, from the
context of his expositions, complex conceptual ideas were revealed,
although in a somewhat contradictory manner: Sachverhalt [atomic
fact], Tatsache [fact] and Sachlage [situation], through which, by
posited facts, the situation itself can render a statement true.
Well, what can be stated about elementary
c o n t e x t u a l i s a t i o n taking place in our intellectual manifestations?
Usually this is referred to as ‘situation’, ‘context’ or ‘evaluation’ in
psychology and cognitive sciences; for even if it is only claimed that “it
is raining”, there is contextualisation taking place. Out of elementarily
unorganised, undivided and unrelated acts of perception,
contextualisation is the basic unit of information, a piece that is already
formed from the outset: structured and related to background
knowledge. So it is already selected and moulded. This equals to saying
that any imprint of the subject in the senses is also a product of creative
human contribution.
The framework within which facts are conceivable is in advance
defined by its relevance to the approach within our tacit cultural
conventionalisation. The available set of facts is certainly not limited,
consequently neither the diversity of their possible aspects and
configurations, nor the variety of their approaches can be pre-defined or
foreseen.
Social roles (including administering justice) are performed by
h u m a n b e i n g s taken in their fullness of being, both in

5
psychological and sociological sense. Also their role-specific actions are
preconditioned by the totality of c o n d i t i o n i n g f a c t o r s , by the
balance they may draw between interests and values, among others—
independently of whether or not there is a formal institutional filter
wedged in-between, or expectations are simply mediated by the relevant
ethical ego.

5. End Result
Under the influence of the positivistic worldview, jurisprudence has up
to the present day mostly been concerned with formulating propositions,
by the way practically the same ones also asserted in modern formal law,
as the ideology of the lawyerly profession.
Accordingly, judicial decision-making is considered as a process
c o n s i s t i n g o f t w o e l e m e n t s , that is, operations with facts
and norms. Moreover, these two elements are claimed to be separated
clearly, as facts have to be established, and legal provisions, to be
applied. Thus, the essence of the decision-making process is projecting,
upon the basis of the cognition of reality, normative value-positions onto
this reality. As a consequence, the process itself is conceived of as
consisting of nothing but c o g n i t i v e and e v a l u a t i v e activities,
imposed upon one another. Therefore, the t h e o r e t i c a l moment
becomes decisive. For it is the fact that must be cognised for launching
the procedure. And the knowledge of what the ascertained fact is
preselects from the outset both the kind of judicial procedure and the
decision to be made in procedure. Accordingly, the procedure can only
be channelled by pieces of information which are made officially
available on facts and norms. Consequently, the fact that judicial process
is taking place within an authoritatively devised formal procedure is
only of an auxiliary character to keep the whole process in control, for
that it comes to an end within a reasonable time and with a definite
decision.
Ontology proves that ‘fact’ is nothing else but the expression of the
human act messaging that we have, in our practice, become attached to
some aspect of reality, thought to be existing. Such a
dysanthropomorphised masque disguises our very human relation to—
having got into anthropomorphic touch with—that aspect of reality. But
we know also from Gestalt psychology that every human manifestation
testifies to h u m a n e n t i r e t y in the fullness of being—in the same
way as human action can only be homogenised upon the very ground of

6
the heterogeneity of everyday human existence. Accordingly, the
judicial decision-making process is a practical procedure that asserts
requirements formulated by everyday life in a homogenised system,
through complying with a homogenised network of justification.
On the final analysis, ontological reconstruction presents the legal
phenomenon as a process itself, being formed constantly from a
sequence of intellectual operations that build upon each other, and is
conceived of as a series of events. And exactly because its existence is
p r o c e s s - l i k e , its intellectual reconstruction does not reduce it to
mere forms of objectivation or similar, artificially developed system(s)
of formal(ised) requirements. Moreover—and contrary to the traditional
world-view of legal positivism—it reveals that law cannot control us
primarily by means of physical force or coercion, through some
externally graspable objectivity. Rather, it conditions us by
becoming embedded in our social tacit
a g r e e m e n t s , as built into our social interactions through its
conventionality [Varga (2011c)].

References
Kaufmann, Arthur. 1982. Analogie und »Natur der Sache«, Heidelberg, Decker
& Müller.
Lukács, Georg. 1984-1986. Zur Ontologie des gesellschaftlichen Seins, I–II,
hrsg. Frank Benseler, Darmstadt. Luchterhand.
Perelman, Chaïm. 1976. Logique juridique: Nouvelle rhétorique, Paris, Dalloz.
Varga, Csaba. 1973a. “Quelques questions méthodologiques de la formation des
concepts en sciences juridiques”, Archives de Philosophie du Droit, vol.
XVIII, pp. 205-241.
Varga, Csaba. 1973b. “On the Socially Determined Nature of Legal Reasoning”,
Logique et Analyse, Nos. 61–62, pp. 21-78 & in: Chaïm Perelman (ed.):
Études de logique juridique, V, Bruxelles, Établissements Émile Bruylant, pp.
21-78.
Varga, Csaba. 1987. „Leibniz und die Frage der rechtlichen Systembildung”, in:
Karl A. Mollnau (ed.): Materialismus und Idealismus im Rechtsdenken:
Geschichte und Gegenwart, Stuttgart, Franz Steiner Verlag Wiesbaden, pp.
114-127.
Varga, Csaba. 1991. “Judicial Reproduction of the Law in an Autopoietical
System?”, in: Werner Krawietz et al. (ed.): Technischer Imperativ und
Legitimationskrise des Rechts, Berlin, Duncker & Humblot, pp. 305-313 &
“On Judicial Ascertainment of Facts”, Ratio Juris, Vol. 4, No. 1, pp. 61-71 &
„La nature de l’établissement judiciaire des faits”, Archives de Philosophie du
Droit, Vol. 40, 1996, pp. 396-409. <http://www.philosophie-
droit.asso.fr/APDpourweb/265.pdf>

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 Varga, Csaba. 1994. “The Nature of the Judicial Process”, in: Csaba Varga: Law
and Philosophy: Selected Papers in Legal Theory, Budapest, ELTE Project
on “Comparative Legal Cultures”, pp. 295-314.
<http://drcsabavarga.wordpress.com/2010/10/25/varga-law-and-philosophy-–
-papers-in-legal-theory-1994/>
Varga, Csaba. [1991] 2011a. Codification as a Socio-historical Phenomenon,
Budapest, Szent István Társulat.
<http://drcsabavarga.wordpress.com/2010/10/25/varga-codification-as-a-
socio-historical-phenomenon-1991/>
Varga, Csaba. [1995] 2011b. Theory of the Judicial Process: The Establishment
of Facts, Budapest, Szent István Társulat.
<http://drcsabavarga.wordpress.com/2012/03/13/varga-theory-of-the-judicial-
process-the-establishment-of-facts-19952011/>
Varga, Csaba. 2011c. “Law, Legal Process and the Judicial Mind”, Pоссийский
юридический журнал, Vol. 6, No. 4 (79), pp. 5-13.
<http://electronic.ruzh.org/?q=system/files/01.+Варга.pdf> &
<https://ppke.academia.edu/CVARGA/Papers>
Varga, Csaba. [1985] 2012a. The Place of Law in Lukács’ World Concept,
Budapest, Szent István Társulat.
<http://drcsabavarga.wordpress.com/2012/03/13/the-place-of-law-in-lukacs-
world-concept-19852012/>
Varga, Csaba. [1999] 2012b. The Paradigms of Legal Thinking, Budapest, Szent
István Társulat. <http://www.scribd.com/doc/85083788/VARGA-
ParadigmsOfLegalThinking-2012>
Varga, Csaba. 2013. “The Contemporaneity of Lukács’ Ideas with Modern
Social Theoretical Thought: The Ontology of Social Being in Social Science
Reconstruction with Regards to Constructs like Law”, Archiv für Rechts- und
Sozialphilosophie, Vol. 99, No. 1, pp. 42-54.
<http://ssrn.com/abstract=2388407>
Wittgenstein, Ludwig. 1921. „Logisch-philosophische Abhandlung“, Annalen
der Naturphilosophie, Vol. 14, pp. 185-262. In English,
<http://www.gutenberg.org/files/5740/5740-h/5740-h.htm>

Notes on contributor
CSABA VARGA is Research Professor Emeritus at the Institute for Legal Studies of the Hungarian
Academy of Sciences and Professor Emeritus at the Pázmány Péter Catholic University of Hungary,
founder of its “Place of Excellence” awarded Institute for Legal Philosophy. His interest ranges from
legal philosophy & methodology via patterns of judicial thought to comparative legal cultures. His
fourteen authored—see <https://ppke.academia.edu/CVARGA>—and nineteen edited books in
English/German include his editions such as Comparative Legal Cultures (Aldershot: Dartmouth &
New York: New York University Press 1992) and Marxian Legal Theory (Aldershot: Dartmouth &
New York: New York University Press 1993) as well as European Legal Cultures (Aldershot:
Dartmouth 1996), in addition to his reediting interwar Hungarian legal philosophy in his series
Philosophiae Iuris: Excerpta Historica Philosophiae Hungaricae Iuris (Budapest: Szent István
Társulat).

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