Сравнительные правовые и политические исследования, 2013, №2 (2)

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ISSN 2309-2653
DOI 10.12737/issn.2309-2653

Volume 1
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Саломатин Алексей Юрьевич
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и права и политология», руководитель
Научно-образовательного центра
сравнительной правовой политики
Пензенского государственного университета
(Россия)

Сокольникова Ольга Александровна
(Россия)

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ISSN 2309-2653
DOI 10.12737/issn.2309-2653

Том 1
Выпуск 2
Ноябрь 2013

СРАВНИТЕЛЬНЫЕ  ПРАВОВЫЕ

И  ПОЛИТИЧЕСКИЕ  ИССЛЕДОВАНИЯ

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Comparative studies in law and politics (2013) Vol. 1. Issue 2

RIOR
Сравнительные правовые и политические исследования (2013). Том 1. Выпуск 2

ТЕОРИЯ И ИСТОРИЯ
СРАВНИТЕЛЬНОГО ПРАВОВЕДЕНИЯ

 65 Значение термина «право»
в сравнительном
правоведении
Варга Чаба

ПРАВОВЫЕ СИСТЕМЫ СОВРЕМЕННОСТИ

 76 Правовые системы современности 
и их интегративная классификация
Саломатин А.Ю.

СРАВНИТЕЛЬНО-ПРАВОВОЙ МЕТОД
В ОТРАСЛЯХ ПРАВА

 81 Проблемы развития законодательства 
и судебной практики в сфере 
корпоративных отношений в России 
и Германии: сравнительно-правовой аспект
Санисалова Н.А., Салдаева Е.Ю.

 87 Неправительственные организации 
в Российской Федерации и за рубежом: 
актуальные вопросы правового статуса 
и функционирования
Лысенко В.В.

 94 Правовой статус региональных языков 
или языков меньшинств: 
украинский и зарубежный опыт
Витман К.Н.

100 Политико-правовая природа института 
присяги президента (на основе 
сравнительного анализа конституций)
Стойко Е.М.

THEORY AND HISTORY 
OF COMPARTIVE LAW

 65 The meaning of «Law» in comparing laws,
оr the Complexity of what the object
of legal comparison is
Csaba Varga

CONTEMPORARY LEGAL SYSTEMS

 76 Contemporary legal systems and their 
integrative classification 
Alexey Salomatin

METHOD OF COMPARATIVE LAW 
IN THE BRANCHES OF LAW

 81 Problems of development of legislation 
and judicial practice in the field of corporate 
relations in Russia and Germany:
a comparative legal aspect
Natalia Sanisalova, Ekaterina Saldaeva

 87 Non-governmental organizations
in Russia and abroad:
actual issues of legal status
and functioning
Vladlena Lisenco

 94 The legal status of regional
or minority languages:
Ukrainian and foreign experience
Konstantin Vitman

100 Political and legal nature of the presidential 
oath institute (based on comparative
analysis of constitutions)
Olena Stoyko

СОДЕРЖАНИЕ
CONTENTS

III

Comparative studies in law and politics (2013) Vol. 1. Issue 2

RIOR
Сравнительные правовые и политические исследования (2013). Том 1. Выпуск 2

СРАВНИТЕЛЬНАЯ ПОЛИТОЛОГИЯ

108 Конституционный стартап России 
в контексте глобальной 
конституционализации
Ильин А.В.

113 О рецепции опыта американкой 
двухпартийной системы в современной 
России: за и против.
Нужна ли современной России 
американская модель двухпартийной 
системы?
Байбакова Л.В.

118 Компаративистский характер дисциплины 
«Мировая политика» (из опыта 
преподавания юристам-магистрантам)
Наквакина Е.В.

ВСТРЕЧИ. КОНФЕРЕНЦИИ

121 Международный компаративистский 
форум
Кресин А.В., Бехруз Х.

На последних страницах журнала 
можно найти:

• информацию для авторов;

• информацию о всех журналах
ИЦ РИОР;

• условия подписки

COMPARATIVE POLITICAL SCIENCE

108 The constitutional startup of Russia
in the global constitutionalization
context
Andrey Ilyin

113 On reception of the American
two-party system experience
in modern Russia:
pros and cons
Larissa Baibakova

118 Comparativist character of world politics 
as discipline (from the experience
of teaching to post graduates)
Ekaterina Nakvakina

MEETINGS. CONFERENCES

121 International forum
on comparative law
Alexey Kresin, Hashmatullah Bekhruz

On the last pages of the journal
you can fi nd:

• information for the authors:

• information about all the journals
of RIOR;

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IV

RIOR

Comparative studies in law and politics (2013) Vol. 1. Issue 2: 65–75
DOI 10.12737/1927

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Сравнительные правовые и политические исследования (2013). Том 1. Выпуск 2. С. 65–75

Th e meaning of «Law» in comparing laws,
оr the Complexity of what the object of legal comparison is

Csaba Varga
Professor Emeritus, Catholic University of Hungary; Research Professor Emeritus, Institute for Legal Studies of the Hungarian Academy 
of Sciences; e-mail: varga@jak.ppke.hu; http://drcsabavarga.wordpress.com

Manuscript received: 15.08.2013. Revised: 30.08.2013. Accepted: 05.09.2013. Published online: 01.11.2013 © RIOR

Abstract. Comparative jurisprudence as an extension of 
the scholarly cultivation of domestic laws, closed down 
within its respective national boundaries, is historically 
rooted in the realisation of how much the self-closing of 
continental laws, based upon their national codifi cation 
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 fi rst step — could not 
target but its statutory form. Albeit there have been 
mentions by the classics of legal comparativism, emphasising the signifi cance 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.
Every moment contributing to a decision in law is 
ambivalent in itself: nothing is compelling by its mere 
existence. Th erefore 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-defi ned 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.
Th at what is identifi able of law when no implementation or judicial actualisation is priorly made is a dynamei 
[potentiality to get actualised] at the most, which can 
exclusively become anything more through an instrumental operation by legal technique. Accordingly, law is 
made up of (1) a homogenised 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.
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 offi  cially enforced or at least tacitly 
acknowledged as the realisation 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 re
ЗНАЧЕНИЕ ТЕРМИНА «ПРАВО» В СРАВНИТЕЛЬНОМ 
ПРАВОВЕДЕНИИ
УДК 340.5 
Варга Чаба
почетный профессор Католического университета Венгрии, 
Институт правовой философии; почетный профессор-исследователь Института правовых наук Венгерской академии наук; 
e-mail: varga@jak.ppke.hu; http://drcsabavarga.wordpress.com
Статья получена: 15.08.2013. Рассмотрена: 30.08.2013. Одобрена: 
05.09.2013. Опубликована онлайн: 01.11.2013 © РИОР
Аннотация. Статья описывает право с позиции его как результата правовой политики и функционирования юридической техники. Она принимает во внимание взаимодопол
няемость формализма и антиформализма в праве. Автор 
определяет также право с позиции его потенциальных возможностей и актуализации. Он подчеркивает существование 
дилеммы конституционности выносимого судебного решения. Делается заключение о сути методологии правового 
сравнения.
Ключевые слова: сравнительное правоведение/сравнение 
правовых культур; право в книгах/право в действии; правовая 
политика, правовая техника; формализм/антиформализм в 
праве; право как возможность/право как реальность; конституционность вынесения судебного решения; способность к 
правовому воображению; лингвистическая медиация; правовой догматизм; принципы/положения.

Comparative studies in law and politics (2013) Vol. 1. Issue 2: 65–75

66

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Сравнительные правовые и политические исследования (2013). Том 1. Выпуск 2. С. 65–75

ferred to as norms, comparison has to target and involve 
the patterns of judicial thought (argumentation and reasoning, i.e., lawyerly ideology as a specifi c species of professional deontology) as well.
Keywords: comparative law / comparison of legal cultures; law in books/action; legal policy, legal technique; 
formalism/anti-formalism in law; law as potentiality/
actuality; constitutional adjudication, legal imaginability; linguistic mediation; legal dogmatics; principles/
clauses

Comparative jurisprudence as an extension of the 
scholarly cultivation of domestic laws, closed down 
within its respective national boundaries, is historically rooted in the realisation of how much the selfclosing of continental laws, based upon their national 
codifi cation 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 
fi rst step — could not target but its statutory form. 
Albeit there have been quite a few mentions by the 
classics of legal comparativism emphasising the signifi cance of the law’s sociological entourage and cultural embeddedness, neither the direction nor the 
methodology of research has changed adequately and 
to a transformative depth since.
Markedly expressed, where the reduction of ius to lex 
(or, in its original meaning, право to закон) asserted 
itself the most uncompromisingly in the fi nal segregation 
of national systems of law into their jurisdictional boundaries thanks to their codifi cation, there the need was felt 
the most strongly to transcend national self-seclusion 
through extending their perspective to neighbouring and 
further countries, through developing the comparison 
of what could be seen as variations to mostly one and 
almost the same topic. And such an origination predestined the instrument of overcoming itself to become 
captive of its own genesis: statutory one-country-centeredness became cured and substituted to by statutory 
multi-countries-centeredness.

1. Law, inspired by legal policy and operated by 
legal technique

Once, at the birth of law, two human motives assisted in 
mutual complementation: the need of ordo [order] and 
the germ idea of interference through social engineering. 

In the course of later development the invention of law 
and legal policy helped to meet such requirements, which 
in a chick-and-eggs parallellity made up for that what 
was meant simply by “law”, with a unilateral emphasis 
on one of the sides of a complexity.
Th e term “legal technique” has to encompass, in principle, both legislation and the application of law. Although ‘legal technique’ is most oft en referred to in literature as the instrumental know-how of legislation [1], 
for me it is an instrumental skill, covering the entire 
legal process from making to applying the law. For, back 
in early historical times, human civilisation has developed something called “law”, as well as something else 
called “legal policy”. Th e latter symbolises, in a wider 
sense, the entire social medium in which a community 
of people, organised in a country, aims at achieving some 
goal(s) in a given manner through a specifi c medium. 
In a narrower sense, legal policy relates to the fi eld of 
politics as organised partly in terms of legislative power 
and, together or alongside with it, partly in terms of governmental power (with public administration, including 
crime control) and, as the third branch of the state power, in terms of judicial power — all working in their ways 
so that legal positivations can be implemented and actualised through a series of individual offi  cial decisions 
[2]. In the fi nal analysis, legal technique serves in fact as 
a bridge between law as an issue of positivation and its 
practical implementation as shaped by legal policy considerations.
Nowadays, the designation “law” is actually used to 
denote modern formal law. Th is is categorised in a sequence of concepts and made dependent upon further 
formalities under the coverage of logic, inasmuch as it 
builds around itself a quasi-geometric structure in which 
conclusions have to be deduced and, in some arrangements, publicly motivated and justifi ed as well. However, in contrast with the recurrent image of the lawapplying automaton suggested by this pattern [3], real 
judges are genuine humans with proper ethos, conscience and morality, who themselves act, too, under 
the pressure of their actual or targeted identifi cation 
with a huge variety of further social roles. Th is is why — 
despite their professional education and socialisation — 
judges fi lter their understandings of the law and of the 
legal relevancy of facts through their own personalities. 
As ethical beings, each endowed with a particular belief, 
world-view and socio-political sensitivity, each may 
(and, indeed, has to) feel inevitably responsible for his 
or her decisions and also for what shapes will be given 
to the law by that decision as an ontologically active and 

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Сравнительные правовые и политические исследования (2013). Том 1. Выпуск 2. С. 65–75

existentially decisive contribution [4]. For, reminding 
us of the advance of homogenisation in various aspects 
(spheres and fi elds) of human activity, George Lukács 
has already pointed out that the dilemma faced by any 
judicial decision originates as a result of experiencing 
some real social confl ict. It is only the legal profession 
that, searching for a solution by homogenising this confl ict as a case in law, will resolve it in a way so as to 
present it as an apparent confl ict that also will have been 
responded to by the law [5, especially ch. VI, para 4.]. 
For, as Scandinavian Legal Realism has shown on the 
one hand, speaking in social terms, humans are certainly not compelled but may feel to be obliged by and 
according to past habits taught to them, transforming 
their everyday behaviour into one conditioned by them. 
And, as the realisation of hermeneutics would resume 
on the other hand, on the fi nal analysis text is what gets 
understood out of it, thanks to interpretation that gives 
it a meaning.

2. Th e complementarity of formalism and 
anti-formalism

A few decades ago, Georges Kalinowski’s formalist stand 
was challenged by the antiformalism of Chaïm Perelman. 
Th e rear-guard fi ght continued for a long time, and in 
the meantime Aulis Aarnio, Robert Alexy and Aleksander Peczenik invariably attempted, in their theories 
of legal argumentation, to balance between logicism and 
argumentativism, so as to provide some explanation that 
presents the decisions actually reached in law as ones to 
be fi nally inferable with uncompromising consequentiality and coherency from the very law. It was Peczenik — 
having adhered, in the beginning, to perhaps the most 
formalist attitude among the above — who fi nally arrived 
at a critical self-limitation, notably, at the recognition 
and formulation of the fact that, linguistically and as 
viewed from the aspect of a justifi able logical reconstruction, the fi nal (or any) conclusion in law is eventually 
nothing other than the product of a logical “transformation” and, in it, of an inevitable “jump” [6]. For one has 
to shift  from one level of conceptual description (e.g., of 
the object-language) to another (e.g., of the meta-language formulated by the law), as a result of which the 
sequence of genuine inference(s) is arbitrarily but necessarily interrupted in logic. Resuming the same Lukácsian 
train of thought mentioned above, we may even add 
that from an analytical point of view, the actual confl ict 
only becomes an apparent one when the judge rids it of 
its problematic character through the available means 

of linguistic (re- or trans-) classifi cation, that is, through 
the act of categorisation within the adopted classifi cation — like a deduction within a given scheme, which 
is homogenisation itself, breaking up the originality of 
the primitive heterogeneousness of the implied phenomenon [7].
For me, the paradigmatic basis of such a reconstruction is that every linguistic expression is ambivalent from 
the outset, because nothing in our world has coercive 
force in and by itself. Just in the manner as the courtroom 
is in fact a magic stage practically identifying the law 
with what the court has referred to it as a result of an 
authoritative decision-making.
It is to be remembered that hardly half a century ago 
scholars of law might have felt the paradigmatic basis 
above to be right when taking a classical positivistic 
stand. For instance, the Hungarian Imre Szabó (once the 
sole jurist to be the member of the Soviet Academy of 
Sciences) in his Th e Interpretation of Legal Rules [8, especially part III on «Th e result of interpretation», pp. 
237–325] attempted a methodically unyielding reconstruction. According to him, for the lawyer everything 
is simply given, including law itself. When lawyers come 
into practical contact with law, they only eff ect chains of 
operations on what is already given, eventually approving of, extending or narrowing it. Yet if the judge might 
deem that by way of his or her interpretation the judge 
will have actually added to or extracted from this already 
given thing, all this shall qualify, if at all, exclusively as 
projected back to and reassessing the judge’s preliminary 
assumption and interpretative intention but by far not 
as the given thing in question: through interpretation, 
the judge can at most declare what qualities have ever 
been present as existing and prevailing from the very 
beginning. Consequently, legal technique is an instrument for judges to declare — rather than to create — 
notional identities. Th is is the position of classical legal 
positivism, which became eroded in Western Europe 
following World War II, but which for a while became 
even further strengthened (with the ideological overtone 
of “Socialist normativism” as exemplifi ed by the above 
instance) in the Central and Eastern European region, 
owing to a whole complex of Lenin-cum-Stalinian and 
Vyshinskyan inspirations, all rooted back in Western 
European jurisprudential developments, characteristic 
of the 19th and early 20th centuries.
Accordingly, no notice was taken either of the fact 
that all the above was but one alternative of judicial ideology, which may favour static and dynamic interpretation as well, or of the realisation that the judicial event 

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cannot be but subordination, i.e., subsuming re-categorisation of facts of life within a notional system, and, as 
such, a creative contribution, constitutive by its eff ects.

3. Law as potentiality and actualisation

In consequence, my view of legal technique implies — 
here subjecting the micro-analyses carried out so far 
to further micro-analyses — just the contrary, namely, 
that nothing is given as ready-made: our life is an uninterrupted sequence of materialisations from among 
an infi nite range of potentialities. Th erefore, in every 
event when a decision is made, it is something selected that becomes actualised. (It is thus by no mere 
chance that anthropological case-studies have led to 
the recognition that the judicial event is the real life — 
and stands for the test — of the law in American legal 
thought.) Th e use of law is also actualisation of the law, 
and legal technique is a compound made up of feasible 
and practised forms of how to proceed on and justify 
in law. And I do repeat here that every moment contributing to the decision made in law is ambivalent in 
itself, and nothing is compelling by its mere existence. 
For we have to know in advance — if only to start at 
this point the specifi cally hermeneutic explanation — 
what the law is, what we can do with it and what we 
can achieve through its instrumentality in a given culture, so that we can successfully argue with and within it. Or, it is necessarily a given auditoire [1] faced 
with a real situation of life and, within it, a defi nite 
context as well, together with its concrete social, ethical, economic and political implications, in which we 
can extend or narrow our interpretation and qualifi cation. Or, all this is somewhat similar to the sociological description by Kálmán Kulcsár of the “situation of 
law-application”, taken as a socially thoroughly conditioned situation, saturated with moral and all other 
kinds of consideration, in which any question can at 
all be raised and answered; in which ideas, presuppositions and alternatives can be reasonably formulated; and within which law in action or, in the fi nal 
analysis, the eventually historically evolved legal culture of an entire nation, will accept or reject one given 
alternative, as the manifestation and fi nal declaration 
of what the law is, on a concrete issue [10]. (By contrast, 
in Szabó’s approach legal technique merely applies the 
fi nitely ready-made law, by operating it when declaring 
a meaning that has — according to him — been assigned to it from the very beginning; consequently, 
there is nothing genuinely process-like in it that could 

require a personal position taken and responsible human choice made.)
What is identifi able of law with no prior implementation or judicial actualisation is a dynamei [potentiality to get actualised (like seeds growing into plants)] at 
the most, which can only become anything more 
through a legal technical operation, when it may already 
gain an ontological existence (in the sense Lukács used 
the term), asserting itself by exerting an infl uence upon 
social existence [2]. Th is way, in its everyday functioning, law seems to embody two different mediums: a 
homogenised formal concentrate, on the one hand, and 
a practical action dominated by felt needs, on the other; 
and it is their amalgamation that will appear subsequently to the outward world as law converted into reality. In the fi rst decades of the 20th century, it was François Gény in France and Jean Dabin in Belgium who 
pioneered describing this metamorphosis as openchanced in logic (and therefore “magical” [3]), which is 
the necessary outcome when a practical response is 
concluded from a pure form [13]. Or, this is the source 
of recognition according to which legal culture implies 
something added that cannot be found in law taken with 
abstract formality — and this, again, is provided by legal 
technique. Th us, legal technique is the cumulative eff ect 
of intentions and skills, procedures and methods, sensitivities and emphases aimed at producing some given 
realities (and not others) out of the given dynamei in 
the name and as the act of — and in a stated (as alleged) 
conformity to — the “law”.

4. Th e dilemma of constitutional adjudication

If all this is true, we may establish that in our recent 
“constitutional revolution” accomplished under the 
abstract norm-control of the Constitutional Court of 
Hungary, in the decisions taken by its justices as to 
crucial issues of the transition process (ranging from 
compensation for property dispossessed under Communism to coming to terms with the Socialist crimes 
in violation of the criminal law in force at the time) 
with a homogenising view developed from their “invisible Constitution”, the justices themselves hypostatised 
(or construed as a background existence, of a conceptual entity) in order to create a substitute for (or, properly speaking, to disregard and surpass) the written 
Constitution exclusively in force. Well, those decisions 
annihilated (as with a kind of axe axing everything to 
get axe-shaped) rather than answered the underlying 
great issues calling for matured responses in law; for 

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the Court in fact practically failed to give any genuine 
answer to the underlying social problems that were to 
generate these great issues. In the name of legal continuity, the rule of law as conceived by Hungary’s fi rst 
constitutional justices has turned out to be more inclined to develop solidarity with the tyranny of the 
past than to understand and foster the genuine meaning of the transition as an opportunity to make a new 
fresh start, by helping a truly socio-political change to 
progress, as had been widely expected. Actually, they 
preferred the blind logicism of formalism deliberately 
disabling itself to laying the genuine foundations of 
the rule of law by calling for the implementation of its 
particular ethos and values, in contrast to the perhaps 
more balanced German or Czech variations of constitutional review that — as appears from some of their 
momentous decisions [4] — instead of taking the rule 
of law as simply ordained from above, cared for it as a 
common cause, pertinent to the whole society, by responding to the latter’s lawful expectations in merits. 
If this was a failure in Hungary, it was, indeed, one of 
legal technique: the failure of the legal profession and 
of its positivistic self-closure, basically indiff erent to 
the moral and socio-psychological foundations of a 
genuine rule of law. Indeed, those who, as a result of 
an encounter with historical incidents, happened to 
be in the position to decide on law and constitutionality at those moments, declined to face the problem 
itself, unlike their numerous fellows in other countries 
of the region. Seeing the world in black and white, they 
subordinated all other values, which were no less crucial, to a single value (in itself doubtless crucial) of 
certainty of law taken in a purely formalistic sense, 
denying and, thereby, practically excluding the relevance of all further values, including justice and anything of the merits of the case in question. It was as if 
the decision were just a knockout game with a lot at 
stake (notably, gaining or losing everything), and not 
a process requiring the rather tiring job of weighing 
and balancing among values — each of which may 
need to be considered equally seriously through the 
art of searching humbly and indefatigably for a feasible 
and justifi able compromise through exhaustive pondering via hesitations and long maturing until a fi nal 
decision can be reached (as it had once been the case 
of the primitive ideal of law taken as justice of the 
individual occurrence, called dikaion), — rather than 
a total reduction to a simple act of will, by diff erentiating away and aside any aspect and argument not fi tting 
into the line of this wilful determination, i.e., an act of 

reduction to elementary and primitive forms (manifested, by the way, by dicing, as well, or even by showing a thumb turned down) [15].
In an earlier paper [16], I have already described how 
a change to any law can be eff ected through either the 
direct modifi cation of its textual wording or the reshaping 
of its social interpretative medium, by tacitly reconventionalising the conventions that may give it a meaning. 

Well, this duality explains why the same rule does not 
necessarily work in the same way in diff ering cultures, 
or why it is generally not enough, when implementing 
reforms in society, only to have a law simply imposed or 
adopted under the push of forceful pressure-groups (like, 
e.g., a series of race relations acts in the United Kingdom 
[17] or the regulation of nationalities and minorities issues in the so-called successor states created by the dissolution — in terms of the post-WWI Peace Treaty — of 
historical Hungary). Maybe there is a third, alternative 
path as well, aff orded by shaping further specifi c legal 
techniques so as to be able to bring about changes in the 
long run, without even modifying the law’s texture or its 
social conventionalisation (e.g., as part of modernisation 
strategies through the law, recurrently proposed and also 
analysed by Kulcsár [18]).

5. Th e illusion of frontiers set to legal 
imaginability

It was during the fi rst debate in Hungary on how to come 
to terms with the past Socialist crimes under the rule of 
law that I realised (in responding to the preconceived 
reservations of György Bence, both initiating and at the 
same time sidetracking the debate) [19] that there may 
be some deep truth in what René Dekkers used to allude 
to in his time: that is, conceivability in law is by no means 
simply a function of the law itself but is as much one of 
society-wide understanding and interpreting what law 
ought to be, in constant dialogue with what the law seems 
to be. Th is is to state that what can be rationally and 
logically justifi ed is also mostly feasible in the law. Or, 
as Perelman concluded from an analysis of historical 
instances as methodologically evident [20]: providing 
that socially properly weighty considerations prevail, 
society can (together with the legal profession and legal 
academia) indeed mobilise the means of rational justifi cation with proper logical standards so that the necessary and available effect is eventually also legally 
reached [21].
And as Hans Kelsen in his later age reconsidered his 
theory of law-application, in terms of which the preva

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lence of legal qualities (‘lawfulness’, ‘constitutionality’, 
etc.) — not their “existence” but the very fact that (as a 
result of the act of qualifi cation by a competent agent in 
the law, if there is any) the “case” of such qualities is offi cially established or construed — is never one of a quality existing in se et per se but the function of an act in 
procedure by a procedural actor with proper authority, 
that is, the consequence resulting from a decision that is 
actually taken in and according to the law. Furthermore, 
neither incoherence nor contradiction in se et per se can 
be found in law [22]. Well, translating the message of all 
this to our question here, we may conclude that the circumstance that some proposition apparently running 
against a legal provision is in principle excluded from the 
law only means — in the language of the Kelsenian (eventually processual) normativism — that I, as an offi  cial 
actor in procedure, cannot declare openly that the proposition I am just introducing offi  cially in the law runs 
against the same law.
Th e interest of Gény and Dabin was aroused precisely by their recognition of the importance of legal 
techniques, in that such techniques provide instruments 
for the lawyer to build constructions, in terms of which 
what is conventionally and determinedly preferred by 
important sectors of society to be achieved (guaranteed, 
etc.) will also be legally feasible (conceivable and realisable) in principle, at least in average cases. It was during 
my fi rst visits to the Czech Republic, then, later, to Israel and then to the United States (especially aft er the 
terrorist attack of September 11), while studying their 
professional texts (including the legal and political substantiation of their claims, and the latter’s argumentation 
and styling), that I felt that in some societies, able to 
organical self-building, a social substrate may develop, 
in the womb of which (at least in certain key fi elds such 
as the national survival strategy and other especially 
sensitive areas) a nation-wide consensus can historically crystallise regarding those issues they have for long 
and determinedly been wanting to realise. Further, sharing a tacit awareness of it, mechanisms also may develop 
to work for its optimum attainment tirelessly and even 
through detours if necessary, always returning to the 
main track; and these societies do mostly develop by 
becoming structured enough (in their entirety, as to their 
professions and media, etc.) that, eventual external and 
internal strains notwithstanding, their dominant will can 
eventually prevail.
Th e interest of Gény and Dabin was awakened precisely by the whirling theoretical perspective of the 
realisation that law — expressed with an outsider’s 

cynicism — depends on its cultural (“hermeneutical”) 
environment to such an extent that — speaking in extremes — almost anything, as well as its opposite, may 
have a chance of equally standing the test of the law; 
this, of course, not through any kind of a formal or 
substantive violation of the law but, quite to the contrary, due to the exceedingly sophisticated elaboration 
of the proposed solution, after having constructed 
(with deepened comparative and historical knowledge 
of law and legal practice, consciousness of past experience and uses of channels of argumentation once 
proven successful) all the bridges of argumentation. 
So that it is possible to achieve, for instance, that by 
the end of a mandatory dependence and through the 
extending generalisation (by no means customary in 
cases of punitive retaliation with civilised nations) of 
a law (the continuation of validity of which is expressly denied by the one-time colonising power but reasserted as a validity allegedly inherited by the successor state), collective responsibility is instituted and/or 
extraordinary coercive sanctions are meted out with 
lasting and irreversible eff ects, without the protection 
of either procedural guarantees or judicial control, as 
a legally justifi able preventive measure [5].

6. Th e consequences of linguistic mediation

Behind all these considerations concerning the simultaneity of applicative and creative eff ects of the so-called 
law-applying process, there is a stimulating strain that 
prevails between living language(-use) and the blind (and 
in itself empty) logicism of a system homogenised 
through a formalising fi lter. And the signifi cance of legal 
technique and the inevitably magic transformation effectuated in any legal process may become comprehensible only in the moment when we realise 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. Th anks to its reserves, language off ers paths 
and ways how to proceed, although, if examined more 
closely, these are extremely uncertain signals, full of ambivalence. Th is is a circumstance not especially striking 
in everyday usage in terms of pure logic, for all the gaps 
left  by such signals are always on their way to become 
completely fi lled 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 

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interactions, and legal technique serves as just a bridge 
helping the lawyer to reach a concrete and defi nite legal 
conclusion.
Language provides a means for us to express and receive messages, a means that does not label itself. No 
matter what I say, all I can do is only to indicate (perhaps 
even mistakenly or misleadingly) at what level, in what 
layer and whether conceptually or in some other way 
I do so. And the meta-reconstruction by those whom 
I have addressed will approve of or modify — i.e., interpret — it anyway. Th at is, linguistically transmitted 
information always is labelled subsequently and retrospectively, upon the basis of our mutual comprehension 
at any time, that is, upon the basis of contexts constructed and construable exclusively by us in view of 
the aims of the given communication.
Consequently, the aspiration of any objectivist approach to designing law as able to carry on independent, sovereign, unequivocally comprehensible and by 
no means individually specifi c clear messages is indeed 
the principal motive force of modern formal law in its 
development at any given time. As is well known, 
judges distinguishes their judicial quality from their 
common selves by wearing powdered wigs and specifi c robes when they act as a judge, and, as a result of 
their socialisation, they also wear such ritual signals 
of this diff erentiated self when this allusion does not 
appear physically, as the symbolic particularity of their 
clothing, but only in each judge’s own way to act as a 
decision-maker in law. Yet, the formal logifying claim 
that concrete norms as applied to concrete facts are 
deduced from abstract norms is by no means naturally given but is — irrespective of its actual social 
support — an artefact made by a normative requirement as the internal rule of the legal game, which, however, can only be asserted in some specifi cally given 
micro- and macro-sociological situation, in the defi nition of the fi eld of meaning of which the judge also 
takes part inevitably with his or her entire personality, 
and, in this defi nition, subtle shift s of emphases, indiscernible in themselves, may also add up to defi nite 
shift s of direction in the long run.
All this means that endeavours to create homogenisation and unambiguity go hand in hand both 
with the incessantly continuous attempt to reach 
these in practice and their necessary stumbling in 
new heterogeneities and ambiguities, that is, with a 
continuous tension that constantly maintains both 
the strain (in theory) and the attempt (in practice) 
to resolve this once and for all. As if hyperbolic 

curves were at stake, we are fighting for definite aims 
but meanwhile we are also moving away from them, 
unavoidably making detours again and again. Or, 
the sphere of action of the judge is certainly limited 
but in terms in which, i.e., what and how, is also 
ambivalent. For, when deciding a case, we place artificial human constructions into a homogenising 
medium in order to apply its rules to them. However, we cannot entirely separate these human-made 
constructs from the naturally given heterogeneous 
environment of their usages; consequently, in each 
moment and operation, their eventual partial definition by real-life situations will also be inevitable, and 
of a genuinely ontic significance.

7. Th e conceptual framework drawn by legal 
doctrines

Th e only way available to the legislator to act is to produce a text and, at once, also label it, as if proclaiming 
to the outside world: Behold, law, that is, a norm-text, 
valid and eff ective according to the law’s own rules, has 
hereby been promulgated. In ancient Iceland, for instance, laws used to be recited by the law-speaker standing on a rock amidst the folks’ gathering, and from it 
loudly declaring what the law’s formal consequences 
were [26]. Modern formal law surpasses this level of 
practical action in as much as its doctrinal aspirations 
do not stop at actuating a set of norms as mere texts; it 
formulates, with the help of a series of linguistic and 
logical operations, a conceptual system from their amalgamate, too. Th e doctrine emerging from this is again 
not a readily given result but a process itself. It is what 
we are socialised in; thus, we, as lawyers, also shape it 
to some extent incessantly. Consequently, we suppose 
from the outset — and rightly so — that when we are 
establishing or applying a rule, we all resort to conceptual instruments refi ned to a systematic set in the doctrine. Th at is, there is a specifi c kind of co-operation to 
be seen both at the level of linguistic signs and at the 
meta-level of the commonality of meanings in defi ning 
the rule. So, if any one of us says anything about the law, 
the other will understand something similar or comparable to what the former might have meant by saying it, 
thanks to our common professional socialisation, doctrine and practice, all acquired, mastered and further 
shaped in common by us, even if this deep cultural embeddedness of meanings cannot be found in the linguistic formulation itself. Or, to explain more precisely, if 
this natural environment of meaning is neither repre

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sented in the signs themselves (semiotics) nor in their 
strictly defi ned and generalisable meanings (semantics) 
but does feature exclusively in the reconstruction of the 
very meaning at play from the practice of timely language use (praxeology), this amounts to a statement 
that, ontologically speaking, only actual use is able to 
give actual existence to it all. That is, it is language 
through which we communicate but, meanwhile, we 
do operate in fact with concepts elaborated to their systemic completion in the reconstructive language that 
stands above the object-language as a meta-language, 
presumed as actually signifi ed by it [27]. Well, it is just 
the doctrinal study of law (the classical Rechtsdogmatik) 
that forms the second level, which has in common with 
legal techniques that both are (supposed to be) applied 
whenever law is referred to in practice.
Th e doctrinal study of law, too, has a technique of 
its own, obviously. All these and similar techniques are 
certainly interrelated but are far from being identical. As 
was once established by Bronisław Wróblewski (the professorial father of our friend, Jerzy Wróblewski, who 
recently passed away), the law and its doctrine, as well 
as legal scholarship and jurisprudence (or the law in practice), all have their own languages that are discernible 
from each other [28]; and, as we may conclude from this, 
similarly, these various techniques have partly diff ering 
stores of instruments, too. As is well known, Jhering and 
Savigny equally emphasised back in their time that the 
techniques of the doctrinal study of law follow a basically theoretical model, as patterned in both theological 
dogmatics and other thoroughly formalised systems of 
mental representation; or, jurisprudents do employ the 
logical instruments of conceptual analysis fi rst of all. At 
the same time, it should be remembered that the phenomenon I have earlier in this paper referred to as techniques with an eff ect resulting in a magical transformation in practice does not obviously suggest any priority 
guaranteed to the instruments of logics, for it has presented the techniques of law as basically techniques of 
reasoning. It is characteristically the medium of reasoning within which we may want to restrict or expand the 
fi eld of application of a rule, in light of the understanding of given practical issues and contextures. However, 
it is not simply casually any longer, but as — and within — the description of the notional relationships among 
rules and thereby also of the texture of actual regulation, 
that conceptual analysis re-formulates — by means of 
conceptual diff erentiation and classifi cation, induction 
and deduction (etc.) — the notional set of the law’s categories, as constituents of a mentally represented system.

8. Th e role of principles and clauses

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 categorisation becomes questioned 
in a borderline case (classifi able or not into a given category), logic, too, becomes at once irrelevant, as it has 
no message whatsoever specifi c to borderlines that may 
transcend the bounds of everyday routine in practice. 
Th is is why my bewilderment as a fi rst reaction calmed 
slowly down to melancholy from outrage when, back 
deeply in Socialilsm during the 1970s, I was fi rst appalled to realise that in the case of clauses governing 
the proper use of rights in civil codes, essentially the 
same thing is at stake as in the case of the sine qua non 
criterion that the deed must display an actual danger 
to society, taken as a conceptual prerequisite of criminal 
acts in the general part of penal codes. Notably, 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 (and perhaps also to 
exception from further exceptions) — to the exclusion 
of only one single a case, namely, when applicability of 
such a general clause or principle from somewhere in 
the general part of the code emerges. For instance, in 
Socialism, whenever any grounds for suspicion of a case 
of either abuse of rights or lack of actual danger to 
society emerged, all the stuff  of the strict and minutely 
detailed regulation off ered by the entire special part of 
the code at once became non-applicable as irrelevant, 
with the questioned case judged in almost a legal vacuum, with the sole reference to one or another general 
principle or clause laconically draft ed in the general 
part.
Passing over the actuality of typical abuses by the 
practical annihilation of the law in Socialism [29], we 
are to characterise legal technique as a specifi c store of 
instruments by which all these features have been present 
in any legal culture from the very beginning, alongside 
the conclusion that the above paradox of the law’s demand for strict conformity except in cases of out-of-routine situations left  in a barely limited wilderness (involving a self-contradiction of quite an ontological nature) 
is and does remain a symptomatic property of any law 
indeed. Notably, attempts are fi rst made to homogenise 
law in order to depersonalise its application; at the same