Law and Its approach as a system

Riassunto

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1. The logical structure of law as a historical product. 2. Tendencies of formal rationalization in legal development. 3. Historical development of the approach to law as a system. 4. Present state of the attempts at a logical reconstruction of law and legal reasoning. 5. Question of the axiomatic conception of law. 6. Heuristic value of the approach to law as a system.

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Riassunto

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Law and Its approach as a system

[Editor's Note] This article is reprinted from: «Acta Juridica Academiae Scientiarum Hungarian, Tomus 21 (3-4), 1979, pp. 295-319.

1. The logical structure of law as a historical product

There is a statement largely widespread in social sciences according to which development, and particularly legal one, since the Revival of Learning has led to the triumph of logic, Marxist legal theory, too, although in its Investigations it primarily concentrates on questions of social contents, wants to discover «un processus juridique et formel particulier» in the universal processl'of legal development, a process which is even considered as segregating the proper history of law from Its prehistory1. Undoubtedly, simultaneously with Its objectification as a written rule, with Its development to something created, i.e. to statutory, codified law, in the course of Its formation law has gradually undergone changes: It has transformed Into a logically organized ensemble of rules, Into a system elaborated in Its notional coherence, on the creation of which the Ideal of axiomatism, and on the application of which the demand for deductive definedmess, have put their stamp.

All this is, however, not a straight-lined development tending towards Infinity, or a self-contained development determined by and for Itself. Even Fr, Engels brought the birth of the demand for a formal coherence in law, of the postulate that law is «ein in sich zusammenhangender Ausdruck, der sich nicht durch innere Wlderspruche selbsi ins Gesicht schlagt», decidedly Into association with modern statehood 2. What I have here in mind is that the 'tecnological' transformation of law, its manifestation in the form of a relatively autonomous, and also logically organized, system, is a historical formation. It s a historical product which came into being and developed in a given social and developed in a given age for the satisfaction of given social and economic needs, Its preface is therefore far trorn being evident, even if the universal «Tendenz zur Rationalisierung des Rechfs»3 might loom up as a natural property of the industrial society so characteristic of our age. Hence notwithstanding Its ability to satisfy, to a certain extent, the needs of our age, the transformation in question is to be considered but a historical particularity whose explanation can be given only by historically unfolding it in Its whole social and economic context.

«Wir kennen nur eine Wissetischaft, die Wissenschaft der Geschichte», wrote K. Marx and Fr. Engels in their early polemic work4, thus indicating the ontological intertwining and multiple interaction of social phenomena among themselves and with the ones of nature in the following I propose to undertake the unfolding of the formation as well as of the structure and Inner limits, of the demand for organizing law as a logical system and, as Ideal, for conceiving of it under the changing, although lasting, Influence exerted by the axiomatic-deductive pattern. Obviously the historical particularity of all these define at the same time the historical particularity of Ideologies and theoretical Images connected with them. As it will be shown, feudal absolutism and free trade capitalism,. by creating the structures of formal rationality, have not only given shape to a system of Institutions and ideologies adequate exclusively to their own conditions. By turning these both socially typical and of determining effect, law has helped to power a set of instruments and ideolo...

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