A jog realitása - Az etruszk vallástól a posztmodern jogelméletekig
THE REALITY OF THE LAW
From the Etruscan Religion to the Postmodern Theories of Law
(Kairosz, Budapest, 2005.)
The study intends to approach the ontological aspects of law in three larger units.
The first part introduces the question of the reality of the law with the fundamental problem in the philosophy of law that is the duality of the state and the law. In course of this with a new point of view it enlightens the state-legitimating feature of the law and the state law-making nature, a peculiar ’chicken-and-egg’ phenomenon. The law as a will of the state takes certain ’Sein’-features as well, and the study shows that, in this too, the law differs from the basically ’Sollen’-type conventional and moral rules . The first part of the study also examines how much the description of the reality of the law is apt to be interpreted as a certain law-ontology.
The study points out that the complicated notion of the law – like all the other complex notions – is created in the course of experiencing, comes to existence ’a posteriori’, and the book also intends to draft the way how the law and its notion could take shape.
The first part concludes with expressing a doubt , namely, that how much the Western concept of the law and philosophy of the law could be considered as universal and authoritative concerning all the other laws and legal systems.
The second part searches the spiritual origin of the Roman Law, basis for the Western law. It points out that while the jurisprudence concernes the Roman Law as a basically profane structure compared with other legal systems, in fact the Roman Law developed from a certain religious environment. True, though, that it developed from a totally different religiousity like, for example, the ancient Eastern, Islamic or Far-Eastern religious world.
It was percepted by the history of the law about one hundred years ago, that the earliest Roman Law, especially its strict formalism can conserve fragments of certain religious ideas. However, the traditional research did not go further than merely mentioning this supposition. For the history of religion, likewise in the last century, it became more and more obvious that the Etruscan religion made the biggest impact on the Roman religion. Through connecting these two perceptions, the study proves that the ancient roots of the Roman Law derives directly from the Etruscan religion, which puts great emphasis on the rituality and is rather formality-centred concerning its nature. To prove this the second part of the book drafts the structure of the bi-rooted Roman culture (Etruscan and Italian origin), then it verifies its Etruscan descent through the description of certain phenomena and legal institutions.
The second part of the study results in detecting the religion-originated formality gradually dissolving and living on hidden.
The third part describes the Western law as a descendant of the religion-originated Roman Law and as a certain ideal parallel universe and also compares it with the Islamic and Chinese laws. Analysing the connection between the material and the subjective law the study, finally, tries to seize the notion of the law and through this the reality of the law as a particular idea-system at the same time highlighting the peculiar ’time-structure’ of the ideas. It is namely that the human conscience does not merely think about the purely assumed things existing only in the period of thinking but it perceives them as existing independently from the conscience.
The closing thoughts of the study also points out some questions in connection with the legal system of the Europian Union, a seemingly new-born authority.
(You may download the hungarian excerpt from the link above.)