Authentic Legal Theory (original) (raw)

2010, Dialog Campus Edition

By using the adjective "authentic" in the title of this book, I wanted to express my intention to continuously include legal history and theories of branches of law as well as the relevant literature in my analyses. In this way, I wanted to break with the concept of legal theory, which, detached from legal history and research of the branches of law, considers law from "above" and thus considers the concept of law, its sources, legal doctrine, interpretation, validity, etc. to be analyzable. This distorted and thinned-out conception of legal theory developed in the decades of the Soviet era in the late 1940s, and since it had already dominated two generations of lawyers in teaching legal knowledge in Eastern Europe. It had also seriously eroded theoretical education in the major branches of law, private law and criminal law. The absence of the great private law and criminal law theorists of the past in today's Hungarian legal literature is also due to the half-century-long decline of general legal theory. Since the regime change in 1989, there is no sign of Hungarian legal theory seeking a way out of this disciplinary crisis, and - to put it somewhat sarcastically - the citation of Soviet authors of the earlier era and the translation of their works have only been replaced by their Anglo-American counterparts. The subject of my book and the research on which it is based have attempted to break with this and address traditional questions of general legal theory interwoven with theoretical lines of legal history, private law, and criminal law. In support of this endeavor, I have traced the various conceptions of the development and nurture of the discipline of legal theory, and this is the subject of the first chapter of this volume. To understand the relationship between law and morality, I have first analyzed morality itself and its place in modern society. Then I approached the relationship between law and morality and examined the issues involved by analyzing the views of the German Jürgen Habermas and the Englishman H.L.A. Hart, as well as the writings of the legal moralists who followed and debated with the latter. The next chapter traces the development of the structure of modern law and the main roles of jurisprudence in the millennial development of Roman law and European legal development, which began anew around 1100. Rather than focusing on the details of the discipline of legal history, a picture of the overall development of the structure of law emerges here, showing that combining the research topics of legal theory and legal history can enrich both research communities and complete the teaching of legal knowledge to law students. The next chapter introduces the legal theory of Rudolf von Jhering, whose innovations in both private law and criminal law ushered in major changes from the early 1900s, and I wanted to use this analysis to show that an authentic discussion of Jhering, for example, is not possible with the thinned-out knowledge of our traditional legal theory, separate from research on criminal law and private law. Finally, the last two chapters of the volume address some theoretical issues in criminal and private law.