Chapter 3 - Legal Praxeology (original) (raw)

Law as Discursive Practice [draft]

I will try to defend seven interconnected claims concerning law, inspired by Brandom's inferential semantics. First, that law is a discursive practice. Second, that this practice occurs in the context of practical reasoning. Third and fourth, that Brandom's picture of institutional reasoning generally provides adequate description of law as discursive practice, but standard articulations of reasons offered by Brandom in the three types of practical reasoning are incomplete. Fifth, that wherever there is a legal discursive practice, the reason for instituting all and any legal statuses is the 'common good' of the community in which that practice takes place. Sixth, that Brandomian-Hegelian model of legal concept determination could be rescued from combined charges of communal relativism and uncritical historicity by being supplemented with a knowable common good. And seventh, that the whole picture of law described above desperately needs its anthropology to be made explicit.

The sociological view of law

Századvég Edition

Through its function, law provides normative prescriptions for human behaviour, i.e. it prohibits certain types of behaviour and permits others in a given situation. The fundamental task of jurisprudence is therefore to clarify the meaning of the interrelationships between normative prescriptions and thus to ensure that there are no contradictions in meaning between the many thousands and tens of thousands of legal norms. Only in this way is it possible that the legal rules to be followed in everyday life fulfil their function and that legal certainty is not endangered. Substantive jurisprudence analyses and develops the totality of legal concepts that ensure the internal conceptual coherence of a field of law and constantly monitors the coherence of the legal norms required for specific life situations. From now on, depending on the different legal concepts to varying degrees, the consistency of the specific legal norms and legal concepts with the general principles of justice is also included in the consideration. This approach thus moves in the dimension of normative conceptual coherence. On a broader level, the philosopher of law does the same when, apart from analysing substantive law, he deals with the content of the principles of justice and their relationship to each other, and from this establishes requirements for the conditions of a just legal order. However, law, although it fulfils its function in a normative dimension, is a social phenomenon like other fields of activity that fulfil a social function, e.g. the economy, art, science, politics, etc., and any legal phenomenon can be studied from the point of view of facticity, just like other social phenomena. This is the essence of the sociological approach to law, which can be formulated in contrast to the approach of theoretical jurisprudence or legal philosophy as a field of analysis of social facticity and causality or effects. For example, while the substantive law of civil law examines a legal regulation on a pledge or surety from the point of view of how these contractual securities fit into the framework of existing contract law as a whole, the sociological approach to law asks how often pledges or sureties are used as contractual securities in everyday contractual practice, from the point of view of the absence of contradictions of meaning. Or which social interests and which social disadvantages have favoured the emergence of this form of pledge and surety in everyday contractual practice, and which social interests would be served by alternative regulations in this area? In the sociology of law, one therefore moves from the normative dimension to the factual dimension, to the dimension of conflicts of interest, social causes and effects, when analysing legal norms and legal phenomena. Looking at sociological studies and the various lines of research in the sociology of law in this approach, one can distinguish between a narrower and a broader understanding of the sociology of law. The sociology of law in the narrower sense still focuses on legal norms like the thematic legal sciences, and it is no coincidence that the sociology of law developed historically in the last decades of the 19th century. The sociology of law in the narrower sense, like the theoretical legal sciences, is concerned with legal norms and legal provisions, but with their actual consistency rather than with normative-conceptual coherence and possible logical contradictions. Or does it ask which social interests and political forces have shaped the legal norms under study and which political forces serve the dominance of which political forces in social struggles and which social groups are subordinated and disadvantaged in power by the legal norms under study?

Introduction: A Grammar of Law in Context and Action

2011

Adjudication in Action observes the contextualized deployment of various practices and the activities of very diverse people who, in different capacities, found themselves involved in or faced with judicial institutions. More specifically, it describes the moral dimension of judicial activities and the judicial approach to questions of morality. It shows how the practical accomplishment of the law is performed and achieved in a necessarily moral way, and how this practical, legal cognition mediates and modulates the treatment of cases dealing with morality, e.g. sexual. In a Wittgenstein-inspired ethnomethodological way, it proposes a praxiological perspective which does not reduce the law to the mere provisions of a legal code, although it considers law on the books as an integral part of legal practice. Through the close description of people's orientation to and reification of legal categories, within the constraining framework of institutional settings, this book constitutes...

Theory and Practice in Law

Acta Juridica Hungarica, 2006

Law is characterised by a fundamental gap between its social embeddedness and the apparently formal automatism it operates, which gap is basically bridged by the law's ultimate practicality under the guise of its mere logicity. This seeming contradiction is resolved by judicial decisions as responsible and responsive practical actions which are to result from the necessary conceptual transformation(s) of the law's wording in the course of its official application, which does involve a necessary jump in logical derivation. This is to say that on final analysis and in practical terms, law is what gets actualised through the actual uses of it. Black-box effect such as this is helped by the variety-and owing to the magical transforming effects-of legal techniques. Eventually, it is legal culture that provides a medium in which legal techniques can at all be selected and used. On a conceptual plane, one of the filters is offered by legal dogmatics. This very complex includes dialectics as well, for there is no motion without counter-motion, therefore, it is not realistic to pursue any human ambition without some safety valves inserted. Or, regarding, e.g., law, no homogenisation is feasible without some re-heterogenisation at the same time. Paradoxically speaking, while modern formal legal development went in the direction to mechanise the judge, the realisation was also made that law had ever been too serious an undertaking to be just left alone to the logification by some impersonally formalistic apparatus. Therefore, simultaneously with the very first act of formalisation, law has ever built in its scheme the possibility of de-formalisation as well. It is this complex understanding that was implied by Kelsen's successive rewriting his pure theory with changing shifts of emphasis. All could suggest is that the ultimate certainty is eventually nothing else than we ourselves. Or, in addition to the law itself (as conceptualized in the systemicity of a doctrine), social actions and authoritative acts under the label of law are also in a constant competition for defining what will eventually be acknowledged and also practiced as law.