Rule of Law,

or the Dilemma of an Ethos: to be Gardened or Mechanicised

by
CSABA VARGA*
[Abstract]
One of the post-dictatorship models for transition is exemplified by total defeat
with military administration and jurisdiction, breaking past continuity through
preventing local practices to re-organise while re-educating for democracy, as
patterned by the allied powers after WWII in Germany, Italy and Japan, and
quite another of them at the other extreme is just to declare a full pledged rule of
law scheme put in operation from an artificial zero point on, as practiced in
Central Europe after the fall of communism. Almost opposite are the costs and
benefits of either ideals on behalf of both the party having generated the given
solution and the party whom it was generated to. And the fact notwithstanding
that the legacies of bygone regimes with the task of selecting one of these fresh
new ideal starts to implement upon after their fall are hardly comparable to one
another, their underlying philosophies, together with the corresponding politico-
cultural and anthropological pre-assumptions, are also close to appear and
actually work as antagonistic.
Practice in Central Europe is varying in terms of whether or not the rule of
law is conceived of as a set of expectations to be considered categorically
absolute as quasi exhaustively codified or it is a most respectable ideal having
once developed in response to particular challenges in given cultures under
given historical conditions, that is, an art of how to balance amongst differing,
moreover, conflicting values and interests within its ethos, a strive never to end
and close indeed as it is a learning process itself: a compound of various
viewpoints, layers and levels, which surfaces new features once genuinely new
challenges it is to meet.
As it has since long been established by legal sociology and then by legal
hermeneutics as well, a legal system in operation is by far more than a mere
skeleton made up by formal enactments. In fact, it is a working unit of formal
and informal components upon the basis of some legal culture with an adequate
tradition in the background. As it has been argued for by Scandinavian legal
realism, rules, either enacted or casually reconstructed, are sheer indicators of
kinds of underlying normativity already in operation, from which they can
surface as icebergs’ visible tops at the most. All in all, transfers and impositions
risk of being wedged in a contexture having been or remaining alien to them,
either detaching themselves as an external interference with the target system or
decompose the said system itself by re-routing its further development on an
artificial path, detached from the system’s original culture and tradition.

*
Scientific Adviser, Institute for Legal Studies of the Hungarian Academy of Sciences (H–1250 Budapest, P.O.
Box 25), Professor, Pázmány Péter Catholic University Faculty of Law, Founding Director of its Institute for
Legal Philosophy (H–1428 Budapest 8, P.O. Box 6) varga@jak.ppke.hu / http://varga.jak.ppke.hu
 Whether or not the new language happens to be predominantly American,
i.e., formulated in the one of rights and human rights, and how much the
borrower’s peculiar technicality and procedural approach departmentalises or
even dissolves the common responsibility once born for the res publica’s sake
even vivid under the old regime, is another issue that needs to be examined
alongside the scholarly treatment of law & development, law & modernisation,
as well as within the problem of globalised legal transfers. Eventually and in any
case, as far as the way of mastering (or the caring humility towards) the
instrument is concerned, a choice has finally to be made between the attitudes of
a circus trainer and a gardener.
In any case and especially in the Central European region with active
constitutional adjudication now, there is a temptation at substituting past
nihilism of the rule of law to a kind of fetishism, which may further strengthen
the dependence of target countries on pattern-followance and thereby weaken
their creative forces and sense of self-esteem and self-responsibility, vitally
neeed for their successful recovery.

A political adviser (between 2001 and 2004) to Dr József Antall, the first free-elected Primer Minister of the Republic of Hungary after the
fall of Communism, Professor Dr Csaba VARGA has, in addition to a number of books he authored or edited in English, published widely
also on the topic of “Rule of Law on the International Agenda: Policy, Politics and Morality”, including, among others,
Transition to Rule of Law On the Democratic Transformation in Hungary (Budapest: ELTE “Comparative Legal Cultures” Project
1995) 190 [Philosophiae Iuris]
review: Michael Bogdan in Svensk Juristtidning 80 (1995) 9, 749–750; A[ndré-]J[ean]A[rnaud] in Droit et Société 32 (1996);
Георги Денков ‘Унгарският преход към върховенство на правото’ Правна Мисъл [Sofia] XXXVIII (1997) 1, 72–73; Acta
Juridica Academiae Scientiarum Hungaricae 41 (2000) 3–4, 157–158
Coming to Terms with the Past under the Rule of Law The German Model, [pre-ed.] (Budapest 1994) xiii + 136 [Windsor Klub] &
Coming to Terms with the Past under the Rule of Law The German and the Czech Models (Budapest 1994) xxvii + 178 [Windsor Klub]
Kiáltás gyakorlatiasságért a jogállami átmenetben [A cry for practicalness in transition to rule of law] (Budapest: [AKAPrint] 1998)
122 [A Windsor Klub könyvei II]
‘Do we have the Right to Judge the Past? Philosophy of Law Considerations for a Period of Transition’ Rechtstheorie 23 (1992) 3,
396–404
‘The Dilemma of Enforcing the Law’ in Rechtsnorm und Rechtswirklichkeit Festschrift für Werner Krawietz zum 60. Geburtstag, hrsg.
Aulis Aarnio & Stanley L. Paulson & Ota Weinberger & Georg Henrik von Wright & Dieter Wyduckel (Berlin: Duncker & Humblot 1993),
427–435 & ‘Coming to Terms with the Past and its Statutory Limitations’ in European Legal Cultures ed. Volkmar Gessner & Armin
Hoeland & Csaba Varga (Aldershot, Brookfield USA, Singapore, Sydney: Dartmouth 1995), 442–444 [Tempus Textbook Series on
European Law and European Legal Cultures, 1]
‘Local Legal Tradition in Question’ in The Legacy of the Past As a Factor of the Transformation Process in Postcommunist Countries
of Central Europe (The Territory of Poland, Czech Republic, Slovak Republic, Hungary, former GDR) December 7–9, 1993, in Prague,
ed. Vladimira Dvoráková & Emil Vorácek (Prague: University of Economics Department of Political Science 1994), 315–325
‘Transformation to Rule of Law from No-law: Societal Contexture of the Democratic Transition in Central and Eastern Europe’ The
Connecticut Journal of International Law [Hartford] 8 (Spring 1993) 2, 487–505 & ‘The Building up of a Rule of Law Structure on the
Ruins of a Regime Based upon the Denial of Law in Central Europe’ in Law at the Turn of the Twentieth Century International
Conference Thessaloniki 1993, ed. L. E. Kotsiris (Thessaloniki: Sakkoulas 1994), 219–239 & ‘The Transformation of Legal Culture in the
Central European Transition’ in Rättsliga kulturer och normativa strukturer Nordiskt Rättssociologiskt Forum, 25–27 augusti 1995 (Lund
1995), 1–18 [mimeo] & ‘Transformation to Rule of Law from No-law: The sui generis Nature of the Challenge in Central & Eastern
Europe’ in Law, Justice and the State Abstracts of Working-Group Papers, comp. Eyja Margét Brynjarsdóttir (Reykjavík: University of
Iceland 1993), 98 [16th World Congress on Philosophy of Law and Social Philosophy] & ‘Constitutionalism, the Rule of Law, and the
Challenge of Transition’ in Constitutionalism & Politics International Symposium, November 11–14, 1993, ed. Irena Grudzinska Gross
(Bratislava: Slovak Committee of the European Cultural Foundation 1994), 151–154 [IV Bratislava Symposium 1993] & ‘Complexity of
the Challenge Facing Central and Eastern Europe’ in European Legal Cultures ed. Volkmar Gessner & Armin Hoeland & Csaba Varga
(Aldershot, Brookfield USA, Singapore, Sidney: Dartmouth 1995), [introduction to Part V: Transition to the Rule of Law] 415–429
[Tempus Textbook Series on European Law and European Legal Cultures, 1]
‘Rule of Law between the Scylla of Imported Patterns and the Charybdis of Actual Realisations (The Experience of Lithuania)’ Acta
Juridica Hungarica 46 (2005) 1–2, 1–11 &
http://www.akademiai.com/media/37knultrmmv9b6ykpee7/contributions/m/3/2/9/m3296v37841w54h0.pdf & Rechtstheorie 38 (2007) 1,
1–11 {in press}
‘Rule of Law – At the Crossroads of Challenges’ Iustum, Aequum, Salutare [Budapest] I (2005) 1–2, 73–88
‘Transfers of Law: A Conceptual Analysis’ in Hungary’s Legal Assistance Experiences in the Age of Globalization ed. Mamoru
Sadakata (Nagoya: Nagoya University Graduate School of Law Center for Asian Legal Exchange 2006), 21–41
‘Transition to Rule of Law: A Philosophical Assessment of Challenges and Realisations in a Historico-comparative Perspective’ in
Hungary’s Legal Assistance Experiences in the Age of Globalization ed. Mamoru Sadakata (Nagoya: Nagoya University Graduate
School of Law Center for Asian Legal Exchange 2006), 185–214
‘Legal Renovation through Constitutional Judiciary?’ in Hungary’s Legal Assistance Experiences in the Age of Globalization ed.
Mamoru Sadakata (Nagoya: Nagoya University Graduate School of Law Center for Asian Legal Exchange 2006), 287–312