Siberian Federal University

Issue

Journal of Siberian Federal University. Humanities & Social Sciences. 2015 8 (10)

Authors

Varga, Csaba

Contact information

Varga, Csaba:Pázmány Péter Catholic University 6 Postal Box, Budapest 8, 1428, Hungary; E-mail:

Keywords

Georg Lukács; socialisation/mediation; objectification/reification/alienation; social formalism; language/law; the law's construction/operation; reconventionalisation as autopoiesis; logic of problem-solving/justification; the law’s system of fulfilment and its manipulation; discretion and personal responsibility

Abstract

Social science reconstruction is needed to explain our vital social issues in a theoretical manner. Conceptual differentiations which have laid the foundations of our scientific thought since the era of classical German philosophy (such as phenomenon and essence, or form and content, taken in their duality and/or final synthesis), provide unchangedly the turning points for our methodical thinking and abstract intellectual processing, in variations corresponding to the philosophy and methodology of sciences we cultivate in renewed forms today. The posthumously published synthesising work of GEORGE LUKÁCS made it clear that all social descriptions have to reckon with socialisation [Sozialisierung/Vergesellschaftlichung] – and with mediation/mediatedness [Vermittlung] within the womb of it – as an unbreakably and irreversibly progressing process, capable of erecting, through their historical accumulations, networks that are complex in themselves. This is the environment that provides the medium within which objectification [Objektivation/Objektivierung] can at all emerge and may turn into an overwhelming power in society, and which can produce, in the course of its self-development, the potential and the social reality of reification [Verdinglichung] that can yet be accepted as functional in social workings, and of alienation [Entfremdung] which is already to be seen as dysfunctional. It is known from the time of MAINE’s inquiry into The Ancient Law one and a half centuries ago at the latest that various kinds of social formalism have already developed since the earliest social formations on, in order to transform human practices and uses more secure and foreseeable, like repetitions within a systemic framework, that is, in order to make them more economical. Social science now designates this trend as conventionalisation, and symbolises and analyses it within the frame and in terms of speech-act theory as its master example. Notwithstanding the fact that LUKÁCS did not enter any such field of research, it is by far not a mere chance that by investigating mediations taking place between the social total complex and its partial complexes, he emphasised language and law as basic agents of mediation, that is, as ones having the sole function to mediate amongst whatever complexes. Social practices and uses (presupposing co-operation – and thereby also intersubjectivity – by their nature) raise, unavoidably for their theoretical explanation, the question once formulated by classical English philosophising as the dilemma of the separation and/or unity of ‘body’ and ‘soul’. For considering either the formal reconstruction of language (as achieved by SAUSSURE) or the simultaneously differing aspects of law (as revealed by both the clash between KELSEN and EHRLICH in their search for the law’s final criterion and POUND’s sociologism making the distinction between ‘law in books’ and ‘law in action’), analysis needs the presumption of some construction or constructed structure, on the one hand, albeit it is widely known that actual operation will always break it through, on the other. Otherwise speaking, practical operation is a kind of reconventionalisation which is going to be sublated [Aufhebung] at all times. This equals to saying that by incessantly preserving and transcending that which is a given [donné] to it, it will continuously make (in)novations as well according – as adapted – to its own timely needs. LUKÁCS once draw the conclusion (also by reinterpreting the debate between MARX and LASSALLE on the reception of Roman law) according to which it is the ontological perspective that is primordial vis-à-vis the relevance of any purely epistemological approach. Or, one who acts is driven at any time by his/her specifically individual conditions under the push of his/her recognition of pressing interests. Consequently, just because ideology/ideologisation is part of human societal existence, this is not simply an either true or false form of consciousness but one of the organic and necessary components of the ontology of social existence. To be short: the way we think in is part of what we truly are. Accordingly, so-called juristic world-view [juristische Weltbild], taken as the deontology of the legal profession, is not some accidental and external complementation to law but – be it, characterised as prevailing in ENGELS’ time, the case of European continental normativism or the Anglo-Saxon pragmatic casualism or case-law method (not to extend our exemplification to other legal traditions as well) – it is one of the original factors of what can be truly termed as the law’s social existence. Self-realising homogenisations are being built by the partial complexes on the heterogeneity of everyday practice unceasingly. It is the judicial process as particular reality-(re)construction from the analysis of which the author has arrived at the ontologising reformulation of autopoietic theory, originally drafted in Chile in explanation of the biological reproduction of cells. As the author concluded therefrom, that what is alleged as following social patterns is reproduction and production at the same time, an individual combination of preservation and (in)novation up to the point of its being recognised just as exemplary pattern-following by its hic et nunc social environment, and thereby also authenticated as a given instance of the reconventionalisation of the underlying convention. Or, in law, actual decision making can only be modelled by the logic of problem solving, with relatively open chances and within a relatively open referential frame, upon which the logic of justification is only building as added to the former phase to phase posteriorly, as a kind of feedback in test of control; all this running against the usual stand of legal theories which, dreaming about some mechanicity in pattern-following, are only able and willing to report on the implementation of the law’s textuality, its sheer realisation in practice. Again, the judicial decision is envisioned as a result concludingly drawn and derived from the letters of the law (in a manner similar to the inner necessity of chemical extraction) – consequently, insofar as the ‘right answer’ is reached, one without alternatives – , albeit there are no in-built necessities here. LUKÁCS may have been of the same opinion since he simply designated the settling of the conflict of involved interests through the law’s system of fulfilment [Verfüllungssystem] as manipulation. For comprehension [Verständnis] is again an autopoietical process itself, within the general scheme of any hermeneutic process (unless we think in the possibility of a Robinsonian being, already excluded by LUKÁCS): it will reach its given form as it will result from the social game (and its just-so-being [Gerade-So-Sein]) occurring in the given auditorium (PERELMAN). In point of principle, everyone may take part in it and everyone may contribute to forming it. The whole process will lead exactly to the result which is still defensible in the given environment as the actual resolution of the conflict of interests involved, just because this is the solution that can yet be successfully conventionalised, that is, recognised and acknowledged in the given medium and in the awareness of the predispositions commonly shared as the individually actualised instance of pattern-following. Accordingly, the personal responsibility of the decision maker (and, in the final analysis, the one of all us) is acutely prevalent in each case here as well. In fact, we are all accountable independently of the fact that, by transferring our responsibility to the quasi-automatic self-operation of our reified structures, we are not used to make it conscious as ascribable to us in person. This is because homogenisations are never self-propelling: they are nurtured in and by social heterogeneity. Just in the way as professional languages draw inspiration from language uses within the society’s general culture and professionals themselves are undivided humans in the fullness of their being, that what is known as the Ausdifferenzierung des Rechts (LUHMANN) can and shall only be realised in practice as reflected through our everyday considerations, that is, in the interest of them, moreover, in order just to implement them to an optimum feasible degree. In sum, we are unavoidably responsible for ourselves and for our human destiny, including, of course, the hows and whys, as well as the autonomy, by which we operate our constructs, humanly made for humans’ best use

Pages

2002-2017

Paper at repository of SibFU

https://elib.sfu-kras.ru/handle/2311/19820

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